judgement:
Appeals Nos.
1644 and 1645 of 1967.
Appeals from the judgment and order dated July 26, 1967 of the Assam and Nagaland High Court in Civil Rule Nos. 192 and 208 of 1966.
479 Debabrata Mukherjee, D. N. Mukherjee and section K. Nandy, for the appellants (in both the appeals).
M. C. Chagla and Naunit Lal, for the respondents (in both the appeals.
The Judgment of J. M. SHELAT and I. D. DUA, J.J. was de livered by DUA, J. V. BHARGAVA, J., gave a dissenting Opinion.
Dua, J. We have read the judgment prepared by our learned brother Bhargava, We are in complete agreement with him so far as decision on points Nos.(2) & (3) is concerned, but with respect we are unable to agree with him on point No. (1).
It is unnecessary to repeat the relevant facts which have been set out by our learned brother in his judgment.
The impugned order dated April 1, 1965, in the case of appellant P. K. Hore may however, be again reproduced : "The Governor is satisfied that Shri P. K. Hore, Superintendent, P.W.D.F.C. & I Wing against whom more charges have been received is unfit to be retained in the public service and that he ought to be dismissed from service.
The Governor is further satisfied under sub clause (c) of the proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State, it is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above.
Accordingly, the Governor hereby dismisses the said P. K. Hore, from service with immediate effect.
" On the same day an identical order was made with respect to the dismissal of the appellant B. C. Das except that in the order against him there is no mention of more charges having been received against him.
It appears that when the Governor made these two orders his attention was not invited to the amended article 311(2) which was in force on that date.
The impugned orders were accordingly made in terms of article 311(2) as it existed before its amendment by the Fifteenth Amendment Act, 1963, which had come into force on October 6, 1963.
The amended Article 311(2) has been reproduced in the judgment of my learned brother, it is, However, desirable to reproduce both the amended and unamended article 480 311(2) so as to understand if any substantial or material change in the legal position was intended by the amendment: Unamended Prior to 6 10 63 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of 'showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give that person such an opportunity.
Amended After 6 10 63 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a responsible opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.
Provided that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry : or (c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
The unamended sub article except the proviso was a reproduction of section 240(3) of the Government of India Act, 1935.
The proviso to section 240(3) had only two clauses corresponding to cls(a) & (b) of the unamended article 311(2).
A bench of five Judges of this Court in Khem Chand vs The Union of India and Others (1) ; 481 speaking through Das, C. J., after referring to the divergent views expressed by Spans, C. J. of the Federal Court for himself and Zafarulla Khan, J., on the one hand, and by Varadachariar, J., on the other in Secretary of State for India vs I. M. Lall(1) and to the decision of the Privy Council on appeal in High Commissioner for India vs I. M. Lall(2) explained the Privy Council decision and clarified the meaning scope and ambit of the unamended article 311(2) in these words: "In our judgment neither of the two views can be accepted as a completely correct exposition of the intendment of the provisions of section 240(3) of the Government of India Act, 1935, now embodied in article 311(2) of the Constitution.
Indeed the learned Solicitor General does not contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him.
We think that the learned Solicitor General is entirely right in not pressing for such a limited construction of the provisions under consideration.
It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned.
All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
He must not only be given an opportunity but such opportunity must be a reasonable one.
In order that the opportunity to show cause against the proposed action may be regarded as a resonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves.
Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment.
" According to this decision the expression "reasonable opportunity of showing cause against the action proposed to be taken" included an opportunity to show cause against the guilt of the government servant concerned.
This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being heard in respect of the charges in the course of the (1) (2) L.R. [1948 75 I.A. 225.482 inquiry contemplated by the amended sub article.
The question, therefore, arises if in the present case the Governor when expressing his satisfaction under sub clause (c) of the proviso to cl.(2) of article 311 of the Constitution in the impugned order, by using the words "it is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above", intended to convey his satisfaction that in the interest of the security of the State it was not expedient to give an opportunity to P. K. Hore to show cause only against the penalty proposed to be imposed, and that the Governor 's satisfaction did not extend to the inexpediency of giving P. K. Hore an opportunity of showing cause against his unfitness to be retained in service as well.
In our opinion the impugned order cannot reasonably be construed to be restricted to the narrow meaning suggested on behalf of the appellant.
The words "as stated above" on which great reliance was placed by the learned counsel do not have the effect of restricting the ambit of the show cause notice to the question of penalty which may be imposed after the inquiry into P. K. Hore 's unfitness to be retained in the public service.
The show cause notice about the inexpediency of which the Governor was satisfied seems to us to extend also to the question of such unfitness of P. K. Hore.
To accept the suggestion made by the appellant 's learned counsel would impute to the Governor an intention to make what seems to be a meaningless order.
It may be recalled that the amended article 311(2) does not speak of any show cause notice.
The language of this sub article refers to an inquiry in which the delinquent government servant is to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where after such inquiry it is proposed to impose on him a penalty he is again to be given a reasonable opportunity of making representation on the penalty proposed.
The second stage does not speak of notice to show cause against the action proposed to be taken.
The amendment in 1963 was made principally to put in clearer language the result of the judicial decision construing section 240(3) of the Government of India Act, 1935, and unamended article 311(2) of the Constitution.
As already noticed, under section 240(3) of the Act of 1935 and the unamended article 311(2) provision was made of giving a reasonable opportunity to the government servant concerned of showing cause against the action proposed to be taken in regard to him.
This expression was construed in terms to refer to the stage when, after such inquiry as may be necessary, and after the punishing authority, being satisfied of the guilt of the delinquent government servant, provisionally proposed the action to be taken against him.
But in answer to this show cause notice the government servant was held entitled also to show cause against his guilt on the merits.
Even 483 though in the earlier inquiry, if any, the government servant had been given an opportunity of showing cause against his guilt, the second opportunity provided by the statute was held to be mandatory.
The Privy Council in I. M. Lall 's case(1) saw "no difficulty in the statutory opportunity being reasonably afforded at more than one stage".
The Privy Council, however, dealt with section 240(3) of the Act of 1935 and the earlier statutory rule on the subject.
This Court in Khem Chand 's case(2) after quoting a passage from the judgment of the Privy Council said: "Therefore, in a case where there is no rule like 55 the necessity of an enquiry was implicit in section 240(3) and is so in article 311(2) itself.
Further their Lordships say that an enquiry under r. 55 "would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry".
This clearly proceeds on the basis that the right to defend himself in the ,enquiry and the right to make representation against the proposed punishment are all parts of his "statutory right" and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant."
It cannot be doubted that the Governor in the present case was fully alive to the interest of the security of the State when he expressed his satisfaction about the inexpediency of giving an opportunity to P. K. Hore in the one case, and to B. C. Das in the other, to show cause against their guilt as contemplated by cl.(2) of article 311 and intended that this clause shall not apply to their cases.
Merely because the form of the order was ,expressed in the language used in the unamended article 311(2), it does not in our view detract from its effectiveness as operating to exclude the applicability of the amended cl.(2) of article 311 as a whole.
The use of the words in conformity with the unamended article serves to convey the same intention as is contemplated by the amended article and the difference in the language which seems to be inconsequential does not have the effect of nullifying the impugned order.
No doubt article 311(2) is intended to afford a sense of security to government servants covered by sub article(1) and the safeguards provided by sub article(2) are mandatory.
But cl.(c) of the proviso to this sub article which is designed to safeguard the larger interest of the security of the State cannot be ignored or (1) L.R. [1948] 75 I.A. 225.
(2) ; 484 considered less important, ' when construing sub article
The interest of the security of the State should not be allowed to suffer by invalidating the Governor 's order on unsubstantial or hyper technical grounds which do not have the effect of defeating the essential purpose of the constitutional safeguard of individual government servant.
It is nobody 's case before us that inquiry into the charges against the two appellants as contemplated by the amended article 311(2) had already been held and the question of imposition of penalty alone remained to be finally settled when the impugned order was made.
No inquiry of any kind as contemplated by article 311(2) was, according to the common case of the parties, held against the appellants when the Governor made the impugned orders under proviso (c) to this sub article.
In these circumstances the impugned orders when they speak of the "action proposed to be taken" must be construed as intended to refer to the action including inquiry into the truth of the charges against them and the proposed penalty to be imposed after such inquiry.
