RAMCHANDRA KESHA V ADKE & ORS

GOVIND J01'1 CHA V ARE AND ORS.

March 4, 1975

[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]

Bombay Tenancy Act (67 of 1948)-S, 5 (3).-Scope of.

Section 5(3) (b) of the Bombay Tenancy Act enacts that a tenant may terminate the tenancy at any time by surrendering his interest .as a !nant in favour of the landlord provided that such surrender shall be m wntmg and shall be verified before the Mamlatdar in the manner prescribed.

Rule 2-A of the Rules states that the Mamlatdar, when verifying a surrender of a tenancy by a tenant, stall satisfy himself after such inquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary. and shall endorse his findings in that behalf upon the document of surrender.

The appellants. who were the landlords of certain lands, made an application to the Mamlatdar stating that the tenant was w:lling to ~.urrender his tenancy in the agriculural land and prayed for verification under s. 5 ( 3) of the Bombay Tenancy Act ( 67 of 1948).

The Mamlatdar did not verify the surrender.

The Circle Officer recorded the statement of the tenant and the landlords and passed an order on the application.

Mutation entry was made in the record of rights of the village and the landlords' name was entered in 'the register as a person in actual possession of the land.

A few months later, however, the tenant made an application for a declaration that he was . the tenant is possession of the land in dispute.

This was dismissed by the Tenancy Aval Karkun.

The tenant thereupon preferred an appeal before the Special Deputy Collector, who held that the order passed by the Circle Officer was not an order passed by the Mamlatdar as required by the tenancy law .and as such it was without jur'sdiction and void and that there was no verification of the surrender application as required by law.

The revision application preferred to the Maharasthra Revenue Tribunal by the landlords was dismissed.

The fandlords' writ petition was dismissed by the High Court holding that the alleged surrender was a nullity as there was no compliance with the mandatory requirements of s. 5 (3) of the Ilombay Tenancy Act, read with r. 2-A.

On appeal to this Court it was contended th&t the provisions of r. 2-A are directory and not mandatory and that there had been a substantial compliance with the requirements of the relevant provisions of the Act and the rule.

Dismissing the appeal,

HELD: !(a) The imperative language the beneficient purpose and importance of s. 5(3 )(b) of the Act and r. 2-A for efficacious implementation of the general scheme of the Act-all unerringly lead to the conclus'on that

\hey were intended to be mandatory. Neglect of any of these statutory requisites would be fatal.

Disobedience of even one of these mandate' would render !he ;1 rre.nder invalid and ineffectual. rB44Gl

(b) The language of s. 5(3) (b) and r. 2-A is absolute. explicit and

peremptor~-. The words '.provided that' read with the words 'shall be' repeatedly used in s. 5(3)(b) make the terminat'on of tenancy by surrender entirely subject to the imperative conditions laid down ; n the proviso. This proviso throws a benevolent rin11 of prote<; tion arnund tenants.

It is designed to protect a tmz, n.t on two fronl• agamst t.>.vo types of dangers--one ag<.nst possiblr,

oerc10n, _undue influence and trickery proceeding from the landlord and the o:her a.gams.t the tenai:it's own ignorance. improvidence and attitude of heloless

'elf-'.'"'"r'.al1on stemming from his weaker position in the tenant-landlord 1 el::<10:1sh1p.

[844E-FJ

(c) The intentio~ of the legislatu.re is to be ascertained .. upon. a re, iew of the language, sub1ect matter and 1~1portance of the proV1S10n m re.la'~'on

to general object to he secured, the mischief to be TJreented and the l<n".dy to be 1":omotcd by the Act.

[843F]

Liverrwol Boroualt Bank v. Turna (1861) 30 L.J. Ch. 379 at p .. '30; " E " ry f d t Craise on Statute Law, 7th do. p ... o •. re erre o.

In the instant case all that the Circle Officer did was t~ record the st:ttement of the tenant and landlord and make the ordr. He did not say a w1;>r<f that he was satisfied that the tenant had voluntnly made a s~1-rendr a1; ter

understanding its nature and consequences nor did he endorse his sat1sfacl100 on the tenant's deed of surrender as required by r. 2A. requirement as tc1 the recording of its satisfaction by the authority in the manner prcribed by the rnle was the substance of the matter and not an empty formality. In the absence of the requisite. enuorsement it cannot be said that there had \:>en even a substantial compliance with the statutory requirements, [845A-Cl

( 2) The rule th at where a power is given to do a certain thing ii1 a certain way the thing must be done in that way or not at all and that other methods of' performance are necessarily forbidden is attracted with fUll force in this case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the ve:rification of the surrender in a manner other than the :one p1reseribed, is implieci in these provisions. Failure to comply with thes~ ma1:datory provisions had vitiated the surrender and rendered it non-est for the r:urpose of s. 5 ( 3) (b) of the Act.

[R45E-G]

Taylor v. Taylor [1876] Ch. D 426; Nazir Ahmed v. Emperor LR.. 63

I.A. 372-ATR 1936 P.C. 253; Sliiv Bahadur Singli v.

State of 11.P. (1954] S.C.R. 1098 and Deep Chand v. State of Rajasthan [1962] S.C.R. 662 followed.

CtvrL APPELLATE JURISDICTION : Civil Appeal Nos. 58 & 810 of 1968.

Appeal by special leave from the judgment and order dated the 5th October, 1967 of the Bombay High Court in S.C.A. Nos. 69S & 696 of '1966.

S. T. Desai and B. R. Agarwa/a, for the •appellants.

K. Rajendra Choudhury and P. C. Kapur, for the respondent,.

The Judgment of the Court was delivered by

SARKARIA, J.-These appeals by special leave are directed against the common judgment, dated 5.10.1967, of the High Court of Bombay dismissing two Writ Petitions filed by the •appellants to impugn the orders of Maharashtra Revenue Tribunal. The material facts are these :

01 Septembei" 8, 1953, the predecessor of appellants 1 and 2

(heremaer. called the landlords) made an application to the Mamlatd!il" of M1ra1? that the enant (Respondent oo. 1) was willing to surrender his.tenancy m the agricultural land,. bearing Survey No. 102/2, admeasu~~ 8 .acrs and 22 .Gunthas, situated at village Haripur, Taluka Mrra1, D1stnct Sangh m the State of Maharashtra.

The landlord prayed that the surrender in his favour should be verified unde~ s._5(3) of the Bombay Tenancy Act 67 of 1948.

To this application the landlord annexed a letter of surrender 'Jearing the thumb-impression

' ,,

of the tenant. The Mamlatdar did not verify the surrender, or pass any final order in the matter.

The landlord's application however came up before Shri Bhokare, the then Circle Officer. of Mirai who after recording the statements of the tenant and the landlord, CTade this order on it.

"The applicant and the tenant are present.

The tenan: Shri Chaware states that the suit land viz.

S. No. 102/1 measuring 8-22 and assessed at Rs. 44-3-0 of Haripur belongs to the applicant and that he is cultivating the same ao

a protected tenant. He further adds that he does not want to cultivate the same any longer and so he is surrendering the possession willingly along with crops and also the right as pro. tenant.

I, therefore, order that the possession of the suit land should be handed over to the applicant with the crops and the right as pro. tenant should be deleted under Secti'or. 29 (i) (3) o~ the B.T. and AL. Act 1948 Haripur 18-9-53.

Bhokare (M. M. Bhokare) Circle Officer, Sangli."

Pursuant to the above order, a Panchnama was prepared by the Talati on November 20, 1953, in which it was stated that the possession of this tenancy land had been given to the landlord. The latter executed a Kabje-Pavti to the effect, that he had obtained the possession. Mutation entry No. 431 was also made in this respect in the record of rights of the village and the name of the landlord was entered as Kabzedar in actual possession. On April 23, 1959, the landlord sold this land to appellants 3 and 4 and respondents 2 and 3.

On 9-11-1959, the tenant made an applicafron against th.: Landlord and his transferees (Sherikars) to the Additional Tenancy ..Xvalkarkun, Miraj, praying for a declaration that he was the tenant-in-possession of the land in dispute and further that the opponents be injuncted not to disturb his possession over the land.

Tn the altanative, he prayed that if he was found to have lost possession, the same be restored to him, This application was opposed by the landlord and his transferees on two main grounds: (1) that the tenant had duly surrendered his tenancy in 1953 and he was not in possession thereafter, and (2) that his application was time-barred.

Both these grounds found favour with the Tenancy Aval Karkun, and he dismissed foe tenant's application by an order dated 22-11-1961.

Aggrieved, the tenant filed Tenancy Appeal No. 292 of 1962 before the Special Deputy Collector, Sangli.

The tenant preferred another appeal also, to the Deputv Collector against the order, dated 18-9-1953, of the Circle Officer, Mr. Bhokare, whereby the tenant's name was deleted from the record of rights.

The Deputy Collector held that Shri Bhokare'~ Order was not an order nassed by a Mamlatdar as required by the Tenancy law and, consequently, it was without jurisdiction and void. He further held that there was no verific:i.t1on

o~ the surrender applicatlon as required by law.

He further found that, in fact, the tenant had never surrendered the tenancy, but 1'.ad continued to be in possession till he was illegally dispossessed in 1959 and consequently hi~ application was within time. On these findings the Special Deputy Collector allu; ved both the appeals, and direct1::d

that the possession of the suit land be restored to the tenant. He also set aside the mder of the Circle Officer regarding the mutation entry.

Against the Deputy Collector's decision, the landlord preferred

twc~ revision applications before the Maharashtra Revenue Tribunal The Tribunal dismissed the revision applications and affirmed the findings of the Deputy Collector. The landlords and their transferees thereupon moved the High Court of Bombay by two writ petitions under Article 227 of the Constitution for impugning the revisional orders of the Tribunal. The High Court, as already stated, dismissed the petitions. Hence these appeals.

