judgement:
ivil Appeal (C) No. 137 of 1991.
From the Judgment and Order dated 20.2.1989 of the Allahabad High Court in W.P. No. 3096 of 1980.
Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.
R.B. Datar, R.K. Khanna and Surya Kant for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
This appeal is directed against the judgment of the Allahabad High Court (Lucknow Bench) setting aside the order dated 23.9.1980 terminating the respondent 's services.
The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating the respondent 's services, who was admittedly an ad hoc and temporary employee is vitiated in law.
The High Court has held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
It further held that since the order of termination was founded on an adverse entry awarded to the respondent his character roll without giving him any opportunity on the ground that he was not suitable, the order "cannot be said to be a decision given in good faith.
" The High Court further observed: "Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any." On these findings the High Court held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent 's writ petition and quashed the order of termination.
The factual matrix of the case is in a short compass.
The respon 32 dent, was appointed on ad hoc basis on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examinater of the State of Uttar Pradesh, for a fixed period ending on 31.8.1977.
In December, 1977 the respondent was again appointed on ad hoc basis for a period ending on 28.2.1978.
Since the regular appointment could not be made in time, the respondent 's services were extended from time to time.
The last extension was granted on 21.1.1980 and the extended period of service was to expire on 28.2.1981.
The terms and conditions of respondent 's service as contained in the order of appointment stated that the appointment was ad hoc, purely temporary for the term fixed in the order and his services were liable to be terminated at any time without assigning any reason.
He was awarded an adverse entry in his character roll for the year 1977 78.
The entry stated that the respondent 's work was poor and he should work hard and take interest in the work.
The respondent made representation against the entry but the same was rejected.
The respondent and Rajendra Prasad Pandey another Sub Auditor both were deputed to audit the accounts of Raja Raghunbar Dayal Inter College, Sitapur for the year 1979 80.
While carrying on the Audit the respondent and Rajendra Prasad Pandey both are alleged to have acted in excess of their authority in auditing the "Boys Fund Accounts" of that College for the year 1978 79 on their own accord without any authority for the same.
They issued audit note under their own signatures and also irregularly demanded a high amount of Rs. 13,250.70 as audit fee and collected an amount of RS.
2,000 as audit fee for which they issued receipts under their own signatures.
On receipt of complaint a preliminary inquiry was held that it was found that the allegations against the respondent and Rajendra Prasad Pandey were correct and both of them had acted beyond their authority and collected a sum of Rs. 2,000 as audit fee for the audit of the Boys Fund Accounts, although the Boys Fund of the Institution did not fall within the purview of audit of the Local Funds Audit and no fee was chargeable for the audit of such Fund.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duties at Allahabad, but the respondent proceeded on leave and did not join his duties at Allahabad.
Ultimately, the respondent 's services were terminated by the order dated 32.9.1980 and on the same day by another order, service of Rajendra Prasad Pandey were also terminated.
Both the aggrieved persons filed writ petitions in the High Court at Lucknow Bench under Article 226 of the Constitution contending that their termination orders were illegal, having been passed in violation of Article 311 of the Constitution.
The writ petition filed by Rajendra prasad pandey was dismissed but the respondent 's writ petition was allowed by a 33 Division Bench of the High Court on the ground as noted earlier.
There is no dispute that the respondent was an ad hoc and temporary employees and the terms and conditions of his employment were regulated by the U.P. Temporary Government Servant (Termination of Services0 Rules, 1975.
The contract of service as contained in the appointment letter also stipulated the terms and conditions of the respondent 's employment that his services were liable to be terminated at any time without assigning any reason or compensation.
In the counter affidavit filed before the High Court the order of termination was defended on the ground that the respondent 's work and conduct were not satisfactory and he was unsuitable for the service, therefore his services were terminated.
To support that contention the appellant placed reliance on the adverse entry awarded to the respondent in the year 1977 78 and also on the allegations made against him with raged to the audit of the Boys Fund of Raja Raghubar Dayal Inter College.
The High Court held that since junior persons to the respondent in service were retained, the order of termination was rendered illegal.
In our opinion, the principle of 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on a count of retrenchment.
In the event of retrenchment the principle of 'last come first go ' is applicable under which senior in service is retained while the junior 's services are terminated.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service.
if out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service.
Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution.
if a junior employees is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service.
if this principle is not accepted there would be discrimination and the order of the termination of a junior employee would be unreasonable and discriminatory.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
34 The High Court held that the termination of respondent 's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate.
it is unfortunate that the High Court has not recorded any reasons for this conclusion.
The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service.
The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable to competent authority to form the requisite opinion regarding the respondents suitability for service.
Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.
If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
A temporary Govt.
Servant has no right to hold the post, his services are liable to be terminated by giving him one month 's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt.
servants.
A temporary Govt.
servant can, however, be dismissed from service by way of punishment.
Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant.
if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the Govt.
servant in accordance with the provisions of article 311 of the Constitution.
since, a temporary Govt.
servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt.
servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment.
It is now sell settled that the form of the order is not conclusive 35 and it is open to the Court to determine the true nature of the order.
in Parshotam Lal Dhingra vs Union of India; , a Constitution Bench of this Court held that the mere use of expressions like 'terminate ' or 'discharge ' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt.
servant is punitive in nature.
The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt.
servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt.
servant is by way of punishment.
It must be borne in mind that a temporary Govt.
servant has no right to hold the post and termination of such a Govt.
servant does not visit him with any evil consequences.
The evil consequences as held in Parshotam Lal Dhingra 's case (supra) do not include the termination of services of a temporary Govt.
servant in accordance with the terms and conditions of service.
The view taken by the Constitution Bench in Dhingra 's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State or Orrisa and anr.
vs Ram Narayan Das; , ; R.C. Lacy vs The State of Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, ; Jagdish Mitter vs The Union of India, ; A.G. Benjamin vs Union of in`ia, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh & Anr.
vs State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, ; Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex parte.
had he been given the opportunity, he would have placed correct facts before the inquiry officer.
His services were terminated on allegation of misconduct founded on the basis of an ex parte enquiry report.
