BINNY LID.

'IllEIR WORKMEN AND ANR.

February 17, 1972

(C. A. VAIDIALINGAM AND G. K. MITTER, Ji.]

Industrial Dwputes Act (14 of 1947), s. 10(1)-Dlsmlssal of. employee-Natural Justice--Opportµnit:y to cross examine witness lJ.Ot given- Reference by Government, after refusal to do so earlier-Competence lndustnal dispute-Jurisdiction to proceed after Union withdraws support of workman-Re-instatement, when may be ordered.

The r .. pondent was alleged to have behaved insolently towards .a superior and the matter was enquired into by the Manager of the appellant-company. After the ex=ination of the witnesses, one of the appellant's witnesses was recalled by the Manager to give any relevant information regarding the respondent. The witness stated that the reson dent had been absenting himself without leave on . a number of occasions and that a month back also he had behaved in an insolent manner thou, ih no disciplinary act.ion was then , taken. At that stage, the respondent intervened and said that it was a case of misunderstanding due to his habit Of talking in a loud voice. :rhe Manager did not ask the respondent if he wanted to cross examine the witness on his further testimony (though with respect to each witness earlier, he asked the respondent if he wanted to cross examine), or whether. he had any explanation to Offer, but passed an order finding the respondent guilty of the charge. In' the order he expressly recorded that the respondent Ind beien guilty of abl!Onting himself without leave and that 'muc)l more than this he behaved

in an . insolent manner earlier' and that in those circumstances he was not a person fit to be retained in service, The Manall'J:r dismisoecl the respondent. The dispute whether the appellant was justified in tehninating tlr: &ervices Gf five workmen including the spondent, was referred

to the Labour Court. During the pendency of the pfoceedings there was a settlement of the disputes between the workers' Union and the manaae- . ment with regard to all the employees. exc.ept the spondent, and the Union withdrew .its support of the respondent.

The Labour Court, while accepting the finding of the domestic tribu- .nal that the respondent was guilty of misconduct, set aside the order of termination and ordered re'instatement on the ground that the respon- deht Wa!i not given an opportunity' to cross.ex.amine the witness or .. explain his testimony 'regarding the respondent';, past conduct.

Jn appeal to this Court, it was contended that (I) the respondent never asked for the . opportunity and did not make a grievance of the denial of the opportunity, (2) the Governm, ent, having refused to refer the dispute on two previous occasions the reference. was in"t-alid as there was no material to show why the Government did Ygo ultimately, (3) tpe Labour Court had no jurisdiction to proceed with the matter after the Union ceased to sponsor the respondent's case, and ( 4) it was not a fit case for re-instatement in view of the long lapse of time between the date• , of dismissal and reference and that, if at Ill, . compensation 8hould have been awarded in lieu orre-instatement'. ·

Dismissing the appea~

HELD : ( 1) (a) The record of the domestic tribunal demonstrates that the respondent was not given a chance either to cross-examine the witness or to explain the evidence, regarding his past conduct. The intervention of the respondent could not be construed as his explanation or that it amounted to an admission of the truth of the evidence. f,524 A-El

(b)Although the enquiry Officer found that the resp0ndent had behaved insolently_ towards his supelrior, he did not come to the conclusion that h1& solitary act of indiscipline was sufficient to warrant dismissal. fhe language of the order shows that it was the cumulative effect of the hpses in the past that resulted in the order. It was not a case where two separate charges had been framed against a delinquent and that they were of such a serious nature that the finding of guilt on any one would warrant dismissal. [526 B-E] '

Railway Board v. Niranjan Singh, [1969] 3 S.C.R • .548, India Marine Service v. Their Workmen, [1963] 1 L.L.J. 122, Tata Oil Mills Co. v.

Its Workmen, [1963] 2 L.L.J. 78, referred to.

(2) (a) Under s. 10(1) of the Industrial Disputes Ac~ 1947, a refe• rence may be made at any time when the appropriare Government is of opinion that any industrial dispute exists or is apprehended. From the mere fact that on the previous occasions Government had taken the view that no reference was called for, it did not follow that tho Government could not thereafter change its mind. [527 A-El

(bJ Further, the point could only be decided either in a proceeding to which the Governnt was a party or when the cour1; was in possession of all available material relating to the dispute. [527 E-F]

(c) It is not necessary that the order of reference must, on the face of it, show what impelled the Govmment to depart from its earlier decision.

No., inference can be drawn against the Government from the absence ofsuch marerial in the order. [~27 F-GJ

(3 i A dispute which hd already b, een referred by Government does not ceast to be one in respect of a portion of it, merely because the Union did not choose to repre,., nt the case of a particular dismissed employee.

If there was an industrial dispure at the time of reference it would not cease to be one merely because the claims of some of the dismissed employees were settled by mutual agreement. (528 B-D]

( 4 )(a) Mere lapse of time is not enough to IO':ld the Labour Court to hold that there should be no re-instarement.

The management must show that any re-instatement will callse dislocation Of work. The Labour Court would t!Jon have taken the circumstances into consideration before passing its order.

But, in thC present c.ase, theTe were no uch ci.rcum stances. !529 A-CJ

Shalimar Works Ltd. v. Workmen, ,[1960] I S.C.R. ISO, 159, referred to.

(b) It is a settled principle that re-instatement should not bie ordered when \he management justifiably alleges that they have ceaaed to have confidence in the dismissed employee but there is no such allegation in the present caae.

Where there is no such allegation the Labour

Court must consider all the circumstances and decide whether justice and A fair play require that re-instatement should be ordered. [529 D-Fl

Hindustan Steels v. A. K. Roy, [1970] 1 L.L.J. 228, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1851 of 1967. .

Appeal by special leave from the award dated October 9, 1967 of the Labour Court, Bangalore in Reference No. 86 of 1966.

0. f. Malhotra and D. N. Gupta, for the appellant.

M. Kuppuswamy, in person, for resJ?O!!dent No. 2.

The Judgment of the Court was delivered by

Mitter, J. Thjs is an appeal by special Ieiive from an award of the Labour CoUrt, Bangalore dated October 9, 1967 where

the dispute referred, for adjudication was, "whether the Management oi the Bangalm; e Woollen, Cotton and Silk Mills Ltd. (hereinafter referred to aS the 'Company') was justified in terminating D the services of five workmen including one Kuppuswamy ?".

During the course of the proceedings the Binny Mills Labour Association, Bengal, a registered trade union, sponsoring the cause of the dismissed workmen entered into a settlement with the management whereby the management agreed to reinstate one Rama- E. nadha and gave up its demand for reinstatement of three others excluding Kuppuswamy. The Union however withdrew its support to Kuppuswamy from the date of the settlement and the latter stated before the Labour Court that he would conduct his own case.

The facts relating to the dismissal of Kuppuswamy are as follows. He is alleged to have behaved in an insolent manner towards F the Warehouse Master, his superior officer, on 3rd November, 1963 in respect whereof he was given a charge sheet on 6th November, 1963 the complaint against him being that he was guilty of misconduct falling under Standing Order No. 13 ( 11) i.e; act subversive to discipline.

He submitted a written explanation on 8th November. An enquiry was held by the Mill Manager on 10th G November and on the same day the. Mill Manager came to the conclusion that the charge against Kuppuswamy had been proved and taking into account the gravit; Y of the misconduct and his past conduct the Mill Mabager found him not a fit person to . remain in the employment of the company and terminated his services.

