9 46

(jOVIND

STATE OF MADHYA PRADESH & ANR.

March 18, 1975

[K. K. MATHEW, v. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.]

Madhya Pradesh Police Regulations, 855 and 856, made under s. 46 (2) (c) o/ Police Act, 1961--.// violative of Arts. 19(i)(d) and 21.

The petitioner in a petition under Art. 32, challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Govern ment under the Police Act, 1961. Regulation 855 provides that where on infor mation the District Superintendent believes that a particular individual is leadin~ a life of crime, and his conduct shows a determination to lead a life of crime that individual's name may be ordered to be entered in the surveillance register, and he would be placed under regular surveillance. Regulation 856 provides that such surveillance, inter a/ia may consist of don\iciliary visits both by day and night at frequent but irregular intervals. It was contended that, (I) the Regula tions were not framed under any provision of the Police Act, and (2) even if they were framed under s. 46(2) of the Police Act, the provisions regarding dpmiciliary visits offended Arts. 19(1 )(d) and 21.

Dismissing the petition, HEW: (1) The Regulations were framed under s. 46(2)(c) of the Police Act al)d have the force of law. The paragraph provides that the State Government may make rules generally for giving effect to the provisions of the Act; and one of the objects of the Act is to prevent the commission of crimes. The pr0vision regarding domiciliary visits i~ intended to prevent commission of offences,

because, their obiect is to see if the individual is at home or gone out of it for commL'lSion of offences. [949 FG, H-950 A]

., ,,

(2) (a) Too broad a definition of privacy will raise serious questions about the E propriety of ,.idicial reliance on a right that is not explicit in the Constitution.

The right to privacy will, therefore, necessarily. have to go through a process ('f case by case devdopment. Hence, assuming that the right to personal liberty, the right to move freely throughout India and the freedom of speech create an indel'endent fundamental right of privacy as an emanation from them it could not he absolute. It must be suhjcct to restriction on the basis of coml)elling pul' lie interest.

Bl.'.t the law infringing it must satisfy the compelling state interest test. [954 D..C, H-955 B; 956 B-C] l

(b) Oras:ic inroads directly into privacy and indirectly into fundamental right will b~ made if the ltegulations were to be read too widely. When there are two int:n>retHtions. one w:<le and unconstitutional, and the other narrower but within constitutional bounds. the Court will read down the over flowing expressiom to make them valid .. [955 DE; 956 G]

(c) A~ the Regulations have force of law, the petitioner's fundamental right 1mdcr Art. 21 is not violated. [955 HJ

(d) It cannot be said that surveillance by domiciliary visits would always he an unrcsonablc retriction upon ihe right of privacv.

It is onlv persons who are snsoected to be habitnal criminals and those who are determined to k:.id a crimiml life that arc subiecte<l to surveillance. If 'crime' in this context is con fined to such acts as involve public peace or secmitv, the law imposing such a reasonable restriction mus! be urheld as valid. [956 C-D, F-Hl

[Legality apart, these regufotions ill-accord with the essence of personal free-

I I doms and the State will do well to revise these old Po11ce Regulations. Domici liarv 'isits and nirketing bv the police should he reduced to the clearest cases of community security and should no~ become routine follnw un at the end of a conv!ction or release from jail, or at the whim of a police officer.] (957 A-CJ

GCVIND v. M. P. STATE (Mathew, !,) 947

Kharak Singh v. The State of U.P. & Ors., [1964] 1 S.C.R. 332, Griswold v.

Connecticut, 381, U.S. 479, 510; Jane Roe v. Henry Wade, 410 U.S. 113 a11d Olmstead v. United States, 277 U.S. 438. 471. referred to.

ORIGINAL JURISDICTION : Writ Petition No. 72 of 1970.

Petition under Article 32 of the Constitution of India.

B A. K. Gupta and R. A. Gupta for the Petitioner.

Ram Punjwani, H. S. Parihar and /. M. Shroff, for the Res pondents.

The Judgment of the Court was delivered by

MATHEW, J.

The petitioner is a citizen of India. He challenges the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations pmporting to be made by the Government of Madhya Pradesh under s.46(2)(c) of the Police Act, 1961.

The petitioner alleges that several fu.lse cases have been filed against him in criminal courts by the police but that he was acquitted in all but two cases.

He says that on the basis that he is a habitual criminal, the police have opened a history sheet against him and that he has been put under surveilla, nce.

The petitioner says that the police are making domiciliary visits both by day and by night at frequent intervals, that they are secretly picketing his house and the approaches to his -house, that his movements arc being watched by the pate! of the village and that when the police come to the village for any purpose, he is called and harassed with the result that his reputation has sunk I-ow in the estimation of his neighbours.

Tue petitioner submits that whenever he leaves the village for another place he has to report to the Chowkidar of the village or to the police station about his departure and that he has to give further informatron about his destination and the period within which he would return.

The petitioner contends that these actions or the police are violative of the fundamental right guaranteed to him under Articles 19(1 )( d) and 21 of the Constitution, and he prays for a declaration that Regnlations 855 and 856 are void as contravening his fundamental rights under the above Articles.

In the return filed, it is stated that "the petitioner has managed to commit many crimes during the period 1960 to 1969.

In the year 1962 the petitioner was convicted in one case under Section 452 IPC and was fined Rs. 100/- in default rigorous imprisonment of two months and in another case he was convicted under Section 456 IPC and was fined Rs. 50/- and in default rigorous imprisonment of one nronth.

In the year 1969 the petitioner was convicted under Section 55/109 Cr.P.C. and was bound over for a period of one year by SDM, Jatara.

