judgement:
Civil Appeal No. 1605 of 1971.
I From the Judgment and Order dated 28 11.1970 of the Judicial Commissioner 's Court of Tripura in Writ Petition No. 22/ 1964.
D.N. Mukherjee for the Appellant.
M.M. Abdul Khader and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by DESAI , J.
Murari Mohan Deb , a Forester in the employment of Tripura Government was compulsorily retired from service by the order dated October 12 , 1962 of the 4th respondent Chief Forest Officer.
Since then he is knocking at the doors of the courts in search of illusory justice and chased mirage till he reached the age of superannuation.
Alas ! the ways of justice like the ways of Providence are inscrutable.
And who is to blame , if not, the system 642 The appellant questioned the correctness and validity of the order of compulsory retirement n Writ Petition No. 22 of 1964 which came to be disposed of after a lapse of six years on November 28 , 1970.
In his writ petition the appellant had impleaded (1) The Secretary to the Government of India , Ministry of Home Affairs , (2) The Chief Commissioner , Tripura , (3) The Secretary to the Government of Tripura , Forest Department and (4) The Chief Forest Officer , Government of Tripura , last one being the one who had passed the impugned order of compulsory retirement.
The grievance in the writ petition was that penalty of compulsory retirement was imposed upon the appellant without affording the appellant an adequate opportunity to defend himself and to explain the charges leveled against him.
In short it was alleged that the enquiry was held in violation of the principles of natural justice.
The respondents resisted the writ petition inter alia contending that as the punishment of compulsory retirement does not tantamount to dismissal or removal from service as contemplated by article 311(1) and therefore , no formal enquiry was necessary to be held before imposing the penalty.
It was contended that adequate opportunity was afforded to the appellant to controvert the charges and defend himself.
Surprisingly , when the matter was taken up for hearing , the learned judicial Commissioner suo moto raised the objection that i n the absence of Union of India being made a party , the petition was not properly constituted.
After an elaborate discussion , the learned Judicial Commissioner recorded a finding that Government of India was a necessary party and in its absence the petition is incompetent and must be rejected.
After having reached this firm conclusion , the learned Judicial Commissioner proceeded to investigate the contention of the appellant that the enquiry against him was held in violation of the principles of natural justice , and that the Chief Forest Officer being not the appointing authority could not impose the penalty of compulsory retirement on the appellant.
In respect of the second contention , the learned judicial Commissioner held that as it has been unquestionably established that the appellant was appointed by the Chief Commissioner , the Chief Forest Officer , a subordinate of the Chief Commissioner was not competent to impose the penalty of compulsory retirement and therefore on merit the order was bad.
643 However , consistent with his view that the writ petition in the absence of Union of India was competent , he rejected the writ petition.
Hence this appeal by special leave.
This appeal reached hearing on July 26 , 1984 and after hearing Mr. D.N. Mukherjee , learned counsel for the appellant and Mr. Abdul Khader , learned counsel for Tripura Administration , we told them that the appeal is being allowed and the impugned order is being set aside.
However , at this stage , Mr. Abdul Khader , learned counsel for the State of Tripura pointed out that as the appellant even on his showing has reached the age of superannuation , even if the impugned order is illegal and invalid , the relief of reinstatement cannot be granted to him.
As the facts were not clear , a direction was given that the matter be listed on August 7 , 1984 for clarification about the date of superannuation of the appellant.
At the resumed hearing it was conceded that, had the appellant not been compulsorily retired from service , he would have retired on superannuation on December 6, 1978.
In this fact situation the relief of physical reinstatement could not be granted.
On that day a direction was given that the second respondent should compute and calculate the backwages payable to the appellant on the footing that the order of compulsory retirement is illegal and invalid and the appellant continued to be in service till December 9 , 1978.
The matter thereafter was listed on October 17 , 1984 when Mr. Abdul Khader , learned counsel for the second respondent produced before us the rough computation made by the competent authority pursuant to our direction showing that approximately Rs. 93,000 would be payable to the appellant as and by way of backwages and he would be entitled to gratuity and pension thereafter.
The plight of the appellant lent urgency to the matter in as much as the appellant was without succour for a long period, a direction was given that the second respondent i.e. Tripura Administration should pay Rs. 93,000 by a demand draft drawn in favor of the appellant within four weeks from the date of the order.
A further direction was given that year to year calculation of computation of backwages must be submitted to the Court.
Kamal Baran Dev son of the appellant filed an affidavit dated November 7, 1984 in which he pointed out that had the appellant continued in service , if the illegal order of compulsory retirement had not been made, he would have earned two promotions , namely, 644 as Forest Ranger and Senior Forest Ranger , all posts in Class III and IV grade.
According to the appellant 's computation , his pension be fixed at Rs. 550 p.m.
According to him , he would be entitled to recover Rs. 3,25,000 from the respondents for the period upto and inclusive of July , 1984.
Shri R.M. Dutta , Deputy Conservator of Forests, Government of Tripura filed a counter affidavit in which it is pointed out that looking to the age and qualifications of the appellant , he would not have earned a single promotion.
It was pointed out that the post of Forest Ranger and that of Senior Forest Ranger are governed by the recruitment rules which came into force in 1965 which did not envisage automatic promotion purely according to seniority.
It was also pointed out that seniority is only one of the criteria that the Departmental Promotion Committee has to take into consideration while recommending the promotion of a Forester to the post of Forest Ranger.
It was further pointed out that the revised pay scale for the post of a Forester was Rs. 260 495 effective from March ], 1974 and that the appellant would have retired in that scale.
To this affidavit was annexed calculations monthwise and it was pointed out that at best the appellant would be entitled to Rs. 93 , 444.08 p. inclusive of pension from 6.12.78 to September 30 , 1984 , encasement of leave and gratuity.
Mr. D.N. Mukherjee , learned counsel for the appellant urged that we should not accept the computation as made by the competent authority as set out in the annexure to the affidavit of Shri R.M Dutta.
To a query of the court as to how the appeal ant was worked out his arrears of backwages at Rs. 3,25,000, there was hardly any convincing answer though some rough and ready calculation was attempted to be offered to us which we find very difficult to implicitly rely upon.
Mr. Abdul Khader fairly stated that it is difficult to support l the judgment of the learned Judicial Commissioner that in the absence of Union of India being impleaded as a party , the petition as constituted was incompetent.
We have not been able to appreciate why the learned Judicial Commissioner should have taken upon himself to raise this untenable contention even though the respondents did not raise such a contention.
respondent No. 1 is shown to be the Secretary 10 the Government of 645 India , Ministry of Home Affairs.
If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a class IV low grade servant should not have been made to suffer.
An oral request to correct the description of the first respondent would have satisfied the procedural requirement.
By raising and accepting such a contention, after a laps of six years , the law is brought into ridicule.
The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary , Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard.
The contention is all the more objectionable for the additional reason that the appointing authority of the appellant , the Chief Commissioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers.
Therefore, not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence.
Mr. Abdul Khader , learned counsel for the Government of Tripura rightly did not press this point.
The learned Judicial Commissioner rightly held that the impugned order of compulsory retirement was imposed by an authority not competent to impose the same and therefore it is ab initio illegal and invalid.
Further , it appears crystal clear from the record that in this case when the appellant was only 42 years of age , compulsory retirement was imposed as a penalty for misconduct.
We are not unaware of the legal position that where relevant service rules provide for an age of superannuation and permits compulsory retirement in public interest on reaching a certain age lower than the age of superannuation , an order of compulsory retirement according to relevant service rules cannot be styled as imposing a penalty and obviously article 311(2) will not be attracted.