Before the Labour Court Kuppuswamy filed his statement of claim, H the management its statement of objections followed by a rejoinder of Kuppuswamy. Kuppuswamy examined himself and one Shadgopalan was eiramined on behalf of the management. The'

' '

A records_of the domestic enquiry were marked illl evidence by common consent. The Lal; iour Court while accepting the finding of

the domestic tribunal that Kuppuswamy was guilty of the misconduct alleged against him was not inclined to retain the order of termination of his service mainly on the ground that he was not given an opportunity to challenge the statement of one Veerarag- B havan regarding his past repord of service nor wa:s .he given any

opportunity to say whether Veeraraghavan's state!llent was true or false or reasonably explainable. According to the Tribunal the enquiry officer :

"might have thought fit to pass. this very order of termination, even without going into the past record of Kuppuswamy.

But the possibility of his awarding a lesser punishment also cannot be ruled out, altogether."

We have therefore to examine what happened at the enquiry stage to ascertain whether the labour court was right in acting in D e manner it did. The charge against Kuppuswamy formula!¢ by the manager was that :

"on the 3rd of this month at about 9.15 a.m. Kuppuswamy had behaved in an insolent manner towards the Ware.house Master, Mr. Veeraraghavan by shouting at him and creating a disorderly scene in the Warehouse E office."

The Manager reminded Kuppuswamy of his written explanation and asked him whether he had anything to add. Kuppuswamy stated that he had stocked a number of pieces which had mounted so high that he apprehended that the same might fall over and F he therefore started stocking the pieces in between the pieces already mounted before_ the examiners.

The Manager reminded him that the charge against him was not about stacking pieces but of behaving in an insolent manner towards the Warehouse Manager. Kuppuswamy was asked whether he wanted to call anyone as witness and Kuppuswamy answered in the negative. Veerarag- G havan was then examined by the Manager. According to Veeraraghavan's statement, Kuppuswamy had disregarded the instructions given to him by one Allam, Assistant Manager by stacking the pieces between the examiners in a manner which would obstruct the free passage for the examiners and that he did deliberately.

Kµppuswamy when produced before the Warehouse Master by H Allam is alleged to have flared up and shouted at him saying :

"You do not find out our difficulty.

You do not listen to our grievances."

He is further alleged to have shouted ai the top of his voice :

"You think we are all slaves ? You do not know how to treat us.

Are we not human beings ?"

It was also said that not only was Kuppuswamy was shouting but he was also gesticulating with his hands towards the Warehouse master who found it impossible to.control Kuppuswamy and immediately reported the matter to tlie Mill Manager.

Asked whether he had any questions to put to V eeraraghavan, Kuppuswamy answered in the negative and explained that it was his habit to speak in a loud voice. According to him Veeraraghavan did not bear him any enmity. To the next witr1ess for the Management, Allam, Kuppuswamy put only one question, namely, whether he (Kuppuswamy) was not presenting his view of the case to the warehouse master. He had no further questions to put to Allam and stated that Allam did not bear him any enmity.

The third witness was one Murty who supported the version given by Veeraraghavan. To Murty also Kuppuswamy put only one question and denied that Murty bore him any enmity.

Aftler these three witnesses were examined, the Manager called upon Veeraraghavan to give his remark.s about Kuppuswamy's conduct and ability and any other relevant information in respect of the respondent whereupon Veeraraghavan stated that Kuppuswamy had been absent without leave or permission on a number of occasions and that about a month back he had behaved in a manner similar to the one with which he was charged but no disciplinary action had been taken against him on the intercession of one Ra.iagopal. When Veeraraghavan was making this statement, Kuppuswamy intervened and said :

"That was beca.use of a misunderstanding as it .is my habit to speak in a loud voice."

The record of the proceedipgs shows that Veeraraghavan thereafter went out. The Manager did not ask Kuppuswamy on this occasion as to whether he wanted to put any question to Veeraraghavan on the further testimony given by him or whether he had any explanation to offer.

On the spot the Manager passed his order wherein after reciting the facts of the case he recorded that he found Kuppuswamy guilty of misconduct with which he was charged on the testimony of three witnesses. A note was also made that the misconduct was aggravated in view of the fact that the insolent behaviour was unprovoked and there were no extenuating circumstances in the case. The last two paragraphs of the order read:

"The only question which remains for me is to decide what punishment should be given to you. While looking into your service records, I find that you are

Bll'!NY LTD. v. WORKMEN (Mitter, I.)

educated up to S.S.L.C.

Being an educated person a better behaviour is expected of you. Further you herd the Departmental Officer inform me during the course of this enquiry that y0u had been warned b'y him for absence for 3 days without leave or permission and that you had availed within a span of irbout 6 months, 25 days sick leave No. 9. Much more than all of these, he had let you off only a month earlier for behaving insolently towards him purely because of reque&t of the departmental workers' representative.

Under the circumstances, I do not consider that you are a fit person to remain in the employ of the Company and I therefore terminate your services with immediate effect on payment of one month's wages and dearness allowance in lieu of notice."

The question before us is, whether on the facts and circum~ stances of the case, the Labour Court was justified in exercising its discretion in ordering reinstatement specially when he himself had recorded in the course of his award that he accepted the finding tliat Kuppuswamy was guilty of the misconduct alleged against him in the charge sheet

The points urged before us were as follows :-

(1) The Labour Court had gone wrong in setting aside the order of dismissal on the ground which was not put forward by the workman himself, specially because he never asked for an. oppartunity to cross-examine V eeraraghavan on his last statement and had never taken the point that he had been denied an opportunity to explain what was put forward against him by Veeraraghavan in his last statement before the enquiry officer. (2) The order of reference was invalid inasmuch as , Government had on previous occasions refused to refer the disputie for adjudication and there were no material on record to show that persuaded the Government ultimately to do so. (3) The Labour Court should not have proceeded with the reference after the Union had ceased to sponsor the case of Kuppuswamy and lefti him to.his fate.

(4) Reinstatement should not have been ordered in view of the long lapse between the date of dismissal alild the order of reference; and ·(5) The order of reinstatement was also not justified in this case inasmuch as the breach of discipline of which Kuppuswamy was found guilty was of a serious character and the justice of the case required at the most that compensation should be .awarded tp him in place of reinstatement.

In our view none of the contentions have any merit. As re-· gards the first point, the record made by the enquiry officer amply

demonstrates that Kuppuswamy was not given a chance to crossexamine V eeraraghavan on his further.statement nor was he asked to state'anything by•way of exp!anation. To our mind the record. of the enquiry officer seems to suggest that he was under the impre, sion that he could look into the past record of the delinquent without affording him an opportunity of explanation or testing by cross-examination what was alleged against him. On each occasion when a person was examined on behalf of the management, the Manager was at pains to ask the delinquent whether he wanted to put any questions. But when the evidence was given about his absenting himself without leave or permission and specially when he was accused of a similar insolent conduct in the past, the least he could have done was. to have asked Kuppuswamy whether he had any question to put on the further evidence given and whether he had anything to say for himself in respect of what was alleged.

We were asked to record Kuppuswamy's intervention "tha~ it was his habit to speak in the loud voi~" as and by way of his explanation and also an10unting to an admission of the truth of the statement of Veeraraghavan. We find ourselves unable to accept his view. It appears clear to us that the enquiry officer was alive to the fact that the delinquent had to be given an opportunity of cross-examining a witness on his statement and that it was necessary also for him to find out whether the delinquent was accusing the witness of any bias or pre-conceived notion.

Several decisions were cited to us in support of the proposition put forward by 0unsel that it was for the delinquent to raise an objection when he found a point being made .against him without an opportunity to him to give evidence by way of explanation. In our view each case must depend on its own facts

and the circumstances of a par!icular case may show that no prejudice had been caused to the delinquent by any irregularity sought to be availed of by him.

In The Management of Delhi Cloth & F General Mills Co. Ltd. v. Kalu Ram(I) this Court took the view that the Tribunal whose order was appealed against had gone wrong in taking the view that the enquiry officer had conducted the enquiry unfairly in that the respondent was not given an opportunity to cross-examine the expert of the appellant with the help of an expert of his own.