The fact that cl.(c) of the proviso to the amended sub article only speaks of the inquiry and not of imposition of penalty is understandable because in the absence of inquiry the question of penalty cannot arise.
It also serves to indicate that the Governor could not have intended by the impugned order to exclude only representation against imposition of penalty, leaving untouched the inquiry land the right of the government servant to the opportunity of hearing with respect to the charges.
Once it is borne in mind that the Governor 's attention was, for some reason or the other, drawn only to the unamended article 311 and not to the amended article, and it is further kept in view that the amendment of article 311 in 1963, as already explained, was only designed to clarify and give effect to the judicial decisions interpreting the unamended article, the reason for the form and the language used in the impugned orders becomes clear and there can be no difficulty in understanding their true meaning.
Reading the impugned orders in the light of what has just been stated, they quite clearly exclude the applicability of sub article(2) of article 311 in both cases.
These appeals accordingly fail and are dismissed, but in the circumstances without costs.
Bhargava, J.
These two appeals by certificate are directed against a common judgment of the High Court of Assam and Nagaland dismissing two writ petitions filed by the two appellants.
For purposes of dealing with the case, it is enough to give facts in respect of one of the appellants, as the facts in the case of the other appellant are very similar, and the points arising are common.
In Civil Appeal No. 1645 of 1967, the appellant is P. K. Hore who joined service in the Secretariat of the.
Assam 485 Government on 1st November, 1946 in the post of a Lower Division Assistant.
On 9th December, 1950, he was confirmed in that post.
On 1st July, 1957, he was confirmed as an Upper Division Assistant, and on further promotion, on 9th December, 1963, he was confirmed as a Superintendent in the Secretariat with the approval of the State public Service Commission.
In the year 1964 65, he was elected as Vice President of the Assam Secretariat Services ' Association.
This was at a time when, in the year 1964, the report of the Pay Committee appointed by the Government was published.
The employees of the Secretariat were dissatisfied with the recommendations of the Pay Committee and there was an agitation against it in respect of the service conditions.
As a result, the Association took a decision for a pen down strike.
There was also some agitation alleging that the Pay Committee had shown undue favour to the brother of the Finance Minister of the State Government, viz., Fakhruddin Ali Ahmed.
Consequently, between 16th and 19th November, 1964, there was a debate in the Legislative Assembly regarding the report where the Finance Minister had to give an explanation on this charge.
There was the further allegation that the appellant P. K. Hore had taken special interest in ensuring that undesirable persons did not enter Assam from Pakistan which was resented by the then Chief Secretary of the Government.
As a result of the agitation by the Association, of which P. K. Hore was the Vice President, he was suspended on 12th March, 1965.
The other appellant, B. C. Das, was suspended a few days later.
In fact, including the latter, 32 other employees were placed under suspension.
On 18th March, 1965, inquiry proceedings were drawn up against P. K. Hore and some others to show cause why disciplinary action should not be taken against them for insubordination.
P. K. Hore was asked to submit his explanation within five days from the date of receipt of the communication.
On 26th March, 1965, he applied for extension of time which request was accepted and time was extended up to 2nd April, 1965.
Before he could submit his explanation, however, on 31st March, 1965, P. K. Hore, B. C. Das and three others were placed under detention by the District Magistrate under Rule 30(1) of the Defence of India Rules.
Thereafter, in the case of P. K. Hore, the following order was passed on 1st April, 1965 : "The Governor is satisfied that Shri P. K. Hore, Superintendent, P.W.D.F.C. & 1.Wing against whom more charges have been received is unfit to be retained in the public service and that he ought to be dismissed from service.
The Governor is further satisfied under sub clause (C) of the proviso to clause (2) of Article 311 of the 486 Constitution that in the interest of the security of the State.
it is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above.
Accordingly the Governor hereby dismisses the said P. K. Hore from service with immediate effect.
" On these facts, this order, as well as the similar order passed in the case of B. C. Das, were challenged in the High Court of, Assam and Nagaland in petitions under article 226 of the Constitution on the following three grounds which have also been urged in these appeals (1) The order of dismissal from service has been passed in violation of article 311(2) of the Constitution, as the order of the Governor did not satisfy the requirements of sub clause (c) of the proviso to clause (2) of article 31 1; (2) The order has been passed without consultation with the State Public Service Commission which was compulsory under rule 10 of the Assam Services Discipline and Appeal Rules, 1964 (hereinafter referred to as "the Rules"), and regulation 6 of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 (hereinafter referred to as "the Regulations"), (3) The order of dismissal has been passed mala fide.
The High Court rejected all these grounds and dismissed both the writ petitions and, consequently, the appellants have come up to this Court in these appeals.
Clause (2) of article 311 of the Constitution, as it stands after amendment by the Constitution (Fifteenth Amendment) Act, 1963 reads as follows : "311.(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry : Provided that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct 487 which has led to his conviction on a criminal charge; or (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
" Under this provision, if an order of dismissal or removal or reduction in rank is to be passed in respect of any Government servant, three steps have to be taken.
The first step is to direct that an inquiry be held against him; the second is that, in that inquiry he has to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges; and, finally, after such inquiry, the third step to be taken is that, if it is proposed to impose on him any penalty of dismissal, removal or reduction in rank, he has to be given a reasonable opportunity of making a representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.
Under the three sub clauses of the proviso, this principal clause ceases to apply altogether in case the conditions laid down in those sub clauses are satisfied.
Sub clause (c), which is relevant in this case, lays down that, where the President or the Governor, as the case may be, is satisfied that, in the interest of the security of the State, it is not expedient to hold the inquiry under the principal clause, that clause shall not apply.
In order, therefore, to enable the Governor to pass an order of dismissal without holding an inquiry, without informing the government servant of the charges against him and without giving him an opportunity of being heard in respect of those charges, and without giving him a reasonable opportunity of making a representation against the penalty proposed, the Governor must be satisfied that, in the interest of the security of the State, the holding of such an inquiry is not expedient.
In the present case, in the impugned order dated 1st April, 1965, the satisfaction of the Governor was recorded in the following words : "It is not expedient to give the said Shri P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above.
" There was no mention of any inquiry and the Governor did not record any satisfaction that it was not expedient to hold the inquiry envisaged by the principal clause (2) of article 311.
It is specially to be noted that, in the first paragraph of the order, the 488 Governor 's satisfaction is recorded on two points.
One is that the Governor is satisfied that P. K. Hore, against whom more charges had been received, is unfit to be retained in the public service, and the second is that he ought to be dismissed from service.
Obviously, this paragraph envisaged that the Governor had already formed an opinion that the penalty of dismissal from service should be awarded to P. K. Hore.
Having arrived at that opinion, it was expressed in so many words in the first paragraph of the order and, then, in the second paragraph, the Governor 's satisfaction is recorded to the effect that it is not expedient to give P. K. Hore an opportunity to show cause against the action proposed as stated above.
The "action proposed as stated above" in the order clearly is the order imposing the penalty of dismissal from service.
In the order itself preceding the recording of this satisfaction, there is no other action proposed, except the action of dismissal from service.
The satisfaction recorded by the Governor, therefore, related to the third step to be taken under clause (2) of article 311 as enumerated above.
The Governor confined his satisfaction to the inexpediency of giving an opportunity to P. K. Hore to show cause against the penalty proposed.
No satisfaction is recorded that it is inexpedient to hold the inquiry required by clause (2) of article 31 1.
Under sub clause (c) of the proviso, what was needed was a satisfaction that it was inexpedient to hold the inquiry.
No such satisfaction having been recorded, it was necessary that the provisions of the principal clause (2) of article 311 should have been complied with before passing an order of dismissal.
Mr. Chagla appearing on behalf of the respondent, however, relied on the fact that the satisfaction of the Governor was recorded in the language in which the provision in article 311(2) stood prior to its amendment by the Constitution (Fifteenth Amendment) Act, 1963, and which was as follows "311.(2) No such person as aforesaid shall be dismissed of removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or 489 (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
" Under the unamended clause (2) of article 311, what was required to be done was that a reasonable opportunity of showing cause against the action proposed to be taken in regard to him had to be given to the government servant, and, under the proviso, the Governor 's satisfaction required was that in the interest of the security of the State it was not expedient to give that person such an opportunity.
