judgement:
Criminal Appeal No. 74 & 75 of 1986.
From the Judgment and Order dated 13.11.1984 of the Punjab and Haryana High Court in Crl.
Appeal No. 128 SP of 1984.
R.L. Kohli, R.C. Kohli and D.D. Sharma for the Appellant in Crl.
A. No. 74 of 1984.
D.S. Tewatia and Mahabir Singh for the appellant in Crl.
A. No. 75 of 1984.
U.R. Lalit, R.S. Yadav and H.M. Singh for the Respondents.
The Judgment of the Court was delivered by PG NO 573 JAGANNATH SHETTY, J.
These two appeals, by special leave, are directed against a judgment of the High Court of Punjab & Haryana in Criminal Appeal No. 128 SP of 1984.
The common respondents in the appeals.
were prosecuted for various offenses in the court of Additional Sessions judge, Faridkot.
By judgment dated February 28,1984 learned Judge convicted and sentenced the accused as follows: "Keeping in view the circumstances of the case and the part played by each of them I, hereby sentence Sukhbir, Sukhpal and Surat Singh accused to undergo R.I. for four years u/s 307/149 IPC.
Each of Om Pal, Dhan Pal, Mannu and Siri Chand are ordered to undergo R.I. for three year.
u/s 307/149 IPC.
Each of the seven accused are further ordered to undergo R.I. for one year 148 IPC, two years R.I. u/s 325 149 IPC and one year R. I. s/u 323/149 IPC.
Keeping in view the circumstances of the case.
all the sentences shall run concurrently. ' ' The accused appealed t the High Court challenging the conviction and sentence.
The High Court by the judgment under appeals acquitted Sukhpal Singh and Surat singh of all charges by giving them the benefit of doubt.
The other accused who are respondents herein are also acquitted of the offence under section 307/149 and section 148 IPC.
There conviction and sentence under section 325/149, 323/149 and section 148 IPC are however.
maintained.
They are released on probation of good conduct.
Each one of them, is ordered to pay compensation of Rs. 2,500 to Joginder who was seriously injured in the incident.
In default to pay the compensation they are directed to serve their sentence.
The operative portion of the judgment runs like this: "There is no previous history of enmity between to parties.
The occurrence is the outcome of a sudden flare up.
I think, these five appellants namely Sukhbir Singh Dhanpal, Mannu, Siri Chand and Om Pal are entitled their benefit under section 360 Cr.
Consequently, I suspend their sentence under section 325/149, 323/149 and section 148 IPC and order that the appellants namely Sukhbir Singh, Dhan Pal Mannu.
Siri Chand and Om Pal be released on probation on their entering into bonds of Rs.3,000 each with one surety in the like amount for a period of one year, to the satisfaction of the trial PG NO 574 court, undertaking to appear in the court to receive the sentence during the said period whenever called upon to do so and in the meantime to keep peace and be of good behavior.
However, each one of the appellant would pay Rs.2,500 as compensation payable to Joginder injured.
Compensation if not paid within two months, the appellants namely Sukhbir Singh, Dhanpal.
Mannu, Siri Chand and Om Pal would be called upon to serve their sentence.
But for this modification, appeal fails and is hereby dismissed.
In view of section 12 of the , no disqualification would attach to the appellants due to this conviction.
Sd/ K.P.S.Sandhu Judge" Dt.
November 13, l984 In these appeals, there is no serious dispute with regard to acquittal of Sukhpal Singh and Surat Singh.
The prosecution case that they were armed with Barchha has not been proved.
There was no incised injury on the victim or any of the prosecution witnesses.
Their participation in the commission of crime therefore appears to be doubtful.
The High Court was justified in acquitting them.
Counsel for the appellants are, however, vary critical of the order of High Court with regard to the remaining accused.
It is urged that the High Court was too much charitable to, them.
The intention of accused was obviously to commit murder of joginder.
Their acquittal under section 307 IPC is characterised as perverse.
At any rate, it is said that they ought not have been put on probation.
It is an abuse of the process of Court.
They should have been properly sentenced by term of imprisonment and fine.
It is also urged that Joginder has sustained permanent disability due to head injury and no amount of compensation would be adequate for him except severe punishment to the accused as a general deterrence.
Counsel for the accused on the other hand, seeks to support the order of the High Court in every respect.
In the light of the submissions, three questions arise consideration (i) whether the respondents are not guilty of the offence under section 307/149 IPC; (ii) whether the High Court was justified in extending the benefit of section 360 Cr.
P.C. and releasing the accused on probation of good conduct; and (iii) whether the compensation awarded to PG NO 575 Joginder could be legally sustained, and if so, what should be the proper compensation ? For a proper consideration of these questions, we may summarise briefly the factual background: The rival parties in this case are collaterals.
On September 28, 1982 at about 8/9 a.m. they had an altercation near the tubewell belonging to Hari Kishan.
Joginder is the son of Hari Kishan.
Virender another injured in this case is nephew of Hari Kishan.
Hari Kishan was sitting near his tubewell.
Virender and Joginder were sowing Berseem crop.
The accused carne from the side of the tubewell.
They were armed with Ballams and Dangas.
One of them raised a Lalkara at which the accused attacked Virender and Joginder.
In the brawl that followed some of the accused were also injured.
The injured were removed to Civil Hospital, Ballabgarh.
The Medical Officer there referred them to Safdarjung Hospital, New Delhi.
Finally., they landed themselves at the AIIMS, New Delhi.
They were examined by the Doctors.
Virender was found to have two injuries caused by blunt weapons.
Joginder was found to have head injury.
Amongst the accused Siri Chand, Dhan Pal, Om Pal and Sukhbir Singh were injured.
They were medically examined in AIIMS or Safdarjung Hospital, New Delhi.
Siri Chand had four injuries including a fracture caused by blunt weapon.
that has been proved by Dr. Rita Sood (DW1).
Dhan Pal and Om Pal each had four injuries but simple.
They were also, caused by blunt weapons.
Dr. V.K. Dhingra (DW 2) has spoken to that.
Sukhbir singh had one incised wound on his person.
Anurag Saxena (DW 3) has testified.
On the first question as to acquittal of the accused under s.3O7/149 IPC, some significant aspects may be borne in mind.
Under s.307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section.
The intention or knowledge or the accused must be such as is necessary constitute ' murder.
Without this ingredient being established, there can be no offence of "attempt to murder".
Under section 307 the intention precedes the act attributed to accused.
Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue.
The nature of the weapon used, manner in which it is used.
motive for the crime,severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration it,determine the intention.
In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor.
The accused though armed with ballam never used the sharp edge of it.
PG NO 576 They used only the blunt side of it despite they being attacked by the other side.
They suffered injuries but not provoked or tempted to use the cutting edge of the weapon.
It is very very significant.
It seems to us that they had no intention to commit murder.
They had no motive either.
The fight as the High Court has observed, might have been a sudden flare up.
Where the fight is accidental owing to a sudden quarrel, the conviction under section 307 is generally not called for.
We, therefore, see no reason to disturb the acquittal of accused under section 307 IPC.
The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct ? We gave our anxious consideration to the contentions urged by counsel.
We are of opinion that the High Court has not committed any error in this regard also.
Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation.
In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison.
In this case.
the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up.
These are not shown to be incorrect.
We have already said that the accused had no intention to commit murder of any person.
Therefore,the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate.
This takes us to, the third questions which we have formulated earlier in this judgments.
The High Court has directed each of the respondents to pay Rs. 2,500 as compensation to Joginder.
The High Court has not referred to any provision of law in support of the order of compensation.
But that can be traced to section 357 Cr.
P.C. Section 357, leaving aside the unnecessary, provides : "357.
