AMIRE'.DDI RAJAGOPALA RAO AND OTHERS

AMIREDDI SITHARAMAMMA AND OTHERS

February 18, 1965

[K. SUBBA RAo, RAGHUBAR DAYAL, J. R. MuDHOLKAR. R. s. BACHA B WA!f AND V. RAMASWAMI, JJ.J Hindu Law-Married Brahmin woman becomina. concubine of Sudra male-having children-Their rights of maintenance-Whether such rights affected by the Hindu Adoption and Maintenance Act, 1956.

The first respondent S, a Brahrnin woman married to R, during the lifetime of her husband became the permanently kept concubine of L, a sudra by caste. The other thre~ respondents were the sons of S & L. After L's death, in a suit filed by the respondent against L's brother and their sons (the appellants here), the sub-judge, by a decree dated September 20, 1954, awarded maintenance to the respondents during their life-time out of the estate of L and this award was upheld on appeal by the High Court. During the pendency oi the appeal before the High Court, the Hindu Adoptions and Main tenance Act of 1956 came into force and upon a contentoon being raised before it, the High Court held that the relevant provisions of tne new Act did not have retrospective effect so as to adversely affect the rights of maintenance available to the. respondents under the Hindu Law before the Act came into force.

In appeal before the Supreme Court, it was contended on bhalf of the appellants (1), that the respondents were not entitled to claim any maintenance from the estate of L under the Hindu Law in torce before the 1956 Act because (a) the first respondent was not a Dasi and the other three respondents were not Dasiputraa of L;

(b) the husband of the first respondent having been alive, her con nection with L was adulterous and she could not therefore be entitled to maintenance as an Avaruddha Stree and (c) the first respondent being a Brahmin adulteress and L being a Sudra. the connection was

Prwti!oma and illegal. (2) That in any event, by virtue of s. 4 of the 1956 Act, the Hindu Law prior to that Act cease<l to have effect with respect to matters for which provision was made in the Act and that provision for maintenance, etc. had in fact been made in sections 21 and 22 of the Act.

HELD: (1) The respondents were entitled to maintenance during their lives out of the estate of L under the Hindu Law as it stood before the 1956 Act came into force. [127 Dl

(a) It was well recognised that independently of the express texts of the Mitakshara, whereby, in the case of Sudras the Dasiputra was entitled to a share od' the inheritance, the illegitimate son of a H Sudra was entitled to maintenance out of his father's estate though his mother was not a Dasi in the strict sense and though he was the result of a casual or adulterous relationship. f125 Cl

Mitakshara Ch. I, S. 12 V. 1, 2 and 3 referred to; Case law reviewed.

(b) Under Mitakshar.. law, a married woman who left her husband and lived with her paramour as his permanently kept mis.tress could claim the status of an Avaruddha Stree by remaii).ing faithful

RAJAGUPALA V, SITHARAMAMM.A (Bachawat, J.) 123

A to her paramour, even though the connection was adulterous, and she was entitled to maintenance from the estate of the paramour so long as she preserved sexual fidelity to him. (125 H, 126 BJ Akku Prah!ad v. Ganesh Prah!ad LL.R. [19451 Born. 216 affirmed Case law reviewed.

(c) A Brahmin concubine in the exclusive and continuous keep. ing of a Sudra until his death was entitled to claim maintenance. 'B

[127 BJ Case law referred to.

(2) Seciions 21 and 22 are in terms prospective and these sections read with section 4 did not destroy or ect the right of maintenance of the respondents which vested in them on the death of L and before the commencement of the 1956 Act. [126 F; 129 AJ

Cl S. Kameshwaramma v. Subramanyam A.LR. 1959 Andhra Pradesh 269; distinguished.

CivIL APPELLATE JURISDICTION : Civil Appeal No. 434 of 1963.

Appeal from the judgment and decree dated July 22, 1960, of• the Andhra Pradesh High Court in Appeal Suit No. 709 of 1954.

D A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellants.

M. S. K. Sastri and M. S. Narasimhan, for the respondents.

The Judgment of the Court was delivered by Bachawat, J. The first respondent, Seetharamamma, is a B Brahmin woman. She was married to one Ramakrishnayya. During the life-time of her husband she became the concubine of one Lingayya, a Sudra by caste. From 1938 until the death of Lingayya in February, 1948, she was the permanently kept concubine of Lingayya, and lived with him. During this period and thereafter, F she preserved sexual fidelity to Lingayya. The second, third and fourth respondents are the sons of the first respondent by Lingayya.

The husband of the first respondent is still alive. The appellants are the brothers and brothers' sons of Lingayya. Lingay}UI was separate in estate from his brothers and brothers' sons. The parties are residents of Choragudi, Bapatla, now in Andhra Pradesh and G go.vrned by the Mitakshara school of Hindu law. In the plaint, as

onmally filed, the respondents claimed that they were exclusively

entitld to the estate left by Lingayya. The Subordinate Judge and the High Court found that as the lirst respondent was and continued to .be a marr!ed woman while she lived with Lingayya and bore him

chdren, she was not the lawfully wedded wife of Lingayya and the B ch1lren born of the union wre not his.legitimate sons, nor were they

Df!Sputras nd. as such entitled to his properties. The suit was ongmally d1sm1ssed by the Subordinate Judge, but on appeal, the

Hig~ Coui; i gave the respondents leave to amend the plaint by makmg suitable averments for the award of maintenance and remanded the suit for trial on the question of maintenan~. At the subsequent trial on the amended plaint, the Subordinate Judge decreed the respondents' claim for maintenance and consequential

12 l

8UPREME COURT REPORTS

[ 1965) 3 S.C.R.

reliefs and awarded to them maintenance during their lifetime A. out of the estate of Lingayya. The Subordinate Judge passed his decree on September 20, 1954. During the pendency of the appeal preferrd by the appellants before the High Court, the Hindu Adoptions and Maintenance Act of 1956 (hereinafter referred to as the

At) came into force. The main controversies in the appeal before the High Court were (1) whether the provisions of the Act are B retrospective; and (2) whether a married woman who left her husband and lived with another as his permanently kept mistress could be regarded as an Avaruddha Strce. In view of the importance of these questions, the appeal was referred to a Full Bench of the Hicrh Court. On the first question, the High Court held that the

relvant provisions of the Act applied only to the estates of Hindus C dying after the commencement of the Act, and that the right of the respondents to maintenance during. their lifetime under the Hindu law in force at the time of the death of Lingayya was not atfecied by the Act. On the second question, the High Court held 1hat the first respondent was anAvaruddha Stree of Lingayya, and was entitled to maintenance from his estate, though her husband D. was alive and the coqnection with Lingayya was adulterous. The High Court agreed with the Subordinate Judge with regard to the quantum of maintenance. .

On behalf of the appellants, it is contended that the respondents are not entitled to claim any maintenance from the estate E of Lingayya under the Hindu law as it stood prior to the commencement of the Act, because (a) the first respondent is not a DaYi and the second, third and fourth respondents are not Dasipufras of Lingayya, and this point is concluded by the previous judgment of the High Court, Which has now become final between the parties; (b) the husband of the first husband was and is F still alive, and the connection of the first respondent with Lingayya was adulterous during the period of tier intimacy with Lingayya and while she bore him children; (c) the first respondent being a Brahmin adulteress and Lingayya being a Sudra, the connection wqs Prafi/oma and illegal.