The satisfaction under the unamended provision, therefore, that the Governor had to arrive at was that it was not expedient to give the government servant an opportunity of showing cause against the action proposed to be taken in regard to him.
This is the language used in the order impugned.
The words used in the Article, before the amendment, were interpreted by this Court in Khem Chand vs The Union of India and Others.(3) Summarising the position, the Court held : "The reasonable opportunity envisaged by the provision under consideration includes (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based .(b) an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.
" This interpretation was reiterated by the Court in Hukum Chand Malhotra vs Union of India.(1)
It was urged by Mr. Chagla that, in interpreting the order of the Governor dated 1st April, 1965, it should be held that, in stating that it is not expedient ; (2) [1959] Suppl. section C. R. 892.490 to give P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him, he must have used these words in the sense in which they were used in the Constitution prior to its amendment and in the light of the interpretation placed on those words by this Court in the two decisions cited above.
For two reasons, this submission made by Mr. Chagla appears to be unacceptable.
The first reason is that it is too much to hold that the Governor, while passing an order under the amended article 311(2), would be consciously thinking of and basing his order on the language which was used earlier in the unamended Article and on the interpretation placed on that unamended article by this Court.
In fact, in the counter affidavit filed on behalf of the State, the assertion made by the Chief Secretary again is "that the Governor of Assam was satisfied on the basis of materials before him that in the interest of security of the State, it was not expedient to give the petitioner to show cause against the order of dismissal.
" He, thus, reiterates that the Governor 's satisfaction was confined to the inexpediency of permitting the petitioner to show cause against the proposed order of dismissal which was the proposed penalty.
This statement in the affidavit gains importance when reference is made to a subsequent paragraph in it in which the Chief Secretary puts forward his submissions.
It is in the submissions that the Chief Secretary says that the Governor was satisfied that it was not expedient to hold the inquiry.
If, in fact, the Governor was so satisfied, there is no reason why the Chief Secretary should not have stated it on oath in the earlier paragraph, instead of merely making a submission of his in a subsequent paragraph.
The second reason is that in the order, when recording his satisfaction, the Governor has stated that it is not expedient to give P. K. Hore an opportunity to show cause against the action proposed to be taken in regard to him as stated above.
The last three words "as stated above" have great significance.
As has been mentioned earlier, the only action proposed to be taken, which was stated earlier in that order, was the action of dismissal from service.
Obviously, therefore, the language used can bear no other interpretation except that the Governor, in recording the satisfaction, confined it to the inexpediency of giving an opportunity to P. K. Hore to show cause against dismissal from service which would be an opportunity to show cause against the penalty proposed only.
No satisfaction was recorded with regard to the inexpediency of holding an inquiry.
It was argued that this interpretation, which is being placed on the order of the Governor, is too strict and technical, and it should be held that, in fact, the Governor intended to record his satisfaction on the question of inexpediency of holding the inquiry as required by the amended article 311(2).
It has to be 491 remembered that the satisfaction of the Governor under sub clause (c) of the proviso has the effect of depriving a government servant of a very valuable right of ;having an opportunity to prove his innocence as well as opportunity to make a representation against the penalty proposed to be inflicted on him.
The effect of such satisfaction is that the government servant is dismissed without even being told of the charges against him.
When such serious consequences follow, it is necessary that the precondition laid down by sub clause (c) of the proviso to article 311 (2) is strictly satisfied so as to justify deprivation of the valuable right of the government servant mentioned above.
I do not think, therefore, that it would be enough merely to infer the intention of the Governor and, thereupon, take away the right.
There having been no proper compliance with the requirements of subclause (c) of the proviso to article 311(2), the order of dismissal passed against P. K. Hore is void and must be struck down.
It may be mentioned that the same High Court in a later case of Zatia vs The State of Assam and Others(1) has arrived at the same decision, though on a different reasoning which does not appear to be sound.
This decision applies equally to the case of B. C. Das, as, in his case also, the order passed by the Governor for his dismissal is exactly similar and was made in exactly similar circumstances as in the case of P. K. Hore.
In view of the decision on the first point raised in these appeals, it is not necessary to deal with the other two points.
However, since they were argued in detail by both parties, I may indicate that, in my opinion, there is no force in either of them.
So far as non compliance with rule 10 of the Rules and regulation 6 of the Regulations is concerned, I am unable to accept the submission put forward by counsel for the appellants that the rule or the regulation lays down any requirement that the Public Service Commission must be consulted before a government servant is dismissed.
Rule 10 is as follows : "Special procedure in certain cases.Notwith standing anything contained in Rule 9 (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii) were the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rule; or (1) [1969] Vol.VI Assam Law Reports 192.492 (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit : Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.
" The main part of this rule only enumerates cases where orders can be passed without consulting the Public Service Commission.
It is only the proviso that mentions consultation; but it does not make it compulsory for the Commission to be consulted.
All it says is that the Commission shall be consulted in any case in which such consultation is necessary.
This clearly envisages that the necessity for consultation must be found in some other provision.
This rule itself does not lay down that in all cases, other than those mentioned in the principal clause or in rule 9, consultation with the Public Service Commission is made mandatory.
Similarly, regulation 6 only enumerates cases where it is not necessary to consult the Commission.
It is true that consultation with the Commission, in cases where the Governor himself passes an original order imposing the penalty of dismissal on a, government servant, is not dispensed with.
This regulation has obviously been made by the Governor in exercise of his power under the proviso to article 320(3) of the Constitution.
It is the principal clause of article 320(3) which lays down when the Public Service Commission shall be consulted.
Sub clause (c) of clause (3) of article 320 is the relevant provision under which consultation with the Public Service Commission is required on all disciplinary matters affecting a person serving under the Government of a State.
The regulations, as indicated above, do not dispense with this requirement of article 320(3)(c) in cases where the Governor is himself the original dismissing authority.
The argument of learned counsel that regulation 6 itself lays down by implication that there must be consultation with the Public Service Commission in such cases cannot, therefore, be accepted.
Regulation 6 not having exempted consultation with the Public Service Commission in such cases, all that can be held is that the consultation required by article 320(3)(c) continues to be in force and applicable.
Counsel also drew attention to illustration (4) in regulation 6 which is as follows : "It is proposed to dismiss a State Service Officer or to reduce his pension.
The Commission must be consulted before an order is passed by the Governor.
" 493 This illustration again merely indicates the correct legal position that the Commission must be consulted as required by article 320(3)(c).
The illustration by itself cannot be read as a statutory rule laying down that there must be consultation with the Commission.
The illustration is to the main provisions of regulation 6 which only lay down cases in which consultation with the Commission is dispensed with and this illustration has been put down as one of the examples where the consultation has not been dispensed with.
The consultation, therefore, with the Commission is not prescribed either by the Rules or by the Regulations.
The consultation is only under article 320(3)(c) of the Constitution.
So far as that consultation is concerned, this Court has already held that it is not mandatory and that this Article does not confer any rights on a public servant, so that the absence of consultation or any irregularity in consultation does not afford him a cause of action in a court of law, vide State of U. P. vs Manbodhan Lal Srivastava.(1) That decision was further affirmed in the State of Bombay vs D. A. Korgaonkar.(2) Non consultation with the Public Service Commission cannot, therefore, be held to vitiate the orders impugned.
The third ground of mala fides has, on the face of it, no force at all, because it is based on allegations that the Chief Secretary and the Finance Minister were annoyed with the appellants.
But there was no charge that the Governor bad any extraneous reasons for passing the orders of dismissal.
There is nothing on the record also to show that either the Chief Secretary or the Finance Minister took any part in the proceedings which led to the orders of dismissal, or that they advised the Governor.
The orders are, no doubt, authenticated by the Chief Secretary in the name of the Governor; but that does not mean that the Governor was in any way influenced by any advice tendered to him by the Chief Secretary.
In the circumstances, the plea of mala fide must also be rejected.
As a result, the appeals are allowed with cost and the orders of dismissal in both the cases are quashed as having been passed in violation of article 311(2) of the Constitution.
ORDER In accordance with the majority judgment, the appeals fail and are dismissed but in the circumstances of the case without costs.