As held by this Court in Sham Lal vs The State of Uttar Pradesh (1) an order of compulsory retirement differs both from an order of dismissal and an order of removal from service , in that it is not a form of punishment prescribed by the rules.
and involves no penal consequences , inasmuch as the person who retires is entitled to pension proportionate to the period of service standing to his credit. '(See The State of Bombay 1.
(1955) 1 SCR26. 646 vs Saubhagchand M. Doshi(1).
It thus appears that where the relevant service rules fixed both an age of superannuation and an age of compulsory retirement and the services of a Government servant governed by the rules are terminated between these two point of time , the order of compulsory retirement could not be said to cast a stigma and would not attract article 311.
But where there is no rule fixing the age of compulsory retirement or if there is one and the servant is retired before the age prescribed therein , then that can be regarded only as dismissal or removal within article 311(2).
(See Saubhagchand M. Doshi 's case at 519).
In this case it is admitted that the relevant service rules prescribed an age of superannuation.
It was not pointed out that the relevant rules fixed some other age beyond which and before reaching the age of superannuation , a Government servant can be compulsory retired in public interest.
Nor is it claimed that the order of compulsory retirement in this case was made under the relevant service rules in public interest.
It would have been atrocious to contend to that effect in respect of a Forester , a low grade class IV servant who would be required to be compulsorily retired in public interest.
But if there was such a rule , we would have positively examined the same.
At any rate , it is crystal clear that the appellant was aged only 42 when the order of compulsory retirement was made.
It was not sought to be supported on the ground that the appellant having put in service for a certain number of years , he could have been compulsorily retired.
On the contrary , it is admitted that the order of compulsory retirement was by way of penalty imposed upon him for misconduct after an enquiry.
Obviously therefore , article 311(2) will be attracted and an enquiry in accordance with the rules of natural justice would be a pre requisite before imposing any penalty.
It would be presently pointed out that the enquiry was sham and held in violation of principles of natural justice.
The enquiry officer issued a notice that the enquiry against the appellant would be held at Rangamura but at short notice subsequently , the venue was suddenly shifted to Radhanagar where the appellant could not keep his witnesses present.
He did not have an opportunity of examining the records used against him.
Therefore , for more than one reason , the enquiry appears to have been held in l. ; 647 violation of principles of natural justice and is vitiated.
If the enquiry was illegal , any punishment imposed as a result of the enquiry must t`ail.
Therefore , the order of compulsory retirement is bad for more than one reason and liable to be set aside and is hereby set aside.
Once the order of compulsory retirement is set aside, the appellant continues to be in service.
He has reached the age of Superannuation as on December 6 , 1978 as pointed out in the affidavit and not controverted.
Therefore , it is not permissible to direct his reinstatement in service.
He would be entitled to backwages from the date of compulsory retirement on October 16 , 1962 till the date of his superannuation on December 6 , 1978.
C Before we determine the amount payable as backwages, we must make it distinctly clear that while computing the amount we have kept in view the meagre monthly salary which the appellant would have received for the years 1962 to 1974 when the pay scale of his post was revised.
In any year if he had received full salary , he was not liable to pay income tax at the rates then in force.
Even the revised salary with the exemption limit of income tax going up would have not been assessable to income tax.
And this lowest grade class IV servant , we were informed had no other source of income.
Now that the amount is payable in one lump sum , presumably the Government may resort to Sec.
192 of the Income Tax Act.
But let it be made distinctly clear that the appellant is entitled to the benefit of Sec. 89 and Rule 21A of the Income Tax Rules and he is entitled to relief under Sec. 89.
Therefore , while computing the total amount , we have kept the spread over in view and in no year any income tax is deductible from the meagre salary of this low paid class IV employee.
If therefore , any deduction is made towards income tax while making the payment , it is incombent upon the Tripura administration to take all necessary steps to obtain the relief for the appellant under Sec. 89 of the Income Tax Act read with Rule 21A of the Income Tax Rules.
As pointed out earlier , rival contentions and calculations have been examined by us and keeping them in view and having regard to the circumstances of the case , we direct that over and above the amount of Rs. 93,000 already paid to the appellant , he should be paid Rs. 7,000 more towards backwages and pension upto and inclusive of 648 December 31 , 1984.
The respondent shall pay pension at the rate of Rs. 400 from January 1 , 1984.
The appellant shall also be paid dearness allowance if admissible to pensioners getting pension at Rs. 400 p.m.
The appellant shall also be paid gratuity at the admissible rate treating him in service upto and inclusive of December 6 , 1978.
The payment herein directed shall be made with in a period of eight weeks from today.
The respondent shall also pay costs to the appellant quantified at Rs. 2,000.
Appeal is allowed to the extent herein indicated.
M.L.A. Appeal allowed.

summary:
The appellant a Forester was compulsorily retired from service by an Order dated October 12 , 1962 passed by the Chief Forest Officer , Government of Tripura.
He filed a writ petition before the Judicial Commissioner impleading , (I) The Secretary to the Government of India , Ministry of Home Affairs; (2) The Chief Commissioner , Tripura; (3) The Secretary to the Government of Tripura , Forest Department; and (4) The Chief Forest Officer , Government of Tripura as respondents.
His main grievance was (i) that the penalty of compulsory retirement was imposed upon him without affording him an adequate opportunity of being heard; and (ii) that the enquiry held against him was in violation of the principles of natural justice.
On the other hand , the respondent contended (i) that the punishment of compulsory retirement does not tantamount to dismissal or removal from service as contemplated by article 311 (1) and therefore , no formal enquiry was necessary to be held before imposing the penalty; and (ii) that adequate opportunity was afforded to the appellant during the enquiry to controvert the charges and defend himself.
The Judicial Commissioner held that the appellant was appointed by the Chief Commissioner , and therefore , the Chief Forecast Officer , a subordinate of the Chief Commissioner was not competent to impose the penalty of compulsory retirement and thus the order was bad on merits.
But , he dismissed the petition holding that it was not properly constituted.
Allowing the appeal by the appellant , ^ HELD: (t) The Judicial Commissioner should not have taken upon 640 himself to raise the objection that in the absence of Union of India being made a party , the petition was not properly constituted when the respondents did not raise such a contention.
Respondent No. i is shown to be the Secretary to the Government of India , Ministry of Home Affairs.
If there was technical err or in the draftsmanship of the petition by a lawyer , a Forester a class IV low grade servant should not have been made to surfer.
An oral request to correct the description of the first respondent would have satisfied the procedural requirement.
The Court could have conveniently read the cause title as Government of India which means Union of India through the Secretary.
Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard.
Moreover , the appointing authority of the appellant , the Chief Commissioner of the Government of Tripura as well the Chief Forecast Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers.
Therefore , not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence.
[644G H; 645A D] (2) The Judicial Commissioner rightly held that the impugned order of compulsory retirement was imposed by an authority not competent to impose the same and therefore it is ab initio illegal and invalid.
[645F] (3) (i) Where relevant service rules provide for an age of superannuation and permit compulsory retirement in public interest on reaching a certain age lower than the age of superannuation , and order of compulsory retirement according to relevant service rules cannot be styled as imposing a penalty and obviously article 311 (2) will not be attract .
An order of compulsory retirement differ both from an Order Of dismissal and an order of removal from service , in that it is not a form of punishment prescribed by the rules , and involved no penal consequences in as much as the person who retires is entitled to pension proportionate to the period of service standing to his credit.
But , where there is no rule fixing the are of compulsory retirement or if there is one and the servant is retired before that age prescribed therein , then that can he regarded only as dismissal or removal within article 311 (2).
[645G H;6645A B] Sham Lal vs The State of Uttar Pradesh , [1955] S.C.R. 26 and State of Bombay vs Saubhagchand M. Doshi , ; , referred to.
(ii) In the instant case , it is admitted that the relevant service rules prescribed an age of superannuation.
