THE STATE OF MYSORE

SHANTA VEERAPPA CHANNA MALLAPPA

BOMMANAHALLI & ORS.

March 4, 1966

(A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]

Mysoro Sales Tax Act (25 of 1957), ss. 13(3) and 29(l)(d)-Asst3Ut filing appeal against order of as•essment-No interim stay of proceedings for recovery of tax-Prosecution for non-payment of tax-Ma/ntainabi- C lity.

The respondent was assessed to sales tax and w .. served with a notice requiring him to pay the amount within 21 days. He preferred an appeal against the order of assessment but did not pay the tax, nor did he obtain an order of stay of proceedings from the appellate authority.

While the appeal w.. pending, a complaint was filed against him under s. 29(1)(d) of the Mysore Sales Tax Act, 1957, because the demand D was not complied with, but the trial court and the High Court acquitted him.

In appeal to this Court by the State,

HELD : The acquittal of the respondent was unwarranted as his action in not paying the tax within the time allowed, was deliberate and therefore wilful, and such failure to pay is rendered an offence under s. 29(l)(d). [814 D, El

The liability to pay tax is created by the order of assessment. Where the tax so assessed is not paid despite service of notice of demand, the tax may be recovered under s. 13 ( 3) (a~ .. an arrear of land reyenue or. under s. 13 ( 3 )(b) on an application to a magistrate as if it were a fine impooed on the assessee.

Under the proviso to s. 13(3), the assessee has been afforded interim protection from action under s. 13(3)(a) or (b), provided he obtains from the appropriate appellate or revisional authority mentioned in the proviso, an order of stay of proceedings.

Merely because an appeal h.. been preferred, the liability of the assessee to pay the tax cannot be deemed to be suspended under s. 20(5). Thi• provision requires that if the order of such appropriate authority lays down any condition, the proviso requires that the assessee must comply with it before he can obtain interim relief. Apart from these two methods of obtaining interim relief, the proviso to s. 13(3) cannot be an answer to a prosecution under s. 29(l)(d). [813 E-G]

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeals Nos. 150-152 of 1965.

Appeals by special leave from the judgment and order dated March 17, 1965 of the Mysore High Court in Criminal Appeals Nos. 93 to 95 of 1965.

B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.

K. R. Choudhury, for the respondents. 811

812 SUPll.EME COUll.T REPORTS

[1966] 3 S.C.R.

The J udgmcnt of the Court was delivered by

Modbolkar, J. This judgment will also govern Criminal Appeals Nos. 151and152of1965. The respondent was at the relevant time a dealer at Bijapur in groundnuts, cotton seed and other commodities and was registered as a dealer under the Mysore Sales Tax Act, 1957.

For the period between November 12, 1958 and October 31, 1959 he was assessed to sales tax amounting to Rs. 9,864·31 ps. by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963. On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring him to pay the tax assessed on him within 21 days.

He was similarly assessed to pay tax for two subsequent periods by two separate orders passed by the Commercial Tax Officer. Two separate notices of demand were served on him requiring him to pay the tax assessed within 21 days. ll is common ground that the respondent did not comply with any of the three notices. Three separate complaints were, therefore, preferred against him by the Commercial Tax Officer before the Judicial Magistrate, First Class, second court, Bijapur for offences punishable under s. 29(1)(d) of the Act. The respondent had preferred appeals against each of the three orders of assessment under sub-s. (I) of s. 20 of the Act. He did not, however, pay the tax assessed against him or any portion thereof as contemplated in the second proviso of sub-s. (1) of s. 20 nor did he seek or obtain from the appellate authority any order under the proviso to sub-s. (5) of s. 20. The learned Magistrate held that since the respondent had preferred appeals against the orders of assessment and those appeals were still pending when the complaints were made before him the respondent was not liable for offences under s. 29 (I) (d). On this ground the learned Magistrate acquitted the respondent in all the three cases. Appeals preferred by the State of Mysore against the orders of acquittal passed in favour of the respondent were rejected by the High Court on the ground that as the State could avail itself of other remedies under the Act for enforcing the payment of tax levied on the respondent it did not think it fit to exercise its discretion under s. 421 (I) of the Code of Criminal Procedure and entertain the appeals.