In the year 1969, the petitioner e:ot cornoounded a case pending :igainst him under Section 325/147 /324 IPC.

Similarly, he also got another case under Section 341/324 IPC compounded."

The ce of the respondent in short is that the petitioner is a dangerous criminal whose conduct shows that he is determined to lead . a criminal life and that he was put under surveillance in order to prevent him from committing offences.

Regulation 855 reads :· . "855. Surveillance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. . The list of persons under surveillance should include only tlrose persons who are believed to be really dangerous criminals.

When the entries in a history sheet, or any. other information at his disposal, leads the District Superintendent to believe that a particular individual is leading a life of crime, he may order that his name be 'ntered in the surveillance register. The Circle

Inspector will thereupon (open a ?) history sheet, if one is oot already in existence, and the man will be placed under regular surveillance." ·

Regulation 856 provides:

"856. Surveillance may', , for practical purpo!; cs, be defined as consisting of the following measures :

(a) Thorough periodical enquiries by the station-house officer as to repute, habits, - association, income, expenses and occupation.

(b) Domiciliary visits both by day and night at frequent but irregular intervals. , -

• ( c) Secret picketing of the house and approaches on any occasion when the surveillance (surveillant?) is found absent.

--- (cl) The rporting by. patels~ mukaddams and kotwars

Of movements and absences from home.

(e) The verification of such movements and absences by means of bad character rolls. ·

(I) The collection in a history sheet of all information bearing on conduct. .

It must be remembered that the surest way of drivino a man to a life of crime is to prevent him from earning a~ honest living. Surveillance should, therefore never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating. The person under ' ·. surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged."

GOVJND v, .M, P.· STATE. (Mathew, J,) 949

A In Khaak Singh v. The siate of U.P. and Others(') this Cmrt . had occasion to consider, the validity of Regulation 236 of the U.P.

Police Regulations which is in pari materia with Regulation 856 here.

There it was held by a majorily that regulation 236(b). providin, g for domiciliary visits was unconstitutional for the reason that it abridged .. . .. the fundamental right of a person under Article 21 and since Regula- . . n ·. tion 236(b) did not have the force of Jaw, the regulation was declared . bad. The other provisions of the regulation were held to be constitutional. The decision that the. regulation in question there was not ' law was based upon a concession made on behalf of the State of U.P. that the. U.P. Police Regulations were not framed under any of the provisions of the Police Act. c .

The 'petitioner submitted that as: the regulations. inquestion here were also not framed under any provision of the Police Act, the pro- visions regarding domiciliary visits in. regulations 855. and 856 must be declared bad and that even if the regulations were framed .under s.46(2)(d) of the Police Act, they offended the fundamental right of the petitioner under Article 19(l)(d) as well as under Article 21 of

. the Constitution. ·

So far as the first contentioll, is concerned, we are of the view : that the rerulalions were framed by the Government of Madhya Pradesh under s.46(2) (c) of the Police Act. Section 46(2) states that the State Government may,· from time to time, by notification in the. official gazette, make rules consistent with the Act-

. ''(c) generally, for giving effect io the provisions of this ..

Act."

The petitioner contended that rules cari be framed by the State Government under s.46(2)(c) only for giving effect to the provisions of the Act and that the provisions in Regulation 856 for domiciliary visits and other matters are notfor the purpose of giving effect to. any of the provisions of the Police Act and therefore regulation 856 is ultra vire~. . . , _ •

We do not think that. the contention is right.

There .can be no doubt that one of the objects of the Police Act is to prevent commission of offences.

The preamble to the Act states :

"Whereas it is expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime.". ·

And, s. 23 of the Act (so far as it is material) reads:

"It shall be the duty of every police officer .. to prevent the commission of offences and public nuisances.; . ". . . . ' - . ,.

We think that the provision in regulation 856 fur domiciliary

viits and other actions by th~ police is intended to prevent the com- . mission of offences.

Thi? object of domiciliary viSits is to see that

(I) [1964] I S.C.R. 332.

the person subjected to suveillance is in his home and has not goll:e out of it for commission of any offence.

We are therefore of opinion that Regulations 855 and 856 have the force of law.

The next question is whether the provisions of regulation 856 offend any of the fundamental rights of the petitioner.

In Kharak Singh v. The State of U.P. & Others (supra) the majority said that 'personal liberty' in Article 21 is comprehensive include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1)(d). According to the Court, while Article 19(l)(d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue.

The Court said :

"We have already extracted a passage from the judgment of Fh:ld J. in Munn v. Illinois (1877) 94 U.S. 113, 142, where the learned Jud_ge pointed out that 'life' in the 5th and 14th Amendments of the U.S. Constitution corresponding to Art. 21 means not merely the right to the continuance of a person's animal existence, but a right to the , x:•sscssion of each of his organs-his arms and legs etc.

We do not entertain any doubt that the word 'life' in Art. 21 bears the same signification.

Is then the word 'personal liberty' to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's bome and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be in appropriate to refer here to the words of th() preamble to the Constitution that it is designed to "assure

the dignity ef the individual" and therefore of those cherished human value as the means of ensuring his full development and evolution.

We are referring to these objectives of the framers merely to drav: attention to the concepts underlying the constitution which would point to such vital words as 'personal liberty' having to be construed in a reasonable manner and to be attributed that sense which

woud promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any prnconceived notions or doctrinaire constitutional theories."

The Court then quoted a passage from the judgment of Frankfurter J. in Wolf v.

Co'Vrado(') to the effect that the security of one's privacy against arbitrary intrusion by the police is basic to a free society and that the knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the

ia.uthority of the police, did not need 'the commentary of recent h_isfory to b~ con?emned .as inconsistent wi'.h the c?nception of human nghts enshrined m the history and the basic constitutional documents of English-speakinP, peoples.