He further referred to the allegations made against the respondent in the counter affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report.
In order to determine this question, it is necessary to consider the nature of the respondent 's right to hold the post and to ascertain the nature and purpose of the inquiry held against 36 him.
As already observed, the respondent being a temporary Govt.
servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him.
The termination order does not indict the respondent for any misconduct.
The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent 's suitablity and continuance in service.
There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent 's services by an innocuous order in accordance with the terms and conditions of his service.
Mere fact that prior to the issue of order of termination, an inquiry against the repondent in regard to the allegations of unauthorised audit of Boys Fund, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent 's services in accordance with the contract of service and the Rules.
In State of Orissa & Anr.
vs Ram Narain Dass, ; a Constitution Bench of this court considered the question and indicated "the fact of the holding of an inquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment in the light of the tests laid down in Purshottam Lal Dhingra 's case." In Jagdish Mitter 's case (supra) a Constitution Bench of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed.
The Court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service.
Before passing order of termination the competent authority may hold inquiry in fairness to ascertain whether the temporary servant should be continued in service or not.
While discussing the nature of preliminary inquiry the Court observed as under: "There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he 37 deserves to be continued in service or not.
If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.
" In Champaklal chiman lal Shah 's case (supra) the appellant therein was a temporary employee of the Union Government.
His services were terminated without assigning any reasons and without affording him opportunity of showing cause.
Before passing the order of termination the competent authority had issued a notice to Champaklal Chimanlal Shah calling upon him to explain certain irregularities and to show cause why disciplinary action should not be taken against him.
In response to the notice, he submitted his explanation thereupon, certain preliminary enquiries were held, but he was not given opportunity to place his case during the preliminary enquiry.
However, after the preliminary enquiry to regular departmental enquiry was held instead proceedings for departmental enqiury were dropped and the services of Chimanlal Shah were terminated in accordance with the terms and conditions of service of a temporary Govt.
servant.
The termination order was assailed on the ground that the order of termination was in substance an order of punishment.
the Constitution Bench held that the order of termination was not an order of punishment and the appellant was not entitled to the protection of Article 311(2) of the Constitution.
The Court emphasised that when a preliminary enquiry is held against a temporary Govt.
employee, it must not be confused with the regular departmental inquiry which usually follows the preliminary inquiry, after the government decides to frame charges and to get a departmental enquiry made, with a view to inflict one of the three major punishments on the Govt.
servant.
So far as the preliminary enquiry is concerned, there is no question of it being governed by Article 311(2) of the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in terms and under the contract of service or the rules applicable to a temporary government servant.
A Govt.
servant has no right to insist for affording him opportunity during such enquiry and such an 38 ex parte enquiry is not initiated in law in view of the purpose and object of preliminary enquiry.
On an elaborate discussion, the Court observed as under: "In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments.
indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in Parshotam Lal Dhingra 's case (supra) and in Shyamlal vs The State of Uttar pradesh; , that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
" The above principles were reiterated by another Constitution Bench of this Court in R.C. Lacy 's case (supra) dealing with the case of reversion of a permanent Govt.
servant officiating on a higher post.
The Bench observed that the Government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of an employee and the same reasoning applies to a public servant who is reverted from a higher post to his substantive lower post, if the higher post was held in a temporary nature.
Before terminating the services of a temporary servant or reverting the person 39 officiating in a higher post to his substantive post, the Govt.
may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating govt.
servant.
Such an inquiry does not change the nature of the order of the termination or reversion.
In A.G. Benjamin 's case (supra) the appellant was temporarily employed as a Store Officer in the Central Tractor Organisation, his services were terminated under the Central Civil Service (Temporary Service) Rules, 1949 by granting him one month 's salary in lieu of notice.
Benjamin contended that the order of termination was in fact an order of punishment, which had been passed without affording him the protection under Article 311(2) of the Constitution.
In that case before the issue of termination order, a notice had been issued to Benjamin for showing cause as to why disciplinary action should not be taken on the allegations made against him in respect of which the charges had been framed and an enquiry officer had been appointed.
After the charges were framed and the explanation of Benjamin was obtained, the Chairman of the Central Tractor Organisation submitted a note to the Government that the departmental proceedings may take much longer time and he was not sure that after going through all the formalities of departmental enquiry Benjamin will be dealt in the way he deserved, therefore, he suggest that action should be taken under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 for terminating his services by giving him one month 's salary in lieu of notice as he was a temporary Govt.
servant.
The Minister concerned accepted the recommendations, whereupon, order of termination was issued terminating the services of Benjamin.
While assailing the order of termination, it was seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent article 311 of the Constitution.
The Constitution Bench repelled the contention and held that the preliminary enquiry held against the Govt.
servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on Benjamin.
The Court held that no temporary Govt.
servant is entitled to opportunity in the preliminary inquiry as "there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not.
" Further the Constitution Bench held that even if formal departmental inquiry is initiated against the temporary Govt.
servant, it is open to the competent authority to drop further proceedings in the departmental enquiry 40 against the temporary govt.
servant and to have recourse to Rules applicable to a temporary Govt.
servant for terminating his services.
The Court observed as under: "If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary govt.
servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule.
In such cases the order of termination of services of the temporary govt.
servant which in form and in substance is no more than his discharge affected under the terms of contract or the relevant rule cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct.
" We have referred to the above decision in detail to dispel any doubt about the correct position of low.
It is erroneous to hold that where a preliminary enquiry into allegations against a temporary govt.
servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature.
Learned counsel for the respondent placed reliance on the decisions of this Court in Nepal Singh vs State of U.P. & Ors.; , and Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; in support of his contention that the termination order is punitive in nature.
In Nepal Singh 's case a disciplinary inquiry was instituted against Nepal Singh who was a temporary sub Inspector of Police, on the charge of having contracted a second marriage during the life time of his first wife without prior permission of the Government in violating of Rule 29 of the U.P. Government Servants ' Conduct Rules, 1956.
Before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary Government servants by giving him one month 's pay in lieu of notice.
nepal Singh unsuccessfully challenged the order of termination before the High Court, but his appeal was allowed by a three Judge Bench of this Court.