It was not pointed out that the relevant rules fixed some other age beyond which and before reaching the age of superannuation , a Government servant can be compulsory retired in public interest.
Nor is it claimed that the order of compulsory retirement in this case was made under the relevant service rules in public interest.
At any rate , it is crystal clear that the appellant was aged only 42 when the order of compulsory retirement was made.
It was not sought to be supported on the ground that the appellant having put in service for a certain number of years , he could have been compulsorily retired.
On the contrary , it is admitted that the order of compulsory retirement was by way of penalty imposed upon him 641 for misconduct after an enquiry.
Obviously therefore article 311(2) will be attracted and an enquiry in accordance with the rules of natural justice would be a pre requisite before imposing any penalty.
[647C F] 3.
(iii) It is clear from the facts that the enquiry was held in violation of principles of natural justice and is vitiated.
If the enquiry was illegal , any punishment imposed as a result of the enquiry must fail.
Therefore, the order of compulsory retirement is bad for more than one reason and liable to be set aside and is hereby set aside.
Once the order of compulsory retirement is set aside , the appellant continues in service.
But , it is not possible to direct his reinstatement in service , since he has reached the age of superannuation as on December 6 , 1978.
Therefore.
he would be entitled to backwages and pension which is comes to Rs. 1,00,000 from the date of compulsory retirement on October 16 , 1962 upto and inclusive of December 31 , 1984.
The respondent shall pay pension at the rate of Rs. 400 from January 1 , 1984 .
Now that the amount is payable in one lump sum , presumably the Government may resort to sec.
192 of the Income Tax Act.
But let it be made distinctly clear that the appellant is entitled to the benefit of Sec. 89 and Rule 21A of the Income Tax Rules and he is entitled to relief , under Sec. 89.
Therefore , while computing the total amount the Court has kept the spread over in view and in no year any income tax is deductible from the meagre salary of this low paid class IV employee.
If therefore , any deduction is made towards income tax while making the payment , it is incombent upon the Tripura Administration to take all necessary steps to obtain the relief for the appellant under Sec. 89 of the Income Tax Act read with Rule 21A of the Income Tax Rules.
[647B G]


judgement:
Civil Appeal No. 1980 of 1970.
From the Judgment and order dated 16.11.69 of the High Court of Punjab & Haryana in F.A.O. No. 120/62.
Mrs. Urmila Kapur and S.K. Bagga for the Appellant.
The Judgment of the Court was delivered by MISRA , J.
Hardyal , the respondent , entered into a contract with the State of Punjab , Public Works Department (Buildings and Roads Branch) for the construction of certain bridges and culverts on the Mukerian Naushehra Road.
The agreement between the parties was evidenced by a writing.
The written agreement contained an arbitration clause which provided that dispute , if any , between the parties would be referred to the Superintending Engineer, Public Works Department (Buildings and Roads) , Jullundur Circle.
It 11 appears that no period was fixed in the agreement of reference for giving the award and therefore Period of four months as prescribed 652 in clause 3 of the First Schedule attached to the would be the statutory period for giving the award.
Some dispute did arise between the parties.
The respondent , therefore , sent a notice on January 7, 1960 to the Superintending Engineer requesting him to accept his claim to the tune of Rs. 7,568 and give his award accordingly.
The respondent claimed this amount of compensation broadly on two counts: (1) that the sub Divisional Officer had got certain bridges demolished which according to the respondent had been constructed strictly in terms of the agreement , and (2) that the respondent had also been directed to stop the work.
The arbitrator gave his award against the respondent on April 28 , 1961 , but after the expiry of the prescribed period.
It is , how ever admitted by the respondent that he participated in the proceedings before the arbitrator even after the expiry of the statutory period.
The respondent challenged the award by filing an objection under section 30 of the on a number of grounds.
On the pleas taken by the respondent the Senior Sub Judge framed the following four issues: (I) whether the objections were premature , (2) whether the arbitrator had misconducted himself or the proceedings , (3) whether the award was against natural justice , and (4) whether the award was made after inordinate delay.
The learned Judge overruled all the objections and upheld the award.
Issue No. l Was not pressed before him.
The contention of the respondent that reasonable opportunity had not been afforded to him to adduce evidence , by the arbitrator , was also repelled by the learned Judge.
He observed "One of the grounds taken up for setting aside the award as stated in the application was that the petitioner was not afforded a reasonable opportunity to adduce evidence.
But the record of the proceedings dated 24th of April , 1961 shows that the parties did not want to say any thing further and the hearing of the case was , therefore, closed under such circumstances.
" The plea regarding misconduct on the part of the arbitrator was also overruled and dealing with this point the learned Judge observed: 653 "Nothing has been POINTED out to me in the court during the course of the arguments as to how the arbitrator has misconducted himself and the proceedings.
" The plea regarding delay in giving the award was rejected on the ground that the respondent had been participating in the proceedings before the arbitrator even after the expiry of the prescribed period of limitation.
The respondent took the matter in appeal to the High Court.
When the matter came up before a learned Single Judge he referred the following two points for decision by a Division Bench on account of the importance of the question involved in the case and also on account of conflict of judicial opinion on the point: 1.
Whether the award given after the expiry of the prescribed period without extension of time by the court was invalid ? 2.
Whether the rejection of the objection regarding delay in giving the award on the ground that the objector had participated in the arbitration proceedings even after the expiry of the period of limitation prescribed would by necessary implication amount to extending the time under section 28 of the by the Court ? The Division Bench allowed the objection of the respondent regarding delay in giving the award holding that a party to an arbitration agreement is not estopped from challenging the award on the ground of delay merely because it has participated in the arbitration proceedings even after the expiry of the prescribed period without any demur.
On the second point the High Court held that mere dismissal of the objection regarding delay in the award does not amount to extension of time by the court under section 28(1) of the and indeed time can be extended by the Court by the exercise of sound judicial discretion.
Accordingly the appeal was allowed , the order of the Senior Sub Judge was set aside and the case was sent back to the trial court for deciding afresh whether it was a fit case for condoning the delay in giving the award by the arbitrator after affording opportunity to the parties to adduce evidence, 654 The State has now come up in appeal on a certificate granted by the High Court under article 133(1)(c) of the Constitution , as it then stood.
The same points have been reiterated before this Court.
Before dealing with the points involved it will be convenient to refer to the relevant provisions of the .
Section 3 reads; "3.
An arbitration agreement , unless a different intention is expressed therein , shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference.
" Section 28 reads: "28.
(1) The court may , if it thinks fit , whether the time for making the award has expired or not and whether the award has been made or not , enlarge from time to time the time for making the award.
(2) Any provision in an arbitration agreement whereby the arbitrators or umpire may , except with the consent of all the parties to the agreement , enlarge the time for making the award , shall be void and of no effect.
" Clause 3 of First schedule provides: "3.
The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the court may allow.
" A perusal of these provisions indicates that it is open to the parties to an arbitration agreement to fix the time within which the arbitrator must give award , but it has to be so stated in the agreement itself.
If per chance no time has been specified by the parties in the arbitration agreement.
then by virtue of operation of section 3 read with cl. 3 of the First Schedule the award must be given within four months of the arbitrator entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the court may allow.
655 Sub section (I) of section 28 is very wide and confers full discretion on the court to enlarge time for making the award at any time.
The discretion under sub section
(I) of section 28 should , however , be exercised judiciously.
Sub section (2) of section 28 also makes it evident that the court alone has the power to extend time.
It further provides that a clause in the arbitration agreement giving the arbitrator power to enlarge time shall be void and of no effect except when all the parties consent to such enlargement.
It is not open to arbitrators at their own pleasure without consent of the parties to the agreement to enlarge time for making the award.