Order to pay compensation : (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part,the Court may.
when passing judgment.
order the whole or any part of the fine recovered to be applied (a) in defraying the expenses properly incurred in the prosecution; PG NO 577 (b) in the payment to any person of compensation for any loss or injury caused by the offence.
when compensation is in the opinion of the Court, recoverable by such person in a civil Court; XXXXX XXXXX XXXX XXXXX XXXXX XXXXX (3) When a Court imposes a sentence, of which fine does not not form a part, the Court may, when passing judgment.
order the accused person to pay, by way of compensation.
such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter.
the Court shall take into account any sum paid or recovered as compensation under this section.
" Sub section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused.
In this case.
we are not concerned with sub section (1).
We are concerned only with sub section (3).
It is an important provision but Courts have seldom invoked it.
Perhaps due to ignorance of the object of it.
It empowers the Court to award compensation to victims while passing judgment of conviction.
In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused.
It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto.
This power was intended to do something to re assure the victim that he or she is not forgotten in the criminal justice system.
It is a measure of responding appropriately to crime as well of reconciling the victim with the offender.
It is, to some extent.
a constructive approach to, crimes.
It is indeed a step forward in our criminal justice system.
We, therefore,recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
PG NO 578 The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case.
The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay.
If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably.
The payment may also vary depending upon the acts of each accused.
Reasonable period for payment of compensation, if necessary by installments, may also be given.
The Court may enforce the order by imposing sentence in default.
Joginder in this case is an unfortunate victim.
His power of speech has been permanently impaired.
Doctor has certified that he is unable to speak and that is why he has not stepped into the witness box for the prosecution.
The life long disability of the victim ought not to be bye passed by the Court.
He must be made to feel that the Court and accused have taken care of him.
Any such measure which would give him succor is far better than a sentence by deterrence.
The compensation awarded by the High Court, in our opinion, appears to be inadequate having regard to the nature of injury suffered by Joginder.
We have ascertained the means of accused and their ability to pay further sum to the victim.
We are told that they are not unwilling to bear the additional burden.
Mr. Lalit learned counsel said that his clients are willing to pay any amount determined by this Court.
It is indeed a good gesture on the part of counsel and his clients.
With due regard to all the facts and circumstances of the case, we consider that Rs.50,000 compensation to Joginder would meet the ends of justice.
We direct the respondents to pay the balance within two months in equal proportions.
The order of the High Court is modified only to the extent of Compensation as indicated above and in all other respects it is kept undisturbed.
The appeals are accordingly disposed of.
R.S.S. Appeals disposed of.

summary:
Seven persons were convicted under sections 307/149, 325/l49, 3231/149 and 148 IPC and sentenced to undergo R.Z. from one year to three years.
The High Court acquitted two of all charges, and five of the offence under section 307/149 while maintaining their conviction and sentence under section 325/149, section 323/149 and section 148.
They were however released on probation of good conduct.
Each one of them was ordered to pay compensation of Rs. 2,500 to Joginder who was seriously injured and whose power of speech was permanently impaired.
Before this Court the appellant contended that the intention of the five accused was obviously to commit murder of Joginder and their acquittal under section 3O7 IPC was perverse.
Disposing of the appeal, it was, HELD: (1) Under section 307 IPC what the Court has to see is whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section.
The intention or knowledge must be such as is necessary to constitute murder.
Without this ingredient being established there can be no offence of"attempt to murder".
Under section 307 the intention precedes the act attributed to accused.
Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue.
In this case, the respondents had no intention to commit murder.
They had no motive either.
[575F G] PG NO 571 PG NO 572 (2) Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation.
In placing such type of offenders on probation the Court encourages their own sense of responsibility for their future and protects them from the stigma and possible contamination of prison.
[576C D] (3) In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up.
The accused had no intention to commit murder of any person.
Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate.
l576D E] (4) Section 357 empowers the Court to award compensation to victims while passing judgment of conviction.
This power of Courts to award compensation to victims is not ancillary to other sentences but it is in addition thereto.
This power is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system.
It is recommended to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
[577F H] (5) The payment by way of compensation must be reasonable.
What is reasonable may depend upon the facts and circumstances of each case, e.g. the nature of crime, the justness of claim by the victim and the ability of the accused to pay etc.
On these considerations the Court enhanced the compensation to Rs. 50,000.
[578A B]


judgement:
ivil Appeal No. 3003 of 1988.
From the Judgment and Order dated 8/9th April, 1986 of the Central Administrative Tribunal, New Delhi in R.A. No. 2 of 1986 in TA No. T 564 of 1985.
AND Civil Appeal No. 889 of 1988.
From the Judgment and Order dated 29.10.86 and 5.11.1986 in the Central Administrative Tribunal, Ahmedabad in O.A. No. 103 of 1986.
J.S. Bali and L.R. Singh for the Appellant in C.A. No. 3003 of 1988.
K.M.K. Nair for the Appellant in C.A. No. 889 of 1988.
Kuldip Singh, Additional Solicitor General, A. Subba Rao, C.V.S. Rao and Hemant Sharma for the Respondents.
The judgment of the Court was delivered by VENKATACHALIAH, J.
The special leave petition and the appeal by two Central Government servants raise an interesting point of construction of a service Rule whether a Disciplinary Authority can, under Sub Rule (vi) of Rule 11 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, (Rules for short), impose the penalty of reduction on a Government Servant, recruited directly to a particular post, to a post lower than that to which he was so recruited; and if such a reduction is permissible, whether the reduction could only be to a post from which under the relevant Recruitment Rules promotion to the one to which the Government servant was directly recruited.
PG NO 549 The petition and appeal are directed against the orders dated 8/9 4 1986 of the Central Administrative Tribunal, Delhi, and the order dated 29.10.1986 of the Central Administrative Tribunal, Gujarat, respectively, affirming the orders of the Disciplinary Authorities imposing on the petitioner and the appellant the penalty of reduction in rank to post lower than the one to which both of them were initially recruited.
There is a divergence of judicial opinion amongst the High Courts on the point: The Division Benches of the Orissa and Karnataka High Courts have held that such a reduction in rank is not possible at all.
[See: Babaji Charan Rout vs State of Orissa and Ors., [1982] 1 SLJ 496; Shivalingaswamy vs State of Karnataka, [1985] ILR Kar.
1453].
However, the Madras, Andhra Pradesh and Allahabad High Courts have held that there is no limitation on the power to impose such a penalty.
[See: Gopal Rao vs C.l.T., ; Mahendra Kumar vs Union of India, [1984] 1 All India Ser.
Law Jour.
34; S.N. Dey vs Union of India & Ors., [1983] 2 SLJ All. 114].
The Central Administrative Tribunal, Madras, in C.S. Balakumar vs The lnspecting Asstt.
Commissioner of Income Tax, [1987] 1 All India SLJ 18 has also subscribed to this view.
There is yet a third view, as typified in P.V. Srinivasa Sastry vs Comptroller & Auditor General of India, and the one taken by the Central Administrative Tribunal in the case from which the Special Leave Petition arises, that such a reduction in rank is permissible provided that promotion from the post to which the Government servant is reduced to the post from which he was so reduced is permissible, or, as it has been put, the post to which the Government servant is reduced is "in the line of promotion" and is a "feeder service".
Special leave is granted in SLP (C) 9509 of 1986.
Both the cases are taken up for final hearing, heard and disposed of by this common Judgment.
A brief advertance to the facts of the cases is necessary.
SLP (C) 9506 of 1986 is by a certain Nyadar Singh, the unsuccessful petitioner before the Central Administrative Tribunal, New Delhi, and is directed against that the Tribunal 's order No. T 564/85 (SBCWP No. 1747/80) dated PG NO 550 28th February, 1986, rejecting his challenge to the order dated 4th Sept., 1976, of the disciplinary authority imposing a penalty of `reduction in rank ' reducing the petitioner from the post of Assistant Locust Warning Officer to which he was recruited directly on 31.10.1960 and confirmed on 27.12.1971 to that of Junior Technical Assistant pursuant to certain disciplinary proceedings held against him.