The Court then said that at Common Law every man's house is his castle and that embodies an abiding

(I) f1949J 338 U.S. 25.

' •1

GOVIND v. M. P. STATE (Mathew, J,) 951

princfo transcending mere protection of property rights and expounds a concept of 'personal liberty' which does not rest upon any element of feudalism or any theory of freedom which has ceased to exist.

The Court ultimately came to the conclusion that regulation 236(b) which authorised domiciliary visits was violative of Article 21 and "as there is no 'law' on the basis of which the same could be justified, it must be struck down as. unconstitutional". The Court was of tlie view that the other provisions in regulation 236 were not bud as no right of privacy has been guaranteed by the Constitution.

Subba Rao, J. writing for the minority was of the opinion that the word 'liberty' in Article. 21 was c0mprehensivc enough to include privacy also.

He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty, that in the iast resort, a perso,1's house where he lives with his family, is his , castle', that nothmg is more deleterious to a man's physical happiness and health than a calculated interference with his privacy and that all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution.

And, as regards Article 19(1)(d), he was of the view that that right also was violated. He said that the right under that sub-Article is not mere freedom to move without physical obstruction and observed that movement under the scrutinizing gaze of the policemen cannot be free movement, that the freedom of movement in cl. (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people r of his own choice without any apprehension, subject of course to the

' law 0f social control and that a person under the shadow 'Of surveillance is Gcrtainly deprived of this freedom.

He concluded by sayin~ that surveillance by domiciliary visits and other acts is •an abridgement of the fundamental right iiuaranteed under Article 19 (l)(d) and under Article 19(1) (a).

He however did not specificallv consider whether regulation 236 could be justified as a reasonable restriction in public

interest falling within Arti::le 19(5).

It was submitted on behalf of the petitioner that right to privacy is itself a fundamental rh!ht and that that ri!!ht is violated as regulation 85 6 provides. for domiciliary visits and other incursions into it. The

qu~tion whether right to privacy is itself a fundamental right flowing . from the other fun:iamental rights guaranteed to a citizen under Part Ill is not easy of S'Olution.

In Griswold v. Connecticut(!), a Connecticut statute made the use of contraceptives a criminal offence.

The executive and medical directors of the Planned Parenthood LeaoUe of Connecticut were convicted in the Circuit <Xlurt on a chame of havinQ violated the statute as accessories by , givinQ information. instructhn and advice to married persons as to -the means of preventing conception. The appellate Division of the Circuit Court affirmed and its judgment was affirmed by the Suoreme Court of Errors of Connecticut.

On appeal the

U l 381 U. S. 479, 510.

1l52

SUPR.EMB .COUR. T R.BPOR TS £197.Sl 3 s.c.R.. ·- Supreme Court of the United States reversed. In an opinion by Douglas, J., expressing view-of five members of the Court, it was held that the statute was invalid as an unconstitutiona! invasion of the r!gh, of privacy of married persons. . He said. that the right of freedom of speech press inc1udes not only the right to utter or to priot but also . the right to disribute, the right to receive, the right to read and that without those peripheral rights the specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help g.ve them lif~ and substance, that the various guarantees create zones of pri vacy, and that protection against all governmental invasion "of the sanctity of a man's home and the privacies of life" was fundamental.

He further said that the inquiry is whether a right involed "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' and that 'privacy is a fundamental personal right, emanating from the totality of the constitutional scheme under which we (Americans) live'."

In his dissenting opinion, Mr. Justice Black berated the majority for discovering and applying a constitutional right to privacy.

His reading of the Constitution failed to uncover any provision or provi sions forbidding the passage of anl law that might abridge the 'privacy' of individuals. . . . .

In Jane Roe v. Henry Wade(>), an unmarried pregnant woman who wished to terminate her pregnancy by abortion instituted an . action in the United States District Court for the Northern District of Texas, seeking a declaratory judg ment that the Texas criminal abortion statutes, which prohibited abor tions except with respect to those procured or attempted by medical advice for the purpose of saving the life of the mother, were unconstitutional. The Supreme Court said that although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal pri v:u; y, or a guarantee of certain areas or zones of . privacy, does exist under the Constitution, and "that the roots of t'12t righ• may be found in the First Amendment, in the. Fourth 11nd Fl( Amendments. in tho penumbras of the Bill of Rights, in the Ninh Amendment, and in the concept of liberty guaranteed by the firs• section of the' Fourteenth Amendment" and that the ''right to privacy is not absolute."

The usual .starting point in any discu_ssion of the growth' of legal concept of pnvacy, thouh not necessanly the correct one is the famous article, "The Right to Privacy" by Charles Warren ai:.d Louis D. Brandeis(•) .. What was truly creative in the article was their insistence that privacy,-the right to be let alone-was an interest at man should be able to :issert directlv and not derivatively from his efforts to protect other mterests.

To protect man's "inviolate personality" against . the intrusive behaviour so increasingly evident

(I) 410 U.S. 113.

(2) See 4 Harvard Law Rev. 193. '

GOVIND v. M. P. STA TE (Matkw, J.) 953

in their time, Warren a; id Brandeis thought that the law should provide· . both a criminal and a private law remedy. "Once a civilization has

made a distinction between the 'outer' and the 'inner' man, between the life of the soul and the life of the body, between the spiritual and the macrial, between the sacred and the profane, between the realm of God and the realm of Ca'!Sar, between Church and state, between rights inherent and inalienable and rights that are in the power of . government to give and take away, between public and private, between society ancl solitude, it becomes impossible to avoid. the idea of privacy by whatever name it may be calledthe idea of a 'private space in which man may beccme and remain 'himselr "(1). .