Now, .under the Hindu law as it stood before the commence- G ment of the Act, the claim of a Dasiputra or the son of a Dasi. that is, a Hindu concubine in the continuous and exclusive keeping of the father rested on the express texts of the Mitakshara, Ch. I, s. 12, V. I, 2 and 3. In the case of Sudras, the Dasipufra was entitled to a share of the inheritance, and this share was given to him not merely in lieu of maintenance but in recognition of his status as a son, H see Gur Narain Das and another v. Gur Taha/ Das and others(').

But the illegitimate son of a Sudra by his concubine was not entitled to a share of the inheritance if he were the offspring of an Incestuous connection, see Dafti Parisi Nayudu v. Daffi Banl!aru Nayudu('), or if at the time of his conception, the connection was

('I [l 9•12] S.C.R. 869, SW.

(2) [1869] 4 Madras Hih Court Reports. 204,

BAJAGOPALA v. SITHABAMAMMA (Bachawat, J.) 125

A adulterous, see Rahi and others v. Govind Valad Teja('), Narayan Bharthi v. Laving Bharthi and others('), Tukaram v. Dinnkar(').

Such an illegimate son could not claim the status of a member of his father's family and could not get a share of the inheritance as a Dasiputra under the express text of the Mitakshara. For the reason, the previous judgment of the High Court rightly held that B the second, third and fourth respondents were not Dasiputras of Lingayya, and could no1 claim the inheritance. But the point whether they are entilled to maintenance out of the estate of Lingayya is not concluded by the previous judgment. It is well recognised \hat independently of the express texts of the Mitakshara, Ch. I s. 12, V. 3, the illegitimate son of a Sudra was entitled to main- 0 tenance out of his father's estate, though his mother was not a Dasi in the strict sense artd though he was the result of a casual or adulterous intercourse. It was not essential to his title to maintenance that he should have been born in the house of his father or of a concubine possessing the peculiar status therein. See: Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettayya(').

D The illegitimate son of a Sudra was entitled to maintenance out of his father's estate, though at the time of his conception his mother was a married woman, her husband was alive and her connection with the putative father was adulterous, see Rahi v. Govind('), Viraramuthi Udayan v. Singaravelu('), Subramania Mudaly v.

Valu('). According to the Mitakshara school of law, the illegiti- Ji: mate son a Sudra was entitled to maintenance from his father's estate during his lifetime. Under the Hindu law, as it stood prior to the commencement of the Act, the first, second and third respondents were, therefore, entitled to maintenance during their lifetime, out of the estate of Lingayya. i' The claim of an A varuddha Stree or woman kept in concubinage for maintenance for her lifetime against the estate of her paramour rested on the express text of Mitakshara, Ch. 2, s. I, Vs. 27 and 28 read with V. 7. In Bai Nagubai v. Bai Monghibai('), where the man and th~ woman were Hindus and the paramour was governed by the law of the Mayuka, Lord Darling said:- G "providing the concubinage be permanent, until the death of the paramour, and sexual fidelity to him be preserved, the right to maintenance is established; although the concubine be not kept in the family house of the deceased." R The Jaw of the Mitakshara is in agreement with ihe law of the Mayuka on this point. In the instant case, the first respondent

(1; llSi51 LL.~. l Hom. !li (') [l8ii.-;] T.L.R. 2 Hn'"· I-io. (') [l\J::l] :i; l R.L.H. 2.:; t1. 1'1 [lSu'J 12 !ILL\. 2 ·~. 221.

(li) \ 1877] T.L. L{. 111'! H1.: 01\. (') [1911] I.L.ll :1.i :\[:uL !iS. (') f1021ij T.J,.H , i'I ltnn. n11.i,61+, (P.C'.).

being continuously and exclusively in the keeping cf Lingayya A until his death for about IO years, the concubinage has been found to be permanent. She observed sexual fidelity to Lingayya during n1s Jilet1me, ami after his death has continued to preserve her qualified chastity. In Akku Prathad v. Ganesh Pralhad('), a Full Bench of the Bombay High Court held that a married woman who left her husband and lived with her paramour as his permanently B .k:ept mistress could claim the status of an Avaruddha Stree by remaining faithful to her paramour, though the connection was adulterous, and was entitled to maintenance from the estate of the paramour so long as she preserved her sexual fidelity to him. This Full Bench decision overruled the decision in Anandilal Hhagchand v. Chandrabai(') and followed the earlier decisions in C Khemkore v. Umiashankar("), and Bingareddi v. Lakshmawar').

The decision in Akku Pra/had v. Ganesh Pra!had(') has been the subject of strong criticism in Mayne's Hindu law and Usage, I Ith Edn., Art. 683, p. 816 edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) I M.L.J., Noles of Indian cases, p. I, D but the Full Bench of the Andhra Pradesh High Court in the instant case found themselves in complete agreement with the Bombay decision. We are of the opinion that the Bombay decision lays down'the correct Jaw.

Avaruddha Stree, as understood by Vijnaneswara, mcludes a Swairini or adulteress kept in concubinage. While dealing with the E assets of a deceased Hindu not liable to partition, Mitakshara, Ch. I, s. 4, V. 22, he says, "Swairini and others who are Avaruddha by the father, though even in number, should not be divided among the sons". Colebrooke's translation of. the passage is as follows: .. But women (adulteresses and others) kept in concubinage bv the father must not be shared by the sons, though equal in number".

In his commentary on Yajnavalkya's Verse 290 in VyavahGra Adhyaya, Ch. 24 on Stree Sangrahana, Vijnaneswara, citing Manu, explains Swairini as a woman who abandons her own husband and goes to another man of her own Varna out of love for him.

Thus, a Swairini and other adulteress kept in concubinage could claim the status of an Avaruddha Stree. The connection was no doubt immoral, but concubinage itself is immoral; yet it was recognised by law for the purpose of founding a claim for maintenance by her and her illegitimate sons. The paramour may be punishable for the offence of adultery, but the concubine is not punishable as abettor of the offence.

A concubine was not disqualified from claiming maintenance by reason of the fact that she was a Brahmin. The claim of a concubine who was a respectable woman of the Brahm in caste and

(1 ) l.L.H. fl!J45I h 1111. 216.

(2 / [H,241I.L.P~4R B"m. 203.

( 3) fl8/:l] lfJ B•n11hav High Court Repris. 381. 'J [1901] J.J,..R. 26 Born. 163.

RAJ, i.r; oPALA V. SITHARAMAMMA (Ba.cluiwat, J.) 127

her illegitimate sons for maintenance was allowed in Hargol'ind Kuari v. Dharam Singh('). No doubt, a Pratilo111a connection is denounced by the Smriti-writers and the Commentators. and before the Hindu Marriages Validity Act, 1949 (Act XXI of 1949) Pratiloma marriages between a Sudra male and a Brahmin female were declared invalid in Bai Kashi" v. Jamnadas(') and in Ramchandra Doddappa v. Hanamnaik Dodnaik('), but even those cases

recognis~ that a Brahmin concubine in the exclusive and continu0us

keeping of a Sudra until his death was entitled to claim maintenance. We express no opinion on the question whether a Pratiloma marriage was valid under the old Hindu Jaw, but we are satisfied that the claim of the respondents for maintenance cannot he defeated on the ground that the first respondent was a Brahmin and her paramour was a Sudra.

