judgement:
Civil Appeal Nos.
3016 & 3017 of 1987.
From the Judgment and order dated 17.2.1987 of the Central Administrative Tribunal, Guwahati in Guwahati Case No. 225 of 1986(T).
Kuldeep Singh, Additional Solicitor General, A. Subba Rao and P. Parameshwaran for the Appellants.
Shankar Ghosh and S.K. Nandy for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
These appeals by special leave have been preferred against the judgment dated 17th February, 1987 of the Central Administrative Tribunal, Guwahati Bench, Guwahati, in Guwahati Case No. 225 of 1986 arising out of a petition filed by Shri Hiranyalal Dev, a member of the Assam Police Service.
Civil Appeal No. 3016 of 305 1987 has been preferred by the Union Public Service Commission and Shri Hiranya Lal Dev is Respondent No. 1 in this appeal.
Civil Appeal No. 3017 of 1987 on the other hand has been preferred by State of Assam and two others and Shri Hiranyalal Dev has been arrayed as Respondent No. 7 in this appeal.
For the sake of convenience, however, Shri Hiranyalal Dev shall hereinafter be referred to as Respondent No. 1.
Brief facts necessary for appreciating the submissions made by learned counsel for the parties are that a meeting of the Selection Committee for preparing a select list for promotion to the joint IPS Cadre of Assam, Meghalaya as contemplated by the Indian Police Service (Appointment by Promotion Regulations 1955 was held on 27th December, 1983).
Even though two officers junior to Respondent No. 1 were selected and included in the select list, the name of Respondent No. 1 was not included in the said list.
Aggrieved Respondent No. 1 filed a Civil Rule in the Guwahati High Court which stood transferred to the Central Administrative Tribunal (for short the Tribunal) under Section 29 of the Administrative Tribunals Act, 1986.
The Tribunal came to the conclusion that certain adverse remarks in the Confidential Character Rolls (C.C. Rolls) of Respondent No. 1 had not been communicated to him till the date of meeting and on their being communicated the Respondent No. 1 made a representation to the State Government which was allowed, with the result that even the adverse remarks subsequently expunged were taken into consideration by the Selection Committee.
According to the Tribunal the non selection of Respondent No. 1 was in this view of the matter bad in law.
On this view, the Tribunal held that Respondent No. 1 should be deemed to have been included in the impunged select list, at least, in the place in the order of his seniority and appointed to Indian Police Service on the date on which his immediate junior, namely, Shri Sardar Pradeep Kar was appointed.
After taking this view, the Tribunal went a step further and directed Respondent No. 1 to be appointed to the Indian Police Service with effect from the date on which Shri Sardar Pradeep Kar had been appointed and allowed all the benefits on that basis.
In these appeals against the order passed by the Tribunal, the main question which has been posed for consideration is as to whether the Tribunal could have lawfully passed the operative order which it has on reaching the conclusion that the Selection Committee had committed an error in taking into account the adverse remarks made 306 against Respondent No. 1 during a particular period, which remarks had not been communicated to him till the date of selection and which adverse remarks were subsequently set aside by the State Government upon a representation made by Respondent No. 1 against the adverse remarks in question.
The selection in question was as seen above for appointment to the Indian Police Service from amongst the officials of the Assam Police Service.
It cannot be gainsaid that the Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been communicated to the Respondent No. 1, and in any case could not have taken into consideration these remarks which were subsequently set aside by the State Government.
The legal effect of the setting aside of the adverse remarks would be that the remarks must be treated as non existent in the eye of law.
The Selection Committee had, therefore, fallen in error in taking into account these adverse remarks which in the eye of law did not exist and which could not have been lawfully taken into consideration.
However, the fact that the Selection Committee erred in this behalf does not necessarily mean that the Respondent No. 1 should have been categorized or considered as "very good" vis a vis others who were also in the field of choice.
How to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee.
The Tribunal could not make a conjecture as to what the Selection Committee would have done or to resort to conjecture as to the norms to be applied for this purpose.
The proper order for the Tribunal to pass under the circumstances was to direct the Selection Committee to reconsider the merits of Respondent No. 1 vis a vis the official who was junior to him and whose name was Shri Sardar Pradeep Kar.
Instead of doing so, the Tribunal has held that Respondent No. 1 should be deemed to have been included in the impugned select list prepared in 1983, at least in the place in the order of his seniority on the basis of the assessment of his C.C. Rolls, and has issued a direction to appoint Respondent No. 1 with effect from the date on which Shri Kar was appointed.
The jurisdiction to make the selection vested in the Selection Committee.
The Selection Committee had to make the selection by applying the same yardstick and norm as regards the rating to be given to the officials, who were in the field of choice by categorizing the concerned officials as "outstanding", "very good" "good" etc.
This function had also to be discharged by the Selection Committee by applying the same norm and tests and the selection was also to be made by the Selection Committee as per the relevant rules.
The powers to make selection were vested unto the 307 Selection Committee under the relevant rules and the Tribunal could not have played the role which the Selection Committee had to play.
A The Tribunal could not have substituted itself in place of the Selection Committee and made the selection as if the Tribunal itself was exercising the powers of the Selection Committee, as has been done which is evident from the passage extracted from paragraph 16 of the judgment: B "We have also gone through the C.C.Roll, of the two junior officers, respondents Nos. 11 and 12 for the same period of five years including 1982 83.
We are of the definite view that there is absolutely no reason after expunction of the adverse remarks to hold that the applicant deserved a lower classification than these two respondents.
who were junior to him.
" The proper course to adopt was the course which was indicated by this Court in Gurdial Singh Fijji vs State of Punjab & Ors., [1979] 3 SCR Page 518 at Page 530, wherein this Court directed that the case of the appellant be considered afresh by the Selection Committee indicating the broad framework within which the Committee should act and the preliminary steps the Government should take in order to facilitate the Committee 's task.
In State of Mysore and another vs Syed Mahmood and others; , a dispute about promotion of certain officers had been raised.
In writ petitions filed by the aggrieved officers the High Court passed orders directing the State Government to promote them from the respective dates on which respondents junior to them were promoted.
The orders passed by the High Court were set aside by this Court and a direction was issued to the State Government to consider whether the said officers should have been promoted on the relevant dates.
It was held: "The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case.
In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted.
Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect.
The High Court ought not to have issued such writs without giving the State 308 Government an opportunity in the first instance to consider their fitness for promotion in 1959.
" Learned counsel for the Respondent No. 1 in this connection, however, placed reliance on a decision of this Court in State of Gujarat vs section Tripathy and others, [1986] 2 SCC III 1973 and pointed out that in that case even this Court instead of directing the Government of Gujarat to consider afresh the claim of Shri Tripathy, the respondent in that case, for promotion to the selection grade and the super time scale declared that Shri Tripathy should have been given selection grade and super time scale with effect from the dates mentioned the rein and directed the Government of Gujarat to give the consequential monetary benefits.