G.C. (1) ; (2) Civil Appeal No. 289 of 1958 decided on 6th May, 1960.

summary:
The appellants were dismissed from the service of the Government of Assam by two separate orders passed by the Governor on April 1, 1965.
The orders recited that the appellants were unfit to be retained in the public service, that they ought to be dismissed from service and that the Governor was satisfied in terms of article 311(2) (c) of the Constitution that it was not expedient to give them opportunity to show cause against the action proposed to be taken in regard to them as stated above.
The appellants challenged the orders of dismissal in writ petitions under article 226 of the Constitution which were dismissed by the High Court.
In appeals by certificate the contentions of the appellants were: (i) that the impugned orders were not in compliance with the terms of article 311(2) as amended by the Constitution Fifteenth Amendment Act which had come into force on October 6, 1963; (ii) that the orders were bad because they were passed without consulting the Public Service Commission ; (iii) that the orders were passed mala fide at the instance of the Chief Secretary and the Finance Minister who were annoyed with the appellants.
HELD: (i) Per Shelat and Dua, JJ.
According to the decisions of this Court the expression "reasonable opportunity of showing cause against the action proposed to be taken" in the unamended article 311(2) included an opportunity to show cause against the guilt of the government servant concerned.
This opportunity to show cause against the guilt seems to correspond to the reasonable opportunity of being heard in respect of the charges in the course of the inquiry contemplated by the amended sub article.
The amendment in 1963 was made principally to put in clearer language the result of the judicial decisions construing section 240(3) of the Government of India Act, 1935 and unamended article 311(2) of the Con stitution.
It could not be doubted that the Governor in the present case was fully alive to the interest of the security of the State when he expressed his satisfaction about the inexpediency of giving an opportunity to the appellants to show cause against their guilt as contemplated by cl.
(2) of article 311 and intended that this clause shall not apply to their cases.
Merely because the form of the order was expressed in the language used in the unamended article 311(2) it did not detract from its effectiveness as operating to exclude the applicability of the amended cl.
(2) of article 311 as a whole.
The use of the words in conformity with the unamended article served to convey the same intention as was contemplated by the 478 amended article and the difference in the language which seemed to be inconsequential did not have the effect of nullifying the impugned orders.
The words 'as stated above ' in the orders did not have the effect of restricting the ambit of the show cause notice to the question of penalty which may be imposed after the inquiry into the unfitness of the appellants to be retained in the public service.
[482C H; 483E G] Khem Chand vs Union of India & Ors.
[1958] S.C.R. I Secretary of State for India vs I.M. Lal, and High Commissioner for India vs I.M. Lall, L.R. (1948) 75 I.A. 225, referred to.
Per Bhargava, J. (dissenting) The "action proposed as stated above" in the impugned orders clearly was the order imposing the penalty of dismissal from service.
In the order itself preceding the recording of the satisfaction there was no other action proposed, except the action of dismissal from service.
The satisfaction recorded by the Governor, therefore, related to the third step to be taken under cl.
(2) of article 311 of the Constitution.
The Governor confirmed his satisfaction to the inexpediency of giving opportunity to the appellants to show cause against the penalty proposed.
No satisfaction was recorded that it was inexpedient to hold the inquiry required by cl.
(2) of article 311 as amended.
Under sub cl.
(c) of the proviso, what was needed was a satisfaction that it was inexpedient to hold the inquiry.
No such satisfaction having been recorded it was necessary that the provisions of the principal cl.
(2) of article 311 should have been complied with before passing an order of dismissal.
The order of dismissal was therefore void and liable to be struck down.
[489C E] Case law referred to.
(ii) Consultation with the Public Service Commission is not compulsory under r. 10 of the Assam Services Discipline and Appeal Rules, 1964 and regulation 6 of the Assam Public Service Commission (Limitation of Functions) Regulations 1951.
The consultation with the Commission is not prescribed either by the Rules or by the Regulations.
The consultation is only under article 320 (3) (c) of the Constitution.
So far as that consultation is concerned this Court has held that it is not mandatory.
Nonconsultation with the Public Service Commission could not therefore be held to vitiate the orders impugned.
[492C 493D] State of U.P. vs Manbodhan Lal Srivastava, ; and State of Bombay vs D. A. Korgaonkar, C.A. No. 289/1968 dt.
6 5 1960, relied on.
(iii) There was no charge that the Governor had any extraneous reasons for Passing the orders of dismissal.
There was nothing on record to show that either the Chief Secretary or the Finance Minister took any Part in the proceedings which led to the orders of dismissal, or that they advised the Governor.
The orders were no doubt authenticated by the Chief Secretary in the name of the Governor, but that did not mean that the Governor was in any way influenced by any advice tendered to him by the Chief Secretary.
In the circumstances, the plea of mala fide must be rejected.
[493E F] The appeals.
had accordingly to be dismissed:


judgement:
Appeal No. 1794 of 1970.
Appeal from the judgment and order dated October 28, 1969 of the Mysore High Court in Tax Referred Case No. 12 of 1967.
Jagdish Swarup, Solicitor General, A. N. Kirpal and B. D. Sharma, for the appellant.
M. K. Ramamurthi, J. Ramamurthy and Vineet Kumar, for the respondent.
section Swaminathan and R. Gopalakrishnan, for the intervener.
The Judgment of the Court was delivered by Miter, J.
The question involved in this appeal is, whether three several sums appropriated by the Directors of the respondent towards reserves on the 8th August 1963 Gut of the profits of the 522 year ending 31st March, 1963 should be added to other items for computation of the capital of the respondent as on the 1st day of April, 1963 in terms of rule 1 of the Second Schedule to the hereinafter referred to as the 'Act '.
The Act which received the assent of the President on 2nd May, 1964 is an Act to impose a special tax on the profits of certain companies.
Under section 4 of the Act a tax known as surtax become chargeable on every company for every assessment year commencing on and from the 1st day of April 1964 in respect of so much of its chargeable profits of the previous year as exceeded the statutory deduction, at the rates specified in the Third Schedule.
Under section 2(3) "assessment year" means the period of twelve months commencing on the 1st day of April of every year.
"Chargeable profits" is defined in section 2(5) as the total income of an assessee computed under the Income tax Act, 1961 for any previous year or years, as the case may be, and adjusted in accordance with the provisions of the First Schedule.
"Statutory deductions", ignoring the provisos, means in terms of section 2(8) an amount equal to 10 per cent of the capital of the company as computed in accordance with the provisions of the Second Schedule or an amount of Rs. 2,00,000/ whichever is greater.
The Second Schedule to the Act contains the rules for computing the capital of a company for the purposes of surtax.
Rule 1 of the Second ' Schedule with which alone we are concerned in this section reads: "Subject to the other provisions contained in this Schedule, the capital of a company shall be the aggregate of the amounts, as on the first day of the previous year relevant to the assessment year, of (i) its paid up share capital; (ii) its reserves, if any created under the proviso (b) to clause (vi b) of sub section (2) of section 10 of the Indian Income tax Act, 1922 (XI of 1922), or under subsection (3) of section 34 of the Income tax Act, 1961 (LXIII of 1961); (iii) its other reserves as reduced by the amounts credited to such reserves as have been allowed as a deduction in computing the income of the company for the purposes of the Indian income tax Act, 1922 ( XI of 1922), or the Income tax Act, 1961 (XLIII of 1961); (iv) its debentures, if any; and (v) any moneys borrowed by it from Government or the Industrial Finance Corporation of India or the 523 Industrial Credit and Finance Corporation of India or any other financial institution which the Central Government may notify in this behalf in the Official Gazette or any banking institution (not being a financial institution notified as aforesaid) or any person in a country outside India : Provided that such moneys are borrowed for the creation of a capital asset in India and the agreement under which such moneys are borrowed provides for the repayment thereof during a period of not less than seven years.
Explanation.
For the removal of doubts it is hereby declared that any amount standing to the credit of any account in the books of a company as on the first day of the previous year relevant to the assessment year which is of the nature of item (5) or item (6) or item (7) under the heading "RESERVES AND SURPLUS" or of any item under the heading "CURRENT LIABILITIES AND PROVISIONS" in the column relating to "Liabilities" in the "Form of Balance sheet" given in Part I of Schedule VI to the (1 of 1956), shall not be regarded as a reserve for the purposes of computation of the capital of a company under the provisions of this Schedule.