This Court quashed the order of termination on three grounds.
Firstly,it held that the order of termination was arbitrary, violative of 41 Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations.
Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub Inspector had been terminated were mere allegations and there was no definite material for terminating his services.
Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution.
The Court further held that the termination order had been passed to circumvent the constitutional provision of article 311(2) of the Constitution.
The facts and circumstances in Nepal Singh 's case were quite different than those in the instant case.
However, Nepal Singh 's case is no authority for the proposition that the services of an ad hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service.
The Court 's observations in Nepal Singh 's case that since the enquiry against nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary govt.
servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case.
It appears that he decisions in the case of Champaklal (supra) and R.C. Lacy (supra) and the principles laid down therein were not brought to the notice of the Bench.
Had those decisions been placed before the Court, the finding that the termination order had been passed to circumvent the provision of article 311(2) merely because departmental inquiry was dropped and the termination order had been passed, may not have been made.
The decision of Nepal Singh 's case in this regard is per incurium.
In Ishwar Chand Jain 's case the order of termination of Probationary Judicial Officer was set aside by this Court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation.
The Court held that some of the material which had been taken into account in adjudging the Judicial Officer 's work and conduct as unsatisfactory was not relevant.
The decision has no relevance to the instant case.
We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case.
On the other hand our view is fully supported by the decision of three Judge Bench of this Court in R.K. Misra vs U.P. State Handloom Corporation, In the instant case the repondent was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution, On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its power under the terms of contract as well as under the relevant rules applicable to a temporary Govt.
servant.
It never intended to dismiss the respondent from service.
Holding of preliminary inquiry does not affect the nature of the termination order.
The allegations made against the respondent contained in the counter affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
The High Court failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner.
We, accordingly, allow the appeal and set aside the order of the High Court and dismiss the respondent 's Writ Petition.
There will be no order as to costs.
Y.Lal Appeal allowed.

summary:
The respondent was appointed on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examiner of State of U.P. on ad hoc temporary basis for the term fixed in the order of his appointment and his services were liable to be terminated at any time without assigning any reason.
After his initial appointment, his services were extended from time to time till 28.2.1981.
He was awarded an adverse entry in his character roll for the year 1977 78 both regarding his conduct as also his work.
The respondent alongwith one Rajendra Prasad Pandey, another Sub Auditor, were deputed to audit the accounts of Raja Raghbar Dayal Inter College, Sitapur in respect of the year 1979 80.
It is alleged that while auditing the account, they acted in excess of their authority in as much as they audited the 'Boys Fund Accounts ', issued audit note and also irregularly demanded and collected Rs. 2,000 as audit fee, and issued receipt under their signature.
On complaint a preliminary enquiry was held and the allegations were found to be correct.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duty at Allahabad.
Whereupon the respondent proceeded on leave and did not join his duty at Allahabad.
The respondent 's services were therefore terminated by order dated 23.9.1980 and by another order services of Pandey were also terminated.
Both of them filed writ petitions in the High Court contending that their termination orders were illegal having been passed in violation of Article 311 of the Constitution.
Whereas the writ petition filed by Pandey was dismissed, the one filed by the respondent was allowed.
The High Court held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
The High Court further held that the order of termination was founded on an adverse entry awarded to the respondent hence it was not in good faith; the punishment awarded to the respondent was not proportionate to the alleged offence.
Against the 30 said order, the State of U.P. filed a appeal after obtaining special leave.
The question involved for consideration is whether the order terminating the services of the respondent is vitiated in law? Allowing the appeal, this Court, HELD: Holding of preliminary inquiry does not affect the nature of the termination order.
[42C) In the instant case the respondent was a temporary Government Servant and there was adverse regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in regard to the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of educational institution.
On result of the preliminary inquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its powers under the terms of contract a well as under the relevant rules applicable to a temporary Government servant.
[42A C] The principle 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre, retrenchment takes place and the services of employees are terminated on account of retrenchment.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with term and conditions of his service.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
[33D H] Appeal allowed, High Court order set aside as it interfered with order of termination in a casual manner.
[42D] Parshotam Lal Dhingra vs Union of India.
[1958] S.C.R. 828; The State of Orissa & Anr.
vs Ram Narayan Das, ; ; R.C. Lacy vs The State of Bihar & Ors., C.A.No 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, [1964] AIR S.C.449; A.G. Benjamin vs Union of India, C.A. No. 1341/66 decided on 13.12.1966; Shamsher Singh & Anr.
vs State of Punjab, [1975] 1 S.C.R. 814; State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, [1968] 3 S.C.R. 31 234; R.K. Misra vs U.P. State Handloom Corporation, , referred to.
Nepal Singh vs State of U.P. & Ors., [1985] 1 S.C.C. 56; Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; distinguished.


judgement:
N: Writ Petition (Crl.) No. 508 of 1989 etc.
(Under Article 32 of the Constitution of India).
107 Harjinder singh R.N. Joshi, A. Acharjee, Navin Malhotra, Jagan M. Rao and Raju Ramchandran for the Petitioners.
V.C. Mahajan, B. Parthasarthy.
P. Parmeswaran and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
A Division Bench of this Court while expressing the view that the decisions in J.V. Jain vs Shri Pradhan and Ors., ; and Om Prakash Bahl vs Union of India and Ors, W.P. No. 845 of 1979 decided on 15.10.1979 (Unreported) require re consideration has referred these matters to the Constitution Bench.
It is convenient at this point to refer to the statement of law laid down in the aforesaid two cases.
In both the cases, as in present case the persons were detained under the ("the Act ').
The detenu made representation to the appropriate government.
By then the Advisory Board was already constituted and it was scheduled to meet to consider the case of the detenu.
The Government forwarded the detenu 's representation to the Advisory Board.
The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person.
The Government after considering that report confirmed the order of detention.
It appears that the representation of the detenu was not considered before confirming the detention order and it came to be considered and rejected only thereafter in vs
J. Jain case this Court observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention.
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation.
This view has been reiterated in the unreported judgement in Om Prakash Bahl case.