The common question that falls to be determined in these appeals is whether in the circumstances of this case, the alleged surrender y the tenant was valid ?

The Deputy Collector and the Tribunal have concurrently answered this question in the negative on the threefold ground : (i) That the so-called surrender was a sham transacti'on because the tenant continued thereafter to be in possession and paid rent to the landlord upto 1959; (ii) That Circle Officers were not empowered to dispose of tenancy cases and as such Shri Bhokare's order, dated Septemb<r 18, 1953, was without jurisdiction and (iii) That the surrender had not been verified as required by law.

The High Court upheld the finding l'.ln ground (i), the same being a finding of fact not shown to be erroneous. It did not think it necessary to go into the second ground.

Regarding the third ground, it held that the alleged surrender was a nullity as there was no compliance with the mandatory requirements of s.5(3) of the Bombay Tenancy Act, 1953 read with Rule 2-A in regard to the verification of a surrender.

Section 5(3)(b) of the Act, at the material time, was as follows :

"A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of landlord.

Provided that such surrender shall be in writing and shall be verified before the Ma.mlatdar in the manner prescribed."

The mnncr of such verification has been prescribed by Rule 2-A, in these terms :

''The Mamlatdar when verifying a surrender of a tenancy by a tenant in favour of the landlord under clause (b) of sub-section t3) of section 5, shall satisfy himself, after such enquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary, and shall endorse his findings in that behalf upon the doc:ument of surrender."

. '•

It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements : (1) It must be in writing.

(2) It must be ycrified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely,

(a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary.

(4) The Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender.

ll.1r. Desai, learned Counsel for the appellants contends that the provisions of Rule 2-A are directory and not mandatory; that in any case there has been a substantial compliance with the requirements

o~ the relevant provisions of the Act and the Rule. It is submitted that the deed of surrender executed by the tenant was presented along with the application of the landlor.d, to the Mamlatdar; that the Circle Officer exercising the powers of Aval Karkun, then made an enquiry and recorded the statements of the tenant and the landlord to ascertain whether th<> surrender had been intelligently and voluntarily made by the tenant, and that it was only after verifying the requisite facts, the Officer made the order directing delivery 'Of possession to the landlord and deletion of the tenant's name from the record of rights.

It is argued that the mere fact that the Circle Officer's order or endorsement was strictly not in the form prescribed, would not invalidate the surrender. In this connection, the learned Counsel drew our attention to this sentence in the judgment of the Tribunal : "But there is no doubt that the above formalities were gone through before the Circle Officer".

Thus, the first point to be considered is, whether the requirements of these provisions are mandatory or directory. "No universal rule", said Lord Campell" ( 1) can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope." Such intention of the legislature is therefore to bi:; ascertained upon a review of the language, subject matter and importance of the provision in relation to the general Gbject intended to be secured the mischief, if any, to be prevented and the remedy to be promoted by the Act.

, Prior to the enactment of the Bombay Tenancy Act, 1939, the laws governing the relations between: landlords and tenants in the State did not ensure equal status of contract or agreement to the contracting parties inasmuch as the tenants were in a much inferior position. The tenants had no security of tenure. nor any protection against eviction or rack-renting.

Bombay Act 29 of 1939 was the first measure enacted to remedy these evils and to improve the condition of tenants of agricultural lands in the Province.

(I) Liverpoof llorough Bank v. Turner ( 1861) 30 L J. Ch. 3 7 9d t p. 380; Craies of' Statute Law, 7th Edn., p. 262.

• The Bombay Act 67 of 1948 registered an advance in the matter .of ameliorating the lot of r'yots. It marked a big step taken in the post-Independence era by the State legislature towards impleme, ntation of the policy of agrarian reforms.

Chapter II of the Act deals with tenancies in general.

Sections 5 and 15 are in this Chapter.

Chapter III makes provision for special rights and privileges of 1enants and allied matters.

The provisions in th.ese Chapters confer on 'protected tenants' the right to purchase their holdings from their landlords, to prevent uneconomic cultivati"On and to create and encourage peasant proprietorship.

Provision for 'surrender' of tenancy first appeared in a bald form, without any safeguards, in the Proviso to Section 5(2) of the Act of

1948. That Proviso ran thus:

"Provided that any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering his interest as a tenant in favour of landlord."

In its unguarded form, the provision was inadequate, and vulner- :able. It was susceptible to 'lbuse.

Under its cloak, scheming landlords could squeeze out tenants, or induce them by questionable D means to leave the protective umbrella of the Act.

The Bombay (Amendment) Act 33 of 1952, which came into force on 12-1-1953, recast this provision and hedged round the surrender with effective sa(eguards.

It substituted sub-section (3)(b)-as reproduced by us earlier in this judgment-for the old Proviso in Se.ction 5.

The language of s.5(3)(b) and Rule 2-A is abwlute, explicit and E peremptory.

The words "Provided that" read with the words "shall be", repeatedly used in s.5(3)(b), make the termination of tenancy by surrender entirely subject to the imperative cond; tim1s laid down in the Proviso.

This Proviso throws a benevolent ring of protection around tenants.

It is designed to protect a tenant on two fronts against two types of dangcrs--one against possible coercion, undue influence and trickery proceeding from the landlord, and the other F against the tenant's own ignorance, improvidence and attitude of hdpkss self-resignation stemming from his weaker position in 111e tenant-landlord relationship.

Thus, the imperative language, the bencficient purpose and inlp'Jrtance of these prnvisions for efficacious implementation of the general scheme of the Act all unerringly lead to the conclusion that thev \Yre i11tcncled to be mandatory. 'Neglect of any of these statutory -requi- G sites would be fatal.

Disobedience of even one of these mandates would render thG surrender invalid and ineffectual.

Having seen that the requirements of s.5(3)(b) and Rule '.2:-\ ;:re obligatory, and not directory. it remains to be considered whether the;:c imperatives have been substantially complied with in the manner pn~'- . criibecl, and if not, what is the consequence of non-compliance ;, H

The question of inherent jurisdiction apart. all that the Circle Officer did in this case, was that he recorded the statements of the

RAM CHANDRA v. GOVIND (Sarkaria, J.) 8 4 5.

tenant and landlord and , nade the order-which we have reproduced in full earlier in this judgment. Although in this order he referred to the tenant's statement ''that he does not want to cultivate the oamc any longer and so he is surrendering the possession willingly along 11ith crops and also the right as pro. tenant", he did n:ot say a word that he was satisfied that the tenant had voluntarily made the surrender after understanding its nature and consequences, much less did heendorse his satisfaction on the tenant's deed of surrender as required by Rule 2-A.

Verification of the surrender implies that the authority was satisfied as to the statutory requisites after due enquiry.

Such satisfaction of the authority was the essence of the whole thing.

In other words, this requirement as to the recordi!J.g _of its satisfact10n by the authority in the manner prescribed by the Rule, was the substance of the matter and not an empty formality.

In the absence of the requisite endorsement, therefore, it cannot be said that there has b.;-en even a substantial compliance with the statutory requirements.

:Vlr. Desai's contention that the Tribunal had found that the Circle Officer had complied with all the formalities prescribed by law, does not appear to be correct.

The sentence from which it is sought to be spelled out should not bf'. torn from its context.

Earlier in its judgment, the Tribunal had clearly said in concurrence with the Deputy Collector, that the surrender had not been verified as required by law.

Next point to be considered is, what is the consequence of noncompliance with this mandatory procedure ?

A century ago, in Taylor v. Taylor(!), Jassel M. R. adopt(; d the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time.

It was applied by the Privy Council, in Nazir Ahmed v. Emperot(') and later by this Court in several cases("), to a Magistrate making a record under ss. 164 and 364 of the Code of Criminal Procedure.

1898. This rule squarely applies "where, indeed, the whole aim and obect of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in

my other. ( 4)" The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision.

Intention of the legislature to prohibit the verification of the surrender in a manm:r other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the >umndcr and rendered it 11011-est for the purpose of s. 5 (3 )(b).

For these reasons, we affirm the judgment of the High Court .and dismiss the appeals with one set of costs.

P.B.R Appeals dismissed.

( 1) [1876] Ch. D. 426.

(2) L. R. 63 I. A. 372-AIR 1936 P. C. 253.

(3) Shiv Balzadur Singh v. State of U. P. [1954] S.C.R. 1098: Deep Chandv. State of Rajasthan [1962[ S.C.R. 662.

(4) Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363.

RAMCHANDRA KESHA V ADKE & ORS

March 4, 1975

Y. V. CHANDRACHUD

R. S. SARKARIA

A. C. GUPTA, JJ.

Bombay Tenancy Act

Section 5(3)

s. 5

Aval Karkun

Maharasthra Revenue Tribunal

s. 5

s. 5(3 )(b)

s. 5(3)

s. 5(3)(b)

s. 5

CtvrL APPELLATE JURISDICTION

S. T. Desai

B. R. Agarwa

K. Rajendra Choudhury

P. C. Kapur

SARKARIA

Haripur

Bhokare

Mirai

Chaware

M. M. Bhokare

Sangli

November 20, 1953

April 23, 1959

Bhokare'~

High Court of Bombay

Article 227

Septemb<r 18, 1953

Bombay Tenancy Act, 1953

Section 5(3)(b)

section 5

Desai

Campell

Chapter II of the Act

Sections 5 and 15

Section 5(2)

Vlr. Desai

Jassel

ss. 164 and 364

Code of Criminal Procedure

s. 5

L. R. 63 I. A. 372

Maxwell


:846

SHRI P. 13.

