3 S.C.R.

SUPREME COURT REPORTS 369

KAMESHWAR PRASAD AND OTHERS

THE STATE OF BIHAR AND ANOTHER

(P. B. GA.JENDRAGADKAR, A. K. SARKAR, K. N.

WANCHOO, K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, .JJ.)

Government Servant-Participation in strike.9 or demonstra• tions-Rule prohibiting strikes or demonstrations pertaining to conditions of service-Oondtutional validity of rule- "Detnonstration". meaning of-Bihar Governm, ent Servants' Conduct Rules, 1956, r. 4-A-Constitution of India, Art•. 19(1)(a), 19(1)(b), J.9(1) (c), 33, 309.

By a notification dated August 16, 1957, the Government of Bihar introduced r. 4-A into the Bihar Gevernment Servani:s' Conduct Rules, ! 956, which provided "No Government servant shall partjcipate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service." The appellants filed a petition before the High Court of Patna under Art. 226 of the Constitution of India challenging the , validity of the rule on the grounds, inter alia, that it violated sub-els. (a), (b) and (c) of Art. 19 and that, in coniequence, the rule was in excess of the rule making power conferred by Art. 309.

The High Court took the view that the freedom guaranteed under Arts. 19 (1) (a' and 19 (1) (c) did not include a right to demonstrate or to strike so far as servants of Government were concerned, 3.nd that in any case, the impugned rule was saved as impo3ing

reasonable restrictions.

He.ld, that r. 4A of the Bihar Government Servants' Conduct Rules, 1956, in so far as it prohibited any form of dernostration, be it however innocent or however incapable of causing a breach of public tranquillity, was vioiative of Arts. 19 (1) (a) and 19(l)(b) of the Constitution of India, and since on t~1e language of the rule as it stood it was not possible to so read it as to separate the legal from the unconstitutional portion of the provision, the entire rule relating to participation in any demonstration must he declared as ultre vlrcs.

T/1e Superintendant, Central Pri8on, Fetehgarh v. Ram Marw/iar Lohia, [1960] 2 S. C.R. 821, relie~ on.

The Constitution has under Art. 33, selected two of the Services uncier the State, the trnbers f WJiich might b~

196!

February 22.

Karruthwar fraxad

•• Staft Qj Bfl1ar

deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also has prescribed the limit~ within which such rcscrictions or abrogation might take place; but the ocher clau'iscs of servants of Govcrn1nent in co1nmon with other persons and citizens of the country cannot be exclu <led from the protection of the rights guaranteed by part JI I by reason 1nerely of their being Govern1nent scr\'ants, though on account of nature and incidents of the duties \vhich they have to discharge in that capacity, certain restrictions on their freedoms rnight have to be imposed.

Heid, further, that the rule in so far as it prohibited strikes v.•as valid, because there was no fundamental right t0 resort to a strike.

All India Rllnk /~1npl1Jyers' Asaocir1tion v. _, 1ationrzl Indus trial Tribunal, (1962] 3 S.C.R. 269, followed.

Civil Az>pellate .l'llrisdfrtion: Civil Appeal Xo. 41.l of 1959.

Appeal from the judgment and decree dated , July 7, 19.~8, of the Patn:t High Court in

~I. , J.C.

o. 456 of 1957.

B. P. Jfoheshwari, for the appellants.

S. P. Va;-ma, for the rcspowlrnts.

B. Sen and R.H. Dhchar, for the Intervener No. l (Cnion of India).

A. S. R. Chari, M. K. Rammni1rthi, R. K. Garg, ]). P. Singh and S. C. Agarwal, for the Inwnener

No 2 (E. X. Joseph).

1962. February 22.

The Judgment of the Court was delivered by

AYYA:XGAR, J.-This appeal comes beforo. us by virtue of a certificate of fitness grnntNI under Art. 132 of the Constitution by the High Court of Patna. The question involve<! in the app<•al is a

8hort ono but is of considerable puhlic importance

and of great constitutional significance. ft. i~ con cerned with the constitutional validity of r. 4A,

which was introduced into the Bihar Government Servants' Conduct Rules, 1956; by a notification of the Governor of Bihar dated August 16, 1957 and reads:

"4~A.-Demonstrations and strikes.- No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service." Very soon after this rule was notified the six appellants, the first of whom is the President of the Patna Secretariat Ministerial Officers' Association and the others are Assistants or Clerks under the Bihar State Government, filed on August 26, 1957, a petition before the High Court of Patn'l under Art. 226 of the Constitution challenging the validity of the rule on various grounds including inter alia that it interfered with the rights guaranteed to the petitioners by sub-els. (a), (bl and (c) of cl. (l) of Art. 19 of the Constitution of India and that in consequence the rule was in excess of the rulemaking power conferred by Art. 30:J of the Constitution which "as the source of the authority enabling service-rules to be framed. They prayed for an

order restraining the respondent-State from giving effect to the rule and to desist from interfering with the petitioners' right to go on strike or to hold demonstrations. The learned Judges of the High

Court who heard the petition were of the opinion that the freedom guaranteed under Art. 19( l)(a) and 19(l)(cl of the Constitution did not include a right to resort to a strike or the right to demonstnte so far as sevants of Government were concerned. The

learned Judges however, further considered the validity of the rule on the assumption that the freedoms enumerated in sub-els. (a) and (c) of Art. 19(1) did include those rights. On this basis they held that the rule impugned was saved as being

reasonble restraints on these guaranteed freedoms,

Kamechwar Prasad

The Slate of Bihar

A ;:yan:ar J,

ltameJhrt; Qr P, au1d

The Stale of Bihar

A}yan111f' J.

The learn°d Judges therefore directed the petition to Le dimissed, but on application by the a ppell:ints

thoy granted 11 certificate und<'r Art. 132 of the Constitution to enable them to approach tliis Court.

At this stage it is necessary to mention that a similar conclusion as the one by the High Court of Patna now under appeal wa.s reached by the learned Judges of tho High Court of Romhay before whom the constitutional validitv of a rn le in identical terms as r. 4A of the Bihar Rul<'s was impugned.

The correctneRS of th:it decision is unrfor chnll<'nge

in this Court in S.L Ps. (Civil) Nos. 40\J "nd 500 of 19til and the appellants in that app1al sought leave to intervene in this appeal and we ha,_.,, permitted them t-0 do RO, and we heard '.\Ir. Chari-learned Crmnoel for the intrveners in furl her upport of the appeal.

Before entering on a dicussion of tho a, rguments adv:mced before us it might be eonvenient to state certain matter~ which are common ground and not in controversy : (I) The impui,,'lled rule 4-A was framed under Art. 309 of tho Con8titution which enact~. to quote the material words :

"300. Subied to tho provision" of this Constitution, Acts of the appropri11te Legislature may regulate the rceruit1rnnt, and conditions of service of persons appointed, to public . ,, scrvtC(\, S .. .•.....•..... ancl provision i~ made hy tho proviRo to thi> Article for tlw Governorn of States to make JU!t's until "provision in that chalf i~ macle .!':V or unrfor .an Act of the appropriate Leg1slalur<, . We are <lrnwmg

attntion to the Artidc under which th(' rnlo is mad(' for the purposP of pointing out that the rulemaking power being snhj., ct to the Cntrntit.utio1;, the validit.y of the rulo would have to b" tested by the saml' criteria as aro applicable to all !:1s and subordinate legislation.

In other wor<ls, 1f

there are any constitutional limitations npon lawmaking, such of them as are appropriate to the subject dealt with by the rule would be applicable to them.