We are satisfied that the respondents were entitled to maintenance during their lives out of the estate of Lingayya under the Hindu law as it stood in 1948, when Lingayya died, in December 1949, when the suit was instituted and also in 1954, when the suit was decreed by the Subordinate Judge. The question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956, which came into forc.'l during the pendency of the appeal to the High Court. The Act is intended to amend and coify the law relating to adoptions and maintenance

among Hindus. Section 4 of the Act is as fclJows:

"4. Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu Jaw or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in fore immediately before the commencement of this Act shitll cease to apply to Hindus in •o far as it is inconsistent with any of the provisions contained in this Act."

G Section 21 defines "dependants" as meaning certain relatives of the deceased, and under sub-cl (viii), includes "his or her minor illegitim11te son, so long as he remains a minor''. A concubine is not one of the persons within the definition of "dependants" given ins. 21, and an illegitimate son is not a dependant when he ceases to be a minor. Section 22 reads thus: H

'"22. (!) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintai; the dependants of the deceased out of the estate inherited by them from the deceased. ·

('I [J8R+] ! J,.R. fi ..Ill.

0 2·1.

(ll) rJPl:?] J.t Bnn1. I~. P. .. 'il7. r:s) rl!l"fJl)LL.R. fir) Il'Hl'. 'i:'i.

(2) Where a dependant has not obtained, by testamen- A tary or intestate success'on, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provision of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persoµs who takes the B estate shall be in proportion to the value of the share or part of the estate taken by him or her.

(4) Notwithstanding anything contained in sub-section

(2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the mainten- C

(2) or sub-section (3), no person who is himself or herself the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this

Act."

Sub-section (1) of s. 22 imposes upon the heirs of a deceased Hindu the liability to maintain the dependants of the deceased defined

in s. 21 out of the estate inherited by them from the deceased. but this liability is subject to the provisions of sub-s. (2), under which only a dependant who )las not obtained by testamentary or intes- E tate succession, any share in the estate of a Hindu dying after the commencement of the Act ts entitled, subject to the provisions of the Act, to maintenance. Specific provision is thus made in s. 22 with regard to maintenance of the dependants defined in s. 21 out of the estate of the deceased Hindu, and in view of s. 4, the Hindu law in force immediately. before the commencement of the Act ceases to have effect after the commencement of the Act with res- F pect to matters for which provision is so made. In terms, ss. 21 and 22 are prospective. Where the Act is intended to be retrospective, it expressly says so. Thus, s. 18 provides for maintenance of a Hindu wife, whether married before or after the commencement of the Act, by her husband, s. 19 provides for the mainten- G ance of a Hindu wife, whether married before or after the commencement of the Act, by her father-in-law, after the death of her husband, and s. 25 provides for alteration of the amount of maintenance whether fixed by a decree of Court or by agreement either before er after the commencement of the Act. Now, before the Act came into force, rights of maintenance out of the estate of u a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred unde~ the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights. See Craies on Statute Law, 6th Edn. (1963), p. 397. We think that ss. 21 and 22 read with s. 4 do not destroy or affect any right of maintenance out of the estate

RA.TAGOPALa v. S!THARAMAMMA (Bach-wat, J.) 129

A of a deceased Hindu vested on his death before the commencement of the Act under the Hindu law in force at the time of his death.

On the death of Lingayya, the first respondent as his concubine and the second, third and fourth respondents as her illegitimate sons had a vested right of maintenance during their lives oul of the estate of Lingayya. This right and the corresponding liability of the appellants to pay maintenance are not affected by ss. 21 and 22 of the Act. The continuing claim of the respondents during their lifetime springs (out of the original right vested in them on the death of Lingayya and is not founded on any right arising after the commencement of the Act.

In S. Kameswaramma v. Subramanyam('), the plaintiff's hus band had died in the year 1916, and the plaintiff had entered intc a compromise in 1924 fixing her maintenance at Rs. 240 per yea1 and providing that the rate of maintenance shall not be increased or reduced. The question arose whether, in spite of this agreement, the plaintiff could claim increased maintenance in view of s. 25 of the Hindu Adoptions and Maintenance Act, 1956. It was held that, in spite of the aforesaid term of the compromise, s)ie was entitled to claim increased maintenance under s. 25. This conclusion follows from the plain words of s. 25, under which the amount of maintenance, whether fixed by decree or agreement either before or affer the commencement of the Act, may be altered subsequently. The decision was therefore, plainly right. No doubt, there are broad observations in that case to the effect that the right to maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by s. 22, and there is no reason fo exclude widows of persons who died before the Act from the operation of s. 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu law, as it stood then, independently of ss. 21 and 22 of the Act, and in spite of the comyromise fixing the maintenance before the commencement of the Act, the widow could in view of s. 25 claim alteration of the amount of the maintenance. The decision cannot be regarded as an authority for the proposition that ss. 21 and 22 of the Act affect rights already vested before the commencement of the Act.

We. therefore, hold that the claim of the respondents to main tenance for their lives is not affected by the Act.

We see no reason to interfere with the concurrent finding of the Courts below with regard to the quantum of maintenance.

In the result, the appeal is dismis<ed with costs. '

Appeal dismissed.

AMIRE'.DDI RAJAGOPALA RAO AND OTHERS

AMIREDDI SITHARAMAMMA AND OTHERS

February 18, 1965

RAGHUBAR DAYAL, J.

R. MuDHOLKAR

V. RAMASWAMI, JJ

September 20, 1954

Supreme Court

s. 4

sections 21 and 22

Sudras

Sudra

S. 12

RAJAGUPALA V, SITHARAMAMM.A (Bachawat

section 4

D A. Ranganadham Chetty

A. Vedavalli

A. V. Rangam

M. S. K. Sastri

M. S. Narasimhan

Bachawat

Seetharamamma

Ramakrishnayya

Lingayya

Choragudi

Bapatla

Hindu Adoptions and Maintenance Act

Mitakshara

s. 12

s. 12

Darling

Mayuka

Bombay High Court

Mayne

Art. 683

N. Chandrasekhara Aiyar

Andhra Pradesh High Court

Bombay

Vijnaneswara

s. 4

Colebrooke

Yajnavalkya

VyavahGra Adhyaya

Stree Sangrahana

Manu

Swairini

RAJ

oPALA V. SITHARAMAMMA

Ba.cluiwat

Hindu Marriages Validity Act, 1949

Section 4

Section 21

Section 22

s. 22

s. 21

s. 22

s. 21

s. 4

ss. 21 and 22

s. 18

s. 19

s. 25

ss. 21 and 22

s. 4

ss. 21 and 22

s. 25

s. 25

s. 25

s. 22

s. 22

ss. 21 and 22

s. 25

ss. 21 and 22


STATE OF U.P. AND OTHERS v.