In H.K. Wattal vs V.N. Pandya(1) dealing with section 28(1) of the this Court observed: "There is no doubt that the arbitrator is expected to make his award within four months of his entering on the reference or on his being called upon to act or within such extended time as the court may allow.
Reading clause 3 of the Schedule along with section 28 one finds that the power to enlarge the time is vested in the court and not in the arbitrator.
Clause 3 and section 28(1) exclude by necessary implication the power of the arbitrator to enlarge the time.
This is emphasised by section 28(2) which provides that even when such a provision giving the arbitrator power to enlarge the time is contained in the agreement , that pro vision shall be void and of no effect , The headnote of section 28 brings out the force of this position in law by providing that the power is of the court only to enlarge time for making the award.
Sub section (2) of section 28 , however , indicates one exception to the above rule that the arbitrator cannot enlarge the time , and that is when the parties agree to such an enlargement.
The occasion for the arbitrator to enlarge the time occurs only after he is called upon to proceed with the arbitration or he enters upon the reference.
Hence it is clear that if the parties agree to the enlargement of time after the arbitrator has entered on the reference , the arbitrator has the power to enlarge it in accordance with the mutual agreement or consent of the parties.
That such a consent must be a post reference consent , is also clear from section 28(2) which renders null and void a provision l. ; 656 in the original agreement to that effect.
In a sense where a provision is made in the original agreement that the arbitrator may enlarge the time , such a provision always implies mutual consent for enlargement but such mutual consent initially expressed in the original agreement does not save the provision from being void.
It is , therefore, clear that the arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after entering on then arbitration the parties to the arbitration agreement consent to such enlargement of time.
The next question that crops up for consideration is what will be the effect if a party to the arbitration took part in the proceedings before the arbitrator even after the expiry of four months , that is , the period prescribed for giving the award.
Some High Courts have taken the view that in such a situation the condition of four months period will be deemed to have been waived.
Such a view has been taken by the Allahabad High Court in Shambhu Nath vs Surja Devi.(1) A learned Single Judge of that High Court observed: "A party to an arbitration agreement who voluntarily takes part in the arbitration proceedings after the expiry of four months will be deem , d to have waived the implied condition as to time." A similar view has been taken by the Madhya Pradesh High Court in Shivlal vs Union of India(2).
In Ganesh Chandra vs Artatrana(3) a single Judge of the Orissa High Court observed: "If the parties , after the expiry of four months, submit themselves to the jurisdiction of the arbitrators and take part in the proceedings enabling them to pass an award , it cannot be said that the arbitrators acted without jurisdiction.
In such a contingency , the principle of waiver and estoppel would have full application.
Once we hold that the law precludes parties from extending time after the matter has been referred to the arbitrator , it will be (1) AIR 1961 All. 180.
(2) AIR 1975 M.P. 40.
(3) AIR 1965 Orissa 17.
657 contradiction in terms to hold that the same result can be brought about by the conduct of the parties.
The age long established principle is that there can be no estoppel against a statute.
It is true that the time to be fixed for making the award was initially one of agreement between the parties but it does not follow that in the face of a clear prohibition by law that the time fixed under cl. 3 of the Schedule can only be extended by the court and not by the 1 parties at any stage , it still remains a matter of agreement and the rule of estoppel operates.
It need be hardly emphasized that the Act has injuncted the arbitrator to give an award within the prescribed period of four months unless the same is extended by the court.
The arbitrator has no jurisdiction to make an award after the fixed time.
If the award made beyond the time is invalid the parties are not estopped by their conduct from challenging the award on the ground that it was made beyond time merely because of their having participated in the proceedings before the arbitrator after the expiry of the prescribed period.
The policy of law seems to be that the arbitration proceedings should not be unduly prolonged.
The arbitrator therefore has to give the award within the time prescribed or such extended time as the court concerned may in its discretion extend and the court along has been given the power to extend time for giving the award.
As II observed earlier , the court has got the power to extend time even after the award has been given or after the expiry of the period prescribed for the award.
But the court has to exercise its discretion in a judicial manner.
The High Court in our opinion was justified in taking the view that it did.
This power , however , can be exercised even by the appellate court.
The present appeal has remained pending in this Court since 1970.
No useful purpose will be served in remanding the case to the trial court for deciding whether the time should be enlarged in the circumstances of this case.
In view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator without a demur, this will be a fit case , in our opinion , for the extension of time.
We accordingly extend the time for giving the award and the award will be deemed to have been given in time.
The other questions involved in the case.
however , have not been dealt with by the High Court and it rest content by making a 658 bald observation that there is no other point to be decided in this appeal.
The objector respondent had raised a number of pleas fore challenge the award giving rise to four issues.
It was , therefore , obligatory for the High Court to consider those points unless they had been given up by the objector respondent.
There is nothing on the record to suggest that the respondent had given up those grounds.
The case will , therefore , have to be sent back to the High Court for deciding the other issues involved in this case.
We accordingly allow the appeal in part and set aside that part of the order by which the High Court remanded the case to the trial court for deciding whether time should be extended.
The case is sent back to the High Court for deciding other issues involved.
In the circumstances of the case the parties shall bear their own costs.
A.P.J. Appeal allowed.

dataset_name: IN-Abs

summary:
By a written agreement , the respondent agreed to construct bridges and culverts for State Government.
The agreement contained an arbitration clause , the Arbitrator being the Superannuation intending Engineer.
However , no period was fixed for giving the And .
therefore , the statutory period of four months for giving the award prescribed in clause 3 of the First Schedule to the was applicable.
A dispute arose between the parties.
The respondent sent a notice to the Arbitrator requesting him to accept his claim and give his award.
The respondent claimed compensation on two counts , namely , (I) that the Sub Divisional Officer got certain bridges demolished which had been construed strictly in terms of the agreement , and (2) that the respondent had also been directed to stop the work.
The Arbitrator gave his award against the respondent after the expiry of the prescribed period , the respondent having participated period , in the proceedings before the Arbitrator even after the expiry of the statutory period.
The respondent challenged the award but the trial Court overruled the objection and upheld the award.
On appeal to the High Court , a Single Judge referred two points for decision by a Division Bench , (l) Whether the award given after the expiry of the prescribed period without extension of time by the Court was invalid ? and (2) Whether the participation in the arbitration proceedings even after the 650 expiry of the period of limitation prescribed would by necessary implication amount to extending the time under section 28 of the by the Court ? The Division Bench allowed the objection of the respondent regarding delay in giving the award , holding that a party to an arbitration agreement is not estopped from challenging the 'award of the ground of delay merely because it had participated in the arbitration proceedings even after the expiry of the prescribed period without any demur , that mere dismissal of the objection regarding delay in the award does not amount an extension of time by the Court under section 28 (l) of the , and that time can be extended by the court by the exercise of sound judicial discretion.
The appeal was allowed and the case remanded to the trial Court for deciding whether it was a fit case for condoning the delay in giving the award by the Arbitrator.
Allowing the Appeal of the State in part, ^ HELD: l.
The provisions of sections 3 and 28 (1) and (2) and clause 3 of First Schedule to the Act indicate that it is open to the parties to an arbitration agreement to fix the time within which the Arbitrator must give his award, but it has to be so stated in the agreement itself.
If per chance no time has been specified by the parties in the arbitration agreement , then by virtue of operation of s.3 with read clause 3 of the First Schedule the award must be given within four months of the arbitrator entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow.
[654A B] 2.
Sub section (t) of s.28 is very wide and confers full discretion on the Court to enlarge time for the award at any time , which should , however , be exercised judiciously.
Sub section (2) of section 28 makes it evident that the Court alone has the power to extend time.
It further provides that a clause in the arbitration agreement giving the Arbitrator power to enlarge time shall be void and of no effect except when all the parties consent to such enlargement.