In 1974, he was working as an Assistant Locust Warning Officer at Nohar.
On 4.11.1975 in respect of certain acts alleged to constitute misconduct on his part certain disciplinary proceedings were initiated against him which culminated in the order dated 4.9.1976 imposing the aforesaid penalty.
The statutory appeal before the appellate authority was, dismissed on 24.4.1979.
Thereafter he filed a writ petition before the Delhi High Court which, after the coming into force of the Central Administrative Tribunal Act, 1985, stood transferred to and was disposed of by the Central Administrative Tribunal, New Delhi, by its order dated 28.2.1986, now under appeal.
It is relevant to mention that in the year 1981, after the period of penalty of five years had spent itself out, the appellant was re promoted to the post of Assistant Locust Warning Officer.
Civil Appeal No. 889 of 1988 is by M.J. Ninama, an Upper Division Clerk in the Post & Telegraph Circle Office, Ahmedabad, preferred against the order No. OA 103 of 1986 dated 29.10.1986 of the Central Administrative Tribunal, Ahmedabad, rejecting appellant 's challenge to the legality and correctness of the order dated 15.5.1988 of the Post Master General who in modification of the earlier orders imposing a penalty of compulsory retirement on him, substituted in its place the order imposing the penalty of `reduction in rank ' to the post of Lower Division Clerk pursuant to the findings recorded against the appellant on the charge of accepting illegal gratification.
Appellant had been directly recruited as an Upper Division Clerk in the Office of the Post Master General, Gujarat Circle, Ahmedabad.
He was reduced to the lower post of Lower Division Clerk until he was found fit after a period of five years from 15.5.1986.
However, the appellant 's seniority on re promotion was directed to be fixed at what it would have been, without the reduction.
We have heard Shri J.S. Bali, learned counse] for the appellant Nyadar Singh and Shri K.M.K. Nair, learned counsel for the appellant Ninama; and Shri Kuldip Singh, learned Additional Solicitor General for the respondents in both the appeals.
Rule 11 of the `Rules ' enumerates the penalties which may for good and sufficient reasons be imposed on a PG NO 551 Government servant.
Sub rule (vi) of Rule 11 provides: "11.
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant namely: Minor penalties: Omitted as irrelevant here.
Major penalties: (v) . . (vi) reduction to a lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of the restoration to that grade, or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service;" According to the contention of the appellants ' learned counsel, the appellants were, as a result of the imposition of the penalty, reduced in rank to a post lower than the one to which they were initially recruited, which on a proper construction of the Rule, is not permissible.
Learned counsel relied upon the decision of this Court in Hussain Sasan Sahed Kaldgi vs State of Maharashtra, Shri Kuldip Singh, Additional Solicitor General, however, contended that this limitation which may be appropriate in the case of a `reversion ' which, as the very concept implies, could not be to a post which the Government servant did not earlier hold, is inappropriate in a case of reduction in rank imposed as a penalty.
Reduction in rank, according to learned Additional Solicitor General, has a wider import than `reversion ' and there is no reason why the power to impose this penalty which is permissible on the plain language of the Rule be whittled down by any other consideration.
The learned Additional Solicitor General sought to rely upon certain pronouncements of the High Courts.
The import of the expression `Reduction in rank ' has been examined in the context of the constitutional PG NO 552 protection afforded to Government servants under Article 311(2) in relation to the three major penalties of 'dismissal ', 'removal ' and 'reduction in rank ' and the constitutional safeguards to be satisfied before the imposition of these three major penalties.
In Article 311(2) the penalty of "reduction in rank" is classed along with 'dismissal ' and 'removal ' for the reason that the penalty of reduction in rank has the effect of removing a Government servant from a class or grade or category of post to a lessor class or grade or category.
Though the Government servant is retained in service, however, as a result of the penalty he is removed from the post held by him either temporarily or permanently and retained in service in a lesser post.
The expression 'rank ', in 'reduction in rank ' has, for purposes of Article 311(2), an obvious reference to the stratification of the posts or grades or categories in the official hierarchy.
It does not refer to the mere seniority of the Government servant in the same class or grade or category.
Though reduction in rank, in one sense, might connote the idea of reversion from a higher post to a lower post, all reversions from a higher post are not necessarily reductions in rank.
A person working in a higher post, not substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post.
That would not, by itself, be reduction in rank unless circumstances of the reversion disclose a punitiveelement.
The submission of the learned Additional Solicitor General in substance, is that while 'reversion ' envisages that the lower post to which the Government servant is reverted should necessarily to amongst those earlier held by him and from which he had come on promotion, the idea of reversion being a mere antonym of promotion the importing of such a limitation into a case of "reduction in rank" imposed as a penalty would be doing, violence of the express statutory language and an unwarranted fettering of the power of the disciplinary authority.
The idea of reduction in rank, says the learned Additional Solicitor General, is much wider than the ambit of the reversion and there is no justification to whittle down the ambit of this expression consciously employed by the rule making authority.
Such a construction would create more difficulties than It might appear to solve and become counter productive in the sense that even where the disciplinary authority, desires to retain a Government servant in service, though not in the same post but in a lower one, the Authority would be rendered helpless by such a construction being place of in the Rule.
PG NO 553 The argument in favour of this construction of the Rule is stated by by a learned Single Judge in Gopal Rao 's case (supra) thus: ". .
ln effect, what the learned counsel says is that there is no difference between the order of reversion and an order of reduction in rank, that it is well established that reversion can be only to a post which a person held earlier and that reduction also can only be to a post or class of service which the person occupied at any time before. ." " '. .
In my view, the expression "reduction in rank" covers a wider field than reversion to a lower post.
It is true, the word "reversion" always connotes "a return to the original post or place.
" But the word "reduction" has no such limitation and therefore, reduction in rank extends even to a rank which the officer concerned never held. ." Similar view has been taken by a learned Single Judge of the the Andhra Pradesh High Court in Mahendra Kumar vs Union of India and Anr., [1985] 1 SLR [8] : ". .
The Central Civil Service (Classification, Control and Appeal) Rules provide for several penalties which can be imposed for good and sufficient reasons.
One of the major penalties contemplated by Rule II is "reduction to a lower . .
grade, post or service . .
", and I see m, reason why this penalty cannot be imposed upon a person who, on the date of imposition of penalty, is continuing in the same post to which he was appointed by direct recruitment.
This is not a case of reversion of a Government servant to his substantive post for want of vacancy or otherwise, but this is a case of reduction by way of punishment.
I am unable to read any limitation upon the power of the disciplinary authority to impose this punishment on the petitioner, as suggested.
No decision has also been brought to my notice supporting this contention It must, however, be observed that in the above case the High Court upheld the challenge of the appellant that there was no misconduct at all.
The other observations as to the scope of the Rude were, therefore, unnecessary for the decision of the case.
PG NO 554 7.
The opposite view is taken by the Orissa High Court in Babaji Charan Rout vs State of Orissa and Ors., [1982] 1 All India SLJ 496 and by a Division Bench of the Karnataka High Court in Shivalingaswamy v: State ot Karnataka, [l985] ILR Kar. 1453.
In the first case, there is no discussion of the matter as the Division Bench merely followed an earlier unreported decision of another Division Bench of the same High Court.
In the Karnataka case, a person who had been directly recruited as "Village Accountant had been reduced by the Disciplinary Authority to the post of "daftarband".
The Division Bench interpreting an analogous rule in the State 's Service Rules, held the reduction impermissible, observing: ".
Rule 8 [v] of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, as amended, in our opinion, does not justify such an action.
It will lead to most unreasonable results if a person directly recruited to a post is reduced to a post which he never came to hold in service.
That is not the scheme of the CCA Rules and therefore we have no hesitation in holding that the Deputy Commissioner had no competence to impose the penalty of reducing the appellant to the post of Daftar band Attender when in fact he entered service only as Village Accountant.
