judgement:
: Civil Appeals Nos.
1601 1609of 1968.
Appeals by Special Leave from the Judgments and Orders dated the 7th February, 1968 and 26th March, 1968 of the Mysore High Court at Bangalore in Regular Second Appeal No. 627 of 1964 and Regular Second Appeals Nos. 117 to 120 and 881 to 884 of 1967 respectively.
Civil Appeals Nos. 2402 2405/68 Appeals by Special Leave from the Judgment and Decree dated the 26th March, 1968 of the Mysore High Court in R.S.A. Nos.
881 884/67.
(Mrs.) Shyamla Pappu and Vineet Kumar for the Appellant in C. As.
1601 1609/68.
Narayan Nettar for the Appellant in CAs.
2402 2405/68.
H. Rizvi, B.B. Jawakley and K.P. Gupta for Respond ent No. 1 in C.A. 1601/68.
A.H. Rizvi, A.M. Mathur, B.B. Jawakley, K.P. Gupta and S.S. Hussain for Respondent No. 1 in C.As. 1602 1607/68.
(Mrs.) Shyamla Pappu and J. Ramamurthi for Respondents in C. As.
2402 2405/68.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of appeals by special leave, the first one out of which is directed against the judgment and decree dated February 7, 1968, of Somnath Iyer, J. of the Mysore High Court in R.S.A. No. 627 of 1964, and the rest whereof are directed against the common judgment and decree dated March 26, 1968 of M. Santhosh, another learned Judge of that Court in R.S.A. Nos. 120, 881, 117 to 119 and 882 to 884 of 1967 shah be disposed of by this judgment as they raised a common question as to the validi ty of orders of dismissal from service of persons who are arrayed as first respondents in all these appeals.
The facts leading to.
the appeals are: The first re spondent in each of these appeals was working as a conduc tor in the Road Transport Department of the erstwhile State of Hyderabad prior to the 285 coming into force of the .
On the reorganisation of the States with effect from Novem ber 1, 1956, consequent upon the coming into force of the said Act, the said respondents were allotted to the new State of Mysore but their employment as conductors was continued in the Depots which became parts of the Mysore Government Road Transport Department.
As a result of the disciplinary proceedings taken against them for certain cash and ticket irregularities alleged to have been committed by them, they were dismissed from service by the Divisional Controller of the Mysore Government Road Transport Depart ment in December, 1960.
The orders of their dismissal from service were affirmed by the General Manager of the Mysore Government Road Transport Department.
Thereupon they filed separate suits for declaration that the aforesaid orders of their dismissal from service passed by the Divisional Con troller were illegal, void and inoperative and they contin ued to be in service and were entitled to full pay.
The challenge by the said respondents against their orders of dismissal from service was based on the ground that their appointments having been made by the Superintendent, Road Transport Department of the erstwhile State of Hyderabad, who was the head of that Department, their dismissal from service could only be by the head of the Mysore Government Road Transport Department i.e. by the General Manager of that Department and consequently their dismissal by the Divisional Controller who was not the head of that Depart ment but a subordinate of his was in violation of the right guaranteed to them under Article 311 (1) of the Constitu tion.
The contentions of the first respondents regarding the invalidity of their dismissal due to the contravention of Article 311 (1 ) of the Constitution having ultimately prevailed and all the suits filed by them having been de creed in their favour, the State of Mysore and the Mysore Government Road Transport Corporation (hereinafter referred to as 'the Corporation) have come up in appeal to this Court.
Appearing in support of the appeals, Mrs. Shayamla Pappu, counsel for the appellants, has raised the following contentions: 1.
That as the post of the Superintend ent of the Traffic ' Department did not exist in the new State of Mysore and the Divisional Controller of the Mysore Government Road Transport Department was competent to appoint and dismiss servants of the category to which the first respondents (plaintiffs) belonged, the orders of their dismissal from service could not be held to have been passed in violation of Article 311 ( 1 ) of the Consti tution in view of section 116(2) of the . 2.
That in any event, as the General Manager of the Mysore Government Road Trans port Department confirmed on appeal the order of dismissal from service of the first re spondents, there was substantial compliance with the provisions of Article 311 of the Constitution.
286 3.
That the posts held by the first respondents not being civil posts under the State, there could be no question of violation of Article 311(1) of the Constitution.
That the discretionary relief of declaration of continuance in service could not and should not have been granted on the facts of the present suits.
That in view of the fact that the first respondents were dismissed from service before the establishment of the Corporation and they did not choose to become its employ ees by exercising the option given to them to serve under it, no decree could be passed against the Corporation.
The principal and pivotal question that arises for our consideration in those appeals is whether the impugned orders of dismissal from service were passed by the compe tent authority ? The answer to this question depends on the answer to the questions as to who could be considered to be the appointing authority in case of the first respondents and whether they were dismissed from service by that author ity or by an authority subordinate to it.
For a proper decision of this question, it is necessary to advert to sections 115(7) and 116 of the States Reorganisa tion Act, 1956, Article 311 (1 ) of the Constitution as also to contention No. 4 raised by the CorpOration in the State ment of Case filed by it before this Court and the admission made by the appellants in answer to the interrogatories served on them by the first respondent under Order 11 Rule 2 of the Code of Civil Procedure which are in these terms : "Section 115(7). "Nothing in this section shall be deemed to affect after the appoint ed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the condi tions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section ( 1 ) or sub sec tion ( 2 ) shall not be varied to his disad vantage except with the previous approval of the Central Government.
Section 116.
Provision as to continu ance of officers in the same posts.
(i) Every person who immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the Union or of an exist ing state in any area which on that day falls within another existing State or a new State or a Union territory shall, except where by virtue or a consequence of the provisions of this Act such post or office ceases to exist on that day continue to hold the Same post or office in the other existing State or new State or 287 Union territory in which such area is included on that day; and shall be deemed as from that day to have been duly appointed to such post or office by the Government of,or other appro priate authority in such State, or by the Central Government or other appropriate au thority in such Union territory as the case may be.
(2) Nothing in this section shall be deemed to prevent a competent authority after the appointed day, from passing in relation to any such person any order affecting his con tinuance in such post or office.
" Article 311, "(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed." Contention No. 4. "The High Court failed to see that the post of Superintendent was abolished and was not in existence and that, therefore, an authority of equal rank would be an authority competent to appoint and dismiss the employees.
" Admission. "On 1 11 1956, the General Manager of the Mysore Government Road Trans port Department was the head of the Mysore Government Road Transport Department and he was subordinate to none except the Government of Mysore.
The post of Divisional Controller is subordinate in rank to that of the General Manager.
" A bare perusal of sub section (7) of section 115 of the , reproduced above, makes it clear that nothing contained in that section could, after the appointed day, i.e., November 1, 1956, affect the operation of the provisions of Chapter 1 of of the Constitution which includes Article 311 thereof in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State and the conditions of service applicable immediately before the appointed day to any person who is allotted to another State could not be varied to his prejudice except with the previous approval of the Central Government.
Reference in this connection may be made to two decisions of this Court in M.B. Shukla & Ors.
vs State of Gujarat & Ors.(1) and N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore.(2) In the latter case, it was held by this Court that the effect of sub section (7) of section 115 of the is to preserve the power of the State to make rules under Article 309 of the Constitution but the proviso (1) ; (2) ; 288 imposes a limitation on the exercise of that power, the limitation being that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub sections (1) and (2) of section 115 of the Act.
In the view of the Court, the broad purpose underlying the proviso to section 115(7) of the Act was to ensure that the conditions of service of the aforesaid persons shall not be changed except with the prior approval of the Central Government i.e. before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government.
Now as pointed out by the Judicial Committee of the Privy Council in North West Frontier Prov ince vs Suraj Narain Anand(1) and by this Court in Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court(2) and State of Madhya Pradesh & Ors.
vs Shardul Singh(3), the expression 'conditions of service ' is an expression of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants.
It is also well settled that it is not possible by means of any legislative provision or rule to take away the guarantee provided by Article 311 (1) of the Constitution which lays down that no public servant shall be dismissed by an authority subordinate to that by which he was appointed and if any such legislative provision or rule lays down otherwise, it will clearly be ultra vires.
(See Rangachari vs Secretary of State(4)], North West Frontier Province vs Suraj Narain Anand (supra) and The State of Uttar Pradesh & Ors.
vs Babu Ram Upadhya(5).
It follows, therefore, that the protections including the constitutional protection enshrined in Article 311 (1)of the Constitution enjoyed by persons holding civil posts under the State like the first respondents prior to the coming into force of the could not, after the appointed day i.e. November 1, 1956, be taken away, whittled down or impaired by any legislative enactment or rule.