It is not open to Arbitrators at their own pleasure without the consent of parties to the agreement to enlarge the for making the award.[655 A B] H.K Wattal v V.N. Pandya ; , followed.
3 Once the law precedes parties from extending time after the matter has been referred to the Arbitrator , it will be contradiction to hold that the same result can be brought about by the conduct of the parties.
There can be no estoppel against a statute.
The time to be fixed for making the award was initially one of agreement between the parties but it does not follow , that in the face of a clear prohibition by law that the time fixed under clause 3 of the said Schedule can only be extended by the Court and not b y the parties at any stage.
It still remains a matter of agreement and the rule of estoppel operates.
The Act has injuncted the Arbitrator to give an award with in the prescribed 651 period of four months unless the same is extended by the Court.
The Arbitrator has no jurisdiction to make an award after the fixed time.
If the award made beyond the time is invalid the parties are not estopped by their conduct from challenging the award on the ground that it was made beyond time merely because of their having participated in the proceedings before the Arbitrator after the expiry of the prescribed period.
[656H; 657 A C] Shambbu Nath v Surja Devi , AIR 1961 All. 180; Shivlal vs Union of India AIR 1975 M.P.40; and Ganesh Chandra vs Artatrana AIR 1965 Orissa 17 over ruled.
The policy of law seems to be that the arbitration proceedings should not be unduly prolonged.
The Arbitrator, therefore , has to give the award within time prescribed or such extended time as the , Court concerned may in its discretion extend and the Court alone has been given the power to extend time for giving the award.
The Court has got the power to extended time even after the award has been given or after the expiry of the period prescribed for the award.
But the Court has to exercise its discretion in a judicial manner.
In the instant case , the High Court was justified in taking the view that it did.
This power can be exercised even by the appellants court.
In view of the policy of law and in view of the fact that the parties have been taking willing part in the proceedings before the Arbitrator without a demur , this will be a fit case for the extension of time.
the time for giving the award is extended and the award will be deemed to have been given in time The case is however , remanded to the High Court for decision on the other issued involved.
[657 E G; 658]


judgement:
CTION: Criminal Appeal No. 152 Of 1975.
From the Judgment and Order dated 26.8.1974 of the Delhi High Court in Criminal Revision No. 228 of 1973.
Ram Jethmalani and N. H. Hingorani for the Appellant.
M.S. Gujaral, G.D.Gupta and R.N. Poddar for the Respondent .
The Judgment of the Court was delivered by SEN , J.
While we strongly deprecate the conduct of the appellant in altering the affidavit sworn by him at Dares Salaan on July 5 , 1966 countersigned by the Third Secretary.
High Commission for India , Tanzania by substituting in ink the word 'permanently ' for the words 'for three years ' for securing customs clearance for his Mercedes Benz 200 Saloon Car , Model 1965 , bearing registration No , KGA 111 which he had brought along with him in July 1966 as part of his personal baggage , free of duty , under the international convention known as Carnet De Passage Tripe trique , under which 776 he could retain the car only for a maximum period of one year , which may prima facie make out a case for framing of a charge under s.420 read with s.511 of the Indian Penal Code , 1860 , we do feel that no useful purpose would be served by subjecting the appellant to another prosecution punishable under s.420 read with s.511 of the Code after a lapse of nearly 20 years.
There can be no doubt that the appellant was guilty of impropriety by scoring out the words 'for three years ' and substituting in ink the word 'permanently ' but the appellant was candid enough to admit that he had done so under the reasonable belief that he could utilize the unused affidavit that he had sworn at Dar es Salaan for the aforesaid purpose of getting customs clearance.
But the fact remains that the Chief Controller of Imports and sports refused to grant the request as a result of which the appellant expatriated the said Mercedes Benz car out of India within the prescribed period of one year as prescribed under the Tripe trique convention.
Prior to 1) 1966 , the appellant was a British citizen of Indian origin having extensive business interests at Mombasa in Tanzania and several other countries of the world He had a family holding in Messrs Atul Drug House Limited , Bombay and came on a temporary visit for a period of three years to survey the business situation and to make a decision about his future stay in the country.
After his arrival in India , he was on July , 1966 appointed a Managing Director thereof.
Apparently he found that his involvement in Messrs Atul Drug House Limited as a Managing Director required his presence in India for quite some time and accordingly applied to the Joint Chief Controller of Imports and Exports for the issue of an import license to keep the said car for more than one year.
That request of his was turned down by the Chief Controller of Imports and Exports on the ground that he had not come to India for permanent settlement.
Thereafter , the appellant intimated the Chief Controller that he had reconsidered his decision and decided to stay in India permanently.
The Chief Controller had required the appellant to submit amongst other documents an affidavit countersigned either by the High Commission for India in Tanzania or the Indian Embassy at Nairobi in Kenya or a Notary Public.
Undoubtedly , the appellant committed a foolish act by substituting in ink the word 'permanently ' for the words 'for three years ' in the affidavit submitted by him presumably because he 777 thought that he would be required to go back to Tanzania to swear such an affidavit which was just a mere formality.
The appellant could as well have sworn an affidavit before a notary public at Bombay and submitted it along with his application for customs clearance.
The appellant for this act of indiscretion has already n suffered a prosecution launched by the Central Bureau of Investigation in the Court of the Additional Chief Presidency Magistrate , Bombay for commission of an alleged offence punishable under section 420 of the Indian Penal Code.
The aforesaid affidavit which he had furnished to the Chief Controller of Imports .
Exports was a document filed by the prosecution in that case and put in evidence to substantiate the charge that he made a false declaration before the Assistant Collector of Customs , Bombay that he was a tourist and had come to Bombay to stay for a period of six months and thereby the Assistant Collector was misled by the declaration so made although the appellant knew full well that he had sworn an affidavit before the Third Secretary , High Commission for India at Dar es Salaam that he was taking up an appointment as a Director of Messrs Atul Drug House Limited and it would therefore necessitate him to remain in India for a period of three years at least.
The prosecution further alleged that he made a representation to the Chief Controller of Imports & Exports , New Delhi to issue him a customs clearance and when he was asked to produce affidavit in support of his claim , he scored out the words 'for three years ' from the said affidavit and added in ink the word 'permanently ' which amounted to forgery for which a case was pending in the Delhi Court.
The appellant pleaded his innocence and denied the commission of the alleged offence.
His plea in defence was one of false implication.
He stated that the prosecution had been launched by the Central Bureau of Investigation in 1969 i.e. long after the Mercedes Benz car had been exported out of India before July 29 , 1967 i.e. the period of one year allowed under the tripe trique regulation , at the instigation of his business rival Shah , the other Managing Director.
After a trial the learned Additional Chief Presidency Magistrate by his judgment dated April 7 , 1973 acquitted thereupon dent holding that the prosecution had failed to establish the charge under section 420 of the Indian Penal Code beyond all reasonable doubt 778 He further held that the dispute between the two groups viz. the Shah family on the one hand and the Chanderia and Khimsia families on the other , to gain control over the management of Messrs Atul Drug House Limited arose in 1968 and that the appellant was falsely implicated at the instigation of shah , the other Managing Director , who was on friendly terms with Wagh , Director of Enforcement.
The Delhi Special Police Establishment had in the meanwhile filed a challan against the appellant in the Court of the Judicial Magistrate (First Class , Delhi on February 10 , 1971 for commission of an alleged offence punishable under section 420 and 471 read with section 467 of the Indian Penal Code.
By his order dated May 14 , 1973 , upon all inquiry under section 207 A(4) of the Code of Criminal Procedure , 1893 the Judicial Magistrate (First Class) , Delhi being of the view that the aforesaid affidavit was a valuable security , framed charges against the appellant under section 420 , 467 and 471 read with section 467 of the Indian Penal Code directing him to stand his trial in a Court of Sessions.
