judgement:
Civil Appeal No. 2202 of 1969.
Appeal by Special leave from the Judgment and order dated the 2nd January, 1969 of the Kerala High Court in A.S. No. 838 of 1958.
G.B. Pai, D.N. Misra, O.C. Mathur and Miss. Meera Mathur for the Appellant.
N. Sudhakaran for Respondent No. 1.
MRK Pillai for the Respondent No. 2.
The Judgment of the Court was delivered by DESAI, J.
Plaintiff whose car was destroyed in fire way back in July 1953 and claimed a paltry sum of Rs. 7,000 from the respondent (Insurance Company for short) is knocking at the doors of Courts of Justice since last three decades and mirage of justice is still eluding him, and in his chase presumably he must have spent double the amount than prayed for in the plaint because this is the second round when the matter has reached the apex court.
Plaintiff, who is the appellant was the owner of Austin 16 H.P. Motor Car, which he had insured with the original ' first defendant Vanguard Fire and General Insurance Company Ltd. ( 'Insurer ' for short) in respect of accident, loss or damage.
The period covered by the policy of insurance Ext.
P 1 dated March 4, 1952 was from March 1, 1952 to February 28, 1953.
This car suffered damage in an accident which occurred on December 21, 1952.
The car was taken to car repairing workshop of P.S.N. Motors Ltd., Trichur and left there and an intimation of the accident was sent to the Insurer requesting it to discharge its obligation under the policy of insurance.
The repairer to whom the car was handed over prepared an estimate of the repair charges in the amount of Rs. 2010 and forwarded the same to the Insurer.
After some protracted correspondence, the Insurer accepted the estimate of repair charges in the amount of Rs. 1910 and the Insurer by its letter dated Ext.
P 13 dated March 25, 1953 wrote to the plaintiff and the repairer as under: We have pleasure to inform you that the revised estimate of M/s P.S.N. Motors Ltd., Trichur has been 482 approved by our head office, and they have been advised to proceed with the repairs and send us their final bill together with the discharge voucher duly filled in and signed by you, for making the payment.
Assuring you of our best services always.
" Since the date of the accident the car was in the custody of the repairer for the purpose of repairs.
On July 10, 1953, a fire occurred in the workshop of the repairer in which the Motor Car of the plaintiff was destroyed.
The plaintiff called upon the Insurer to idemnify him for the loss as per the terms of the policy of insurance alleging that the Motor Car was in the possession and custody of M/s P.S.N. Motors Ltd on behalf of the Insurer and was being repaired at the sole responsibility of the Insurer under its instruction and since the Insurer had entrusted the Motor Car for repairs to a workshop in which several automobiles with inflammable materials like oil, petrol, tyres etc.
were Lying without ascertaining whether the workshop was insured against fire and other risks, the Insurer was liable to make good the loss.
The plaintiff claimed the value of the Motor Car on the footing that the respondent company was a bailee of the Motor Car and had failed to take such care thereof as a person of ordinary prudence would under similar circumstances take of his property of the same quality and value as the Motor Car bailed.
This last submission alleging a contract of bailment is seriously disputed by the respondent insurance company.
The Insurer contested the claim, inter alia, contending.
that the suit is not maintainable in view Condition No. 7 of the policy of insurance an aspect of the matter which is concluded against the respondent company and, therefore, it is not necessary to set out in extenso the contention under this head.
The contract of bailment was seriously disputed and it was submitted that the car was handed over to the workshop by the plaintiff 's son and the insurance company had only agreed to re imburse the loss and the workshop owner was not the agent of the Insurer nor was the insurance company a bailee; nor could it be said that the agent of the bailee was in possession of the car.
The trial court held that the Motor Car was entrusted to the repairer for and on behalf of the Insurer and the insurance company 483 was liable for the loss of the Motor Car as it was in possession of the agent of the insurance company.
The suit was held to be maintainable, despite condition No. 7 of the policy of insurance.
Accordingly, the suit was decreed with costs.
An appeal was preferred to the High Court of Kerala at the insurance of the Insurer.
The High Court held that condition No. 7 of the policy of insurance precluded the plaintiff from filing the suit before obtaining the award and on the short ground allowed the appeal of the Insurer and dismissed the suit.
The plaintiff preferred Civil Appeal No. 142 of 1965 by special leave to this Court.
Shah, J. speaking for the Court in the judgment rendered on October 31, 1967 held that the High Court was in error in coming to the conclusion that condition No. 7 precluded the plaintiff from filing the suit.
This Court held that condition No. 7 of the policy of insurance has no operation in the case since the difference between the Insured and Insurer arose not out of the policy; but out of the claim of the plaintiff that the Motor Car was delivered to the respondent company for repairs.
Accordingly, this Court reversed the decision of the High Court and remitted the appeal to the High Court requesting the High Court to deal with the following questions which arise in the appeal: "1.
Whether the respondent Company was a bailee of the motor car of the plaintiff as alleged by the plaintiff? 2.
Whether the respondent Company failed to take as much care of the motor car as a person of ordinary prudence would in similar circumstances take of his own motor car of the same quality and value ? and 3.
the value of the motor car destroyed.
" When the matter went back to the High Court, the appeal was heard by a Division Bench of the Kerala High Court.
The Bench hearing the appeal had some doubt whether in view of the pleading the plaintiff can claim any relief on the basis of a contract of bailment.
After expressing this doubt, the High Court proceeded to observe that in view of the scope of remand the High Court has to decide the question whether or not the Insurer was a bailee of the plaintiff ? 484 After referring to the correspondence, the High Court reached the conclusion that the Motor Car was entrusted to M/s P.S.N. Motors Ltd. by the plaintiff 's son on behalf of the plaintiff for repairs, that it was done without reference to the defendant, that all that the defendant agreed was to pay to the plaintiff or to P.S.N. Motors Ltd., on his behalf, the amount which was settled as the charges for carrying out all the repairs.
" In this view of the matter, the High Court held that the Insurer was not a bailee of the Motor Car of the plaintiff and the plaintiff 's claim as founded on a contract of bailment cannot succeed.
The High Court, accordingly, allowed the appeal of the insurance company and dismissed the suit of the plaintiff directing the parties to bear their respective costs.
Hence this appeal by the plaintiff by special leave.
By the time the appeal was filed in this Court, the was enacted and brought into operation.
The Central Government in exercise of the powers conferred by sub sec.
(1) of sec.
16 of Nationalisation Act framed the scheme which was published in the Gazette of India Extraordinary Part II Sec.
3 Sub section (ii) .
dated December 31, 1973.
The First Schedule appended to the scheme shows that Vanguard Insurance Company Limited has been merged with the New India Assurance Company Ltd. It may be noticed that the name of the first respondent is shown to be the Vanguard Fire & General Insurance Co. Ltd. It is not made clear whether the Vanguard Insurance Co. Ltd. set out in the First Schedule to the scheme is the same as the respondent in this appeal.
That question is kept open to be debated if the obligation to pay the plaintiff under the policy of insurance is decreed in favour of the plaintiff by us.
Since the High Court had to decide the appeal within the scope of order of remand made by this Court, it is necessary to confine attention only to the questions which this Court directed the High Court to determine.
We have already extracted the three questions framed by this Court in its judgment rendered on October 31, 1967.
The first question is whether the respondent insurance Company was a bailee of the Motor Car of the plaintiff as alleged by the plaintiff ? Section 148 of the Indian Contract Act defines a contract of bailment as under : 485 "A `bailment ' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them.
The person to whom they are delivered is called the "bailee".
" There is an explanation appended to the section which provides that if a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailer of such goods, although they may not have been delivered by way of bailment.
149 provides that the delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf.
150 prescribes bailer 's duty to disclose to the bailee faults in the goods bailed.
151 provides that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.
The High Court came to the conclusion that it is clear from the correspondence between the parties ending with Ext.
P 13 that the car was entrusted to P.S.N. Motors Ltd. Trichur by the plaintiff 's son on behalf of the plaintiff for the repairs and that it was done without reference to the insurance Company and that all that the defendent insurance Company agreed was to pay to the plaintiff or to P.S.N Motors Ltd. on his behalf, the amount which was settled as the charges for carrying out all the repairs.
Approaching the matter from this angle, the High Court held that the Insurer was not a bailee of the Motor Car and the plaintiff cannot succeed in his claim as founded on a contract of bailment.
This conclusion is not borne out by the record and is against the weight of evidence.
The High Court did not make any reference to the terms of the contract of insurance between the parties before rejecting the plaintiff 's case that the Insurer was the bailee and the repairer was the sub bailee who had custody of the Motor Car on the entrustment of the custody for the avowed object of repair by the bailee to the sub bailee.
For us, it is a bit surprising that the High Court should have rejected the plaintiff 's case out of hand without slightest 486 reference to the contract of insurance evidenced by the policy Ext.