Sub section (2) of section 116 of the States Reorganisa tion Act, 1956 which is the sheet anchor of the first con tention raised on behalf of the appellants but on which no reliance was rightly placed on their behalf either in the court of the first instance or in the trial court is of no assistance to the appellants.
As observed by the learned Chief Justice while speaking for the Constitution Bench of this Court in M/s. Gammon India Ltd. & Ors.
vs Union of India & Ors.
(6), every clause of a statute is to be con strued with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject matter.
The interpretation of the words has to be by looking at the context, the collo cation of the words and the object Of, the words relating to the matters.
The words are not to be viewed (1)75 I.A. 343= A.I.R. 1949 P.C./12.
(2) [1955] 2 S.C.R. 1331, (3)[1970] 3 S.C.R. 302.
(4) 64 I.A. 40=A.I.R. , (5) ; (6) [1974] 1 S.C.C. 596. 289 detached from the context of the statute.
The words are to be viewed in relation to the whole context.
The expression 'competent authority ' occurring in sub section (2) of sec tion 116 of the Act cannot, therefore, be considered in isolation apart from the rest of the provisions of the Act.
It has to be read in conjunction with, construed and under stood as having the same meaning as the expression 'appro priate authority ' contemplated by sub section (1) of that secnon which in turn according to Article 311 (1) of the Constitution means the appointing authority or an authority equivalent to or coordinate in rank with the appointing authority.
The Constitution being the transcendental law, the legislature by enacting section 115(7) of the took care to see that the constitutional guarantee enshrined in Article 311 (1) of the Constitution which was available to the civil servants before the was not de stroyed or wiped away on their allotment to a new State.
That the construction placed by us on the expression 'compe tent authority ' is in consonance with the meaning and import of the word 'subordinate ' occurring in Article 311 (1) of the Constitution is apparent from a catena of decisions.
In N. Somasundaram vs State of Madras(1) where the petitioner was appointed as Deputy Jailor by the Inspector General of Prisons but the order of his dismissal from service was made by the Superintendent of the Jail, it was observed: "The competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Article 311 (1 ) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was ap pointed.
The principle would appear to be that it is the factum of the appointment of the civil servant who claims the guarantee, that determines the scope of the guarantee con ferred by Article 311 ( 1 ) .
" In Sobhagmal vs State(2) where the applicant was in formed in March, 1948 by the Revenue Secretary of the former State of Jaipur that he had been appointed as Inspector in the Customs and Excise Department and he was removed from service after departmental enquiry by the Commissioner, Customs and Excise, of the State of Rajasthan in July, 1952 and the order of his removal was confirmed on appeal by the Government of Rajasthan, Wanchoo, C.J. whilo holding that the order of removal could not be sustained said : "What Article 311 ( 1 ) provides is that the authority dismissing should not be subor dinate in rank to that by (1) A.I.R. 1956 Mad. 419.
(2) A.I.R. 1954 Raj.
207. 20 1458SCI/76 290 which the appointment was made.
The intention seems to be that the authority dismissing should be co ordinate in rank to the authority appointing, and not that.
in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank.
The dismissing authority should be at least coor dinate in rank with the appointing authority and should not be subordinate in rank.
Thus if a person is appointed by a Head of one department, and he is transferred to another department, he can only be dismissed or re moved by the Head of the other department.
" In Gurmukh Singh vs Union of India(1) where the peti tioner was appointed as an Assistant Sub Inspector of Police in the Delhi State Police Force by the Deputy Inspector General of Police who was at the relevant time, the head of the Delhi Police and the post of Deputy inspector Gener al afterwards ceased to exist and the two senior most officers in the Police Force at the relevant period were the Inspector General and the Senior Superin tendent of Police and the petitioner was dismissed by the order of the Senior Superintendent of Police who had been invested with the powers of Deputy Inspector General, Fal shaw, C.J. accepting.
the contention of the petitioner that his dismissal contravened Article 311 since the Superintend ent of Police even where he is designated as Senior Superin tendent is subordinate to the inspector General of Police observed: "The word 'subordinate ' in article 311 (1) of the Constitution means subordinate in rank and not with reference to the functions exer cised.
Consequently, when no officer of equal rank to the appointing officer is available then the order of dismissal or removal will have to be passed by an officer of superior rank.
In no circumstances can such an order be passed by an officer of lesser rank.
Any rule of statute which permits such an action, must be held to be ultra vires as infringing the provisions of Article 311 (1) of the Constitution." In Mahadev Prasad Roy vs
S.N. Chatterjee & Ors.(2) where the petitioner was appointed in 1928 as lino operator in the Government Press by the Superintendent of the Press and the Government order was passed on June 20, 1952 delegating the power of appointment and dismissal to the Deputy Superin tendent who initiated proceedings against the petitioner on a charge of theft and passed an order dismissing the peti tioner from service on September 16, 1953, Ramaswami, J. (as he then was) accepting the contention of the petitioner.
that he could be dismissed only by the Superintendent of the Government Press or by any higher authority and the order passed by the Deputy Superintendent was invalid and inopera tive observed: (1) Aau.
I.R. 1963 Punjab 370.
(2) A.I.R. 1954 Patna 285, 291 "The word 'subordinate ' in article 311 ( 1 ) must be properly construed to mean subordi nation in rank and not subordination of func tion; otherwise, the protection referred to in article 311 would be illusory." Similar view was expressed by a Full Bench of the High Court of Jammu & Kashmir in State of J & K and Anr.
vs Ray Mohammad & Ors.
In The State of U.P. & Ors.
vs Ram Naresh Lal(2), this Court held that the power can be conferred on an officer other than the appointing authority to dismiss a Government servant provided he is not subordi nate in rank to the appointing officer or authority.
In the instant cases, the first respondents were undeni ably appointed by the Superintendent of the Traffic Depart ment of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State.
On the coming into force of the on November 1, 1956, they were to be deemed by virtue of sub section (1) of section 116 of the to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coor dinate in rank with the aforesaid authority in the erstwhile State of Hyderabad.
The authority equivalent to or coordi nate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellant 's own admis sion as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'competent authority ' in terms of sub section (2) of section 116 of the .
The fact that there was no post of Superintend ent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of no consequence.
Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 115(7) of the .
The first contention urged on behalf of the appellants which runs counter not only to contention No. 4 raised by the Corporation in its Statement of Case before this Court and the admission made by it in answer to the aforesaid inter rogatories but also to section 115(7) and section 116 of the is, therefore, rejected.
The second contention urged on behalf of the appellants that as the General Manager of the Mysore Government Road Transport Department confirmed on appeal the orders of dismissal of the first respondents that should be considered as substantial compliance with the provisions of Article 311(1) of the Constitution is, in our judg (1) (2) 292 ment, devoid of substance.
The original order of dismissal of the first respondents being without jurisdiction and as such void and inoperative having been passed in contraven tion of the provisions of Article 311 ( 1 ) of the Consti tution, the order passed on appeal by the General Manager could not cure the initial defect.
In similar circum stances, the appellate order passed by the Director General of Prisons was not considered by the Madras High Court in N. Somasundaram 's case (supra) to remedy the invalidity of the original order passed by the Superintendent of Jails.
To the same effect is the decision of the Nagpur High Court in Provincial Government, Centrat Provinces and Berar vs Sham shut Hussain Siraj Hussain.(1) Again in Suraj Narain Anand vs The North West Frontier Province(2), it was held by the Federal Court that the rejection of appeal by a higher authority against dismissal is not equivalent to a dismissal by that authority itself, so as to satisfy the provisions of subsection (2) of section 240 of the Government India Act, 1935.
There is also no force in the third contention of coun sel for the appellants that the posts held by the first respondents not being civil posts under the State, there could be no question of violation of Article 311 (1) of the Constitution.
The argument seems to overlook that both at the time of coming into force of the and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State.
The fourth contention raised by counsel for the appel lant that the discretionary relief of declaration could not and should not have been granted by the lower courts on the facts of the present suits is also devoid of merit.
In Executive Committee of U.P. State Warehousing Corporation Limited vs Chandra Kiran Tyagi(3) and Executive Com mittee of Vaish Degree College, Shamli & Ors.
vs Lakshmi Narain & Ors.
(4) it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases : (i) appropriate cases of public servants who have been dismissed from service in con travention of article 311; (ii) dismissed workers under industrial and labour law; and (iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute This takes us to second limb of the fourth contention raised on behalf of the appellants.
While it is true that the relief of declaration is discretionary, it is well settled that it is only if the dis (1) A.I.R. 1949 Nagpur 118.