(2) It would be seen that the rule prohibits two types of activities, both in connection with matters pertaining to the conditions of service (i) the holding of demonstrations, and (ii) resort to strikes to achieve the purpose indicated. This Court had, in All India Banlc Emplnyees' Association v. National Industrial Tribunal (') (Bank disputes Bombay etc.), to consider the question as to whether the right to form an association guaranteed by Art. 19( l) (c) involved or implied the right to resort to a strike a, nd answered it in the negative. In view of this decision learned Counsel for the appellants, as also Mr. Chari for the interveners confined their arguments to the question of the legality of the provision as regards the right "to hold demonstrations". The validity of the rule therefore in so far as it prohibits strikes, is no longer under challenge.

The argument addressed to us on bl'half of the appellants may be shortly stated thus : The eervicerule being one framed under Art. 309 is a "law" within the definitiun of Art. 13(3) of the Constitution and it would have to be pronounced invalid to the extent that it is inconsistent with the provisions of Part III. of the Constitution Art. 13(2).

Article 19(1) confers on all citizens the right by sub-cl. (a) to freedom of speech and expression, and by sub-cl. (b) to assemble peacefully and without arms, and the rightto"demonstrate"would be covered by these two sub-clauses. By the , mere fact that a person enters Government service, he does not cease to be "a citizen of India", nor does that disentitle him to claim the freedoms guaranteed to every citizen. In fact, Art. 33 which enacts :

"Parliament may by law determine to

(I) CJ.A; 154 of 1961 (Not yet reported).

Kameshwar Prasad v.

The State of B1'har

Ayyanzar J.

JYG2

Kam11hw.rr l'rasad

•• The Sl•U of Bihar

. .i/a :; ar J.

374 SOPREME COURT REPORTS (1962] SuP~.

wh11t extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or tho Forces charged with maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.,. obviously procC'eds on the basis of personH in the service of Government being entitled to the Protection of tho fundamental rights guaranteed by Part III of the Constitution and iB inserted to <nable special provi; ion being made fur the abrogation, if necessary, of thn guarant-0ed freedoms in the ease

of two special scrd<; cs only, viz., the army :u:d the police force.

The approach to the queRt.i<in regarding the constitutionality of the rule should be whether the ban that it imposes on demonstrations would be covered by the limitation of the guaranteed rights contained in Art. 19(2) and 19(::!).

In regard to both these clauses the only relevant criteria which has been suggested by the respondent-State iH that the rule is framed •in the interest of public order".

A demonstration may be defined as "an expres8ion of one's feelings by outward signs". A demonstration such as is prohibited by, the rule may be of the most innocent typepeaceful orderly such as the mere wearing of a badge by a.

Government servant or even by a silent afSem bly say

outside oflice hours-demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of a type involving incitement to or capable of lea.ding to disorder. If the rule had confined itself to demonstrations of type which would lead to disorder then the validity of that rule could havo been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type-innocent ae well as otherwise-and in consequence its validity cannot be upheld.

Before considering these arguments of learned -

Counsel it is necessary to deal with the submission by Mr. Sen who appeared for the Union of India who intervened in this appeal which, if accepted, would cut at the root of the entire argument for the appellant. He endeavoured to persuade us to hold that though the power to frame Service Rules under Art. 309 was subject to the Constitution with the result that the rules so framed ought not to be contrary to any constitutional provision, still it did not follow that every one of the fundamental rights guaranteed by Part III could be claimed by a Government servant. He urged that as a person voluntarily entered Government service he must by that verj act be demeed to have consented to errter that service on such reasonable conditions as might be framed for ensuring the proper working of the administrative machinery of the Government and for the proper maintenance of discipline in the Service itself.

Under Art. 310 every office is held, subject to the provisions of the Constitution, at the pleasure of the President or of the Governor as the case may be, and provided a rule regulating the conditions of service was reasonable and was calculated to ensure the purposes above-named he submitted that its reasonableness and validity could not be tested solely by reference to the criteria laid down in ols.(2}, (3) or (4) of Art. 19.

In this connection we were referred to a few decisions of the American Courts for the proposition that the constitutionality of special rules enacted for the discipline of those in the service of Government had to be tested by criteria different from those applicable to ordinary citzens.

Thus in 'f!Jx Parle; Curtis (') the constitutionality of a law prohibiting officers or employees of the United Sates from "requesting, giving to or receiving from any other officer or employee of the government any money . or property or other thing of value for political

purposes," under a penalty of being discharged and, on conviction fined, was upheld. In the majority

(I) 27 Law. Ed. 232, 106 U. S. 371.

196B

Kameshwar Prastld

Tiu S t•I• of Bihar

Ayyangar J.

KouuslrUJar PrOJ•i

Tht Stak of Bilw

Auyongar J•

judgment which was delivered by Waite, C.J., the

rcasonablen('ss of such a rule is pointed out. It is however manifest that no fundamrntal right could be claimed to havP been infringed by the provision there impugned. In United l'ublic Worker" v.

Mitdull ('), which was another caso to which our attention was invited, ono of the questiuns raised related to the validity of an Act of Congress (The Hatch Act, 1940) making it unlawful for the employees in the Executive Branch of the .Federal Government to take part in political campaigns 11.nd making the same the basis for disciplinary departmental action.

It was eontended that thi" wa8 an interference with the right of free speech as well as with political rights. l\eed, J., who spoke for the majority obHerved:

"Tho interference with free cxpreSBion has to be seen in comparison with the requireml'nts of orderly management of administrative personnel. ....... _.,, We accept appellant's contention that the nature of political rights reserved to the people are involved. The

righ~ claimed as inviolate may be stated as the right.of a citizen to aot as a party official or worker to further his own political views.

Thus we h11.ve a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant

under the .First Amendment. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment .......... ,_ .... We do not find persuation in appellants' argument that such activities during free time are not subject to regulation even though admittedly politieal activitos cannot be indulged in during working hours.

The influence of politieal activity by gc, vernrnent employees, if evil in its effects on tho (I) 91 Law. Ed. 75·1, 330 t..:.S. 75. -

.. " 377

service, the employees or people dealing with them, is hardly less so because that activity takes place after hours ............ It is accepted constitutional doctrine that these fundamental human rights are not absolutes ............ The essential rights of the First Amendment are subject to the elemental need for O!der with out which the guarantees of civil rights to others would be a mockery".

Mr. Sen also referred us to Mc Auliffe v. New Bedford ( ') which is cited at p.791 in 91 Law. Ed. in support of the position that servants of Government formed a class and that conditions of service imposed upon them which are reasonable and necessmy to ensure efficiency and discipline cannot be questioned on the ground of their contravening any constitutional guarantees. Mr. Sen drew our attention in particular to the following passage in the judgment of-Holmes, J. :

"There is nothing in the Constitution or the statute to prevent the city from attaching obedience to this rule as a condition to the office of policeman, and making it part of the good conduct required.

The petitioner may have a constitutional right to talk polities, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant c1mnot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here (The Police Regulation prohibiting mem hers of the depart-

( I) (1892) 155 Mass. 216.

Kameshwar Prasad

The State of Blha•

Ayyanzar J.

KtJmtshwar Pr"•ad ..

Thi Stu1 of Billi"

.. ,_,.,,,., J

ment from soliciting money etc. for political purposes)" .

As regards t hesc decisions of t.he American Courts, it should be borne in mind that though the

First Amendment to the Constitution of the United State reading "Congress shall make no law ......... abridging the freedom of speech ......... " appears to confer no power on the Congress to impose any

l'<'Striction on the exercise of the guaranteed right,

till it has always been u11derstood that the freedom guaranteed is subject to the police power-the scop:• of which however has not been ddined with precision or uniformly.