So far as this submission is concerned, it may, at the first instance, be pointed out that extend of jurisdiction exercised by this Court cannot be equated with the jurisdiction of the Central Administrative Tribunal.
Secondly, as is apparent from the opening part of the judgment the appeals in that case had been filed by the State of Gujarat more to vindicate Mr. H.K.L. Kapoor, who was previously Chief Secretary to the Government of Gujarat and against whom certain caustic observations had been made by the High Court of Gujarat, rather than for a decision on the merits of the case.
The High Court had held that Shri Tripathy was wrongly passed over and it is in this background that the aforesaid order was passed by this Court.
This in our opinion could not authorise the Tribunal to assume the role of the Selection Committee in making the selection or that of the State Government in making appointment by promotion.
We are accordingly of the opinion that the Tribunal should have directed that the Selection Committee should reconsider the matter on the footing that there were no adverse remarks against Respondent No. 1 and make a proper categorization on the basis of the records by ignoring the adverse remarks but by applying the same standard and test adopted by it and make the categorization "outstanding", "Very Good", "Good" etc.
as deemed appropriate in the light of the norms devised by it and to decide as to whether on doing so Respondent No. 1 would have been selected.
The Tribunal has also assumed that on the basis of the rating made on the C.C.Rolls the petitioner was entitled to be categorized as "Very Good".
This was a matter which had to be determined by the Selection Committee by applying the same test as was applied in the case of others by taking into consideration the rating made in the C.C.Rolls by applying the same criteria devised by the Selection Committee.
The Tribunal has made recourse to conjectures in undertaking this function as discussed in the passage extracted from paragraph 16.
which it should not have undertaken at all: 309 "We also notice from the C.C.Rolls taken together that the categorization done by the State Government are (a) outstanding (to be awarded in very rare case), (b) above average, (c) average and (d) below average.
Thus, the categorization "above average" is taken as equivalent to the grading of "very good" as referred to in Regulation 5(4) of the Promotion Regulation.
This also follows on an examination of the C.C.Roll of the applicant, which is produced before us contains entries from the year 1973 74 onwards.
In all these years from 1973 74 to October, 1979 he was on each occasion graded "above average" which is equivalent to "very good".
The general description of his performance during these years also confirm that he was held to be very good.
In the report for the period 17.10.79 to 31.3.80 he has been graded "average" but after the expunction of the adverse remarks, therefore, the performance as depicted in the report for the period is to be graded as "very good".
Same is the case with the two other reports containing the adverse remarks. ." This the Tribunal should not have done.
Turning now to the next point, while the Tribunal has not rested its decision on the ground that the Selection Committee had not given reasons for not selecting the Respondent No. 1 the Tribunal has made a declaration of law to this effect that it was obligatory on the part of the Selection Committee to have recorded the reasons for superseding those who were senior.
In the first place, the Tribunal was in error in taking the view that it constituted supersession.
The Selection Committee was making a selection and when some one was selected in preference to the other, it could not be said that it amounted to supersession of a junior by a senior.
The concept of supersession is relevant in the context of promotion and not in the context of selection.
Besides, the Tribunal has also committed an error in taking the view that the law enjoined the Selection Committee to record the reasons and failure to do so would vitiate the selection.
It appears that the Tribunal did not properly realise the effect of the relevant provision having been amended at the time when the Selection Committee made its selections and that so far as the amended provision is concerned, the question is concluded by the decision of this Court in Ram Das vs Union of India and others, 119861 Suppl.
SCC 617 wherein this Court, while dealing with the provisions of Indian Administrative Service (Appointment by Promotion) Regulations, 1985 which are in pari materia with Indian Police Service (Appointment by Promotion 310 Regulations, 1955 applicable in the instant case has taken the view that it is not necessary to record the reasons for not selecting a person who is in the arena.
In the result these appeals succeed and are allowed.
The order passed by the Tribunal is set aside to the aforesaid extent.
So also the order passed by the Tribunal reflected in the passage quoted hereunder is set aside: "Accordingly, we hold that the applicant should be deemed to have been included in the impugned select list prepared in 1983, at least, in the place in the order of his seniority and appointed to Indian Police Service on the date on which his immediate junior, namely, respondent No. 11 Shri Sardar Pradeep Kar was appointed.
Accordingly, we direct that the applicant be appointed to the Indian Police Service with effect from the date on which the respondent No. 11 Shri Sardar Pradeep Kar was appointed to the Indian Police Service and allowed all the benefits on that basis.
" In place of the order quoted hereinabove we substitute an order in the following terms viz: The Selection Committee shall reconsider the impugned select list prepared in 1983 as if it was deciding the matter on the date of the selection on the footing that the adverse remarks made against respondent No. 1 which were subsequently set aside did not exist in the records and consider the question as to whether he would have been appointed or Respondent No. 11 Shri Sardar Pradeep Kar would have been appointed on the basis of the categorization to which each of them was entitled having regard to the C.C. Rolls (ignoring the adverse remarks against Respondent No. 1 which were subsequently quashed) and pass appropriate orders in the light of the decision taken on this point.
If the Respondent No. 1 's claim is accepted upon reconsideration in the light of the aforesaid exercise, the order of appointment should provide for his appointment with effect from the date on which he would have been appointed if he was selected when the original selection was made in 1983 and he should be given all the benefits.
The Selection Committee shall complete its exercise within two months from the date of this order.
There will be No. order regarding costs.
R.S.S. Appeals allowed.

summary:
% Aggrieved by his non inclusion in the Select List for promotion of State Police Service officers to the I.P.S. cadre, though two of his junior officers had been selected, Hiranyalal, respondent in both the appeals, filed a Civil Rule in the Guwahati High Court, which stood transferred to the Central Administrative Tribunal, Guwahati.
The Tribunal held respondents non selection bad in law on the ground that the Selection Committee had taken into consideration certain adverse remarks in his Confidential Character Rolls, which had not been communicated to the respondent till the date of the meeting of the Selection Committee and which were later expunged on his representation.
The Tribunal however went a step further, and on the basis of its own assessment of the respondent 's Confidential Rolls, assumed that he was entitled to be characterised "very good" and should be deemed to have been selected.
After taking this view, the Tribunal passed the operative order directing the respondent to be appointed to the Indian Police Service with effect from the date on which his immediate junior was appointed.
It is this operative order which is being mainly challenged in these appeals by the Union Public Service Commission and the State of Assam.
The Tribunal also held that it was obligatory on the part of the 303 Selection Committee to have recorded the reasons for superseding those who were senior.
Allowing the appeals, ^ HELD: (1) The Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been communicated to the respondent, and in any case could not have taken into consideration these remarks which were subsequently set aside by the State Government.
[306B C] (2) The legal effect of the setting aside of the adverse remarks would be that the remarks must be treated as non existent in the eye of law.
The Selection Committee had, therefore, fallen in error in taking into account these adverse remarks, which in the eye of law did not exist and which could not have been lawfully taken into consideration.