(2) (3) ; (4) ; 293 cretion is not exercised by the lower court; in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, that the order passed by the lower court can be reversed by the superior court.
Refer ence in this connection may usefully be made to a decision of the Privy Council in Charles Osenton & Company vs John ston(1) where the legal position was succinctly stated as follows : "There remains the question whether, assuming that in the circumstance of this case Tucker J. had jurisdiction to make the order of reference his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal.
So the respondent contends, while the appellants urge that, even if the discre tion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibili ty of appeal from an official referee 's finding of fact, and in view of the practica bility of the case being tried before a Judge without a jury.
The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of this discretion is well established and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge.
In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way.
But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to rele vant considerations such as those urged before us by the appellant.
then the reversal of the order on appeal may be justified.
This matter was elaborately discussed in the decision of this House in Evans vs Bartlam (1937) A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows: "It is clear that the Court of Appeal should not interfere with the discre tion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong.
But the court is not entitled simply to say that if the judge had jurisdic tion and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle.
The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.
Otherwise in interlocutory matters, the judge might be regarded as independent of supervision.
Yet an interlocutory order of the judge may (1) 294 often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court of Appeal.
Thus in Gardner vs Jay , Bowen L.J. in discussing the discretion of the judge as regards mode of trial says: "That discretion, like other judicial discretions must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed.
" Bearing in mind the well settled principles regarding inter ference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents.
The fourth contention urged on behalf of the appellants is, therefore, overruled.
We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation, no decree could be passed against it.
The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Trans port Corporation and had transferred its rights and liabili ties to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.
All the contentions raised on behalf of the appel lants having failed, the appeals cannot succeed.
They are accordingly dismissed but in the circumstances of the case without any order as to costs.
P.B.R. Appeal dis missed.

summary:
Under section 115(7) of the , nothing contained in that section could, after the appointed day, i.e. November 1, 1956, affect the operation of the provisions of Chapter I of of the Constitution in relation to the determination of conditions of service of persons serving in connection with the affairs of the Union or any State.
The proviso provides that the condition of service applicable immediately before the appointed day to any person who is allotted to another State could not be varied to his disadvantage except with the previous approval of the Central Government.
The respondents, who were bus conductors in the State Road Transport Department of the former State of Hyderabad, were allotted to the State of Mysore consequent upon the reorganisation of the States in 1956 and they continued to hold the same posts under the Mysore Government Road Trans port Department.
They were dismissed from service by the Divisional Controller of Mysore Government Road Transport Department and the order of dismissal was affirmed by the General Manager of the Department.
The orders of dismiss al were challenged on the ground that since they were ap pointed by the Superintendent of the Traffic Department of the former State of Hyderabad, who was the Head of that Department they could be dismissed only by the General Manager of the Mysore State Road Transport Department and that their dismissal by the Divisional Controller, who was not the.
Head of the Department, was in violation of the right guaranteed under article 311 of the Constitution.
The High Court struck down the order of dismissal.
On appeal by the State it was contended that (1 ) since the post of Superintendent of Traffic Department did not exist in the State of Mysore and the Divisional Controller was the competent authority to appoint ' and dismiss servants of the category to which the respondents belonged, their dismissal was not incompetent in view of section 116(2) of the ; (2) There was substantial compliance with article 311 because the order of dismissal was confirmed by the General Manager; (3) Since the posts were not civil posts under the State, there was no violation of article 311; (4) The discretionary relief of declaration of continuance in service could not have been granted in this case; and (5) the respondents were dismissed before.
the establishment of the Corporation and since they did not exercise their option to join the Corporation, no decree could be passed against the Corporation.
Dismissing the appeals, HELD: The respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee in,Art.
311 of the Constitution read with s 115(7) of the State Reorgani sation Act.
That there was no post of Superintendent of Traffic under the Mysore.
Government Road Transport Depart ment is of no consequence.
1 (a) The protection enjoyed by persons holding civil posts under the State like the respondents prior to the coming into force of the Act could not after the appointed day, be taken away, whittled down or impaired by any legislative enactment or rule.
The broad purpose underlying the section was to ensure that the conditions of service of persons mentioned therein shall not be changed except with the prior approval of the Central Govt.
[288 E;B] (b) The expression 'condition of service ' is an expres sion of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants.
It is not possible by means of any legis lative provision.
or rule to take away the guarantee provid ed by article 311(1) and if any legislative provision or rule lays down otherwise, it will be ultra vires.
[288 D] M.D. Shukla & Ors.
vs State of Gujarat & Ors.
; ; N. Raghavendra Rao vs Deputy Commissioner, South Kanara, Mangalore ; ; North West Frontier Province vs Suraj Narain Anand 75 I.A. 343; AIR 1949 P.C. 112; Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; ; State of Madhya Pradesh & Ors.
v Shardul Singh ; and Ranga chari vs Secretary of State 64 I.A. 40: AIR 1937 P.C. 27, followed.
(c) The expression 'competent authority ' in section 116(2) of the Act must be read in conjunction with, construed and understood as having the same meaning as the expression 'appropriate authority ' contemplated by section 116(1) and article 311(1) which means the appointing authority or an authority equivalent to or co ordinate in rank with the appointing authority, [289B] (d) The power to dismiss a Government servant from service can be conferred on an officer other than the 'a ppointing authority provided he is not subordinate in rank to the appointing officer or authority.
[291 B] The State of U.P. & Ors.
vs Ram Naresh Lal [1970] 3 S.C.R. 173, applied.
N. Somasundaram vs State of Madras A.I.R. 1956 Mad. 419; Sobhagmal vs State A.I.R , Gurmukh Singh vs Union of India A.I.R. 1963 Punjab 370; Mahadeo Prasad Rao vs
S.N. Chatterjee & Ors.
A.I.R. 1954 Patna 285 and State of Jammu & Kashmir and Anr.
vs Raj Mohammad & Ors.
approved.
In the instant case by virtue of section 116(1) the respondents were deemed to have been appointed from November 1, 1956 in the State of Mysore by the appropriate authori ty which could not be the authority other than the one equivalent to or coordinate in rank with the authority which appointed them in the erstwhile State of Hyderabad.
The General Manager of the Mysore Department could alone be considered to be the competent authority in terms of section 116(2).
[291 D] (2) The original order of dismissal being without jurisdic tion and as such void and inoperative, the order passed on appeal by the General Manager could not cure the initial defect.
[292 A] (3) Both at the time of coming into force of the and at the time of the passing of the impugned orders, the respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil, posts under the State.
[292 D] 4 (a) The declaration to enforce a contract of personal service 'can be granted (i) where a government servant is dismissed from service in contravention of the article 311; (ii) to dismissed workers under the industrial and labour law, and (iii) where a statutory body has acted in breach of a mandatory obligation imposed by a statute.
[292 G] Executive Committee of U.P. State Warehousing Corporation Limited vs Chandra Kiran Tyagi ; and Executive Committee of Vaish Degree College, ShamIi & Ors.
vs Lakshmi Narain & Ors. ; followed.
284 (b) It is only where the discretion is not exercised by the lower court in the spirit of the statute or fairly or hon estly or according to the rules of reason and justice that the order passed by the lower court can be reversed by the superior court.
[293 A] Charles Osenton & Company vs Johnston , referred to.
In the instant case, it cannot be said that the discre tion has been wrongly exercised in favour of the respond ents.
[294 C] (5) In view of the appellants ' application before the High Court, which was duly endorsed by the Government, that since the State had constituted the Road Transport Corpo ration and transferred the rights and liabilities to it, the decree, if any, could be passed exclusively against it, the Corporation cannot contend that no decree should have been passed against it.
[294 D]


judgement:
Appeals Nos. 1682 1683/ 71.
(From the Judgment and Order dated the 14th May 1969 of the Calcutta High Court in I.T. Ref.
No. 60 of 1968) G.C. Sharma and R.N. Sachthey, for the appellant B. Sen, S.K. Banerice and P.K. Mukherjee, for respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The fiscal not the philosophical implications of Jesus ' pragmatic injunction 'Render to Ceasar the things that are Caesar 's, and to God the things that are God 's fall for jural exploration in these appeals by special leave, the appellant being the Union of India represented by the Commissioner of Income tax, West Bengal, and the Respondent, Sree Jagannathji and the subject matter the taxability of the deity Jagannathji by the State under the Income tax Act, 1922, beyond the admitted point.