It is on the basis of the police power to abridge that freedom that the cu118titutional validity of law~ penalising libels, and those relating to sedition, or to obscene publicatio11s etc., has been sustained. The resultant flexibilit.y of the restrictions that could be validly jmposPd renders the American deci;.io11s inapplicable to and without mnst use for resolving the quetions arising under Art. 19('l)(a) or (b) of onr Constitntion wherein the ground-; on which limitations might be placed on the guaranteed right are set out with definiteness and precision.

Learned Counsel iavited our attention also to the decision of this Court in BrJ/11.kotaiah v. Union of India(') to a Rimilar effect.

But it must however, be noted that in Balakotaiah's case the validity of the rule wa.s not challenged.

In further support of his submis8ion that the fre•cdoms guaranteed to citizens by Art. J 9 c:annot in their very nature, be applied to those who are employed in governmt-nt St>rvicc our attention was invited to sub-els. (d), (c) and (g) of d. (1). It was said tha.t a Government servant who wa.8 postd to a partieular place could obviously not cxercisP tho freedom to move throughout the t; rritory of India and similarly, his right to reside and settle in any part of India could be said t.o be violated by his

(I) {1958] S. C. R.I05i.

being posted to any particular place. Similarly, so long as he was in government service he would not be entitled to practise any profession or trade and it was therefore urged that to hold that these freedoms guaranteed under Art.. 19 were applicable to government servants would render public service or administration impossible. This line of argument, however, does not take into account the limitations which might be imposed on the exercise of these rights by els. (5) and (6) under which restrictions on the exercise of the rights conferred by sub-els. (d) and (g) may be imposed if reasonable in the interest of the general public.

In this connection he laid stress on the fact that special provision had been made in regard to Service under the State in some of th\) Artic]esin Part III-such as for instance Arts. 15, 16 and 18(3) and (4)-and he desired us therefrom to draw tho inference that the other Articles in which there was no specific reference to Government servants were inapplicable to them. He realised however, that the implication arising from Art. 33 would run counter to this line of argument but as regards this Article his submission was that it was concerned solely to save Army Regulations . which permitted detention in a manner which would not be countenanced by Art. 22 of the Constitution.

We find ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named.

In our opinion, this argument even if otherwise possible, has to be replll!ed in view of the terms of Art. 33. That Article selects two of the Services under the State-members oflthe armed forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them-from invalidity on the . ground of violation of a.ny of the funda.menta.l

196%

Kameshwar Prasai

The State of Bihar

Ayyangar J,

J96Z

E011Ushwar Prasad

Tiu Stat1 of Bihar

AJ; angar J.

380 SUPREME COURT REPORTs [1962) SUPP.

rights guaranteed by Part III and also d<>fines the purpose for which uch abrogation or restriction might take place, this being limited to ensure the

prop!Jr dicharge of duties and the maintenanco of discipline among th('m.

The Article having thus selected the Services mem hers of which might Le deprived of the bcndlt of the fundamental rights guaranteed to other persons and citizens and also having prescribed tho limits within which such rPStrictions or abrogation might take r)ace, we

congider that other classes of 5ervants o Govern mcnt in common with other persons and other citizens of t.hc eountry cannot Le excluded from the protection of the rights guaranteed by Part HI by reason merely of their br.ing Government servants artd the nature and inri<lenta of th\) dnties which

they have to diecharge in that capacity might nccessarilv involve restrictions of certain freedoms a8 we have pointed out in relation to Art. 19 ( l) (c J and (g ).

The first question that falls to be considered is whether tho right to mako a "demonstration" is covered by e1thcr or both of the two freedoms guaranteed by Art. l!J(l)(a) and 19(l)(b). A "elem

onstratio11" is dcfinrd in tl1e Concise Oxford Dictil1 nary as "an outward exhibition of feeling, as an exhibitio11 of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a

party, sect or society......... as by a parade or mass-meeting". Without going very much into the niceties of language it might be broadly stated that a d1•monstration is a visible mauifcstation of the feelings or sentiments of an individual or a group. It is thus a. communication of one"s ideas to others to whom it is intended to be conH•ycd.

It is in effeot therefore a form of Hpecch or of expressiotl, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It ha.a however to be recognised that

the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mnre assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. l.9(l)(a) or 19(l)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedbms gu'1rante<Jd by Art. 19( 1 )(a) and 19( l) (b). It is needless to add that from the very nature of things a demonstration may take various forms; It may be noisy and disorderly, for instance stone-throwing by a crowd may be cit-, d as. an example of a violent and disorderly demonstration

and this would not obviously be within Art. 19(l)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.

If thus particular forms of demonstration fall within the scope of Art. 19(l)(a) or 19(l)(b), the next question is whether r. 4-A, in so far as it lays an embargo on any form of demonstration for the redress of the grievances of Government employees, could be sustained as falling within the scope of Art. 19(2) and (3).

These clauses run:

"19. (2) Nothing in sub-clause (a) of clause ( 1) shall affect the operation of any existing law, or prevent the State from making any fa w, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relatfons with foreign States, public order, decency or morality, or in relation to ' ' '

196B

Kameahwar Prasad

Tiu Stat11 of Bihar

Ayyangar J.

K amts!ztcar Prasud

Tht Stal< of Billa•

Ayyongar J,

38~ SUPRE:\iE COCRT REPORTS [1962] SUPP.

contempt of court., <lcfamatio11 or incitement to an offence.

(.'l) othing in subclause (h) of the said clause shall affi>et the opemtion of any exising law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonabfo restrictions on the cxerciso of tho right conferred by the said subclause." The learned Judges of the High Court have, as stated earlier, upheld the validity of the rule hv considering them as roasonable rPstrictiohs in t.he interest of public order.

Tn coming tot.his co1wl11sion the learned Judges of the High Court did not have the benefit of the exposition of the meaning of the expression "in the int Nest of public order" in these two clauses by thiR Court in Snperi111e11dent, Central Prison, Jiutthyarh v.

Ram }rfanolwr Lohio (').

Speaking for the Court Subba Rao, , J., summarised his co11cluHion on tlrn point in these terms:

"Public order (Art. 19(2) and (!l)) is syno. nymous with public safety and tranquillity.

It is tho absence of disorder involving breaches of local significance in contradistinctfon to national upheavals such as revolution, civil strike, war affecting the security of the Stat1"" The learned Judge further stated that in order that a legislation may be "in the interests of public order" there must he a proximate and reasonable nexus bP.twe!'n the nature of the speech prohibited

and public ordAr. The learned .T urlge reject<'d tho argument that the phran "in the interests of public order" which is wider than the words "for the maintenance of public or1ler" which were found in

th<> Article a• originally cnaited-thNeby sanctioned the enactment of ii law which reHtricted the right merely because the Hpcech had a tendency however

(I) [19'l0) 2 S.C.R. 82J.

remote to disturb 'public order. The connection has to be intimate, real and rational.

The validity of the rule now impugned has to 1le judged with reference to tests here propounded.

If one had to consider the propriety of the rule as one int.ended to. ensure proper discipline a part from the limitations on law :making, in a Government servaut and in the context of the other provisions made for the making ofrepresentations and . for the redress of services, grievances, and apart from the limitiations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was Loth reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art.19(2) & (3) was put on a twofold basis: (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance ofpublic order but was a sine qua Mn of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order ..

We find ourselves unable to uphold this sub mission on behalf uf t.he State. In the first place we are not here concerned with any rule for ensuring disciplin~ among the police, which is the arm of the law primarily charged with the maintenance of public order. 'l'hc threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, ff the rule were so fral)'.leq

Kameshwar Prasad

The Stale of Bihar

Ayyangar J.