Mr. Chaudhuri refers to the proviso to sub-s. (3) of s. 13 and contends that unless the requirements of the proviso are satisfied he is not liable to be proceeded against under s. 29 (1) (d). In order to appreciate his argument it is desirable to reproduce the provision relied upon by him.

Sub-section (3) of s. 13 reads as follows :

"Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other H mode of collection, be recovered-

(a) as if it were an arrear of land revenue, or

E •

' ;'

STATE v. BOMMANAHALLI (Mudho/kar, J.) 813

(b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him:

Provided that no proceeding for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax or other amount, as the case may be, complied with an order by any of the authorities to whom the dealer has appealed, or applied for revision, under sections 20, 21, 22, 23 or 24."

The matter dealt with by s. 13 is "payment and recovery of tax".

The substantive part of the provision renders an assessee in arrears of tax liable to be proceeded against under either cl. (a) or cl. (b) of the provision. Mr. Chaudhury, however, contends that by virtue of the proviso an assessee will not be liable to be proceeded against unless it is shown that he has failed to comply with an order made by the appropriate authority under one of the sections referred to in the proviso. He points out that though he has preferred appeals under s. 20 of the Act no order has been made by the appellate authority in any of the appeals dealing with the question of payment or otherwise of the tax and that, therefore, there has been no failure on the part of the respondent to comply with an order made by the appropriate authority. Mr. Chaudhury in effect wants us to construe the proviso as if it contemplated the creation of liability to pay the tax by an order of the appropriate authority under one of the sections specified in the proviso. There is no warrant for such a construction. The liability to pay tax is created by the order of assessment. Where tax so assessed is not paid despite service of notice of demand the substantive portion of sub-s. (3) of s. 13 renders the assessee liable to be proceeded against under

cl. (a) or cl. (b) of that provision. The assessee who has moved the appropriate authority under one of the provisions referred to in the proviso has, however, been afforded interim protection from action under cl. (a) or cl. (b) provided that he approaches the appropriate authority and obtains from that authority an order of stay of proceedings under cl. (a) or cl. (b). That, however, is not enough.

If the order of the appropriate authority lays down any condition the proviso requires that the assessee must comply with those conditions before he can obtain interim relief under the proviso.

Apart from that, we fail to see how the proviso to sub-s. (3) of s. 13 can at all be an answer to a prosecution under s. 29 (!) (d). What is rendered an offence under s. 29 (I) (d) is the failure of the assessee to pay the tax within the time allowed. But where, as here, the assessee has not paid the tax within the time allowed by a notice of demand he immediately renders himself liable to be proceeded against under s. 29 (I) (d).

Mr. Chaudhury then contended that in view of the fact that an appeal has been preferred the liability of the assessee to pay

SUPREME COUJ.T R.EPOl.TS

the tax must be deemed to have been suspended during the pendency of the appeal. This argument ignores the specific provisions of sub-s. (5) of s. 20 and the proviso thereto. They read thus :

"Notwithstanding that an appeal has been preferred under sub-section (I), the tax shall be paid in accordance with the assessment made in the case :

Provided that the appellate authority may, in its discretion give such directions as it thinks tit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed."

The provision we have just quoted is a complete answer to Mr. Chaudhuri's contention. Mr. Chaudhury then contended that there was no wilful default on the part of the respondent.

It is difficult to appreciate what he means by saying that there was no wilful default. The respondent knew that he was required to pay the tax within certain time and also knew that he had not complied with the notice of demand.

His action in not paying the tax was quite clearly deliberate and, therefore, wilful. There is no substance in this contention.

We are, therefore clear that the acquittal of the respondent

for offences in the case was unwarranted. We would, therefore, have, after setting aside his acquittal in each of the three cases, E convicted and sentenced him under s. 29 (1) (d) of the Act but for the fact that when special leave was granted an undertaking was given by the State that irrespective of the result of the appeal the respondent would not be prosecuted. Probably what was meant was that the State would not press for conviction and sentence of the respondent. Therefore, though we allow the appeals F and set aside the acquittal of the respondent in the three cases we leave the matter just there.

Appeals allowed.