There can be no doubt that the mnkers .of our Constitution wlUlted to ensure condi•ions favourable to the pursuit of happiness.

They certainly realized as Brandeis, J. said in his dissent in Olmstead v.

United State( 2 ), the significance of man's spiritual nature. of his feelings and of. his intellect and that only a part of the pain, pleasure, satisfication of life can be found in material things and therefore they must be deemed to have conferred upon the individual as ap.imt the government a sphere where he should be let alone.

"The liberal individualist tradition has stressed, in particular, three personal ideals, to each of which corresponds a range of 'private affairs'.

The first is the ideal of personal relations; the second, the Lockean ideal of the politically free man in a minimally regulated society; the third, tlie Kantian. ideal of the morally autonomous man,

acting on principles that he accepts as rational"(').

There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important conn- .

tervai!in~ interest is shown to be superior. If. the Court does find that a claimed rieht is entitled to protection as a fundamental privacy right, a law in:fringing it must satisfy the compelling state interest test. . Then the question would be whether a state interest is of such . paramount impartance as would justify an infringement of the rieht.

Obviouslv, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed riehts as a fundamental orivacv rieht would be of far less significance. The ques•ion whether enforcement of morality is a state interest sufficient to iu<>ifv •he infringement of a fundamental privacy right need not be considered for the oumme of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state.

Individual autonomy, perhaos the central concern ot any svstem of limited government, is protected in part under our Constitution by

(I) see "Prl"va.;-and the Law: A philo•ophfcal pre!ude" by Milton R. Kon•

vitz in 31 Law & Contemporary Problem• (1966) p. 272, 273.

(2) 277 u. s. 438, 471. .. _ ....

(3) sea B"!t"'U19 ••Privacy, Freedom and Respect for Persons" in 1. Pennock 4. J.

Chapmm, Eds .• Priv~ Nomo' XIII, I, 15·16.- :: ~

954 SUPRliM~ COURT REPORTS [197 Sl 3 S.C.R.

explicit constitutional guaranteea. "In the application of the Cons_titution our contemplation cannot only be of what has been but :-vhat . may be." Time works changes and brings into existence new cond1t1ons.

Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the proprieny of judicial reliance on a right that. is not explicit in the Cons titution.

Of course, privacy primarily concerns the ind.ividuals.

It therefore relates to and overlaps with the concept of liberty.

The most serious advocate of privacy must confess that there are serious prob1ems of defining the essence and scope of the right.

Privacy interest in autonomy must also be placed in the context of other ri&hts

and values.

Any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherh'aod, procreation and child rearing. Tliis catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distin tive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental ri~J1t implicit in the concept of ordered liberty.

Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his person1lity shall be free from official interference except where a reasonable basis for intrusion exists. "Liberty

against government" a phrase coined by Professor Corwin expre .~.cs this idea forcefutly.

In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

As Ely says: "There is nothing to prevent one from using the word 'privacy' to mean the freed:im to live one's life without governmental interference.

But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case"('•)

There are two possible theories for protecting privacy of home.

The first is that activities in the home harm others only to the extent

that they cause offence resulting from the mere thought that individuals mi1?ht he engaginv. in such activities and that such' hann' is not constitutionally protectible by the state. The second is that individuals need a plate of sanctuary where they can be free from societal control.

The importance of such a sanctuary is that individuals can drop the mask. desist for a while from orojecting on the world the imae they want to be accepted a~ themselves, an image that may reflect the values of their peers rather than the realities of their natures(2 ). .

The right to privacy in any event will necessarily have to go through a process of case-1:_Y-case development.

Therefore, even assuming

(l) s~ "The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale

L. J. 920, 932.

(2) see 26Standford Law Rev. 1161 at 1187.

'' D

GOVJND v. M. P. STATE (Mathew, I.)_ 955

A tht the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can .charac terize as a fundamental right, we do not think that the right is abso

Jute.

The European Convention on Human Rights, which came Into force on 3-9-1953, represents a valiant attempt to tackle the new problem.

Article 8 of the Convention is worm citing : (11).

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be P.o interference by a public authority with the exercise of this right except such as i;; in accordance with the law and is necessary in a democratic society in the interests of national security, public safet_y or the economic well-being of the country, for the prevention of disorder or crime, for the protecti,111 of health or morals or for the protection, of the rights ar.d frecd•)ms of others."

Having reached this conclusion, we arc satisfied that drastic inroads directly into the privacy and indirectly into the fundamental rights, of a citizen will be made if Regulations 855 and 856 were to be rc;; d widely. To interpret the rule in harmo:1y with the Constitution is therefore necessary and canalisation of the powers vested in the police by the two Regulations earlier read become3 necessary, if they are to be saved at all.

Our foundiag fathers were 1horoughly opposed to a Police Raj even as our history of the s!ruggle_for freedom has borne eloquent testimony to it. The relevant Article§. •Jf the Constitution we have adverted to earlier, behove us therefore to narrow down the scope for play of the two Regulations. We proceed to give direction and restriction to the application of the. said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void.

Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits G would always be unreasonable restriction U]'.Y'.ln the right of privacy.

Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbra! zones and that the ril!ht to privacy is itself a fundamental right, that fundamental right must be subject to restriction on t'1e ba<!s of comnell'"!! n11b.ic in•P.re<t.

A< r<::r!ulation 856 has the force of law, it cannot be said that the fundamental ri!>:ht ' -of. the petitioner under Article 21 has been violated by the provisions H contained in it : for, what is guaranteed under that Article is that no person shall he depri\l_Cd of his life or personal liberty except by the

(I) see "Privacy and Human Rights", ed. A.H. Robertson, p. 176.

procedure established by 'law'.