• 96Z

Ko~1hwar Pra1ad

Tht Stalt of Bi/111'

A"angar J.

as to single out those types of demonstration which were likely to lead to a distnrhance of public tran. qnillity or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it. lays a ban on overy type of demonstrationbi> the Harne however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.

Learned Counsel for the respondent and those who supported the validity of the rule could not suggest that on the language of the rule as it stood, it was poBBible to read it as to separate the legal from the unconstitutional portion of the provision. As no suoh B<>paration is possible the <'ntire

rule has to be struck down as uneonstitutional.

\Ve have rejected the broad contention that persons in the servicn of government form a class

apart to whom the rights guaranfre<l by Part III do not, in general, apply. By aee('pting the contention that the freedoms guarant., ed by Part HI and in pa.rticular those in Art. J\)( I)( a) apply to the

servants of government we should not be taken to imply that in rolation to this class'Of citizen the responsibility arising from oflicial position would not by itsolf impose some limitntion~ on tho excrdse of their rights as citizens. For inst:rncc, s.!i4 (2) of the Income-tax Act, 1922, enacts:

"If a public servant discloses any particulars contained in' anv such statement., return, accounts, docum,; nts, cvidcncc affidavit, deposition or record, ho shall be punishable with imprisonment which may extend to six months, an<l shall alHo be liable to fine." Section 128(1) of the Representat.icm of thn People

Act, 19!il, enjoins on every officer, clerk, agent etc. who performs any duty in connection with tpe

' ,;-..

3 s.c.R. SUPREME couRT REPoR±s 3s5

recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calculated to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for a term which inay extend to three months or with fine.

It cannot be contended that provisions on these or similar lines in these or other enactniim ts restrict the freedom of the officers etc. merely because they are prohibited from communicating information which comes to them in the course of the performance of the duties of their office, to othtrs. The information having been obtained by them 'in the course of their duties by virtue of their official position, rules or provisions of the law prescribing the circumstances in which alone such information might be given out or used do not infringe the right of freedom of speech as is guaranteed by the Con stitution.

We would therefore allow the appepl in part and grant the appellants a declaration that r. 4A in the form in which it now stands prohibiting "any form of demonstration" is violative of the appellants' rights under Art. 19(1)(a) & (b) and should therefore be stuck down. It is only necessary to add that the rule, in so far as it prohibits a strike, cannot be struck J.own since there is no fundamental right to resort to a strike. As the appellants have succeeded only in part, there will be na order as to costs in the appeal.

Appeal allowed in part.

W62 -- Kameshwar Prasad

Tbe State of Bihar

AyyangarJ.

369

KAMESHWAR PRASAD AND OTHERS

THE STATE OF BIHAR AND ANOTHER

A. K. SARKAR

WANCHOO

K. C. DAS

N. RAJAGOPALA AYYANGAR

Conduct Rules, 1956

Constitution of India

Art. 226

Constitution of India

Art. 19

Art. 309

Arts. 19

Conduct Rules, 1956

Arts. 19

Constitution of India

[1960] 2 S. C.R. 821

Art. 33

(1962] 3 S.C.R. 269

Art. 132

Conduct Rules, 1956

Art. 226

Art. 19

Constitution of India

Art. 30

Art. 19(1)

Art. 132

Art. 309

Art. 19( l)

Art. 309

Art. 13(3)

Art. 13(2)

Article 19(1)

Art. 33

Art. 19(2) and 19(::!)

Art. 309

Art. 310

Art. 19

S. 371

Hatch Act, 1940

S. 75

Art. 19('l)(a)

Arts. 15, 16 and 18(3)

Art. 33

Art. 22

Art. 33

Art. 19

Art. 19( 1 )(a) and 19( l)

Art. 19(l)(a)

Art. 19(l)(a)

Art. 19(2)

Art. 19(2)

Art. 19(2)

Income-tax Act, 1922

Section 128(1)

s 3

Art. 19(1)(a)


36 SUPRE:IIE COURT REPoRTS [l!l62] SUPP.

BOARD OF HIGH SCHOOL & IN'l'ERl\IEDIATE

EDOCA'l'ION, u. P., ALLAHABAD

GHAXSHY AM DAS GUPTA AND 0 J'HEH8

(S. K. DAs, A. K. SARKAR,. K. St:llBA ltAo, K. N. WAuHoo and K. H..A.JAGOPALA AYYANGA.R, JJ.)

Exci1nination Cou11nittce-Cancelling 1'xauiination re.<iult.'i-

.• Vo opportunity yiten to c.ram.inecs of being l1e11rcl-;,, Yatural justiceif violated-Committee, if must act jut/icia/ly-U. P.

Int.rmediatc Education Act 1921 (l;. P. 2 of 1921), s. 15-- lieguli; itions, Cit. VI,, .. 1(1).'

rhc three respondents were <lcclarc<l by the appcllaJtt to have passed the Intermediate cxan1ination.

Thereafter they prosecuted further studies and subsequently the fathers and guardians of the respondents \vcre infnrnicd that the Exainination Cu1nmittcc of the Board had cancelled the examination results of the respondents and 1hal they \\'ere debarred from appearing at the next exan1inatio11.

The respondents liled a ,,, rit petition in the High Court of Allahabad contending that since the Examination Con1mittei: had never afforded any opportunity to them tu rebut the allegations made against thern the Examination Committee had \'iolatcd the principles of natural justice.

They also contended that the Cornn1ittee had violated the provisions of the U. P. Intermediate Education Act, 1921. The appellan: while admitting that no opportunity had been afforded to the respondents to rcLut the allegations against thetn, contended that the Exan1ination Committee was onlv an administrative body acting merely administratively and , it \\'as not bound to give a hearing to a party who n1ight be affected by its decision.

The Single .Judge who heard the writ petition held that the Comrnittce was not bound to act judicially and there \vas no statutory obligation on tl:e Committee to give an opportunity to be heard. rhc respondent!! appealed to a J)ivision Bench and one of the .Judges of Bench held that even though the Cr1n1nittee was not Lound to a::t judicially or quasijudicially and it 'vas acting administrati\•cly it. ought to have givtn an opportuuily to the respondents of be111g heard.

The other Judge \vas of the opinion that since the committee was acting only administratively it , vas not boun.d to give a hearing. The matttr then went before a tlurcl Judge who held that even though the Committee was acting 1nere)y adminis trtt tively the respondents \\'Crc entitl.ed to a hearing. The appellant thereupon appealed to this Court.

The appellant contended that the Committee was only a body 1 )a mg administrativrly and that the principles of natura

justice, including the maxim audi alteram partem apply only to judicial or quasi-judicial .bodies. The respondents contended that the High Court was wrong in holding that the Committee was only an administrative body. It was further submitted by them that the mere fact that there was nothing express in the Act or the Regulations framed thereunder which might make it obligatory for the Committee to call for an explanation and to hear the examinee whose case it was required to enquire . into was not wholly determinative of the question whether a duty is cast on the Committee in cases like this to act judicially. lJ eld, that the :nference whether the authority acting under a statute, where it is silent, has the duty to act judicially wHI depend on the express provisions of the statute read along with the nature of the rights affected, the manner of disposal provided, the objective criterion if any to be adopted, the effect of the decision on the persons affected and other indicia afforded by the statute. The mere fact that the Act in question or the relevant Regulations do not make it obligatory on the Committee to call for an explanation and to hear the cxamince is not conclusive on the question whether the Committee acts as a quasi-judicial body when exercising its powers und<r Ch. VJ, r. l(l), of the Regulations. It is obvious that the Committee when it proceeds to decide matters covered by r. l(l) will have to depend upon materials placed before it and before it decides to award any penalty it has to come to an objective determination on certain facts and this is the only manner in which it can carry out the duties imposed on it.