MAHENDRA MILLS LTD.

DESAI, APPELLATE ASSISTANT COMMISSiOl~ER

OF INCOME TAX AND ANR.

March 4, 1975

[V. R. KRISHNA IYER, R. s. SARKARIA AND A. c. GUPTA, JJ.] B

Jnconw-Tax Act, 1961-5, 35-Scope of-Record of appeal-Mcn11i11g of.

I~ the course of assessment of the income of the assessee for the year 1959-60 the Income-tax Officer found a discrepancy betwee11 the value of its .closing stock which was shown in its books as Rs. 5.89 lakhs a?d the records of the State Bank in which it was shown as Rs. 8.04. lakhs. 1 he Income-tax Officer rejected the explanation of the assessee regarding the discrepancy an.d C worked out the closing stock at Rs. 8.04 lr.khs.

When the assessee's appeal against th's order was pending before the Tribunal, the Income-tax O_ffictr took up for assessment the income of the assessee for the assessment year

?960-61.

Rejecting the contention of the asscssee that the opemng stock for the assessment year should be taken to be Rs. 8.04 lakhs but the Income-tax Officer took it as Rs. 5.89 lakhs.

On Appeal the Appellate Assistant Com. missioner accepted the contention of the assessee and reversed the decision of the Income-tax Officer.

Neither party appealed against this order. Later. however, the Tribunal accepted the explanation of the assessee in regard to D the discrepancy in the closing stock for the assessment year 1959-60 rn1d h~B that the closing stock should be taken as Rs. 5.89 lakhs as shown in its booh.

Thereupon the Income-tax Officer moved the Appellate Assistant Commissioner to rectify his order relating to the assessment year 1960-61 and bring it in conformity with the Tribunal's order.

The Appellate Assistant Commissioner accordingly passed an order.

The assessee then inoved the High Court under Art. 226 of t .. e Constitution E alleging that the Appellate Assistant Commissioner had overstepped the juri:,- diction conferred under s. 35 of the Income-tax Act. The HiRh Court dismissed the petition.

On appeal to this Court it was contended that the words 'record of apr<cal' in s. 35 of the .Act would mean the record fr the assessment ycm J 960-6: and not the entl!e r•ecord of the asessee relatmg to the earlier years as also

f later yea!s; and (2). he Appellate. Assistant Comissio~1er had no jurisdic F t1on to rectify hr.s dec1s1on by referring to something which took place four years after that dcc1s1on.

Dismissing the appeal.

HELD : ( 1) For the purpose of ascertaining the true s:ock position tile rec?r'.1 of the assessment for assessment year 1959-60, including 1he "{ribunal's dec1s10n, y.:as not extraneous r:ir irrelevant to the record of the appeal and could leg1timately. be loo~.ed mto .bY the Appellate Assistant Conwis, ioncr G for the purpose or correcting the m1slake.

[852C]

S!nce the closing stock of .one assessment year furnishes the figure of 11-, 0 opei:img stock for the succee.drng year it follows !hat the record ; howin" ti:, clos!llg stock of assessment year 1959-60 formed a part of the evidence relva~~ to the a; isessment for. assessment y~r 196-0-61.

To the extent of ascertninine the closmg and opet1'ng stock pos1t10ns, the two assessments telescoped : 1 - each other.

The Tribunal's finding that the value of the closing stock 'to~ ?ssessment year 1959-60 hd completely replaced the Income-tax Officer's findm!!

10 regard o that fact with effect from the date of the Jncome-t Offi :.~ e>rder relatmg to the assessment year 1959-60.

If the Jncome-t:: Offi~~<

I ...

J\IAHENDRA MILLS V, P. B. DESAI (Sarkaria, !.) 847

order relating to assesoment year 1959-60 was relevant to and part of tile 'record of appeal' the TribuJ!al's decision which st, perseded that finding Wes equally so within the contemplation of s. 35 of the Act.

[851G-H]

(2) The finding of the Tribunal as to the valuation of stock, although recorded sabsequent to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of the appeal and taken into accotmt for the purpose of correcting the mJstake nnder s. 35, as to the value of the opening stock for the assessment year 1960-61, apparent from that reord. [853B]

C£•mmissio11er of I11come-tax v. Kliem Chand Ramdas 61 I.T.R. 41~-LR. 65 I.A. 236, referred to.

Mis. Malwran Mills (Pril'ilte) Ltd. v. The l11co111e-tax O.fficer, l'orbandar (1959] Suppl. 2 S.C.R. 547 and M. K. Venkatacha/am v.

Bombay Dyeing & Mfg. Co. Ltd., (1959] S.C.R. 703, followed.

(3) There is no room for apprehension that the income-tax authoritie.s. under the gu.ise of correcting mistakes lightly reopen assessments long past and olosed and thus introduce an element of instability in the administration of the Act.

A decision is a precedent on its own facts.

Each case presents its own features The Income-tax authorities and the Tribunals are supposed to a>pp!y the 1-ricio of a decision to the. facts of particular cases with due care and discernment, bearing in mind the restricted scope of their jurisdiction under s. 35 and the object for which it is onferred. [853F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1793 of 1970.

From the judgment and order dated 24th June, 1970 of the Gujarat High Court in Special Civil Applicatioia No. 1259 of 1969.

S. T. Desai and I. N. Shroff, for the appellant.

T. A. Ra111aclw11dra11 and S. P. Nayar, for the respo'ddents.

The Judgment of the Court was delivered by

SARKAR!/'>, J.

This appeal directed against the judgment, datd 24.6.1970, of the High Court of Gujarat raises a question in regard to the interpretation of s.35 of the Indian Income-tax Act, 1922 (for short. called the Act). ·

The assessee is a Limited Company which manufactures textiles in its Mill.

For the assessment year 1959-60, the assessee showed in its books the value of its closing stock at Rs. 5,89,439 /-. The Iincome-tax Officer in the course of the assessment, .detected that there was some discrepancy between the value of the stock of cotton shown in the books of the assessee and the' records of the State Bank of India with which it had hypothecated that stock.

The assessee tried to explain away this discrepancy by saying that it had given an incorrect figure of its stock to the Bank with a view to obtain higher amount of over-draft.

The Income-tax Officer rejected this explanation and added Rs. 2,14,682/- to the value of the stock so that according to his assessment, the closing stock for the assessment year 1959-60 worked out to Rs. 8,04,121/-. Having'failed in first appeal before the Appellate Assistant Commissioner, the assessee preferred a second appeal to the Tribunal.

?ending the appeal before the Tribunal, the Income-tax Offier

tc,:,1~ up the assessment of its income for the !1ext assessm<mt year i.e.

J 960-01.. The asscssee contended that openmg stock for the assessment year 1960-1961 should be taken as Rs. 8,04,121/-. The Incomet::.x Officer rejected this contention and took up the opening stock for that assessment year at Rs. 5,89,439 /- without making the addition of Rs. 2, 14,682/-· Agai,1st this order of the Income-tax Officer, the asse...; sce went in appeal before the Appellate Assistant Commissioner who, on 30.6.1965, accepted the same. clespicc opposition from the

J I'coi;:e-tax Officer who had pcrsonaily appeared there to defeml his order and held thnt the opening stock for the asscs, ment year 1960- . 1961 be taken at Rs. 8,04,121/-. Neither party appealed against

this Prcler before the Tribunal.

On January 22, 1969, the Tribunal allowed the assessee's appeal referred to above relati'.1g to the assessment year, 1959-60, and accepted the assessee s explanation about the discrepancy relafa1g to the value of stocks between its account-books and those of the Bank. The Tribunal directed that the addition of Rs. 2, 14,682/- made by the lncome-tax Officer to the closing stock relating to the assessment year ! 959-60 be deleted.

Thus, according to the Tribunal's decision, the closing stock for the assessment year 1959-60 (which would ialso be the opening stock for the succeeding year) was Rs. 5,89,439 / as shown in the boob of the assessee.

11rnreafter on March 26, 1959, the Income-tax Officer moved the Appellate Assis1ant Commissioner requesting that the latter's appellate crder, elated 30.6.1965, relating to the assessment year 1960-61 be

rrtified and brought in conformity with the Tribunal's order.

The Appellate Assistant Commissioner then issued a <aotice under ::: 154 of the Act to the assessec to show cause why the appellate order. dated 30.6.1965, be not rectified under s.35 of the Act.

Despite objectioi1 frc:11 the asscsscc, on 28.6.1969, the Appellate As-; ist; mt Commissioner passed an order for rectifying his decision elated 30.6.1965 The order of rectification runs thus :

"_ ... in the instant case there is a mistake apparent from

rcord of appeal as pointed out ia the I.I.O's letter clntcd 26.3.69 mentioned above.

The appellate order whicl1 is now souglit to be rectified, was passed on 30.6.65. The rectification is therefore in time.

Accordingly I direct that the value of opening stock for the A.Y. 60-61 be taken at Rs. 5,89,439/-, being equal to the value of the closing stock determined by the Tribunal for the A.Y. 1959-60. Therefore, the relief of Rs. 2,14,682 /- given to the assessee in the origiaal appellate orper, elated 30.6.1965, stands cancelled.

The ITO is directed to give effect to this order."

The assessee then impugned this order by a writ petition under .Article 226 of the Constitution before the Gujarat High Court, on the giround that the, Appellate Assistant Commissioner had overstepped tl1e jurisdiction conferred on him under s.35 of the Act.

The High Court dismissed the petition.

Hence this appeal.

• D

l\!AHENDRA MILLS \', P. B. DESAI (Sarkaria, J.) 84 9

Before the High Court, the assessee raised two contentions which have beea re-agitated before us.