A bare perusal of some of its conditions would unmistakably lead to the conclusion that the Insurer was a bailee of the Motor Car in question.
The first condition which is the usual condition in such a contract is that the contract of insurance is a contract of indemnity and the Insurer undertake to indemnify the Insurer against loss of or damage to the Motor Car and/or its accessories whilst thereon by accidental external means.
The next important condition is that in the event of the Motor Car being disabled by reason of loss or damage covered under the policy of insurance, the Insurer will bear the reasonable cost of protection and removal to the nearest repairers and of redelivery to the insured but not exceeding in all Rs. 150 in respect of any one accident.
One other condition worth noting reads as under: "The insured may authorise the repair of the Motor Car necessitated by damage for which the Company may be liable under this Policy provided that: (a) the estimated cost of such repair does not exceed Rs. 300 (b) the Company is furnished forthwith with a detailed estimate of the cost and (c) the Insured shall give the Company every assistance to see that such repair is necessary and the charge reasonable.
" The next condition to which reference may be made is condition No. 4 which reads as under: "Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the Insured shall give all such information and assistance as the Company shall require.
" A further condition is that 'the Company may at its own option repair, reinstate or replace the Motor Car or part thereof and/or its accessories or may pay in cash the amount of the loss or damage 487 and the liability of the Company shall not exceed the actual value. ' There is the further condition which may be noticed. 'In the event of any accident or breakdown the Motor Car shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the Motor Car be driven before the necessary repairs are effected any extension of the damage or any further damage to the Motor Car shall be entirely at the Insured 's own risk. ' We are constrained to reproduce all these very relevant conditions which have a tell tale effect on the question whether the Insurer was the bailee of the Motor Car because the High Court wholly ignored them.
In a contract of insurance, there are mutual rights and obligations both of the Insurer and the Insured.
If the Motor Car is damaged in an accident, a duty is cast on the Insured not to leave the damaged car unattended which of necessity would oblige the Insured either to keep a watchman or if the car is in a condition to be moved it ought to be taken to a repairer.
From the scene of accident when the car is taken to the nearest repairer, the Insurer undertakes an obligation to reimburse the cost of removal to the Insured.
This would imply that from the scene of accident, it is the duty of the Insurer to remove the car to the nearest repairer but this duty is to be performed by the Insured on behalf of the Insurer and the Insured is entitled to be reimbursed for the expenses incurred by him.
Therefore, it was obligatory upon the Insured to remove the car to the nearest repairer.
This obligation arose under the contract of insurance.
The High Court rejected the contention of the plaintiff that the Insurer was a bailee on the short ground that the car was entrusted to the repairer by the plaintiff 's son on behalf of the plaintiff for repair and that it was done without reference to the Insurer and that all that the defendant agreed was to pay the plaintiff or to P.S.N. Motors Ltd. On his behalf the amount which was settled as the charges for carrying out all the repairs.
When the plaintiff 's son soon after the accident took the damaged car to the nearest repairer, the plaintiff was discharging an obligation under the contract of insurance, for and on behalf of the Insured because he could have legitimately claimed the cost of removal not exceeding Rs. 150 from the Insurer.
This would imply that the Insurer took charge of the damaged car from the scene of accident and got it moved to the nearest repairer.
The car virtually came into the custody of the Insurer and the repairer took the custody for and on 488 behalf of the Insurer.
The material aspect has been wholly overlooked by the High Court.
Secondly, the High Court observed that the Insurer merely agreed to pay to the plaintiff Insurered or to the repairer on his behalf the amount which was settled as the charges for carrying out all the repairers.
At this stage High Court overlooked another important condition of the contract of insurance which has been extracted hereinabove.
The Insurer may at its own option either can repair, reinstate or replace the Motor Car, once the car was damaged in accident.
The obligation to repair the damaged car arose under the contract of insurance.
The Insurer had an absolute discretion either to repair, reinstate or replace the Motor Car.
When the Insurer has the option to replace the Motor Car, it can take over the damaged car and the Insured is bound to submit to the same.
If the Insurer on the other hand, exercised the option of repairing the car, it is entitled not merely to choose the repairer but also to determine the charges for repairs to be negotiated and settled between the Insurer and the repairer and the Insured has hardly anything to do with it.
When these three conditions are read together and the evidence is appreciated the inescapable outcome is that the plaintiff through his son sent the Motor Car soon after the accident to the nearest repairer in discharge of an obligation under the contract of insurance and that too for and on behalf of the Insurer.
In this state of unimpeachable evidence emanates from the binding contract between the parties, the High Court was clearly in error in holding that the plaintiff 's son took the car to workshop on his own without reference to Insurer.
The Insurer decided to get the car repaired and not to reinstate or replace the car.
Having exercised this option, the Insurer entered into negotiations with the repairer and between them by Ext.
P 13 worked out the rights and obligations.
The obligation to pay repair charges arose out of contract of insurance.
The Insurer wanted the repairer to repair the car and recover the charges from the Insurer.
The custody of the repairer would be that of a sub bailee because the Insurer was the bailee as pointed out earlier from the time of accident.
Since the accident, the Insured dealt with vehicle strictly as provided under the contract of insurance and that necessitated taking the car to the nearest repairer for and on behalf of the Insurer.
The Insurer became the bailee and the repairer may have been initially pointed out by the bailer but with whom the Insurer entered negotiation arrived at a contract and agreed to get the car repaired in discharge of an obli 489 gation under the contract of insurance.
Therefore, for this additional reason the custody of the repairer is that of a sub bailee.
A reference to some decisions in this context would bear out the conclusion.
In Morris vs C.W. Martin & Sons Ltd.(1) plaintiff sent her mink stole to a furrier for cleaning.
The furrier, contracting as principal not agent, arranged with the defendants for them to clean the plaintiff 's fur on the current trade conditions, of which the furrier knew.
The defendants knew that the fur belonged to a customer of the furrier, but did not know to whom it belonged.
M, an employee of the defendants, was given the task of cleaning the fur.
While the fur was in M 's custody, he stole it.
The plaintiff sued the defendants for damages.
The suit was dismissed.
In an appeal by the plaintiff, the Court of Appeal reversed the decision and decreed the plaintiff 's suit.
Lord Denning quoted with approval the following passage from Pollock and Wright on Possession: "If the bailee of a thing sub bails it by authority . and there is no direct privity of contract between the third person and the owner it would seem that both the owner and the first bailee have concurrently the rights of a bailer against the third person according to the nature of the sub bailment.
" It was accordingly held that if the sub bailment is for reward, the sub bailee owes to the owner all the duties of a bailee for reward, and the owner can sue the sub bailee direct for loss of or damages to the goods; and the sub bailee is liable unless he can prove that the loss or damage occurred without his fault or that by his servant.
In Gilchrist Watt & Sanderson Pty Ltd. vs York Products Pty Ltd.(1); the Shipowners carried two cases of clocks, belonging to the plaintiffs in their vessel from Hamburg to Sydeny, where the defendants carried on the business of stevedores and ship 's agents.
The bill of lading provided, inter alia,: "When the goods are discharged from the vessel, they shall be at their own risk and expense; such discharge shall constitute complete delivery and performance under this contract and the shipowners shall be freed from any further responsibility".
The defendants unloaded the two cases from 490 the vessel.
When the plaintiff sought to take delivery of the two cases, one of them was missing and was not recovered.
The plaintiffs sued the defendants on the ground that they were sub bailee and are answerable to the plaintiffs to the same extent as the bailee.
The Privy Council affirming the decision in Morris 's case held that the bailment to the shipowners continued till the goods were delivered to the plaintiff, but in the meantime there was a sub bailment from the shipowners to the defendants.
The defendants as sub bailee were given and took possession of the goods for the purpose of looking after them and delivering them to the holders of the bill of lading who were the plaintiffs, thereby the defendants took on this obligation from the plaintiff to exercise due care for the safety of the goods, although there was no contractual relations between the plaintiffs and the defendants.
For this proposition Morris 's case was held to be the principal authority and it was virtually followed.
It is not necessary to multiply the decisions further.
Turning to the facts of this case as pointed out earlier, the contract of insurance as evidenced by the insurance policy clearly spelt out a duty and an obligation to remove the damaged car covered by the policy to the nearest repairer as soon as the accident occurred.
This was an obligation cast on the Insured to be carried out on behalf of the Insurer, and this was to be done for the benefit of the Insurer because the Insurer had the option to repair or to replace the car.
In the background of these facts, the handing over of the car by son of the plaintiff to the repairer would constitute a delivery on behalf of the Insurer who would be the bailee and the repairer would be the sub bailee.
This inference is further strengthened by the correspondence that ensued between the Insurer and the repairer.
The obligation to get the car repaired was of the Insurer.
It had a right to take the car into its custody.