Even though there is no lis in the present case in the .sense that there are not two contending parties before it the Committee should hear the examinees whose lives may be seriously affected by its decision even subjecting them in some cases to criniinal prosecution on charges of impersonation, fraud and perjury. Though therefore there is nothing express one way or other in the Act or the Regulation casting a duty on the Committee to act judicially, the manner of the disposal and the serious effects of the decision of the Committee lead to the conclusion that a duty to act judicially is cast on the Committee and the Committee when it acts under r. 1 ( l) is acting quasi-judicially and the principles of natural justice will apply to its proceedings.

Province of Bombay v. Kusaldas S. Ad1!ani, [1950] S.C.R. 621, Nagendranath Bora v. Commissioner of Hill.• Division & Appeals, Assam, [1958] S. C. R. 1240. Shri Radlirshyam Khare

v. State of Madhya Pradesh, [!959] S. C.R. 1440, Gullapolli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, [1959] Supp. 1 S. C.R. 319 and S/iivji Nathubhai v, Vnion of India, (1960) 2 s, C. R: 7751 followecj. ·

196$

Board of Hi1h S, hool

<h Interm1diate' EducatWtiJ U. P.,

Allahabad '

Ghan'1&11111 Das

Gupta

J9r; t

B1.1erd of High Schc-oJ

4J lnmutliatt Eow:oJi>n u. P.,

Al/dab•d

Y. tll:ana"yam Dar

Gup,.

Wmuhoo J.

SUPREME COURT REPORTS (1962] SUPP. r--

Crv1L APPELLATE Jumsnrcnox: Civil Appeal No. I :12 of I 95!J.

Appeal from the judgment. and decree dat<id March t:J, 1956 of the Allahabad High Court in Special Appeal No. 291 of 19;35.

Veda Vyasa and C. P. Lal, for the appellant.

J. P. G01jal, for the respondents.

1962. February 6. The Judgment of the Court was delivered by

WANCJIOO, J.-This is an appeal on a certificate grant€d by the Allahabad High Court. The brief facts nrcessary for present purpnses are these.

The three responde11ts were students of G. S. Hindu Intermediate Colleg<' at Sikandrarao and appearrd at the Intermediate (Commerce) Examinatfon conducted by tho appellant in the year I 954. On June 12, 1954, the result of the examination was

publihed in llf>WSp•pcrs and the three respondents passed in the second division. Thereafter they prosecuted further studies.

But in Decembe1 l!l54, their fathern and guardians received information from t.he Principal of the G. S. Hindu Intermediate College that th~ Examinations' Committee of the appellant (hereinafter referred to as the Commi ttee) had cancelled tho result of tho respondents for the examination of l!JM and further that thev had been debarred from appearing at the examination of 1955.

Thereupon the respondents filed a write petition in the High Court contending that the Committee had never afforded any opportunity to thl'm to rebut the allegations made against them and that they were never informed about the nature

of the unfair means used by them in the said examination and the fir;; t thing they come to know wa8 the resolution of the Committee cancelling their results and dcbaring them from appearing in the examination of l !}();,, They therefore contended that the; Y were entitled to ap opportunity bein~

.> -

afforded to them to meet the cae against them of using unfair means at the examination before the appellant took action against them by cancelling their results and debarring them from appearing at the examination of 1955. The procedure thus adopted by the appellant was said to he in violation of the principles of natural justice inasmuch as they were given no opportunity whatsoever tG defend themselves and to show cause against the action contemplated against them. It was further contended that the procedure adopted by the appellant violated the provisions of the U. P.

Intermediate Education Act, No. II of 1921 (hereinafter referred to as the Act) and the U. P. Educa tion Code, and therefore, the resolution cancelling their results and debarring them from appearing in the later examination was without jurisdiction and illegal. They therefore prayed for a proper writ or order oanoelling the resolution of the appellant.

The appellant opposed the application and its case was that the respondents had used unfair means at the examination and their cases were reported to the Committee under the Regulations and the Committee had acted under the powers conferred on it under the Act and the Regulations framed thereunder after a thorough inquiry.

It was not disputed, however, that no opportunity had been afforded to the respondents to rebut the allegations against them in the inquiry made by the Committee which resulted in the resolution cancelling the results of the examination.

A large number of contentions appear to have been urged in the High Court; but we are here only concerned with one of them, namely, whether the respondents were entitled to a hearing before the appellant decided to cancel the results. The contention on behalf of the respondents before the learned Single Judge was that the appellant was under a duty to act judiciall~ iw1d tijerefor\l tl:le

Board of High Schoo

dJ Jntetmediate Educati"on, U. P., Allahabad v.

Ghanshyam Dail

Gupta

Wanchoa J.

J!JG2

Board of Hi1/a School

41 lntermidial6 Rduc•tio11 U. P.

Allahahu , ..

Ghan1Jryam DtJJ

Gupta

W t111choo I.

40 SUPRE!\IE COURT REPORTS (1962) SUPP.

respondents should havo been givon. a hearing bcforo any order was passed against them. The learned Single , Judgo held that no duty was cast on tho Committefl to act judicially and there was no statutory obligation on the Committee to give an opportunity to every cxaminec to be heard; therefore he rejected the petition.

The respondent!i then went in appeal which was heared by Dayal and Brijmohan Lall, JJ., who however differed. Brijmohan Lall, J., was of opinion that the Committee was not required to act judicially or quasijudicially when it considered cases of this kind and was acting merely administratively; he nevertheless was of the opinion that. on<> of the rules of natural justice contained in the maxim rtudi altera.m pr1rtem would apply in this caRe, even though the Committee was acting administratively. He w•1s therefore in favour of allowing the appeal.

Daval .J., a.greed with thl' view of Brijmoh:in Lall, .J., thnt.

in the present case no duty w1iH cast on the Committee to a<:t judicially and that the action of the Committee wa'" merely administrative.

He however did not :igree that the Committee acted in violation of the principles of natural justice inasmuch as it clid not give a hearing to the respondents.

He was of the view t.hat as tho Committee was acting merely administrativ, oly it waR not bound to give a hearing, as the maxi1n awli alteram. partem applied only to judicial or quasijudicial tribunals. Tho two learned J11dgcs also differer!

on two other P"int~ with whid1 we arc not concerned.

Eventnnlly they reforred three questions to be answered by another learned Judge and one of these questions was whether the failure of th~ Committee to provide an opport11nity to the r<>spondents of being heard vit.iated its order, wl1ich waH of an administrative nature.

The matter then came uofore a third learned Judge, Agarwala, J. He was doubtful wheter the

view of the Bench that there was no duty cast on the Committee to act judicially in the present case was correct; but as on that matter the two learned Judges were in agreement, he dealt with the case on the basis that the Committee was acting merely administratively. Even so, he came to the conclusion that the respondents were entit.led to a hearing and agreed with the view of Brijmohan Lall,

.J.

Consequently, the appeal was placed before the Bench again and in accordance with the opi

nion of the third Judge it was allowed. Then followed an application by the appellant for leave to appeal to this court, which was granted; and that is how the matter has come up before us.