The relevant facts of the present case may now be narrated: On 1 December, 1988, the officers of the Directorate of Revenue Intelligence upon getting information that the contraband gold has been secreted in the room occupied by K.M. Abdulla Kunhi, searched the room in the presence of independent witnesses.
Another person called 108 Mohammed Ali was also present inside the room.
The officers recovered one Samsonite pouch and some bundles of the Indian currencies amounting to Rs. 34,800 from the table drawer in the room.
Inside the said pouch, there were five gold biscuits of 24 ct.
purity and of foreign origin.
under the Mahazar, the officer seized the gold biscuits along with the Indian currency.
On 24 February 1989, the State Government passed two separate orders of detention under Section 3(1)(iv) of the Act, directing the detention of K.M. Abdulla Kunhi, the common petitioner in W.P. (Crl.) No. 508 of 1989 and SLP (crl.) 2009 of 1989, and B.L. Mohammed Ali, the common petitioner in W.P. (Crl.) No. 542 of 1989 and SLP (Crl) No 2117 of 1989.
On 9 March 1989, Mohammed Ali was taken into custody.
both of them were detained in Central Prison, Banglaore.
On 17 April, 1989, the detenus made representations to the Government.
The representations could not be immediately considered since they required translation and collection of information and comments from different authorities.
In the meantime, the case was referred to the Advisory Board which had its meeting on 20 April 1989.
The Board considered the case of the detenus and reported that there was sufficient cause for their was unexplained delay in considering the representation of the detenu.
Indeed, counsel for the petitioners very fairly submitted that they are not raising the question of delay.
They also did not argue that the rejection of the representation after the confirmation of detention was not an independent consideration.
There are two constitutional safeguards, namely, clause (4) of Article 22, and clause (5) of Article 22.
the former requires that if a detenu is liable to be detained for a longer period than three months, his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
The function of the Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution.
Clause (5) of Article 22 provides that when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
The detenu has two rights under clause (5) of Article 22 of the constitution: (i) to be informed, as soon as may be, of the grounds on 109 which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention.
There are also statutory safeguards with regard to detention of persons under the Act in tune with the Constitutional requirements.
Section 3 of the Act provides power to make detention orders.
Sub Section (1) speaks of authorities who are competent to make detention orders.
Sub section (2) states that when an order of detention is made by the State Government or by an officer empowered by the State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of that order.
Sub section (3) thereof provides that a person detained in pursuance of a detention order shall be furnished with the grounds of detention order as soon as may be, but ordinarily not later than five days after the detention.
But in exceptional circumstances and for reasons to be recorded in writing, the grounds shall be furnished not later than fifteen days from the date of detention.
Section 8 of the Act provides for reference of the detenu 's case to the Advisory Board, the Chairman and members of which shall possess the qualification specified in sub clause (a) of clause (4) of Article 22 of the Constitution.
They must be persons who are, or have been, or are qualified to be appointed as, Judges of a High Court.
Clause (b) of Section 8 makes it obligatory for the Government to refer the case of the detenu to Advisory Board within five weeks from the date of detention.
Clause (c) of Section 8 provides that the Board shall after considering the reference and other material place before it and after hearing the detenu if he desires to be heard in person, give its report as to whether or not there is sufficient cause for the detention of the person concerned.
The Board shall submit the report within eleven week from the date of detention of the person concerned.
Clause (f) of Section 8 states that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue his detention for such period as the Government deems fit subject to the maximum period permissible under the Act.
In every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person, the Government shall revoke the detention order and release the person forthwith.
This provision, of course, is subject to Section 9 with which we are not concerned.
110 Section 10 prescribes the maximum period for which any person may be detained.
Section 11 provides power to the State Government or the Central Government to revoke the detention order without prejudice to the provisions of Section 21 of the General Clauses Act.
This revocation shall not bar the making of another detention order under section 3 against the same person.
It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government 's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government.
It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
It has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references.
The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law.
The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention.
The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government.
The right to have the representation considered by the Government, is, safeguarded by cl.
(5) of Article 22 and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under cl.
(4) of article 22 read with section 8(c) of the Act.
(See: Sk.
Abdul Karim & Ors.
vs State of West Bengal; , ; Pankaj Kumar Chakrabarty & Ors.
vs State of west Bengal; , ; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr., ; ; B. Sundar Rao and Ors.
vs State of Orissa, ; John Matrin vs State of West Bengal, [1975] 3SCR 211; S.K. Sekawat vs State of West Bengal, and haradhan Saha & Anr.
vs State of West Bengal and Ors.
,[1975] The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.
111 Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible.
it is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.
The words "as soon as may be" occuring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
However, there can be no hard and fast rule in this regard it depends upon the facts and circumstances of each case.
There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with.
The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation.
Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
This has been emphasised and re emphasised by a series of decisions of the Court.
(See: Jayanarayan Sukul vs State of West bengal, {1970] 1 SCC 219; Frances Coralie Mullin vs W.C. Kambra and Ors.
, ; ; Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police and Ors., and Aslam Ahmed Zahire Ahmed Shaik vs Union of India and ors.
; , In Jayanarayan Sukul case, A.N. Ray, J., as he then was, speaking for the Constitution Bench has laid down four principles which should govern the consideration of representation of detenus (at p.224): "First the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board.
Thirdly, there should not be any delay in the matter of consideration.
It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens.
A citizen 's right raised a correlative duty of the state.
fourthly, the appropriate 112 Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu 's representation to the Advisory Board.
If the appropriate Government will release the detnu the Government will not send the matter to the Advisory Board.
If, however, the Government will not release the detenu the Government will send the case along with the detenu 's representation to the Advisory Board.
If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu.
If the the Advisory Board will express any opinion against the release of the detnu the Government may still exercise the power to release the detenu.
" In frances Coralie Mullin vs W.C. Khambra and Ors., Chinappa Reddy, J., while dealing with the time imperative for consideration of the representation has emphasised (at 279): "We, however, hasten to add that the time imperative can never be absolute or obessive.
The Court 's observations are not to be so understood.