" In terms of section 4 of the Act the first assessment year for the purpose of the Act in respect of the company was that commencing on and from the first day of April, 1964.
The previous year in respect of which the chargeable profits had to be ascertained commenced on the first of April 1963 and ended on the 31 st March, 1964.
The capital of.
the company in terms of rule 1 of the Second Schedule would be its paid up share capital and inter alia reserves as would come under clauses (ii) and (iii) of rule 1 to the Second Schedule.
The reserves in this case to which exception is being taken by the appellant as components of the capital of the company are the following three sums: (1) Rs. 2,56,000 as plant modernisation and rehabilitation reserve; (2) Rs. 1,00,000 as loan redemption reserve, and (3) Rs. 89,557/ as development rebate reserve.
These are three of the items of reserve which the directors of the respondent in their report to the general body of the shareholders proposed as appropriations out of the profits of the year ending on 31st March, 1963.
The sole contention on behalf of the appellant is that these appropriations having been made on the 8th August, 1963 could not be treated as components of capital "as on the first day of the previous year" i.e. 1 4 1963, in terms of rule 1 to the Second 524 Schedule.
The learned Solicitor General submitted that these could only be taken into consideration in the subsequent year commencing on the 1st of April 1964 on the ground that on the 1st of April 1963 they only formed a part of the mass of undistributed profits, no portion of which had been earmarked or set apart for any particular purpose.
In our view, this is not the correct way of appreciation of the action of the directors.
It is well known that the accounts of the company have to be made up for a year up to a particular day.
In this case that day was the 31st March, 1963.
If it was reasonably practicable to make up the accounts up to the 31st March 1963 and present the same to the directors of the respondent on April 1, 1963 they could have made up their minds on that day and declared their intention of appropriating the said and other sums to reserves of different kinds.
But the fact that they could not do so for the simple reason that the calculation and collection of figures of all the items of income, expenditure of the company for the year ending March 31, 1963 was bound to take some time cannot make any difference to the nature or quality of the appropriation of the profits to reserves as determined by the directors after the first of April, 1963.
Their determination to appropriate the sums mentioned to the three separate classes of reserves on the 8th August 1963 must be related to the 1st of April 1963 i.e. the beginning of the accounts for the new year and must be treated as effective from that day.
A case very similar to the one before us came up for consi deration before the Bombay High Court in Commissioner of In come tax, Delhi vs Aryodya Ginning & Manufacturing Co. Ltd. (1) In that case the profits of the company for the year ended 31st December 1948 were shown as Rs. 28,56,997 14 2.
The directors made certain appropriations which included Rs. 11,08,000 to reserve fund and Rs. 1,50,000 to dividend reserve fund.
The report of the directors was made on April 27, 1949 and a general meeting of the shareholders held on 27th June 1949 adopted the report and recommendation of the directors.
The company was assessed to business profits tax chargeable under the Business Profits Tax Act for the accounting period 1st January to 31st March 1949 and the question which arose was: what was the capital of the com pany for the accounting period.
The company contended that its paid up capital should be increased by the amount of reserves constituted by the recommendation made by the directors and accepted by the share holders.
The Commissioner of Income tax went up to the High Court on a reference contending that as the reserve was not sanctioned till 27th June 1949 it could not be looked (1) 525 at or considered as reserves on a day prior thereto.
The learned Judges of the Bombay High Court were of the view that the resolution of 27th June, 1949 had a retrospective effect inasmuch as it referred to the profits of the year ending on 31st December, 1948, the appropriations to be made in the balance sheet as of that date and the reserves which should be constituted and shown in the balance sheet as on 31st December 1948.
The High Court observed that when one looked at the balance sheet of the year ended 31st December 1948 the amounts mentioned were shown respectively in the reserve fund and the dividend reserve fund and the shareholders by passing a resolution on 27th June, 1949 did not decide that these amounts should constitute reserves as from that date but they accepted the recommendation of the directors that these amounts should constitute reserves as of 31st December, 1948.
The learned Solicitor General referred to a judgment of the Madras High Court in Commissioner of Income tax vs Vasantha Mills Ltd. (1) where the Madras High Court dissented from the view expressed by the Bombay High Court on the ground that there could be no reserve until there was allocation in fact by a person having the requisite authority to order that allocation.
In our view, although such allocation was factually not possible on the very first day of a year but allocation on a later day should be treated as effective from that day in view of the fact that the division of undistributed profits became effective from that day.
In this view of the matter, we are of opinion that the High Court had come to the correct conclusion and the appeal should be dismissed.
The appellant will pay the costs of the respondent.
K.B.N. Appeal dismissed.

dataset_name: IN-Abs

summary:
On the question whether three several sums appropriated by the Directors of the respondent company towards reserves on the 8th August, 1963 out of the profits of the year ending 31st March, 1963, should be added to other items for computation of the capital of the respondent as on the 1st day of April, 1963 in terms of rule 1 of the Second Schedule to the , HELD: The fact that the directors were unable to appropriate the SUMS to reserves of different kinds cannot make any difference to the nature or quality of the appropriation of the profits to reserves as determined by the directors after 1st April, 1963.
Their determination to appropriate the sums mentioned to the three separate classes of reserves on the 8th of August, 1963 must be related to the 1st of April, 1963 i.e. the beginning of the accounts for the new year and must be treated as effective from that day.
[524D] Commissioner of Income tax, Delhi vs Aryodya Ginning & Manufacturing Co. Ltd., and Commissioner of Income tax vs Vasantha Mills Ltd., , referred to.


judgement:
Appeal No. 2108 of 1966.
Appeal from the judgment and decree dated January 15, 1965 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 82 of 1963.
Danial A. Latifi and M. I. Khowaja, for the appellant.
C. B. Agarwala and Akhtar Husain, for respondent No. 3.
The Judgment of the Court was delivered by Ray, J.
This appeal is by certificate from the judgment dated 15th January, 1965 of the Allahabad High Court.
The appellant son of Sardar Mujibul Rahman Khan a zamindar of a number of villages in the District of Kheri, Uttar Pradesh impeached the orders of the Board of Revenue of Uttar Pradesh dated 30 August, 1960 and 6 September, 1960 whereby the Board 442 issued three directions.
The first was to stop payment of instalment money or the bonds by the treasuries.
The second was to direct the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remaining with him for liquidation of debts.
The third was an order attaching movable and immovable properties belonging to the appellant and his brother.for liquidation of debts.
The principal question in this appeal is whether the first res pondent, the Board of Revenue Uttar Pradesh had authority to pass, the order impugned in this appeal.
The third respondent Raja Shatranjai the decree holder was a creditor of the appellant 's father Sardar Mujibul Rahman Khan on the basis of a mortgage deed.
Raja Shatranjai obtained a decree on the said mortgage debt for Rs. 1,31,040 1 0 and Rs. 1931 1 0 as costs.
The decree is dated 28 September, 1939.
The decree was passed under the provisions of the Uttar Pradesh Encumbered Estates Act, 1934 (hereinafter referred to as the1934 Act).
The decree was passed on the application of Sardar Mujibul Rahman Khan under section 4 of the 1934 Act for the liquidation of his debts.
The debtor was a zamindar in the District of Lakhimpur Kheri.
The decree was transferred to the Deputy Commissioner of Kheri for liquidation of debts.
Meanwhile the U. P. Zamindari Abolition and Land Reforms.
Act, 1951 (hereinafter referred to as the 1951 Act) came into, force.
The proprietary rights of the intermediaries vested in the State Government and the intermediaries were entitled to receiver compensation in lieu thereof.
The judgment debtor was an intermediary.
Notices were issued to the intermediaries to take delivery of the bonds or receive payment in cash on specified dates.
The appellant on the death of his father became entitled to 2/3rd of the Zamindari property and compensation therefore.
He took delivery of the compensation bonds of the value of Rs. 42,750/from the Compensation Officer, Lakhimpur while bonds of the value of Rs. 21,250 were received by his brother Hikmat Hakim Khan.
The total amount of bonds received by the appellant and his brother aggregated Rs. 64,000.