The main contention on behalf of the appellant is that the High Court was wrong in the view it took that an opportunity for hearing was necessary in this case even though the Committee acted merely administratively. It is contended that wheni. a body is acting merely administratively, it is not necessary that it should give a hearing to a party who might be affected by its decision and that the principles of natural justice, including the maxim, audi alteram partem, apply only to judicial or quasi-judicial bodi'es, i.e., bodies on whom a duty is cast to act judicially. It is submitted that where no such duty is cast on a body and it is acting merely administratively there is no necessity for it to hear the person who might be affected by its order. The respondents on the other hand contend that though the final decision of the High Court is correct, the High Court was not right in holding that the Committee was aoting merely administrati~ vely in a matter of this kind; they contend that comiidering the entire circumstances which operate in c ises of this kind, the High Court should havo held that there was a duty to act judicially and therefore it was necessary to give an opportunity to the respondents to be heard before action was taken aainst them. It is sqbmitted that tile

Board of lligh Sch.ool

& /nltrmeditJle Education, U. P., Allahabad v.

Ghan shy om Das

liuptu

Wanchoo ./,

Board of fiigh Scl1ool

c{• /nlttmtd1att Ed1Jcation U P.,

Ali aha bad v.

Ghar.shyam Da3

Gupta

11' M1choo J.

42 SUPREME COURT REPORTS (1962) SUPP.

mere fact that there was nothing express in the Act or the HPgul:1tions framed thereunder which might make it obligatory for the Committee to call for an explanation an<l to hear the examinees whose cases it 1vas required to enquire into was not wholly determinative of the question whether a duty was

cast on the Committee in cases like this to act judicially.

The first question therefore which falls for consideration is whether any duty is cast on the Committee under the Act and Regulations to act judicially and therefore it is a quasijudicial hotly.

What constitutes "a quasi-judicial act" was discussed in the l'rodnce of Bombay v. Kusakla.s S. Advani.( 1) The principles have been summarised by Dus, J. (as he was then), at p. 725 in these words:-

"The principles, as I apprehend them are:

(i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a. claim made by one party under the statute which elaim is opposed by another party anrl to determine tho respective rights of the contesting parties who aro opposed to each other, them is a li8 and prima f acie and in the absence of any thing in the statute to the contrary it is the duty of the authority to act judicially and the clccision of the authority is a quasi judicial act ; and

(ii) that if a statutory authority has power to do any act which will prejudicially affect the su bjcct, then, although there are not two parties apart from the a.uthority and tho contest is between the autho

rity proposing t.o do the act and to 8~1b

jcct opposing 1t, tho final doterm111at1on of the authority will yet be a quasi. judicial act provided the ath.oity is required by the statute to act iud1c1ally. (ll [1950] s.C.R, 621, 7?,5.

In other words, while the presence of two parties besides the de.ciding authority will prima fac•ie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasijudicial act if the authority is nevertheless required by the statute to act judicially."

These principles have been acted upon by this Court in latter rases: see Nagendra Nath Bora v. The Commissioner of Hills Division & Appeals, Assam(1), Shri Radheshyam Khare v. The State of Madhya Pradesh( 2), Gul/a, palli Nageswara Rao v. Andhra Pradesh

State Road Transport Corporation('), and Shivji N athubhai v. The Union of India('). Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the anthority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the , disposal provided the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute.

A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively:(vide observations of Parker, J. in R. v. Manchester Legal Aid Committee)(•).

(I) [1958] S.C.R. 1240.

(3) [1959] Supp. 1 S.C.R. 319.

\5) [1952J 2 Q.B. 413,

(2) [1959] S.C.R. 144·0.

(4) [1960j 2 s, c.R. 775,

J!JC2

Boaid of High Schoo:

ch Intermediate Education, U. P., Allahabad

Ghans1!Yam Das

Gupta

W Jnchoo J.

Bo~Td of High Schor.I

&• /11/nmedialc Ed1J.ca1ion, U. P.,

A..Jla 11ahad

Ghnn5/, yaT1 Dal

Gu/1/fl

IVa1:chon .J.

.4.4 SUPREME OOURT REPORTS (1962] SUPP.

We must therefore proceed to examine the pro. visions of the Act and tho Regulations framccl thereunder in connection with matters of this kind to d1tcrmine whether the Committee can be said to have tho duty to act judicially when it deals with cases of examinees using unfair means in examination halls. Under s. 7 of the Act, the Roard cons ti tutc<l thereunder has inter alia powers to prescribo courses of instruction, to grant diplomas and certi ficates, to conduct examinations to admit candida tcs to its examinations to publish the results of its examinations, and to do all such things as may bo requisite in order to further the objects of the Board as a body constitut{)d for regulating and supervising High School and Intermediate education. Under s. l :~, the. Board has power to appoint and constitute variouR

committees, including the <xiiminatious' committctl, anrl under s. 14, the Board can delegate its power<

by Regulations to such committets. Section I ii gives power to the Board to make Regulations with

icspect to the constit•1tion, powers and duties of committees, the conduct of examinations, and all matters which by the Act. may be provid<•d for by !'tegulations. Section 20 gives power to th<i Board and its committeos to make bye-lawR consist1:1.t with the Act and the Rogulations.

It will be clear from the above that the .-\ct makes no exprnss provisions as to the powers oft he committees and the procedure to be adopted by them in carrying out their dutie~, which an• left. to

b~ provided by Regulation<. and we have tlorefure to look to th11 l'tegulations framed under s. la t.o >'ee

what powcr8 and duties h:we bocn eonferrctl on variou8 committees constituted under the Regula

tions.

Section 13 (I) makca it incumbent on the Board to appoint the Committeo and Ch,.p. Vf.of the Recrulations deal~ with the powers and duties of the° Committee. Rule I (I) of Chap. VI with which we a.re , particularly concerned reaq• 48

a s.d.R.

,, 45

follows:-

"It shall be the duty of the Examinations' Committee, subject to sanction and control of the Board."

x x x "(l) to consider cases where examinees have concealed any fact or made a false statement in their application forms or a breach of , rules and regulations to secure undue admission to an examination or used unfair means or committed fraud (including impersonation) at the examination or are guilty of a moral offence or indiscipline and to award penalty which may be one or more of the following :- ( 1) withdrawal of certificate of having passed the examination ; ( 2) cance!latio n of the examination; (3) exclusion from the examination." There is however no provision ii; i Chap .. VI as to how the Committee will carry out the duty imposed on it by r. 1 (1).

Further, there is no express provision in the Act or the Regulations casting a duty on the Committee to act judicially when exercising its powers under r. 1 (l); and the question whether the Committee has to act judicially when exercising these powers will have to be deci' ded on an examination of all the circumstances relevant in the matter. At the same time, there is nothing express in the Act from which it can be said that the Committee is not under a duty to act judicially. It is true that there is no procedure provided as to how the Committee will act in exercising its powers under r. 1 ( 1) and it is further true that there is no express provision in that rule requiring the Committee to call for an explanation from the examinees concerned and to hear the examinees whose cases it i~ required to consider.

But we are of opinion that the mere fact that the Act or the Regulations do not make it obligatory on the Committee to caU for an explanation and to

Foard of High School

& Intern1ediate Education, U. P.,

.Allahabad

Ghansh)'am Das Gupta

Wanchoo J.

Board of Higlt. Schtol

U l11te1mtdiatt Edt1catinr1, U. P.,

ti l111hahad

Ohc.rtJlnam DO.J

oUpta

J11anchoo J.

46 SUPRE:\1E COURT REPORTS

[1!16~) SUPP.

hear the examinee is not conclusive on the question whether the Committee acts as a quasi-judicial body in excrciRing its powers under r. I (I). Evon though calling for an explanation and hearing: tho examinee may not have been made oxprnssly oblitory by the Act or the Regulations, it is obvious that tho Committee when it proceeds to decide matters covered by r. I (I) will have to depend upon materials placed before it, in coming to its decision.