There has to be lee way, depending on the necessities (we refrain from using the word 'circumstances ') of the case.
One may well imagine a case where a detenu does not make representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it.
Several such situations may arise compelling departure from the time imperative.
But no allowance can be made for lethargic indifference.
No allowance can be made for needless procrastination .
But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved.
The burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority.
" In Frances Coralie Mullin 's case the detenu 's representation was received by the detaining authority on December 26, 1979.
Without any loss of time copy of the representation was sent to the customs 113 authorities for their remarks which was obviously necessary because the information leading to the order of detention was collected by the customs authorities.
The fact were undoubtedly complex since allegation against the detenu revealed an involvement with an international gang of dope smugglers.
The comments of the customs authorities were received on January 4, 1980.
The Advisory Board was meeting on january 4, 1980 and so there could be no question of the detaining authority considering the representation of detenu before the board met, unless it was done in a great and undue haste.
After obtaining the comments of the customs authorities, it was found necessary to take legal advice as the representation posed many legal and constitutional question, so, after consultation with the Secreatary (Law and Judicial) Delhi Administration, the representation was finally rejected by the Administrator or January 15, 1980.
it was held that if there appeared to be any delay it was not due to any want of care but because the representation required a thorough examination in consultation with investigation agencies and advisers of law We agree with the observations in frances Coralie Mullin case.
The time imperative for consideration of representation can never be absolute or obsessive.
it depends upon the necessities and the time at which the representation is made.
The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board.
In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu.
The representation may be received after the case of the detenu isreferred to the Board.
Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings.
In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board.
Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board.
It is proper for the Government in such situations to await the report of the Board.
If the Board finds no material for detention on the merits andreports accordingly, the Government is bound to revoke the order of detention.
Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention.
The Board has to submit its report within eleven weeks from the date of detention.
The Advisory Board may hear the detenu at his request.
The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of 114 The High Court.
It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board.
If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board.
It will have to be dealt with and disposed of by the Government as early as possible.
The crucial question that remains for consideration is whether the Government should consider and dispose of the representation before confirming the detention.
This Court in V.J. Jain case has observed (at 405) that it is a constitutional obligation under clause (5) of Article 22 to consider the representation before confirming the order of detention.
if it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation.
To reach this conclusion, the Court has relied upon two earlier judgments of this Court: (i) Khudiram Das vs State of West Bengal and Ors., ; and (ii) Khairul Haque vs State of West Bengal, W.P. No.246/69 decided on 10.9.1969(Unreported).
The decision in Khudiram case is of title assistance to the principle stated in V.J. Jain case.
It was a case of belated consideration of the representation without acceptable explanation.
The decision in Khairul Haque case, however, relevant.
It is also unreported decision.
The facts of the case and the principles stated therein may be furnished.
There the petitioner was detained by an order dated 5 June 1969 of the District Magistrate, 24 Parganas, West bengal, under Section 3(2) of the .
He was arrested and detained in Dum Dum Central Jail on 6 June 1969.
The District magistrate informed the State Government of his said order on 9 June 1969.
On 14 June 1969, the Governor gave his approval and reported the case of the Central Government.
On or about 23 June 1969, the Government received the representation of the petitioner.
On 30 June 1969 the Governor referred the case of the petitioner to the Advisory Board.
The Advisory Board made its report on 11 August 1969 to the effect that there was sufficient cause for the detention of the petitioner.
Thereafter, on 12 August 1969, the Governor confirmed the order of detention.
On 29 August 1969, the Governor rejected the petitioner 's representation.
The Court while referring these facts said that there was unaccounted delay of little more than two months in the consideration of the representation .
Doubtless the detention was invalid on this delay alone and the Court could have quashed the 115 detention on that ground.
But the Court, however, observed that it is doubtful whether the Government 's consideration of the representation was independent as implicit in the language of Article 22(5).
If the confirmation by the Government of the order of the District magistrate is made first and the Government rejects the representation thereafter, such rejection is not an independent consideration but as the result of its decision to confirm the order of detention.
It was also observed that the process of decision making has to be the other way about, that is to say, the Government must first consider the representation and only later decide whether it should confirm the order of the District magistrate on the basis of the report of the Advisory Board.
The decision in Khairul Haque case has been followed in V.J. Jain case which in turn was followed in Om Prakash Bahl case.
There is no constitutional mandate under cl.
(5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention.
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention.
Indeed, there is no justification for imposing this restriction on the power of the Government.
As observed earlier, the Government 's consideration of the representation is for a different purpose, namely to find out whether the detention is in conformity with the power under the statute.
This has been explained in Haradhan Saha case, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law.
There need not be a speaking order in disposing such representation.
There is also no failure of justice by the order not being a speaking order.
All that is necessary is that there should be real and proper consideration by the Government.
It is necessary to mention that with regard to liberty of citizen the Court stands guard over the facts and requirement of law, but Court cannot draw presumption against any authority without material.
It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation.
Secondly, there may be cases where the Government has to consider the representation only after confirmation of detention.
Clause (5) of Article 22 suggests that the representation could be received even after confirmation of the order 116 of detention.
The words 'shall afford him the earliest opportunity of making a representation against the order ' in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act.
But if the detenu does not exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute.
The confirmation ofthe order of detention is not conclusive as against the detenu.
It can be revoked suo motu under Section 11 or upon a representation of the detenu.
It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention.
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention.
Nor it could be presumed that such consideration is not an independent consideration.
With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain.
Om Prakash Bahl and Khairul Haque cases.
They cannot be considered to be good law and hence stand overruled.
Counsel however, submitted that the representation of the detenu was not sent to the Advisory Board for consideration.
This question was not raised before the High Court, nor in the Writ Petitions before us and hence rejected.
These petitions will now be placed before the Division Bench for final disposal.
N.V.K. Petitions disposed of.

dataset_name: IN-Abs

summary:
A division Bench of this Court in V.J. Jain vs Shri Pradhan and Ors., ; observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention.
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation.
This view was reiterated in the later case of Om Prakash Bahl vs Union of India, W.P.No. 845 of 1979 decided on 15.10.1979.