SRI NARAIN February 22, 1965

[K. SUBBA

RAO,

RAGHUBAR DAYAL,

J. R. MUDHOLKAR, R. S.

BACHAWAT AND V. RAMASWAMI, JJ.J B U.P. Zamindari Abolition & Land Reforms Act, 1950 (U.P. Act of

1951)~U.P. Zamindari Abolition & Land Reforms Rules-Compensation Bonds-Acceptance in payment of tax dues-Delivery to intermediary-Ceases to be payable-Ss. 6(d), BB. r. B-A.

1, he respondent who was assessed to agricultural income-tax made an application to the Assessing Officer depositing compensation Bonds and prayed that the Bonds be accepted in payment of tax C dues. This was rejected stating that there was no rule for acceptance of these bonds. Another attempt by the respondent was also turned down by the Collector. Thereafter the respondent presented a writ petition in the High Court for directing them to accept the Bonds in lieu of the tax dues. The High Court was of the opinion that the two officers completely ignored the provisions of s. 6(dJ of the Act and r. BA, and directed the Collector to decide the respon- D dent's application in accordance with law. In appeal by special leave: HELD: (i) Neither s. 6(d) nor r. BA provide that the Bonds must or can be accepted in payment of tax on agriculture income fl33 El

Collector of Sultanpur v. Raja Jagdish Prasad Sahi, [1965] 2 S.C.R. 2B, referred to.

(ii) When the compensation payable to an intermediary has been paid in the form of cash or Bonds. that compensation ceased to be payable.

The fact that the Bonds are negotiable does not make them legal tender and does not make it obligatory on anyone including Government to accept them in payment of any dues. The only result of their being treated as negotiable instruments is that the owner of the Bonds can transfer them to any person who is agreeable to pur- F chase them. fl34 D-Fl

Ctv1L

APPELLATE JURISDICTION: Civil Appeal No. 424 of 1963.

Appeal by special leave from the judgment and order dated April 8, 1960 of the Allahabad High Court in Civil Misc. Writ No. 2650 of 1956.

G C. B. Agarwala and 0. P. Rana, for the appellant.

Yogeslnvar Prasad, Hardev Singh and M. V. Goswami, for the respondents.

The Judgment of the Court was delivered by Raghubar Dayal, J. This appeal. by special leave', raises the question whether Zamindari Abolition Compensation Bonds (shortly H termed Bonds) issued by the U.P. Government to intermediaries in payment of compensation payable on the basis of their rights under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), hereinafter referred to as the Act. have to be acc; epted by the appropriate authorities in payment of the agricultural income-tax due from them.

A The tacts leading to the appeal, in brief, are that the respondent, an ex-Zamindar, was assessed to agricultural income-tax in the assessment year 1360 F corre3ponding to 1952-53, on the basis of the agricultural income accruing in the previous year 1359 F corresponding to 1951-52. He did not pay the assessed tax and was further assessed to a penalty. In the result, Rs. 868 /- were to B be paid by him for tax plus penalty.

The respondent's writ petition contending that he was not liable to pay tax was dismissed by the High Court. Thereafter, the agricultural income-tax authorities took out proceedings for the realisation of the amount due from him. On July 24, 1956, the res- 0 pondent presented an application to the Agricultural Income-tax Assessing Officer, Allahabad, stating that he had no ready cash to pay the dues aiid that he was therefore depositing Bonds of the value of Rs. 850/- and Rs. 18/- in cash and praying that the Bonds be accepted in payment of tax dues. This application was rejected by an order stating that there was no rule for the acceptance of D those bonds and that they be ret\Jrned to the applicant.

On August 1, 1956, the respondent made a similar application to the Collector complaining that the Assessing Officer had no valid reason to refuse to take the Bonds when the Bonds were negotiable instruments. This application was also rejected on a B report of the Assessing Officer that the Bonds were not accepted in the settlement of agricultural income-tax dues, that they were not negotiable and that there was no provision in the Act for their acceptance.

Thereafter, thP respondent presented a writ petition to the High Court of Allahabad praying for the issue of a writ of certiorari Jr quashing the orders of the Assessing Officer and the Collector, Allahabad, for the issue of a writ of mandamus directing them to accept the Bonds in lieu of the tax dues and, in any case, to deduct the amount from the rehabilitation grant due to the petition.er and for the issue of a writ of prohibition directing the opposite parties from adopting coercive measures for the realisation of the tax due .e from the petitioner. The grounds mentioned in support of the prayers were that the Bonds were negotiable instruments and therefore refusal to accept them in payment of agricultural income-tax was illegal, that they, having been issued by Government, could not be subsequently refused they being perfectly valid legal tender and D that in view or r. 8A of the Rules made under the Act the amount due for tax should have been deducted from the interim compensation.

The counter affidavit filed by the Naib-Tehsildar Agriculture Income-tax Officer. Allahabad, on behalf of the State, stated that the respondent was assessed to agricultural income-tax in the assessment year commencing from July I, 1952 on the income derived in the previous year commencing from July I, 1951, that the tax

SUPREME

COURT

REPORTS

(1965) 3 S.O.B,

had t? be paid in four instalments and in default of payment a A penahty of Rs. 43 /- was imposed for each default in payment of the four instalments and that the Bonds could not be accepted towards the tax due under s. 6(d) of the Act read with r. 4S of the Rules as the tax had fallen due in 1360 F, corresponding to July 1,

1952 to June 30, 1953. · The High Court held that the orders of the Agricultural B Income-tax Assessing Officer and the Collector were wrong as the ground for refusing to accept the Bonds in payment of the tax on the ground that then: was no rule or statutory provision for their acceptance was incorrect and appeared to have been given in complete ignorance of the provision of law. Reference was made to the provisions of s. 6(d) of the Act and r. SA. The High Court C

was of the opinion that these have been completely ignored by the two officers. It, therefore thought that the orders were liable to be quashed and that adequate relief would be available to the respondent if a direction was given to the Collector to decide his application dated August I, 1956, in accordance with law. The D High Court therefore quashed the order of the Collector dated August 24, 1956 and directed him to decide the respondent's application afresh in accordance with law as indicated above.

The appellant thereafter obtained special leave from this Court and appealed against the order of the High Court dated April S, 1960.

E The main contention for the appellant before us is that neither s. 6(d) of the Act nor r. SA provides that Bonds can be accepted in payment of agricultural income-tax and that therefore the order of the Collector dated August 24, 1956 was correct. For the respondent it is urged that r. SA makes it mandatory for the Agricultural Income-tax Officer to realise the agricultural income- P tax due from the compensation payable and that compensation continues to be payable till the Bonds are actually encashed.

Section 6(d) of the Act, as originally enacted, did not provide, among the consequences of the vesting of the estate fo the State, that arrears on account of agricultural" income-tax might be realised G by deducting the amount from the compensation money payable to the intermediary under Chapter III. An amendment was made in this clause (d) by s. 3 of U.P. Act XVI of 1953, with retrospective effect from July 1, 1952, and the relevant portion of the provision after amendment reads thus:

"All arrears of revenue, . . .. .. or an arrear on account B of tax on agricultural income assessed under the U .P.