It did formally take the car into the custody when it expected the repairer to whom the custody was given as the one acceptable to them and entered into negotiations about the repair charges and finally agreed to pay the repair charges to the repairer.
Unquestionably, the Insurer would be the bailee and the repairer would be the sub bailee.
The second point which this Court directed the High Court to decide was whether the respondent company failed to take as much care of the Motor Car as a person of ordinary prudence would 491 in similar circumstances take of his own Motor Car of the same quality and value? When the car was in the custody of the sub bailee, it was destroyed by fire that occurred in the repairer 's workshop.
The sub bailee was bound to take the same care as a man of ordinary prudence would take in regard to his own goods of the same quality and value as was expected of the bailee.
Now no evidence has been led by the defendants to explain what amount of care the bailee or the sub bailee took in respect of the car.
When the custody is of the bailee or the sub bailee, the burden is on them to show how they handled the car.
This is well established and need no authority.
In Morris 's case, the question of burden of proof was examined by the Court of Appeal and the law was stated as under: "Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe; and he cannot escape that duty by delegating it to his servant.
If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show and the burden is on him to show that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty." In the present case, the trial Court held that the repairer the sub bailee failed to take that much care as a prudent man would take of his own thing in respect of the car.
The High Court has not touched this aspect while reversing the decision of the trial Court.
There is no evidence on behalf of the Insurer on the question as to what amount of care has been taken by the repairer the sub bailee.
One R. Rajaram D.W. 1 was examined on behalf of the Insurer, and there is not one word in his examination in chief as to what degree of care was taken to keep the car in safe custody by the sub bailee.
No one was examined on behalf of the sub bailee.
The burden was on them to establish to the satisfaction of the Court as to what degree of care was taken in respect of the damaged car.
Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept.
Without doubt the burden being on the bailee and the sub bailee and the same having not been discharged, the learned trial Judge was perfectly justified in accepting the evidence of the plaintiff and in recording the finding that bailee and the 492 sub bailee had not taken such care of the car as was expected of the prudent man in respect of his own goods of the same quality and value.
Therefore, the bailee is liable for the loss suffered by the plaintiff the bailer.
The last point which this Court directed the High Court to determine was about the value of the destroyed car.
The plaintiff has given the value of the Motor Car at the time of its loss at Rs. 7,000, and that is the measure of the loss suffered by the plaintiff on account of the loss of the car.
The trial Court had decreed plaintiff 's suit to the extent of Rs. 7,000.
The finding is confirmed.
For the reasons herein mentioned, this appeal must succeed and it is accordingly allowed.
The Judgment and decree of the High Court are set aside and the one passed by the trial Court is restored with costs throughout.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant 's motor car, insured with the respondent (`insurer ') suffered damage in an accident and was taken to and left in the custody of a repairer.
On receipt of intimation of the accident, the insurer entered into correspondence with the repairer, accepted the estimate of repair charges and advised the repairer to proceed with the repairs.
motor car was, however, destroyed in a fire which occurred hl the repairer 's workshop.
The appellant filed a suit claiming from the insurer the value of the motor car on the footing that the insurer was the bailee of the motor car while it was in the custody of the repairer.
The trial court upheld the contention of the appellant and decreed the suit but, in appeal, the High Court set aside the decree and dismissed the suit on a ground not related to the contention based on the contract of bailment.
In Civil Appeal No, 142 of 1965 decided on October 31,1967 this Court allowed the appeal of the appellant and remitted the same to the High Court requesting it to deal with the following questions: (i) whether the insurer was a bailee of the motor car; (ii) Whether the insurer failed to take as much care of the car as a person of ordinary prudence would in similar circumstances; and (iii) The value of the destroyed car.
1 he High Court held on the basis of the correspondence between the parties that the car was entrusted to the repairer by the appellant 's son on behalf of the appellant, that this was done without reference to the insurer, that the insurer had only agreed to pay the repair charges and that therefore the insurer was not a bailee of the motor car.
Allowing the appeal, ^ HELD: 1.
A bare perusal of some of the conditions contained in the contract of insurance would unmistakably lead to the conclusion that the insurer was a bailee of the motor car.
The custody of the repairer was that of a sub bailee.
The High Court went wrong in not making any reference to the contract of insurance between the parties.
In a contract of insurance, there are mutual rights and obligations both of the insurer and the insured.
If the motor car is damaged in an accident, a duty is cast on the insured not to leave the damaged car unattended which of necessity would oblige the insured either to keep a watchman or if the car is in a condition to be moved it ought to be 480 taken to a repairer, and the insurer undertakes an obligation to reimburse the cost of removal to the insured.
This would imply that from the scene of the accident, it is the duty of the insurer to remove the car to the nearest repairer but this duty is to be performed by the insured on behalf of the insurer.
Another important condition of the contract is that, once the car is damaged in an accident, the insurer may, at its own option, either repair, reinstate or replace the motor car.
When the insurer has the option to replace the motor car, it can take over the damaged car and the insured is bound to submit to the same.
If the insure, on the other hand, exercises the option of repairing the car, it is entitled not merely to choose the repairer but also to determine the charges for repairs to be settled between the insurer and the repairer and the insured has hardly anything to do with it.
[486A, 487 C D, 488 C D] Moris vs C. W. Martin & Sons, Ltd., [1965] 2 All E.R. 725; and Gilchrist Watt and Sanderson Pty Ltd. vs York Products Ltd., ; referred to.
In the instant case, when the appellant 's son soon after the accident took the damaged car to the nearest repairer, the car virtually came into the custody of the insurer and the repairer took the custody for and on behalf of the insurer.
The obligation to get the car repaired was that of the insurer.
The insurer formally took the car into its custody when it accepted the repairer to whom the custody was given and entered into negotiations about the repair charges and finally agreed to pay the repair charges to the repairer.
[487 E] As a condition of contract of insurance the insurer has to take custody of the damaged car, reserving the option to repair or replace if.
The insured has to remove the car to the nearest repairer on behalf of the insurer and is entitled to be reimbursed the cost of removal.
Therefore, from the time of accident, under the contract of insurance, the insurer would be the bailee.
If the option to repair is exercised and the repairer is approved and paid, the repairer becomes the sub bailee.
[490 E G] 2.
When the car was in the custody of the sub bailee, it was destroyed by fire that occurred in the repairer 's workshop.
The sub bailee was bound to take the same care as a man of ordinary prudence would take in regard to his own goods of the same quality and value as was expected of the bailee.
When the custody is of the bailee or the sub bailee, the burden is on them to show how they handled the car.
In the instant case the High Court did not touch upon this aspect while reversing the decision of the trial court.
There is no evidence on behalf of the insurer as to what amount of care had been taken by the repairer.
The appellant has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept.
The burden being on the bailee and the sub bailee and the same having not been discharged, the trial judge was justified in accepting the evidence of the appellant and in according the finding that the bailee and sub bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value.
Therefore, the bailee is liable for the loss suffered by the appellant, the bailer.


judgement:
Civil Appeal No. 1976 of 1977.
Appeal by Special leave from the Judgment and order dated the 30th September, 1976 of the Bombay High Court in S.C.A. No. 4292 of 1976.
AND Civil Misc.
Petition No. 6117 of 1980.
(An Application for intervention) WITH Writ Petition No. 607 of 1980.
(Under article 32 of the Constitution) S.B. Bhasme and M.N. Shroff for the Appellant in Appeal and Respondent in WP.
V.A. Bobde, S.D. Mudliar, A.K. Sanghi and R.N. Bobde for the Intervener in Appeal and Petitioner in WP.
The following Judgments were delivered CHINNAPPA REDDY, J. I agree with my learned brother, Varadarajan, J. that the second proviso to Rule 151 (i) (ii) (b) of the Bombay Civil Service Rules is void as it offends articles 14, 16 and 21 of the Constitution.
The proviso provides for payment of subsistence allowance at the rate of Re. 1 per month to a government servant, who is convicted by a competent court and sentenced to imprisonment and whose appeal against the conviction and sentence is pending.
The award of subsistence allowance at the rate of Re. 1 per month can only be characterised as ludicrous.
It is mockery to say that subsistence allowance is awarded and to award Re. 1 per month.
For the reasons given by my brother Varadarajan, J., I agree that the proviso should be struck down.
342 Though I share the view expressed by my brother that public employment opportunity is national wealth in which all citizens are equally entitled to share and that no class of people can monopolise public employment in the guise of 'efficiency ' or other ground, I am afraid it is non sequitur and, as at present advised, I wish to guard myself against accepting the view that the right to equal opportunity to public employment may be treated as a new form of private property with its attribute of competitive exploitation.
The fundamental right to property has been abolished because of its incompatibility with the goals of 'justice ' social, economic and political ' and 'equality of status and of opportunity ' and with the establishment of a socialist democratic republic, as contemplated by the Constitution.