THE STATE OF MYSORE

March 4, 1966

A. K. SARKAR, J.

R. MUDHOLKAR

R. S. BACHAWAT, JJ.

Mysoro Sales Tax Act

ss. 13(3) and 29(l)(d)

s. 29(1)(d)

Mysore Sales Tax Act, 1957

s. 29(l)(d)

s. 13

s. 13

s. 13(3)

s. 13(3)(a)

s. 20(5)

s. 13(3)

s. 29(l)(d)

Mysore High Court

B. R. L. Iyengar

B. R. G. K. Achar

K. R. Choudhury

Modbolkar

Mysore Sales Tax Act, 1957

November 12, 1958

Bijapur

December 4, 1963

January 3, 1964

s. 29(1)(d)

s. 20

s. 20

s. 20

s. 29

State of Mysore

s. 421

Code of Criminal Procedure

Chaudhuri

s. 13

s. 29

s. 13

sections 20, 21, 22, 23

s. 13

Chaudhury

s. 20

s. 13

s. 13

s. 29

s. 29

s. 29

s. 20

s. 29


HIMATRAO v.

JAIKISHANDAS AND ORS.

March 4, 1966

[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]

The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahai.f, Alienated Lands) Act, 1950 (! of 1951), ss. 3 and 4-Vesting of proprietary interest in land in State-Right to claim partition of 'home-farm' land whether affected by such vesting.

The appellant's suit for partition of his share of 'homt>-farm' land in the Berar area of Madhya Pradesh was partly decreed by the trial court.

Both sides filed appeals and the first appellate court also decid*1 in favour of the appellant. The High Court however dismissed the suit as infructuous on the ground that by virtue of the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals Alienated Lands) Act, 1950 the land stood vo; ted in the State. The appellant came to this Court.

HELD : (i) It is no doubt true that so far as the proprietary intercot in. the village is concerned the whole of it has now been acquired by the State and vests in it.

The acquisition of such interest by the State would not, however, put an end to the various rights of ex-proprietors in their capacity aa owners of property.

Thus every coharer could despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of bis share in the pre-existing proprietary rights of that v:Jlage so that he could lay claim to a proportionate extent of 'home-farm' land in the village. [819 A-CJ

(ii) A distinction has to be drawn between a suit brought by a proprietor in his character as proprietor for possession of property which the Jaw then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor.

If this distinction had been borne in mind by the High Court it would not have dismissed the present suit as wholly infructuous for a number of relief' had been sought by the plaintiff-appellant with respect to property wh'ch not vested in the State. [819 GJ

(iii) Tho village in question being still undivided every bit of land which was in the cultivating posse3sion of any of the co-shares in the village would be deemed to be in the poosession of the entire body of CCH1harers.

Tho same would apply to land in the possesoion of lessees or ordinary tenants. The right to enforce claims to a partition of this land was in no way affected by any of the provisions of the Act. [319 Dl

Chhot~ Khan v. Mohammad Obedullakhan, I.LR. [1953) Nag. 702 (F.B.), distinguished.

Rahmatullah Khan v. Mahabirsingh, I.L.R. [1955] Nag. 983 refer- H red to.

CIVIL APPELLATE JuR1smcnoN : Civil Appeals Nos. 1034 and 1035 of 1963. 815

Appeals from the judgment and decrees dated July 17, 1956 of the former Nagpur High Court in Appeals Nos. 574 and 575 and 608 of 1946 respectively.

S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No. 1034 of 1963).

W. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the appellant (in C. A. No. 1035 of 1963).

S. G. Patwardhan and M. R. K. Pillai, for respondent No. 4.

The Judgment of the Court was delivered by

Mudbolkar, J, Both these appeals arise out of a suit instituted by Himatrao, appellant in C. A. 1034 of 1963 for declaration that he is owner of 1 anna 5 pies share in the village Mozara, District Yeotmal and for partition and separate possession of the property that would fall to the aoresaid share. Certain other reliefs were also prayed for by him; but it is not necessary to refer to them for the purpose of deciding these appeals. To this suit he joined other co-sharers in the village as well as alienees from some of the co-sharers.