As the aforesaid view required reconsideration, the instant SLPs and WPs had been referred to and heard by a constitutional bench.
On December 1, 1988, the officers of the Directorate of Revenue Intelligence upon getting information that contraband gold has been secreted in the room of petitioner No. 1 searched the room in the presence of independent witnesses.
Another person was also present inside the room.
The officers recovered one Samsonite punch, and some bundles of Indian currencies from the table drawer in that room.
Inside the said pouch, there were five gold biscuits of 24 ct.
purity and of foreign origin, and seized the same under a Mahazar.
On 24th February, 1989, that State Government passed two separate orders of detention under section 3(1)(iv) of the Conservation of 103 Foreign Exchange and Prevention of Smuggling Activities Act 1974 and the petitioners were taken into custody and detained in the Central pension.
On 17th April, 1989, the detenus made representation to the Government, which could not be immediately considered since they required translation, and collection of information and comments.
In the meanwhile, the matter was referred to the Advisory Board, which had its meeting on 20th April, 1989 considered the case of the detenus, and reported that there was sufficient cause for detention.
On 27th april, 1989, the Government accepted the report and confirmed the detention orders.
On 6th and 7th May, 1989 the Government considered and rejected on representation of the detenus and they were informed of the same.
The detention orders were challenged in the High Court through a writ petition but the High Court dismissed the same.
In the appeals and writ petition to this Court, the main question for consideration was, whether the confirmation of detention order upon accepting the report of the Advisory Board renders itself invalid solely on the ground that the representation of the detenu was not considered, and the subsequent consideration of the representation would not cure that invalidity.
Disposing of the matters, the Court, HELD: 1(a) With regard to liberty of citizens the Court stands guard over the facts and requirements of law, but Court cannot draw presumption against any authority without material.
[115G] (b) The confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation of the detenu.
[115G] (c) There may be cases where the Government has to consider the representation only after the confirmation of the detention.
[115H] 2(a) There are two constitutional safeguards, viz: Clause (4) of Article 22, and Clause(5) of Article 22.
The former requires that if a detenu is liable to be detained for a longer period than three months, hiscase shall be referred to the Advisory Board which, must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
The latter provides that when any person is detained in pursuance of an order made under any 104 law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
[108E G] 2(b) The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to afforded the earliest opportunity of making a representation against the order of detention.
[108H; 109A] 3.
The function of the Advisory Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution.
[108F] 4(a) The constitution right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
The obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government 's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to from its opinion and send a report to the Government.
[110B C] 4(b) It is implicit in clause (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
it has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the reference.
The Government consider the representation to ascertain essentially whether the order is in conformity with the power under the law.
[110C D] 4(c) The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention.
The consideration by the Board is in additional safeguard and not a substitute for consideration of the representation by the Government.
[110E] 4(d) The right to have the representation considered by the 105 Government, is safeguarded by clause (5) of Article 22, and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under clause (4) of Article 22 read with section 8(c) of the .
[110F] SK.
Abdul Karim & Ors.
vs State of West Bengal, ; , Pankaj Kumar Chakrabarty & Ors.
vs State of West bengal; , ; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr.,[1969] 2 SCC 426; B. Sundar Rao & Ors.
vs State of Orissa, ; John Martin vs State of West Bengal, [1975] 3SCR 211; .
S.K. Sekawat vs State of West Bengal, and Haradhan Saha & Anr.
vs State of West Bengal & Ors.
,[1975] , referred to.
5(a) The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.
Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible.
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.
[110H;111A] 5(b) The words "as soon as may be" occuring in clause (5) of Article 22 reflect the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
However, there can be no hard and fast rule in this regard.
It depends upon the fact and circumstances of each case.
There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with the requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation.
Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
[11B D] Jayanarayan Sukul vs State of West Bengal, ; ; Frances Coralie Mullin vs W.C. Khambra and Ors., ; ; Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., ; and Aslam Ahmed Zahire Ahmed Shaik vs Union of India & Ors.
, ; , referred to.
6(a) There is no constitutional mandate under clause (5) of Arti 106 cle 22, much less any statutory requirement to consider the representation before confirming the order of detention.
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention.
indeed there is no justification for imposing the restriction on the power of the Government.
[115C D] 6(b) Clause 5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention.
The words "shall afford him the earliest opportunity of making a representation against the order" in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under section 8 of the Act.
But ifthe detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statue.
The confirmation of the order of detention is not conclusive as against the detenu.
It can be revoked suo motu under Section 11 or upon a representation of the detenu.
[116A B] 6(c) So long as the representation is independently considered by the government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention.
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention.
Nor it could be presumed that such consideration is not an independent consideration.
[116C D] V.J. Jain vs Shri Pradhan & Ors.
, ; ; Om Prakash Bahl vs Union of India & Ors., W.P. No. 845 of 1979 decided on 15.10.1979 and Khairul Haque vs State of West Bengal W.P.No.
246/69 decided on 10.9.1969, over ruled; Khudiram Das vs State of West Bengal & Ors., ; , distinguished.


judgement:
il Appeal No. 2341 of 1978.
From the Judgement and Decree dated 16.11.1977 of the Andhra Pradesh High Court in Writ Appeal No. 358 of 1976.
Altaf Ahmed, Additional Solicitor General, P. Parmeshwaran and Dilip tandon for the Appellant.
128 A.S. Nambiar and B. Parthasarthy for the Respondent.
The Judgement of the Court was delivered by AHMADI, J.
This appeal, on certificate, is directed against the decision of the High Court of Andhra Pradesh which was quashed the imposition of duty and levy of penalty on the ground that the show cause notice was issued after the expiry of the period of six months from the accrual of the cause of action.
The facts leading to this appeal are as follows: The respondent M/s. Ramdev Tobacco Company, a sole proprietory concern, was at all material times a dealer in tobacco having a licenced warehouse at Guntur.
The dealer was liable to pay duty on the tobacco received at his warehouse and transported to another dealer.