Before the Committee decides to award any penalty it has to come to an objective determination on certain factR and onlv when it comes t-0 t.he concluion that those facts.are established that it can pro ceed to punish the examinee concerned. The facts which the Committee has to find before it takes action are -

(i} whether the examinee has concealed any fact or made a false statement in his application form; or

(ii) whether the examinee has made a breach

 of tho Rules and Regulations to secure undue admission to an examination ; or

(iii) whether the cxaminee has used unfair

means at the examination ; or

(iv) whether the examinee has committed fraud (including impersonation) at the examination ; or

(v) whether the examincc is guilty of moral off'enee or indiscipline.

Until one or other of the five facts is established before the Committee, it cannot proceed to take action under r. l (I). In order to come to the conclusion that one or other of these facts is established, the Committee will have to depend upon materials placed before it, for in the very nature of things it has no personal knowledge in the matter.

Therefore, though the Aet or the Regulationo do

3 s.d.h.

SUPl'tEME COURT REPORTS 47

not make it obligatory on the Committee to call for an explanation and hear the examinee, it is implicit in the provisions of r. I (1) that the Committee must satisfy itself on materials placed before it that one or other of the facts is established to enable it to take action in the matter. It will not be possible for the Committee to proceed at all unless materials are placed before it to determine whether the examinee concerned has committed some miscon- . duct or the other which is the basis of the action to

he taken under r. 1 (1). It is clear therefore that consideration of materials placed before it is necessary before the Committee can come to any decision in the exercise of its powers under r. 1 ( 1) and this can be the only manner in which the Committee can carry out t, he duties impose~ nn it.

We thus see that the Committee can only carry out its duties under r. l ( l) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under r. 1 ( 1 ), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life.

The nature of misconduct which the Committee has to find under r. 1 (I) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committee's decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts.

Considering therefore the serious effects following the

Board of High Sehool

& lntt"™diate Education, U. P.,

Allahabad

Ghanshyam Das

Gupta

Wanchoo J.

19G2

BoMd of High School

ct Jrdermcdialt FAiu cation, U. P .,

All'lhahad ..

Ghansl:yan1 Das Gupta

W01.choo J.

48 SUPREME COURT HEI'ORTS (1962] SUPl'.

decision of the Committee and the serious nature of the misconduct which may be found in some cast's under r. I (I), it seems to us that the Committee must be held to act judicially in circumstances as these.

Though therefore there is nothing express one way or \he other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it and the Rerious effects of the decision of the Committee on the examincA concerned, must lead to the conclusion that a dutv is cast on the Committee to act judicially in this matter particularly as it has to decide objeotiYely certain facts which may seriously affect the rights and careers of examinees, hdore it can take any action in the e:irercise or its power under r. l (I). We are therefore of opinion that the Committee when it exercises its powers under r. J (I) is acting quasijudicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply tu the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa I'al v.

University of Calcutta, (l) and B. C. Das Gupta v.

Bijoyranjmi Rakohit, (2 ) in similar circumstances and is in our opinion correct.

It is urged on behalf of the appellant that there are a large number of cases which come up before the Committee under r. I (I); and if the Committee is held to act judicially as a quasijudicial tribunal in the matter it will find it impossible to carry on itH task. This in our opinion is no criterion for deciding whether a duty ie cast to act judicially in view of all the circumstances of the case. There is no doubt in our mind that considering the totality of circumstances the Commit.tee has to act judicially when taking action under r. 1 ( 1).

As to the manner in which it should givo an opportunity to the examinee concerned to be ' (I) A. I. R. 1952 Cai. 594.

(2) A. I. R. 1953 Cal. 212.

heard, that is a matter which can be provided by Regulations or Bye-laws if necessary.

As was pointed out in Local Government Board v. Alridge, (1) all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature; but where quasi-judicial duties are entrusted to administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was 11iven to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under r. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents "to put forward their cases before the Committee is correct. We therefore dismiss the appeal. No order as to, in the circumstances.

Appeal dismissed.

(I I [1915] A. C. 120. _

J9(i'J.

Board of Hieh School

& lntermediate Education, U.P , Allahabad v.

Ghan.dryam Das

Gupta

Wanchoo J.

GHAXSHY AM DAS

A. K. SARKAR

Education Act 1921

s. 15

Intermediate Education Act, 1921

Intermediate Education Act

s. 7

s. 14

Section 20

Section 13


191Z •

386 SUl'itEME CXJURT REPORTS (1962] SUPP.

TEKAN ARD OTHERS

GANESH I

(P. B. GA.TEXDRAGADKAH, A. K. SARKAR and

K. ~. WANCHOO, J, J.)

I.andlord an,/, Tenant-Smtrily of land 1'enures-landowner-Lcssee-Jlortgage-Teuanf -1.rJJser; not lando1cner-No right to ej1:ct-Punjab Security of Land 'l'F.nures Act, 19.53 (Punj"'' JO of l!Jo3), ss. 2 '.I), 9 (l); 14A ([)-East Punjab Displar.ed l'ersons /, rmd Re,.ettlcmui! Ac!, 194fl (East Punjab .16 of 1!14!1), •· 2-Pnnjah /, and Revwat Acl, ISS7 (Punjab 17 of

1887), .<s . .1 (2) 4 ('!)- Punjolr Tenancy Act, 1887 (Punja/) ]Ii of 1881).

The appellant is a lessee from the owner of the Janel and hi" lease comprises a large area of land including the land oi which the rc•pondent is the tenant.

The appellant applied to the Assistant Collector under s. 14A (I) read with s. 9 (I} of the Punjab Security of Land rr.nurcs Act for the ejectment of the respondent on the ground that the appellant was a land o\vner and he required the land for his O\vn cultivation. The application \\'as allov.cd. 1, hc responJcnt thereupon appealed to the Collector alleginl.{ as the main ground that only a landowner could dispossess a tcnantat-v..ill and that since the appellant

was not a landowner within the meaning of S 2 (I) of the Act was r.ot entitled IU ask for ejr.r.tment under s. 14A (I). The Collector accepted this contention and allowed the appeal. '!'hereafter the appellant appealed to the Cornmissioner who allowed the appeal on the ground that a lessee being like a mortgagee with possession was a landowner for all purposes.

On revision the Financial Commissioner Jield that the appcl- 1.ant was not a lanrlowner anti therefore not entitled to cjectmr.nt.

The appellant appealed to this Court by special leave.

The only contention that \-.a:i urged in the appeal was that appellant was a lando\vner \vithin the meaning of s. 2(1).

H(', fd, a'> a lessee the appellant holds land under another person na1nely the O\Vner of the land fro1n whom he has taken the lease and is liable to pay rent. l'he appllant therefore being a tenant \Vithin s.4 (5) of the Punjab 1, enancy Act cannot he a lando\..-ner under s.3(2) of the Punjab Land Revenue Act or a landowner \\ithin the mean in~ of s. 2 ( 1) of the Punjab Sc'.Curity of Land Tenures :\ct. Hence he is not entitled to eject the respondent.

CrVIL APPELLATE JURISDICTION: Civil Appeal No 367 of 1959.

Appeal by special leave from the judgmet and order dated November 23, 1957, of t, he Add1tion<il Commissioner Punjab, in Revision No. 143 of 1956-57.