[306C D] (3) The jurisdiction to make the selection vested in the Selection Committee.
How to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee.
The Tribunal could not make a conjecture as to what the Selection Committee would have done or to resort to conjectures as to the norms to be applied for this purpose.
[306D,E,G] (4) The Tribunal could not have substituted itself in place of Selection Committee and made the selection as if the Tribunal itself was exercising the powers of the Selection Committee.
[307A B] (5) The Tribunal should have directed that the Selection Committee reconsider the matter on the footing that there was no adverse remarks against the respondent and make a proper categorization on the basis of the records by ignoring the adverse remarks but by applying the same standard and test adopted by it.
[308E F] (6) The Selection Committee shall reconsider the impugned select list prepared in 1983 as if it was deciding the matter on the date of the selection on the footing that the adverse remarks made against the respondent which were subsequently set aside did not exist in the records and shall consider the question as to whether he would have been appointed or Respondent No. 11 Shri Sardar Pradeep Kar would have been appointed on the basis of the categorization to which each of them was entitled having regard to the C.C. Rolls (ignoring the adverse remarks against Respondent No. 1 which were subsequently quashed), 304 and if the respondent 's claim is accepted, on reconsideration in the light of the aforesaid exercise, the order of appointment should provide for his appointment with effect from the date on which he would have been appointed if he was selected when the original selection was made in 1983 and he should be given all the benefits.
[310E G] (7) The Selection Committee was making a selection and when some one was selected in preference to the other, it could not be said that it amounted to supersession of a junior by a senior.
The concept of supersession is relevant in the context of promotion and not in the context of selection.
[309E F] (8) The Tribunal has committed an error in taking the view that the law enjoined the Selection Committee to record the reasons and failure to do so would vitiate the selection.
It appears that the Tribunal did not properly realise the effect of the relevant provision having been amended at the time when the Selection Committee made its selections.
[309F G] (1) Gurdial Singh Fijji vs State of Punjab, ; (2) State of Mysore vs Syed Mahmood, ; ; (3) Ram Das vs Union of India, ; referred.
(4) State of Gujarat vs section Tripathy, [1986] 2 SCC III 1973, distinguished.


judgement:
minal Appeals Nos. 202 and 203 of 1957.
Appeals by special leave from the judgment and order dated November 16, 1956, of the Punjab High Court (Circuit Bench) at Delhi in Criminal, Appeals Nos.
31 D and 506 C of 1956, arising out of the judgment and order dated August 31, 1956, of the Court of the Special Judge at Delhi, in Corruption Case No. 8 of 1956.
D. R. Kalia and K. L. Arora, for the appellant in Criminal Appeal No. 202 of 1957.
D. R. Kalia and Raghu Nath, for the appellant in Criminal Appeal No. 203 of 1957.
H. J. Umrigar and R. H. Dhebar, for the respondent in both the appeals.
February 6.
The Judgment of the Court was delivered by IMAM J.
The appellants, who were police constables at the time of the occurrence, were convicted by the Special Judge of Delhi under section 120B and section 224/109 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act (2 of 1947).
They were sentenced to two years ' rigorous imprisonment under section 5(2) of the Prevention of Corruption Act, 1947 and to nine months ' rigorous imprisonment under each of the sections 120B and 224/109 of the Indian Penal Code.
155 1220 The sentences of imprisonment were directed to run concurrently.
Their appeals to the Punjab High Court were dismissed and the present appeals are by special leave.
The case of the prosecution, as stated in the charge, was that the appellants had conspired at Delhi with Ram Saran Das, the approver, M. P. Khare, Nand Parkash Kapur and Murari between the 6th and 16th of November, 1955, to bring about the escape from lawful custody of M. P. Khare, an undertrial prisoner, and that they had also agreed to accept Rs. 1,000 each and other pecuniary advantages as illegal gratification for rendering the escape of M. P. Khare from lawful custody and that in pursuance of the said conspiracy they had abetted the escape of M. P. Khare and that they had accepted the illegal gratification from Nand Parkash Kapur.
It is clear from the findings of the courts below that M.P. Khare escaped from lawful custody and the appellants had enabled him to do so and that they had received money as illegal gratification for the part they had played in enabling M.P. Khare to escape from lawful custody.
The learned Advocate for the appellants had submitted five points for our consideration in support of his contention that the conviction of the appellants must be set aside (1) the pardon tendered to the approver Ram Saran Das by the District Magistrate of Delhi under section 337 of the Code of Criminal Procedure was without jurisdiction and authority.
Consequently, the evidence of the approver was not admis sible (2) on the case of the prosecution, the offence of conspiracy to commit an offence under section 224 of the Indian Penal Code had not been committed but that offence, if at all, was one under section 222 of the Indian Penal Code.
As an offence under section 222 of the Indian Penal Code is a non cognizable offence no conviction under section 120B of the Indian Penal Code could be had in the absence of a sanction under section 196A of the Code of Criminal Procedure (3) Prosecution witnesses Mela Ram, P.W. 6, and Shiv Parshad, P.W. 7, were accomplices on their own showing and as such their testimony could not be taken into consideration (4) no test 1221 identification parade of the appellants had been held (5) the charge, as framed, contravened the mandatory provisions of section 233 of the Code of Criminal Procedure.
Points 3, 4 and 5 may be disposed of at the outset.
We have examined the evidence of Mela Ram and Shiv Parshad and find nothing in their evidence which establishes them as accomplices.
It does not appear that before the High Court it had ever been urged that these witnesses were accomplices and their evidence could not be taken into consideration to corroborate the approver.
It was, however, urged that these witnesses were unreliable because they had knowledge that an attempt would be made to enable M.P. Khare to escape from lawful custody and yet they informed no authority about it.
As to the reliability of these witnesses the courts below were entitled to believe them and nothing of any consequence has been placed before us to convince us to take a different view from that taken by the courts below.
As for the test identification parade, it is true that no test identification parade was held.
The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance.
It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court.
The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.
It is true that no separate charges were framed under sections 120B, 224/109 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947.
Separate charges should have been framed as required by section 233 of the Code of Criminal Procedure.
In our opinion, the irregularity committed, in this case, was 1222 cured by the provisions of section 537 of the Code.
It is to be noticed that it was urged before the Special Judge that separate charges should have been framed and that a single charge should not have been framed but the objection had been abandoned by the Advocate for the accused when the Special Judge told him that if it was his contention that the accused had been prejudiced by this form of the charge, he would frame separate charges under separate heads and then proceed with the trial.
Furthermore, when the charge was framed, the public prosecutor had urged that charges under separate heads for each offence should be framed and that they should not be joined together under one head.
The Advocate for the accused, however, had urged that the charge, as framed, was correct.
It seems to us that when the charge was being framed the Advocate for the appellants desired.
that the charge as framed should stand and the public prosecutor 's objection should be overruled.