This suit was instituted by him on December 7, I 939 and was partially decreed on July 31, I 944 by the court of Sub-Judge, second class, Darwha. He preferred an appeal from the decree of the trial court. So also Pusaram one of the defendants to the partition suit preferred an appeal from the decree of the trial court and some other defendants preferred a cross-objection against that decree. The appeal of Himatrao was allowed while that of Pusaram was dismissed. The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellant's brother in C. A. 1035 of I 963 was dismissed.

Pusaram preferred two appeals before the High Court from the judgment of the lower appellate court, Second Appeal No. 574 of 1946 and Second Appeal No. 57& of 1946.

Laxman Vinayak preferred Second Appeal No. 608 of 1946.

All these appeals were heard together and disposed of by a common judgment. It was urged before the High Court on behalf of Pusaram that the suit for partition had become infructuous because of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. I of 1951) and, therefore, as held in Chhotc Khan v. Mohammad Obed11//akilan( 1) the suit should be dismissed. This contention was upheld by the High Court and an order to this effect was made in all the appeals.

The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereafter referred to as the Act for brevity) was enacted, as the long title thereof shows, to provide for the acquisition of the rights of proprietors in estates,

(I) I.LR. lt953J Nag. 702 (F.U).

HIMATRAO v. JAIKISHANDAS (Mudholkat, J.)

BIT

A mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith.

It was not intended to take away each and every kind of right possessed by a person in immovable property situate in such villages.

The vesting section is s. 3. Sub-section (I) thereof makes it clear that the rights which were acquired by the State were proprietary B rights save as otherwise provided in the Act, but not any other kind of right possessed by an owner of property. The consequences of vesting are dealt with by s. 4 of the Act, sub-s. (2) of which reads thus :

"Notwithstanding anything contained in sub-section (1), the proprietor shall continue to retain the possession C of his homestead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting."

It is not disputed on behalf of the respondents and indeed it cannot be disputed, that home-farm land is not affected by the provisions of the Act. In other words, such land was not acquired by the State but was left with the owners thereof. The definition of home-farm is given in s. 2 (g) of the Act. Clauses (i) and (ii} of this provision give the definition of home-farm in relation to the Central Provinces. But with that definition we are not concerned.

The village Mozara was not situate in that part of the former Madhya Pradesh which was within the area of the still earlier Central Provinces of the British times. It is situate in the part of the former,;' Madhya Pradesh which was and still is known as Berar. Clause (3) of that definition gives the definition of home-farm in relation to Berar. According to this definition all land included in holdings which is "(i) under the personal cultivation of the superior holder including land allowed to lie fallow in accordance with the usual agricultural practice; (ii) held by a lessee from the superior holder; and (iii) held by a tenant from the superior holder other than a specified tenant." The village Mozara was one of the villages in which Izara rights were granted under the Waste Land Rules of

1865. The grantees of the rights were known as Izardars or proprietors of the village and they were called superior holders. There were various classes of tenants in the Izara villages such as antealienation tenants, permanent tenants, tenants of antiquity and ordinary tenants. In addition, there were also lessees from the superior holders. The aforesaid definition excludes from the home-farm land all land held by ante-alienation tenants, permanent tenants and tenants of antiquity. The result of this is that land under the personal cultivation of the superior holder as weir as land held by a lessee or ordinary tenant from him became his. home-farm land. Quite often, as is the case here, the proprietary right in the village was held by a large number of persons and those

persons were thus co-sharers in the village.

Some of these villages were partitioned with the result that lands including lands in possession of tenants were separately allocated to the share of each cosharer. In many cases, however, there was no partition, hut various co-sharers by some sort of agreement used to retain possession of some lands in the villages, some of which they used to cultivate personally and grant leases over some of them or create tenancy rights over some of them. An arrangement of the latter kind was only tentative and subjc'Ct to the result of a perfect partition in strict accordance with the share of each co-sharer in the village.

It is the plaintiff's allegation that his case fell in the second category.

According to him, out of the original 16 annas interest in the Izara village an interest of 6 annas had already hecn separated from an interest of 10 annas and that in this 10 annas share he had an interest of I anna 5 pies.