Agricultural Income-tax, Act, 194S for any period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejtid!ce to any other mode of recovery be realised by deductmg the amount from the compensation money pay'\ble to such intermediary under Chapter III;"

Rule SA was added to the rules by Notification No. 3266/I-A- 1056-1954 dated August 17, 1954 and its relevant portions read:

"S-A. Without prejudice to the right of the State Government lo recover the dues mentioned below by such other means, as may be open to it under law:

(!) all arrears of land revenue in respect of the estates which have vested in the State Government as a result of the notification under Section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (Act I of 1951), and of tax on agricultural income assessed under the U.P. Agricultural Income-tax Act, 194S (U.P.

Act Ill pf 1949) due from an intermediary for any period prior to the date of vesting shall be realised:

(a) in the case of an intermediary who was assessed to land revenue of Rs. 10,000 or more from the amount of interim compensation due to him, and D

(b) in the case of an intermediary who was assessed to a land revenue of less than Rs. 10,000 per annum by deduction from the amouqt of compensation payable to him;" It is clear from the above provisions that neither s. 6(d) nor r. SA B provide that Bonds must or can be accepted in payment of tax on agricultural income.

It has been held by this Court in Collector of Sultanpur v Raja Jagdish Prasad Sahi(') that the provisions of s. 6(d) of the Act would apply to arrears on account of agricultural income-tax

ai; sessed in l360F on the basis of agricultural income during the F year 1359F and that the provisions of r. SA are mandatory.

It is not urged for the appellant that r. SA is inconsistent with the provisions of s. 6(d) which provides that arrears of tax may be realised from the compensation payable and .therefore appears to give a discretion to the authorities to realise the arrears 6 of tax from the compensation payable.

We do not agree with the contention for the respondent that the compensation payable to the intermediary continues to remain payable even after the compensation Bonds had been delivered to him. Section 6S of the Act provides that the compensation under the Act shall be payable in cash or in bonds or partly in H cash and partly in bonds as may be prescribed. It is clear therefore that the delivery of Bonds to the intermediary is in payment of the compensation. The claim for compensation is thus satisfied when the compensation has been jlaid lin accordance with the provisions of s. 6S. This is also clear from the relevant rules for the payment of compensation.

(') [tn65] 2 S.C.R. 28.

SUPREME

COURT

U.EPORTS [1965] 3 s.c.R.

Rule 62 as it steed prior to November 29, 1956, provided A that the compensation w.ould be paid in negotiable bonds which would be described as Zamindari Abolition Compensation Bonds.

Rule 63 as it then stood. provided that the Bonds would be issued in specified denominations and would bear interest at the specified rate on the principal that had become payable calculated from the date of vesting. Rule 64 provided that interest together with the B principal of a Bond would be paid in equated annual instalments except for the last, as described in Appendix IV during the period of 40 years beginning from the date of vesting, provided that any Bond might be redeemed at an earlier date at the option of the Government. Rule 65 provided that the instalments due on a Bond C from the date of its enfacement would be payable on presentation from and after July !st next after the delivery of the Bond to the intermediary.

These rules show that the compensation does not remain payable atter the delivery of the Bonds and that the Bonds could not be cashed before the due date for their encashment.

The fact that the Bonds are negotiable does not make them legal tender and does not make it obligatory on anyone, including Government, to accept them in payment of any dues. The 0nly result of their being treated as negotiable instruments is that the owner of the Bonds can transfer them to any person who is agree- E able to purchase them.

When the compensation payable to an intermediary has been paid in the form of cash or .Bonds, that compensation ceases to be payable. Section 6(d) of the Act and r. 8A of the rules do not. as already stated, provide for the receipt of agricultural income- F tax in the form of Bonds. ·

We are therefore of opinion that the Collector cannot be said to be in error in not accepting the Bonds which had been delivered and which .were not even cashable at the time, in payment of the arrears of agricultural income-tax payable under the Agricultural Income-tax Act.

We accordingly allow the appeal, set aside the order of thi High Court and restore that of the Colkctor dated August 24, 1956 The respondent will pay the costs of the appeal to the appellants

Apal allcwed. B

STATE OF U.P. AND OTHERS

SRI NARAIN

February 22, 1965

RAO

RAGHUBAR DAYAL,

J.

R. MUDHOLKAR

BACHAWAT

V. RAMASWAMI, JJ

Land Reforms Act, 1950

Land Reforms Rules

Ss. 6(d)

s. 6(d)

[1965] 2 S.C.R. 2

Allahabad High Court

G C. B. Agarwala

0. P. Rana

Yogeslnvar Prasad

Hardev Singh

M. V. Goswami

Raghubar Dayal

U.P. Government

July 24, 1956

Allahabad

August 1, 1956

High Court of Allahabad

s. 6(d)

July 1,

1952

June 30, 1953

s. 6(d)

August 24, 1956

s. 6(d)

24, 1956

Section 6(d)

s. 3

July 1, 1952

August 17, 1954

Section 4

Agricultural Income-tax Act

s. 6(d)

s. 6(d)

s. 6(d)

Section 6S

s. 6S

Section 6(d)

Income-tax Act

Apal allcwed. B


STATE OF BOMBAY (NOW MAHARASHTRA) v.

NARUL LATIF KHAN February 22, 1965

[P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND

V. RAMASWAMI, JJ.]

Departmental Enquiry-Charge-sheeted officer desiring to produce oral evidence-Refusal to record such evidence on the ground that the case against the officer rested on documents alo:ie--S'lfc~ refusal whether amounts to denial of reasonable opportumty--Cvt!

Serv'ices <Classification, Control & Appeal) Rules r. 55- ConsPtution of India, Art. 311(2).

The appellant who was in the service of a State Government asked for long leave which was refused. Subsequently he asked for ten days' leave which was granted. On the expiry of the leave period he did not join duty on the ground that he was seriously ill. The Government refused to accept the plea and instituted a departmental inquiry against him. The respondent wanted to produce oral evidence in support of his plea including the evidence of doctors who treated him, but the enquiry officer refused to record oral evidence on the ground that the case against the appellant rested on ciocuments alone and therefore no oral evidence was necessary. On the report of the enquiry officer the State Government ordered the compulsory retirement of the respondent. The latter filed a suit in which he claimed inter alia that the constitutional provision in Art. 311 had been contravened. The trial judge held against him but the High Court decided in his favour. The State Government appeal ed to the Supreme Court with certificate.

The narrow question to which the Court had to address itself was whether it was obligatory on the enquiry officer to give a reason able opportunity to the respondent to lead oral evidence and examine his doctors.

HELD: (i) The Civil Services (Classification, Control and Appeal) Rules provide in r. 55 that if the charge-sheeted Officer so desires or if the authority concerned so directs an oral enquiry shall be held.

This provision is mandatory and is based on considerations of natural justice and fair play. Therefore when the respondent expressed his desire to the enquiry officer that he wanted to lead evidence in support of his plea, it was obligatory on the enquiry officer to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf. p 43 D-Fl

(ii) Though an enquiry officer would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged, it would be impossible to accept the arument that if the charge-sheeted officer wants to lead oral eviden.ce the enquiry officer can say that having regard to the charges agams_t the officer he would not hold any oral enquiry r143 Hl

(iii) In the _present case the witnesses whom the respondent wanted to examme ould. undoubtedly have given relevant evidence.