In that case the respondent had been charged with using abusive, defamatory and threatening language in a letter to the officer in charge of his department without putting his name or signature thereto.

In the domestic enquiry the expert produced by the respondent was allowed to be cross-examined by the expert previously examined on behalf of the management but the expert produced on behalf of the appellant was only cross-examined b:i: the respondent himself.

This

Cour~ noted tha\ the Tribunal had not found that the respondent

(I) Civil Appeal No. 195of1964decided on 9th April, 1965.

ever demanded that he should be permitted to cross-examine the expert produced on behalf of the appellant with the help of an expert of his own and there had been no refusal of any such request.

According to this Court :

"If the respondent did not ask for an opportunity to cross-examine the appellant's expert with the help of an expert because he-had no legdl advice, that default on his part cann.ot mean that the enquiry officer violated the principles of natural .justice.

Nor the fact that crossexamination by the respondent could not be of the same quality as the cross-examination with the aid of an expert meari that the enquiry officer was guilty of breach of any of the principles of natural justice."

We fail to see how this case helps the appellant before us at all.

It was argued _gn behalf of the appellant that once the Labour Court accepts the finding of the domestic tribunal that the delinquent is guilty of the misconduct alleged against him the fact that D the order of termination of service mentions a similar conduct in the past on which no charge had been raised' should not make any difference to the result. Our attention was drawn to the decision of this Court in Railway Board v. Nlranjan Singh(') where the enquiry committee after investigating the charges had come to the conclusion that although the first charge was not E proved yond all reasonable doubt the respondent was guilty of the second charge. The Disciplinary authority, the General Manager, accepted not only the findings of the second charge, but differing from the conclusion on the first charge tentatively took the view that the respondent was guilty of that charge as well and after the issue of a show cause notice and the rejection of his explana- F tion directed that the respondent be removed from service. The High Court set aside. the order of dismissal on a writ petition under Art. 226 taking the view that.

"where an order such as an order of detention or removal from service is based on a number of grounds, and one or more of these grounds disappear it becomes G difficult to uphold the order when it is not. clear to what extent it was based on the ground found to be bad."

It was urged that the Court should not have assumed that the Genera! Manager would have inflicted the punishment of dismissal solely on the basis of the second charge and consequently the punishment should not be sustained if it was held that one of the H two charges on the bllSiS of which it was imposed was unsustainable. This was rejected following the decision in State of Orissa

-(!) [1969] 3 S.C.R. 548.

v. Bidyabhan Mahapatra(') where it was said that if an order A in an enquiry under Art. 311 can be supported on any finding as substantial misdemeanour for which punishment imposed can lawfully be given, it is not for the Court to oonsider whether that ground alone would have weighed with the authority in imposing the punishment in question. In our view that principle can have no application to the facts of this case.

Although the enquiry B officer found in fact that the respondent had behaved insolently towards the Warehouse Master, he did not come to the conclusion that this act of indiscipline on a solitary occasion W3S sufficient to warrant an order of dismissal.

He expressly recorded that the delinquent had been guilty of absenting himself without leave, that he had taken 25 days'sick leave in a span of six months C and that "much more than all this, he (the warehouse master) had let Kuppuswamy off only a month earlier for behaviour insolently towards him purely because of request of the departmental workers' representative" and it is in these circumstances that the Manager did not consider the delinquent to be a person fit to be retained in service. 'J]:le language of the order leaves no dou)>t in our mind that it was the cumulative effect of the lapses on the D part of the respondent_ that had resulted in the order of termination of service.

It was not a case where two separate chargoes had been framed against the delinquent and they were of such a. serious nature that the finding of guilt on any one would warrant the dismissal of the delinquent.from service.

In our view the decision in India Marine Service v. Their E Workmen(') does not help the appellant.

There the order of enquiry officer extracted at page 124 right hand column clearly shows that the order of dismissal was based on one of the charges and it was only after recording this decision that the enquiiy officer went on to note "in taking the action against you e have also taken into consideration your past record which is very much F against you."

The case of Tata Oil Mills Co. v. Its Workmen(') is equally unhelpful to the appellant. There this Court found itself unab!e to sustah1 the finding of the Industrial Tribunal that the domestic enquiry was unfair because. tl1e concerned workman had not been given sufficient time to submit his explanation.

R'l:amining the facts of the case this Court concluded that "the position appears to be that on the two points on which Gupta could have crossexamined Mr. Banerjee if the report had been given to him have been tested in cross.examination, and so we feel no hesitation in holding that the failure to supply Mr. Banerjee's report to Gupta has not caused any prejudice to Gupta in ihe present case."

(I) [1962] Supp, I. S.C.R. 648.

(2) [196311L.L.1.122.

(3) [1963]2 L.L.1. 78

The submission that the order of reference js invalid as the Government had no grounds or ma11erial to form the opinion about the existence of a dispute in order to enable it to make an order under s. 10(1) is one which does no~ merit any consideration. In the absence of the Government from the array of the parties it is not; possibfo to come to any finding as to whether there were any such material or not. But the mere facU that on two previous occasions Government had taken the view that no reference was called for does not entitle us to conclude that there could be no cause for reference in 1966. The enquiry was held on 10th November 1963 and the order. of termination of service was made the very same day. The letter of the Under Secretary to Government._ I.:abqur Department dated August 17, 1964 shows that out of the five workmen in question Government considered the cases of dismissal of three as quite old as having taken place at different times in 1961, 1962 and 1963 and as such did not deserve consideration. With regard to the other two, namely, Ramanatha and Kuppuswamy Government was of the view that they had been employed in the year 1963 ivself and had put in very short periods of service and as they had been dismissed -after proper enquiry no reference was called for.

The second loiter is dated August 21, 1965 where the Under Secretary merely stated that in view of the decision already taken, the dispu11e in question did not merit reference for adjudication. From the above it does not follow that Govenµnent could not thereafter either change its mind or make an order of reference on (resh material before it.

Under s. 10(1) of the Industrial Dispu11es Act a reference may be made at any time whenever the appropriate Government is of opinion that any industrial dispute exists or is apprehended. At any rate the point could only be canvassed either ; n a proceeding to ':Vhich the Government was a party or in one where tlhe Court v'"- in possession of all the available material relating to the dispute. In the absence of such material the point must be decide4 against the appellant.

In our view 1lhe further submission that the order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof the Court must hold that there were no reasons for such a change of opinion is without any force.

The next submission was that the dispute with regard to the dismissal of Kuppuswamy ceased to be an industrial dispute after the Union ceased to sponsor his case.

As already mentioned, during the pendency of the proceedings before the Labour Court, there was a settlement of the disputes between the Union and the

Management with ree; ard. _to all !he employees other than Ku1>- puswamy.

The memorandum of settlement under section 12(3) of the Industrial Disputes Act whkh was put in on the 24th June 1967 shows that the Union had proposed that in consideration of their withdrawal of the cases of Madaiah, Ekambaram and

Devaiah, Ramanatha and Kuppuswamy may be taken back into A service but the Management did not accept the proposal but offered to take back Ramanatha only, which was accepted by the Union.

The Union further unqertook no~ to represe, tit Kuppuswamy's case or prosecute it before the Labour Court in view of this overall settlement with the Management. It is not necessary for us to consider whether s. 2A of the Act which was introduced in B the statute in 1965 has any application to the facts before us.

We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of re- C ferences it would not ce'!CSe to be one merely because the claim of some of the dismissed employees was settled by mutual agreement.