It cannot be now urged that the appellants were prejudiced by the charge as framed.
Indeed, the Advocate for the appellants abandoned this objection and there is nothing in the High Court 's judgment to show that this contention was again raised.
We cannot permit such a question to be raised at this stage.
It seems to us, therefore, that there is no substance in the submissions made on behalf of the appellants with reference to the above mentioned points 3, 4 and 5.
With reference to the second point, even if it is assumed that the offence alleged against the appellants does not come under section 224 of the Indian Penal Code, but under section 222 of the Indian Penal Code, it has to be remembered that this would be of academic interest in this case, if the appellants have been rightly convicted under section 5(2) of the Prevention of Corruption Act, 1947.
It also does not appear from the judgments of the Special Judge and the High Court that it had been contended that there was no sanction under section 196A of the Code of Criminal Procedure and consequently the court could not take cognizance of the offence under section 120B of the Indian Penal Code.
Whether a sanction had been granted under section 196A 1223 was a question of fact which ought to have been urged at the trial and before the High Court.
It is impossible at this stage to go into this question of fact.
Furthermore, this question also is one of academic interest if the conviction and sentence of the appellants under section 5(2) of the Prevention of Corruption Act, 1947, are affirmed.
Coming now to the first point urged on behalf of the appellants, it would appear that the District Magistrate of Delhi granted a pardon under section 337 of the Code of Criminal Procedure to Ram Saran Das, the approver, in consequence of which Ram Saran Das was examined as a witness by the Special Judge.
It was urged that the District Magistrate could not grant a pardon when the case was triable by the Court of Special Judge constituted under the Criminal Law (Amendment) Act, 1952.
The offence under section 5(2) of the Prevention of Corruption Act, 1947, is punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
It was not an offence which was punishable with imprisonment which may extend to ten years.
The provisions of section 337 enabled a District Magistrate to tender a pardon in the case of any offence triable exclusively by the High Court or a Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years, or any offence under sections 216A, 369, 401, 435 and 477A of the Indian Penal Code.
These provisions of section 337 at the time that the pardon was tendered were inapplicable as the present case was not covered by its terms.
It is pointed out that the High Court erred in supposing that the District Magistrate could grant pardon in a case where the offence was punishable with imprisonment which may extend to seven years or more and which was triable exclusively by the Court of Session.
The Code of Criminal Procedure at the time that the pardon was granted spoke of an offence punishable with imprisonment for a term which may extend to ten years and not seven years.
The amendment to section 337 of the 1224 Code, which came into effect in January, 1956, spoke of an offence punishable with imprisonment which may extend to seven years, but this amendment could have no application to a pardon tendered on 1 12 55.
It seems to us, however, that the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure with reference to a case concerning an offence triable exclusively by the Special Judge and, therefore, we need not consider whether the offence was punishable with imprisonment which may extend to seven years.
Under section 8(3) of the Criminal Law (Amendment) Act of 1952 it is expressly stated that for the purposes of the provisions of the Code of Criminal Procedure, 1898, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors.
Section 9 of that Act provides for an appeal from the Court of the Special Judge to the High Court and states that the High Court may exercise, as far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898, as if the Court of the Special Judge were a Court of Session trying cases without a jury.
It would seem, therefore, that although a Special Judge is a court constituted under the Criminal Law (Amendment) Act yet, for the purposes of the Code of Criminal Procedure and that Act, it is a Court of Session.
Accordingly, we are of the opinion that although the offence was triable exclusively by the Court of the Special Judge the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure as the court of the Special Judge was, in law, a Court of Session.
It was, however, suggested that the proper authority to grant the pardon was the Special Judge and not the District Magistrate, but it seems to us that the position of the Special Judge in this matter was similar to that of a Judge of a Court of Session.
The proviso to section 337 of the Code of Criminal Procedure contemplates concurrent jurisdiction in the District Magistrate and the Magistrate making an enquiry or holding the trial to tender a pardon.
According to the 1225 provisions of section 338 of the Code, even after commitment but before judgment is passed, the Court to which the commitment is made may tender a pardon or order the committing Magistrate or the District Magistrate to tender a pardon.
It would seem, therefore, that the District Magistrate is empowered to tender a pardon even after a commitment if the Court so directs.
Under section 8(2) of the Criminal Law (Amend ment) Act, 1952, the Special Judge has also been granted power to tender pardon.
The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under section 337 of the Code.
At the date the District Magistrate tendered the pardon the case was not before the Special Judge.
There seems to us, therefore, no substance in the submission made that the District Magistrate had not authority to tender a pardon to Ram Saran Das, the approver, and consequently the approver 's evidence was inadmissible.
The findings of the High Court establish the offence of the appellants under section 5(2) of the Prevention of Corruption Act, 1947, and we can find no sufficient reason to think that the appellants were wrongly convicted thereunder.
The appeals are accordingly dismissed.
Appeals dismissed.

dataset_name: IN-Abs

summary:
The appellants were convicted under section 120B and section 224/109 of the Indian Penal Code and section 5(2) Of the Prevention of Corruption Act, 1947, by the Court of Special judge constituted under the Criminal Law (Amendment) Act, 1952.
it was contended for them that the conviction was bad on the ground inter alia that the pardon tendered to the approver by the District Magistrate under section 337 of the Code of Criminal Procedure by virtue of which he was examined as a witness by the Special judge was without 1219 jurisdiction.
The contention was that the provisions Of section 337 were not applicable to the case, as the offence under section 5(2) Of the Prevention of Corruption Act, 1947, was punishable with imprisonment which may extend to ten years, while section 337 Of the Code of Criminal Procedure enabled a District Magistrate to tender a pardon "in the case of any offence triable exclusively by the High Court or a Court of Session or any offence punishable with imprisonment which may extend to ten years. .
But under sections 8(3) and 9 of the Criminal Law (Amendment) Act, 1952, for the purposes of the Code of Criminal Procedure, the Court of Special judge is deemed to be a Court of Session trying cases without jury : Held, that although the offence was triable exclusively by the Court of Special judge, the District Magistrate had authority to tender a pardon under section 337 of the Code of Criminal Procedure, as the Court of Special judge was, in law, a Court of Session.


judgement:
Civil Appeal No. 2456 of 1987.
From the Order dated 27.5.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E 2312/85 C. K.K. Venugopal, R. Narain, section Ganesh, R. Shah, R.K. Ram and D.N. Mishra for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
In this appeal under section 35L of the Central Excise and Salt Act, 1944 (hereinafter called 'the Act '), the question involved is whether "Decoplast" manufactured by the Asian Paints India Ltd., the appellant herein, is plastic emulsion paint 341 and, therefore, classifiable under Tariff Item 14(I)(3)(iv) of the First Schedule of the Act as plastic emulsion paint or it should be classifiable under Tariff Item No. 14(I)(v) that is as "paints not otherwise specified".