On 14 April, 1959 the decree holder applied to the Collector, Kheri for an order that the appellant and his brother do return the bonds which they had received from the Compensation Officer failing which their movable and immovable properties to the extent of these bonds be attached for liquidation of their debts.
The Collector on 17 August, 1959 rejected the application.
The decree holder preferred an appeal.
The appeal was dismissed by the Additional Commissioner, Lucknow on.
17 February, 1960.
The decree holder thereupon commenced revision proceedings before 443 the Board of Revenue.
On 30 August, 1960 a member of the Board of Revenue allowed the revision.
On 6 September, 1960 another member of the Board of Revenue concurred in the order.
The Board asked the Collector to take one or other of the three steps, namely, the treasuries to stop payment of money on installment in respect of the compensation bonds or direct the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remaining with him for the liquidation of the debts or to attach the movable properties of the appellant and his brother for the liquidation of debts.
The appellant thereafter made an application to the High Court under Article 226 of the Constitution for an order quashing the order and directions of the Board of Revenue.
The learned Single Judge quashed the order of the Board of Revenue save and except the direction directing the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remaining with him for liquidation of debts.
Thereafter the decree holder preferred an appeal.
The Bench of the High Court was divided in their opinion.
The matter was placed before the third learned Single Judge.
The order of the High Court was that direction No. 3 of the Board of Revenue, namely, attachment of movable and immovable properties of the appellant and his brother was quashed.
The High Court upheld the other two orders of the Board of Revenue in regard to stoppage of payment of installment money on the bonds by the treasuries and direction on the Compensation Officer to hand over the bonds of the face value of Rs. 32,000 remaining with him for liquidation of the debts.
Counsel for the appellant contended that the Board of Reve nue did not have any power to issue the directions.
In the present case, the decree was passed under section 14 of the 1934 Act.
Under section 19 of the 1934 Act the Special Judge passing the decree is to send the same to the Collector for execution in accordance with the provisions of Chapter V of the 1934 Act.
The Special Judge under section 19 of the 1934 Act is also to inform the Collector of the nature and extent of the amount of the secured debt which is not legally recoverable otherwise than out of the compensation and rehabilitation grants payable to the Landlord in respect of the mortgaged estate.
The U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 1950 Act) came into force on 26 January, 1951.
a result of the 1950 Act sections 23A and 23B were introduced into the 1934 Act.
Section 23A speaks of compensation and rehabilitation grant to be placed at the disposal of the Collector.
Section 23B 444 speaks of liquidation of secured debts recoverable both from compensation and rehabilitation grant.
The sections are set out hereunder : "23A. Compensation and rehabilitation grant to be placed at the disposal of the Collector : The Collector shall require the Compensation Officer and Rehabilitation Grants Officer as may be necessary to place at his disposal in pursuance of section 70 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, the amount of compensation money and rehabilitation grant payable to the landlord in respect of his proprietary rights in land reported to be liable to attachment or sale under the provisions of sub section (2) of section 19.
23B. Liquidation of secured debt recoverable from compensation and under rehabilitation grant.: (1) Without prejudice to the provisions of Section 8 of the U. P. Zamindar 's Debt Reduction Act, 1952.
the amount or the bonds on account of compensation or rehabilitation grant received by the Collector in pursuance of the requisition under Section 23 A shall be expended or utilised by the Collector in liquidation of the amount of the secured debt which having regard to the provisions of the U. P. Zamindar 's Debt Reduction Act, 1952 was secured on the proprietary rights in land in respect of which such money has been received.
(2) If any balance out of the compensation and rehabilitation grant received by the Collector in pursuance of the requisition under Section 23 A remains in the hands of the Collector after utilising the same in accordance with the provisions of sub section (1), such balance shall be utilised by the Collector in discharging the debts, other than the debts, referred to in the said sub section in order of priority".
Both these sections of the 1934 Act refer to section 70 of the 1950 Act.
Section 70 of the said Act is as follows : "Compensation money to be placed at the disposal of the Court or authority : Where before any Court or authority any suit or proceeding is pending which directly or indirectly affects or is likely to affect the right of any person to receive the whole or part of the compensation determined under Chapter III, the Court or authority may require the Compensation Officer to place at its disposal the amount so payable and thereupon the same shall be disposed of in accordance with the orders of such Court or authority".
445 The Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at his disposal.
The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance remains it is to be utilised in discharging the debts other than those mentioned in section 23 B (1) of the 1934 Act, in order of priority.
By reason of the provisions contained in section 70 of the 1950 Act and section 23A of the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed.
The Compensation Officer under rule 77(1) of the Zamindari Abolition and Land Reforms Rules, 1952 could issue notice to the intermediary directing him to take delivery of the bonds.
The issue of a notice would not clothe the intermediary with the right to take away the bonds because under section 18 of the 1934 Act the decree holder becomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act.
The proviso to section 18 of the 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished.
The question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer.
Sections 23A and 23B of the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilised by the Collector in liquidation of the amount of the secured debt.
Under section 23B of the 1934 Act the bonds are received by the Collector in pursuance of the requisition under section 23A of the 1934 Act.
The absence of the service of a requisition cannot confer a right on the judgment debtor to take away the compensation money or bonds.
The principle is actus curia neminem gravabit.[445E F] The decree holder under the provisions of the relevant statutes was entitled to be paid out of the compensation grant monies in satisfaction of the decree.
If the Collector had required the Compensation Officer under section 23A of the 1934 Act to place at his disposal pursuant to section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant.
The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute, and performance of statutory duty by the Collector as well as the Compensation Officer.
The appellants were not entitled to, receive the bonds without satisfying the decree.
The appellants were wrong in doing so.
The appellant could not take advantage of his own wrong.
That is why the Board of Revenue correctly, directed the 446 stoppage by the treasuries of payment of instalment money on the bonds.
The other direction by the Board of Revenue requiring the Compensation Officer to hand over the bonds remaining with the Compensation Officer was in aid of valid compliance with sections 23A and 23B of the 1934 Act as well as section 70 of the 1950 Act.
The jurisdiction and authority of the Board of Revenue in the present appeal touched directly on the performance of statutory obligations by statutory authorities.
The compensation bonds are required by the statute to go to the Collector for liquidation of secured debts.
The judgment debtor is not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute.
The High Court rightly upheld the directions of the Board of Revenue.
The appeal is therefore dismissed.
The parties will pay and bear their own costs in this Court.
G.C. Appeal dismissed.

summary:
There was a decree under the provisions of the U.P. Encumbered Estates Act, 1934 against the appellant 's father on the basis of a mortgage deed.
The decree was transferred to the Deputy Commissioner for liquidation of debts.
Meanwhile the U.P. Zamindari Abolition and Land Reforms Act, 1951 came into force.
Compensation for proprietary rights as an intermediately vested in the State Government became payable to the judgment debtor.
On the death of his father the appellant and his brother became entitled to his property as well as the compensation payable to him.
The appellant and his brother received bonds of the aggregate value of Rs. 64,000.
Bonds of the face value of Rs. 32,000 remained with the compensation officer.
In 1959 the decree holder applied to the Collector for an order that the appellant and his brother do return the bonds which they had received from the compensation officer failing which their properties were to be attached.
The matter went up to the Board of Revenue.
The Board asked the Collector to take one or the other of three steps, namely, (1) to stop payment of instalment money on the bonds by the treasuries or (2) direct the compensation officer to hand over bonds of the face value of Rs. 32,000 remaining with him for the liquidation of the debts or (3) to attach the movable properties of the appellant and his brother for the liquidation of debts ' The appellant thereafter made an application to the High Court under article 226 of the Constitution for an order quashing the order and direction to the Board of Revenue.
The Division Bench, in appeal against the order of the Single Judge, quashed the direction of the Board of Revenue according to which the properties of the appellant and his brother were to be attached.
The High Court upheld the other two orders of the Board of Revenue in regard to stoppage of payment of instalment money on the bonds by the treasuries and direction to the Compensation Officer to hand over the bonds of the face value of Rs. 32,000 remaining with him for liquidation of the debts.
in appeal to this Court the appellant contended that the Board of Revenue did not have power to issue the said directions.
HELD: By reason of the provisions contained in section 70 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and section 23A of the U.P.