He wanted to examme his doctors but the enquiry officer failed to !five him an opportunity to do so. That introduced .a fatal infirmity

m the whole nqmry as the respondent had not been given a reasonable opportunity to defend himself within the meeting of Art. 311(2) . . The appeal of the State Government had therefore to be dismissed. P44 A, Cl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1040!

A 63.

C. K. Daphtary, Attorney General, M. S. K. Sastri and R. H.

Dhebar, for the appellant.

C. B. Agarwala and A. G. Ratnaparkhi, for the respondent.

The Judgment of the Court was delivered by- B Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether the appellant, the State of Bombay (now Maha_rashtra), shows that its predecessor State of Madhya Pradesh (heremaHer called the Government) had given a reasonable opportunity to the respondent, Narul Latif Khan, to defend himsel~ efore it passed the final order on June 6, 1952 compulsorily C

retmg hllll under Article 353 of the Civil Service Regulations.

By this order, the respondent was compulsorily retired and in relaxation of Art. 353, the Government was pleased to allow the respondent to draw a compassionate allowance equal to the pension which would have been admissible to him had he been D invalidated.

This order was challenged by the respondent by filing a suit in the Court of the first Additional District Judge at Nagpur. In his plaint, the respondent alleged that the impugned order whereby he was compulsorily retired, was invalid and; he claimed a declarationthat it was ultra vires and inoperative. He also asked E for a declaration that he was entitled to be, restored to the post which he held on July 6, 1950, and that he should be given all pay, allowances, increments and promotions to which he would have been entitled if he had been permitted to continue in service.

In the result, the respondent asked for a decree for Rs. 62,237 with interest, at 6 per cent per annum from the date of the suit till realisa- F tion.

' This claim was resisted by the appeilant on several grounds.

The principal ground on which the appellant challenged the respondent's claim, however, was that he had been given a reasonable opportunity to defend himself, and so, the impugned order G was perfectly valid, and legal. Several other pleas were also raised by the appellant. On these pleas, the learned trial Judge framed appropriate issues. The issue with which we are concerned in the present appeal, however, centll!'ed round the qustion as to whether the Constitutional provision prescribed by Art. 311 affording protection to the respondent had been contravened. The trial H Judge made a finding against the respondent on this issue. He also recorded his findings on the other issues with which we are not directly concerned in the present appeal. In regard to the money claim made by the respondent, the learned trial Judge made a finding that in case he was held entitled to such relief, a decree for Rs. 37,237 may have to be passed in his favour. In view of his conclusion that the impugned order was valid, no question arose

Sl'ATE v. NARUL LATfE (Gajendragadkar, O.J.) 137

A for making such a decree in favour of the respondent. The respondent's suit, therefore, failed and was dimissed.

The respondent then took the matter in appeal before the High Court of Judicature at Bombay, Nagpur Bench. The High Court has, in substance, held that the constitutional provisions prescribed by Art. 311 have not been complied with by the appel- B !ant before it passed the impugned order against the respondent.

It has found that the departmental enquiry which was held suffered from the serious infirmity that the enquiry officer did not hold an oral enquiry and did not allow an opportunity to the respondent to lead his oral evidence.

It has also held that C the second notice served by the appellant on the respondent calling upon him to show cause why the report made by the enquiry officer should not be accepted and appropriate punishment should not be inflicted on him, was defective, and that also made the impugned order invalid. The High Court appears to have taken the view that the impugned order does not show that the ap- D pellant had taken into account the explanation offered by the respondent in response to the second notice issued by the appellant.

As a result of these findings, the High Court has reversed the conclusion of the trial Court on the main question and has found that the impugned order is invalid and inoperative. On that view, the High Court considered the money claim made by the respondent, E and it confirmed the finding of the trial Court that the respondent would be entitled to a decree for Rs. 37,237. In fact, the alternative finding recorded by the trial Court in respect of the amount to which the respondent would be entitled in case he succeeded in cliallenging the validity of the impugned order, was not questioned before the High Court In the result, the High F Court allowed the appeal and passed a money decree for Rs. 37,237 in favour of the respondent in terms of prayer (A) of paragraph 31 of the plaint. The appellant then applied for and obtained a certificate from the High Court and it is with the said certificate that it has brought the present appeal before this Court. That is how the main .question which falls for our deci- G sion is whether the constitutional provision prescribed by Art. 311 has been complied with by the appellant beforr ; t passed the impugned order.

At this stage, it may be relevant to refer to some material facts. The respondent was appointed as Extra Assistant Commis- B sioner in 1926 and since then he had been holding various offices in the State service of the then Madhya Pradesh Government. In

1950, he was holding the post of a Treasury Officer at Ngpur. It appears that privilege leave for over a year was due to him and he had applied for four months' privilege leave. On June 12, .1950,

Government informed him that his request fer leave was rejected and he was told that no further application for leave would be entertained in future. On July 7, 1950, the respondent proceeded

on casual leave for two days, and on July 8, 1950 he renewed A his application for four months' leave on medical grounds. This application was accompanied by a certificate given by Dr. Dange.

Government, therefore, decided to constitute a Medical Board for examining the respondent in order to decide whether leave on medical grounds should be granted to him. Accordingly, the respondent appeared before a Special Medical Board on July 22, E

1950. The Medical Board, however, could not come to a decision as to whether the respondent should be granted leave on medical grounds for four months. It recommended that the respondent should get himself admitted in the Mayo Hospital, Nagpur, for observation and investigation. In accordance with this report, Government asked the respondent to get himself admitted in the C Mayo Hospital in time, so that the Board could examine him on August 8, 1950. The respondent refused to go to the Mayo Hospital and pressed that he should be allowed to go to Calcutta to receive medical treatment from experts. It appeus that on July 26, 195Q, the respondent received a telegram from Raipur stating that his daughter was dangerously ill there. He, therefore, made D another application on the same day requesting for ten days' leave to enable him to go to Raipur and see his ailing daughter. On July 31, 1950, Government granted the respondent's request.

Accordingl(y, the respondent went to Raipur.

From Raipur he renewed his application for four months' leave on Medical grounds and produced certificates from Dr. Bhalerao and Dr. Kashyap.

E That led to a lengthy correspondence between the respondent and the Government which shows that Government insisted on his appearing before the Medical Board and the respondent was not prepared to go to Nagpur because he alleged that he was seriously ill and could not undertake a journey to Nagpur. Ultimately, on September 9, 1950, Government called upon the respondent to F resume his duties within three days from the receipt of the ssid letter failing which he was told that he would be suspended and a departmental enquiry would be started against him. On October

4, 1950, the respondent wrote a lengthly reply setting forth his contentions in detail. Since he did not resume his duties, Government decided to suspend him and start a departmental enquiry against G him. Mr. S. N. Mehta, I.C.S., was accordingly appointed to hold the enquiry. On November 29, 1950, Mr. Mehta wrote to the respondent that Government had directed him to conduct. the departmental enquiry, and called upon the respondent to attend his office on December 7, 1950, at 11.00 a.m. The respondent, however, did not appear before him and wrote to Mr. Mehta that owing to his H illness, he' was unable to appear before him. He again pleaded that he was seriously ill.