They are : (i) The Appellate Assistant Commissioner had no jurisdiction to make the impugned order because there was no misrake apparent "from the record of the appeal" within the contemplation of s.35 of the Act. (ii) Assuming that the words "record of the appeal" in s.35 were comprehensive enough to include the record of other related proceedings, the Appellate Assistant Commissioner had no jurisdictioa to rectify his decision dt. 30.6.65, by referring to some thing which actually and factually took place four years after that decision.

Elaborating his contentions, Mr. Desai submits that in the context of the present case, the words "record of the appeal" in s.35 would mean the record for the assessment year 1960-61 which the Appellate Assistant Commissid.1er had actually before him at the time of hearing of the appeal and not the entire record of the assessee relating to the

carli<:r years and a fortiori of later years.

Such appellate record, it is mentioned, had no apparent error which could be rectified under s.35.

The argument proceeds, that the order of the Tribunal for the assessment year 1959-60, made on 22.1.1969-whieh gave rise to the mistake-was something subscqueJ.1t and extraneous and could not, by any stretch of language, be called a part of the "record of the appeal"

rehting to the assessment year 1960-61. Support for this contention has been sought from a decision of the Mysore High Court in. Ganapathi Subbaraya Hegde v. State of Mysore,(1) which proceeds on an interpretation of s.37 of the Mysore Agricultural Income-tax Act.

Learned Counsel has tried to disHaguish the decision of this Court in M/s. Mahrana Mills (Private) Ltd. v.

The Income-tax Officer.

Porbandar(2) on the two-fold ground

(i) that that was a case of depreciation in which the written-down value had to be calculated with reference to the record of past years, and (ii) unlike the present case, there, the error was in existence and apparent from the record of the appeal at the time of its decision. It is argued that-Maharana Mills' case (>upra) was not one where the mistake was-rectified with reference to something happening subsequently to the original decision of the Appellate Assistant Commissioner.

Attempt has also been made to distinguish the Privy Council decision in Commissioner of Incometax v. Kliem Chand Ramdas(8 ) on the ground that there the mistake hJd become apparent as a result of the cancellation of registration of

the~ assess<:e firm in revision under s. 33 of the Act.

As against this, Mr. Ramachandran, learned Counsel for the Revenue submits that the "record of the appeal" spoken of in s.35 is the . entire evidence which could be looked into by the Appellate Assistant Commissioner for the purpose of the appeal.

Since the closing stock of one year and the opening stock of the succeeding year must necessarily be the same, the record of the assessment year 1959-60, was also relevant and therefore, a part of the record of the appeal arising out of the assessment for 1960-61. It is further canvased that the

(I) 84 I.T.R. 523.

(2) [1959] Supp. 2, S.C.R. 547.

(3) 61, I. T. R. 414- LR. 65 T. A. 236.

8-564SCI 175

Tribunal had for the I.T.O's frading as to the value of the closing stock for the assessment year 1959-60 being Rs. 8,04,121/- completely substituted its own finding regarding such v•alue being Rs. 5,89, 439 /-, with effect from the date of I.T.O's order, and thus the Tribunal's order, though passed subsequently, had, wit~ retrospec.:tive effect, become a part of the record of the appeal relatmg to the assessment year l 960-61, which could legitimately be looked int~ y the Apllate Assistant Commissioner for the purpose of asccrtammg and rect1fyr,1g the mistake in his appellate decision.

Relia1cc has been placed on the decisions of this Court in Maharana Mills (P) Ltd. v. Income-tax Officer, Porbandar (supra) and that of the Privy Council in Commi.i sioner of Income-tax v. Khemchand Ramdas (supra).

The material part of s.35 is in these terms :

"35 ( 1). The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or in the case of the Commissioner in revision under Section 33A and the Income-Tax Officer may, at any time., within four years from the dat1~ of any assessme1t order or refund order passed by

him on bis own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee ... "

 111e crucial words arc those that have been underlined.

The interpretation of the words "record of appeal" is not a matter which is res integra.

It came up for consideration before '.his Court in Maharana Mills case (Supra). The appellant therein (hereinafter called the Mills) was assessed to income-tax for the assessment year

1953-54 and by an order of June 30, 1955, the J.T.0. allowd depreci<ttbn under s. 10(2) (vi) of the Act in the amount of Rs. 3,48,105/-.

On August 8, J 955, the Mills made an application before the I.T.0. for rectification of the order under s.35 of the Act pointing out certain mistakes in calculations of the depreciation amount. The Incomctax Officer by his order, dated February 27, 1956, corrected the "written down value" of the differe,1t properties of the Mills and detem1ine<l the total allowable depreciation to be Rs. l ,94,074/-. The Mills challenged this order of rectification on several grounds two of tl!Jem. which arc material for our purpose, were: (a) that the provision of s.35 under which the Income-tax Officer had acted, was not mean, t for the purpose of making corrections in written down values, the correct provision being s.34 which specifically refers to excessive depreciatiou. :v.id (b) that, in any case, he had exceeded his jurisdiction under .s.3:> in calculating the depreciation on the written down value of the buildings and machinery of the appellant acting s110 motu and that he could corre. ' only those mistakes which had been pointed out by the milfa.

The arsument was tbr: recalculation is not rectifying a mistake which is apparent from the record. This Court negatived these contentions with thi~ observation :

"1 he words used in the section are "apparent from the <ecord" aud the record docs not mean only the order of assessment but it comprises all proceedings on which the assessment order is based and the Income-tax Officer is ci,1titled for the purpose of exercising his jurisdiction unde_r s.35 to look into the whole evidence and the law applicable to asccnain whether there was an error. If he dollbls the Written Down Value of the previous year it is open to him to check up the previous calcul?''' :·, s and if he finds any mistake it is open to him to make fresh calculations in accordance with the Jaw applicable including the Rules made thereunder."

This Court then noticed Venkatachalam's case(1) and Khem Chand's case (supra) in support of the view taken by it.

Counsel for the then appellant sought to distinguish these cases on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. This argument was repelled in these terms :

"That is a distinction without a difference.

Jf, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmatic mistake in the account of the Written Down Value of the prope11ies which resuited in a correspondin.~ ; i1i, take in the asscssl)lent of ·, he year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record. A fortiori if he discovered that the very basis of the different assessments \vas erroneous because of an initial mistake in determining the

Written Down Value could it be said that this v.-uuld not be a mistake apparent from the record.

And if' in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that that is not rectifying a mistake apparent from the record but de110rs it."

The observations of this Court, quoted above, fully apply to the facts of the case in hand. It will bear repetition that the closing stock for the assessment year 1959-60 as entered in the books of the assesscc. was Rs. 5,89,439/-, and as found by the Income-tax Officer wa;~ Rs. 8,04,121/-. Since the closing stock of one assessment year furnishes the figure 'Of the opening stock for the succeeding year, it follows that the record showing the closing stock of assessment yen 1959-60 formed a part of the evidence relevant to the assessment for the assessment year 1960-61. Thus to the extent of ascertaining the closing and opening stock p0sitions, the two assessments telescoped into each other. Jndeed, it was on this basis that the Appellate Assistant Commissioner had by his decision dated 30-6-1965 allowed the assessee's appeal regarding A.Y. 1960-61. The Tribunal's finding,

(I) !1959] S.C.R. 703.

SUPREME COURT REPORTS [1975] 3 S.C.lll.

that the value of the closing stock for A.Y. 1959-60 should be Rs. 5,89,439/-, had completely replaced the Income-tax Office:r's finding in regard to th'at fact with effect from the date of the Incometax Officer's order relating to A.Y. 1959-60. If the I.T.0.'s finding with regard to the closing stock for A.Y. 1959-60 was relevant to and part of the "record of appeal", the Tribunal's decision which superseded that finding, was equally so within the contemplation of s.35 of the Act.

It cannot be gainsaid that the mistake in regard to the opening stock for A.Y. 1960-61 being Rs. 8,04,121/-, was quite apparent when the Appellate Assistant Commissioner undertook to rectify his aJ?pellate. order dated 3~-6--65, te correct figure of valuation finally determmed by the Tnbunal bemg Rs. 5,89,439/-.

Thus considered, it is clear that or the purpose of ascertaining the true stock position the record of the assessment for A.Y. 1959-60, including the Tribunal's decision, was not extraneous or irrelevant to the record of the appeal and could legitimately be !o'Oked into for the purpose of correcting the mistake by the Appellate Assistant Commissioner.

Thus the first contention of the appellant stands overruled.

The second point canvassed by Shri Desai is well-nigh covered D by the ratio of the privy Council decisions in Khem Chand's case (supra). The assessee in that case did not produce his account books and the lncume tax Officer made an assessment on the 'best-judgmmt basis'.

On the application of the assessee, however, he allowed registration of the assessee-firm on January 17, 1927.

As it was a registered firm, he did not in the assessment order made under s.23(4) on the same day, assess any super-tax. The Ccmmissioner of E Income-tax in exercise of his powers under s.33 of the Act, called for the record, cancelled the registration on January 28, 1927, and

directed the I.T, O. to take necessary consequential action.

The result was that by an order, dated May 4, 1929, the assessee was assessed to super-tax. Three days later, a demand notice was issued.

On these facts, ddivering the opinion of the Judicial Committee, Lord Romer made these pertinent observations in regard to the applicability F of s.35 :

"in their Lordship's opiniun, the case clearly would have fallen within the provisions of section 35 had the Incometax Officer exercised his powers under the section within one year from tne date on which the earlier demand was served upon the respondents. For, looking at the record c of the assessments made upon them as it stood after the cancellation of the respondent's registration-and the order affecting the cancellation would have formed part of the record-it would be apparent that a mistake had been made in stating that no super-tax was leviable."