Encumbered Estates Act, 1934 the compensation money is sent for by the Collector for the purpose of liquidation of secured debts on which decree is passed.
The Compensation Officer under r. 77(1) of the Zamindari Abolition and Land Reforms Rules, 1953 could issue notices to the intermediary directing him to take the bonds because under section 18 of the 1934 Act the decree holder becomes entitled to recover the amount of the decree in the manner and to the extent mentioned in 1934 Act.
The proviso 441 to section 18 of the 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grant as though the security had not been extinguished.
[445C D] Further, section 23A and section 23B of the 1934 Act require that the amount from the bonds on account of compensation or rehabilitation grant received by Collector shall be expended or utilised by the Collector in liquidation of the amount of the secured debt.
Under section 23B of the 1934 Act the bonds are received byCollector in pursuance of the requisition under section 23A of the 1934 Act.
The absence of the service of a requisition cannot confer a right on thejudgment debtor to take away the compensation money or bonds.
The principle is actus curia neminem gravabit.
[445E F] The decree holder under the provisions of the relevant statutes was entitled to be paid out of the compensation grant monies in satisfaction of the decree.
If the Collector had required the Compensation Officer under section 23A of the 1934 Act to place at his disposal pursuant to section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant.
The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of the statutory duty by the Collector as well as the Cornpenation Officer.
The appellants were not entitled to receive the bonds without satisfying the decree.
That is why the Board of Revenue correctly directed the stoppage by the treasuries of payment of instalment on the bonds.
[445G H] The other direction of the Board of Revenue requiring the Compensation Officer to hand over bonds remaining with the Compensation Officer was in aid of valid compliance with sections 23A and 23B of the 1934 Act as well as section 70 of the 1950 Act.
[446A] The jurisdiction and authority of the Board of Revenue touched directly on the performance of statutory obligations by statutory authorities.
The High Court rightly upheld the directions of the Board of Revenue.
[446B]


judgement:
minal Appeal No. 167 of 1968.
Appeal from the judgment and order dated January 18, 1968 of the Allahabad High Court in Criminal Revision No. 1482 of 1966.
O. P. Rana, for the appellant.
Bashir Ahmed and section Shaukat Hussain, for the respondent.
The Judgment of the Court was delivered by Dua J.
The State of U.P. has appealed to this Court on certificate of fitness granted by the Allahabad High Court from 495 that court 's order dated January 18, 1968, acquitting the respondent of an offence punishable under section 14 of the Foreigners Act (Act No. 31 of 1946).
This appeal was originally heard by us on January 11 & 14, 1971, when it was considered desirable to send for the original records of the case from the courts below and also to call for the Me relating to the inquiry held by the Central Government under section 9(2) of the (Act No. 57 of 1955) into the question of the acquisition of citizenship of Pakistan by the respondent.
On July 11, 1963, the respondent was arrested for 'over staying in India as a, foreigner and on March 6, 1965, he was charged by the City Magistrate, Varanasi, with the commission ,of an offence punishable under section 14 of the Foreigners Act (Act No. 31 of 1946).
The charge reads : "I, D. section Sharma, City Magistrate, Varanasi, hereby charge you Rahmatullah as follows : That you being a Pakistani Citizen entered into India on 1 4 55 on Pakistani Passport No. 283772 dated 15 3 55 and Indian visa No. 16326 Category C dated 22 3 55 and got your extension to stay in India up to 25 5 56 after which date you are overstaying in India illegally without any passport and visa : and thereby committed an offence punishable u/s 14 of Foreigners Act within my cognizance, and hereby I direct you to be tried on the said charge by me." According to the prosecution case against the respondent as put in the Trial Court, he was a Pakistani national and had on April 1, 1955, entered India on a Pakistani passport dated March 15, 1955, and an Indian Visa dated March 22, 1955, obtained by him as a Pakistani national, but even after the expiry of the permitted period he was overstaying in India without a valid passport or visa).
The original visa, it is not disputed, expired on June 21, 1955, but it was extended thrice, the last extension being valid only up to May 25, 1956.
Thereafter the respondent went underground and has since been residing in India illegally.
He was treated after several years and was arrested on July 11, 1963.
The respondent pleaded in defence that though he had entered India on a Pakistani passport he was not a Pakistani national.
On the contrary he claimed to be an Indian citizen and therefore rightfully living in India.
According to him he had been born in India of Indian parents in 1932 and was an Indian citizen under the Constitution.
496 During the pendency of the present criminal proceedings an inquiry was made by the Central Government under section 9(2) of the read with r. 30 of the Citizenship Rules, 1956, and by means of an order dated November 5, 1964, it was determined that the respondent had acquired citizenship of Pakistan after January 26, 1950, and before March 15, 1955.
March 15, 1955 was apparently fixed because on that date the respondent had secured his Pakistani passport.
In that inquiry the respondent was given full opportunity of adducing proof in support of his plea.
The respondent was informed of the determination of the Central Government on March 29, 1965 in the Trial Court.
The City Magistrate, Varanasi, trying the case came to the conclusion that the respondent had voluntarily gone to Pakistan and had stayed there for 8 or 9 months.
The fact that he had obtained a Pakistani passport was in the opinion of that court an indication of his intention to have gone to that country with the object of becoming a Pakistani national.
The argument that the determination in regard to the respondent 's citizenship was made by the Central Government after the commencement of the present proceedings was considered by the Trial Court to be irrelevant because the determination by the Central Government was immune from challenge and whether it was made before or after the framing of the charge was immaterial.
The respondent was held to be a Pakistani national and as it was not denied that he had entered India on a Pakistani passport and also that on the expiry of the period for which he had been permitted to stay in India including the extended period, he had stayed on in this country without obtaining valid permit, he was convicted of an offence under section 14 of the Foreigners Act.
He was sentenced to rigorous imprisonment for 18 months and to pay a fine of Rs. 200/ and in default of payment of fine to rigorous imprisonment for a further period of three months.
The Sessions Judge dismissed the respondent 's appeal holding that the charge had been framed against him several months after the determination by the Central Government that he was a Pakistani national.
According to that court the order of the Central Government was dated November 5, 1964, and it was communicated by the Sahayak Sachiv, U. P. to the Senior Superintendent of Police, Varanasi, on December 28, 1964.
On revision the High Court disagreed with the view of the courts below.
According to the High Court the respondent was not a foreigner when he entered India though he had obtained 497 a Pakistani passport.
Having not entered as a foreigner the respondent 's case was held to be outside para 7 of the Foreigners Order, 1948, made under section 3 of the Foreigners Act.
The High Court held the respondent to be a foreigner when he was prosecuted for an offence under section 14 of the Foreigners Act.
But in its opinion that fact could not attract para 7 of the Foreigners Order, 1948 made under section 3 of the Foreigners Act.
On this reasoning the respondent 's conviction was set aside and he was acquitted.
In this Court, to begin with, it was argued on behalf of the State that section 2(a) of the Foreigners Act defines a "foreigner" to mean a person who is not a citizen of India.
If, therefore, the respondent is not a citizen of India, then being a foreigner his prosecution and conviction under section 14 of the Foreigners Act was unassailable, contended Shri Rana.
The order of the High Court acquitting the respondent was, therefore, contrary to law, he added.
This submission is misconceived.
The definition of the word "foreigner" relied upon by the counsel was substituted for the earlier one by the Foreigners Law (Amendment Act 11 of 1957) with effect from January 19, 1957.
Quite clearly the new definition is of no assistance in determining the status of the respondent at the time of his entry into India in 1955.
The word "foreigner" according to the definition as in force in 1955 meant, a person who (i) is not a natural born British subject as defined in sub sections (1) and (2) of section 1 of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any Jaw for the time being in force in India, or (iii) is not a citizen of India.
The , having been published in the Gazette of India on December 30, 1955, was also not in force at the time when the respondent entered India.
We may, therefore, turn to the Constitution to see if the respondent was a citizen of India at the time of the commencement of the Constitution.
Clause (a) of Article 5 clearly covers the case of the respondent who was born in the territory of India, and had his domicile in this territory at the commencement of the Constitution.