No doubt, his father was actually in possession of 7 specified fields which had hecn sold in execution of a decree and later came in the possession of Pusaram. But this did not represent the full I anna 5 pies share to which his father was entitled or to which he is entitled. He admits that these 7 fields were sold in execution of the decree obtained by one Girdharilal against Basantrao, his father, in civil suit No. 43 of 1925. According to him, however, it is only these fields that were sold in execution and not his share in the lzara itself.

However, the sale certificates and receipts for possession mention not only these 7 fields hut also Basantrao's one anna 3 pies' share in the village.

His contention which was accepted by the trial court as well as by the , lower arpellate court was that the mention of I anna 3 pies' share in the warrant of attachment and receipt was the result of a fraud practised on the court by interested persons.

According to the trial court Himatrao's share is I anna 3 pies while according to the lower appellate court it was I anna 5 pies.

In the light of these findings a decree for partition and separate possession of I anna 5 pies' share in the village, that is, of land falling to the share of I anna 5 pies was granted by the lower appellate court to Himatrao. It may be mentioned that Himatrao had said in his plaint that the 7 fields which were sold in execution and which later came into possession of Pusaram should be allocated to Hamatrao's I anna 5 pies' share. The main contention of Pusaram in the second appeal before the High Court appears to have been that as a result of the previous execution sale he had become the owner not only of 7 fields but of Himatrao's share in the village.

Apart from the fact that the finding on each of the points of the two lower courts being one of fact was binding on the High Court, the High Court has erred in the view which it took of the provisions of the Act and of the decision in Chhote Khan's case(').

What we have, therefore, to consider is whether the High Court was right in throwing out the suit as infructuous. It is no doubt

(I) I.L.R. (1953] Nag. 7v2 (F.B.)

...

D -

HIMATRAO v. JAl, KISHANDAS i(Mudholkar,. J.) 819

true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act.

This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would he clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers.

The same would apply to land in possession of lessees or ordinary tenants. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khan's case(1). Suffice it to say that Chhote Khan's case(I) was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested m the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khan's case( I) in Rahmatullah Khan v. Mahabirsingh(Z). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous.

An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising

(1) l.L.R. (1953] Nag. 702 (F.B).

(2) I.LR. [1953] Nag. 983.

that there was no substance in that contention gave it up.

We, therefore, need say nothing more on the point.

For the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on their merits.

Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court.

In the result, therefore, we allow the appeals, set aside the decrees passed by the High Court and remit the entire suit to the High Court for decision on merits. The respondents should pay the costs in this Court and the High Court and the costs of the trial court and to be incurred hereinafter will be as in a partition suit.

Appeals allowed.

HIMATRAO

JAIKISHANDAS AND ORS

March 4, 1966

A. K. SARKAR, J.

R. MUDHOLKAR

R. S. BACHAWAT, JJ.

ss. 3 and 4

Madhya Pradesh

S. T. Desai

G. l. Sanghi

A. C. Ratnaparkhi

W. S. Barlingay

A. G. Ratnaparkhi

S. G. Patwardhan

M. R. K. Pillai

Mudbolkar

Himatrao

December 7, I 939

July 31, I 944

Pusaram

Himatrao

Jugalkishore

Jaykumar

Laxman Vinayak

s. 3

s. 4

s. 2

Mozara

Izara

Girdharilal

Basantrao

Hamatrao

Chhote Khan

India

Nagpur High Court

Patwardhan

Barlingay

S. T. Desai


STATE OF UITAR PRADESH

AKBAR AU KHAN

March 9, 1966

[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYA

TULLAH, J. C. SHAH AND S. M. SIKRI, JJ.j

Constitution of India, Art. 311-0rder terminating probation--comblned with order stopping promotion on the same findin11s end without • complying with Art. 311-stoppage of promotion later wnhdrawn-whether order terminating probation vitliated or stands by itself.

C U.P. Subordinate Revenue Execmive Service (Tehsildars) Rul-. 1944,

r. 12 and r. 14-scope of.

Prabation-whether confirmatiori follows in the absence of express order.

In April 1951, the respondent, who was a Naib Tehsildar in the U.P.

Civil Service, was selected for permanent promotion to the post of Tehsildar and in accordance with Rule 12 of the Subordinate Revenue Executive Service (Tehsildars) Rules, 1944, wu placed on probation for a period of two years.