From the quotes above, it is evident that the Judicial Committee H considered the order of the Commissioner cancelling the registration of the assessee's firm-although passed about 11 days after the

original assessment-to have formed part of the record of the assessment, for the purpose of rectifying the mistake as a mistake apparent from the record of the case.

On parity of reas(ming, in the instant case, the finding of the Tribunal as to the valuataion of the stock, although recorded subsequently to the appellate decision of the Appellate Assistant Commissioner, could be taken as forming part of the record of appeal and taken into account for the purpose of correcting the mistake, under s.35, as to the value of the opening stock for A.Y. 1960-61, apparent from that record. ,

We do not want to overburden this judgment by a discussion of Ganapatho Subbaraya Hegde's case (supra) cited by Shri Desai.

Suffice it to say that this was a case under s.37 of the Mysore Agricultural IncC1llle-tax Act, 1957.

The notice for rectification issued in that case and the orciers of the authority were found to be defective in as much as they did not state that there was any mistake apparent on the record of the assessment proceedings for the previous three years in question.

Maharana Mills' case and Khemchand's case

(supra) were not noticed by the High Court in that case.

Lastly, Shri Desai urged that we should not lose sight of the startling results which might flow from a liberal interpretation of s.35. It is apprehended that if the phrase "record of the appeal" is widely interpreted so as to cover the records of all collateral proceedings and subsequent events, it would leave the door wide open to endless harassment of assessees; the income-tax authorities would under the guise of correcting mistakes, lightly reopen assessments long past and closed, and thus introduce an element of disconcerting instability in the administration of the Act.

In our opinion, there is no worn for any such apprehension. It must be remembered that a decision is a precedent on its own facts.

Each case presents its own features. The income-tax authorities and Tribunals are supposed to apply the ratio of a decision, to the facts of particular cases with due care and discernment, bearing in mind F the restricted scope of their jurisdiction under s.35 and the object for which it is conferred.

The appeal fails and is dismissed with costs.

P.B.R.

Appeal dismissed.

P.B. DESAI, APPELLATE ASSISTANT COMMISSIONER OF INCOME TAX AND ANR

V. R. KRISHNA IYER

R. s. SARKARIA

A. c. GUPTA, JJ.

Jnconw-Tax Act, 1961

Art. 226

s. 35

Income-tax Act

s. 35

J\IAHENDRA MILLS

P. B. DESAI

s. 35

s. 35

LR. 65 I.A. 236

s. 35

S. T. Desai

I. N. Shroff

T. A. Ra111aclw11dra11

S. P. Nayar

SARKAR!/

High Court of Gujarat

Indian Income-tax Act, 1922

State Bank of India

Article 226

Gujarat High Court

P. B. DESAI

Sarkaria

Desai

Mysore High Court

Income-tax Act

Maharana Mills

s. 33

Ramachandran

Section 33A

June 30, 1955

s. 10(2)

August 8, J 955

February 27, 1956

Venkatachalam

Khem Chand

January 17, 1927

January 28, 1927

May 4, 1929

Romer

section 35

Ganapatho Subbaraya Hegde

Maharana Mills

Khemchand


STATE OF ASSAM

BHUBHAN CHANDRA DATIA & ANR.

March 5, 1975

[A. N. RAY, C. J., K. K. MATHEW AND V. R. KRJSHNA IYER, JJ.] Assam a11d Nagaland High Court Services (A ppointmcnt, Conditions of Sm•ice and Conduct) R.ules, 1956. rr. 3 and 11-Scope of-Power of Chief /11stice 10 fi.t special pay and allowance of Registrar.

Under the Assam and Nagaland High Court Services (Appointment, Condi tions of Service and Conduct) Ruks, 1956, the initial pay of ihe Registrar of the High Court was .Rs. 850/ • per month.. Under r. 3 U >,. when th~ post '"'.3S filled up from the iudicial service, It will carry a special !JUY. rhe Cluef Justice had also power under the rule to l\x, wl tgout the prev10~ approval of the Llovernor, the initial pay up'to Rs. 1200/- per month accordmg.to expn ence etc.

Subsequently, the rule wa5 altered authons, ng the Chief Justice 10 fix the in:tial pay, without the approval of the Governor, up to Rs. 1180/-.

The State Government revised the pay scale of the Registrar with effect fr.om

ht April 1964 anc! fixed the initial pay at Rs. 1200/-, A special pay was also sanctioned if he was borne on the judicial serv.ce, but no change in r .. 3(1), authorising the Chief Justice to fix the initial salary up to Rs. 1180/·

per month was made,

On April 28, 1967, the respondent, who had retired from the judicial service and was holding the post of Pres:ding Officer. Industrial Tribunal, was appointed

Rgistrar of the High Court and the Chief Justice fixd a spcial initial sahiry of Rs. 1500/-, that is, at the maximum of the !ale, and a special allowar1ce of Rs. 250/-.

On the question whether the fixation of the salary and special allowance was l'a!id the High Court held in favour of the respondent on the grounds that,

(a) becuse in the past the Chief frstice could appoint the Registrar with the ; pccial pay of Rs, 1200/· or Rs. 1180/- when the initial pay was Rs. 850/., that is, he could gJve six increments of RB. 50, the Chief Just'ce could now appoint the Registrar witb the special pay of Rs. 1500 /- when the initial pay was Rs. 1200/- by giving five increments of Rs. 60; and (b) when the initial pay itself was Rs. 1200/· the power of the Chii:f Justice to fix a special pay of Rs. 1180/- became meaningless and i:nust be read as Rs. 1500/·.

Allowing the appeal to this Court,

HELD : ( 1) The reasoning: of the High Cou1t was wrong and no su,:h power could be implied in the Chief Justice, If the Chief Justice wanted 1:0 uppoint the Registrar with the special salarv of Rs. 1500/. and special an ow. 11.nc:e, approval of the Governor should have bee.n taken under Art. 229(2),

because the rules do not permit such a sllilary and the higher salary involvc:s greater financial burden on the Government. (857G-858BJ

M. Gurumoorthy v. Accountant General Assam & Nagaia11d & Ors. (1971] Supp. S.C.R. 420 followed.

(2) Further, r. 3(1) conferred power on the Chief Justice to fix the speci<il •tllowancc onlv we~ the oost is filled from the members of the judicial servic(:.

The. post of. Pres1d111g Officer, Industrial Tribunal was im; Iu<led in the Assam fodlClal Service only on Atlgust 17, 1967, and not when the respondent was appointed as a Registrar of the High Court. That apart, it is indisputable that the respondent had retired from the State Judicial Service and it could not be aid that such a retired person was member of lhe Judicial Service or wa:; borne on the service. [8580-F] ·

(3) Rule 11 is a general rule and is not applicable to we appointment andl fixat10u of pay and special altowan:es of the Registrar because there is specific

A provision; namely,! r. 3 ( 1) for the post of Registrar vvhich prevails over the general rule.

Moreover. r. 11. must al-:o be read subject to the proviso 10 Art. 229'(2) which. requires the approval of the Governor for fixing pay ClL'.

Also, Fundamental Rule 19 does not permit any su:h fixation in the teeth of r. 3(1) on the strength of r. 11. f859C-FJ

CML APPELLATE JuRISDICTlON : Civil Appeal No. 1547 of 1969.

B Appeal by Special Leave from the Judgment and order dated the 19th May, 1969 of the Assam & Nagaiand High Court in Civil Rule No. 126 of 1969.

Moinul Haque Choudhary and Naunit Lal, for the appellant.

Sarjoo Prasad, and S. N. Prasad, for respondent no. 1.

P. l'. Rao and S. P. Nayar, for respondent no. 2.

RAY, C.J.-This appeal by Special leave raises the question as to whether the appointment of the Registrar of the High Court f Assam at a special salary of Rs. 1500/- with special allowance of Rs. 250/- is valid.

On 28 April, 1967 Bhubhan Chandra Dutta was appointed Registrar of the High Court of Assam.

The appoinra1ent was made by the Chief Justice of the Assam High Court in exercise of powers conferred by Article 229 of the Constitution of India and Rules 7 and 13 of the Assam & Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967.

The order of appointment of the Registrar was as follows : "He shall be entitled to draw an initial pay of Rs. 1500/ per month les5 the pension, if any, he has been drawing from the Government.

He shall, in addition to the pay, be entitled to draw a special pay of Rs. 250/- per month admissible under the Rules to the Registrar of the High Court. He shall hold the appointment for a minimum period of two years in the first instance. This period may, h0wever, be extended as considered suitable and necessary by .the Chief Justice."

It may be stated here that Bhubhan Chandra Dutt11 had previously been Additional District Judge and also the Registrar of the High Court. On 1 July, 1958 Bhubhan Chandra Dutta attained the age of 55 years.

He was then the Registrar of the High Court. He was given aa extension of one year.

On 1 July, 1959 he retired as Registrar of the High C\>urt.

On 25 July, 1968 the Deputy Registrar of the High Court under the direction of the Chief Justice wrote to the Secretary to the Governp1ent of Assam in the Law Department to instruct the Accountant General to issue provisional pay slip to Bhubhan Chandra Dutta for Rs. 1500/- as pay plus special pay of Rs. 250/-. On 2 August, 1968 the Accountant General issued a provisional pay slip for the period 1 May, 1967 to 31 October, 1967 authorising Bhubhan Chandra Dutta

ta draw a sum of Rs. 870.75 as provisional pay. The special pay of Rs. 250/- was not included in the pay slip. Bhubhan Chandra Dutta thereafter filed a writ petition in 1969 in the High Court at Assam for a mandamus to give effect to the notification dated 28 April, 1967 appointing him to the post of Registrar

:fixing the pay and special pay allowable to him and a further mandamus on the Accountant General, Assam and Nagaland, Shillong to issue pay slip to Bhubhan Chandra Dutta for the full amount payable to him in terms of the said notification.