The las~ point urged before us was that on the facts of the case the Labour Court should not have directed reinstatement but should have allowed compensation to Kuppuswamy in view D of the following factors.-(!) Kuppuswamy had been dismissed because of gross indiscipline and it was not proper to order re,_ instatement of a person who 1night indulge in similar acts in the future. ( 2) Reinstatement should not have been ordered four years after the dismissal as the Management had already made other arrangements for the work which was formerly being done E by Kuppuswamy executed through some other workman.

On the first of the above points our attention was drawn to the decision in Shalimar Works Limited v. Their Workmen(').

There the facts were that the company had discharged a large number of workmen in April 1948 and the first order of reference was made in October J 952. The case of no less than 250 workmen was involved in the dispute and this Court observed that : F

" .... if for any reason there had been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. . . .

G In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry. . "

On this view the Court felt that the Appellate Tribunal should not have ordered the reinstatement of even the 15 workmen as H their case was exactly the same as that of a large number of

, (I) [1960] I S.C.R. ISO, 159.

others.

In our view what was said in the Shalimar W arks' case cannot be repeated in the case before us.

The appellant pursues an industry with_ a large number of workmen and we cannot imagine any serious dislocation of work by the order of reinstatement of one workman. Normally it will be months before ari order of reference is made by .Government and one or two years elapse in almost all C3$f'S before the adjudication by an Industrial Tribunal is complete. If mere lapse of time be enough to lead the Industrial Tribunal to hold that there should be no reinstatement of service the power of reinstatement will become obsolete.

In any case the Management must try to show thae reinstatement will cause dislocation of work and the Tribunal must take that into consideratiion. In this case we find no such compelling circumstances.

On the question as to whether compensation should have been awarded in lieu of reinstatement, we were referred to the case of Hindustan Steels v. A. K. Roy(') where it was said that it was in the discretion of the tribunal to make an order of reinstatement D or to award compensation in lieu thereof and it is only when the tribunal exercises its jurisdiction in disregard of the circum~ stances or the relevant principles laid down iin regard thereto that this Court would interfere with their discretion.

It has become almost a sett; ted principJe that reinstatement should be awarded where the management justifiably alleges that tJiey have ceased to E

have confidence in the dismissed employee.

In other cases the Tribunal must consider carefully the circumstances of the case to come to a finding that justice and fairplay require that reinstatement should be awarded.

In this case, there is no allegation that the Management )!ad lost confidence in Kuppuswamy. It is

extremely doubtfu] whether the Manager would have ordered dismissal if Veeraraghavan had not drawn his attention to the past lapses of the respondent about which he was not allowed to have a say.

We do not therefore feel that we must interfere with the award of reinstatement of the respondent.

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

V.P.S.

Appeal dismissed.

(I) [1970] I L.L.J. 228.

BINNY LID

WORKMEN AND ANR

February 17, 1972

G. K. MITTER

Industrial Dwputes Act

s. 10(1)

s. 10(1)

CIVIL APPELLATE JURISDICTION

f. Malhotra

D. N. Gupta

M. Kuppuswamy

Mitter

Kuppuswamy

Binny Mills Labour Association, Bengal

Rama- E. nadha

10th G November

Shadgopalan

Veerarag- B havan

Veeraraghavan

Veerarag- G havan

Allam

Kµppuswamy

H Allam

V eeraraghavan

Murty

Murty

Ra.iagopal

crossexamine V eeraraghavan

9th April, 1965

Art. 226

[1969] 3 S.C.R. 548

Bidyabhan Mahapatra

Art. 311

Gupta

Banerjee

s. 10(1)

10th November 1963

August 17, 1964

Ramanatha

Kuppuswamy Government

August 21, 1965

s. 10(1)

puswamy

section 12(3)

Industrial Disputes Act

24th June 1967

Madaiah

Ekambaram

Devaiah

s. 2A


~30

i, ENIOR SUPERINTENDENT, R.M.S. COCHIN & ANR.

v ..

K. V. GOPINATH, SORTER

'February 18, 1972

[C. A. VA!DIALINGAM AND G. K. MITTER, JJ.] B

Civil Servant-Central Services (Temporary Sere) Rules 1965, , r. 5(1) (b) proviso-Scope of.

The strvices of tOO respondent, a temporary government servant, were lerminated on a particular day, but his sla<Y, and allowane<ls due tiH then were not paid on that date.

The High Court held that the termmallon , was not in accordance with the provisions of r. S of the Central Service C {Temporary Service) Rules, 1965.

Dismissing the appeal to this Court,

HELD: (1) Rule 5(!)(a) gives the Government swell as the employ~ a right to put an end to the service by a notice in writing.

Under r. l(b) the period prescribed for such notice is one month. The proviso to the uh-rule however gives the Government an option not to retain the D employee in service till the expiry of the period of the notice; but to be effective, the termination of seryice has to be simultaneous with the payment to the employee of whatever is due to him. The operative words of the proviso are 'the services of any such government servant may be terminated forthwith by payment', showing that .the payment is a condition of the termination of service forthwith. [532 D-FJ

(2) Since the words used are plain and unambious they must be .~· construed in their ordiOary sense without any considerations of policr,..--E

[532 F-GJ -

(3) There will always b> some time during whic.h the authority deliberates over the matter and makes up his mind, and within tb:.i.t time, directions can be given that the pay and allowances of the govemment ocrvant should be calculated so that they could 1:e offered to the emp1oye_e at the time when the order of termination is served on him. 'There 1s no difficulty in the calculation because the payment is to be made 'at F the same rates at which he was drawing them immediately before the termination of his services.' Therefore, there is no merit in the contention that it would be impossible for the authorities to give effect to th~ provisv 1f payment was to be µiade simultaneously with the servioo on the employee of the order of termination. [532 H; 533 A-DJ

( 4) The words of the rule construed in the State of U.P. v. Dinanath Rni, C.A. No. 1734/68 dt. 11-10-1968, though some what similar to the G words of r. 5 only entitled the employee to pay fcir the period of the notice but did not lay down any condition as tO when tfu payment was to be made. [534 F-GJ

CIVIL APPELLATE JURISDICTION : Civil Aopea] No. 1706 of 1971. .

 Appeal by special leave from the judgment and order dated H January 5, 1971 of the Kerala High Court in Civil Writ Appeal No. 534 of 1969. ·

!!.. M. S, v, K. V. GOPINAT!I (Mitter, J.) 531

R. H. Dhebar, for the appellants.

A. S. R. Chari, A. K. Gupta, S. C~ Agarwal and V. J. Francis, for the respondent.

The Judgment of the Court was delivered by

Mitter, J, The only question involved in this appeal is, whether the order dated Septembet' 25, 1968 terminating the services Of the respondent, a temporary Government servant, was in accordance with the provisions of Rule 5 of the Central Service (Temporary Service) Rules 1965, hereinafter referred to as the 'Rules'.

The services of the respondent ap)'(!ar to have been terminated on the basis of the directive containe:I in a circular dated 12th September 1968 that action should be taken against every employee who absented himself from duty on 19th September,

1968. No contention was raised at any stage that no action could . be taken under Rule 5. This said rule reads :-

"5. Termination of temporary service . ..c::

(I) (a) The services of a temporary Government servant who is. no' in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;

(b) the period of such notice shall be one month;

P.rovided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.

xx xx xx xx."

It. is admitted that payment of the salary and allowances was not 'made to the respondent on 25th September, 1968.

According to the respondent the disbursing officer was intimated about the 1 order of termination only on the 28th September when he was supplied with the necessary funds. As against this it was alleged in the counter affidavit to the writ petition filed by the respondent in the High Court that one month's pay and allowances had been sent by money order to the respondent. The question is,

whether the order of termination of service can be sustained because of absence of payment on the 25th September. The order was quashed by a learned single Judge of the High Court and this was upheld by a Division Bench in appeal.