There is no reason why a new concept of property should be introduced in the place of the old so as to bring in its wake the vestiges of the doctrine of Iaissez fairs and create, in the name of efficiency, a new oligachy.
Efficiency has many facets and one is yet to discover an infallible test of efficiency to suit the widely differing needs of a developing society such as ours.
There is a present inherent danger of a class dominated civil service resulting from the concept of employment opportunity as private property.
We have to guard ourselves against any such result.
I agree with the order proposed by my brother.
VARADARAJAN, J.
The appeal by special leave is preferred by the State of Maharashtra against the Division Bench Judgment of the Bombay High Court in Special Civil Application No. 4292 of 1976 holding that the second proviso to Rule 151 (i) (ii) (b) of the Bombay Civil Services Rules, 1959 will apply to the respondent Chandrabhan Tale for purposes of payment of subsistence allowance at the nominal rate of Re. 1 per month only for the period during which he is lodged in prison on conviction and not for the subsequent period after he is released on bail pending consideration of his appeal against the Trial Court 's judgment.
The respondent Chandrabhan Tale who was a Head Constable in the appellant 's Police Force was prosecuted for offences under section 161 I.P.C. and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947 in the Court of the Special Judge, Wardhe in Special Case No. 3 of 1974.
The Special Judge convicted him of both the offences on 14.1.1976 and sentenced him to undergo rigorous imprisonment for 6 months under section 161 I.P.C. and for one year and fine of Rs. 100 under section 5 (1) (d) read with section 5 (2) of the Prevention 343 of Corruption Act, 1947.
The respondent was on bail pending trial and was released on bail even after his conviction by the Trial Court to enable him to file an appeal in the High Court against his conviction.
His Criminal Appeal No. 30 of 1976 was admitted by by a learned Single Judge of the Bombay High Court on 20.2.1976 and he was allowed to continue on bail on the same terms pending consideration of the appeal.
We are told that he has been acquitted by the High Court and reinstated in service with all the benefits.
He did not even appear in this appeal before us as he is no longer interested in this appeal.
Thus during the trial as well as after conviction pending consideration of the appeal in which he has succeeded he was not actually sent to prison.
The Superintendent of Police, Wardha, the competent authority, by order dated 31.5.1974 suspended the respondent and allowed him normal suspension allowance.
But after his conviction by the Special Judge on 14.1.1976 the Superintendent of Police in supersession of his earlier order dated 31.5.1974 passed an order dated 22.1.1976 directing that from the date of the respondent 's conviction and pending consideration of the appeal, he would be entitled to only a nominal suspension allowance of Re. 1 per month as per the second proviso to Rule 151 (1) (ii) (b) of the Bombay Civil Services Rules, 1959.
After service of that order the respondent filed Criminal Application No. 146 of 1976 before the learned Single Judge of the Bombay High Court under section 482 Cr.
P.C. challenging the aforesaid order dated 22.1.1976 of the Superintendent of Police mainly on two grounds : (i) that he is on bail, and would not be governed by the said proviso and (ii) that the proviso if applicable to him is violative of Article 16 of the Constitution.
The learned Singal Judge issued notice to the Advocate General of the State and directed the matter to be placed before a Division Bench of the High Court having regard to the importance of the matter.
Subsequently, Criminal Application No. 146 of 1976 was treated as Special Civil Application No. 4292 of 1976 under Article 226 of the Constitution and dealt with by the Division Bench as such.
The main Rule 151 of the Bombay Civil Services Rules, 1959 provides for payment of normal subsistence allowance to a civil servant on his suspension.
The aforesaid second proviso with which we are concerned read as follows : "Provided also that when the Government servant is convicted by a competent authority and sentenced to 344 imprisonment the subsistence allowance shall be reduced to a nominal amount of Re. 1 per month with effect from the date of such conviction and he shall continue to draw the same till the date of his removal or dismissal or reinstatement by the competent authority unless he was acquitted by appellate court in the meanwhile in which case he will draw subsistence allowance at the normal rate from the date of acquittal by the appellate court.
" The submission made before the learned Judges of the Division Bench of the Bombay High Court on behalf of the respondent was that though the rule purports to provide for subsistence allowance for the maintenance of the employee during the period of his suspension, payment of subsistence allowance at the nominal rate of Re. 1 per month is illusory and totally unreasonable because that amount can never sustain any person for a month particularly when the rules prohibit the civil servant from taking up any other avocation while he is under suspension and the object of providing for payment of subsistence allowance is demonstrably defeated by the said second proviso and that the said proviso will not in any case apply to a civil servant who is not lodged in prison but is allowed to continue on bail even after his conviction pending consideration of his appeal.
On the other hand, it was contended for the appellant State that the second proviso will apply even to civil servant who has been convicted but not actually lodged in prison pursuant to the conviction and is released on bail pending consideration of his appeal, and that what amount should be the subsistence allowance is a matter to be determined by the competent authority having power to make rules under Article 309 of the Constitution.
It was further contended that the subsistence of Re. 1 per month is provided for only to keep the link between the State and the civil servant concerned pending the appeal so that he may be eventually dealt with departmentally in case he fails in the appeal, and that the civil servant accepts the rule when he enters the service and he is therefore bound by it.
The learned Judges found that the object and purpose of the rule is to provide subsistence allowance pending suspension of the civil servant and the subsistence allowance mentioned in the main rule and the second proviso means a bare minimum amount which can be reasonably provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages.
345 The learned Judges interpreted the words "sentenced to imprisonment ' occurring in the second proviso to mean "condemned to prison upon conviction" and held that a civil servant who has been convicted and sentenced but has not been sent to prison and is otherwise free could not fall under the category of persons "sentenced to imprisonment".
In that view the learned Judges held that the respondent who had not been sent to prison on conviction but has been released on bail for preferring an appeal and was allowed to continue to remain on bail even after the admission of his appeal would not fall under the second proviso.
They accordingly set aside the order dated 22.1.1976 of the Superintendent of Police reducing the subsistence allowance to Re. 1 per month and held that the respondent would be entitled to normal subsistence allowance under the main Rule 151 while he was not actually lodged in prison on conviction and allowed the Writ Petition accordingly without considering the question whether the proviso is violative of Article 16 of the Constitution.
Civil Miscellaneous Petition No. 6117 of 1980 which has been ordered to be heard alongwith the above Civil Appeal is by one Vithoba, Deputy Engineer and Personal Assistant to the Executive Engineer, Zilla Parishad, Nagpur, a civil servant of the appellant State.
He has been placed under suspension with effect from 11.5.1978 and was receiving subsistence allowance at the normal rate as provided for in the main Rule 151.
He has been convicted by the Special Judge in Criminal Case No. 9 of 1976 on 8.5.1979 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000 under section 5(1) (e) read with section (2) of the Prevention of Corruption Act, 1947.
He has filed Criminal Appeal No. 183 of 1979 in the Bombay High Court on 28.6.1979 and it was admitted on 2.7.1979 and he has been released on bail.
He was on bail pending trial and he is on bail even after his conviction and is not under going the sentence of imprisonment awarded to him by the Trial Court.
By Government resolution dated 11.7.1979 a subsistence allowance at Re. 1 per month has been ordered to be paid to him, rejecting his application for continued payment of subsistence allowance at the normal rate.
He filed Writ Petition No. 2617 of 1979 in the Bombay High Court challenging that order of the Government and praying for payment of subsistence allowance at the normal rate as per the High Court 's judgment in Special Civil Application No. 4292 of 1976.
In that Writ Petition, it was pointed 346 out that the High Court 's judgment has been stayed by this Court 's order dated 26.8.1977 in C.M.P No. 3394 of 1977.
In these circumstances, it is alleged that the petitioner is vitally interested in supporting the High Court 's judgment challenged in the above Civil Appeal and it is prayed that he should be allowed to intervene.
No counter affidavit has been filed in this Civil Miscellaneous Petition.
Writ Petition No. 607 of 1980 has been filed by one Baban, a Junior Clerk in the office of the Naib Tehsildar, Kamptee, now under suspension.
The petitioner Baban has been convicted under section 161 I.P.C. and section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act by the Special Judge, Nagpur, in Special Case No. 6 of 1975.
He has been released on bail by this Court 's order dated 14.3.1980 in S.L.P. (Criminal) No. 800 of 1980.
He too challenges the order reducing the subsistence allowance to Re. 1 per month under the said second proviso contending that subsistence allowance is required to support himself and his family not only during the trial of the criminal case but also during the pendency of the appeal in the High Court and the special leave petition in this Court and that the second proviso contravenes Articles 14 and 16 of the Constitution.