On January 15, 1951, Mr. Mehta served the respondent with a charge-sheet. Three charges were framed against him. The first charge was that he had deliberately disobeyed the orders of Government when he was asked to get himself admitted in the Mayo

STATE V. NARUL LATIF (Gaje,1ulragadkar, 0. J.) !39

A Hospital for observation and investigation. The second charge was that he had failed to report for duty even though o leave was sanctioned to him by Government and he was specifically ordered by Government to report for duty. The third charge was that he had persistently disobeyed the orders of Government and he had thereby shown himself unfit to continue a~ a meber of the State B Civil Service. Material allegations on which rehance was placed against the respondent in support of ihese charges were also specified under the respective charges.

The respondent was, however, not prepared to appear before Mr. Mehta and he raised several technical contentions. Ultimately, C he sent his written statement and denied all the charges .. His case appears to have been that he had not deliberately disobeyed any of the orders issued by Government. In regard to his getting admitted in the Ma yo Hospital, he seems to have taken the plea that when he was allowed to go on casual leave to see his ailing daughter at Raipur, it was clear that he could not have got himself admitted D in the Mayo Hospital so as to enable the Medical Board to examine him on August 8, 1950. In respect of the charge that he had persistently refused to obey the orders of Government, his case was that he was dangerously ill and that he genuinely apprehended that if he undertook a journey to resume his duty, he might even collapse. He requested the enquiry officer to allow him E to appear by a lawyer whom he would instruct to cross-examine the witnesses whom the Government would examine against him.

He also stated that he wanted to give evidence of his own doctors who would depose to his ailing condition at the relevant time.

F It appears that Mr. Mehta wanted to accommcdate the respondent as much as he could and when he found that the respondent was not appearing in person before him, he in fact fixed a date for hearing at Raipur on September 21, 1951 where he happened to be camping. On that date, the respondent appeared before Mr. Mehta and Mr. Mehta made a note as to what trans- G pired on that date. The note shows that "the whole case was discussed with the respondent. His plea was that he should be allowed to appear through a counsel, but it was explained to him in detail that as far as the case can be seen from Government side at present, it does not involv_e the taking up oral evidence. He agreed that he would not press for this facility. He would, however, like to H give a detailed answer to the charge-sheet. He also undertook to appear in person regularly in future". Thereafter, Mr. Mehta required the respondent to file his detailed written statement. and in fact, the respondent did file his detailed written statement containing the pleas to which we have already referred. On November 8, 1951, Mr. Mehta wrote to the respondent that he would be glad to hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not

appear on the said date, Mr. Mehta proceeded to examine the docu- A mentary evidence showing the failure of the respondent to comply with the orders issued by Government and made his report on November 24, 1951. He found that the three charges framed against the respondent were proved. In his report, Mr. Mehta observed that "the conduct of the respondent and the language used by him from time to time in his communications discloses an attitude of B disobedience and insubordination which no Government can tolerate from its subordinate officers". We may incidentally observe that the comment thus made by Mr. Mehta in regard to the communications addressed by the respondent to him appears to, us to be fully justified but, in our opinion, this aspect of the matter cannot have any material bearing on the question with which we C are concerned. The validity of the impugned order must be judged objectively without considering the impropriety of the language used by the respondent or the reluctance shown by him to appear before Mr. Mehta.

In his report, Mr. Mehta has also observed that when the D respondent met him, he explained to him that the case did not involve recording of any oral evidence as it was based on documents only. Mr. Mehta adds that according to the impression he got at that time, the respondent was satisfied that in the circumstances, the assistance of a counsel was unnecessary. It is, how- E ever, plain from the several letters written by the respondent to Mr. Mehta that he was insisting upon an oral enquiry and that he wanted to examine his doctors to show that he was so ill at the relevant time that he could not have resumed his duties. On March 2, 1951, the respondent wrote to Mr. Mehta stating, inter a/ia, that he wished to put in the witness-box a few high-ranking F Government officers and the doctors whom he had consulted about his illness. Earlier .on January 20, 1951, he had written to Mr. Mehta requesting him to conduct an oral enquiry as laid down in paragraph 8(iv) G.B. Circular 13. Similarly, on April 23, 1951, he again informed Mr. Mehta that in his opinion the institution of the departmental enquiry after suspending him was illegal G and had, caused him grave injury, and he added that oral and documentary evidence will be produced in defence.

It does appear that Mr. Mehta explained to the respondent that so far as Government was concerned, it rested its case merely on documents and did not think it necessary to examine any wit' B nesses, and thereupon the respondent agreed that he need not have the facility of the assistance of a lawyer. But it is clear from the remarks made by Mr. ehta in the order sheet on September 21, 1951, ad the obervahons made by him in his report that the only pomt on which the respondent agreed with Mr. Mehta was that he need not ?e allowed the assistance of the lawyer in the departmental enqmry. We have carefully examined the record in

STATE v. NARUL LATIF (Galjenaragadkar, c. J.) 141

A this case and we see no justification for assuming that the respondent at any time gave up his demand for an oral enquiry in the sense that he should be given permission to cite his doctors in support of his plea that his failure to resume his duties was due to his 111-health. The char11e agains~ him was that. he had. deliberately disobeyed the Government orders, and 1t 1s conceivable B that this charge could have been met by the respondent by showing that though he disobeyed the orders, the disobedience was in no sense deliberate because his doctors had advised him to lie in bed; and thus considered, his desire to lead medical evidence cannot be treated as a mere subterfuge to prolong the enquiry. It is true that the respondent did not give a list of his witnesses; but C he had named his doctors in his communications to Mr. Mehta, and in fact Mr. Mehta never fixed any date for taking the evidence of the witnesses whom the respondent wanted to examine. If Mr. Mehta had told the respondent that he would take the evidence of his witnesses on a specified date and the respondent had failed to appear on the said date with his witnesses, it would have D been an entirely different matter. Therefqre, the position is that Mr. Mehta did not hold an oral enquiry and did not give an '-'P portunity to the respondent to examine his witnesses and so, the question which arises for our decision is: does the failure of Mr. Mehta to hold an oral enquiry amount to a failure to give a reasonable opportunity to the respondent within the meaning E of Art. 311?

The requirements of Art. 311(2) have been considered by this Court on several occasions. 'At the relevant time, Art. 311(2) provided that no person to whom Art. 311 applies shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.--It is common ground that the impugned order of compulsory retirement attracts the provisions of Art. 311 (2). If it appears that the relevant statutory rule regulating the departmental enquiry which was held against the respondent made it obligatory on the enquiry officer to hold an oral enquiry if the respondent so demanded, then there would be no doubt that the failure of the enquiry officer to hold such an oral enquiry wou Id introduce a serious infirmity in the enquiry and would plainlv amount to the failure of_ the appellant to give a reasonable opportunity to the respondent. This position is not disputed by the learned Attorney-General and is indeed well-settled. So, the narrow question to which we must address ourselves is whether it was obligatory on Mr. Mehta to hold an oral enquiry and give a reasonable oppcrtumty to the respondent to lead oral evidence and examine his doctors. We will assume for the purpose of this appeal that in a given case, Government would be justified in placing its case against the charge-sheeted officer only on documents and may be under no obligation to examine any witnesses,

142 SuPREHE

COURT

REPORTS

(1965) 3 s.c.L

though we may incjjentally observe that even in such cases, if the A officer desires that the persons whose reports or orders are bemg relied upon against him should be offered for cross-examination, it may have to be considered whether such an opportunity ought not to be given to the officer; but that aspect of the matter we will not consider in the present appeal. Therefore, even if it is lSsumed that Gcvernment could dispense with the examination of B witnesses in support of the charges framed against the respondent, does the relevant rule make it obligatory on the Enquiry Officer to hold an oral enquiry and give the respondent a chance to exH '"ine his witnesses or not?