To appreciate the exigibility issue, we have to flash back to 19th Century Bengal and the then prevailing societal ethos of affluent Hindu Piety, and we find ourselves in the spir itual legal company of Raja Rajendra Mullick, at once holy and wealthy, who, in advancing years, executed a comprehen sive will to promote his cherished godly wishes and to provide for his secularly dear cause and near relatives.
The construction of this testamentary complex of disposi tions and the location of its destination are the principal exercises in these appeals.
485 Raja Rajendra Mullick Bahadur of Calcutta executed his last will and testament on 21 February 1887.
While the author of the will was a Bengali brahmin of the last cen tury, the draftsman of the document was John Hart, an Eng lish solicitor.
While the author 's wishes are usually transmitted into the deed by the draftsman, the diction and accent are flavoured by the draftsman 's ink.
So it happens that this will represents pious Bengali wishes and disposi tions but draped in an English Solicitor 's legalese.
The Court 's function in such an ambiguous situation is to steer clear of the confusion imparted by the diction and to reach the real intendment (of the testator).
Such an essay in ascertaining the true intent of Raja Rajendra Mullick if fraught with difficulties and our guideline has to be to pick it up from the conspectus of clauses rather than from particular expressions or isolated features.
Only the totality tells the story of the author 's mind as he unbur dened himself of his properties for causes and purposes dear to his heart.
The Court 's discerning loyalty is not to the formalistic language used in drawing up the deed but to the intentions which the disponer desired should take effect in the manner he designed.
This hack drop of observations made, we proceed to a broad delineation of the actual provi sions.
The munificent testator had enormous estates, lavish charity, piety aplenty and a large family.
So he trifurcat ed his assets as it were, provided for religious objects, eleemosynary purposes and members of his family.
The last was distinctly and separately dealt with and we are not concerned with the bequests so made.
But the first two were more or less lugged together and ample properties earmarked therefore.
How did he engineer into legal effect these twin purposes ? Did he create an absolute debutter of these properties, totally dedicating them to the deity whose devotees he and his father were, coupled with several direc tions, addressed to the shebaits, for application of the income for performance of stated pujas, execution of public charitable projects and payment of remuneration for sheba plus liberal grants and facilities to the sons and widows of sons who were objects of his bounty? Or did he really create a trust in the sense of the English law vesting the whole estate in trustees saddled with obligations to expend the income for enumerated items, godly and philantrophic, creating but a partial debutter? This is the key question calling for adjudication but an alternative but interlaced issue also arises.
Assuming that a total debutter had been created, did the will contain directions for expenditure which siphoned off the income, as it accrued, for specified objects and entities in such manner that by such over riding diversion at the source, such income did not get into the hands of Lord Jagannath qua His income but reached Him merely as collector of.
those receipts to be disbursed for meeting those paramount claims and charged for those des tined uses ? Or could it be the true meaning of the clauses that the whole income was to be derived by the deity but later to be applied by the human agencies representing Him for fulfiling objects, secular and sacred? A skeletal picture of the complex of provisions of the will has to be projected now for a better understanding of the pros and cons of 486 the controversy.
The will opens with the words: 'I hereby dedicate and make debutter my Thakoorbaree ' and mentions a mansion which is to be the abode of his God. 'I hereby give, dedicate and make dabuttar all the jewels. hereto fore used, for the worship of the Thakoors. is another racital whereby valuables are dedicated.
These are for direct use and both the Lord 's mansion and the Lord 's adorn ments yield great spiritual bliss but no secular income.
Prima facie, the language is unmistakable and a full dedica tion and, argues Shri Sharma for the Revenue, the creation of absolute debutter is an unchallengeable inference.
Equally indisputable is the character of the last of be quests to his sons (save one who has been disinherited) and widows of deceased sons and these are admittedly out of the area of dispute before us.
But in between lies the estate (including securities) which yields high income and is disposed of in terms which lend themselves to contrary constructions, marginal obscurity and conceptual mix up of ideas borrowed from English and Hindu law.
'I do hereby give, dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties ' so run the.
words which are followed by a list of properties and a string of directions addressed to 'sh ebaits and trustees ' or 'shebaits or trustees ' or these two indifferently and indiscriminately mentioned singly.
He even directed a board of trustees to be constituted in the event of male heirs failing, to take over shebaitship and execution of the trusts and here and there referred to trusts under the deed.
Nor were all the incomes to be devot ed to pooja.
His cultivated and compassionate mind had many kindly concerns and finer pursuits.
The enlightened donor appears to have had an aristocrat ic and aesthetic flair for promoting the joy of life and a philanthropic passion to share it, even posthumously, with the public at large.
His charitable disposition seems to have overpowered his love of castemen and his kindness for living creatures claimed a share of his generosi ty.
These noble and multiple instincts persuaded him to make an art collection which could be reckoned as among the best an individual could be proud of anywhere in the world and these paintings and sculptures, he directed, shall be kept open for public delight, free of charge.
He main tained a glorious garden which he wished should be kept in fine trim and be hospitable for any member of the public who liked to relax in beautiful surrounds.
His compassionate soul had, in lofty sentiment of fellow feeling, collected birds and non carnivorous animals.
But, after him, the aviary and meanagerisa were to be taken care of and lovers of birds and animals were, according to his testamentary direction, permitted to seek retreat and pleasure among there natural environs.
Of course, he rewarded his sons and widows sumptuously, the lay out on the rituals of wor ship consuming but a portion of the total income.
At this stage, the litigative journey may be sketched to indicate how the dispute originated, developed and gained access to this Court, The story of this tax entanglement began nearly two decades ago with the I.T.O. issuing notices and the assessee deity responding with 'nil ' returns under section 22(2) of the Indian Income tax Act, 1922 for the 487 assessment years 1956 57 and 1957 58.
A portion however was, by legitimate concession of the Income Tax Department, carved out of the total income as non taxable.
According to the High Court.
"When the proceedings for the assessment year 1955 56 were pending before the Income Tax Officer, the assessee had flied an applica tion under article 226 of the Constitution of India and had obtained an interim stay against the said proceedings.
It appears that on the 9th October 1961 in terms of the settlement arrived at between the Income Tax Department and the assessee the interim stay of proceed ings was vacated.
It was recorded in the said order that part of the income of the assessee which would be proved before the Income Tax Authorities to have been applied in connection with (a) feeding of the poor, (b) subscription to other charities enuring for the benefit of the public would be exempt ed under section 4(3)(i) of Indian Income tax Act, 1922.
" We regard this stand of the Revenue as correct in the light of the provisions of s.4(3) (i) and hold, in limine, that whatever the outcome of the contest, the amounts spent on poor feeding and other public charitable purposes are out side the reach of the tax net and are totally exempt.
We may, in fairness, state here that counsel for the Revenue, Shri Sharma, rightly agreed that the correct legal position, on a sound understanding of s.4(3) (i) of the Act, was that these charitable expenditures were totally deductible from the computation for fixing the tax.
Let us continue the later developments.
For assessment for the year 1956 57 the Income tax Officer was of the opinion, on the construction of the said will, that besides directions for spending amounts on charitable objects, the will had also provided for payment of certain fixed allow ances to the acting shebaits as well as the widows of the deceased shebaits, maintenance of horse drawn carriages and motor cars for the use of the shebaits, medical aids to the shebaits, and the members of their families, expenses on account of Srardh caremony of the ancestors of the shebaits and other private charities.
On behalf of the assessee it was claimed before the ITO that the remuneration the trustees and the allowances to the widows of the deceased trustees as provided in the will created a charge on the income of the Trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hands of the trustees.
The ITO rejected that contention.
lie held that reading the will as a whole it was clear that the remuneration to the shebaits and the allowances to the widows were merely applications of the trust income and as such not deductible.
According to the ITO, under the will, the shebaits and trustees were to, collect the income of the whole debutter property in the first instance and after paying the government revenues and taxes and rates and other outgoings, perform the puja and the other ceremonies for the worship of the family deity and therefore spend amounts on charitable and public purposes and lastly to pay the remuneration, allowances and 1546SCI/76 488 private donations.
The ITO therefore determined the income of the trust estate under sections 9 and 12 of the Indian In come.
Tax Act, 1922 and computed income from property at Rs. 1,94,377/ and income from other sources at Rs. 97,248 making a total of Rs. 2,91,625/ .
From the above he deducted the amounts spent on charitable objects such as feeding of the poor, maintenance of art gallery and manager ie for birds and non carnivorous animals.
A sum of Rs. 1,32,023/ was subjected to tax for the assessment year 1956 57.
The ITO followed the same principle for the assessment year 1957 58 and determined the assessable income at Rs. 1,06,067/ .