He further contends that the reduction of the subsistence allowance to Re. 1 per month to the civil servant who is prohibited from engaging himself in any other avocation during the period of suspension contravenes even Article 21 of the Constitution on the ground that the only logical and possible result would be the death of the civil servant and the members of his family due to starvation.
The petitioner 's further contention is that subsistence allowance of Re. 1 per month is illusory and seriously prejudicial to his endeavour to secure his acquittal in the superior courts.
He has filed the Writ Petition under these circumstances to declare the said second proviso to be void and violative of Articles 14, 16 and 21 of the Constitution and to issue a direction to the respondent State to pay normal subsistence allowance until the date of disposal of his appeal by this Court.
Rule Nisi has been issued in the Writ Petition with the direction to post it alongwith the above Civil Appeal.
No counter affidavit has been filed in the Writ Petition.
Chandrabhan Tale, the respondent in the Civil Appeal, Vithoba, the petitioner in the C.M.P. who has sought to intervene 347 in the Civil Appeal and Bawan, the petitioner in the Writ Petition were all civil servants of the State of Maharashtra, the appellant in the Civil Appeal and respondent in the C.M.P. and Writ Petition.
at the relevant time.
Chandrabhan Tale was a Head Constable while Vithoba was a Deputy Engineer and Personal Assistant to the Executive Engineer, Zilla Parishad, Nagpur and Baban was a Junior Clerk in the office of the Naib Tehsildar, Kamptee.
Chandrabhan Tale and Baban have been convicted under section 161 I.P.C. and section 5(1) (d) read with section 5 (2) of the Prevention Corruption Act while Vithoba has been convicted under section 5 (1) (e) read with section 5 (2) of that Act in separate cases.
All of them have been sentenced to various terms of imprisonment by the Trial Court.
Chandrabhan Tale was on bail pending trial, and he was released on bail even after conviction to enable him to move the High Court in appeal.
He has been allowed to continue on bail on the same terms even after his criminal appeal was admitted by the High Court.
It appears that he has been acquitted by the High Court and, as stated above, he has not appeared in person or through counsel during the hearing of the appeal.
He was thus throughout on bail and was not lodged in prison on conviction by the Trial Court.
Vithoba 's Criminal Appeal against his conviction has been admitted by the High Court on 2.7.1979.
He was on bail pending trial and has been released on bail even after his conviction and is not undergoing the sentence of imprisonment awarded to him by the Trial Court, Baban has been released on bail by this Court 's order dated 14.3.1980 in S.L.P. (Criminal) No. 800 of 1980.
These three persons, Chandrabhan Tale, Vithoba and Baban were kept under suspension pending trial of the criminal cases filed against them and they were paid normal subsistence allowance under the main Rule 151 of the Bombay Civil Services Rules, 1959 from the dates of their suspension until the dates on which they were convicted and sentenced to imprisonment by the Trial Court.
But from the date of their conviction the subsistence allowance has been ordered to be reduced to the nominal sum of Re. 1 per month under the second proviso to Rule 151 (1) (ii) (b) of the Rules.
Chandrabhan Tale challenged the order reducing the subsistence allowance to the nominal amount of Re. 1 per month in a petition filed under section 482 Cr. P. C. which has been converted by the High Court into a Writ Petition, mainly on two grounds : (1) that he is on bail throughout and is not subject to the second proviso and (2) that the said proviso, if applicable to him, is void as being violative 348 of Article 16 of the Constitution.
That Writ Petition was allowed by the High Court by an order which is now under challenge in the above Civil Appeal.
Vithoba challenged the order reducing the subsistence allowance to the nominal amount of Re. 1 per month by filing Writ Petition No. 2617 of 1979 in the High Court in which he had prayed for payment of normal subsistence allowance even after the date of his conviction by the Trial Court as had been held by the High Court in the petition initiated by Chandrabhan Tale.
It is stated that in the Writ Petition it was represented on behalf of the State of Maharashtra that the judgment in Chandrabhan Tale 's case has been stayed by this Court on 26.8.1977 by an order in C.M.P. No. 3394 of 1977.
Evidentially, Writ Petition No. 2617 of 1979 filed by Vithoba has also been stayed by the High Court pending disposal of the above Civil Appeal.
Baban has filed Writ Petition No. 607 of 1980 in this Court itself challenging the order reducing his subsistence allowance to the nominal sum.
Thus it would appear that Vithoba, the petitioner in C.M.P. No. 5176 of 1980 is vitally interested in the result of the Civil Appeal as it would determine the fate of his Writ Petition filed in the High Court.
If the Civil Appeal is allowed, his Writ Petition would be dismissed and if the Civil Appeal is dismissed his Writ Petition would be allowed by the High Court.
Chandrabhan Tale has not appeared in the Civil Appeal for opposing the challenge made by the appellant State.
Consequently, Vithoba is all the more interested in supporting the judgment of the Division Bench of the High Court challenged in the Civil Appeal.
In these circumstances, we allow Vithoba to intervene in the Civil Appeal.
As stated earlier, the learned Judges of the Division Bench of the Bombay High Court have not considered the second ground of attack made in Chandrabhan Tale 's petition, namely, that the second proviso, if applicable to him even though he has been on bail throughout and was never lodged in prison on conviction by the Trial Court, is violative of Article 16 of the Constitution.
They have disposed of the petitions before them mainly by accepting the contention put forward in the petition regarding the construction of the second proviso, namely, that the words "sentenced to imprisonment" occurring after the words "convicted by a competent court" mean "condemned to prison on conviction".
This interpretation of the second proviso was criticised by Mr. Bhasme, learned senior counsel appearing for the appellant State of Maharashtra, as artificial and unwarranted.
It may be stated here that even the 349 learned counsel for the intervener, Vithoba did not support the High Court 's interpretation of the second proviso.
We agree with Mr. Bhasme that the High Court 's interpretation of the second proviso is artificial and unwarranted, for such an interpretation is not possible except by reading into the second proviso some words which are not there as it stands, namely, "and committed to prison" after the words "when the Government servant is convicted by a competent authority and sentenced to imprisonment".
In Kennedy vs Spratt(1) Lord Diplock has observed thus : "I think when a statute requires that a person who is convicted of an offence shall be sentenced to imprisonment for a specified minimum period, the natural meaning of the words "shall be sentenced to imprisonment" is that he shall be punished for that offence by being sent to prison.
I do not think that this requirement is satisfied by any order of a court which does not have this effect.
It has been submitted that "sentenced to imprisonment ' in the Criminal Justice (Temporary Provisions) Act (Northern Ireland) 1970 has a technical meaning wider than this because in section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 a court which passes what is thereafter referred to as a "suspended sentence" is described as passing a "sentence of imprisonment" notwithstanding that the court makes a simultaneous order that (1) the sentence is to have no effect unless the offender commits some other offence during a limited period and (2) even if he does commit a subsequent offence the court 's order determines not the minimum but the maximum period for which the offender may be sent to prison".
It would appear from this judgment of the learned Lord that a person who is convicted and sentenced to imprisonment is deemed to have been awarded that punishment even in the case where the sentence is suspended for some reason or other.
In these circumstances, I hold that the second proviso is not capable of such interpretation as has been put on it by the learned Judges of the High 350 Court.
The second proviso, as it stands, does not require for its application that the civil servant who has been convicted by the Trial Court and sentenced to imprisonment has to be actually lodged in prison pursuant to the conviction and sentence awarded to him.
Speaking for the Full Bench, P.A. Choudary, J. of the Andhra Pradesh High Court has observed in the decision in District Manager, A.P.S.R.T.C. vs Labour Court(1) : "The right to public employment is undoubtedly, as noted above, a new form of property.
It is not only a vast source of patronage for the Government but is also a great source of living and happiness to our unemployed millions".
I agree with this view of the learned Judge regarding public employment being property of the nation which has to be shared equally subject of course to the qualification necessary for holding the office or post, I wish to add that it should not be monopolised by any particular section of the people of this country in the name of efficiency, though efficiency cannot altogether be ignored.
The right to suspend an employee, whether he is in civil service or in service under a private individual or private management is well recognised as an incident to such service.
This Court has observed in Khem Chand vs Union of India(2) as follow : "An order of suspension of a government servant does not put an end to his service under the government.
He continues to be a member of the service in spite of the order of suspension.
The real effect of the order of suspension is that though he continues to be a member of the government service he is not permitted to work, and further, during the period of his suspension he is paid only some allowance generally called "subsistence allowance" which is normally less than his salary instead of the pay and allowance he would have been entitled to if he had not been suspended.
There is no doubt that the order of suspension affects a government 351 servant injuriously.
There is no basis for thinking, however, that because of the order of suspension, he ceases to be a member of the service".
The learned Judges of the Division Bench have found in the judgment under appeal that the object and purpose of the main Rule 151 is to provide for subsistence allowance pending suspension of the civil servant and that the subsistence allowance mentioned in the main Rule and the second proviso means a bare minimum which can reasonably be provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages.