In revision , the Additional Sessions Judge , Delhi by his order dated May 22 , 1973 made a reference under section 438 of the Code for quashing of the charge under sections 467 and 471 read with section 467 of the Indian Penal Code taking a contrary view.
Accepting the reference , a learned Single Judge of the Delhi High Court by his order dated August 26. 1974 set aside the order of committal passed by the learned Judicial Magistrate and quashed the charge framed against the appellant under sections 467 and 471 read with section 467 of the Indian Penal Code and remanded the case to the Metropolitan Magistrate , Delhi with the direction that he should proceed to try the appellant for commission of an alleged offence punishable under section 420 read with section 5 11 of the Indian Penal Code.
Learned counsel for the appellant with his usual fairness frankly concedes that the plea of autrefois acquit under section 403 of the Code or the rule against double jeopardy guaranteed under article 20(2) of the Constitution are not available to the appellant since the offenses are not substantially the same but separate and distinct.
He however contends that the substitution in ink of the word 'permanently ' for the words 'for three years ' in the affidavit was an honest but a foolish act and therefore no useful purpose would be served in 779 directing another prosecution of the appellant for an alleged offence punishable under section 420 read with section 511 of the Indian Penal Code , The contention must , in our opinion , be accepted.
Although we commenced the order by observing that the act of the appellant in altering the affidavit may prima facie make out a case for framing of a charge under s 420 read with section 511 of the R Indian Penal Code , he has come forward with a explanation namely that he was under an honest belief that he could utilize the unused affidavit lying with him and it cannot be said that the explanations so offered was not a reasonable explanation.
If that be so , the act complained of may or may not amount to an offence punishable under section 420 read with s 5ll of the Indian Penal Code , 1860.
It would not subserve the interests of justice when admittedly the Chief Controller of Imports and Exports was not cheated , nor was there an attempt to cheat him This is amply borne out by the fast that the Mercedes Benz car brought by the appellant , free of duty , under the Tripe trique convention was repatriated by him out of India before July 29 , 1967 i.e. within the period of one year prescribed thereunder.
For aught we know , the appellant did not have any dishonest intention.
In the facts and circumstances of the case , we do not think that it would be expedient , in the interests of justice to maintain the order of the learned Single Judge by which he has remained the case to the Metropolitan Magistrate , Delhi with the direction that he should proceed to try the appellant for commission of an alleged offence punishable under section 420 read with section 511 of the Indian Penal Code.
The adoption of such a course after a lapse of nearly 20 years would not only entail a fresh trial but subject the appellant to undue harassment and ultimately may result in an acquittal.
In the result , the appeal succeeds and is allowed.
The order passed by the High Court is set aside and the proceedings now pending before the Metropolitan Magistrate , Delhi are quashed.
A.P.J. Appeal allowed.

summary:
The appellant who was a British citizen of Indian origin , came on a temporary visit to India for a period of three years in July 1966 as he had a family holding in Messrs Atul Drug House Limited , to survey the business situation and to make a decision for his future stay in the country.
Along with him he brought a Mercedes Benz car as part of his personal baggage , free of duty , under the Tripe trique convention under which he was entitled to retain the car for a maximum period of one year.
After his arrival in India he was appointed as Managing Director of the Company and this required his presence in the country for quite some time and therefore the appellant applied to the Joint Chief Controller of Imparts & Exports for the issue of an import license to keep the said car for more then one year , but that application of his was rejected by the Chief Controller on the ground that he had not come to India for permanent settlement , On the appellant informing the Chief Controller that he had reconsidered his decision and decided to stay in India permanently , the Chief Controller required him to submit amongst other documents an affidavit counter signed either by the High `Commission for India in Tanzania or the Indian Embassy at Nairobi in Kenya or a Notary Public.
It appears that the appellant before his arrival in India had with him an affidavit sworn before the Third Security , High Commission for India at Dar es Salaam stating that he was taking up appointment as a Director of Messrs Atul Drug house Limited and it would therefore necessitate his presence in India for a period of three years at least.
When the Chief Controller asked the appellant to produce an affidavit along with the application for grant of an import license , what he did was to score out the words 'for three years ' and 774 added in ink the word 'permanently '.
The Chief Controller rejected the application on the ground that the affidavit submitted by him was a forged document.
Admittedly , the Mercedes Benz car had been repatriated out of India by the appellant within the period provided under the Tripe trique convention.
The appellant was prosecuted by the Central Bureau of Investigation in the Court of the Additional Chief.
Presidency Magistrate , Bombay for commission of an alleged offense punishable under section 420 of the Indian Penal Code , on the allegation that he had made a false declaration before the Assistant Collector of Customs , Bombay that he was a tourist and had come to Bombay to stay for a period of six months knowing full well that he had sworn an affidavit before the Third Secretary , High Commission for India at Dar es Salaam that he would remain in India for a period of three years.
The aforesaid affidavit was put in evidence by the prosecution.
The Customs authorities led no evidence in support of the charge.
The learned Chief Presidency Magistrate after a trial lasting over four years acquitted the appellant on the ground that the prosecution had failed to establish the charge beyond all reasonable doubt.
He further held that the appellant was falsely implicated at the instance of one Shah , the other Managing Director , in a struggle to gain control over the Company.
The Delhi Special Police Establishment had in the meanwhile filed a challan against the appellant in the Court of the Judicial Magistrate (First Class) , Delhi on February 10 , 1971 for commission of an alleged offense punishable under sections 420 and 471 read with s.467 of the Indian Penal Code.
The learned Magistrate framed charges against the appellant under ss.420 , 467 and 471 read with s.467 of the Indian penal Code directing him to stand trial in a Court of Sessions.
The learned Single Judge of the Delhi High Court however on a reference by the Additional Sessions Judge , Delhi under s.438 of the Code of Criminal Procedure , 1898 quashed the charge farmed against the appellant under ss.467 and 471 read with s.467 of the Indian Penal Code and remanded the case to the Metropolitan Magistrate , Delhi with the direction that he should proceed to try the appellant for commission of an alleged offense punishable under s 420 read with s.511 of the Indian Penal Code.
Allowing the Appeal.
^ HELD: 1.
In the facts and circumstances of the case , it would be extremely doubtful whether the ingredients of an offense under s.420 read with s.511 of the Indian Penal Code were made out.
The appellant might come forward with an explanation , namely , that he acted an honest belief that he could make use of the unutilized affidavit lying with him and it could not be said that the explanation so offered would not be a reasonable explanation.
[779B D] 2.
In the instant case , there was absence of any dishonest intention or means rea on the part of the appellant when he made use of the affidavit sworn by him before the third Secretary , High Commission for India at Dar es Salaam.
It was foolish on his part to have altered the affidavit by scoring out the words 'for three years ' and to have added in ink the word 'permanently ' , 775 The appellant could as well have got an affidavit sworn before the Notary Public at Bombay and forwarded it along with his application for grant of an import licence.
Admittedly , the Chief Controller of Imports & Exports was not cheated nor was there any attempt to cheat him.
The Mercedes Benz car brought by the appellant , free of duty , was repatriated by him out of India within the prescribed period of one year.
[776H; 777A; 779 E] 3.
Although the rule against double jeopardy guaranteed under article 20(2) U of the Constitution or the plea autrefois acquit under s.403 of the Code of Criminal Procedure 1898 are not available to the appellant since the alleged offenses were not substantial the same but were separate all distinct , it would not subserve the interests of justice to direct the prosecution of the appellant over again before the Metropolitan Magistrate , Delhi for an act of indiscretion in substituting the word 'permanently ' for the words 'for three years ' in the affidavit which the circumstances suggest was an honest but a foolish act , particularly when he had been acquitted of a somewhat similar charge by the Additional Chief Presidency Magistrate , Bombay wherein the affidavit was relied upon by the prosecution as a piece of evidence to substantiate the charge that he made a false declaration before the Assistant Collector of Customs , Bombay.