The assessee preferred appeals before the Appellate Assistant Commissioner, who passed a consolidated order on November 25, 1963 dismissing the assessee 's appeals on all the grounds.
On appeal to the Tribunal, a full legal debate followed and, while the Revenue won substantially, some items more were held exempt on the holding that the direction contained in the will for the expenditure on the performance of Sradh and other ceremonies for the spiritual benefit of the testa tor and his ancestors must also be held to be obligations created by the testator which the trustees or the shebaits were obliged to discharge before applying the income for the benefit of the deity.
Both parties moved the Tribunal for referring certain questions of law under section 66( 1 ) and the sequel was a reference of two questions at the instance of each.
The four questions may be set out as the starting point of the discussion: "( 1 ) Whether on a proper construction of the will of the late Raja Rajendra Mullick dated 21St February 1887, the Tribunal was fight in rejecting the assessee 's claim that the only incomes which could be subjected to income tax in the hands of the deity Sri Sri Jagannath Jee are the beneficial interests of the said deity under the terms of the will as represented by the expenses incurred by the shebaits for the daily Seva Puja of the deity and the performance of the various religious ceremonies connected with the said deity as mentioned in the will ? (2) If the answer to the above question be in the positive, whether on the facts and in the circumstances of the ease and on a proper interpretation of the terms of the will of the late Raja Rajendra Mullick Bahadur, the Tribu nal was right in holding that the expenses incurred for payment of remuneration to the shebaits, and the monthly allowances paid to the widows of the deceased shebaits, as also the expenditure incurred for maintaining horses, carriages or motor cars for the use of shebaits concerned and the annual value of such part of the debutter property as is being used by the shebaits and their families for the purpose of their residence, all in terms of the aforsaid will, could be included in the total income of the assessee in this case ? (Questions referred by assessee) 489 (3) Whether, on the facts and in the circum stances of the case and on a proper construc tion of the will of Raja Rajendra Mullick executed on the 21st February 1887 the Tribu nal was right in holding that the surplus of the income of the estate after defraying the expenses mentioned in the said will was held in trust for charitable purposes and was thus exempt from taxation under s.4(3) (i) of the Indian Income tax, Act 1922 ? (4) Whether, on the facts and in the circum stances of the case and on a proper construction of the aforesaid will the tribunal was right in holding that the amounts spent for performing Sradh and other ceremonies for the Spiritual benefit of the testator as well as subscriptions and dona tions to charitable societies and for charitable purposes were diverted by an over riding title and was accordingly to be exclud ed from the total income of the Deity ?" Questions referred by the CIT) The High Court, on a meticulous considera tion of the entire will, decided against the Revenue on the spinal issue and took the view that "reading the will as a whole we are of the opinion that the entire beneficial interest in the properties did not vest in the assessee deity.
The assessee deity was not the owner of the properties.
Therefore the only income which could be subjected to income tax in the hands of assessee would be the beneficial interest of the said deity under the will, which would be expenses incurred for the seva puja of the deity and for the various reli gious ceremonies connected with the said deity and the value of the residence of the deity in the Temple.
" The back of the State 's contention was thus broken but, even though vanquished, by special leave it.sought to agitate in appeal the case that the testator had created an absolute debutter of the whole estate, and not a trust with estate vested in the trustees, that the directions given to the 'shebaits and trustees ' were mere mandates for application of the income in the hands of the deity and not over tiding diversion at the source and so all the receipts, save what had been excluded by the. officer, were exigible to tax.
Although it may not be strictly pertinent as a circum stance to spell out the intention of the testator, it may be of value as background material to have a sample break up of the figures of expenditure laid 490 out in fact in one of the assessment years.
We give the actuals for 1956 57: Rs. (1)Expenses incurred for the poojas specified for the will 4,637/ (2)The money laid out on feeding the poor 78,295/ (3)The cost of maintaining the art gallery 36,963/ (4) Upkeep of the aviary and menagerie 13,263/ (5) Cost of keeping the garden trim 2,979/ (6) Other miscellaneous charges 4,014/ (7) Expenses laid out on the shebaits and trustees, their residence and main tenance of the horse drawn carriages etc 66,254/ It is fair to comment that, even making allowance for annual variations, price fluctuations and change in circum stances, the pujas consume but a small fraction, that public charitable purposes bulk prominently in the budgeted ex penditure and that the sums spent on the 'shebaits and trustees ' are liberal enough to exceed prudent reward for services.
To set the record straight, it must be stated that a preponderant part of the income was spent on general public charitable causes like poor feeding, art gallery, aviary, menagerie and keeping a garden.
Together with the cost of the rituals the budget was dominently religion charitable.
These facts have no bearing on the construc tion of the will but invests the perspective with a touch of realism.
We may now tackle the crucial problem in the case the decoding of the will to discover the repository of the gift.
Did the testator create an absolute or partial debutter? Or was there no dedication to the idol but a vesting of the legal estate in the trustees (in the sense of the English law) with figuciary obligations to expend for specific purposes.
Shree Jagannathjee ranking as one among the recipients of his benefactions ? The use of words like 'trusts ', 'shebaits and trustees ' has lent muscle to this logomachic exercise but we have to push aside the English hand to reach at the Indian heart.
The principles governing the situation are those which rulings of courts, imbibing the Indian ethos, appreciating the Hindu sacred sentiments and applying the law of reli gious and charitable trusts gathered from ancient texts, have crystallised into an informal code.
The passage of decades after the enactment of the Constitution has not succeeded in persuading Parliament into legislative action for making a secular code except of some limited extent governing the subject of Indian charitable trusts.
And this unnoticed parliamentary procrastination has com pelled the courts to dive into hoary books and ' vintage case law to ascertain the current law.
We will therefore navigate, with this ancient mariner 's compass, although we have the advantage of an authoritative work in B.K. Mukher jea on Hindu Law Religious and Charitable Trusts, relied on by counsel on both sides.
491 Two paramount background considerations of assistance to decipher the intention of the testator, which have appealed to us, may be mentioned first.
We are construing the will of a pious Hindus aristocrat whose faith in ritual perform ances was more than matched by his ecumenical perspective, whose anxiety for spiritual merit for himself and his manes was balanced by a universal love and compassion.
Secondly, the sacred sentiment writ large in the will is his total devotion and surrender to the family deity Sree Jagannath Jee.
It is easy to see that, in formal terms, the author makes a dedication to Sree Jagsmath Jee and calls the properties debutter.
But Shri B. Sen, for the respondents,.contests the finality of such a verbal test and counters it by reliance on expressions like 'shebaits and trustees ' and 'trusts ' and urges that there are no clear words of vesting so far as the second category of properties is concerned.
It is trite but true that while the label 'debutter ' may not clinch the legal character, there is much in a name, fragrant with profound sentiment and expressive of inner dedication.
It looks like doing violence to the heart of the will if we side step Sree Jagannath Jee as the divine dedicatee, down grade him to the status of but one of the beneficiaries and; by judicial construction, transmit the sanctified estate into human hands as the legal owners to distribute the income, one of the several objects being doing pujas prescribed.
The will, right in the forefront, declares: 'I hereby dedicate make debutter ', 'I do hereby dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties. ' 'I hereby give, dedicate and make debutter all the jewels . to the said Thakoor Sree Sree Jagannathjee '.
These solemn and emphatic dedicative expressions cannot be wasted words used by an English Solicitor but implementatory of the intention of the donor whose inmost spiritual commitment, gathered from the many clauses, appears to be towards his family Thakoor.
Of course, if there are the clearest clauses striking a contrary note and creating but a partial debut ter, this dedicative diction must bow down.
The law is set down thus by B.K. Mukerjea: "The fact that property is ordinarily de scribed as Debutter is certainly a piece of evidence in favour of dedication, but not conclusive.
In Binod Behari vs Manmatha (21 C.L.J. 42) Cox J. observed as follows : "The fact that the property is called Debutter is a doubtless evidence in the plain tiff 's favour but it does not relieve them of the whole burden of proving that the land was dedicated and is inalienable." (p. 131) Though inconclusive it carries weight in the light of what we may call the mission of the disposition which is inspired by devotion to 'my Thakoor ' and animated by a general reli gious fulfilment.
It must be 492 remembered that the donor was not tied down by bigotry to performance of pujas, important though they were.
A more cosmic and liberal view of Hinduism informed his soul and so in his declaration of dedication to Sree Jagannathjee he addressed to the managers many directions of a broadly religious and charitable character.
His injunction to feed the poor was Narayana Seva, for worship of God through service of man in a land where the divinity in daridra narayana is conceptually commonplace and, while it is overt ly secular, its motive springs from spiritual source& It is religion to love the poor.