If the civil servant under suspension, pending a departmental enquiry or a criminal trial started against him, is entitled to subsistence allowance at the normal rate which is a bare minimum required for the maintenance of the civil servant and his family, he should undoubtedly get it even pending his appeal filed against his conviction by the Trial Court, and his right to get the normal subsistence allowance pending consideration of his appeal against his conviction should not depend upon the chance of his being released on bail and not being lodged in prison on conviction by the Trial Court.
Whether he is lodged in prison or released on bail on his conviction pending consideration of her appeal, his family requires the bare minimum by way of subsistence allowance.
Subsistence allowance provided for in the second proviso at the nominal rate of Re. 1 per month is illusory and meaningless.
The contention of the appellant that even the nominal sum of Re. 1 per month is subsistence allowance for a civil servant under suspension is as unreasonable as the contention of the appellant that what should be the subsistence allowance for a civil servant under suspension is for the authority empowered to frame rules under Article 309 of the Constitution to consider and that the civil servant who has entered service is bound by the second proviso.
The sum of Re. 1 per month can never sustain a civil servant for even a day much less for a month.
This Court has observed in Ghanshyam Das Shrivastava vs State of Madhya Pradesh(1) as follows : "The High Court has found the following facts: The hearing of the case started before the Enquiry Officer at 352 Jagdalpur in February 1965.
The case was heard on February 10, 11 and March 13, 1965.
It appears that a part of the evidence for the Government was recorded on those dates.
On March 20, 1965, the appellant received Rs. 312/ as subsistence allowance for the months of November and December, 1964 and January, 1965.
Further evidence for the Government was recorded on April 3, 6 and 15, 1965.
A second payment of Rs. 213/ as subsistence allowance was made to the appellant on May 13, 1965.
As already stated, the Enquiry Officer submitted his report to the Government on May 28, 1965.
These facts plainly show that a part of the evidence had already been recorded before the first payment of subsistence allowance was made to the appellant.
Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non payment of his subsistence allowance.
With respect, we find if difficult to share the view taken by the High Court.
There is nothing on the record to show that he has any other source of income except pay.
As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry.
The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February, 9, 10 and 11, 1965.
The enquiry proceedings during those days are vitiated accordingly.
The report of the Enquiry Officer based on that evidence is infected with the same defect.
Accordingly, the order of the Government dismissing him from service cannot stand.
It was passed in violation of the provisions of article 311 (2) of the Constitution, for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings".
Krishan Iyer, J, has observed in Madhav Hayawandanrao Hoskot vs State of Mahnrashtra(1) as follows : 353 Every step that makes the right of appeal fruitful is obligatory and every action on inaction which stultifies it is unfair and, ergo, unconstitutional".
Any departmental enquiry made without payment of subsistence allowance contrary to the provision for its for its payment, is violative of Article 311 (2) of the Constitution as has been held by this Court in the above decision.
Similarly, any criminal trial of a civil servant under suspension without payment of the normal subsistence allowance payable to him under the rule would be violative of that Article.
Payment of subsistence allowance at the normal rate pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of appeal fruitful and it is therefor obligatory.
Reduction of the normal subsistence allowances to the nominal sum of Re. 1 per month on conviction of a civil servant under suspension in a criminal case pending his appeal filed against that conviction, whether the civil servant is on bail or has been lodged in prison on conviction pending consideration of his appeal, is an action which stultifies the right of appeal and is consequently unfair and unconstitutional.
Just as it would be impossible for a civil servant under suspension who has no other means of subsistence to defend himself effectively in the Trial Court with the normal subsistence allowance there is nothing on record in these cases to show that the civil servants concerned in these cases have any other means of subsistence it would be impossible for such civil servant under suspension to prosecute his appeal against his conviction fruitfully without payment of the normal subsistence allowance pending his appeal.
Therefore, Baban 's contention in the Writ Petition that the subsistence allowance is required to support the civil servant and his family not only during the trial of the criminal case started against him but also during the pendency of the appeal filed in the High Court or this Court against his conviction is correct.
If any Provision in any rule framed under Article 309 of the Constitution is illusory or unreasonable, it is certainly open to the civil servant concerned to seek the aid of the Court for declaring that provision to be void.
In these circumstances, I hold that the second proviso is unreasonable and void and that a civil servant under suspension is entitled to the normal subsistence allowance even after his conviction by the Trial Court pending consideration of his appeal filed against his conviction until the appeal is disposed of finally one way or the other, whether he is on bail or 354 lodged in prison on conviction by the Trial Court.
In this view, I dismiss the Civil Appeal and allow the Writ Petition.
The parties will bear their respective costs in the Civil Appeal.
The respondent shall pay the petitioners 's costs in the Writ Petition.
S.R. Appeal dismissed and Petition allowed.

summary:
Rule 151 of the Bombay Civil Service Rules 1959 provides for payment of normal subsistence allowance to a civil servant on his suspension from service for the reasons stated under the service rules.
While the first proviso to the Rule places a bar on the Government servant to take up any other avocation during the period of his suspension, the second proviso thereto reduces the subsistence allowance to rupee one per month when the Government servant is convicted by a competent authority and sentenced to imprisonment till date of his removal or dismissal or reinstatement by the competent authority unless he was acquitted by appellate court in the meanwhile in which case he will draw subsistence allowance and at the normal rate from the date of acquittal.
Chandrabhan Tale, the respondent in the Civil Appeal No. 1976/77, one Vithoba, the petitioner in C.M.P. 6117/80 who has sought to intervene in the Civil Appeal and Baban the petitioner in W.P. 607 of 1980 in the Supreme Court, were all civil servants of the State of Maharashtra the appellant and the respondent in the C.M.P. and W.P. at the relevant time.
Chandra Bhan Tale was a Head Constable while Vithoba was a Deputy Engineer and Personal Assistant to the Executive Engineer, Zilla Parishad, Nagpur and Baban was a Junior Clerk in the office of the Naib Tehsildar, Kamptee.
Chandrabhan Tale and Baban have been convicted under Section 161 I.P.C. and Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, while Vithoba has been convicted under Section 5(1) (e) read with Section 5(2) of that Act in separate cases.
All of them have been sentenced to various terms of imprisonment by the Trial Court.
Chandrabhan Tale was on bail pending trial, and he was released even after conviction to enable him to move the High Court in appeal and continued to be on bail till he was finally acquitted by the High Court and was, therefore, never lodged in prison on conviction by the Trial Court.
Vithoba was on bail pending the trial and on conviction and on 338 admitting the Criminal appeal, the High Court has granted bail with the result he too was not lodged in the prison on his conviction.
Baban was also convicted and sentenced by the Special Judge, Nagpur but since he has been granted bail by the Supreme Court in SLP (Crl.) 800 dated 14 3 1980, he too had not been lodged in prison.
All the three have been granted by their competent administrative authorities a reduced subsistence allowance of rupee one only from the date of their conviction when the constitutionality of the proviso to Rule 151 was challenged by Chandrabhan, the Bombay High Court, found (1) that the object and purpose of the rule is to provide subsistence allowance pending suspension of the civil servant and (2) the subsistence allowance mentioned in the main rule and the second proviso means a bare minimum amount which can be reasonably provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages.
The Court interpreted the words "sentenced to imprisonment" occurring in the second proviso to mean "condemned to prison upon conviction" and held that a civil servant who has been convicted and sentenced but has not been sent to prison and is otherwise free could not fall under the category of persons "sentenced to imprisonment" and, therefore the case of Chandrabhan who was on bail not falling under the proviso to Rule 151 would automatically entitle him to normal subsistence allowance.
The High Court did not consider the question whether the Writ Petition is violative of Article 16 of the Constitution.
Dismissing the Civil Appeal and allowing the two petitions, the Court, ^ HELD: Per Chinnappa Reddy, J. (concurring) 1:1.
The second proviso to Rule 151 (i) (ii) (b) of the Bombay Civil Service Rules, 1959 is void as it offends Articles 14, 16 and 21 of the Constitution.
The award of subsistence allowance at the rate of Rupee one per month, as provided for in the proviso to Rule 151, to a Government servant, who is convicted by a competent Court and sentenced to imprisonment and whose appeal against the conviction is pending can only be characterised as ludicrous.
Further it is a mockery to say that subsistence allowance is awarded and to award Rupee one per month.
[341 G H] Per contra: 2:1.
Though the view that public employment opportunity is national wealth in which all citizens are equally entitled to share and that no class of people can monopolise public employment in the guise of efficiency ' or other ground, is correct it is non sequitur.
As at present advised, the right to equal opportunity to public employment may not be treated as a new form of private property with its attribute of competitive exploitation.