Apart from the authorities which were cited at the Bar, it appears to us that the rule is capable of the only interpretation that the order of termination can be upheld if the requisite mount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order.

Rule S(l)(a) gives the Government as well as the employee a right to put an end to the service by a notice in writing.

Under .JUie 1 (b) the period prescribed for such notice is one month.

The proviso to sub-r. (b) however gives the Government an additional right in that it gives an option to the Government not to retain the services of the employee till the expiry of the period of _the illOtice : if it so chooses to terminate the service at any time it can do so forthwith "by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing them immediately before the termination of his services, or, as the . case may be, for the .!leriod by which such notice falls short of. one month." At the _risk of repetition, y; e may note that the operative words of the proviso are "the services of any such Government servant may be terminated forthwith by payment". To put the matter in a nutshell, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. We need not pause to consider the question as to what would be the effect if there was a bonafide mistake as to the amount which is to be paid.

The rule does not lend itself to the interpretation that the termination of service becon'ies effective as soon as the order is served on the Government Servant irrespective of the question as to when the payment due to him is to be made. If that was the intention of the framers of the rule, the proviso would have been differently worded. As has often been said that if "the precise words used are plain and unambiguous, we are bjound to construe them in their ordinary

sense," "and not to limit plain words in an Act of Parliament by considerations of policy, if it be policy, as to which minds may differ and as to which decisions may vary" .-see Craies on Statute Law, Sixth Edition, pages 86 and 92.

It is not for us to enter into a discussion as to why the proviso was framed as we find it. It was argued that it would, in the ordinary course of things, be a!rnpst impossible for the authorities to give effect to _the proviso if payment has to be made at the time the order of termination is served on the employee. It was submitted that before any payment can be made by Government,

sanction has to be ta.ken and some time must elapse, before_ the necessary procedure is complied with and money obtained either from the tn<asury or a cheque made out to cover the amount due to the employee. It was also argued that if the construction given by the High Court to the rule is to lie maintained, the appointing authority could never ask. the employee to go at once even when it found that it was necessary in the interest of Government to require him to do so. It is difficult to contemplate a case in which an appointing authority has to make up his mind on the spur of the moment that a particular employee should be asked to go immediately. Normally a Government employee is not asked to go unless some complaint is made against him for some irregula- rities detected in his work.

This is alwa~ followed by some enquiry into his conduct, however brief, as it is only as a result of an enquiry that the authority makes up its mind that it would not be ill .public interest to retain the service of the employee any fonger.

Within. the time which is ta.ken for such deliberation i.e., the preliminary enquiry, direction can certainly be given that the pay and allowances 'of the government servant concerned should be calculated so that it could be offered to the employee at the time when the order Of termination is served on1rim. There can be no difficulty in the calculation because the payment is to be made "at the same rates at which he was drawing them immediately before the, termination of his services."

It was suggested on behalf of the respondent that the. construction of the rule should be such as would mitigate the rigour of an order of terniination inasmuch as where riptice of a full month is given the Government servant knows that he will have to find some other employment without delay and he can make. his . arrangements accordingly; but if he is to be asked to leave at once and to depend on the mercy of the Government as to when it will pay )tltn for the period of the notice, it would be very hard on employee. We do not think it necc:ssary to express . any view as to whether the rule was so framed on account of . any such reason and we must give effect to the plain meaning of the words of the rule.

. Our attention was drawn to a decision of this Court which had been cited on behalf of the appellant in the High Court-The

State of Uttar Pradesh v. Dinanath Rai(1) There the rule was differently worded. The rule in that case ran as follows :-

''In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the (lovernor

of U.P. is pleased to make the following general rule

(I) Civil Appeal No. 1734of1968 dated 11th October, 1968. 6-Ll031 Sup Cl/72

regulating the tennination of services of temporary Government servants :

( l) Notwithstanding anything to the contrary in any existing rules and orders on the subject, the services of a Government servant in temporary service shall be

ble t? tennination at any time by notice in writing given either by the Government servnt to the appointing authority, or by the appointing authority to the Government servant.

( 2) The period of such notice shall be one month given either by the avpointing authority to the Government servant, or by the Government servant to the arpointing authority, provided that in the case of notice o the appointing authority the latter may substitute for the whole or part of this period of notice pay in lieu thereof; provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period, without requiring the Govemmenf servant to pay any penalty in lieu of notice."

In that case this Court had observed : ''The rule does not say that. the pay should be given in cash or by cheque at the time the notice is issued.

Knowing the way the Governments are run, it would E. )le difficu!t to ascribe this intention to the rule-making authority. There is no doubt that the Government servant would be entitled to the pay in lieu of qotice but dtis would be in the ordinary course."

No doubt the language of that rule is somewhat similar to the F words of rule 5 but there is an essenti!ll difference.

The rule only means that the pay for 30 days or less may be substituted . for service for the period of the notice. In other words, the rule only entitles the employee to pay for the period of the notice without laying . down any condition as to when the payment is to be given.

G In this case, as we have already noted, "tennination forthwith" is. to be "by payment to the Government servant" of the sum mentioned.· Payment is a condition of the termination of service forthwith.

The. facts of this case show that the circular which formed the basis of the order of tennination was issued on the H 12th September; the employee, it would appear, had absented himself from 'ducy on the 19th September. The appointing authority had at. least six days within whicb time the amount due to the resoonden~ could have been calculated.

In our view, the decisions in Seshavataram v. State af Hyderabad(') and Venkataswami v. Director of Commerce & Industries(') do not help the appellant.

The appeal is therefore dismissedand in terms of the order granling special leave, the appellant must pay the costs of the respondent.

V.P.S.

(1) [1959)-2 L.L.J. 227.

(2) [1959)-2 L.L.J. 702.

Appeal dismissed.

SENIOR SUPERINTENDENT, R.M.S. COCHIN & ANR

K. V. GOPINATH, SORTER

G. K. MITTER, JJ.

dt. 11-10-1968

Kerala High Court

R. H. Dhebar

A. S. R. Chari

A. K. Gupta

S. C~ Agarwal

V. J. Francis

Mitter

25th September, 1968

Parliament

Article 309

Constitution of India


GOBINDRAM v.

STATE OF MAHARASHTRA

f:ebruary 21, 1972

[S. M. S!KRI, C.J., A. N. GROVER, A. N. RAY, D. G, PALEKAR B

AND M. H. BEG, JJ.]

Contempt of Court Acf, •1952-S. 3(2).,-Scandalizing the Cour.t- Principles for determining when it amounts to con_tmpt-Transfer application-Alfegadons against judicial official-Allegations -that the Magistrate below is on friendly relaiions with complainants-[/ amounts to contempt.

An advocate, in a transfer application in respect of a crimill'31 com .. plaint, filed before Ille Sessions Judge made certain allegations against two judicial officers before whom the criminal complaint and a civil suit were pending. While dismissing the transfer application, the Additional Se&.ions Judge, who heard the application, recorded an nrder that a report be submitted to the High Court for considering the conduct -of~ the applicant as to the course adopted by him in making imputations or aspersions in the transfer petition against the judicial officers and to take action for contempt of court under s. 3(3) of the Contempt of Court's Act, 1952. ·

Paragraph 1 of the transfer application stated that "the Magistrate below is on friendly relations with the mplaino:mt, the respondent No.

I in the present petition and he e\'On enjoys ihe hospitality of the Respondent No. I sometimes alone and sometimes in company of the Civil Judg<>-J. D. Kalyan (Shri M. B. Boadkar) who is also on friendly relations with the respondent No. 1 and who also enjoys the hospitality of the respondent No. I". There were other allegations In the transfer petition. The show cause notice issued by the High Court containing the charge of contempt was confined only to paragraph I of the transfer application.