Likewise, his insistence on the aviary and the menageries and throwing open both to the people to see and delight is not a mundane mania but has deeper religious roots.
Hinduism worships all creation: (peace be unto all bipeds and even so to all quadrupeds)).
Indeed, the love of sub human brethren.
is high religion.
For "He prayeth best, who loveth best All things both great and small, For the dear God who loveth us, He made and loveth all." (Coleridge, in Ancient Mariner) From the Buddha and Mahavira to St. Francis of Assissi and Gandhiji, compassion for living creatures is a profound religious motivation.
The sublime mind of Mullick was obvi ously in religious sympathy with fellow beings of the lower order when he should this tenderness to birds and beasts and shared it with the public.
The art gallery too had link with religion in its wider connotation although it is plainer to regard it as a gesture of aesthetics and charitable disposition.
God is Truth, Truth is beauty, beauty Truth.
A thing of beauty is a joy for ever.
In fact, for a highly elevated Indian mind, this conceptual nexus is not far fetched.
The garden and the 1love of flow ers strike a psychic chord at once beautiful and religiously mystical, as any reader of Wordsworth or other great poet in English or Sanskrit will agree.
The point is that the multiform dispositions had been united by a spiritual thirst and, if read in their integrality, could be desig nated religions cum charitable.
In sum, the primary in tendment was to dedicate as debutter and to direct fulfil ment of uplifting religions and para religious purposes, the focus being on worship of Sree Jagannathjee and the fall out some subsidiary, yet significant, charitable items.
The finer note struck by the felt necessities of his soul was divinised and humanised, the central object being Sree Jagannathji, the Lord of the Universe.
Of course Sri Sen submits that verbalism cannot take us far and the description of debutter cannot be decisive because the magnitude of the expenses on the various items, apart from other telling clauses 493 which will presently advert to, was indicative not of a dedication to the idol but of the general charitable bunch of dispositions to be carried out through the agency of trusteeship in the sense of the English Law.
For instance, he argues that feeding the poor, maintenance of the art gallery, menagerie, aviary and gardens and fulfilment to the other ' charities have little to do with idol qua idol.
Moreover, making a substantial margin for the remuneration of the Shebaiti, there is some clear excess in favour of donor 's family members in the amounts to be paid or spent on behalf of the shebaits cum trustees.
These are strongly suggestive of a non debutter character, especially because the cost of the poojas makes but a small bite on the total income.
He reinforces the submission by many other points which may be mentioned at this stage.
He states that the donor, if he meant a straightforward case of debutter, would have confined himself to the expression 'shebaits ' but there was a sedulous combination of 'shebaits ' and or 'trustees ' and there was also reference to trusts in some places.
Provision for the heirs, for the residence of the shebai tee 's families, the norse carriages and the like also do not smack of debutter.
A specification of the minimum age of 18 to become shebaits and trustees also savours of trusteeship rather than shebaitship.
Appointment of a Board of Trus tees on shebaits failing in succession throws clear light on the creation of a trust in the English sense rather than a debutter in the Hindu sense.
Again, shebaitship is property and if what is created is only shebaitship, not trustee ship, how can the testator exclude females, insist on 18 years of age and prescribe a course of succession not quite consistent with Hindu law? Does this not also point towards trusteeship and away from debutter? In any case, a fair conclusion, according to Sri Sen, would be to regard the appointees as shebaits for purposes of pooja and management of the shrine and as trustees for the other substantial purposes.
Which means that there is a partial debutter and the vesting of the estate in the trustees.
There if other evidence to be gleaned from the tenor of the will to which our attention has been drawn by Sri Sen with a view to emphasize that public charities of a secular character, construction of buildings for residence, for feeding the poor, repairs and maintenance of a miscellaneous sort plus detailed directions towards all shebaits and trustees are telling against absolute debutter.
Since the expenses for the poojas cover only a small part of the total income, a correct reading of the will may be to hold that the corpus vests in the trustees, subject to an interest being created in the deity to the extent of the share of the income reasonably necessary for the pooja and residence of the Lord.
We see force in these submissions and shall deal with them presently.
Before that we may state the correct legal approach as set out by Mukherjea in his Tagore Law lectures: "Even when a deal of dedication is not ficti tious or benami the provisions of the deed might show that the benefit intended for the deity was very small or of a nominal charac ter.
If the gift to the deity is wholly illu sory there is no Debutter 494 in the eye of law, but there are cases where a question arises on the construction of the document itself, whether the endowment created was only a partial one meaning thereby that the dedicated property did not actually vest in the idol, but the latter enjoyed a charge upon the secular property of the founder, given to his heir or other relations, for the expenses of its worship.
I will discuss this matter separately under the second head.
I may only state here that where there is an out and out dedication to an idol, the reservation of a moderate portion of the income of the endowed estate for the remuneration of the shebait would not invalidate the endowment either as a whole or to the extent of the income so served.
In Jadu Nath vs Thakur Sitaramji (44 I.A. 187) there was a dedication of the entire property of the founder to the idol, and the direction given was that half of the income was to be applied for the worship of the idol and repairs of the temple, and the other half was to go for the upkeep of the managers.
Their Lordships of the Judicial Committee in holding the gift as a valid Debutter observed as follows : "The deed ought to be read just as it appears, and there is no reason why it should not be so construed as meaning simply what the language say% a gift for the maintenance of the idol and the temple, under which the idol is to take the property, and for the rest, the family are to be the administrators and manag ers and to be remunerated with half the income of the property.
If the income of the proper ty had been large a question might have been 'raised, in the circumstances as throwing some doubt upon the integrity of the settlor 's intentions, but as the entire income is only 800 rupees a year, it is obvious that the payment to these ladies is of the most tri fling kind and certainly not an amount which one could expect in a case of this kind.
" Following this decision it wag held by the Calcutta High Court in Chandi vs Dulal (30 CMN 930) that a provision for remuneration of the Shebaits with half of the income of the Debutter property (which proved to be small sum)as well as their residence in the Thakur bari were quite compatible with an absolute endowment.
You should bear in mind in this connection, that when a property is absolutely dedicated to a deity, it is not necessary that every farthing of the income should be spent for the worship of the idol itself.
It is quite within the competence of a settlor to provide that the surplus income should be spent for the charitable objects e.g. feeding o] the poor.
Sadavart or entertainment of pilgrims and guests is often found to be an adjunct of a public Debutter.
In the case of Monohar Mukherji vs Bhupendra Nath Mukherjee FB) there was a provision in the deed of dedication that the surplus income of the endowment should be spent upon maintenance of childless widow 495 of the family and construction of roads and excavation of the tanks for public use, and these directions, it was held, did not make the dedication incomplete.
(pp. 129 130) (Underscoring supplied with a pur pose) The demarcating line between absolute and partial debutter is drawn by the author thus: "Where the dedication made by settlor in favour of an idol covers the entire benefi cial interest which he had in the property, the Debutter is an absolute or complete Debutter.
Where however, some proprietary or pecuniary right or interest in the property is either undisposed of or is reserved for the settlor 's family or relations, a case of partial dedication arises.
In a partial dedication the deity does not become the owner of the dedicated property but is in the posi tion of a charge holder in respect of the same.
A charge is credited on the property and there is an obligation on the holder to apply a portion of the income for the reli gious purposes indicated by the settlor.
The property does not become extra commerci um like Debutter property, strictly Speaking so called, but is alienable subject to the charge and descends according to the ordinary rules of inheritance.
It can be attached and sold in execution of decree against the holder.
Whoever gets the property however takes it burdened with the charge or reli gious trust.
In Dasaratha Rami Reddy vs Subba Rao ; it was observed by the Supreme Court that the question whether a dedication was complete or partial must depend on whether the settlor intended that his title should be completely extinguished and transferred to the trust, that in ascer taining that intention regard must be had to the terms of the document as a whole and that the use of the word 'trust ' though of some help in determining such intention was not decisive of the matter.
It sometimes happens that the settlor merely provides for the perfomance of certain religious services or charities from out of the income of properties specified, and the, question arises whether in such cases the specified properties themselves form the subject matter of dedication.
Where the entire income from the properties or a sub stantial portion thereof is directed to be applied, or is required for such purposes, then the property itself must be held to have been absolutely dedicated for those purposes.
Where, however, after applying the income for the purposes specified, there still remains a substantial portion thereof undisposed of, then the dedication must be held to be partial and the properties 496 will continue to be held in private ownership, subject to a charge in favour of the charities mentioned? ' (p. 134 135) Mr Sen cited several decisions which are more appropriate to a contest between shebaits and heirs and do not directly bear on rival considerations decisive of the absolute or partial nature of a debutter and so we do not burden this judgment with those many citations but may refer to a few.