The fundamental right to property has been abolished because of its incompatibility with the goals of 339 'justice, social, economic and political ' and 'equality of status and of opportunity ' and with the establishment of a socialist democratic republic, as contemplated by the Constitution There is no reason why a new concept of property should be introduced in the place of the old so as to bring in its wake the vestiges of the doctrine of laissez faire and create, in the name of efficiency, a new oligarchy.
Efficiency has many facets and one is yet to discover an infallible test of efficiency to suit the widely differing needs of a developing society such as ours.
There is a present inherent danger of a class dominated civil service resulting from the concept of employment opportunity as private property.
We have to guard ourselves against any such result.
[342 A E] Per Varadarajan J. 1.
The interpretation of the second proviso to Rule 151 of the Bombay Civil Service Rules, 1959 is artificial and unwarranted, for such an interpretation is not possible except by reading into it some words which are not there as it stands, namely, and "committed to prison" after the words "when the government servant is convicted by a competent authority and sentenced to imprisonment".
The proviso does not require for its application that the civil servant who has been convicted by the Trial Court and sentenced to imprisonment has to be actually lodged in prison pursuant to the conviction and sentence awarded to him.
[349 A B, 350 A] Kennedy vs Spratt, [1972] Appeal cases 83, quoted with approval.
The right to intervene in Civil Appeal 1976/77 filed by the State, of Vithoba in C.M.P. 5176 of 1980 has to be conceded and he has to be allowed to intervene, since he has the locus and is vitally interested in the result of the appeal as it would determine the fate of his writ petition No. 2617 of 1979 filed in the Bombay High Court and which has been stayed consequent to the orders of stay granted in the Civil Appeal in C.M.P. 3394 of 1977 by the Supreme Court on 26.8.1977.
[348 B E] 3:1.
The right to public employment is the property of the nation which has to be shared equally subject of course to the qualification necessary for holding the office or post.
But it should not be monopolised by any particular section of the people of this country in the name of efficiency, though efficiency cannot altogether be ignored.
[350 D E] District Manager, A.P.S.R.T.C. vs Labour Court, AIR 1980 AP.
132; approved.
The right to suspend an employee, whether he is in civil service or in service under a private individual or private management is well recognised as an incident to such service.
[350 E] Khemchand vs Union of India, ; , referred to.
The second proviso to Rule 151 of the Bombay Civil Service Rules 1959 is unreasonable and void and therefore violative of Articles 14, 16 and 21 340 of the Constitution.
A civil servant under suspension is entitled to the normal subsistence allowance even after his conviction by the Trial Court pending consideration of his appeal filed against his conviction until the appeal is disposed of finally one way or the other, whether he is on bail or lodged in prison on conviction by the Trial Court.
If the civil servant under suspension, pending a departmental enquiry or a criminal trial started against him, is entitled to subsistence allowance at the normal rate which is a bare minimum required for the maintenance of the civil servant and his family, he should undoubtedly get it even pending his appeal filed against his conviction by the Trial Court, and his right to get the normal subsistence allowance pending consideration of his appeal against his conviction should not depend upon the chance of his being released on bail and not being lodged in prison on conviction by the Trial Court.
Whether he is lodged in prison or released on bail on his conviction pending consideration of his appeal, his family requires the bare minimum by way of subsistence allowance.
[340 B E] 4:2.
If any provision in any rule framed under Article 309 of the constitution is illusory or unreasonable, it is certainly open to the civil servant concerned to seek the aid of the court for declaring that provision to be void.
[353 G H] 4:3.
Any departmental enquiry made without payment of subsistence allowance contrary to the provision for its payment, is violative of Article 311(2) of the Constitution.
Similarly, any criminal trial of a civil servant under suspension without payment of the normal subsistence allowance payable to him under the rule would be violative of that Article.
Payment of subsistence allowance at the normal rate pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of appeal fruitful and it is therefore obligatory.
Reduction of the normal subsistence allowance to the nominal sum of Re. 1 per month on conviction of a civil servant under suspension in a criminal case pending his appeal filed against that conviction, whether the civil servant is on bail or has been lodged in prison on conviction pending consideration of his appeal, is an action which stultifies the right of appeal and is consequently unfair and unconstitutional.
Just as it would be impossible for a civil servant under suspension who has no other means of subsistence to defend himself effectively in the Trial Court without the normal subsistence allowance there is nothing on record in these cases to show that the civil servants concerned in these cases have any other means of subsistence it would be impossible for such civil servant under suspension to prosecute his appeal against his conviction fruitfully without payment of the normal subsistence allowance pending his appeal.
353 B F] Ghanshyam Das Srivastava vs State of Madhya Pradesh, AIR 1975 S.C. 1183; Madhay Hayawandanrao Hoskot vs State of Maharashtra, ; ; applied.
The contention of the appellant that even the nominal sum of Re. 1 per month is subsistence allowance for a civil servant under suspension is as unreasonable as the contention of the appellant that what should be the subsistence allowance for a civil servant under suspension is for the authority 341 empowered to frame rules under Article 309 of the Constitution to consider and that the civil servant who has entered service is bound by the second proviso.
The sum of Re. 1 per month can never sustain a civil servant for even a day much less for a month.
[351 E G]


judgement:
N: Criminal Appeal Nos.
416 18 of 1974.
Appeals by Special leave from the Judgment and order dated the 23rd/24th August, 1973 of the Bombay High Court in Crl.
Appeal Nos.
68,298 & 510 of 1972.
502 N.C. Talukdar, C. V. Subba Rao and R.N. Poddar for the Appellant.
O.P. Rana and M.N. Shroff for the State of Maharashtra.
S.R. Srivastava for Respondent No. 1 in Crl.
A. 416.
The Judgment of the Court was delivered by BHAGWATI, J.
These appeals by special leave are directed against a common judgment dated 27th August 1973 passed by a single e Judge of the High Court of Bombay in so far as it acquitted the first respondent in Criminal Appeal No. 146 of 1978 respondent No. 1 and 2 in Criminal Appeal No. 147 of 1974 and the first respondent in Criminal Appeal No. 418 of 1974 (hereinafter referred to as the accused) of the offence under Section 135 (1)(a)(ii) of the Customs Act, 1965.
The entire controversy between the parties in these appeals turns on the true interpretations of section 135 (1) (a) (ii) and it is therefore not necessary to set out the facts in detail, but in order to appreciate how the question arises for consideration we may briefly reproduce a few relevant facts.
On 9th June 1968 at about 2 p.m. Shri Mugve, the Assistant Collector of Customs, who was then Principal Appraisar in the Directorate of Revenue Intelligence, Bombay, received information that a fishing vessel was going to load silver at Ghas Bunder after 9 p.m. On that day and it was going to take the silver to a spot near Khanderi island in order to put it on an Arab Dhow for despatching it to Dubai.
On receipt of this information, Shri Mugve kept a watch in a privately owned motor launch in the stream near Ballard Pier about four miles away from the shore.
At about 11 p.m. Shri Mugve and the other customs officers accompanying him noted that a heavily loaded fishing vessel was proceeding towards the Khanderi island without navigational lights.
They immediately chased the fishing vessel and asked the crew to stop it but instead of stopping the crew increased the speed and tried to run away.
The fishing vessel was chased and eventually it was intercepted by Shri Mugve and the other customs officers.
On being questioned the Tindel of the fishing vessel made a statement that 194 ingots of silver of the value of Rs. 92 lakhs were being taken towards Khanderi island for being loaded on an Arab Dhow which was going to Dubai.
The fishing vessel was thereupon towed to Ballard Pier and 194 ingots of silver found in it were seized under a Panchnama in the reasonable belief 503 that they were being smuggled out of India.
The accused who were in the fishing vessel were also prosecuted in the Court of Additional Chief Presidency Magistrate 5th Court Dadar for offences under Section 120 of the Indian Penal Code, Section 135 (1) (a) (ii) of the , Section 5 of the Imports and Exports (Control) Act 1947 and Section 23 (1 A) of the Foreign Exchange Regulation Act 1973.
The Additional Chief Presidency Magistrate found the accused guilty of all the offences charged against them and sentenced them to various terms of imprisonment including fine.
The accused there upon preferred three appeals in the High Court of Bombay against the order of conviction and sentence passed against them by the Additional Chief Presidency Magistrate.
These appeals were heard by a single Judge of the High Court and by a common Judgment dated 27th August 1973 the learned single Judge confirmed the conviction of the accused under Section 120 of the Indian Penal Code and Section 5 of the Imports and Exports (Control) Act 1947 but set aside the conviction under Section 135 (1) (a) (ii) of the and Section 23 (1 A) of the Foreign Exchange Regulation Act 1973.