The adoption of such a course after a lapse of nearly 20 years would not only entail a fresh trial but subject the appellant to undue harassment and ultimately may result in an acquittal.
[778G H; 779E F]


judgement:
Civil Appeal No. 1499 of 1985.
From the Judgment and order dated 18.9.84 of the High Court of Himachal Pradesh in C.W.P. No. 155/84.
K. Parasaran , Attorney General.
A. K. Ganguli and A.K Chakravorty , for the Appellant.
The Judgment of the Court was delivered by BHAGWATI , J.
This appeal by special leave is directed against 679 two orders made by a division Bench of the High Court of Himachal Pradesh , one dated 24th July , 1984 and the other dated 18 September 1984 , in so far as they direct the Chief Secretary to the Government of Himachal Pradesh to file an affidavit setting out what action has been taken by the State Government towards implementation of the recommendation contained in paragraph 16 of the Report of the Anti Ragging Committee.
The impugned orders are in our opinion wholly unsustainable and ordinarily we would not have taken time to deliver a reasoned judgment and merely set aside the impugned orders with a brief observation, but we think it necessary to state in some detail our opinion in regard to the directions given in the impugned orders , because we find that this is one of those few cases which demonstrates what we have often said before that public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the legislature.
D It appears that the Chief Justice of the High Court received a letter dated 4th April , 1984 , from the guardian of a student of the Medical College in Shimla complaining about the ragging of freshers by senior students within as also outside the college campus and the hostel.
The guardian of the student had annexed along with his letter to the Chief Justice a letter dated 25th March, 1984 received by him from his son.
The Division Bench of the High Court presided over by the Chief Justice treated these two letters as constituting the Memo of Writ Petition but directed that these two letters should not be placed on the record of the proceedings in view of the request made in paragraph 6 of the letter of the guardian that the identity of the writer should not be disclosed on account of fear of reprisal and for the self same reason the Division Bench ordered that the identity of the student and the guardian should not be disclosed in the proceedings.
The Division Bench treating the two letters as a writ petition registered them as Civil Writ Petition No. 155 of 1984 and issued notice to the State Government , the Principal of the Medical College Simla , the Himachal Pradesh University and the Director of Health Services , Government of Himachal Pradesh who were arrayed as respondents Nos. 1 to 4.
On receipt of the notice of the Writ Petition , the Government of Himachal Pradesh filed an affidavit setting out the steps which the H 680 State Government and the college authorities had taken to check the ragging of freshers by senior students.
The Director of Medical Education cum Principal of the Medical College , Simla also filed an affidavit opposing the admission of the Writ Petition on the ground that the college authorities had taken various steps for the purpose of curbing the evil of ragging and in fact had taken action On at least two occasions awarding punishment to the students who indulged in ragging by suspending them for a period of 4 to 6 months , The Division Bench , on a consideration of this material placed before it , came to the conclusion that the practice of ragging was prevailing in the Medical College , Simla on a noticeable scale and that ragging took the form of subjecting freshers including female students to inhuman and humiliating treatment degenerating even into physical violence and that the college authorities had not been able to effectively control ragging with the result that the college administration had lost confidence of a sizeable section of student , parents and well wishers as regards its capacity to deal with the problem of ragging.
The Division Bench accordingly gave various directions which included a direction to the State Government to constitute a committee consisting of the Vice Chancellor of the Himachal Pradesh University and the Secretary to the Government , Health Department , interalia , to make "recommendations in regard to the curative, preventive and punitive measures to be adopted by the college authorities to control and curb the evil of ragging and the machinery to be set up to enforce these measures.
" This Committee which we shall for the sake of convenience refer to as the Anti Ragging Committee , was to complete its work and submit its report within a period of six months from the date of its constitution.
The Anti Ragging Committee submitted its Report to the High Court on 26th June , 1984.
The Report contained various recommendations intended to control and curb the ragging of freshers by senior students in the Medical College and its hostel.
We are concerned here with only one recommendation namely that contained in paragraph 16 of the Report which was in the following terms: "In quite a number of States in the country there are Acts on ragging which make ragging a cognizable offence 681 and prescribe the types of punishment commensurate with the crimes committed.
The Himachal Pradesh Government could be suggested to initiate such a legislation as early as possible.
Pending such a legislation by the State Government, the University authorities could think of incorporating some provisions relating to ragging in the relevant ordinance of Discipline in the Ordinance of the University.
The Division Bench by its order dated 24th July, 1984 gave directions for implementation of the various recommendations made in the Report and so far as recommendation contained in paragraph 16 of the Report was concerned, the Division Bench said: "The Chief Secretary to the State Government will file an affidavit within a period of 3 months from the date of receipt of the writ setting out the action proposed to be taken on the recommendation contained in paragraph 16 (First Part) of the relevant portion of the Report." Though this direction ostensibly did no more than call upon the Chief Secretary to inform the Court as to what action the State Government proposed to take on the recommendations to initiate legislation for curbing ragging, it was, in fact and substance, intended to require the State Government to Initiate legislation on the subject.
If this direction were merely an innocuous one intended to inform the court whether the State Government intended to take any action on the recommendation to initiate legislation against ragging, no objection could possibly be taken against it, because it would leave the Government free to decide whether or not to initiate legislation in regard to ragging without mandatorily requiring the State Government to do so But as the subsequent event would show, what the Division Bench intended to achieve by giving this direction was not just to obtain information as to what the State Government proposed to do in the matter but to actually require the State Government to initiate legislation against ragging.
That is why, when the Chief Secretary in deference to this direction filed an affidavit stating, inter alia, that the State Government had "taken notice of the recommendation to initiate legislation in this behalf, if found necessary and so advised", the Division Bench was not satisfied with this statement of the Chief Secretary and declined to close the proceeding so far as this particular aspect was concerned and proceeded, inter alia, to reiterate in its order dated 1 8th September 1984: 682 "The Chief Secretary to the State Government will file an affidavit within a period of 6 weeks from the date of receipt of the Writ setting out the further action taken in the direction of the implementation of the recommendation contained in paragraph 16 (First Part) of the relevant portion of the Report of the Anti Ragging Committee.
" When this direction was given by the Division Bench, it clearly implied that what the Division Bench wanted the State Government to do was to initiate legislation against ragging and for this purpose, time of 6 weeks was granted to the State Government The State Government thereupon preferred the present appeal with special leave obtained from this Court.
We may point out, even at the cost of repetition, that the direction given by the Division Bench in its order dated 24th July 1984 and reiterated in its order dated 18th September 1984 was not an innocuous direction issued merely for the purpose, of informing the Court as to what the State Governing proposed to do in regard to the recommendation in paragraph 16 of the Report to initiate legislation against ragging.
The Division Bench would have been certainly justified in enquiring from the Chief Secretary as to what action the State Government proposed to take in regard to the recommendation of the Anti Ragging Committee to initiate legislation on the subject of ragging.
Such enquiry could have been legitimately made by the Division Bench for the purpose of obtaining information on a matter which the Division Bench regarded, and in our opinion rightly, as necessary for eradicating the evil practice of ragging which is not only subversive of human dignity but also prejudicially affects the interests of the students and the discipline in the Campus and no exception could have been taken to it because it would have left the State Government free to decide whether or not to initiate any legislation on the subject and not mandatorily required the State Government to initiate any such legislation.
If such only were the purpose of the direction issued by the Division Bench and the Division Bench did not intend anything more, the Division Bench would have closed the proceedings when the Chief Secretary intimated in his affidavit that the State Government would initiate legislation in this behalf "if found necessary and so advised".