 The High Court issued a mandamus directing the appellant to issue pay slip to Bhubhan Chandra Dutta at the rate of Rs. 1500/- per month minus his pension and a special pay of Rs. 250/- per month.

Bhubhan Chandra Dutta, according to the mandamus issued by the High Court, be:came entitled to the said salary as Registrar for two years with effect from 1 May, 1967.

There is no dispute that under Article 229 of the Constitution the appointment of the Registrar is to be made by the Chief Justice of the High Court. lt mav be stated here that under Rule 7 of the Assam and Nagaland High- Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967, a person who had retired from

the State Judicial Service Grade I could be appJinted Registrar. The only question is whether the Chief Justice had authority to appoint tr.e Registrar at a salary of Rs. 1500/- p.m. and special pay of Rs. 250/- p.m. In view of the fact that Bhubhan Chandra Dutta had already retired from the Judicial Service and was drawing pension, it is common ground that the pension that he was drawing was to be deducted from the salary of Rs. 1500/-.

Under the Assam and Nagaland High Court Services (Appoiintment, Conditions of Service and Conduct) Rules, 1956, the pay scale of the Registrar was at Rs. 850-50/1-1500 per month.

The relevant Rule 3(1) of the 1956 Rules provided as follows: "The post of the Registrar, when filled up from the Service will carry a special pay of Rs. 150/- per mensem in additi'Un to the Grade pay as admissible to the members of the Assam Judicial Service (Senior) Grade I.

In any other case the Chief Justice will have power to fix, without the previous approval of the Governor, the initial pay up to Rs. 1200/-· a month according to the experience, ability and age of the person concerned."

Subsequently the pay scale was fixed at Rs. 850--50--1000- 60--1300--EB--50--1500. With the said change in the pay scale there was a consequential alteration in Rule 3(1) authorising the Chief Justice to fix the initial pay, without the approval of the Governor up to Rs. 1180/-.

Therefore, under the 1956 Rules the Chief Justice could appoint a Registrar at the initial pay up to Rs. 1200/"' a month without the previous approval of the Governor.

When the pay scale was subsequently changed the Chief Justice could similarly fix the initial pay of the Registrar without the approval of the Governor at Rs. 1180/-.

The Government revised the pay scale of the Registrar on 4 September, 1967. The revised pay scale was Rs. 1200-60-1380-EB-60-

1500. is revision was however made _with effect from 1 April,

1964. With effect from that date a special pay was also sanctiorud if the Registrar was borne on the Judicial Service. It should be stated here that when the pay scale was revised in 1967 there was r10

change in Rule 3( 1) which as it stood then said that the Chief Justice could fix the initial salary at Rs. 1180/- per month. ·

The High Court held l}1at when the initial pay of the Registrar became Rs. 1200/- the authority to fix the initial pay at Rs. 1180/- became . meaningless, and, therefore, by implication the figure of Rs. 1180/-

should be r .... ad as Rs. 1500/-. The reason given, by the High Court was that 'vhen the Chief Justice could fix the initial pay at Rs. 1180/- under the Rules the Chief Justice could allow six increments at the time of initial appointment. Therefore, according to the High Court, when the initial pay became Rs. 1200/• the authority to fix the initial pay would be Rs. 1500/- because the Chief Justice could grant six increments at the time of initial appointment.

The High Court also said that though six increments at the rate of Rs. 60/- would make it Rs. 1560/-, the sum o~ Rs. 1500/- should be adopted because that was the highest pay.

When in 1967 the pay scale of the Registrar was revised-there was no corresponding alteration in the Rules that the Chief Justice would have power oo fix, without the authority of the Governor, the initial

py at Rs. 1500/-.

At no stage could the Chief Justice fix the initial pay up to the maximum of the scale of pay which remained constant at Rs. 1500/- ail throughout, notwithstanding .the two revisions in the scale of pay. On the other hand, it appears that at no time the Chief Justice

wa~ emirowered to fix the initial pay higher than Rs .. 1200/-. When the scale of pay was revised in 1964 it is significant to know that the power of the Chief Justice to fix the initial pay was reduced from Rs. 1200/- to Rs. 1180/-.

Just because the initial pay of the Registrar in 1967 becMne Rs. 1200/- and with five increme.1ts the salary would be Rs. 1500/- no implication can arise on the power of the Chief Justice oo appoint the Registrar at the initial pay of Rs. 1500/-. The reasoning of the High Court that because in the past under the Rules the Chief Justice could app0int the Registrar at the initial pay of Rs. 1200/- or at Rs. !180/- which showed that the initial pay of Rs. 1200/-. or Rs. 1180/- gave six increments at the time of initial appointment, there is no warrant for implying the power to appoint the Registrar at the highest salary of Rs. 1500/- at the time of initial appointment on the ground that it would carry increments.

Article 229 of the Constitution confers power on the Chief Justice of the High Court to appoint officers and. servants of the High Court.

Article 229(2) states that. subject to the provisions of any law made by the Legislature of the State, the conditions of the service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229f2) shall, so far a~ they relate to salaries, allowanc•s, leave or p , jons, require the approval of the Governor of the State. It is Lvt disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/- per month with special allowance of Rs. 250/- per month was made without

lhc approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500/- with a special salary of Rs, 2'JO/- per month, special approval of the Governor shouRd have been taken in view of the fact that the rules did not permit such salary and the higher salary involved gre.ater financial burde:n on the Government. (See M. Gurunworthy v.

Accoumam General Assam & Nagaland & Ors. (1971) Supp. S.C.R. 420).

The special pay of Rs. 250/- per month which was granted. by the Chief Justice to the Registrar by his order dated 28th April, 1967 was impeached by the State on the ground that Rule 3(1) confe:rred power on the Chief Justice to fix the special pay only when the J?OSt 1s filled from the m.embcrs 'Of the Assam Judicial Service (Senior) (irade I. It was contended by the State that Bhubhan Chandra Dutta

at th-: time of his appointment on 28 April, 1967 had retired from service and he was no longer a member of the Service and therefore he was not cotiitlcd to any special pay.

On behalf of Bhubhan Chandra Dutta it was said that he was, at the time of appointment of the Registrar, the Presiding Ofiker, Industrial Tribunal, and, therefore, he was a member of the Judicial Service.

The High Court interpreted Rule 3(1) to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special pay of Rs. 250/- pier month.

On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judidal Service (Seni6:r) Grade I. This post was included in the Assam Judicial Service on 17 August,_1967. That apart it is iadisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not, therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.

Counsel on behalf of Bhubhan Chandra Dutta in the alternative submitted that under Rule 11 of the Assam and Nagaland High Court Service Rules the Chief Justice had power to fix the pay of Rs. 1500/- and the special pay of Rs. 250/- per month.

Reliance was also placed on Fundamental Rule 19. Rule 11 and Fundamental Rule 19 are set out hereunder :~

"Rule 11

(i) In regard to pay, allowances leave, leave salary or. pension, th1: Rules and Regulations applicable to the members of' the services under the rule making power of the Government of Assam shall appliy, mut.atis mutandis to persons serving in this High Court and subject also to such amendments and variation8 as may be made .by the Chief Justice frnm time to time with the approval of the Governor, where neces.'llll'}'. - Provided that the powers . exercisable under the said rules llnd orders by the Governor or by any authority sub-

A ordinate to the Govern:or shall be exercisabli! by the Chief Justice or by such person as he may, by special or general order direct.

(ii) Any question arising as Jo which rules or orders are applicable to the case of any person serving 01i the staff attar.hcd to the High Court shall be decided by the Chief B Justice".

F.R. 19 "111e fixation <if pay is within the competence of the Provincial Government; provided that, except in the case of personal pay granted in the circumstances defined in Rule 9(23)(a), the pay of a Government servant shall not be so increased as to except the pay sanctioned for his post without th:: sanction of an authority competent to create n post in the same cadre on a rate of pay equal to his pay when increased".

The High Court held that the Chief Justice under Rule ll(i) read' with Fundamental Rule 19 could fix the pay of the Registrar at Rs. 1500/-. Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3(1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1 ) . The revision of pay scales cannot have the effect of transferring the power from Rule 3(1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229(2) of the Con- . stitution. Any fixati<:m of pay by the Chief Justice apart from Rule 3(1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3(1) on the strength of Rule 11.

The High Court wa~ wrong in granting a mandamus.

The Respondent Bhubhan Chandra D.!:!tta was entitled only to the initial pay of Rs. 1200/- less pension and gratuity. The amount was calculated by the Accountant General at Rs. 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.

I For these reasnos the judgment of the High Court is set aside.

The appeal is accepted. The rule granted by the High Court is dis~ charged. In view of the fact that the appeal is by special leave we need not express any opinion on the contention advanced on behalf of the State that the High Court should not have "entertained a writ for the enforcement of a contractual claim or a monetary claim.

This Court at the time of granting the special leave made an order that the Respondent Bhubhan Chandra Dutta would be at liberty to withdraw Rs. 1000/- out of the security amount.

Save as aforesaid, the parties will pay and bear their own costs.

V.P.u.

Appeal allowed.