The Assistant Collector of Customs accepted the judgment of the learned single Judge in so far as it acquitted the accused of the offence under Section 23 (1 A) of the Foreign Exchange Regulation Act 1973 but he was aggrieved by that part of the judgment which set aside the conviction under Section 135 (1) (a) (ii) of the and he accordingly preferred the present three appeals with special leave obtained from this Court.
Before we set out the rival arguments addressed before us, it would be convenient to reproduce Section 135 (1) (a) (ii) of the .
That section reads as follows: 135.
Evasion of duty or prohibitions (1) Without prejudice to any action that may be taken under this Act, if any person (a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, he shall be punishable 504 (ii) in any other case, with imprisonment for a term which may extend to (three years) or with fine, or with both.
The argument of the prosecution was that on the facts proved in the case the accused were knowingly concerned in fraudulent evasion or attempt at evasion of the prohibition on the export of silver without a licence imposed under the Export Trade Control order 1968 issued by the Central Government under section 3 of the Imports and Exports (Control) Act 1947 and they were therefore guilty of the offence falling under section 135 (1) (a) (ii) which makes it penal if any person "is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under any other law for the time being in force with respect to such goods.
" This argument was sought to be met on behalf of the accused by contending that the words "with respect to such goods" occurring at the end of Section 135 (1) (a) (ii) referred to goods on which duty was chargeable as contemplated in the first part of that section and since no duty was chargeable on export of silver, it did not fall within the words "with respect to such goods" and hence fraudulent evasion or attempt at evasion of the prohibition on export of silver without a licence imposed under the Export Trade Control order 1968 issued under section 3 of the Imports and Exports (Control) Act 1947 was not punishable under section 135 (1) (a) (ii).
It was this contention urged on behalf of the accused which appealed to the learned single judge of the High Court of Bombay and resulted in the acquittal of the accused.
The sole question which therefore arises for consideration on these rival arguments is as to what is the true meaning of the expression "with respect to such goods '.
Is it limited only to goods falling within the first part of section 135 (1) (a) (ii), that is goods on which duty is chargeable or does it refer to any goods in respect of which prohibition is imposed under the or any other law for the time being in force.
The answer to this question does not in our opinion admit of any doubt, because the language of section 135 (1) (a) (ii) is clear and explicit and one has merely to read the words of the section according to their plain grammatical construction to come to the conclusion that the view taken by the M learned single Judge of the High Court is plainly erroneous.
We proceed to give our reasons for saying so, but we may point out straightway that this view taken by the learned single judge of 505 the High Court has been subsequently overruled by a Division Bench of the same High Court in the State of Maharashtra vs Kassam(1).
If we analyse and break up the provision enacted in section 135(1) (a) (ii), it will be clear that structurally it is divisible into three parts, namely: 1.
If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both.
If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both.
If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under any other law for the time being in force with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both.
The ingredients of the offence under section 135(1) (a) (ii) would clearly be satisfied if the case falls within any one of these three parts.
Each of these three parts is distinct and independent of the other two and whether a case falls within any one part or not has to be judged by reference to the ingredients of that part and not of any other part.
The ingredients of one part cannot be projected in the other two parts.
The first part deals with a case where in relation to any goods a person is knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable on such goods.
Obviously, therefore, the first part.
postulates that the 506 goods in respect of which the offence is committed must be goods chargeable with duty.
But the second and third parts are not concerned with the question whether any duty is chargeable on the goods or not.
These two parts speak only of fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the or any other law for the time being in force in respect of any goods.
What these two parts contemplate is that in respect of the goods in question there must be a prohibition imposed under the or any other law for the time being in force it being totally irrelevant whether duty is chargeable on such goods or not, and the accused must be knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition.
The prohibition fraudulently evaded or sought to be evaded may be with respect to "any goods" and it is not necessary that it should be with respect to goods on which duty is chargeable.
The expression "with respect to such goods" had obviously to be used at the end of the section because the second and third parts of the section start with the words "if any person is in relation to any goods . knowingly concerned in any fraudulent evasion or attempt at evasion".
The words "such goods" have clearly reference to "any goods" at the commencement of the section.
These words are not descriptive of the kind of goods to which the first part of the section is applicable.
It is totally impermissible, on a plain natural construction of the language used in section, to read these words as importing the requirement that the goods must be chargeable with duty in order to fall within the second or third part of the section.
We are therefore of the view that where goods are chargeable to duty and any person is knowingly concerned in any fraudulent evasion or attempt at evasion of such duty, the case would fall within the first part of the section, but where there is a prohibition imposed with respect to any goods under the or any other law for the time being in force, then, irrespective of whether duty is chargeable on such goods or not, any person knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition, would clearly be covered by the second or third part as the case may be.
Here there was clearly a prohibition on export of silver without a licence, imposed by the Export Trade Control order 1968 issued under section 3 of the Imports and Exports (Control) Act 1947 and on the facts established by the prosecution facts which could not be and were not disputed the accused were knowingly concerned in fraudulent evasion or attempt 507 at evasion of such prohibition on export of silver and their case was therefore plainly and indubitably covered by the third part of section A 135(1) (a) (ii).
The learned single Judge of the High Court was consequently in error in taking the view that the accused were not guilty of the offence charged under 135(1) (a) (ii).
We accordingly allow these appeals preferred by the Assistant Collector of Customs, set aside the order of acquittal passed by the learned single Judge of the High Court and restore the order passed by the Additional Chief Presidency Magistrate convicting the accused under section 135(1) (a) (ii) of the and sentencing them to various terms of imprisonment and fine.
P.B.R. Appeals allowed.

summary:
In the reasonable belief that the respondents were smuggling silver out of the country, the Customs officials apprehended the respondents at about midnight while they were going in a fishing vessel off the coast of Bombay and found 194 ingots of silver in the vessel.
I hey were prosecuted for offences under section 120 B Indian Penal Code, section 135(1) (a) (ii) of the , section 5 of the Imports and Exports (Control) Act, 1947 and section 23(1A) of the Foreign Exchange Regulations Act, 1973.
While the Magistrate found them guilty of all the offences the High Court on appeal set aside the conviction under the and Foreign Exchange Regulations Act.
The appellant accepted the acquittal Under section 23(1A) of the Foreign Exchange Regulations Act but impugned the judgment of the High Court in so far as it set aside the conviction under section 135 (1) (a) (ii) of the .
It was contended on behalf of the prosecution that the accused were knowingly concerned with fraudulent evasion or attempt at evasion of the prohibition imposed under the Export Trade Control order of 1968 on the export of silver without licence and that therefore they were guilty of an offence under the .
The respondents, on the other hand, contended that the words "with respect to such goods" occurring in the section, refer to goods on which duty was chargeable as contemplated in the first part of the section and since no duty was chargeable on export of silver it did not fall within the words "with respect to such goods" and therefore there was no fraudulent evasion or attempt at evasion of the prohibition on export of silver without a licence imposed under the Export Trade Control order, 1968 issued under section 3 of the Imports and Exports (Control) Act, 1947, which was punishable under the . 501 Allowing the appeal, ^ HELD: Where goods are chargeable with duty and any person is knowingly concerned in any fraudulent evasion or attempt at evasion of such duty, the case would fall within the first part of the section, but where a prohibition is imposed with respect to any goods under the or any other law for the time being in force, then, irrespective of whether duty is chargeable on such goods or not, any person who is knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition, would be covered by the second or third part as the case may be.
[506 E] In the instant case the Export Trade Control order, 1968 issued under section 3 of the Imports and Exports (Control) Act, 1947, prohibited the export of silver without a licence.
On the facts established by the prosecution the accused were knowingly concerned in fraudulent evasion or attempt at evasion of such prohibition on export of silver and their case was therefore covered by the third part of section 135(1)(a)(ii).
The provision enacted in section 135(1)(a)(ii) is divisible into three parts: the first part postulates that goods in respect of which the offence is committed must be goods chargeable with duty; the second and third parts are not concerned with the question whether any duty is chargeable on the goods or not.
They speak only of fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the or any other law in force in respect of any goods.
What they contemplate is that in respect of goods in question there must be a prohibition imposed under the or any other law for the time being in force irrespective of whether duty E is chargeable on such goods or not and the accused must be concerned in any fraudulent evasion or attempt at evasion of such prohibition.
The prohibition fraudulently evaded or sought to be evaded might be with respect to "any goods": it is not necessary that it should be with respect to goods on which duty is chargeable.
The expression "with respect to such goods": had to be used at the end of the section because the second and third parts start with the words "if any person is in relation to any goods knowingly concerned in any fraudulent evasion or attempt at evasion".
The words "such goods" have clearly reference to "any goods" at the commencement of the section.
These words are not descriptive of the kind of goods to which the first part of the section is applicable.
It is totally impermissible on a plain, natural construction of the language used in the section to read these words as importing the requirement that the goods must be chargeable with duty in order to fall within the second or third part of the section.
[505 E, 506 A D]