On August 30, 1972 the appellant issued a notice calling upon the respondent to show cause why duty should not be demanded under Rule 160 of Central Excise Rules, 1944 (`the Rules ' hereafter) on 64,444 kgs.
of VFC Farmash Tobacco removed from his warehouse and not accounted for in the warehouse register maintained under the Rules.
The respondent was also asked to show cause why penalty should not be imposed for infraction of Rules 151 and 32(1) of the Rules for illicit removal of the aforementioned quantity of tobacco.
This show cause notice was founded on the allegation that in 1970 the respondent obtained six transport permits (T.P. 2) dated January 13, 1970, February 10, 1970, March 26, 1970, May 16, 1970, July 24, 1970 and August 5, 1970 and transported under each permit more than the quantity of tobacco allowed thereunder in contravention of the aforementioned rules.
The respondent sent a detailed reply to the said show cause notice on November 4, 1972.
After giving a personal hearing to the respondent on September 18, 1973 the appellant came to the conclusion that the respondent had evaded payment of duty on 1272 bags weighing 48,304 Kgs, of VFC Farmash tobacco and issued a demand under Rule 160 in the sum of Rs.1,66,165.76 under adjudication order No. 173/74 dated April 9, 1974.
In addition thereto the appellant imposed a penalty of Rs. 100 for contravention of Rules 151 and 32(1) of the Rules.
Thereupon the respondent filed a writ petition No.2600 of 1974 under Article 226 of the Constitution challenging the aforesaid order of the appellant.
This writ petition was heard and disposed of by a learned Single Judge of the High Court who took the view that the appellant 's action was time barred inasmuch as it was initiated after the expiry of the period of six months from the accrual of the cause of action.
According to the learned Judge under section 129 40(2) of the (`the ' hereinafter) no suit, prosecution or other legal proceeding could be instituted for anything done or ordered to be done under the law after the expiration of six months from the accrual of the cause of action.
Since a period of more than six months had indisputably expired from the dates on which the excess tobacco was transported under the six transport permits in question, the action was clearly time barred.
In this view of the matter the writ petition was allowed and the demand made under the impugned adjudication order both in respect of duty and penalty was quashed.
The present appellant questioned the correctness of this view in appeal, Writ Appeal No. 358 of 1976, but in vain.
The Division Bench found the view taken by the learned Single Judge in accord with its view in Writ Petition No. 2516 of 1974 decided on April 1, 1976.
It, therefore, dismissed the appeal but since it had granted a certificate to appeal in the case relied on, it also granted a similar certificate which has given rise to this appeal.
Sub section (2) of section 40 of the as it stood at the relevant point of time before its amendment by Amendment 22 of 1973 read as under: "No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under the after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of".
Before we proceed to analyse this sub section it would be advantageous to bear in mind that sub section (1) of this section bars the institution of any suit, prosecution or other legal proceeding against the Central Government or its officer in respect of any order passed in good faith or any act in good faith done or ordered to be done under the .
The second sub section prescribes a period of limitation for suits, prosecutions and other legal proceedings instituted, lodged or taken for anything done or ordered to be done under the .
That is why in Public Prosecutor, Madras vs R.Raju & Anr., etc.; , it was urged on a conjoint reading of the two sub sections that sub section (2) applied only to Government and could not come to the rescue of a tax payer.
Rejecting this contention this Court held: "The two sub sections operate in different fields.
The first sub section contemplates bar of suits against the Central Government or against the officers by protecting them in 130 respect of orders passed in good faith or acts done in good faith.
It is manifest that the second sub section does not have any words of restriction or limitation of class of persons unlike sub section (1).
Sub section (2) does not have any words of qualification as to persons.
Therefore, sub section (2) is applicable to any individual or person.
" This the appellant 's contention that sub section (2) was confined only to the Government officers was found to be unwarranted on the plain words of the provision and was also repelled by reference to other comparable statutes which went to show that whenever the legislature intended to limit the application against the Government officers, the Legislature had chosen appropriate words of limitation to restrict the operation of the provision.
It follows, therefore, that the application of the sub section extended to any person, not being a Government Officer, against whom any suit, prosecution or other legal proceeding was commenced for anything done or ordered to be done under the .
The next contention convassed in that case by the learned counsel for the appellant was that the words "anything done or ordered to be done" employed in the sub section would not include anything done in violation of the .
This Court after referring to the definition of the word `act ' in the , which extended to illegal omissions also, and the case law on the subject observed at page 820 as under: "These decisions in the light of the definition of the word `act ' in the establish that non compliance with the provisions of the statute by omitting to do what the act enjoins will be anything done or ordered to be done under the .
The complaint against the respondents was that they wanted to evade payment of duty.
Evasion was by using and affixing cut and torn banderols.
Books of account were not correctly maintained.
There was shortage of banderols in stock.
Unbanderolled matches were found.
These are all infraction of the provisions in respect of things done or ordered to be done under the .
" It is, therefore, clear from the above observation that any omission or infraction of the statutory provision would also fall within the ambit of the provision.
Non payment of duty or dues which a dealer is under an obligation to pay under the statute was, therefore, held to fall within 131 the scope of the provision.
In that case the complaint against the respondents was that to evade the payment of duty they had used and affixed cut and torn banderols and had failed to maintain the accounts correctly resulting in shortage in stocks.
The respondents were prosecuted for contravention of the Rules punishable under sections 9(b) and 9(d) of the as also under section 420 read with section 511 and 109, I.P.C. The respondents pleaded the bar of section 40 of the as it then stood.
The High Court upheld the contention that the prosecution was barred by the rule of limitation incorporated in section 40 as the same was instituted after the expiry of six months from the date of the commission of the alleged offences.
This Court on the aforesaid line of reasoning affirmed the High Court 's decision.
But the question is whether the issuance of a show cause notice and the initiation of the consequential adjudication proceedings can be described as `other legal proceedings ' within the meaning of sub section (2) of section 40 of the ? If the said departmental action falls within the expression `other legal proceeding ' there can be no doubt that the action would be barred as the same indisputably was initiated six months after the accrual of the cause action.