The Customs Excise and Gold (Control) Appellate Tribunal (hereinafter called 'the CEGAT '), by the impugned order challenged in this appeal held that Decoplast is plastic emulsion paint.
The appellant felt aggrieved thereby.
In so holding the Technical Member of the Tribunal observed that in view of its composition, characteristics and uses, Decoplast should be considered as emulsion paint.
The Judicial Member of the Tribunal was of the view that the Revenue had not adduced any evidence of rebuttal of the evidence adduced by the appellant as the commercial understanding but the evidence adduced by the appellant was intrinsically untrustworthy.
Therefore, inspite of the affidavits and absence of evidence in rebuttal, he agreed with the other member that Decoplast is plastic emulsion paint and the appeal before the Tribunal should be dismissed.
It appears that the appellants had filed revision application before the Government of India against the order of the Revenue authorities.
Ultimately, the same was rejected by the Government of India.
It is not necessary to set out in detail all the events.
The appellant had moved the High Court of Bombay against the order of the Government of India and the High Court by its order directed as follows: "The order dated 17th December, 1979 passed by the Govt.
Of India in revision in the Petitioners ' case is set aside inasmuch as the Revision Authorities have not controverted or rebutted the evidence in the form of affidavits relied on by the Petitioners to show that their product could not be regarded as a plastic emulsion paint amongst persons dealing in such products.
The Revision order thus failed to follow the well established rule of interpreting entries in the Excise Tariff namely to classify products by their common parlance and trade understanding and not by their scientific or technical meaning.
It is necessary that the matter be remanded to the Revision Authorities to decide the same afresh according to law.
However, as the Revision Authority under the demanded Central Excise and Salt Act has been replaced by the Customs Excise and Gold (Control) Appellate Tribunal, the said Tribunal is directed to 342 hear the Petitioners ' Revision Petition and to determine the same as an appeal before it.
The Tribunal shall give an opportunity to both the petitioners and the Excise Authorities to rely on any evidence and material either on record or otherwise which they may lead or produce in support of their case.
The parties will be given full opportunity of affidavits if any during the hearing".
In pursuance to the said order, the matter came before the Tribunal.
Before the Tribunal it was contended on behalf of the appellant that the manufacture was water thinable paint but the same could not be held to be plastic emulsion paint for the product was not known in the trade as plastic emulsion paint nor was it bought and sold so.
According to the appellant, the paint essentially comprised of pigment and a binder or a vehicle and that while the binder and the vehicle were interchangeable, it was stated that the binder generally referred to solid part which in this case was synthetic resin and the solvent could be water or some other diluent.
There was elaborate evidence adduced before the Tribunal on behalf of the appellant.
Reference was made to the specifications of plastic emulsion paint as given by ISI.
It was contended on behalf of the appellant that Decoplast could not be considered as plastic emulsion paint for reasons, inter alia, as follow: i) Plastic emulsion paint comprises of one emulsion as against two contained in Decoplast; ii) In the case of plastic emulsion drying takes place by evap oration of water whereas in the case of decoplast by oxidation of alkyd; iii) Trade did not recognise decoplast as plastic emulsion paint; iv) In the literature published by them, decoplast was not described as plastic emulsion paint; v) Decoplast was substitute for cement paint; vi) Even though decoplast could be used both for interior and exterior use, it was a product inferior to plastic emulsion paint; vii) In case of plastic emulsion paint, primer had to be applied to The surface to be pained while in the case of Decoplast on 343 coating on Decoplast itself serves as a primer.
A In support of appellant 's contention, affidavits had been filed by them and the same were considered in extenso by the Tribunal.
Reference has also been made to the Book "Outlines of Paint Technology" by W.M. Morgan.
On the other hand, on behalf of the Revenue, it was stated that it was not disputed that Decoplast is a water soluble paint and that it had got two resins in emulsion form, namely, Polymer Vinyle Acetate and copolymer alkyds.
Attention was drawn to the Indian Standard Specification for plastic emulsion paint, which is as follow: "The material shall consist of pigments with suitable extenders in suitable proportions, in a medium consisting of any state synthetic polymer emulsion in water with other suitable ingredients as may be necessary to produce a material so also satisfy the requirements of this standard.
" Our attention was also drawn to the definition given by ISI, which is as under: "Generally, a paint in which the medium is an 'emulsion ' or an emulsion like dispersion of an organic binder in water.
Industrially the same is mainly restricted to those paints in which the medium is an 'emulsion ' of a synthetic resin.
The medium may also be called a latex by analogy with a natural rubber latex, polyvinyl acetat emulsion paint is a typical example".
The Tribunal addressed itself to the question whether Decoplast could be considered as plastic emulsion paint in view of (i) its composition; (ii) its characteristics; (iii) its uses; and (iv) its reputation in trade parlance.
It is well settled that the commercial meaning has to be given to the expressions in Tariff items.
Where definition of a word has not been given, it must be construed in its popular sense.
Popular sense means that sense which people conversant with the subject matter with which the Statute is dealing, would attribute to it.
See C.I.T., Andhra Pradesh vs M/s. Taj Mahal Hotel, Secunderabad, This Court observed in Indo International Industries vs Commissioner of Sales Tax, U.P., ; that in interpreting items in statutes like the Excise Act or Sales Tax Acts, whose primary object 344 was to raise revenue and for which purpose to classify diverse products, articles and substances, resort should be had, not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.
Justice Cameron of the Canadian Exchequer Court in King vs Planter 's Co., [1951] CLR (exhibit) 122 and the decision of the United States Supreme Court in 'Two Hundred Chests of Tea '; , emphasised that commercial understanding in respect of the tariff items should be preferred.
It was observed that the legislature does not suppose our merchants to be naturalists or geologists, or botanists.
In this case the use of these two items and their composition when analysed, revealed that in essence they performed the same functions as plastic emulsion paint does, though there was some difference in them.
Affidavits of traders and others had been filed.
These were examined and accepted by the Technical Member and these were not rejected by the Judicial Member.
The Revenue did not adduce any evidence in rebuttal.
Therefore, in view of the composition, characteristics, user and how it is known in the trade, the Tribunal came to the conclusion that Decoplast was plastic emulsion paint.
This is a finding of fact arrived at on relevant and valid materials.
There was no misdirection in law.
Therefore, there is no ground for interference with the said order.
In the aforesaid view of the matter, we decline to entertain the appeal under section 35L of the Act.
The appeal is, therefore, dismissed.
G.N. Appeal dismissed.

summary:
% The question as to whether "Decoplast" manufactured by the appellant is plastic emulsion paint or not had been determined in the affirmative by the Revenue, and revision application before the Government of India was rejected.
Thereafter the appellant moved the Bombay High Court, which directed the Customs Excise and Gold (Control) Appellate Tribunal to hear the petition and to decide the same as an appeal before it.
On behalf of the appellant, elaborate evidence had been adduced before the Tribunal.