On April 29, 1953, it was reported that ho had drawn excess travelling allowance in respect of certain journeys.

After an enquiry into the matter and after an opportunity had been given to the respondent to show cause why his probation should not be terminated, by an order of tho Governor dated August 13, 1957, the respondent was informed that his probation was term:nated and he was Deverted to the post of Naib Tehsildar. The order also stated that he was not to be considered for promotion for a period of seven years from the date of reversion.

Upon the respondent submitting a Memorial to the Governor against this order, the Governor passed another order on December 1, 1958, cancelling that part of the earliei< order which related to the stoppage of promotion of the respondent and confirming the termination of probation on the ground that the respondent "had during the probation not made sufficient use of his opportunities and had failed to givesatisfaction".

The reopondent then filed a petition under Article 226 challenging the orders of August 13, 1957, and December 1, 1958. This petition wa< allowed by the High Court on the ground that under Rule 12 of the 1944 Rules, the power to revert could be exercised either during or at the end of the period of probation and if no order was passed extending the period of probation, the respondent was deemed to have been confirmed in the new post; accordingly, the order terminating the probation was erroneous and the respondent's reversion being in the nature of a penalty imposed without conforming to the requirements of Article 311 of the Constitution, was liable to be quashed.

In appeal under the Letters Patent a Division Bench the High Court held that the respondent had not ceased to be a probationer on the expiry

of tho two-year probation period and the order of the learned Single Judge could not therefore bo sustained.

It held, however, that the two parts of the order dated August 13, 1957, being based on the same finding could not be dissociated and since the Governor had pa .. ed an order terminating the probation and had simultaneously therewith Imposed

822 SUPllBME

COURT

REPORTS

[1966] 3 S.CR.

upon the respondent puo.ishmel\t without complying with the requiremcnls of Article 311, the entire order had to be set aside. The High Court also held that the Governor by his later order sought to convert the earlier order of pllllishment into an order under Rule 14 (which provided for the terminatioo of probation in certain cirewnstances including cases where the probationer had failed to give satisfaction). But the Governor had no power to convert an order of punishment retrospectively nor could he appropriate to himself the funct:on of interpreting the oarlier order and Iayinii down that the order was made under Rule 14 and l\Ol an order of punishment.

On appeal t<> this Court.

HELD : The High Court was in error in holding that the order mado by the Governor determining the probation of the respondent infringed the protection of Article 311.

The Governor initially passed an order determining tbe probation and also paMCd an o'der stopping promotion. The Iauer part of the order which the Governor was incompetent to pass under Rule 14 did give rise to a justifiable grievance which the respondent could set up, but after that order was cancelled, tho respondent bad no cause for grievance.

[828 F-GJ

The order terminating probatioo was made under Rule 14 and continued to retain that character. The vice in the serond part of the order did not either before or after it was cancelled affect the validity of tho order terminating the respondent's probation. [828 HJ

By terminating his probation no penally was imposed on the respondent and it could not therefore be said that by passing the order of

December I, 1958. 1he Governor was seeking to convert the earlier order of punishment into an order under Rule 14 retrospectively. [828 GJ

The High Court had rightly held that the respondent did not cease to be a probationer on the expiry of two years. The scheme of the 1944 Rules was that confirmation m the post which a probationer is holding ooes not result merely from the expiry of the period of probation and so long as the order of conftnnation is not made the bolder of the

post remains a probat'oner. [825 HJ ' Unitho order of appointment slates that at the end of the period of probation the appointee will stand confirmed in the absence of an order to the contrary or unless there is a service rule in that behalf, an

exprei!\ order of confirmation is necessary to give the probationer a suh<. tantive right to the post held by him. [826 BJ

Chief Co11serva1or of Foresu, UP. Nainital v. D. A. Lyall : C.A. 259 of 1963 dated February 24, 1965; Sukhbans Sin11h v. The Stt>Je of Punjab: G A.1.R. 1!>62 S.C. 1711; and The Accountant General, Madhya Proderh, Gwalior v. Ben! Prasad Bhatnagar : C.A. 548 of 1962 dated January 23, 1964; n ferred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19 of 1965.