In Har Narayan(1) the Judicial Committee was dealing with a case where a dispute was between the heirs and the shebaits and it was held that "although a will provides that the property of the testator 'shall be considered to be the property of a certain idol, the further provi sions such as that the residue after defraying the expenses of the temples 'shall be used by our legal heirs to meet their own expenses ', and the circumstances, such as that in the ceremonies to be performed wore fixed by the will and would absorb only a small proportion 01 the total income, my indicate that the intention was that the heirs should take the property subject to a charge for the perform ance of the religious purpose named.
" Granting the creation of a debutter, the telling tests to decide as between an absolute and partial debutter cannot necessarily be gathered from this ruling.
On the other hand, this very ruling emphasized that a substantial part of the income was to go to the legal heirs to meet their own expenses and that circumstances deflected the decision.
Moreover.
Lord Shew of Dunfermline, there observed: "The case (jadu Nath Singh: 44 I.A. 187) merely illustrates the inexpediency of laying down a fixed and.
general rule applicable to the construction of settlements varying in terms and applying to estates varying in situation." (p. 149) The observations of this Court in Charusila Dasi(2) a case dealing with the question of legislative competency on the constitutionality of the Bihar Hindu Religions Trusts Act seem to suggest that the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed were consistent with the creation of a religious and charitable trust.
The crux of the matter, agitated before us, is the determination of the true intention of the testator and this has to gathered from the name used, the recitals made and the surrounding circumstances.
From a bestowal of reflec tion on the subject and appraisal in the light (1) L.R. 48 I.A. 143.
(2) [1959] Supp.2 S.C.R. 601.
497 of the then conditions, sentiments and motivations of the author, we are inclined to the view that Raja Mullick, the maker of the will, dedicated as debutter to his Maker and Thakoor the entire estate, saddling the human agents or shebaits with duty to apply the income for godly and near godly uses and for reward of the shebaits and for their happily living.
Of course, he had horses and carriages and other items to make life enjoyable.
Naturally, his behest covered the obligation to keep these costly things in good condition and regular use.
The impact on the mind, if one reads the provisions reclining in a chair and lapsing into the mood of the maker of the will, is that he gave all he did to his Thakoor, as he unmincingly said, and thus dedicated to create an absolute debutter.
The various directions are mostly either religious or philanthropic but not so remote as to be incongruous with dedication to an idol or creation of a debutter.
The quantum of expenditure on the various items is not so decisive of the character of the debutter as absolute or partial as the accent on and subjective importance of the purposes, in the setting of the totality of commands and cherishments.
His soulful wishes were for the religious and charitable objects and the other directions were secondary in his estimate.
Not counting numbers nor computing eXpenses, marginally relevant though they are, but feeling the pulse of his passion to do godly good and promote public delight, that delights the spirit of his testament.
Essentially, Raja Rajendra Mullick gave away his estate to his Thakoor and created an absolute debutter.
He obligated the managers of the debutter with responsibility to discharge certain secular but secondary behests including benefit to family members, their resi dence and transportation.
How then do we reconcile such a conclusion with the many points forcefully urged by Shri B. Sen and averted to earlier ? We think that the expressions 'shebaits and trustees ', 'shebaits or trustees ', 'shebaits ' 'trustees ', and 'trusts ' were indiscriminately used, indifferent to sharp legal semantics and uncertain of the precise import of these English legal terms in the Indian context.
More, an English solicitors familiar legal diction super imposed on an unfamiliar Indian debutter, rather than an exercise in ambiguity or deliberate dubiety, explains the odd expres sions in the will.
The author merely intended to dedicate to Sree Jagannathji and manage through shebaits.
Of course, the reference to the Board of Trustees, the majority vote and the like, strike a discordant note but the preponderant intent is what we have held it is.
The magnitude of the expenditure on the items, secular and sacred, may vaguely affect the conclusion but cannot conclusively decide the issue.
The religious uses related to Sree Jagannathji, the Lord of the Universe, cannot be narrowly restricted to rituals but must be spread out to embrace universal good, especially when we read the mind of a Hindu highly evolved and committed to a religion whose sweep is vasudhaiva kudumbakam (All creation is His family).
The blurred lines between the spiritual and the secular, in the context of this ease, do not militate against our con struction.
We are not unmindful of the stress Shri B. Sen placed on the passage in B.K. Mukherjea which we may extract: 498 "But it happens in some cases that the property dedicated is very large, and the religious ceremonies which are expressly prescribed by the founder cannot and do not exhaust the entire income.
In such cases some portion of the beneficial interest may be construed as undisposed of and cannot but vest as secular property in the heirs of the founder.
There are cases again where although the document purports, on the face of it, to be an out and out dedication of the entire property to the deity, yet a scrutiny of the actual provisions reveals the fact that the donor did not intend to give the entire inter est to the deity, but reserved some portion of the property or its profits for the benefit of his family relations.
In all such cases the Debutter is partial and incomplete and the dedicated property does not vest in the deity as a juridical person.
It remains with the grantees or secular heirs of the founder subject to a trust or charge for the reli gious uses.
The earliest pronouncement of the law on the subject is to be found in the decision of the Judicial Committee in Sonatun Bysack vs Juggutsoondaree (8 M.I.A. 66) which was followed and applied in the subsequent case of Ashutosh vs Durga (L.R. 6 I,A. 182) ." Sonatun Bysack, referred to by the learned author, dealt with a case where a Hindu, by his will, gave his whole estate to the family, deity; he directed that the properties should never be divided but that the sons and grandsons in succession would enjoy 'the surplus proceeds only '.
There were other kindred directions.
The Judicial Committee held that the bequest to the idol was not an absolute gift: "*A reference to the second, third and fifth clauses of the will ' so runs the judg ment 'leads us to the conclusion that 'al though the will purports to begin with an absolute gift in favour of the idol, it is plain that the testator contemplated that there was to be some distribution of the, property according as events might turn out; and that he did not intend to give the proper ty absolutely to the idol seems to their Lordships to be clear from the directions which are contained in the third clause, that after the expenses of the idol are paid, the surplus shall be accumulated; and still more so from the fifth 'clause by which the testa tor has provided for whatever surplus should remain out of the interest of the property, the expenses of the idol being first deducted.
It is plain that the testator looking at the expenses of the idol was not contemplating an absolute and entire gift in favour of the 'idol '.
On a construction of the entire will it was held that there was a gift to the/our sons of the testator and their offspring in the male line as a joint family, and the four 'sons were entitled to the surplus of the property after providing for the performance of the ceremonies and festivals of the idol and the provisions in the will for mainte nance.
" (p 136 137, Mukherjea) 499 The cardinal point to notice is what Pande Har Narayan (48 I.A. 143 emphasized: "The question whether the idol itself shall be considered beneficiary, subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a ques tion which can only be settled by a conspectus of the entire provisions of the will." (p. 137, Mukherjea) If, on a consideration of the totality of terms, on sifting the more essential from the less essential purposes, on sounding the depth of the donor 's wishes to find whether his family or his deity were the primary benefici aries and on taking note of the language used, if the vesting is in the idol an absolute debutter can be spell out.
So considered, if the grant is to the heirs with a charge on the income for the performance of pujas, the opposite inference is inevitable.
Before us, there is no dispute between the heirs and the idol.
The point mooted is about the creation of an English trust, an unconventional legal step where the dedication is to a deity.
On a full study of the will as a whole, we think that this benignant Bengalee 's testament, draped though in Victorian verbal haberdasho ry, had, on legal auscultation, the Indian heart beats of Hindu religious culture, and so scanned, his will intended vasting the proper ties in absolute debutter.
The idol was, therefore, the legal owner of the whole and liable to be assessed as such.
The respondent, however, has a second string to his bow.
Assuming an absolute debut ter, there is still many a slip between the lip and the cup, between the income and exigi bility to tax.
For, while, ordinarily, income accrues in the hands of the owner of property and is taxable as such, it is quite on the cards that in view of the special provisions in the deed of grant certain portions of the income may be tied up for other purposes or persons and may not reach the grantee as his income.
By an over riding charge, sums of money the balance of income may legally be received by the donee as his income.
The argument of the respondent is that even if the estate vested in the deity, an assessable entity in our secular system as held in Jogen dra Nath(1) still all the amounts meant to be spent on the shebaits and the members of the family, on the upkeep of horses and carriages and repair of buildings etc., were charged on the income and by, paramount provisions, directed to these uses.