Reference was made to the specifications of plastic emulsion paint and the definition as given by ISI.
The Tribunal addressed itself to the question whether "Decoplast" could be considered as plastic emulsion paint having regard to (i) its composition; (ii) its characteristics; (iii) its uses and (iv) its reputation in trade parlance, and held that "Decoplast" is a plastic emulsion paint.
Aggrieved by the order the appellant appealed under Section 35L of the Central Excise and Salt Act, 1944 to this Court, which.
Dismissing the appeal, ^ HELD: 1.1 The commercial meaning has to be given to the expressions in Tariff items.
Where definition of a word has not been given, it 340 must be construed in its popular sense.
Popular sense means that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it.
[343G] 1.2 In the instant case the use of these two items and their composition, when analysed, revealed that in essence they performed the same functions as plastic emulsion paint does, though there was some difference in them.
The affidavits of traders and others were examined by the Tribunal.
The Revenue did not adduce evidence in rebuttal.
Therefore, in view of the composition, characteristics, uses and how it is known in the trade, the Tribunal came to the conclusion that "Decoplast" was plastic emulsion paint.
This is a finding of fact arrived at on relevant and valid materials.
There was no misdirection in law.
[344C E] 2.
In interpreting items in statutes like the Excise Act or Sales Tax Act, resort should be had, not to the scientific and technical meaning of the terms or expressions used, but to the popular meaning, that is to say, the meaning attached to them by those dealing in them.
[343H; 344A B] C.l. T., Andhra Pradesh vs M/s. Taj Mahal Hotel, Secunderabad and Indo International Industries vs Commissioner of Sales Tax, U.P., ; ,referred to.
King vs Planter 's Co. [1951] CLR (exhibit) 122 and 'Two Hundred Chests of Tea ', [1824]6 L.Ed. 128, referred to.


judgement:
Special Leave Petition (C) No. 13154 of 1987.
From the Judgment and order dated 16.9.1987 of the Bombay High Court in Appeal No. 425 of 1981 .
R.P. Bhatt and D.N. Mishra for the Petitioner.
Shri Narain and Mrs. M. Karanjawala for the Respondents.
The following Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition for leave to appeal under Article 136 of the Constitution is directed against the Judgment and order of the Division Bench of the High Court of Bombay, dated September 16, 1987.
The respondents were in the business of dyeing and printing at Industrial Estate, Kandivali, Bombay.
They had originally an 1/2 inch water connection in their premises.
In 1971 they had applied to the Municipal Corporation of Greater Bombay, for a larger 276 water connection.
In 1975 they were given an 11/2 inch connection.
It appears that on 24th September, 1975, according to the Corporation, it fixed a water quota for the respondents in the figure of 27,18,000 litres per month.
This was, however, disputed by the respondents.
But the High Court proceeded upon the basis that this was the water quota fixed for them.
Water Charges and Sewerage and Waste Removal Rules of the Greater Bombay became effective from 1st April, 1976.
These Rules were framed in exercise of the powers given by sections 169 and 276 of the Bombay Municipal Corporation Act, 1888 (hereinafter called 'the Act ').
Rule III(d)(i) provides as follows: "(d)(i) In case of industries for which a quota of water has been fixed, if the recorded or computed consumption falls short of 9/10th of the quota of water for any month, a consumption equal to 9/10th of the quota of water shall be charged.
" It appears, upto June, 1977 water charge bills were sent to the respondents on the basis of their actual consumption.
In July, 1977 the respondents received supplementary bills for the difference between the charge on the quota basis under the said rule and the actual consumption basis.
This was objected to by the respondents.
The respondents contended that though they had kept their taps open for the full 24 hours of the day, water was not available to make up anywhere near the quantity of the quota.
The respondents asserted that the Corporation had agreed to verify this.
The Corporation threatened to cut off the respondents ' water supply.
The respondents filed a writ petition in the High Court of Bombay to restrain the Corporation from doing so.
The learned Single Judge of the High Court found no substance in the case of the respondents.
Rule nisi was, therefore, discharged.
The respondents went up in appeal before the Division Bench.
It was contended that the said rule was ultra vires the rule making power of the Standing Committee of the Corporation being inconsistent with section 169 of the Act.
It was further urged that the Corporation was, in the meanwhile, not justified in charging on the basis of the quota because it was in no position to supply the quantity of water fixed.
It was also urged that the said rule did not provide any guideline in respect of the industries to which it was to be applied and as to how the quota was to be fixed.
Section 169 of the Act provides as follows: 277 "169.(1) Notwithstanding anything contained in section A 128, the Standing Committee shall, from time to time, make such rules as shall be necessary for supply of water and for charging for the supply of water and for any fittings, fixtures or services rendered by the Corporation under Chapter X and shall by such rules determine (i) X X X (ii) a water charge in lieu of a water tax, based on a measurement of estimated measurement of the quantity of water supplied; .
" Sections 276 and 277 provide as follows: "276.(1) Where water is supplied by measurement, the Commissioner may either provide a meter and charge the consumer for the same such rent as shall from time to time be prescribed in this behalf by the standing committee, or may permit the consumer to provide a meter of his own of such size, material and description as the Commissioner shall approve for this purpose: (Provided that if such consumer is an occupier of any premises, he shall not be provided with a meter or permitted to provide himself with a meter of his own, unless he complies with such conditions as may be prescribed by the Commissioner).
(2) The Commissioner shall at all times keep all meters and other instruments for measuring water, let by him for hire to any person, in proper order for correctly registering the supply of water, and in default of his so doing such person shall not be liable to pay rent for the same during such time as such default continues.
Where water is supplied by measurement, the register of the meter or other instrument for measuring water shall be prima facie evidence of the quantity consumed.
" It may be mentioned that section 461 of the Act empowers the Corporation to make byelaws, not inconsistent with the Act, for regulating all matters and things connected with the supply and use of 278 water.
It further appears that by an amendment in 1968, byelaws framed under section 461(a) and (b) empower regulating all matters and things connected with the supply and use of water, and is defined to mean maximum quantity of water any consumer or class of consumers is entitled to receive.
It is to be fixed by the Municipal Corporation by order on the basis of an assessment of the requirement.
It further stipulates that no consumer in respect of whom an order has been made, may consume water in excess of such quantity.
The High Court held that the rule was framed, in terms, in exercise of the powers given by sections 169 and 276.
Section 169 specifically empowers the Standing Committee to make rules to charge for the supply of water and by such rules to determine the water charges "based on a measurement or estimated measurement of the quantity of water supplied.
" The High Court has emphasised the past tense of the word "supply", which is important and refers to something already done.
We are in agreement with the High Court 's view that it empowers the Corporation to levy charge only in respect of water that has in fact been supplied to and consumed by the consumer and it is to be levied on the basis of measurement or estimated measurement.
This has been conferred by the terms of Section 277 of the Act.
It is only that supply which can be measured.
Where the measuring device has failed to record the correct consumption, it may be estimated.