If the disciplinary authority felt that the gravity of the charges proved warrants that the appellant should be removed from service it was open to the authorities to make an order either dismissing or removing him from service . .
The third view of the matter which while holding such a reduction is permissible, but subject to the post to which the Government servant is reduced being one from which promotion to the post from which reduction is effected is permissible, is to be found in Srinivasa Sastry 's, case (supra) where Rama Jois, J. of the Karnataka High Court held: ".
It is no doubt true that normally penalty of 'reduction in rank ' is imposed only so as to bring down a civil servant to a lower time scale, grade, service or post, held earlier by him before promotion and not below the post, grade, service, or time scale to which a civil servant was directly recruited, and it appears, that it is also PG NO 555 reasonable to do so.
The learned counsel, however, could not substantiate the point with reference to the rule which empowered the disciplinary authority to impose the penalty of reduction in rank as it does not make any such differentiation . ." [See at 515, para 91.
This is also the view taken by the Tribunal in the first of the appeals now before us.
The Tribunal held : "12.
In the light of the aforesaid discussion we find that rule 11 (vi) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, on its true construction permits reduction in rank in the case of a direct recruit if the post to which he is reduced is in the line of promotion i.e. is a feeder service . .
" But as against this judicial opinion in Srinivasa Sastry 's case, the learned Judge, as auther, [See 'Services under the State ': Indian Law Institute, page 220] expressed the view: "Therefore, it is reasonable to take the view that a civil servant earns promotion by exhibiting his merit and ability and suffers reduction in rank instead of removal or dismissal for misconduct or inefficiency during his service in the higher post unless he is unworthy of being retained in the service and that the word 'reduction in rank ' is used in Article 311 in this sense.
It appears that the punishment by way of reduction in rank can be inflicted only against a civil servant who held a lower post and who has been promoted to the higher post; . ." 9.
The contention of the learned Additional Solicitor General that when a legislative authority uses the expression "reduction in rank" without imposing any limitations there is no justification to fetter or otherwise limit the plenitude of the idea of 'reduction ', looks, at the first blush, seemingly plausible and even somewhat attractive.
The view has commended itself for acceptance to some of the High Courts and Tribunals.
The meaning to be given to a particular statutory language depends on the evaluation of a number of interpretative criteria.
Shorn of the context, the words by themselves are "slippery customers".
The general presumption PG NO 556 is that these criteria do not detract or stand apart from, but are to be harmonised with, the well accepted legal principles.
In a difficult case, the number of relevant interpretative criteria may be so high that the task of the court in assessing their effect is, correspondingly, difficult.
Even the statutory language apparently free from the sins of semantic ambiguity might not, in the context of the purpose, connote or convey its lexicographic thrust; but would acquire a different shade or colour imparted to it by the variations of the interpretation criteria.
The ambiguity need not necessarily be a grammatical ambiguity, but one of appropriateness of the meaning in a particular context.
Francis Bennion in his "Statutory lnterpretation" refers to the nature of the task in weighing the factors: ". it is necessary for the interpreter to assess the respective weights of the relevant interpretative factors and determine which of the opposing constructions they favour on balance . .
" "We may speak of the factors tending in a certain direction as a bundle of factors.
This is figurative, but then so is the idea of factors being 'weighed '.
The court is unlikely even to consider the factors one by one, and certainly will not proceed in any mechanistic way . .
" "We find that one bundle of factors favours one of the opposing constructions of the enactment.
while the other bundle favours the other construction.
[As to opposing constructions see section 84 of this Code. ] .
There may be factors drawn from a single interpretative criterion in both bundles .
. " [See `Statutory lnterpretation ' by Francis Bennion.
1984 End. page 390] It is true that where statutory language should be given its most obvious meaning to accord with how a man in the street might answer the problems posed by the words ' the Statute must be taken as one finds it.
Consideration relevant to interpretation are not whether a differently conceived or worded statute would have yielded results more consonant with fairness and reasonableness.
Consequences do not alter the statutory Ianguage, but may only help to fix its meaning.
PG NO 557 10.
As to whether a person initially recruited to a higher time scale, grade or service or post can be reduced by way of punishment, to a post in a lower time scale, grade, service or post which he never held before, the statutory language authorises the imposition of penalty does not, it is true, by itself impose any limitations.
The question is whether the interpretative factors, relevant to the provision, impart aNy such limitation.
On a consideration of the relevant factors to which we will presently refer we must hold that they do.
Though the idea of reduction may not be fully equivalent with 'reversion ', there are certain assumptions basic to service law which bring in the limitations of the latter on the former.
The penalty of reduction in rank of a Government servant initially recruited to a higher time scale, grade, service or post to a lower time scale, grade, service or post virtually amounts to his removal from the higher post and the substitution of his recruitment to lower post, affecting the policy of recruitment itself.
In Worthington vs Robin, [l896] 75 Law Times Reports 446 where a supervisor of Inland Revenue was reduced in rank by statutory authority, referring to the effect of reduction in rank.
though in a different context, brought about by the order of the statutory authority, the Court of appeals understood the process as a dismissal from the higher post and reappointment to the Iower post.
Rigby.
L.J observed: " . .
1 treat what has happened as a dismissal, because, though in effect he has been reduced to a lower position, his new appointment is in fact a re appointment.
If we could see any point in this action upon which there might be a possibility of his succeeding, we should be most anxious to give him the opportunity . .
" But action was dismissed because the civil servant was holding the office at the pleasure of the Commissioners under the Inland Revenue Regulation Act governing the situation.
There are, therefore, certain considerations of policy that might militate against such a wide meaning to be given to the power.
In conceivable cases, the Government servant may not have the qualifications requisite for the post which may require and involve different, though not necessarily higher, skills and attainments.
Here enter considerations of the recruitment policy.
The rule must be read in consonance PG NO 558 with the general principles and so construed the expression `reduction ' in it would not admit of a wider connotation.
The power should, of course, be available to reduce a civil servant to any lower time scale, grade, service or post from which he had subsequently earned his promotion.
The Second, and perhaps equally relevant, consideration, is the anomaly that a pushing to its logical limits of such power might produce.
In Srinivasa Sastry 's case, (supra), the learned Judge of the Karnataka High Court visualised these anomalies thus. ". .
Acceptance of the contentions urged for the respondents would lead to incongruous and absurd results.
To illustrate, could a Doctor be reduced in rank to the post of a Compounder, or an Engineer to the post of a Fitter, or a Teacher in a High School to the post of a Peon, or a Scientific Officer to the post of a ministerial officer, in the absence of any provision in the rules for the consideration of the case of the civil servant concerned, for promotion from the latter category to the former category? It appears to me that on a fair and proper construction of rule II (vi) of the Rules, the condition precedent for the exercise of power under that rule by way of imposing penalty of reduction in rank to a lower post is, that the higher post from which the concerned civil servant is sought to be reduced must be a promotional post in relation to the lower post to which he is sought to be reduced . .
[See at 516].
" The argument that the rule enables a reduction in rank to a post lower than the one to which the civil servant was initially recruited for a specified period and also enables restoration of the Government servant to the original post, with the restoration of seniority as well, and that, therefore, there is nothing anomalous about the matter, does not, in our opinion, wholly answer the problem.
It is at best one of the criteria supporting a plausible view of the matter.
The rule also enables an order without the stipulation of such restoration.
The other implications of the effect of the reduction as a fresh induction into a lower grade, service or post not at any time earlier held by the Government servant remain unanswered.
Then again, there is an inherent anomaly of a person recruited to the higher grade or class of post being asked to work in a lower grade which in certain conceivable cases might require different qualifications.
It might be contended that these anomalies PG NO 559 Could well be avoided by a judicious choice of the penalty in a given fact situation and that these considerations are more matters to be taken into account in tailoring out the penalty than those limiting the scope of the punitive power itself.
But, an over all view of the balance of the relevant criteria indicates that it is reasonable, to assume that the rule making authority did not intend to chothe the disciplinary authority with the power which would produce such anomaious and unreasonable situations.