Appeal by special leave from the judgment and order dated -~ January 23. 1962 of the Allahabad High Court in Special Appeal H No. 532 of 1960.

0. P. Rana, for the appellant.

U.P. STATE v. !. KBAR ALI (Shah, J.)

a substantive vacancy shall be placed on probation. The period of probation shall be two years."

By r. 13 it is provided that every listed candidate whether appointed in a substantive vacancy or not, shall be required to pass such tests in departmental subjects and the languages of the Province and to undergo such training as the Governor may from time to time prescribe. Rule 14 provided :

"If it appears at any time during or at the end of the period of probation that a person appointed on probation has not made sufficient use of his opportunities or has failed to pass the departmental examination completely or if he has otherwise failed to give satisfaction, he may be reverted to his substantive appointment : Provided that the Board may extend the period of probation to three years. An extension beyond this period shall require the sanction of the Governor. Every extension whether granted by the Board or the Governor shall specify the exact date up to which it is granted."

Rule 15 provided for confirmat, on of a probationer at the end of the period of probation if he id passed the departmental examination for tahsildars completely, and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable.

The respondent was posted as a Tahsildar, and placed on probation for two years. The initial period of probation was liable to be extended by the Board of Revenue or by the Governor. There is no rule that on the expiry of the period of probation the probationer shall be deemed to have been confirmed in the post which he is holding as a probationer. If a probationer was found not to have made sufficient use of his opportunities or had failed to pass the departmental examination "completely" or if he had otherwise failed to give satisfaction he may be reverted to his substantive appointment : again confirmation in the appointment at the end of the period of probation could only be made if the probationer had passed the departmental examination for tahsildars "completely" and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable. It is common ground in this case that the respondent had not passed the departmental examination before 1955. He had therefore not qualified himself for confirmation.

The scheme of the rules is clear : confirmation in the post which a probationer is holding does not result merely from the H expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified !1!12Sup. Cl/66-7

SUPREME

COURT

REPORTS

(1966) 3 S.C.lt.

period and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no iubstantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right.

Where after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation. See Chief Consenator of Forests, U.P. Nainital v. D. A.

Lyall(•) : Sukhbans Sini:h v. The State of PW1jab{2) and The Accountant General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnai:ar(').

The ground on which Tandon, J., decided the petition cannot therefore be sustained.

But the High Court held that the respondent had been subjected to reduction in rank in violation or the guarantee under Art. 311 of the Constitution. In the view or the High Court the order dated August 13, 1957, determining the probation and withholding promotion for a period of seven years from the date of reversion being a composite punitive order, could not be made by the Governor without giving to the respondent reasonable opportunity of showing cause against the action proposed to be taken in regard to him. That view is strongly pressed upon us for acceptance. The proceeding against the respondent, it is true, commenced on a report which charged him with having submitted travelling allowance bills in respect of journeys not performed by him. But it is clear from the letter dated September 27, 1956, that the inquiry made against the respondent was only for the purpose of affording him an opportunity to show cause why hls "probation should not be terminated forthwith." The Governor of U.P. after considering the explanation submitted by the respondent, by order dated August 13, 1957, terminated the probation of the respondent, and further directed that he should not be <:ensidered for promotion for a period of seven years from the date of reversion. The second part of the order, it appears, was not given effect to, for even before December I, 1958 the respondent was posted as an officiating Tahsildar. By the second order dated December I, 1958, the Governor of U .P. cancelled the stoppage

(I) C.A. 259 of 1963 dcQdcd OD Feb. 24, 1965.

(2) A.l.R. 1962 S, C, 1711

(3) C.A. S48 of t962 decided OD Jan. 23, 1964.

• c

or promotion and only confirmed the order in so far as it related to termination of probation. We are unable to agree with the High Court that the first limb of the order dated August 13, 1957, was punitive in character. The inquiry against the respondent was held for the purpose of determining his probation. Under r. 14 of the Subordinate Revenue Executive Service (Tahsildar) Rules, 1944, the Governor is authorised to revert a person appointed on probation, if it appears at any time that the person has not made sufficient use of his opportunities or has failed to pass the departmental examination completely or has otherwise failed to give satisfaction. An officer who has submitted travelling allowance bills in respect of journeys not undertaken by him may not unreasonably be regarded as one who "has failed to give satisfaction".