We think that the procedure is reasonable having regard to the provisions of Regulations 853 (c) and 857. Even if we h:old that Article 19(1)(d) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself a fundamental right, the . question Will arise whether regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within' Article 19 (5); or, even if it be assumed that Article 19(5) does not apply in terms, as the. right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be uphr.ld as valid.

Under clause (c) of Regulation 853, it is only persons who are suspected to be habitual criminals who will be subjected to domiciliary visits.

Regulation 857 provides as follows :

"A comparatively short period of surveillance, if effecti vely maintained, should suffice either to show that the suspicion of criminal livelihood was unfounded, or to furnish evidence justifying a criminal prosecution, or action under the security sections.

District Superintendents and their assistance should go carefully through the histories of per .. sons under surveillance during their inspections, and remove from the register the names of such as appear to be earning an honest livelihood.

Their histories will there upon bCl closed and surveillance discontinued. In the case of person. under surveillance who has been lost sight of and is sti11 untraced, the name will continue on the register for as long as the District Superint .. .ndent considers necessary."

Surveillance is also conhned to the limited class of citizens wh<> are determined to lead a criminal life or whose antecedents would reasonably lead to the conclusion that they will lead such a life.

When them are two interpretations, one wide and unconstitutional,

the other narrower but within constitutional bounds, this Court will G read down the overflowing expressions to make them valid. So read, the two regulatjons. are more restricted than counsel fGr the petitioner sought to impress upol) us..

Regulation 8$5, in our view, empowers surveillance only of persons against whom reasonable materials exis.t to induce the opinion that they show a determination, to lead a life of crime-crime in this context being confined to such as involve public H peace or securilly only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperilling safety of

GOVIND v. M. P. HATE (Mathew, J.) 9 57

iiociety cannot be regarded as warranting surveillance undr this Regulation.

Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of dariger to community security and. not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging perilously near unconstitutionality.

With these hopeful observations, we dismiss the writ petition.

V.P.S.

Pefition dismissed.

STATE OF MADHYA PRADESH & ANR

March 18, 1975

K. K. MATHEW

v. R. KRISHNA IYER

P. K. GOSWAMI, JJ.

Madhya Pradesh Police Regulations

s. 46

Police Act, 1961

Arts. 19(i)(d) and 21

Art. 32

Police Act

s. 46(2)

Police Act

Arts. 19(1 )(d) and 21

s. 46(2)(c)

Police Act

India

Art. 21

[1964] 1 S.C.R. 332

S. 479, 510

S. 113

S. 438

Article 32

Constitution of India

B A. K. Gupta

R. A. Gupta

Ram Punjwani

H. S. Parihar

M. Shroff

MATHEW

Police Act, 1961

Articles 19(1 )( d) and 21

Section 452

IPC

Section 456

IPC

Section 55

Cr.P.C

Jatara

Section 325

IPC

Section 341

IPC

Article 21

U.P.

Police Act

Police Act

Article 19(l)(d)

Article 21

Government of Madhya Pradesh

Police Act

Section 46(2)

Police Act

Police Act

s. 23

Article 21

Article 19(1)(d)

Article 19(l)(d)

Article 21

Fh

ld

S. 113, 142

Art. 21

Art. 21

Frankfurter

S. 25

GOVIND

Article 21

Subba Rao

Article 21

Article 19(1)(d)

Article 19

Article 19(1)

Parenthood LeaoUe of Connecticut

Suoreme Court of Errors of Connecticut

S. 479, 510

Douglas

Black

Supreme Court

United States Supreme Court

Charles Warren

Louis D. Brandeis(•

S. 113

Brandeis

s. 438, 471

Corwin

Ely

European Convention on Human Rights

Article 8

Article 21

A.H. Robertson

Article 19(1)(d)

Article 19

Article 19(5)


PASUPULETI VENKATESW ARLU

THE MOTOR & GENERAL TRADERS March 18, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]

Appellate Jurisdicti'on, exercise of-Court, if can mould reliefs in appeal iy taking into arcount facts subsequent to i11stz'tution of proceedings.

Andhra Pradesh Buildirrgs (Lease, Rent and Eviction) Control Act, 1960, Section 10(3)(iii) (a) a11a (b)-Revis/011 to High Court against order of whole sale remillal to trial Court-High Court, if can take into account subsequent fact and dismiss the eviction petition also.

The appellant, a landlord of a large building, had leased out in separate portions his building to several tenants. One of such tenants is the respondent. Tho former resolved to start a businr:ss in automobile spares and claimed eviction of c

the respond, nt by Rent <:ontrol proceedings, under~. 10(3)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 19.60.

The petition was resiste.rl and the Rent Controller dismissed the petition. Tue appeal by the landlord failed but, in revision, the High Court chose to remand the case to the appellate authority. The appellate authority, after hearing par ties, remitted the whole case to the trial Court for fresh disposal in accordance with certain dirctions and, after allowing parties to lead evidence.

Instead of finishing the case at the trial Court level, the landlord preferred a revision to the High Court on the ground that a wholesale rcmittal, as agaimt calling for a finding on a specific point, was illegal. The High Court held that if the fac:t of the landlord having come into possession during the pendency of the proccedingll of Shop No. 2 is to be taken into account, then clearly the petition is no longer maintainabl.e under section 10(3) (iii) of the Act. The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition.

In this appeal by special leave, :.i was contended for the appellants : (i) It was illegal for the High Court to have taken cognisance of subsequent events; and (ii) Once thi: High Court held-as it did-that the appellate tribunal acted illegally in remit ing the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings.