The contrary view taken by the High Courts in the several decisions referred to earlier cannot be taken to laid down the principle correctly.
The pronouncement of this Court in Hussain Sasan Saheb Kaldgi vs State of Maharashtra, [l987[ AIR (SC) 1627 relied upon by the appellant is one which deals with a case of 'reversion '.
Appellant in that case who, while working as a primary teacher in the services of the District Local Board, offered himself for and was selected by direct recruitment to the post of the Asst.
Deputy Educational Inspector.
But after four years he was sought to be reverted to the post of primary teacher.
His suit for the declaration that the purported reversion was illegal and void was decreed by the trial court, but was dismissed by the High Court in appeal.
This court restored the decree of the trial court.
As rightly pointed out by the learned Additional Solicitor General, the case dealt with the scope and limitations of the process of 'reversion ' and is of no assistance in deciding the point under consideration.
But this does not make any difference to the conclusion we have reached.
The point now is as to what orders are to be made in these appeals.
Appellants in the two appeals have been reduced to posts lower than these to which they were initially directly recruited.
As these penalties cannot be sustained in the view we take of the rule, in the normal course the penalties imposed would require to be set aside and the disciplinary authority directed to re consider which other penalty which it would now choose to impose.
But, we are of the opinion that it would be somewhat unfair that at this distance of time the matters are re opened.
We think, having regard to all the circumstances of the cases the orders that commend themselves appropriate in the two cases are in terms following: (i) In the first of the appeals, appellant Nyadar Singh, has, after the period of the reduction in rank has spent itself out, been restored to the original position.
It would, therefore, be sufficient to set aside the penalty imposed on him and direct that the period of service in the PG NO 560 reduced post be treated as service in the post held by him prior to imposition of the penalty, subject to the condition, however, that the appellant shall not be entitled to any difference of salary for and during the period of reduction.
In view of this, we think that the proceedings taken against him should come to an end and there is no need to remit the matter to the Disciplinary Authority for selection and imposition of a fresh penalty.
(ii) In the case of M.J. Ninama the penalty of reduction in rank is set aside and he shall be restored to the post which he held before the imposition of the penalty.
However, for the period, if any, served by him in the lower post pursuant to the penalty imposed on him, he shall not be entitled to the difference of salary.
It will also not be necessary to remit his case for fresh consideration of the choice of the penalty having regard to the lapse of time.
It is ordered and the appeals disposed of accordingly.
No costs.
R.S.S. Appeals disposed of.

dataset_name: IN-Abs

summary:
Pursuant to separate disciplinary proceedings the penalty of `reduction in rank ' was imposed on the appellants, Nyadar Singh and M.J. Ninama, reducing each of them to a post lower than the one to which they were directly recruited.
The Central Administrative Tribunals rejected the appellants ' challenge to the orders imposing the penalty.
Before this Court, the appellants ' contention was that as a result of the imposition of the penalty, they were reduced in rank to posts lower than the one to which they were initially recruited, which on a proper construction of Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 was not permissible.
The Additional Solicitor General, on the other hand, contended that this limitation which might be appropriate in the case of a `reversion ', was inappropriate in a case of `reduction in rank ' imposed as a penalty.
The argument was that `reduction in rank ' had a wider import than `reversion ' and there was no reason why the power to impose this penalty which was permissible on the plain language of the Rule, be whittled down by any other consideration.
PG NO 547 PG NO 548 Disposing of the appeals, it was, HELD: (1) The meaning to be given to a particular statutory language depends on the evaluation of a number of interpretative criteria.
Shorn of the context, the words by themselves are `slippery customers '.
The general presumption is that these criteria do not detract or stand apart from, but are to be harmonised with, the well accepted legal principles.
Considerations relevant to interpretation are not whether a differently conceived or worded statute would have yielded results more consonant with fairness and reasonableness.
Consequences do not alter the statutory language, but might only help to fix its meaning.
[555H; 556A B, G H] (2) The expression `rank ', in `reduction in rank ' has, for purposes of Article 311(2), an obvious reference to the stratification of the posts or grades or categories in the official hierarchy.
It does not refer to the mere seniority of the Government Servant in the same class or grade or category.
[552B C] (3) The penalty of `reduction in rank ' of a Government servant initially recruited to a higher time scale, grade, service or post to a lower time scale, grade, service or post virtually amounted to his removal from the higher post and the substitution of his recruitment to lower post, affecting the policy of recruitment itself.
ln conceivable cases, the Government servant might not have the qualification requisite for the post which might require and involve different, though not necessarily higher, skills and attainment.
[551B C, 557G] [Worthington vs Robin, [1896] 75 Law Times Reports 446, referred to.] (4) Rule 11 must be read in consonance with general principles and so construed the expression `reduction ' in it would not admit of a wider meaning.
[557H; 558A] Babaji Charan Rout vs State of Orissa, [1982] 1 SLJ 496; Shivalingaswamy vs State of Karnataka, [1985] ILR Kar.
1453; approved.
Gopal Rao vs C.I.T., ; Mahendra Kumar vs Union of India, [1984] 1 All India Ser.
Law Journal 34; ; S.N. Dey vs Union of India, [1983] 2 SLJ All. 114; C.S. Balakumar vs The lnspecting Asstt.
Commissioner of Income Tax, [1987] 1 All India SLJ 18, over ruled.
PG NO 548 P. V. Srinivasa Sastry vs Comptroller & Auditor General of India, and Hussain Sasan Saheb Kaldgi vs State of Maharashtra, , referred to.


judgement:
t Petition (Civil) Nos.
1239 of 1979, 974 of 1978 & 1756 of 86.
(Under Article 32 of the Constitution of India.) P.Rama Reddy, R.K. Jain and R.P. Gupta for the Petitioners in W.P. No. 1239 of 1979 and W.P. No. 1756 of 1986.
M.K. Ramamurthy, J. Ramamurthy and B. Parthasarathy for the Petitioner in W.P. No. 974 of 1978.
G. Ramaswamy Additional Solicitor General, A.K. Ganguli, Miss A. Subhashini and K. Swamy for the Respondents in W.P. No.1239 of 1979.
Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
In these writ petitions, three categories of Staff Artists of Doordarshan under the Ministry of Information and Broadcasting, namely, Cameraman Grade II, Sound Recordist and Lighting Assistant/Lightman, have claimed that they should be declared as Government servants and should be given the same pay scales as given to their respective counterparts in the Film Division under the same Ministry.
The Staff Artists were originally appointed on renewable contracts for 3 4 years ' duration, but that practice has since undergone a change and they are now appointed up to the age of 55 6O years on a time scale.
They are, however, employed on contract basis till the age of 55 60 years, that is, the contract runs till the age of retirement as in regular Government service.
In 1973, the Third Central Pay Commission considered the pay scales of the employees in the Film Division including those of the Staff Artists.
The Commission, however, excluded the cases of Staff Artists from its consideration on the ground that they were not Government servants but contract employees.
It may be stated at this stage that the emoluments that are paid to the Staff Artists are termed as `fees ' and the scales of pay are termed as 'Fee Scales ', the reason being that they are contract employees and not Government servants.
PG NO 607 By an order dated March 9, 1977, the Government revised the Fee Scales of the Staff Artists in Doordarshan on the analogy of the recommendations of the Third Central Pay Commission made in respect of regular Government servants.
The revised Fee Scales came into force with effect from January 1, 1973.
It appears that up to the post of Cameraman Grade II in Doordarshan, the same scales of pay of equivalent posts in the Film Division as per the recommendation of the Third Pay Commission were given, but from the stage of Cameraman Grade II or Sound Recordist up to the post of Lighting Assistant/Lightman, the same pay scales of equivalent posts in the Film Division were not given.