The High Court held that the appellant was guilty of contempt of court and he was sentenced accordingly,

Allowing the appeal.

HELD : (I) The show cause notice on the l'oce of it disclosed no such allegation which oould be regarded as falling within the rule laid down by this Court In which the head of contempt, i.e. scandalising the Court, had come up for examination. In Perspective Publications (P) LYd. v. State of Maharashtra, [1969) 2 S.C.R. 779 this Court baa laid down certain principles as to the law of contempt. They are : ·

(i) It will no/ be right to say that Committals for contempt for scandalizmg the Court have become obsolete.

(ii) 1be summary jurisdiction by way of contempt should be exercised with great care -and caution and only when its exercise is necessary for the proper administ!ration of law and justioo.

(iii) Any one may express fair, reasonable and legitimate critidism of any act or conduct <if a jqdge in his judicial capacity or make a proper or fair comment on any decision given by him.

(iv) A distinction must be made between a mere libel or defamation of a judge and what amounts to contempt of court. The test in each

case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with due course of justice or the proper administration of law by the court it is only in the latter case that it will lie punishablO as contempt. [542 HJ

(v) Alternatively, the test will be whetiher the wrong is done to the judge personally or it is . done to the pubilc.

The publication of a disparaging statement will be an injury to the public if it tends to create. an apprehensin in the minds of the people ; regarding the integrity, a bi.; lily of fairness of the judges or to deter actual and prospective litigants

from placing complete reliance upon the courts administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties". [,543 E]

(2) Allegations made even in a transfelr application casting aspersions on a judicial officer an CQ.n.st_itute contempt of his court within s. 3 of the Act. However, cases in which applications for transfer are made. stand on a slightly dllfernt footing from those where a party makes an

allegation, either inside cir outside the court of a scandalising nature imputing improper motives of the judge trying the case: but even in the case of a transfer application, a person cannot be allowed to commit contempt of court by making allegations of a srious nature scandalising the court and imputing improper motives to the judge trying the case.

[544-B, 546 DJ .

In the present case, the mere statement thaf'.a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has fl'iendly relations with him will not nstitute contempt unless there is an imputation of some "imprOpe!r motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of ·!be people in the courts. 1;544 CJ State of Madhya Pradesh v. Revaslumkar, p959] S.C.R. 1367, State

v. The Editor.9 and Publishers of Eastern Times and Prajantra, A.1.R. 1952 Orissa 318 and Swaranamavi Panigrahi v. B. Nayak & Ors., A.I.R. 1959 Orissa 89, referred to and discussed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 51 of 1968.

Appeal by sJ>ecial leave from the judgment and order dated Febi:uary 2, 1968 of the Bombay High Court in Criminal Application No. 393 of 1967.

Appellant appeared in person.

M. C. Bhandare, S. B. Wad and B: D. Sharma, for the respondent.

The Judgement of the Court was delivered by

Grover, 1. This is an appeal by special leave from a judgment of the Bombay High Court finding the appellant who is an Advocate, guilty of contempt of court and sentencing him to simple imprisonment for a term of four weeks and a fine of

Rs. 1,000/-. It was directed that in default of payment of the A fine he would have to undergo simple imprisonment for a further period of four wcceks.

He was also ordered to pay the costs of the Assistant Government Pleader in the High Court and the Government Pleader before the Sessions Judge.

_The material facts may be stated : In March 1966 a suit was B filed ai; ainst the appellant by D. N. Santani who is also an Advocate for recovery of Rs. 640/- in the court of the Civil Judge, Junior Division, Kalyan. The plaintiff in that suit had engaged H. I. Jagiasi as his Advocate. In the written statement filed b)' the appellant he made certain allegations against J agiasi and alleged inter al_la, that the latter was responsible for the suit.

C Jagiasi filed a criminal complaint for deation in August 1966 against the appellant in the court of Shri P. D. Sayyid, Judicial Magistrate at Kalyan.

The appellant has set out a number of incidents and matters in his petition for special leave to aQPCal which it is not necessary for our purpose to mention. It would suffice to say that on. October 15, 1966 the appellant filed an D application before the Jdicial Magistrate saying that he intenc; led to apply for transfer of the case to some other court. On October 28, 1966 he presented a transfer application in the court of the Sessions Judge. Thana. __ The transfer application was ultimately dismissed by the Assistant Judge and Additional Sessions Judge on March 8, 1%7 before whom it came up for disposal. Meanwhile it appears that the appellant applied for transfer of the E civil suit which had been filed by D. N. Santani to the court of the District Judge. The suit was stayed and we have been informed that ultimately it was transferred sometime in the year 1967 from the court of Shri M. B. Baadkar from whose court transfer was sought. _ It has further been stated at the Bar and that statement has not been challenged that the civil suit was ulti-

F . mately dismissed in August 1969.

While dismissing the transfer application of the appellant in th.c criminal complaint filed by Jagiasi in the court of Shri P. D.

Sayyid the Additional Sessions Judge recorded an order that a report be submitted to the High Court for "considering the con- G duct of the appellant and the course adopted by him in making the transfer application and in making imputations or aspersions against the Judicial Officers and , to take action for contempt .of court under s. 3(2) of the Contempt of Court's Act, 1952, hereinafter called the 'Act'.

This was done after reproducing three paragraphs from the transfer apPiication and expressing an opinion that the appellant had attempted to attack the integrity and honesty of the courts 6f the Judicial Magistrate and the Civil Ju'dge and to scandalize and to malign the same. The High Court made an

order on December 1, 1967. The following part of that oder may be reproduced-

"He 'mad11 an application to. the Sessions Judge for transfer of the proceedings to another Court and the ground objected to by the learned Sessions Judge is as follows :-

"The Magistrate below is on friendly relations with the complainant the respondent No. 1 in the present petition and he even enjoys the hospitality of the respondent No. 1 some times alone and some times in company qf the Civil Judge J. D. Kalyari (Shri M. B.

Baadkiir) who is also on friendly relations with the respondent No. 1 and who also enjoys the hospitality of the respondent No. l ".

The learned Sessions Judge had called for report from the Magistrate Mr. P. D. Sayyed and was apparently satisfied after consideration of all the affidavits produced before him that the allegations was baseless. He, therefore, referred the matter to this court for suitable action being taken against the respondent-:-Advocate for his making such allegations and interfering with the course of justice and scandalising or maligning the Courts. - below".

It was further stated in that order that the appellant had asked for an opportunity to establish the truth of the allegation made above which had been made both "because of his personal knowledge and also because of information obtained from others''. A list of witnesses was furnished by the appellant whom he proposed to examine.

The High Court directed the District Judge to regard the evidence and to submit his report along with the evidence and the reports of the two judges. It was expressly stated that the inqu.iry w.as to be confined to the allegations which had been quoted above. The show cause notice which . was issued to the appellant by the High Court (omitting unnecessary portions) was as follows :-

"Whereas" upon reading letter No. 2434, dated 5th April, 1967 forwarded by the 2nd Addi. Sessions Judge, Thana along with the Record and proceedings of Cri. Transfer Application No. 108/66 on his file and the Record and Proceedings in Cri. Case No. 2949 of 1966 of. the Court of the Judicial Magi.<; trate, F. C.

Kalyan, requting to take action under the Contempt of Court's Act against the Advocate Mr. G. L. Bhatia, wlio has made serious allegations against the Judicial

Officers Shri Baadkar and Shri Sayyad in Transfer Cri.

A Application No. 108/66 in para one in the Court of the 2nd Add!. Sessions Judge, Thana, etc.,

And whereas this Court has on 15.th June 1967, passed the following order :-

"Notice to Mr. Bhatia Advocate to show cause why action for contempt of Court should not be taken against him.