These sums did not and could not come into the hands of the deity as its income and could not be taxed as such.
If the 'shebaits and trustees ' collected the income by way of rents and interests, to the extent of these other disbursements they received the amounts merely as collectors of rents etc; not as receivers of income.
Such amounts were free from income tax in the hands of the idol.
(1) ; 500 The principle we have set out above has been blessed by a uniform catena of cases.
The leading ruling on the sub ject is by the Judicial Committee in Bejoy Singh Dudhuria(1).
Lord Macmillan there observed as follows: "When the Act by section 3 subjects to charge 'all income ' of an individual it is what reaches the individual an income which it is intended to charge.
In the present case the decree of the court by charging the appel lant 's whole resources with a specific payment to his stepmother has to that extent diverted his income from him and has directed it to his step mother; to that extent what he receives for her is not his income.
It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands." (p. 138 139) A case in contrast is P.C. Mullick vs Commis sioner of Income tax(2).
There "The testator died in October, 1931.
By his will he appointed the appellants (and another) his executors.
He directed them to pay his debts out of the income of his proper ty, and to pay Rs. 10,000/ out of the income of his property on the occasion of his 'Addya Shradh ' for expenses in connection therewith to the person entitled to perform the Shradh.
He also directed his executors to pay out of the income of his property the costs of taking out probate of his will After conferring out of income benefits on the second wife and his daughter and (out of the estate) benefits on the sons, if any, of his daughter, and after providing for the payment out of income 'gradually ' of divers sums to some persons, and certain annuities to others, he be queathed all his remaining property (in the events which happened) to a son taken in adoption after his death by his wife, viz., one Ajit Kumar Ghosh who is still a minor.
" The payment of the Shradh expenses and the costs of probate were payments made out of the income of the estate coming to the hands of the appellants as executors, and in pursu ance of an obligation imposed by their testa tor.
It is not a case like the case of Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Calcutta in which a portion income was by an overriding title diverted from the person who would otherwise have received it.
It is simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand." (1) (2) 501 In Commissioner of Income tax vs Sitaldas Tirath das(1) this Court referred to many reported decisions some of which we have just mentioned.
Mr. Justice Hidayatullah, speaking for the Court, summed up the rule thus (at p. 374): "in our opinion, the true test is whether the amount sought to he deducted, in truth, never reached the assessee as his income.
Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact.
There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.
Where by the obliga tion income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence in law does not follow.
It is the first kind of payment which can truly he executed and not the second.
The second payment is merely an obliga tion to pay another a portion of one 's own income, which has been received and is since applied.
The first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.
in our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own.
The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another 's income.
" The High Court, in a laconic paragraph, dismissed this contention but Shri Sen submitted that there was merit in it and had to he accepted.
We agree with the High Court because the terms in which the directions are couched do not divert the income at the source but merely command the shebaits to apply the income received from the debutter properties for specified purposes.
We may quote to illus trate: "I direct that the shebaits and trustees shall out of the Debutter funds maintain and keep a sufficient number of carriages and horses for their use and comfort and that of their families and after providing for the purposes aforesaid out of the Debutter income I direct the shebaits and Trustees to pay to each of the shebaits for the time being who shall actually take part in the performance of the duties of the Shebaits and the execution of the Trusts of this fund as and by way of remuneration for their serv ices the sum of Rupees Five hundred a month . " (1) 502 "I direct that the widows of my three deceased sons Greendro, Sorrendro and Jogendra who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distri bution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall receive a remuneration of the sum of Rupees fifty each a month from the income of the debutter fund.
" So the shebaits first got the income and then apply it in conformity with the directives given in the will.
The rulings relied on by both sides do not shake the position we have taken and may not merit discussion.
These conclusions we have drawn mean that the appeals have to be allowed and the reference answered in favour of the Revenue and against the assessee.
Accordingly we answer Questions Nos.1 and 2, referred at the instance of the assessee, against him and the other two questions referred at the request of the Revenue, affirmatively.
While answer ing the above questions we may state that all income ear marked for religious and charitable purposes conforming to section 4(3)(i) read with Explanation to section 4(3) of the 1922 Act shall not be included in the total income.
It is also clear that whatever income was agreed to be excluded in terms of the concession made by the Revenue in the High Court shah remain excluded.
The fluctuating fortunes of this litigation have been occa sioned by the discordant notes struck by the different clauses of the will and the inevitable element of confusion injected by the religious, charitable and secular wishes of the Hindu testator being translated into formal, legal terms by an English solicitor in the latter half of the last century.
He, therefore, direct that the parties do bear their own costs throughout.
P.H.P. Appeal allowed.

dataset_name: IN-Abs

summary:
Raja Rajendra Mullick Bahadur of Calcutta executed his last will on 21 2 1887.
The author of the Will was a religious minded Indian, the draftsman of the document was John Hart, an English Solicitor.
The Will open with the words 'I hereby dedicate and make debutter my Thakurbaree '.The
Income Tax Officer issued notices requiring filing of the returns against the Deity Thakurbaree.
On b:half of Deity, a nil income return was filed under section 22(2) of the Indian Income Tax Act, 1922 for the assessment years 1956 57 and 1957 58.
In connection with the writ petition filed in the High Court for the proceedings in respect of assessment years 1955 56 it was conceded by the Revenue that a part of the income of the assessee which would be proved before the Income Tax authorities to have been applied in connection with feeding of the poor, sub scription to other charities enuring for the benefit of the public would be exempted under section 4(3)(i) of the Income Tax Act, 1922.
The Revenue contended that on a true construction of the said will there was a complete dedication of the property to the Deity and, therefore, the income arising from the said property was taxable in the hands of Deity.
It was, however, contended by the assessee that the remuneration of the trustees and the allowances to the widows of the de ceased trustees as provided in the Will created a charge on the income of the trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hand of the trustees.
The Income Tax Officer taxed the income of the Deity deducting therefrom such amounts as were conceded before the High Court in respect of the prior year.
The appeal preferred by the assessee was dismissed by the Appellate Assistant Commissioner.
Before the Tribunal, the Revenue substantially succeeded.
Thereafter, the Tribunal referred 4 questions of .law to the High Court, two at the instance of the assessee and.
two at the instance.
of the Revenue.
, The High Court on a metic ulous consideration of the entire Will decided against the Revenue and took the view that reading the Will as a whole the entire beneficial interest in the properties did not vest in the assessee Deity.
Assessee Deity was not the owner of the properties and, therefore.
the only income which could be subjected to income tax in the hands of the asses see would be the beneficial interest of the said Deity under the Will which would be the expenses incurred for Seva Puja of the Deity and for the various religious ceremonies con nected with the said Deity and the value of the residence of the Deity in the temple.
Allowing the appeal, HELD: 1.
The Will represents pious Bengali Wishes and disposition but drafted in the hands of an English Solici tor.
The court 's function in such an 484 ambiguous situations to steer clear of the confusion impart ed by the diction and to read the real intention of the testator.
The courts discerning loyalty is not to the formalitistic language used in drawing up the deeds but to the intentions which the disponer desired should take effect in the manner he designed.
The real question is whether the testator created an absolute or partial debutter or was there no dedication to the idol but a vesting of the legal estate in the trustees.
The use of the words like trust, trustees and Shebaits can lend support to the conten tion that the legal estate vested in the trustees.
However, the court has to push aside the English hand to reach at the Indian heart.
We are construing the Will of a pious Hindu aristocrat whose faith in ritual performances was more than matched by his ecumenical perspective.
Secondly, the sacred sentiment writ large in the Will is his total devotion and surrender to the family Deity Shri Jagannathjee.
It looks like doing Violence to the heart of the Will if one side steps the Deity to the status of but one of the benefici aries.
The Will in the forefront declares the dedication to the Deity.
The expression trust, trustees and shebaits were indiscriminately used.
The expressions are uncertain of the precise import of these English legal terms in the Indian context.
The idol was, therefore, the legal owner of the whole and liable to be assessed as such.
, 491B, C D, 497D, 499E] 2.
The court negatived the contention that even if the property vested in the Deity, all the amounts to be spent on the Shebaits and the members of their family on the upkeep of horses and carriages and repair of buildings etc.
were charge on the income and, therefore, the same did not and could not come into the hands of the Deity as his income and could not be taxed as such.
If the Shebaits received rent and interest to the extent of these other disbursements they received the amounts merely as collectors of rents etc.
and not as receivers of income.
The terms in which the direc tions are couched do not divest the income at the source but merely direct a Shebait to apply the income received from the debutter properties for specified purposes.
[499E H, 501F G]