The pay scale of Cameraman under the Film Division is Rs.650 96O, while the pay scale of the equivalent post of Cameraman Grade II in Doordarshan was fixed at Rs.550 900.
Similarly, the pay scale of Sound Recordist in Doordarshan was fixed at Rs.425 750 instead of Rs.550 900 as fixed in the case of the Sound Recordist in the Film Division.
The pay scale of Lighting Assistant/Lightman was fixed at Rs.330 480, while the pay scale of equivalent post in the Film Division, namely, Assistant Cameraman, was fixed at Rs.425 750.
It is the case of the petitioners that the nature of work performed by them is similar to that performed by their counterparts in the Film Division.
The qualifications required for appointment to these categories of Staff Artists, are the same as required in the cases of their counterparts in the Film Division.
In the circumstances, it is submitted by the petitioners that the said Government order dated March 9, 1977 is discriminatory and violative of Articles 14 and 16(1) of the Constitution.
Accordingly, in these writ petition it has been prayed that the petitioners should be declared as Government servants and paid the same scales of pay as paid to their counterparts in the Film Division with effect from the respective dates of their appointments.
The respondents have opposed the writ petitions by filling counter affidavits.
It has been averred in the counter affidavits that the Staff Artists of Doordarshan are not Government servants, but they are engaged on contract basis.
It is submitted that as they are not of the same class as of the employees in the Film Division, they are not entitled to the same scales of pay.
With regard to the Sound Recordists, petitioners in Writ Petition (C) No. 974 of 1978, it is the case of the respondents that there is no such post in the Film Division as "Sound Recordist".
It is averred that in the Film Division, there are three posts, namely, the Chief Sound Recordist, the Recordist and the Assistant Recordist.
It is, accordingly, contended that in Doordarshan, the organisational structure is entirely different and consists of only one category of post, that is, the Sound Recordist.
PG NO 608 The first question as to whether the Staff Artists of Doordarshan are Government servants or not, need not detain us long.
It was already been noticed that although initially their appointments were made on contract basis, subsequently the Staff Artists were being appointed up to the age of 55 60 years on a time scale like a regular Government servant.
Indeed, they possess all the criteria of a Government servant.
The question once came up before us in Union of India vs M.A. Chowdhary, AlR , which was disposed of by the following order: "Shri A.K. Ganguli, learned counsel for the Union of India submits that article 311 of the Constitution is applicable to the Staff Artists of the All India Radio.
We are of the view that the statement made on behalf of the Government represents the true legal position because the Staff Artists are holding civil posts under the Government.
In view of the above statement, this appeal filed against the judgment of the High Court of Allahabad in Special Appeal No. 258 of 1974 which has also taken the view that article 311 is applicable to those Staff Artists has to be dismissed.
This appeal is accordingly dismissed.
No costs.
" It will appear from the order extracted above that we took the view that the Staff Artists of All India Radio were holding civil posts under the Government.
There is no distinction between the Staff Artists of All India Radio and those in the Doordarshan.
Accordingly, we hold that having regard to the service conditions of the Staff Artists of Doordarshan and in view of the said decision, the Staff Artists of Doordarshan including the petitioners are Government servants.
The contention of the respondents that the category of Staff Artists designated as `Sound Recordist ' has no counterpart in the Film Division is without any substance.
It may be that in the Film Division, the designation is `Recordist ' and not `Sound Recordist ' but, in our opinion, it is quite immaterial.
It is not the case of the respondents that the nature of duty of the Recordist in the Film Division is something else than that of the Sound Recordist in Doordarshan.
Indeed, it is the case of the petitioners in Writ Petition (C) No. 974 of 1978, who are all Sound Recordists of Doordarshan, that they peform the same duties as performed by their counterparts in the Film Division, that is, the `Recordists ' or `Sound Recordists ' as PG NO 609 the case may be.
At this stage, it is significant to notice that the last sentence of paragraph 6 of the Reply Affidavit of the respondents to the Rejoinder of the petitioners in Writ Petition (C) No. 974 of 1978, affirmed by Shri Sailendra Shankar, the Director General of Doordarshan, reads as follows: "I reiterate that the petitioners cannot be compared with the Sound Recordist of the Film Division, who are regular civil servants.
" The above statement is an admission of the fact that there is the post of `Sound Recordist ' in the Film Division.
It may be that really the designation in the Film Division is `Recordist ', but the use of the designation as `Sound Recordist ' in the statement extracted above suggests that the `Recordists ' in the Film Division and the `Sound Recordists ' in Doordarshan are counterparts of each other.
The contention of the respondents is, accordingly, rejected.
We have gone through the averments in the writ petitions and those made in the counter affidavits filed by the Director General of Doordarshan and we have no hesitation in holding that the petitioners perform the same duties as those performed by their counterparts in the Film Division.
When two posts under two different wings of the same Ministry are not only identical, but also involve the performance of the same nature of duties, it will be unreasonable and unjust to discriminate between the two, in the matter of pay.
One of the directive principles of State Policy, as embodied in clause (d) of Article 39 of the Constitution, is equal pay for equal work for both men and women.
The provision of Article 39(d) has been relied upon by the petitioners.
The Directive Principles contained in Part IV of the Constitution, though not enforceable by any court, are intended to be implemented by the State of its own accord so as to promote the welfare of the people.
Indeed, Article 37 provides, inter alia, that it shall be the duty of the State to apply these principles in making laws.
Even leaving out of our consideration Article 39(d), the principle of "equal pay for equal work", if not given effect to in the case of one set of Government servants holding same or similar posts, possessing same qualifications and doing the same kind of work, as another set of Government servants, it would be discriminatory and violative of Articles 14 and 16 of the Constitution.
Such discrimination has been made in respect of the petitioners, who are the Staff Artists of Doordarshan, by not giving them the same scales of pay as provided to their counterparts in PG NO 610 the Film Division under the same Ministry of Information and Broadcasting.
The petitioners are.
therefore, entitled to the same scales of pay as their counterparts in the Film Division.
But the question is as to from which date they will be entitled to the scales of pay as prescribed for their counterparts in the Film Division.
The petitioners have claimed that such scales of pay should be admitted to them with effect from their respective dates of appointments.
After having given a careful thought to this aspect, we are of the view that ends of justice will be met sufficiently, if such scales of pay are given to the petitioners with effect from the first day of the month of the year in which each writ petition was filed in this Court except that in the case of Writ Petition (C) No. l756 of 1986 such scales of pay shall be given to the petitioners with effect from December 1, 1983.
In the circumstances, all these writ petitions are allowed.
The Sound Recordists, who are the petitioners in Writ Petition (C) No. 974 of 1978, shall be given the pay scale of the Recordist/Sound Recordist in the Film Division i.e., Rs.550 900 with effect from January 1, 1978.
The Cameramen Grade II, who are the petitioners in Writ Petition (C) No. 1239 of 1979, shall be given the pay scale of the Cameraman of the Film Division i.e., Rs.650 960 with effect from August 1, 1979.
The Lighting Assistants/Lightmen, who are the petitioners in Writ Petition (C) No. 1756 of 1986, shall be given the scale of Pay of Assistant Cameraman in the Film Division i.e., Rs.425 700 with effect from December 1, 1983.
The petitioners in all these writ petitions will also be entitled to the substituted scales of pay and consequential benefits.
The respondents are directed to disburse to the petitioners the arrear amounts being the difference in the pay scales within four months from today.
There will, however, be no order as to costs.
P.S.S. Petitions allowed.

summary:
The Government by an order dated March 9,1979 revised the fee scales of certain categories of Staff Artists in Doordarshan with retrospective effect from January 1, 1973 on the analogy of the recommendations of the Third Pay Commission made in respect of regular Government servants but the categories of the petitioners were denied the benefit by giving them junior scales.
In these writ petitions they assailed the said order as discriminatory and violative of articles 14 and 16(1) of the constitution.