Being a citizen of India at the commencement of the Constitution in 1950, unless he lost his citizenship under some law between the commencement of the Constitution and his entry into India in 1955, the respondent would continue to be an Indian citizen till such entry.
Even on behalf of the appellant no serious attempt was made to show that the respondent had lost his Indian citizenship in any other manner except on the basis of his having obtained a Pakistani passport and on the basis of the determination of the question of his citizenship by the Central Government on November 5, 1964.
Indeed after some faint argument the appellant 's learned counsel based his case exclusively on the determination 32 1 section C. India/71 498 by the Central Government, and in our opinion on the existing record rightly so.
According to his submission the determination made by the Central Government under section 9(2) of the is final and since the respondent has been held to have acquired citizenship of Pakistan before March 15, 1955, his entry into India after that date and his subsequent continued stay in this country after the expiry of the extended period on May 22, 1955, would amount to an offence punishable under section 14 of the Foreigners Act.
As will presently be shown the real question which arises for our decision lies in a short compass and the relevant facts essential for the decision are no longer in dispute.
When the respondent entered India on April 1, 1955, he was in possession of a Pakistani passport and a visa to which no objection was taken by the Indian authorities.
He did not enter India clandestinely, and he is not being tried for having entered India in violation of any law.
Indeed his visa was, admittedly extended by the appropriate authority up to May 22, 1965.
As he was clearly a citizen of India at the commencement of the Constitution and the question arose whether he had lost Indian citizenship thereafter, the Central Government had to determine under section 9 of the the question of the acquisition of Pakistan nationality by the respondent.
This Court in Government of Andhra Pradesh vs Syed Mohd. Khano after referring to its earlier decision in lzhar Ahmad Khan vs Union of India(1) made the following observation : "Indeed, it is clear that in the course of the judgement, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner.
It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has "acquired the citizenship of the foreign country" , but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question.
Therefore, there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State (2) [1962] Supp.
3 section C. R. 235.
(1) [1962] Supp. 3 section C. R. 288.
499 and have lost in consequence the citizenship of this country, it is essential that question should be first considered by the Central Government.
In dealing with the question, the Central Government would undoubtedly be entitled to give effect to the impugned R. 3 in Sch.
III and deal with the matter in accordance with the other relevant Rules framed under the Act.
The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him." In that case an argument was raised on the authority of lzhar Ahmad Khan 's case(1) that as soon as a person acquired a passport from a foreign Government his citizenship of India automatically came to an end, but it was repelled.
in Shuja Ud Din vs The Union of India and Another(2) this pondent there was born in India in 1924 and had lived in this 'Country all along tiff about the end of 1954.
At the end of 1954 or the beginning of 1955 he went to Pakistan from where he returned on January 20, 1955 on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in this country upto April 1955.
He applied to the Central Government for extension of the time allowed by the visa, but there was no material to show what orders, if any, were made on it.
The respondent having stayed in this country beyond the time specified in the visa, on September 3, 1957 he was served with an order under section 3(2)(c) of the Foreigners Act, requiring him to leave India.
On his failure to comply with this order he was prosecuted under section 14 of the Foreigners Act.
His defence was that he was an Indian national.
The Magistrate trying him rejected his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakistan passport and that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner under section 8 of the Foreigners Act and that such a decision was final.
He was convicted by the Trial Court and the conviction was upheld by the Sessions Judge.
The High Court in revision set aside his conviction.
On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respondent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the that decision could only be made by the prescribed authority.
The respondent in that case, according to this Court, had become an Indian citizen under article 5(a) of.
the Constitution when it (1) [1962] Supp.
3 section C. R. 233 (2) ; 500 came into force and there being no detention by the Central Government that he had lost his nationality thereafter.
the order of the High Court acquitting him was upheld.
in Shuja Ud Din vs The Union of India and Another (1) this Court speaking through Gajendragadkar, J. as he then was, said: "it is now well settled that the question as to whether a person who was a citizen of this country on January 26, 1950, has lost his citizenship thereafter, has to be determined under the provisions of section 9 of the (No. LVII of 1955).
There is also no doubt that this question has to be decided by the Central Government as provided by Rule 30 of the Rules framed under the in 1956.
The validity of section 9 as well as of Rule 30 has been up held by this Court in the case of Izhar Ahmad Khan and Ors.
vs Union of India and Ors.
It has also been held by this Court in The State of Madhya Pradesh vs Peer Mohd. and Anr.
Appeal No. 12 of 1961 decided on Sept. 28, 1962) that this question has to be determined by the Central Government before a person who was a citizen of India on January 26, 1950, could be deported on the ground that he has lost his citizenship rights thereafter under section 9 of the .
Unless the Central Government decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India.
" In Abdul Sattar Haji Ibrahim Patel vs The State of Gujarat(2), Gajendragadkar, C. J., speaking for a bench of five Judges approved the decisions in the cases of Izhar Ahmed Khan(3) and Syed Mohd. Khan(4), it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his citizenship of India and has acquired that of a foreign country.
That an inquiry under section 9 of the can only be held by the Central Government was again reaffirmed by this Court in Mohd. Ayub Khan vs Commissioner of Police, Madras (5).
In view of these decisions it seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby (1) C. A. No. 294 of 1962 decided on Oct. 30, 1962.
(2) Cr.
A. No. 153 of 1961 decided on Feb. 17,1964.
(3) [1962] Supp.
3 section C. R.235.
(4) [1962] SUPP.
3 section C. R. 288.
(5) 501 lost Indian nationality, he could not be treated as a foreigner and no penal action could be taken against him on the basis of his status as a foreigner, being national of Pakistan.
It is not the appellant 's case before us that any directions under the law governing foreigners were given to the respondent after November 5, 1964, which were disobeyed entailing his prosecution, and indeed it is admitted that he was not even informed of the decision of the Central Government till March 29, 1965.
It is also noteworthy that at the time when the Central Government determined his nationality he was being tried in this country by the criminal court after having been arrested and bailed out, and he was not free to leave this country for proceeding to Pakistan.
In the background of these facts it appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an Indian citizen.
The order of the Central Government is clearly final, and it has remained unchallenged by the respondent even after he was informed of this order on March 29, 1965.
We have seen the proceedings of the Central Government and we find that the respondent had been given full opportunity of putting forth his case.
The binding nature of that order was not, and indeed it could not be, questioned before us.
The determination by the Central Government in this case could not have the effect of retrospectively rendering a penal offence an act which was not so at the time of its commission.
The respondent even though held to be a Pakistani, and therefore a foreigner, before the charge was framed against him is entitled to the protection of our laws.
As a result of the foregoing discussion, the High Court was in our opinion right in setting aside the respondent 's conviction on the charge framed.
It will of course be open to the Central Government to take such suitable action against the respondent under the Foreigners Act or under any other provision of the law which may be applicable to him, for the purpose of either deporting him or otherwise dealing with him as is thought fit.
This appeal, however, must fail.
Y.P.S. Appeal dismissed.

summary:
The respondent was a citizen of India at the commencement of the Constitution in 1950.
He entered India on April 1, 1955, with a Pakistani passport dated March 15, 1955, and overstayed in India beyond the permitted period.
He was arrested in 1963 and was charged with an offence under section 14 of the Foreigners Act, and convicted.
While the criminal proceedings were pending, the Central Government, under section 9(2) of the , read with r. 30 of Citizenship Rules, 1956, determined on November 5, 1964, that the respondent had acquired citizenship of Pakistan after January 26, 1950, and before March 15, 1955.
The High Court set aside the conviction.
On appeal to this Court, HELD: (1) The respondent was not a 'foreigner ' within the meaning of the Foreigners Act before its amendment in 1957.
[500 G H] (2) Having been a citizen of India at the commencement of the Constitution and not being a foreigner under the Foreigners Act at the date of his entry, till the Central Government determined the question of the respondent having acquired Pakistan nationality and thereby lost Indian nationality, he could not be treated as a foreigner and no penal action could be taken against him.
[497 G; 501 ' A B] (3) The order of the Central Government dated November 5, 1964 determining that the respondent was a Pakistani was final, but the determination by the Central Government could not have the effect of retrospectively rendering his stay in India before that date a penal offence.
It was not as if he was given any directions after November 5, 1964, which were disobeyed by him entailing his prosecution.
[501 C E]