It cannot be assumed merely because an inquiry is directed to ascertain whether a person appointed on probation has failed to give satisfaction, that it is intended to hold an inquiry with a view to impose punishment against that person. Inquiry against the respondent which was commenced for ascertaining whether he should be continued on probation or whether his probation should be terminated, did not change its character merely because the Governor made an order which he could not make in that inquiry. There is nothing to show that the scope of the inquiry was at any time extended. The order withholding promotion was one which the Governor was in the inquiry incompetent to pass, and apparently the order was not given effect to, and when presumably his attention was drawn to the irregularity that part of the order was cancelled.

The High Court assumed that in the circumstances of the case under r. 14 no inquiry could be made against the respondent before termination of probation and that the Governor held an inquiry under r. 55(3) of the Civil Services (Classification, Control and Appeal) Rules, and in making that inquiry the State authorities did not act in conformity with the rules and the constitutional safeguards. But the assumption made by the High Court cannot be accepted.

In our judgment the inquiry was commenced under r. 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, and never lost that character. Reversion to a substantive appointment can be directed under r. 14 in the conditions mentioned therein, and for ascertaining the existence or otherwise of those conditions, the appointing authority may hold some inquiry. Mere holding of an inquiry is therefore not a ground for holding that the order which followed as a result of the inquiry was not made under r. 14.

The High Court also held that inquiries under r. 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, and r. 55(3) of the Civil Services (Classification, Control and Appeal) Rules which apply to the Provincial Services apply to different

SUPREME COU&T REPORTS

(1966] 3 S.C.R.

situations. Rule 55(3) at the material time dealt with probationers and provided :

"This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary government servant, for any specific fault or on account of his unsuitability for the service. In such cases, the probationer or temporary government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority."

Clauses (I) & (2) deal with the dismissal, removal or reduction in rank of a member of a Service, but those clauses are expressly made inapplicable by the first sentence of cl. (3) of r. 55 to termination of employment of a probationer and by the second part the procedure to be followed in the inquiry for determination of probation is prescribed. Rule 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, confers power upon the appointing authority to terminate probation in certain eventualities.

Under that rule an inquiry may be made, if the appointing authority thinks it fit to do so and to such an inquiry r. 55(3) which primarily deals with the procedure to be followed before an order is passed determining probation may apply.

We arc therefore of the view that the High Court was in error in holding that the order made by the Governor determining the probation of the respondent infringed the protection of Art. 311.

The Governor initially passed an order determining the probation and also passed an order stopping promotion. The latter part of the order which the Governor was incompetent to pass under r. 14 did give rise to a justifiable grievance which the respondent could set up, but after that order was cancelled the respondent had no cause for grievance. It cannot be said that by terminating the probation any penalty was imposed : and if that be the correct view the opinion expressed by the High Court that by passing the order dated Decemlier !, 1958 the Governor was seeking to convert the earlier order of punishment into an order under r. 14 of the Subordinate Revenue Executive Service (Tahsi!dars) Rules, 1944 retrospectively, cannot be accepted. The order terminating probation was made under r. 14 and continued to retain that character. The vice in the second part of the order did not either before or after it was cancelled affect the validity of the order terminating the respondent's probation.

 A We think that the respondent was ill-advised in prosecuting the petition even after he had been appointed an officiating Tahsildar.

The appeal is allowed and the order passed by the High Court set aside. The petition filed by the respondent must be dismissed.

In the circumstances of the case, we direct that there will be no B order as to costs throughout.

Appeal allowed .

STATE OF UITAR PRADESH

March 9, 1966

P. B. GAJENDRAGADKAR

K. N. WANCHOO

C. SHAH

S. M. SIKRI, JJ

Constitution of India

Art. 311

Art. 311

April 29, 1953

August 13, 1957

December 1, 1958

Article 226

Article 311

Article 311

Article 311

P. Rana

Shah

Tandon

Art. 311

27, 1956

U.P.

Art. 311

Decemlier !, 1958