Their case is that the nature of work performed by them is similar to that performed by their counterparts in the Film Division and the qualifications required For appointment to these categories of Staff Artists are also the same as required in the cases of their counterparts in the Film Division.
They, therefore, claimed that they should be declared Government servants and given the same pay scales as given to their respective counterparts in the Film Division of the same .Ministry of lnformation and Broadcasting with effect from the respective dates of their appointments.
The petitioners ' claim was contested by the respondents by contending that the Staff Artists of Doordarshan were not Government servants but were engaged on contract basis, that they were not of the same class as the employees of the Film Division and that they were therefore not entitled to the same scales of pay.
PG NO 604 PG NO 605 Allowing the writ petitions, HELD: 1.
The Staff Artists of Doordarshan including the petitioners are Government servants.
They possess all the criteria of a Government servant.
They are holding civil posts under the Government.
They are being appointed up to the age of 55 6O years on a time scale like a regular Government servant.
Their contract runs till the age of retirement as in regular government service.
608E, B, 606F] Union oflndia vs M.A. Chowdhary, AIR 1987 SC l526, applied.
2.1 The petitioners perform the same duties as those performed by their counterparts in the Film Division, under the same Ministry of Information and Broadcasting.
When two posts under two different wings of the same Ministry are not only identical, but also involve the performance of the same nature of duties, it would be unreasonable and unjust to discriminate between them in the matter of pay.
[609D] 2.2 One of the Directive Principles of State Policy as embodied in clause (d) of article 39 of the Constitution is equal pay for equal work for both men and women.
The Directive Principles contained in Part IV of the Constitution though not enforceable by any court, are intended to be implemented by the State of its own accord so as to promote the welfare of the people.
Article 37 provides, inter alia, that it shall be the duty of the State to apply these principles in making law.
[609E F] 2.3 The principle of "equal pay for equal work", if not given effect to in the case of one set of Government servants holding same or similar posts, possessing same qualifications and doing the same kind of work as another set of Government servants it would be discriminatory and violative of articles 14 and 16 of the Constitution.[609G] Such discrimination has been made in respect of the petitioners.
They are, therefore, entitled to same scales of pay as their counterparts in the Film Division.[609H 6l0A] [The petitioners to be given the new scales of pay with effect from the first day of the month of the year in which each writ petition was filed, except the petitioners in writ Petition Civil No. 1756 of 1986 who are to be given such scales of pay With effect from December 1,1983.
They would also be entitled to the substituted scales of pay and consequential benefits.
The respondents to disburse to the petitioners the arrear amounts being the difference in the pay scales within four months.][610B C,E F] PG NO 606


judgement:
tion (Civil) Nos.
5187 89 of 1985 etc.
(Under Article 32 of the Constitution of India) PG NO 592 P.S. Khera and Mrs. Sushrna Suri for the Petitioners.
Kuldip Singh, Additional Solicitor General; C.V.S. Rao, Ms. A. Subhashini, Girish Chandra and N.S.D. Behl for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question involved in these petitions is whether the workmen who were working in canteens established under section 46 of the (hereinafter referred to as 'the Act ') in Ordnance Equipment Factory, Kanpur, Central Ordnance Depot, Kanpur and Air Force Station, Kanpur are entitled to claim the period of service in such canteens prior to 22.
10. 1980 as part of the qualifying service for claiming pension.
The three industrial establishments, referred to above, namely; Ordnance Equipment Factory, Central Ordnance Depot and Air Force Station, Kanpur are defence establishment forming part of the Defence Department of the Union of lndia.
By the Order No. 18(l)80/D(JCM) dated the 25th July, 1981 sanction was accorded by the President of India to treat all employees of canteens established in Defence Industrial Installations under section 46 of the Act as Government employees with immediate effect.
By an amendment, the said Government Order was given effect from 22.
10. 1980.
The Government Order further provided that it would be applicable to all employees of the statutory canteens irrespective of the type and management of the canteens and till the Government decided otherwise the employees of the said canteens would continue to be governed by the terms and conditions of service laid down in their appointment letters and contracts of employment already subsisting.
It was further stated that they would be continued to be paid such employments to which they were entitled then.
When some of the employees retired after 22.10.1980 they applied for payment of pension.
The Defence Department declined to treat the period of service rendered by them prior to 22.
10. 1980 in such canteens as part of qualifying ~service for purposes of pension on the ground that it was only with effect from 22.10.1980 from which date they had become Government employees their qualifying service could be counted.
Aggrieved by the rejection of the claim of the workers in those canteens, the petitioner s herein, have filed these petitions in this Court for declaration that th service rendered by the employees of such canteens prior to 22.10.1980 should be treated as qualifying service for purposes of pension.
On behalf of the Union of India counter affidavits were filed resisting the claim of the PG NO 593 petitioners.
As the information furnished in the counter affidavits was inadequate for purposes of disposing of the cases, the Court by its order dated 22.3.1988 directed the Union of India to file a fuller affidavit giving information about the following matters, namely; the authority which had the power to appoint workers in such canteens prior to 22.
1980, the authority which was paying salary to the workers in the said canteens prior to 22.
l9S0, the authority which~ was controlling such canteens prior to 22.
1980, the particulars of the persons who were consumers of the service rendered by the said canteens prior to 22.
10.1980 and other relevant matters in order tn decide the status of the workers in the said canteens prior to 22.10.1980.
Thereupon a further affidavit has been filed by Shri N. Sivasubramanian, Joint Secretary (Ordnance Factories) to the Government of India, Ministry of Defence, New Delhi.
In the said affidavit it is stated that (a) prior to being declared as Government servants w.e.f. 22. 10. 1980 the canteens workers in Ordnance Factories were under the canteen managing committees constituted as per provisions of section 46 of the Act, (b) the supervision and control of such canteens were exercised by the Canteen Managing Committee consisting equal number of elected representatives of the factory workers and nominees of the management and the Canteen Managing Committee was the appointing authority of the canteen workers; and (c) that the Canteen Managing Committee was paying the salary to the workers and also controlling the canteens.
It was further admitted that by the letter dated 24.5.
1965 of the Ministry of Defence it had been ordered thus: "The question of subsidising the canteens maintained in Defence Industrial Installations with reference to provisions of Section 46 of the has been under the consideration of Government for some time.
After a detailed examination of the matter it has been decided that in order to reduce the cost of meals and snacks served by the canteen to the personal of the Defence Industrial Installation registered as factories and subject to the conditions indicated in the succeeding paras, the cost of supervisory and clerical staff and cooks.
bearers.
helpers, vendors etc.
employed in these canteen should be reimbursed by the Govt.
to the Managing Committee of such canteens The Commandants of the installation will simultaneously ensure that the cost of the meals/snacks provided by these canteens is reduced proportionate to the subsidy received from Govt.
for the cost of the staff .
PG NO 594 In order to ensure that uniform standards for employment of staff and payment of salaries as far as possible and the subsidy paid by the Government is related to total number of personnel served by the canteens the number and grades of supervisory clerical and working staff and the scales of pay that should be allowed to them are given in Appendix `A ' to this office Memorandum for the guidance of the installation Commanders and the Managing Committee.
These scales of staff and salaries are the maximum outer limits within which the local Management may engage the staff and workers actually required.
Where staff can be engaged on more economical rates it may be employed on such rates.
The existing supervisory clerical and working personnel may be brought over to those pay scales to the extent necessary by taking into account their existing emoluments and thereafter annual increments may be allowed after one year from the date of switch over to these scales.
Other concessions or allowances of any kind should be allowed to the staff in addition to these consolidated pay scales.
Other terms and conditions of service may continue to be regulated by the Managing Committee as here to fore . .Reimbursement of the cost of staff will be limited to the scales indicated in the appendix . .
These orders are not applicable to the canteens which are at present run by contractors.
Such canteens can, how ever, be switched over to this scheme after the terms of the contract with the contractor have expired or by terminating the contract, in accordance with the existing clauses thereof if any.