But that must be on sound guidelines otherwise it would be arbitrary and mere ipse dixit of the authorities concerned.
The bye laws made in 1968 here empower the Commissioner to fix a quota.
But no guideline is indicated.
That is bad and unwarranted.
It appears that the supply referred to in Section 169 of the Act, is a supply which is, in fact, supplied to the consumer and consumed by it.
It is only that supply which can be measured.
We are in agreement with the High Court that where the measuring device has failed to record the correct consumption, it may be estimated.
The circumstances m which the measuring device could be said to have failed, the modes of estimation in such circumstances are provided for by rule lII(a), (b) and (c) of the Water Charges Rules.
The Corporation can not estimate and charge on the basis of water it makes available for use by a consumer.
There is no warrant for such a construction.
Therefore, there being no methodology in Rule III (d)(i) of the Water Charges Rules for measuring the actual water supply, that rule is beyond the powers of the Corporation.
The High Court was, there 279 fore, right in striking down the Rule III(d)(i) of the said Rules as effective from 1st April, 1976.
If there is no supply, the question of measurement cannot arise by estimate or otherwise.
There is no ground to interfere.
The petition, therefore, fails and is dismissed.
P.S.S. Petition dismissed.

summary:
% Section 169 of the Bombay Municipal Corporation Act, 1888 empowers the Standing Committee to make rules to charge for the supply of water and by such rules to determine the water charges in lieu of water tax based on a measurement or estimated measurement of the quantity of water supplied.
Section 276 provides for fixing of meters for measurement of water supplied and maintaining the instruments in proper order.
Bye laws framed under section 461 in 1968 empowered the Commissioner to fix a quota.
Rule III(d)(i) of the Water Charges and Sewerage and Waste Removal Rules framed in exercise of the powers given by sections 169 and 276 of the Act which became effective in 1976 provided for charging for the shortfall between the quota and the recorded consumption in respect of industries for which a quota has been fixed.
The respondents were being charged for water upto June, 1977 on the basis of their actual consumption.
In July, 1977 they were sought to be billed for the difference between the charges on the quota basis under the said rule and the actual consumption basis, which was objected to by the respondents.
The writ petition filed by them in the High Court was rejected by a single Judge.
In appeal before the Division Bench it was contended that the Rule lII(d)(i) of the Rules was ultra vires the rule making power of the Standing Committee of the Corporation being inconsistent with section 169 of the Act.
The High Court held that section 169 empowers the Corporation to levy charge only in respect of the water that has in fact been supplied 274 275 to and consumed by the consumer and it is to be levied on the basis of measurement or estimated measurement, and struck down the rule.
Dismissing the special leave petition filed by the Municipal Corporation, ^ HELD: There being no methodology in Rule IlI(d)(i) of the Water Charges Rules for measuring the actual water supplied, that rule is beyond the powers of the Corporation.
The High Court, was, therefore, right in striking it down.
[278H; 279A] The Corporation cannot estimate and charge on the basis of water it makes available for use by a consumer.
The supply referred to in section 169 of the Act, is a supply which is, in fact, supplied to the consumer and consumed by it.
It is only that supply which can be measured.
Where the measuring device has failed to record the correct consumption it might be estimated.
But that must be on sound guidelines otherwise it would be arbitrary and mere ipse dixit of the authorities concerned.
[278D E] The by laws made in 1968 empowering the Commissioner to fix a quota do not indicate any guidelines.
That is bad and unwarranted.
[278E]


judgement:
t Petition (Civil) No. 27860 of 1987 In Writ Petition (Civil) No. 591 of 1987.
In Writ Petition (Civil) No. 591 of 1987.
282 (Under Article 32 of the Constitution of India).
Pankaj Kalra for the Petitioners.
M.K. Banerjee, Solicitor General, A.K. Ganguli, Ms. A. Subhashini, P. Parmeshwaran and B. Parthasarthi for the Respondents.
The following order of the Court was delivered: O R D E R An application under Article 32 of the Constitution being Writ Petition No. 591 of 1987 has been filed in this Court on behalf of 40 employees working in the Pension Paying office, Pokhara in Nepal asking for a direction to the Union of India to make the services of the petitioners permanent and for further directions in the matter of payment of allowances and other material benefits as payable to similar employees under the Union Government.
Notice was ordered on the application on 14th July, 1987, and two weeks ' time was allowed to the respondents for filing their counter affidavit.
On 3rd August, 1987, the court directed as follows: "Two weeks are allowed to the respondents for filing a counter affidavit.
No further time will be allowed.
One week thereafter is allowed for filing rejoiner.
Put up this matter after three weeks.
Meanwhile, status quo as on today shall be maintained." (underlining is ours).
On 7th August, 1987, the Court made the following further order: "Issue notice returnable on August 14, 1987.
Mr. B. Parathasarathy accepts the notice for Union of India.
Respondent is directed to file counter affidavit within one week from today.
In the meanwhile petitioner No. 9 will not be evicted from the quarter now occupied by him. " Again on 14th August, 1987, the Court further directed: 283 " .
Petitioner No.9 will be put back in possession of the government quarter if he has already been evicted . " Ultimately on 11th September, 1987, a three Judge Bench of this Court directed: "Petitioner No. 9 will be reinstated in service and he will also have to be put in possession of his quarter forth with." On the allegation that the directions of this Court in regard to petitioner No. 9 were not implemented, the present contempt proceeding has been initiated on behalf of the petitioners.
Petitioners have alleged that with the filing of the writ petition, the treatment provided to the petitioners by the establishment has undergone a change and those of the respondents who have local base in Nepal have started ill treating the petitioners.
Several allegations have been made in support of the aforesaid plea.
After notice was issued on this petition, the different respondents have filed separate affidavits in return.
The Indian Embassy for Nepal is located at Kathmandu.
The Pension Paying office is maintained at some distance at a place called Pokhara.
It is the common case of the parties that the necessity to maintain such an office is linked up with the historical fact that several inhabitants of Nepal worked in the Indian Army under the Gorkha Regiment.
Mainly for their convenience this extra territorial establishment is being maintained.
Some of the petitioners are India based while others are residents of Nepal.
The establishment at Pokhara is under the direct control of an officer attached to the Indian Embassy styled as officer in Charge, Indian Embassy, Pension Paying office, Pokhara.
The Ambassador of the Indian Embassy at Kathmandu, being the head of Indian Government establishments in Nepal, has also supervisory jurisdiction over the Pay office.
Respondent No. S, the Military and Air Attache of the Indian Embassy is the link between the Embassy establishment at Kathmandu and the said Officer in Charge at Pokhara.
Respondent No. 3 is the Controller of Defence Accounts who inter alia oversees the disbursement of the pension of the ex Army personnel.
Respondent No. 1 is the Union of India through its Defence Secretary and respondent No. 2 is the Secretary of the Ministry of External Affairs.