Allowing the appeal partially,

HELD : (i) For making the light or rei; nedy, claimed by the party just and F meaningful as also legally and factuallv in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The lar recovery of another accommodation by the landlord, during the pendency of the case, has as the Hi&l1 Court twice pointed out, a mMerial bearing on the right to evict, in view of the inhibition written into s. 10(3)(iii) itself. The High Court was right in taking G into consideration the facts which came into being subsequent to the commencement of the proceedings. [960 GH] ·

Lachmeshwar Prasad Shukul v. Kes/iwar Lal Chaudhuri [1940] F.C.R. 85; Patterson v. State of Alabama, 294 U.S. 600, 607 and Mirnesota v. National 1"e" Co. 309 U.S. 551, 555, referred to.

(ii) It is unfair to drive parties to a new litigation of unknown duration anJ H therefore, in the special circumstances of this case, it is directed that : (a) the revision before the High Court shall stand dismissed; (b) the Rent Controlle1: will take note of the subsequent development disabling the landlord from seeking eviction on whicb there is already an adverse finding by the High Court; (c) the

PASUPULETT v. MOTOR TRADERS (Krishna Iyer, J.) 959

A landlord be allowed to amend his petition if he has a case for eviction on any other !egally permissible ground; and (d) the parties be given fair and full op portunity to file additional pleadings and lead evidence thereon.

But the subse quent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High Court, cannot be canvassed ever again. That finding of legal disability cannot be reopend. [961 G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2120 to 2122 B of 1972,

Appeals by special leave from the judgment and order dated the 7th April 1972 of the Andhra Pradesh High Court in C.R.P. No. 1576-78 of 1971.

K. S. Ramamurthi, M. S. Narayana Achari and C. S. S. Rao, for C the appellant.

K. R. Choudhury and K. Rajendra Chaudhry, for the respondent.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-Once the facts are stated fairly, one is left to wonder what substantial issue of law deserving of adjudication by the Supreme Court survives at all in these appeals.

We may straightway proceed to state, with brevity, the case of the appellant presented for our scrutiny and make short shrift of it as it merits little more.

The appellant, a landlord of a large building, had leased out in separate portions his building to several tenants.

One of such tenants is the respondent.

The former resolved to start a business in automo bile spares and claimed eviction of the respondent by Rent Control proceedings, under s. 10(3) (iii) (a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.

The petition was resisted and the Rent Controller dismissed the petition.

The appeal by che landlord failed but, in revision, the High Court chose to remand the case to the appellate authority.

The litigation lengthened further because the latter, after hearing parties, rerilitted the whole case to the trial Court for fresh disposal. in accordance with some directions and, after allowing parties to lead evidence.

Instead of finishing the case at the trial court level, the landlord repeated a revision to the High Court on the perhaps technically correct stand that a wholesale remittal, as against calling for a finding on a specific point, was illegal.

While hearing protracted arguments it came to the ken of the court that certain material events of fatal import to the maintainability of the eviction proceedings had come to pass and so it decided to mould the relief in the light of these admitted happenings.

The learned judge observed :

"If the fact of the landlord having come into possession during the pendency of the proceedings of Shop No. 2 is to be taken into account, as indeed it must be, then clearly t'he peti tion is no longer maintainable under Section 10(3) (iii) of the Act, as the requisite condition for the invoking of that provision has ceased to exist viz., that the landlord was net occupying a non-residential building in the town. 'Building',

SUPREME CQURT REPORTS

[1975] 3 S.C.R.

of course means a portion of a building. .As the prerequisite for the entitlement of the petitioner to institute and continue a petition has ceased to eXJst, it must follow that ABA No. 5/1967 is no longer maintainable and must be dismissed."

The inevitable sequel was the dismissal, not only of the civil revision, but also of the eviction petition. Thus, after a marathon forensic battle lasting over six years, the landlord lost even the flickering hope of success before the trial Court as a result of supererogatory revision to the High Court. It is against this adverse decision he has, by special leave, come to this Court.

Two submissions were advanced by Sri K. S. Ramamurthy to salvage his client's case.

He argued that it was illegal for the High Court ro have taken cognisance of subsequent events, disastrous as they proved to be, Secondly, he urged that once the High Court held-as it didthat the appellate tribunal acted illegally in remitting the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings, a misfortune heavier than would have been, had he not moved the High Court at all.

We feel the submissions devoid of substance.

First about the )urisdiction and propriety vis a vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to ow: processual jurisprudence that the right to relief must be judged to exist

as on the date a suitor institutes the legal proceeding.

Equally clear is E . the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the tis has come to court and has a fundamental impact on th': right to relief tor the manner of mould· ing it, is brought diligently to the notice of the tribunal, lt cannot blink at it or be blind to events which stultify or render inept the decrctal remedy.

Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote subs- F tantial justice-subject, of course, to the abence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power -exists, absent other special circumstances repelling resort to that course in law or justice. ulings on this point arc legion, even as situations for applications of this equitable rule arc myraid.

We affirm the propooition that for making the C right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realitie8, the court can, and in ; many .cases must. take cautious cognisance of events and developments / ubsequcnt to the institution of the proceeding provided the rules of fairv ness to both sides are scrupulously obeyed.

On both occasions the High Court, in revision, correctly took this view.

The later recovery of another accommodation by the landlord, during the pendency of the H case, has as the High Court twice pointed out, a material bearing on the right to evict in tjew of the inhibition written into s. 10(3 )(iii) itself.

We lre not disposed to disturb this approach in law or finding of fact.