STATE OF ASSAM

BHUBHAN CHANDRA DATIA & ANR

A. N. RAY

K. K. MATHEW

V. R. KRJSHNA IYER, JJ.

April 28, 1967

Art. 229(2)

Atlgust 17, 1967

Art. 229

Nagaiand High Court in Civil Rule

Moinul Haque Choudhary

Naunit Lal

Sarjoo Prasad

S. N. Prasad

P. l'. Rao

S. P. Nayar

RAY

28 April, 1967

Bhubhan Chandra Dutta

High Court of Assam

Assam High Court

Article 229

Constitution of India

Bhubhan Chandra Dutt11

1 July, 1958

High Court at Assam

Article 229

4 September, 1967

1 April,

1964

Article 229

Article 229(2)

Article 229

28th April, 1967

Assam Judidal Service

Assam Judicial Service

17 August,_1967.

Article 229(2)

Bhubhan Chandra D.!:!tta


MOHAMMAD ABDUL SALAM KHAN

SARFARAZ AHMAD KHAN & OTHERS

March 5, 1975 [A. N. RAY, CJ., K. K. MATHEW, v. R. KRISHNA IYER,

AND A c. GUPTA., JJ.]

U.P. Town Areas Act, (II of 1914) s, 6K-.Scope of-Dismissed Govem- .111mt serwmr-Jf could be elected as Chairman of Town Area Commillee-

Di.tmissal-Mea11i11g of.

Punjab Police Rules-Rule 16(2) (iii)-Scope of-Publication of dismissal i11 Police Gazette--Ef]ect of.

Section 6K of the U.P. Town Areas Act proviqes that a person, notwith standing that he is otherwise qualied, sbaH be disq1:1alifie? for. being. ch.osen .as, and f'or being a member or Chairman of a Committee 1f he 1s 3: dts!lllssed

servant of a local authority, the State or Central Government and 1s debarred fr.om reemployment therein.

Rule 16(2) (iii) of the Punjab Police Rul7s, which apply to respondent No. 1 at the relvant t'me, states that when a pohce officer is convicted judicially and dismissed, or dismissed as .a result of a departmental enquiry, the conviction and dismissal and lls cause shall be publisher! in the PoEce Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re.employed elsewhere, a full descriptive roll, with particul:irs of the punishments. shall be sent for publication in the "Police Gazett~. ·

The first respondent, a dismissed police' constable. was elected as Chairman of the Town Arca Committee. The appellant. who was the defeated cand:date, assailed the election of the respondent. 'The Election. Tribunal constituted under th'e U.P. Town Areas Act set aside the election and declared the appellant as the Chairman. Jn a writ petition under Art. 226, a single Judge of the High Court affirmed the order of the Tribunal as regards the election of the respondent No. I but in relation. to the relief directed against the declaration of the appellant as Chairman.

A Division Bench of the H:gh Court allowed the appeal of respondent No. I holdinl!: that s. 6-K spoke of two components, namely, (a) dismissal and (b) being debarred from re-employment and since the second ingredient was not priesent in the order of termination against the constable, the formula for disqualificat'on was not fulfilled. ' Allowinl!: the appeal,

HEL~ : (I) There is no escape from the conclusion that the hrst respond1:nt was punished under the former part of r. 16(2) (iii) and incurred the extreme wrath of the law i.nclud!ng isbarment from re-employment.

Logically, therefore, he suffered d1squahficahon under s. 6-K of the Act and the Tr:bunal in Temoving him from Chairmanship, acted legally. [866 F] ·

ction 7 of the Polici: Act speks of dismissal as a single category of pumsh!11ent, not as two twigs from the same branc)l, that is, dism'ssal wit/rout

?~:I 'fl!llh , en:ibargo on re-entry mto State service. When s. 7 uses the express10n

d1sm1ssal • 1t ust be deemed to have conveyed the official semantics attached .10 that express10n, namely, removal from §ervice plus a ban on re-employment

by, the State. 'f!le non-enumeat!on of 'rC'!Joval' as a distinct form of punbhmt.n! oes not divest the appo:ntmg authonty from exercising, subject to legal

rest~1cl!ons, the i; io111:er to remove from service without inflicting the more serious punishment of d1sm1ssal. [864 C; F]

ABDUL SALAM V. AHMAD ~N 861

(2) The words 'dismissal' and 'r<:moval' h.ave one distinction, namely, tbat the former di5qualifies from futme employment while the latter does not.

Therefore, dismissal is removal with .i prohibtion super-added. [864 H; 865 DJ

Kliem Chand v. Union of India [1958) S.C.R. 1080, 1089 and Shyamlal's case, A.I.R. 1954 S.C. 369, 374, referred to.

(3) (a) "Dismissal" removes the man from his office and super-adds debar- ent from re-employmet. Such being its meaning in the Indian ConsUution,

~~ . the. rel~, vant rules whch have been in force in this country over the decades

. d1sm1ssal has to be )Jnderstood, as punishment imposed upon the constable. m this case, as one which embodies the latent penalty of disability from being re-e_mployed. [866 BJ

(b) Rule 16(2) (iii) does not state "in other cases of dismissal" the bar against re-<:mployment operates only where there is publication in the Police, Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both. classes of cases but in the first category covered by the rule, publication is a duty cast upon the author, ty while in the second category the euthority is left with the option to publish or not to publish. If the dismilislng authority. desires to ensure itself that unwittingly some other department may not employ ihe dismissed official, it may, by way of abundant caut.on, resort to publication of the punishment in the Police Gazett~. The language is clear that to ensure Lhat the officer dismissed shall not be re-<:mployed the concerned authority. shall send for publication the relevant particulars. Not that without $Uch publication a right to re-<:mployment inheres in the dismissed official, but that tl> make sure that any unknowing slip may not be committed by another depart ment, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling, so far as the dismissin~ authority is concerned, and iS legally unnecessary to spell the two-in-one pumshment or dismissal. (866 C-El

ARGUMENTS

Fr•r the Appellant :

From a plain reading of s. 6-K of the U.P. Town Areas Act it is clear that if a man is dismissed from service of a local authority, Central Government or State Government by way of punishment and is debarred from re-employment thereunder, he cannot contest the elecLon for the Chairman of the Town Area_ Committee. From a plain reading of s. 6-K it becomes clear that the intention of the legisla:ure in enacting this law was that the persons who have been dismissed from service by way of punishment will not be qualified for elect:on to. the post of Chairman. Town Area Committee. This section contemplates only such dismissed servants who have been dismissed from service by Way of punishment for mis-conduct. and indiscipline.

For Respondelll No. 1 :

Respondent no. I was removed from the Delhi Police Service and was not a dismissed servant within the meaning of s. 6-K of the U.P. Town Area Act.

The words 'dismissed servant' used in s. 6-K in that Act were used in a broader sense and meant a servant whose services were terminated. The words 'and is debarred from re-employment therein used in that section clearly indicate that the election petitioner will have to prove that the services of respondent No. 1 were terminated and he was debarred from re-<:mployment.

Section 7 of the Indian Police Act and r. 16(2)(iii) of th.e Punjab Poliee Rules were applicable to Delhi.

If a Police Officer is convicted by a Court of law and is dismissed as a result of the departmental enquiry in consequence of corrupt practices, such a dismissal would ipso facto mean dism'ssal by way of punishment. However. if the terminatin <?f service w_as on ccount of anv other reason, then if the authority termmatmg the services desires to ensure that the officer dismissed shall not be re.employed elsewhere, a full descriptive roll with particulars of the pun'shment shall be sent for publication in the Police Gazette. In the present case the iervices of the respondent no. I were terminated in dep; irtrp.ental inquiries, the dismissal wus not on account of corrupt practice falling undr the first part of r. !6(2)(iii) of the Punjab Police .R11Jc;.

Secondl.Y there was no publication in the Police Gazette. It must therefore follow tlrnl it was a case of removal anJ not dismissal.

Crv1L APPELLATE JURISDICTION : Civil Appeal No. 1200 of 1974.

Appcdl by special leave from the judgment and order dateJ the 4th April, J 973 of the Allahubad High Court in Special Appeal No. 34 of 1973.

R. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and

K K.

Mohan, for the npp1:1lant.

J. P. Goyal and G. S. Chatterjee for respondent No. 1.

The Jdgmcmt o.f. the Court was dclivcml by

KRISHNA IYER, J .-A single legal issue presents itself for solution in this appeal.

The question i& whether n public servant dismissed for misconduct is 1.10t ipso jure disbarred from employment .uinder the State. 1f 'yes', the 1st respondent is ineligible for the public.

office of Chairmanship of Town Area Bugrasi from where he has been removed on the ground of dismissal from government service, resulting in the eruption of this election dispute. If 'no', restoratron to the lost office inevitably follows.

The appellant and 1st respondent were rivals for Chairmanshio of Town Area Uugrasi in U.P.

The latter, a dismissed police constable, was returned by the electorate and the former, chagrined by the defeat, successfully pctiti'oned the Election Tribunal.

The Ground

The appellant and the 1st respondent were two of the three candidates for Chairmanship of the Town Area of Bugrasi. The .1st respondent secured the highest number of votes and was declared elected by the Returning Officer. Thereupon the appellant moved the statutory trib\.tnal by an election petition which was allowed on the scare of disqualification for being chosen as Chairmll'.1 by virtue of s. 6-K of tho U.P. Town Areas Act (Act 11 of 1914). The disqualification

stemmed from dismissal of the 1st respondent on September 26, 1963 from the Delhi Police Force.

When the Election Tribunal set aside the l st respondent's election and declared the appellant as the Chairman, the unseated candidate invoked the writ jurisdiction of the

High Court. The learned Single Judge who heard the petition affirmed the order of the Tribunal substantially but in relation to the relief directed against the declaration of the appellant as Chairman, the order was vacated.

That question was left to be decided afresh in tho light of certain "Observations of the learned Judge. Dissatisfied hy th, e result, of both the appellant and the 1st respondent filed Writ Appeals before a Division Bench of the High Court which ended in the allowance of the claim of the 1st respondent to be Chairman a!1.d consequential dismissal of the appeal of the other.