So the crucial question is whether the issuance of the show cause notice dated August 30, 1972 and the passing of the impugned order in adjudication proceedings emanating therefrom constitutes `other legal proceeding ' within the meaning of section 40(2) of the to fall within the mischief of that sub section which bars such proceedings if commenced after a period of six months from the accrual of the cause of action.
The learned Additional Solictor General submitted that the expression `other legal proceeding ' must be read ejusdem generis with the proceeding expressions `suit ' and `prosecution ' and if so read it becomes crystal clear that the department 's action cannot come within the purview of `other legal proceeding '.
How valid is this contention is the question which we are called upon to answer in the present appeal.
The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined.
By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires.
General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect.
Courts 132 have also limited the scope of the general words in cases where a larger meaning is likely to lead to absurd and unforeseen results.
To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning.
The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words.
But unless there is genus which can be comprehended from the preceding words, there can be no question of invoking this rule.
Nor can this rule have any application where the general words precede specific words.
There can be little doubt that the words `other legal proceeding ' are wide enough to include adjudication and penalty proceedings under the .
Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question.
There can be no doubt that `suit ' or `prosecution ' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one.
The use of the expression `instituted ' in section 40(2) strengthens this belief.
Since this sub section has been construed by this Court in Raju 's case (supra) not to be confined in its application to only Government servants but to extend to others including the assessees and since the words `for anything done or ordered to be done under this ' are found to be comprehensive enough to include acts of non compliance or omissions to do what the and the Rule enjoin, the limitation prescribed by section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression `other legal proceeding ' is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law.
The scope of section 40(2) as it stood before its amendment pursuant to Raju 's case came up for consideration before a Division 133 Bench of the Madhya Pradesh High Court in Universal Cables Ltd. vs Union of India, [1977] ELT (J92) wherein the question raised for determination was whether penalty procedings taken under Rule 173Q for the infraction of Rule 173C with a view to evading payment of duty fell within the expression `other legal proceeding ' used in the said sub section.
The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words `suit ' or `prosecution ' it must be given a restricted meaning.
This is how the High Court expressed itself at page J 106: "Now the language of section 40 (2) is: `no suit, prosecution or other legal proceeding shall be instituted '.
`Suit ' and `prosecution ' which precede the expression `other legal proceeding ' can be taken only in a Court of Law".
After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra vs Excise Collector, Tripura, AIR.
at 1868 (Sutherland, Volume 2 pages 399 400) the High Court observed that there was no indication in the said sub section or elsewhere in the that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule.
A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub section.
This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries & Others vs H.N. Ray and Another, at 453.
These two cases, therefore, clearly support the view canvassed before us by the learned Additional Solicitor General.
We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions.
In considering the scope of the expression `other legal proceeding ' we have confined ourselves to the language of sub section (2) of section 40 of the before its amendment by 22 of 1973 and should not be understood to express any view on the amended provision.
On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression `other legal proceeding ' must be read ejusdem generis with the preceding words `suit ' and `prosecution ' as they constitute a genus.
In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication 134 proceedings in question did not fall within the expression `other legal proceeding ' employed in section 40 (2) of the as it stood prior to its amendment by 22 of 1973 and therefore, the said procedings were not subject to the limitation prescribed by the said sub section.
Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court.
That indeed is true but being a pure question of law we have though it fit to entertain the same.
We therefore, do not entertain this objection.
In the result we allow this appeal and set aside the order passed by the learned Single Judge as well as the Division Bench which affirmed it and dismiss the respondent 's writ petition itself.
We also set aside the order by which the appellant was directed to pay costs.
We restore the adjudication order dated April 4, 1974 and all consequential orders, if any, passed thereunder.
Interim stay granted on August 16, 1979 is vacated and the appellant will be entitled to recover the dues from the security furnished pursuant to that order.
The appeal is allowed accordingly with no order as to costs.
R.S.S. Appeal allowed.

summary:
The appellant issued a notice calling upon the respondent who was a dealer in tobacco to show cause why duty should not be demanded under Rule 160 of the Central Excise Rules, 1944 on the tobacco removed from his warehouse and not accounted for, and further to show cause why penalty should not be imposed for infraction of the Rules.
The respondent sent a detailed reply, and after hearing him the appellant came to the conclusion that the respondent had evaded payment of duty.
Thereupon the appellant issued a demand notice for the duty payable and further imposed a penalty.
The respondent filed a writ petition in the High Court challenging the order of the appellant.
The learned Single Judge allowed the petition taking the view that the appellant 's action was time barred because under section 40(2) of the no suit, prosecution or other legal proceedings could be instituted for anything done or ordered to be done under the law after the expiration of six months from the accrual of the cause of action.
The Division Bench dismissed the appellant 's appeal.
Before this Court it was inter alia contended on behalf of the appellant that the expression `other legal proceeding ' is preceded by particular words of a certain genus, i.e., `suit ' and `prosecution ', indicating reference to proceedings taken in courts only, and, therefore, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and receive a limited meaning to exclude proceedings of the type in question.
Allowing the appeal of the Revenue, this Court, HELD: (1) The rule of ejusdem generis is generally invoked where 127 the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined.[131G] (2) The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of the rule of ejusdem generis and they may be required to fall in line with the specific things designated by the proceding words.
But unless there is a genus which can be comprehended from the preceding words, there can be question of invoking this rule.
Nor can this rule have any application where the general words precede specific words [132B C] (3) The wide expression `other legal proceeding ' must be read ejusdem generis with the preceding words `suit ' and `prosecution ' as they constitute a genus.
[133H] (4)`Suit ' or `prosecution ' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one.
[132E F] (5) The penalty and adjudication proceedings in the instant case did not fall within the expression `other legal proceeding ' employed in section 40(2) of the Act, as it stood prior to its amendment by Art.22 of the 1973, and therefore, the said proceedings were not subject to the limitation prescribed by the said sub section.
[ 133H; 134A] Public Prosecutor, Madras vs R. Raju & Anr.
; , ; Universal Cables Ltd. vs union of India, [1977] E.L.T. (J92); Amar Chandra vs Excise Collector, Tripura, ; ; C.C. Industries & Ors.
vs H.N. Ray & Anr., , referred to.