This question falls to be considered on the constructicn of 0 rule 55 of the Civil Servif:es (~::Jassification, Control and Appeall Rules. This rule reads thus: -

"Without prejudice to the provisions of the Public Servants lnquirie> Act, 1850, no order of dismissal, removal or reducticn shall b.: passed on a. member of a service (other than an order based on facts which have led to the conviction in a Criminal Ccurt or by a Court, Martial) unless he has bee; i infor.ned in writing of the grounds on which it is proposed to take act:on, and has been afforded an adequate opportunity of defe11qjng-himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which sha11 be communicated to the person charged together with a statement of the allega(1cns on which each charge is basd and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so des'res or if the authority concerned so direct, an oral enquiry shall be held. At that enquiry era! evi:lence shall be heard as to such of the allegations as are not admitted. and tlae person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called. as h~ inay wish, provided that the officer conducting the enquiry may, for special and sufficient reason t0 be recorded in writing, refuse to call a witness. The proceeding" shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof." It appears that the Government of Madhya Pradesh had issued a Circular explaining this Rule. The Circular contained Rule 8 which is relevant. Tt provides that "particular attention is invited to the provisions regarding oral enquiry. In case the person charged desires that an oral enquiry shculd be held. the authority holdin~ the departmental enquiry has no option to refuse it". The High

STATE V. NAIIUL LATIF (Gajndragaakar, 0.J.) 143

A Court seems to have based its conclusion substantially, if not entirely, on this rule. We do not propose to adopt that course. The rule may be no more than a circular issued by Government and we do not propose to examine the question as to whether it baa the force of a statutory rule. Our decision would, therefore, be based on the construction of Rule 55 of the Civil Services Rules B which admittedly applied and wh'ch admittedly is a statutory rule.

The relevant clause in this Rule provides that the officer charge-sheeted shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. This clause has been complied with c in the present proceedings. Mr. Mehta gave notice to the respondent to appear before him in person on the 20th November, 1951 and the respondent did' net appear on that date. Jt is the next clause on which the decision of the present appeal depends.

This clause _lays down that if he, that is to say the charge-sheeted officer. so desires or if the authority concerned so directs, an •lral D enquiry shall be held. In our opinion, it is plain that the requirement that an oral enquiry shall be held if the authority concerned so directs, or if the charge-sheeted officer so desires is mandatory. fnjeed, tis requirement is plainly based upon considerations of natural justice and fairplay. If the charge-sheeted officer wants to le; id his own evidence in support of his plea, it is obviously essential that he shculd be given an opportunity to lead such evi- E dence. Therefore, we feel no hesitation in holding that once the respondent expressed his desire to Mr. Mehta that he wanted to lead evidence in support of his plea that his alieged disobedience of the Government o•ders was not deliberate, it was obligatory on Mr. Mehta to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf.

It is true that the oral enquiry which the enquiry officer is bound to hold can well be regulated by him in his discretion.

If the charge-sheeted officer starts cross-examining the departmental witnesses in an irrelevant manner, such cross-examination can be checked and controlled. If the officer desires to examine witnesses whose evidence may appear to the enquiry officer to be thoroughly irrelevant, the enquiry officer may refuse to examine s:.ich witnesses; out in doing so, he will have to record his spec'al and sufficient reasons. In other words, the right given to the charge. sheeted officer to cross-examine the departmental witnesses or examine his own witnesses can be legitimately examined and con- H trolled by the enquiry officer; he would be justified in conductiny the enquiry in such a way that its proceedings are not allowed to be unduly or deliberateiy prolonged. But, in our opinion, it would be impossible to accept the argument that if the charge-sheeted cfficer wants to lead oral evidence, the enquiry officer can say that having regard to the charges framed against the officer, he would not hold any oral enquiry. In the present case, the witnesses

[41 SUPREJl!ll

COURT RlilPOR'rS [19tlfij 3 S, U, lt

whom the respondent wanted to examine would undoubtedly hwc A given relevant evidence. If the doctors who treated the respondent had come and told the enquiry officer that the condition of the respondent was so bad that he could not resume work, that undoubtedly woul::I have been a relevant and material fact to consider in deciding whether the charges framed against the respon dent were proved. Even if we disapprove of the attitude adopted B by the respondent in the ccurse of this enquiry and condemn him for using .extravagant words and making unreasonable contentions

; n his communications to the enquiry officer, the fact still remains that he wanted to examine his doctors, and though he intimated to Mr. Mehta that he desired to examine his doctors, Mr. Mehta failed to give him an oppo:tunity to do so. That, in our opinion, C introduces a fatal infirmity in the whole enquiry which means that the respondent has not ben given a reasonable opportunity to defend himself within the meaning of Art. 311(2). On that view of the matter, it is unnecessary to consider whether the High Court was _right in its other conclusions that the second notice served by tlie appellant on the respondent was defective and that the D final order was also defective Inasmuch as it did not appear that

the appellant had taken into account the representation made by respondent

It is not disputed by the learned Attorney-General that if we hold that the enquiry conducted by Mr. Mehta contravened the E mandatory provision of r. 55, the decision of the High Court

cuuld be sustamed on that ground alone.

In the result, the appeal fails and is dismissed with costs.

Appeal dismissed.

STATE OF BOMBAY (NOW MAHARASHTRA

NARUL LATIF KHAN

February 22, 1965

P. B. GAJENDRAGADKAR, C.J.

RAGHUBAR DAYAL

V. RAMASWAMI, JJ.

Art. 311(2)

Art. 311

Supreme Court

Art. 311(2)

C. K. Daphtary

M. S. K. Sastri

R. H.

Dhebar

C. B. Agarwala

A. G. Ratnaparkhi

B Gajendragadkar

State of Bombay

Narul Latif Khan

June 6, 1952

Article 353

Art. 353

July 6, 1950

Art. 311

Art. 311

Art. 311

Madhya Pradesh Government

Ngpur

June 12, .1950

July 7, 1950

July 8, 1950

Dange

July 22, E

1950

Mayo Hospital, Nagpur

C Mayo Hospital

August 8, 1950

Mayo Hospital

Calcutta

July 26, 195Q

Raipur

July 31, 1950

Bhalerao

Kashyap

Nagpur

September 9, 1950

October

4, 1950

S. N. Mehta

November 29, 1950

Mehta

December 7, 1950

January 15, 1951

September 21, 1951

November 8, 1951

November 20, 1951

November 24, 1951

March 2, 1951

January 20, 1951

April 23, 1951

ehta

Art. 311

Art. 311(2)

Art. 311(2)

Art. 311

Art. 311

Control and Appeall Rules

Government of Madhya Pradesh

20th November, 1951

Art. 311(2)