I. M. Lal and A.G. Ratnaparkhi, for the appel. lants.

Achhru Ram and K. L. Mehta, for the responde t. ·

1962. February 22.

The Judgment of the Court was delivered by

WANCHOO, J.-This is an appeal by special leave from the order of the Financial Commissioner Punjab in respect of the application made by the appellant under s. 14-A(i) of the Punjab Security of Land Tenures Act, No, X of 1953, (hereinafter referred to as the Act), read with s. 9 (l) thereof, for ejectment of the respondent, on th6 ground that he was a smaH landowner. The appellant claimed that he was the landowner and the respondent was a tenant-at-will under him. He therefore claimed ejectment of the respondent on the ground that he had less than thirty standard acres and required the land for his oW-U cultivation. The application was filed before the Assistant Collector who held that the respondent was liable to ejectment and allowed the application. Thereupon there was an appeal by the respondent to the Collector and it was urged there that only a landowner could dispossess a tenant-at-will under s. 14-A, (i) and as the appellant was not a landowner but merely a landlord of the respondent he was not entitied to the benefit of s. 14-A(i). The Collector accepted this contention and held that the appellant was not a landowner and therefore allowed the appeal and dismissed the a, Ptllication fOl' ejectment. The appellant then went

Tekan v.

Gamshi

Wanc1ioo J

196;!

1tk.G11

Ga11t1lzi

Wa11clioo J.

' . 388

SUPRE~IE COURT REPORTS (!!JOO] SUPP.

in appeal to the Commissioner. It may be mentioned that the appellant is a lessco from the owner of the land and his lease comprises a larger area of land including the land of which the rospondent is the tenant. Thu contention on behalf of the appellant before the Commissioner was that he was a landowner within the meaning of that word in s. 2 (I) of the Act and was therefore entitled to eject the respondent. The Commissioner held that the position of a lessee was just like a rnortgageo with possession and that a lessee was a landowner for all purposrs.

He therefore allowed the appcid and restored the. order of ejcctmcnt passed hy the Assistant Collector.

Thereupon the n'spondcnt went in revision to the Financial Commissioner, who held that a mere lessee with only constructive possession as in this case could not be included in tho term "landowner" as used in the Act, and that even if tho appellant was tho landlord of the res

pondent he could not be held to be a landowner within the meaning of the Act.

He therefore allowed the revision, snt aside tho. order of the Commissioner and restored that of the Collector dismissing the appellant's application for ejcctment.

This was followed by an application by the appellant tu thi.e Co.urt for special leave, which was granted; and that is how the mattor has come up before us.

The only question that has been urged on be-. half of the appellant before us-is that. the Financial Commissioner went wrong in holding that he was not a landowner. The question whether tho appe

Hant. is a landowner or not depends upon the definition of that term in the Act, which is. in theee terms:-

"(I) 'Landowner' mean8 a person defined as such in tho Punjab Land Revenue Act, 1887, ( Aot XVII of 1887), and shall include an 'allottee' and 'lessee' as defined in clauses (b) and (c) respectively of section 2 of the East

Punjab Displaced PersonR (Land Resettlement) Act, 1949, (Act XXXVI of 1949) hereinafter referred to as the 'Resettlement Act'.

Explanation-In respect of land mortgaged with possession, the mortgagee shall be deemed to be the lando\\ ner." It is not in dispute that the appellant is not an allottee or a lessee as defined in els. (b) and (c) of s. 2 of the East Punjab Displaced Persons (Land Resettlement) Act, (No. XXXVIof 1949). It is also not in dispute. that the appellant is not a mortgagee with possession. Therefore he can only claim to be a landowner within this definition if he is a landowner as defined in the Punjab Land Revenue Act, (No. XVII of 1887). In that Act the definition of the word "landowner" as given in s. 3 (2) is in these terms:-

" 'landowner' does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm under this Act for the recovery of an arrear of land-revenue or of a sum recoverable as such as arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof or in the enjoyment of any part of the profits of an estate." The co; ntention on behalf of the appellant is that he must be held to be a landowner within the meaning of this sub-section as he is in the enjoyment of the part of the profits . of the estate. It is obvious that the last part of the definition on which this argument is based applies to persons who are other than tenants and assignees of land revenue, and so we will have to determine whether the appe.

Hant is a tenant; if he is, he is not a landowner. We have therefore to go to the Punjab Tenancy Act, (No. XVI of 1887), to fj.nd O!Jt who is a tenant, a11-q

Tekoii

GlUltJhi

Wanchoo J.

19G2

T1kan

Oaneshi

·anchoo J.

Mo SUPREME OOURT REPORTS (1962] Su1>.P.

whether the appellan.t is a tenant, within that Act.

Definition of "tenant" in s. ! (5) of that Act is as follows:- "(5) 'tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person but it does not include-

(a) an inferior landowner, or

(b) a mortgaee of the rights of a landowner, or

(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act, 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of sublettillg it;". .

It is not in dispute that the appellant does not come within the four exceptions mPntioned in this sub-section. It has therefore to be seen whether the appellant is a person who holds land under another person and is, or but for a special contract

would be, liable to pay rent for that land to that - other person. We are of opinion that the appellant satisfies this definition of the term "temmt" in s. 4 ( 5).

As a lcBBee be holds land undei another person, namely, tho owner of the land from whom he has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person. The appellant is therefore clearly a tenant within s. 4 (5) of the Punjab Tenancy Act. He cannot therefore be a landowner under s. 3 (2) of tho Punjab Land Itevenue Aot, Incidentally wo may add that this conclusion is borne out by the fact that in tho copy of the Girdwari entries, the appellant is shown as a

' '

3 S.C.R.

SUPREME COuRT REPoRTS 391

tenant, the entry being "Tekan and others, Gairmaurasian first through Gneshi Gair Maurasi secondhalf. The appellant is thus a tenant of the land of which he has taken lease and cannot be a landowner. keeping in view the definition of that term in the Act and in the Punjab L.and Revenue Act. The appeal therefore fails and is hereby dismissed with costs.

Appeal dismissed.

COMMISSIONER OF INCOME-TAX, BOMBAY

CITY I, BOMBAY

BAI SHIRINBAI K. KOOKA

(S. K. DAS, J. L. KAPUR, P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo, K. N. WANCHOO

and N. RAJAGOPALA AYYANGAR, JJ.)

Income-tax-Profits-Shares purchased by assessee for investment-Sales of Shares subsequently as trading activity- Oomputation of profit.

The assessee purchased shares by way of investment in 1939-40 at a cost price which was much less than their market value on April I, 1945. Her dividend income therefrom was assessed to income tax. In the financial year 1945-46 the assessee converted these shares iuto her stock-in-trade and carried on business in the shares. Per income for the assessment year 1946-47 was computed on the basis of the profits which she made by the sale of her shares as a trading activity. The assessee contended that the cost price of the shares for compu ting the profits was their market value at the beginning of the year when she started the trading activity, i.e., on April I,

1945. The Department contended that the cost Price of the shares was the actual price for which they were purchased by the assessee, no matter when she bought them and for what purpose.

Held (per Das, Kapur, Gajendragadkar, Suhba Rao, Wanchoo and Ayyangar, JJ. Sarkar, J., contra), •h•t the profits

IS62

Tekon

Gtineshi

Wonchoo J.

February 23.

TEKAN ARD OTHERS

GANESH I

A. K. SARKAR

K. ~. WANCHOO, J

ss. 2

Punjolr Tenancy Act, 1887

s. 14A

s. 9

S 2

s. 14A

s. 2(1)

s. 2

s. 14

s. 9

s. 14

s. 14

s. 2

Punjab Land Revenue Act, 1887

section 2

s. 2

s. 3

Punjab Land Revenue Act, 1887

s. 4

s. 4

s. 3