. PASUPULETI v. MOTOR TRADERS (Krishna Iyer,!.) . 961

 The law we have set out is of <mcient vintage.

We will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri(!) which is a leading case on the point.

Gwyer C.J., in the above case, referred to the rule ado?ted by the Supreme Court of the United States in Patterson v. State of Alabama(2) :

''We have frequently held that in the exerc.!se of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of .the case as justice requires.

And in determining what justice does require, the Court is bound to consider any change, either in fact or.in law, which has supervened since the judgment was entered."

and said that that view of the Court's powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co.(3). Sulaim:m

J., in the same case( 1) relied on English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the ap, peal was heard. (emphasis, ours). Varadachariar J., dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the poi_gt luminously (at p. 103) : .

"It is also on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a . case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against." The High Court, in this case, in the concluding stages slightly selfcontradicted itself and observed : 'the civil revision petition cannot be entertained' and proceeded further to state : 'It will not be desirable that I should exercise my discretion in directing an amendment of the petition'.

In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller. and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight.

The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation : 'If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his 111aving come into possession of a portion of the building'. 'We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that : (a) the re"ision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking evic-, • tion on which there is already an adverse finding by the High Court; H

(I) [1940} F.C.R. 85.

(2) 294 U.S. 600, 607.

(3) 309 u. s. 551, 555. 15-564SupCl/75

96~

SUPREME COURT REPORTS [19751 -3 s.c:R.

( c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and ( d) the parties be given fair and full opportunity to file additional pleadings anq lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High Court, cannot be canvassed over again. That finding of legal disability cannot be reopened.

We keep open for enquiry only grounds, 1£ any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction.

With these observations we partially allow the appeal as indicated above and direct the parties to bear their respective costs.

V.M.K.

Appeal partly allowed.

PASUPULETI VENKATESW ARLU

THE MOTOR & GENERAL TRADERS

A. N. RAY, C.J.

K. K. MATHEW

v. R. KRISHNA IYER, JJ.

Control Act, 1960

Section 10(3)(iii)

section 10(3)

s. 10(3)(iii)

[1940] F.C.R. 85

S. 600, 607

S. 551, 555

Krishna Iyer

K. S. Ramamurthi

M. S. Narayana Achari

C. S. S. Rao

K. R. Choudhury

K. Rajendra Chaudhry

KRISHNA IYER

Supreme Court

s. 10(3)

Control Act, 1960

Section 10(3)

K. S. Ramamurthy

s. 10(3 )(iii)

Gwyer

Supreme Court of the United States

Sulaim

Varadachariar

S. 600, 607

s. 551, 555


36 3

RAJ.KUMAR v.

UNION OF. INDIA & ORS.

March 19, 1975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Central Civil Services (Temporary Service) Rules 1965-Proviso to rule 5(1) -Retrospectil'e Amendment-Effect w.

The services of the appellant, who was a: Government servant, were terminated forthwith and he was ordered to be.paid a month's pay and aliowances calculated at the same rate at which he was drawing them immediately before the date on which the order of termination was served on him or, as the case may be. tendered to him. Having failed in departmental representations, the appellant filed a writ petition in the High Court. When the petition was before the High Court it was not brought to the notice of that court that the proviso to

subr. (1) of.r. 5 of the Central Civil Services (Temporary Services) Rules 1965 wa~ amended with retrospective effect from May 1, 1965. The High Court dismissed the petition in limine and granted certificat@ relying on the decision

of this Court tn R.M.S. v. K. V. Gopinath which was not brought to its notice when the petitioner was dismissed.

The amendment provided that the services of any Government servant may be terminated forthwith and on such termination he shaU be entitled to claim a sum equivalent to the amount of his pay plus a11owances for the period of the notice at the same rates at which he waos drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one month.

Dismissing the appeal, HELD : (I) The effect of the amendment is that on and from May 1, 1965 as also Cin the date of the dismissal of the a:ppellant_it was not obfigatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of notice at the rate at which he was drawing them immediately before the termination of the services or as tl)e caS:.e. may be for the period by which such notice falls short. The Government servant is only ntitled to claim the amount. The effect of the amendment !s that the dedsion in Gopinatlz's case no longer holds good. [965 B-C] ( 2) There is no doubt that the rule is a valid rule becal!lse it is now well established that rules made under the proviso to Art. 309 of the Constitution are legislative in character and, therefore, can' be given effect to retrospectively.

[965 CJ

(3) Once a law is given retrospective effect as from a particular date all actions taken under that law even before the amendment was made would be deemed to have ben taken under the law as amended and there could be really no question of having to validate any action al.ready taken provided it is subsequent to the date from which the amendment was given retrospective effect.

The question of the particular form of the validation would always depend on the circumstances of a case and no general formula can be devised for all circumstances. [965 H; 966 AJ In the in:; tant case the action taken. against the appellant was on a date subsequent to the date on which the amended rule took effect and, therefore, that action being in accordance with the amended rule, is a legally valid action and there is no need to have a validating provision. [966 BJ

Pritlzvi Mills v. Broach Municipality [1970J 1 S.C.R. 388, held inapplkable.

( 4) When action is taken against a government servant under the relcvnt rules, which enable the authorities concerned to terminate his temporary services

without assigning any reason, the Court would not go into the reasons which led to the services being terminated. [966 DJ

SUPREME COURT REPORTS £19751 3 s.c.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1730 of 1972.

From the judgment and order dated the December 6, 1971 of the Delhi High Court in Civil Writ Petition No. 1261 of 1971.

M. C. Bhandare, Govind Das, C. P. Lal, Kapil Sibal and A. N.

Goyal, for the appellant.