Notice to G. P. also. A copy of D. J.'s Jetter to be sent to Mr. Bhatia along with the notice.''

The District Judge in accordance with the orders of the High Court submitted a re_port giving his own findings on the evince

recorded by him and also after taking into consideration the reports of Sarvshri Baadkar and Sayyid which had been ailed for from them apparently after the witnesses produced by the apPCllant had given their evidence and copies pf their depositions had been ~µt to the two judges. The appellant raised two preliminary objections before the High Court.

The first was tlfaf the District Judg, e . could only submit a record of evidence and could not give l!is findings and, secondly, he could not take into consideration the reports of the two judges which had not been shown to the appellant.

Another objection raised was that the repOrts of tlie Judicial Officers could not have been relied upon becall$e the apPellant had no opportunity to cross-examine them.

The High Court repelled all these objections. From the statement of preliminary facts it is clear that" the High Court. relied only~ on the allegations contained in para I of the application of transfer which have already been set out before and contents of which were that Shri Sayyid was on friendly relations with Iagiasi and that he had even enjoyed his hospitality sometimes alone and s<imetimes in the company of Shri Baadkar.

We have laid a certain amount of stress on the aforesaid allegation made in para I of the transfer application because that application consisted in substance of three paragraphs. It will. be desirable, owing to the nature of this case, to set put all the allegations made in the transfer application :

 i. '"The Magistrate below is on friendly relations with the complainant the Respondent No. 1 ln the pre- . sent petition and he even enjoys the hospitality of the Respondent No. 1 some times alone and some times in company of the Civil Judge J: D. Kalyan (Shri M. B.

Baadkar) who is alilo on friendly relations with the Respondent No. 1 and who also enjoys the h0spitality of the Respondent Ni>. 1.

GOB!ND RAM v. MAHARASHTRA (Grover, l.) 541

2. The Magistrate below is prejudiced against the present application.

3. The M11gistrate below has not taken and does not appear to take impartial disinterested view of the case in question. ·

(a) Evidently the complainant was not actuated by mere or bonafide professional interest. He was the author of false litigation for a false and fabricated claim.

That matter Suit No. 213 of 1966 was still penditig hearing and adjudication. The complaint in question could not as such be filed in all fairness and it ought not to have been entertained at least without the preliminary enquiries or at any rate it ought to have been stayed.

\ b) That was not done and the process was ordained to be urgently issued and served and the socalled summons was served on the applicant a day or two before the date of hearing .to harass and handicap him in his professional commitments.

( c) Even the said summons was not accompanied by copy of the complaint as niendatorily required by s. 204(b) of the Code of Criminal Procedure, and the aJ>plicant was left guessing as to what the said summons related to.

(d) On 15th October 1966 when the case in question was Sr. No. 10-12 on the Board and it. was preceded by even part heard cases the trial Magistrate did not permit this application even leave for a while to enable him to go to Civil Court at a distance of furlong or so to obiain leave of the Court from his professional engagements and the trial Magistrate observed that he wotild "take up the case there and then and just now" and in the next moment the complainant was in the Box ready for

"finishing" the case as though by previous understanding.

4. The applicant respectfully refrains from entering into further details in this regard and he would do the same if called upon.

For the present suffice to say that in view of what is stated above there is well-founded apprehension in the mind of the applicant he would not get justice unless the case is transferred to some other Court of the competent jurisdiction".

The question which immediately arises is whether an allegation of the nature made in para ( 1 ) in the circumstances of the present case in a transfer application would amount to contempt of the two judges Sarvshri Sayyid and Baadkar.

The High Court made a detailed examination of the evidence adduced before the District Judge and also reli~ on the reports of Sarvshri Sayyid and Baadkar. It came to the conclusion that the allegations made by the appellant had not been proved.

It was observed that these allegations "in the above quoted paragraph" which means paragraph I were quite serious. The High Court was also. influenced by the fact that the appellant had "pitched the case higher and tried to prove that the two judges concerned were continuously receiving from Mr. Jagiasi presents of large value in the shape of sarees and other articles and thus receiving bribes so as to indiscreetly favour Mr. Jagiasi and the litigants whom he represented in their Court". The appellant was not even willing to tender an api>logy and his position as an Advocate was naturally regarded as making the contempt all the more seri0us.

The appellant, who has argued the case himself, has raised the following main con17ntions :-

1. The Act is unconstitutional and invalid.

It violates Articles 20 and 21 of the Constitution.

2. No procedure has been provided in the Act and therefore it is bad.

3. Even the normal procedure which should be followed in such cases has not been followed.

4. The High Court was not entitled to call for a report from the District Judge or to delegate its functions including the examination of witnesses to the District Judge.

5. The show cause. notice issued by the High Court containing the harge of contempt was confined only to paragraph l of the transfer application.

The statements made in that paragraph could not by themselves constitute contempt.

In our opinion it is wholly unnecessary to decide points 1 to 4 because the appellant must succeed on the 5th point. This court has, after a review of all the relevant decisions, laid down hi- Perspective Pub/icatiims (P) Ltd. & Anr. v. State of Maharashtra('), inter alia, the following principles:-.

1. It will not be right to say that the committals for contempt fof scandalizing the court have become obsolete.

(I) [1969] 2 S.C.R. 779.

2. The summary jurisdiction by way of contempt must be exercised with great care caution and only when its exercise is necessary for the proper administration of law and justice.

3. It is open to any one to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him.

4. A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court.

The t1'.5t in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by his court.

It is only in the. latter case that it will be punishable as contempt.

5. "Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public.

To borrow from the language of.Mukherjea J., (as he then was) Brahma Prakash Sharma's case (1953 SCR 1169) the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court's administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties".

In that case it was held that the imputation in an cle of impropriety, Jack of integrity and oblique motives to a judge of the High Court in the matter of deciding a suit constituted contempt of court.

The question whether an action can be taken under s. 3 of th.e Act if in a :transfer application allegations are made against a judge which are of such nature: as to constitute contempt of his court does not appear to be res integra.

In State of Madhya Pradesh v. Revashankar(I) aspersions of a serious nature had been made against a Magistrate in a transfer petition. One of such aspersions was that. the Magistrate in whose court the proceedings were pending was a party to a conspiracy with certain others the object of which was to implicate the complainant in a false case of theft and that a lawyer appearing for the accused persons in whose favour the Magistrate was inclined, h.ad declared

(!) [1959] S.C.R. !367.

 that he had paid a sum of Rs. 500/- to the Magistrate.

It was also asserted that the applicant was sure that he would not get impartial and legal justice from the Magistrate. It was held that the aspersions taken at their face value amounted to what is called 'scandalizing the court' itself and the attack on the Magistrate tended to create distrust in the popular mind and impair the confidence 'Of the people in the courts.

This decisions is quite apposite for the purposes of the present case. It decides that allegations made even in a transfer application casting aspersions on a judicial officer can constitute contempt of his court within s. 3 of the Act. It is difficult to comprehend that the mere statement that a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will constitute contempt unless there is an imputation of some improper motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of the people in the courts.

The allegations contained in para 1 of the transfer application may or may not amount to defamation of the two judges, namely, Sarvashri Sayyid and Baadkar but to constitute contempt the other tests which have been discussed above must be fulfilled.

As noticed before the High Court confined the action, which was to be taken, only to the matter stated in paragraph 1 and did not choose or decide to include or consider paragraphs 2 or 3 either in the show cause notice or in the judgment the following part of which may be reproduced :-

"We have considered the whole of the evidence on record that can be relied upon on behalf of the contemner on the one side and by the State in support of the case for action against the contemner.