This scheme will also be applicable to new canteens organised by cooperative societies of the staff of Managing Committee appointed under the guidance of the administration in pursuance of section 46 of the in other Defence Industrial Installations which are registered as ,factories,, and where canteens have not so far been opened".
It is seen from the above letter of the Ministry of Defence that prior to 24.5.1965 there were three kinds of canteens, namely; (i) canteens run by contractors (ii) canteens run by co operative societies of the staff, and (iii) canteens which had been established under section 46 PG NO 595 of the Act.
We are not concerned with the first two categories of the canteens but only with the last category of canteens in this case.
The above Ministry of Defence letter provides for subsidising the canteens maintained in Defence Industrial Installations under section 45 of the Act.
It also gives directions regarding pay scales, conditions of service etc.
The consumers of the services rendered by such canteens were the `factory employees for whose benefit they had been established.
It is also not disputed that the building or buildings in which such canteens had been established formed part of the industrial establishment concerned.
The Act is applicable both to the factories run by Government and the factories run by other private companies, organisations, persons etc.
It was enacted for the purpose of improving the conditions of the workers in the factories.
Section 46 of the Act reads thus: "46.
Canteens. (1) The State Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for (a) the date by which such canteen shall be provided ; (b) the standards in respect of construction, accommodation, furniture and other equipment of the canteen; (c) the foodstuffs to be served therein and the charges which may be made thereof; (d) the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen ; (dd) the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuff and which shall be borne by the employer; (e) the delegation to the Chief Inspector, subject to such conditions as may be prescribed, of the power to make rules under clause (c).
" PG NO 596 Rule 68 of the U.P. Factories Rules, 1950 (hereinafter referred to as `the Rules ') framed under sections 46 and 112 of the Act gives particulars regarding the type of building that should be made available for running a canteen and the manner in which accounts should be maintained in such canteens.
It further provides that a canteen managing committee should be established under clause (20) of rule 68 of the Rules.
The Managing Committee shall consist of an equal number of persons nominated by the occupier and elected by workers.
The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory, provided that in no case shall there be more than 5 or less than 2 workers on the Committee.
The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier.
The expression `occupier ' of a factory is defined in section 2(n) of the Act as the person who has ultimate control over the affairs of the factory, provided that (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; and (iii) in the case of a factory owned or controlled by the Central Government or and State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier.
Under clause (iii) of section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier.
The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to comply with section 36 of the Act by establishing a canteen for the benefit of workers.
the Canteen Managing Committee, as stated above, has to be established under rule 66 of the Rules to manage the affairs of the canteen.
The functions of the Canteen Management Committee are merely advisory.
It is appointed by the Manager appointed section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, that arrangement of the menus, times of meals in the canteen etc.
The food.
drink and other items served in the canteen are required to be sold on `no profit ' basis and the prices charged are subject to the approval of the Managing Committee.
The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers.
PG NO 597 The building for the canteen has to be provided by the occupier.
Under sub rule (13) of rule 68 of the rules there shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteen.
Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained.
Thus the basic requirements of the canteen, such as buildings, utensils, crockery, cultery, furniture etc. should be supplied by the occupier.
Under the Ministry of Defence letter dated 24.5.1965 the prices of food, drink and articles supplies for the canteens are to be subsidised.
A canteen is an integral part of the Defence establishment belonging to the Union of India.
There cannot be a canteen without sufficient number of workers working in the canteen.
The have to be appointed by the occupier.
Otherwise he would not be full complying with section 46 of the Act.
The Managing Committee cannot be the employer of those workmen in the true sense of the term.
The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India.
We may, however, add that in the case of a canteen run b a contractor or a co operative society or some other body the position may be different.
But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act.
Even in this case the contractor or the co operative society or some other body will be the employer but no the Managing Committee.
In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would not be employees of the occupier, even though for purposes of management a Canteen Managing Committee, whose functions are advisory as pointed out above, has to be constituted under the Rules.
It is also not shown that on the workers in the canteens becoming the Government employees on 22.10.
1980 they were paid by the previous management, named, the Canteen Managing Committees consituted under rule 68 of the Rules any compensation in lieu of the services rendered by them prior to 22.10.1980.
We find it, therefor, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established.
If they are employees of the factories in which the canteen is established.
the service rendered by them in these factories should be counted as part of the qualifying service for pension.
Hence, the plea of the Union Government that the service rendered by the workers in canteens PG NO 598 established under section 46 of the Act on and after 22.10.1980 alone can be included in the qualifying service for pension cannot be accepted.
The period prior to 22.10.1980 also should be counted for purposes of pension.
We, therefore, direct the Union Government to treat the period during which the workers had served in the canteens established under section 46 of the Act in the Defence establishments at Kanpur with which we are concerned in these cases prior to 22.
10. 1980 also as part of the qualifying service for purposes of pension.
We further direct that the pension payable to those employees who have retired from service on or after 22.
1980 shall be recomputed by taking the period of service during which they had worked prior to 22.
1480 in such canteens into consideration.
Such computation shall be made within six months from today.
The arrears of pension payable to those who have retired from service shall be disbursed to them within three months after such computation.
The petitions are accordingly allowed.
No costs.
R.S.S. Petitions allowed.

summary:
The President of India, by order dated July 25, 1981 accorded sanction to treat all employees of canteens established ia Defence Industrial Installations under section 46 of the , as Government employees.
The order was given effect from 22.12.1980.
The petitioners were working in the canteens of the three Defence establishments at Kanpur, forming part of the Defence Department of the Union of India.
On their retirement after 22.10.1980 the petitioners claimed that the period of service rendered by them prior to 22.10.1980 canteens be counted towards their qualifying service for the purposes of pension.
Their claim was not accepted.
The respondents ' contention was that prior to 22.10.1980 the canteens in Ordnance factories were supervised and controlled by the Canteen Managing Committee consisting of equal number of elected representatives of the factory workers and nominees of management, and these Committees were the appointing authority of the Canteen workers and paid their salaries.
Allowing the petitions, it was, HELD: (1) It was admitted by the respondents that by the letter dated 24.5.1965 of the Ministry of Defence, provision had been made for subsidising the canteens maintained in Defence Industrial Installations under section 4th of the Act.
The letter also contained directions regarding pay scales, conditions of service, etc.
of the employees.
The cost of supervisory and clerical staff and cooks etc.
was to be reimbursed by the Government and the canteen buildings formed part of the industrial establishment concerned.
[595A B] (2) The expression 'occupier ' of a factory is defined in section 2 (n) of the as the person who has ultimate control over the affairs of the factory.
Under PG NO 590 PG NO 591 cause (iii) of section 2(n), in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier.
[596C,F] (3) A canteen is an integral part of the Defence establishment belonging to the Union of India.
There cannot be a canteen without sufficient number of workers working in the canteen.
They have to be appointed by the occupier.
Otherwise he would not be fully complying with section 46 of the .
The Managing Committee cannot be the employer of those workmen in the true sense of the terms.
The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is un certain cannot be considered to be the employer who has to bear the legal responsibilities under the several labour laws in force in India.
[597C D] (4) The basic requirements of the canteen, such as Buildings, utensils, crockery, cutlery, furniture, etc.
are to be supplied by the occupier.
[597B C] (5) In this situation it is difficult to hold that the employees in canteens established under section 46 of the Act would not be employees of the occupier, even though for purposes of management a Canteen ,Managing Committee, whose functions are advisory, has to be constituted under the Rules.
l597F] (6) It is also not shown that the workers in the canteens becoming the Government employees on 22.10.1980.
They were paid by the previous management, namely, the Managing Committee constituted under rule 68 of the U.P. Factories Rules, 1950 any compensation in lieu of services rendered by them prior to 22.10.1980.
[597F G] (7) It is, therefore, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established.
If they are employees of the factories in which the canteen is established, the service rendered by them in these factories should be counted as part of the qualifying service for pension.
[597G H]