F. S. Nariman, Additional Solicitor General for India and S. P.

Nayar, for the respondent.

The Judgment of the Court was delivered by

ALAGIRISW, AM:r, J.--The appellant was appointed as Airport Tick<:t Clerk in the Civil Aviation Department of the Government of India on 14.8.1967.

On 15.6.1971 his services were terminated 'forthwith' and it was directed that he shall be paid a sum equivalent to the amount of pay and allowances for a period of one month (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which the order was served on or, as the case may be, tendered to him.

But the pay and allowances were not paid to him at the same time as the service of the order of termi nation of his services.

His appeal against the termination as well as representations having failed he filed a writ petition out of which this appeal arises.

The High Court of Delhi dismissed the writ petition in limine ruid this appeal has been filed in pursuance of a certificate granted by the High Court because of the decision of this Court in R.M.S. v. K. V. Gopinath( 1) of which that Court was not aware when it dismissed the petitioner's petition.

It was not brought to the notice of the High Court that the proviso to sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 had been amended with retrospective effect from 1st May, 1965. The rule as now amended reads: ·

"<:. Termination of temporary service--

(1) (a) The services of temporary Government servant who is not 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 i.ervant; G

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

Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall. . be entitled to claim a sum equivaleiat to the amount of his pay plus allowances for the period of the notice .at the same rates at which he was drawing them -------

(!) [1972] 3 S.C.R. 530.

RAJ KUMAR v. UNION (Alagiriswami, J.)

immediately before the termination of the services or as the case may be for the period by which such notice falls shor_t of one month." ·

The effe1.:t of this amendment is that on 1st May 1965 as also on 15.6.1971, the date on which the appellant's services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay aiad allow'ances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the.. period by which such notice falls short. The Government servant concerned is. only entitled to claim the sums hereinbefore mentioned. Its effect iS that the decision of this Court in Gopinath's case (supra) is no ldager good law.

There is no doubt that this rule is a valid rule because it it now well established that rules made under the proviso to Article

309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decisions of the Delhi High Court dismissing the appellant's writ petition is correct and this appeal will have to be dismissed.

But it was argued by Mr. Bhandare appearing on behalf of the appellant that there is no validating provision in the rule as now amended and therefore the intention "of the Government in making the amendment canti.10t be validly given effect to.

For this purpose he relied upon the decision of this Court in Prithvi Mills v. Broach Munic. (1) and in particular the following observations therein:

"Sometiines this is done by re-enacting retrospectively a valid and legal taxing provision and the'a by fiction making the tax already collected to .stnnd under the re-enacted law.

Sometimes the legislature gives its own meaning and interpretati1>n of the law under which the tax was collected and by legislative fiat makes the new meaning bindi',1g upon c0urts.

The legislature may follow any one method or all of them and while it does so it/may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must. be within the competence of the legislature and legal and adequate to attuin the object or validation. If the legislature has the power over the subject-matter and competence to make a valid law, it ca'D. at any time make such a valid law, and make it retrospectively so as to bind even past

transactions."

This argument proceeds upon 11; rn!scom.prehension of the . aove observation and the effect of a validatmg statute. Once a law isl given retrospective effect as from 11 particular date all actions taken undeI.. the Act eve~1 before the amendment was made would be deemed. to have been taken under the Act as amended and there could be really no question of having to validate any action alrady taken provided

(1) [1970] l S.C.R. 388.

~66

SUPREME CQ.QRT REPORTS [19751 3 s.c.R.

it is subsequent to the date from which the amendment is given retros- A pective effect.

The question of the particular form of the validation would always depend "" the circumsta•aces of a case and no general formula can be devised 10r all circumstances. It is enough to .say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is iegally

a valid <icti'Jn and there is no need to have a validating provision in res.

B pect thereof.

It was then argued by Mr. Bha:ndare that the matter has been disposed of in li111ii.e by the High Court and there are certain other

apccts which may have to be considered, and therefore the appeal shouU ~10t 1:ie dismissed but that the writ petition should be directed to be disposed of afresh by the Delhi High Court after considering the C other questions raised ii; the w:-it petition.

There are only two questions raised by the petitioner in his. writ petition. One is that certain persons junior to him have been continued in service while his services have been termhrntcd and that it offends Article 14.

The termination of the appellant's services was not on the ground of retrenchment.

The question of offending Article 14 does not therefore arise.

When action is taken against him under the relevant rules which enable the D authorities concerned to terminate his temporary servi; e without assigning any reason the Court would not go into the reasons which led to the appellant's services being terminated.

The other point raised. in the writ petition is that action terminating the appellant's services was mala fide. We 5ee no substance in this contention.

The action is said to be mala fide because after the appellant's services were terminated certain other persons have been appointed.

It is not alleged E that those persons exercised their influence and had the petitioner's services terminated in oroer to provide them with posts.

Naturally when a vacancy ari$CoS by the termination of services of an employee oth;:r persons would have to be appointed to take his place.

This would nnt show any ma/a fides.

The apprnl i~ therefore dismissed but in the circumstances there F will be no order as to costs.

P.B.R.

Appeal dismissed.

3

RAJ.KUMAR

UNION OF. INDIA & ORS

March 19, 1975

A. ALAGIRISWAMI

N. L. UNTWALIA, JJ.

May 1, 1965

Gopinatlz

Art. 309

Delhi High Court

M. C. Bhandare

Govind Das

C. P. Lal

Kapil Sibal

A. N.

Goyal

F. S. Nariman

S. P.

Nayar

ALAGIRISW

High Court of Delhi

1st May, 1965

[1972] 3 S.C.R. 530

Gopinath

Article

309

Bhandare

Bha

Article 14

Article 14