We have with some anxiety considered the arguments advanced by the contemner in support of his case that the evidence is sufficient to prove the allegations made by the contemner in the above quoted paragraph.

We find it impossible to hold in his favour that he has proved that Mr.

SayYid had friendly relations with Mr. Jagiasi and was enioying the hospitality of Mr. Jagiasi either alone or in company with Mr. Baadkar, He has failed to prove that Mr. Baadkar had friendly relations with Mr. Jagiasi and enjoyed the hospitality of Mr. Jagiasi".

It is true that a party cannot make such allegations even in a transfer application which may fa!J within the rule laid down in

Revashankar's(1') case or in the Perspective Publication's case(') and which may amount to scandalizing the court in the sense H pointed out in these decisions. In the State v. The Editors &

(1) [1959] S.C.R. 1367.

Publishers of Eastern Times and Prajatantra('), Jagannadhadas C.J. (as he then was) delivering the judgement of the Division Bench, after an exhaustive examination of the decided cases where the jurisdiction of the court for this class of contempt had in fact been exercised, observed :-

"A review of the cases in which a contempt committed by way of scandalising the court has been taken notice of, for punishment, shows clearly that the exercise of the punitive jurisdiction is confined to cases of very grave and scurrilous attack on the court or on the Judges in their judicial capacity, the ignoring of which would only result in encouraging a repetition of the same with a sense of impunity and which would thereby result in lowering the prestige and authority of the court".

There are not many decisions in which punishment has been

inflicted for committing contempt of conrt by making scurrilous allegations in an application for transfer of a case from one court to another.

Mention may, however, be made of one of such cases: Swarnamayi Panigrahi v. B. Nayak & Ors.(').

There, during the pendency of certain rent suits filed before the Rent Suit Collector by the landlord, who was the wife of the Chief Justice of the Orissa High Court, the tenant filed certain transfer applications before the Additional District Collector making statements like these :

"l. The lower court openly identified himself with the plaintiff Shrimati Swarnmayi Panigrahi and is so partial to her that no justice or impartial decision can be expected from him;

2. He has gone out of the course prescribed by law and has taken over the function of witness and court in himself in such a way that there is no parallel to it in the history of litigation in India; and

3. That opposite party wields extraordinary influence i)l the State as si'ie is the wife of Shri Lingarai

Panigrahi Chief Justice of Orissa High Court. It is being openly talked about that the conclusions are foregone".

It was observed that though some latitude has to be given in a transfer application but the question was whether or not the applicant in that case had exceeded the limits permissible under the law. As a rule applications for transfer were not made merely

(I) A.l.R. 19S2 Orissa 318.

(2) A.I.R 1959 Orissa 89.

because the trying judge was alleged to be incompetent but there A may be circumstances beyond the judge's control such as the acquaintance with one of the parties .(If personal interest in the sub1ect matter of the proceedings whicli in law would be considered as preventing him from giving an unbiased decision.

It was held that the applicant had exceeded the limits and had gone out of his way not only to malign the personal integrity and judi- B cial honesty of the lower court but had also directly attacked the whole administration of justice headed by the Chief Justice of the State.

It is noteworthy that on an allegation made in a transfer application the judge against whom the allegation is made is often afforded an opportunity of giving explanation by the higher court and he can dispel any cloud that might have been cast on his fairness and integrity.

The higher court takes action for trans- C fer after full consideration of all the circumstances of the case including the report of the judge against whom the allegations are made.

In this way it can well be said that cases in which _ applications for transfer are made stand on a slightly different footing from those where a party makes an allegation, either inside or outside the court of a scandalising nature imputing improper D motives to the judge trying the case.

The Allahabad High Court in Emperor v. Murli Dhar & Another('') was of the view that where an accused person in an application for transfer of a case made an assertion that the persons who had caused the proceedings to be instituted were on terms of intimacy with the offi.. cer trying the case and, therefore, he did not expect a fair and E impartial trial was not guilty of offence under s. 228, Indian Penal Code, there being no intention on the part of the applicant to insult the court, his object being merely .to procure. a transfer of his case. It is true that in the garb of a transfer applicatioc. a person cannot be allowed to commit contempt of court by making allegations of a serious and scurrilous natur.e scandalising the court and I' imputing improper motives 1!0 the judge trying the case. But then -the nature of the allegations will have to be closely examined and_ so long as they do not satisfy the requirements of wht may be regarded as contempt of court no punishment can possibly be inflicted.

The appellant, in the present case, is an advocate and it is most wifortunate that though at the stage of the transfer G application be made certain allegations in para I about the social intimacy between Jagiasi and Sarvashri Sayyid and Baadkar, the two judicial officers, with the apparent object of securing a l:rans fer of the case he proceeded to take the highly ill-advised step of attempting to substantiate the allegation so made.

We are, however, not concerned with any charge relating to the matters B subsequent to the notice which was iued by the High Court with regard to the. allegations for which purushment )las been

(I) l.L.R. 38 All, 284

imposed on the appellant. That notice on the face of it discloses no such allegation which could be regarded as falling within the rule laid down by this Court aud by a series of decisions of the

Privy Council iu which this head of contempt i.e. scaudalisiug court has come up for examination. Most of those decisions have been referred to in the case of Perspective Publications (P) B .Ltd.('). In addition we may mention Debi Prasad Sharma &

Others v. Emperor(') in which in a newspaper report the Chief Justice of a High Couit was untruly alleged to have committed an i!J-advised act in writing to. his subordiuate judges asking them to collect subscriptions for the War Fund. Accordiug to their lordships there was no criticism of auy judicial act of the Chief c

Justice nor auy imputation was made for auything done or omitted to be done by him in the administration of justice nor was there auy criticism of him iu his administrative capacity.

In the opinion of their lordships the proceedings in contempt were misconceived.

In our judgment the allegations contaiued iu para I of the transfer application were not such as would amount to contempt of court. We cannot help observing that the appellant did not show the sense of responsibility iu making the allegations iu question which is expected from au advocate aud in further attempting to substautiate them which he failed to do.

The appeal is allowed aud the order passed by the High Court is hereby set aside. Parties will bear their own costs iri this Court. s.c.

--:-m (t969) 2 S.C.R. 779.

(2) A.l.R. (1943) P, C. 202.

Appeal allowed.

GOBINDRAM

STATE OF MAHARASHTRA

A. N. GROVER

A. N. RAY

PALEKAR

M. H. BEG, JJ.

S. 3(2)

s. 3(3)

M. B. Boadkar

[1969) 2 S.C.R. 779

s. 3

M. C. Bhandare

S. B. Wad

D. Sharma

Bombay High Court

D. N. Santani

H. I. Jagiasi

Jagiasi

P. D. Sayyid

Kalyan

October 15, 1966

October 28, 1966

Sessions Judge. Thana

March 8, 1%7

D. N. Santani

M. B. Baadkar

Jagiasi

P. D.

Sayyid

s. 3(2)

December 1, 1967

J. D. Kalyari

M. B.

Baadkiir

P. D. Sayyed

5th April, 1967

G. L. Bhatia

Baadkar

Sayyad

Bhatia

D. J.'s Jetter

Bhatia

Sarvshri Baadkar

Sayyid

Iagiasi

D. Kalyan

M. B.

Baadkar

s. 204(b)

Code of Criminal Procedure

15th October 1966

Sayyid

Articles 20 and 21

[1969] 2 S.C.R. 779

Mukherjea

Brahma Prakash Sharma

s. 3

s. 3

Sarvashri Sayyid

Baadkar

SayYid

Jagannadhadas

Orissa High Court

Shrimati Swarnmayi Panigrahi

India

Lingarai

Panigrahi

Allahabad High Court

s. 228

Indian Penal Code

Sarvashri Sayyid