But despite this statement made by 683 the Chief Secretary on behalf of the State Government, the Division Bench persisted in reiterating its direction that the Chief Secretary should file an affidavit within a further period of 6 weeks setting out the further action taken by the State Government in the direction of implementation of the recommendation contained in paragraph 16 of the Report.
This persistence in reiterating the direction to file an affidavit setting out the action taken by the State Government towards implementation of the recommendation to initiate legislation against ragging, clearly shows that what the Division Bench intended was not merely to obtain information as to what action the State Government proposed to take but to obligate the State Government to take action by way of initiation of legislation against ragging.
The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction.
This the Division Bench was clearly not entitled to do.
It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation.
Of course, any member of the legislature can also introduce legislation but the court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever necessary or desirable the Court may consider it to be.
That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution.
If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court can certainly require the executive to carry out such duty and this is precisely what the Court does when it entertains public interest litigation.
Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the under privileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the Court certainly can and must 684 intervene and compel the Executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economic rights.
When the Court passes any orders in public interest litigation, the Court does so not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the Constitution and the law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large numbers of half clad, half hungry people of this country.
That is a feeling which should never be allowed to grow.
But at the same time the Court cannot group the function assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature We are, therefore of the vie that the Division Bench was clearly in error in issuing a direction to the Chief Secretary to file an affidavit within 6 weeks setting out the action taken by the State Government with a view to implementing the recommendation contained in paragraph 16 of the Report.
There is also one other error into which the Division Bench of the High Court seems to have fallen.
The Division Bench of the High Court treated the letter of the guardian of the student along with the letter addressed to the guardian by the student as constituting a memo of Writ Petition.
This was certainly within the jurisdiction of the High Court to do, since it is now settled law that this Court under Article 32 of the Constitution and the High Courts under Article 226 of the Constitution can treat a letter as a Writ Petition and take action upon it.
We may of course make it clear that it is not every letter which may be treated as a Writ Petition by the Supreme Court or the High Court.
It is only there a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or sociallity 685 or economically disadvantaged position find it difficult to approach the court for redress that the Supreme Court or the High Court would be justified, nay bound, to treat the letter as a Writ Petition.
There may also be cases where even letter addressed for redressal of a wrong done to an individual may be treated as a Writ Petition where the Supreme Court or the High Court considers it expedient to do so in the interests of justice.
This is an innovative strategy which has been evolved by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity and it is a powerful tool in the hands of public spirited individuals and social action groups for combating exploitation and injustice and securing for the under privileged segments of society their social and economic entitlements.
It is a highly effective weapon in the Armour of the law for reaching social justice.
: to the common man.
The Division Bench was, therefore, certainly right in entertaining the two letters as a Writ Petition and no exception can be taken to it, but it was wholly in error in directing that these two letters on which the Division Bench acted should not be placed on the record of the proceedings and the identity of the guardian and the student should not be disclosed It is difficult to see how any proceedings can be entertained by the Court keeping the petitioner before it anonymous or his identity secret.
If the identity of the petitioner is not disclosed, how would the respondent against whom relief is sought ever he able to verify the authenticity of the petitioner and the credibility of the case brought by him.
It would be contrary to all canons of fair play and violative of all principles of judicial propriety and administration to entertain a Writ Petition without disclosing the identity of the petitioner, though the court knows who the petitioner is.
We are, therefore, of the opinion that the procedure adopted by the Division Bench was wrong and the Division Bench was not justified in directing that the two letters on which action was initiated by the Division Bench should not be kept in the record of the proceedings and that the identity of the guardian and the student should not be disclosed.
We accordingly allow the appeal and set aside the orders dated 24th July, 1984 and 18th September, 1984 in so far as they direct the Chief Secretary to file an affidavit setting out the action taken by the State Government in implementing the recommendation contained in paragraph 16 of the Report of the Anti ragging Committee.
There will be no order as to costs of the appeal.
N.V.K. Appeal allowed.

summary:
The Chief Justice of the High Court received a letter from the guardian of a student of the Medical College in Simla complaining about the ragging of freshers by senior students within as also outside the college campus and the hostel.
The guardian of the student had annexed along with the said letter to the Chief Justice , a letter received by him from his son.
The Division Bench of the High Court presided over by the Chief Justice treated these two letters as constituting the Memo of Writ Petition , but directed that these two letters should not be placed on the record of the proceeding in view of the request made by the guardian that the identity of the writer should not be disclosed in the proceedings.
The Division Bench registered the two letters as a Writ Petition , and issued notice to the State Government, and the Principal of the Medical College.
After bearing the respondents the Division Bench came to the conclusion that the practice of ragging was prevalent in the Medical College on a noticeable scale and that ragging took the form of subjecting freshers including female students to inhuman and humiliating treatment degenerating even into physical violence 677 and that the college authorities had not been able to effectively control such ragging.
It gave various directions which included a direction to the State Government to constitute a Committee Anti Ragging Committee to go into the question and make recommendations in regard to the curative , preventive and punitive measures to be adopted by the college authorities to control and curb the evil of ragging.
Anti Ragging Committee recommended that the State Government could initiate legislation which makes ragging a cognizable offence an l prescribe punishment commensurate with the crimes committed.
When the matter was taken up again for hearing the Division Bench directed the State Government to file an affidavit indicating the action taken on the Report.
An affidavit to the effect that the State Government had 'taken notice of the recommendations to initiate legislation this behalf if found necessary and so advised," was filed on behalf of the State Government.
The Division Bench further directed the State Government to initiate legislation against ragging and for this purpose granted the State Government 6 weeks ' time.
In the appeal by the State , to this Court it was contended that the Court could not give directions to the State Government to initiate legislation on ragging Allowing the Appeal.
^ HELD.
The Division Bench was clearly in error in issuing a direction to the Chief Secretary to file an affidavit within 6 weeks setting out the action taken by the State Government with a view to implementing the Committee 's recommendation.
[684] 2.
The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging.
[683C] 3.
It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation.
But the Court certainly cannot mandate the executive or any member of the legislature to initiate legislation , howsoever necessary or desirable the Court may consider it to be.
That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution.
[683E F] 4.
If the executive is not carrying out any duty laid upon it by the Constitution or the law , the Court can certainly require the executive to carry out such duty and this is precisely that the Court does when it entertains public interest litigation.
[683F] 678 section When the Court passes any orders in public interest litigation , the Court does so not with a view to mocking at legislative or exhaustive authority or in a spirit of confrontation but with a view to enforcing the Constitution and the law , because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the Constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large number of half clad half hungry people of this country.
[684B C] 6.
It is now settled law that this Court under Article 32 , and the High Courts under Article 226 , can treat a letter as a Writ Petition and take action upon it.
It is not every letter which may be treated as a Writ Petition by the Supreme Court or the High Court.
It is on , y where a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a persons who by reason of poverty , disability or socially or economically disadvantaged position find it difficult to approach the court for redress that the Supreme Court or the High Court would be justified , nay bound , to treat the letter as a Writ Petition.
There may also be cases where even a letter addressed for redressal of a wrong done to an individual may be treated as a Writ Petition where the Supreme Court or the High Court considers it expedient to do so in interests of justice.
This is an innovative strategy which has been evolved by the Supreme Court.
It is a highly effective weapon in the armoury of the law for reaching social justice to the common man.
[684G H; 685A C] 7.
The Division Bench was , certainly right in entertaining the two letters as a Writ Petition , but it was wholly in error in directing that these two letters on which the Division Bench acted should not be placed on the record of the proceedings and the identity of the guardian and the student should not be , disclosed.
It would be contrary to all canons of fair play and violative of all principles of judicial propriety and administration to entertain a Writ Petition without disclosing the identity of the petitioner, though the court , knows who the petitioner is.
[685D F]