The aggrieved appellant has, therefore, come up to this Omrt by special leave for relief based on the construction of two slightly aJ.J1blguous rules havin some impact on this village election. '

AilDUL SALAM \!, AHMAD Kl{AN (Krishna Iyer, ]. ) 863

Before opening a political chapter, respondent No. 1 had ended his official career as police constable under dismissal order dated

sptembcr 26, 1963:

"Constabie No. 3048 Sarfraz Ahmad Khan is dismissed from the forenoon of 25-9-1963 of having been in illicit relation with Mrs. Chatterjee and her daughter.

The conduct of the constable is most reprehensible, adulterous and unworthy of a Police Officer who is supposed to protect the Society from such vices."

He ran for Panchayat Chairmanship and won, defeatini; the appellan-t and the 2nd respondent.

The disability ir election in the present irystancc is said to sping from the dismissal of the lst respondent from government service as aforesaid.

let us examine the relevant legal texts.

The pertinent part of

~. 6-K .• relied on by the appellant as fatal disqu•a!ification, reads :

"6-K. Disq1wlificatio11 for members and Cluiirman-

A person notwithstanding that he is otherwise qualified, shall be disqualified for being chosen l).S, and for being, a nJc•mber or Chairman of a Committee, if hc-

(a) is a dismissed servant of. a local authority, the State or Central Government and is debarred from re-employment therein,

Is the contesting respondent 'a dismissed servant of the State Government and is debarred from re-employment therein'? That is the question. The statute is of 1914 vintage, but amended from time to time, and we have to interpret it in the light of legal provisions and constitutional developments.

Does 'dismissal' automatically spell.

'dibarment fm re-employment' ? The argument . which weig.hed witb the High Court is that s. 6-K speaks of two compon.:nls (a) dismissal; (b) and being debarred from re-employment. The second ingredient is not present in the terminal order against the constable and so the formula for disqualification is not fulfilled.

We are not impressed with this dualism. If dismissal simpliciter carries within it the ban on re-employment as a necessary jural iocidcr.t, then both the elements are present implicitly in the order.

It is not as if the interdict against re-employment should be separate.ly stated in the rule or order if by force of Jaw an effective bar in that behalf can be read into the order cashiering the constable.

So we 11re thrown back on the order itself which, admittedly, is silent on pruhibition of re-employment.

Counsel for the contestant, Shri Goyal, strenuously argud that the Police Act and the relevant rules bearing on disciplinary action are telling and must be treated as decisive.

Brushing aside the ripples of confusion raised in the course of arguments about the source of vawer for framing these rule!r-no party, at any stage, has challenged

lthe vires of the rules-we may reproduce r. 16(2)(iii) which gvverns th; situation. Before that, a glance at s. 7 of the Police Act : 'Subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time makt: under this Act, the Inspectur General, Deputy Inspectors--General, Assistant Inspectors-General and District Superintendents, of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his ctuty or unfit for the same."

It is clear that s. 7 speaks of dismissal as a sh1glc category of punishment, not as two twigs from the same branch i.e., dismissal without and with embargo on re-e.1try into State service.

It may, however, be noticed that there is no specific reference to removal from service, a recognised form of punishment sanctified by the Constitution Acts, including Art. 311. Since s. 7 expressly subjects itself to the paramount law of the Constitution it is obvious that the power to remove is not eroded and vests in the appointing authority apart from the power to dismiss.

Indeed, the Central and State rules regulating disciplinary control, all over the country, have, for a long period, made distinction between dismissal and removal, the former carrying the more injurious incident of removal plus refusal of future re-employment.

Anyone conversant with disciplinary control of government servants in India will agree that this fundamental differe'ace between mere removal and dismissul exists. Art. 311 enumerates dismissal and removal as two different punishments, one more serious than the other. It is perfectly plain that, unders!ood in this environment of legal control of government servants prevalent historically in this country, s. 7 of the Police Act, when 1t use~ the expression 'dismissal' must be deemed ro have conveyed the offidal S<!mantics attached to that expression, viz., remm"'al from service plus a ban on re-employment by the State.

The non-enumeration of 'removal' as a distinct form of punishment does not divest the appointing authority from exercising, subject ro legal restrictions, the power to remove from service without inflicting the more serious punishment of dismissal.

The expressions 'dismissal' and 'removal' laok alike fo'r the laity but fo. law they have acquired technical meanings sanctified by h:mg

usage in Service Rules.

In Khem Chand v. Union of India(!) t!is Court observed :

" ... the expressions 'dismissed', 'removed' and 'reduced' in rank' are technical words taken from the service rules where they are used to denote the three major categories of punishment."

A5 has been rightly pointed. out fo. a recent book(2), the words 'dismissal' and 'removal' have one distinction, viz., that the former dis- --------

(I) [1958] S.C.R. 1080, 1089.

(2) The Civil Srvant under the L1w and th, Co:.stitution-by Dr. N. Narlyanan Nair-"". The Academy of Legal Publications. Trivandrum-1 Kcrala (1973). - •

ABDUL SALAM v. AHMAD KHAN (Krishna Iyer, J.) 865

qualifies from future employment while the latter does not Likewise, there is reference to this distinctioL in Shyamlal's Case(1) wherein it was said :

"'The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee (J.M. Lal's Case: AIR 1948 PC 121) there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not . . . and it may be safely be taken, for reasons stated above, that . . . . removal and dismissal stand on the same footing except as to future employment. In . this sense removal is but a species of dismisal."

C Rule 49 of the Civil Services (Classification, Control & Appeal) Rules,

J 930 provides inter alia :

"Removal is termination of service which does not disqualify fyom future employment.

Dis)nissal is :remov\al from service which ordinarily disqualifies from future employment."

It follows that 'dismissal' is 'removal with a prohibition super-added'.

Against this background, here is r. 16(2) (iii) of the Punjab Police Rules which applied during the relevant time to the 1st respondent:

"16(2)(iii). When a Police Officer is convicted judicially and dismissed, .or dismissed as a result of a departmental enquiry, in consequence of corrupt practice, the conviction and dismissal and its cause shall be published in the Police Gazette.

In other cases of dismissal, when it is desired to rnsure that the Officer dismissed shall not be re-c:mployed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police . Gazette".

The submission made with some attractiveness! by Shri Goyal receives verbal support from the text of the rule.

It speaks of a police officer being dismissed in consequence of 'corrupt practice' in which case there is a mandate to the State Government that 'its cause shall be published in the Police Gazette'. 'In other cases of dismissal' the provision for publication in the Police Gazette is facultative.

Counsel spins out the argument that if 'in other cases of dismissal' the authority intends to inflict the additional penalty of non-reemployment, it should also publish the punishment iil the Police Gazette.

In the present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment. Read with s. 6-K, which refers to dismissal together with debam1ent from re-employment, the conclusion is sought to be drawn that the 1st respondent's case does not attract the disqualification in s. 6-K.

(1) A.I.R. 1954 S.C. 369, 374,

9-564SCT/75

866 StJPREME COURT REPORTS [19751 3 s.c.R.

We do not agrei~. The reasons are two-fold. As earlie~ eplained, every 'dismissal' has . a double consequence undrstood m its cop.- textual connotation. It removes the man from his office and sup¢radds debarment from re-employment. Such being its meaning in te Indian Constitution, in the refevant rules which have been in force m the c:ountry over the decades and indeed has become part o, f our ofiicialt.se, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.

Secondly, even r. 16(2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent.

That rule does not state 'in other cases of dismissal' the bar against re-employment operates only where there is publi-; ation in the Police gazette to that effect.

Dismissal, as such, carries with it this additional penalty in both classes of 'cases but in the first category covernd by the rule, publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may no~ employ the dismissed official., he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette.

The language is clear that to ensure that the officer dismissed shall not be reemployed the concerned authority shall send for publication the relevant particulars.

Not that without such publication a right to re-c!mployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department; the dismissing officer may take care to forward the particula; s of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally. unnecessary to spell the two-in-one punishment of dismissal.

In this view of the matter there is no escape from the conclusion that the 1st responde11t was punished under the former part of r. 16

(2) (iii) and incurred the extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under s. 6-K of the Act and the Tribunal, in removing hint froru Chairmanship, acted legally.

No other point h11s been urged before us a11d therefore we allow the appeal and affirm the learned Single Judge's judgment.

In the circumstances of the case we direct that the parties will bear their costs in this Court.

The costs of the appellant in the courts below' will be paid by the 1st respondent.

P.B.R.

Appeal allowed.

MOHAMMAD ABDUL SALAM KHAN

SARFARAZ AHMAD KHAN & OTHERS

March 5, 1975

A. N. RAY, CJ.

K. K. MATHEW

v. R. KRISHNA IYER

A c. GUPTA

Town Areas Act

Punjab Police Rules

Section 6K

Town Areas Act

Town Areas Act

Art. 226

s. 6

s. 6

s. 7

Shyamlal

s. 6

Town Areas Act

Central Government

s. 6

s. 6

Town Area Act

s. 6

Section 7

Police Act

Punjab Poliee Rules

Delhi

Allahubad High Court

R. K. Jain

N. R. Choudhary

Rajesh l'rns<1d Singh

K K.

Mohan

G. S. Chatterjee

KRISHNA IYER

s. 6

Town Areas Act

Krishna Iyer

Sarfraz Ahmad Khan

Chatterjee

s. 6

Goyal

Police Act

s. 7

Police Act

Article 311

s. 7

Art. 311

s. 7

India

Art. 311

s. 7

Police Act

Civil Srvant

N. Narlyanan Nair-

J.M. Lal

s. 6

s. 6

s. 6