Admittedly both these respondents 284 are based in Delhi and have been impleaded being in overall charge of their establishments.
Shri S.K. Bhatnagar, Defence Secretary, in his affidavit has taken the stand that he was not personally impleaded in the writ petition.
Only when he was served with notice in the contempt matter he came to know about Court 's directions and realised the full implication of the situation when he had a conference with his senior counsel on December 6, 1987.
Immediate action was taken to ensure appropriate compliance.
Shri K.P.S. Menon, Foreign Secretary in the Ministry of External Affairs has also taken the plea that he was not personally impleaded as a party in the writ petition and came to know about the Court 's order at the same conference with senior counsel on December 6, 1987, and ensured immediate compliance with Court 's directions.
Both these Secretaries to the Government have tendered unconditional apology.
The third respondent is the Controller of Defence Accounts, Central Command, Meerut.
He has taken the stand that petitioner No. 9, Shri C.N. Dubey, is not an employee of the establishment of the Controller of Defence Accounts at Meerut nor is he an employee under his administrative control.
According to him, he has no concern with any executive or administrative matter relating to the Pension Paying office at Pokhara.
Respondent No. 4, the Ambassador, was not subjected to the contempt proceedings.
Respondent No. 5 is the Military and Air Attache of the Indian Embassy at Kathmandu and is in charge of the general administration of the military wing.
Apart from offering unconditional apology, he has indicated that Dubey has been restored to service and he has been provided with residential accommodation and for the period he was out of possession of the official residence, rent by way of compensation has already been ordered to be paid to him.
It is clear from the orders made by this Court and the facts appearing on the record that the responsibility for implementation of the Court 's orders in regard to petitioner No. 9 squarely rested with respondent No. 6, the officer in Charge of the Pension Paying office.
He, in his affidavit, has stated that Dubey was dispossessed from his residential accommodation on 14th August, 1987, and by then the order of this Court dated 7th August, 1987 had not been received by him.
That accommodation was given to one Krishna Bahadur.
Later Dubey has been restored to service, given possession of a similar accommodation as the one from which he was displaced and with a view to giving effect to the spirit of the order of this Court, the rent which Dubey had paid for private accommodation has been decided to 285 be borne out of Government account.
His affidavit explains the delay in implementation thus: A "There has been delay in implementation of the orders of this Hon 'ble Court due to delay in communication, administrative bottlenecks and for security reasons.
It is further stated that we had no intention to flout or disobey the orders of this Hon 'ble Court but for the reasons beyond our control, the same could not be implemented notwithstanding the fact that we had all intentions to implement the same in the right earnest.
The orders have since been implemented, the petitioner has since been reinstated and also given accommodation.
The delay in implementing the same may kindly be condoned and we be excused for such delay for which we have tendered an unconditional apology at the outset of this affidavit.
" There is some material which, if probed into further, might have established that respondent No. 6 had the notice of the order of this Court before physical dispossession of Dubey was effected.
As already noticed, there is allegation of adoption of an attitude of resentment by respondent No. 6 or for the matter of that the local officers, when the writ petition was filed in this Court.
That backdrop, as contended by counsel for the petitioners, perhaps could be taken to supply the motive for the delay in complying with the directions of this Court.
We have not considered it expedient to probe into the matter further on account of the fact that there has been compliance and each of the respondents has tendered unqualified apology.
We would part with the matter by recording our serious concern and disapproval of the growing conduct of parties and public officers in particular of ignoring the directions of the Courts and the multiplying instances of confrontation.
The Court, including the apex one, is a part of the State and is a built in mechanism of the Constitution to administer justice in accordance with law.
For discharging that duty, the Court has got to adopt an attitude of critical assessment of situations connected with litigation brought before it for adjudication.
The manner of functioning of the Court in accord with the Rule of Law has to be dispassionate, objective and analytical.
The Judges who preside over these courts do not act with a sense of superiority; nor do they look down upon others in the community.
In order that the system may efficiently work and the purpose for which the courts are established is duly served, it is necessary that everyone within the framework of the 286 Rule of Law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish.
We hope and trust that everyone within the system realises this situation and does not unnecessarily get into a confrontation.
The apologies tendered by the respondents are accepted and the contempt notice is discharged.
Respondent No. 6 is directed to pay to the petitioners the costs of the proceedings which are assessed at Rs.2,000 within one month.

summary:
% The Supreme Court issued certain directions in respect of petitioner No. 9 regarding accommodation and reinstatement in service in a writ petition filed on behalf of forty petitioners, working in Pension Paying officer, Pokhara, in Nepal, praying for directions to the Union of India, regarding their permanency and other benefits applicable to similar Union Government employees.
In the petition for contempt, it was alleged that these directions were not implemented, and that consequent to the filing of the writ petition, the authorities, especially local officers, were ill treating the Petitioners.
On notice being issued, affidavit on behalf of respondents Nos.
1 to 3 and 5 were filed tendering unconditional apology, and explaining their positions regarding the implementation of the Court 's orders.
Respondent No. 6, who was the officer ln charge of the Pension Paying officer and who was responsible for the implementation of the Court 's orders, also tendered an unconditional apology and stated, in his affidavit, that petitioner No. 9 was dispossessed of the residential accommodation on 14th August, 1987, by which time the Court 's orders of 7th August, 1987 had not been received by him, and the accommodation had already been given to another person, that petitioner No. 9 was later restored to service and given possession of similar accommodation and that the rent paid by the petitioner for the private accommodation will be paid out of Government account, and requested for condonation 281 of delay in implementing the orders of this Court.
Disposing of the Petition, ^ HELD: This Court records it serious concern and disapproval of the growing conduct of parties and public officers, in particular, of ignoring the directions of the Court and the multiplying instances of confrontation.
[285F] The Court, including the apex one is a part of the State and is a built in mechanism of the Constitution to administer justice in accordance with law.
For discharging that duty, the Court has got to adopt an attitude of critical assessment of situations connected with litigation brought before it for adjudication.
The manner of functioning of the Court in accord with the Rule of Law has to be dispassionate, objective and analytical.
The Judges who preside over these courts do not act with a sense of superiority; nor do they look down upon others in the community.
[285F G] In order that the system may efficiently work and the purpose for which the courts are established is duly served, it is necessary that everyone within the framework of the Rule of Law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish.
Everyone within the system must realise this situation and should not unnecessarily get into a confrontation.
[285H; 286A B] In the instant case, there is some material which if probed into further, might have established that respondent No. 6 had notice of the order of this Court before physical dispossession of the petitioner was effected.
There is allegation of adoption of an attitude of resentment by respondent No. 6 or for the matter of that the local officers, when the writ petition was filed in this Court.
That backdrop could supply the motive for the delay in complying with the directions of this Court.
It is, however, not considered expedient to probe further into the matter on account of the fact that there has been compliance and each of the respondents has tendered unqualified apology which is accepted and the contempt notice is discharged.
[285D E; 286B]