judgement:
minal Appeal No. 34 of 1955.
Appeal by special leave from the judgment and order dated the 7th June 1954 of the Punjab High Court at Simla in Criminal Revision No. 985 of 1953 arising out of the judgment and order dated the 9th May 1953 of the Court of the Additional District Judge, Ambala.
Ramalal Anand and I. section Sawhney, for the appellant.
Gopal Singh and P. G. Gokhale, for respondent No. I. Jindra Lal and Gopal Singh, for respondent No. 2. 1956.
February 15.
The Judgment of the Court was delivered by BOSE J.
This appeal was argued at great length because of the wide divergence of judicial opinion that centres round sections 195 and 476 of the Criminal Procedure Code.
The question is about the validity of a complaint made against the appellant for perjury and for using a forged document as genuine in the following circumstances.
The second respondent Amar Singh filed a civil 127 suit against the appellant for recovery of a large sum of money on the basis of a mortgage in the Court of Mr. E. F. Barlow, a Subordinate Judge of the First class.
The appellant filed a receipt which purported to show that Rs. 35 000 had been paid towards satisfaction of the mortgage (whether in full satisfaction or part is not clear), and in the witness box he swore that he had paid the money and was given the receipt.
Mr. Barlow held that the receipt did not appear to be a genuine document and that the appellant 's evidence was not true.
Accordingly he passed a preliminary decree against the appellant for the full amount of the claim on 15 3 1950 and a final decree followed on 15 7 1950.
There was an appeal to the High Court but that was dismissed on 9 5 1951.
The High Court also held that the receipt was a very auspicious document and that the appellant 's evidence was not reliable.
The plaintiff then made an application in the Court of Mr. W. Augustine, who is said to have succeeded Mr. Barlow as a Subordinate Judge of the first class, asking that a complaint be filed against the, appellant under sections 193 and 471 of the Indian Penal Code.
But before it could be beard Mr. Augustine was transferred and it seems that no Subordinate Judge of the first class was appointed in his place; instead, Mr. K. K. Gujral, a Subordinate Judge of the fourth class, was sent to this area and be seems to have been asked to decide the matter.
But as he was only a Subordinate Judge of the fourth class be made a report to the District Judge that he had no jurisdiction because the offences had been committed in the Court of a Subordinate Judge of the first class.
The District Judge thereupon transferred the matter to the Senior Subordinate Judge, Mr. Pitam Singh, and that officer made the complaint that is now under consideration.
The appellant filed an appeal against Mr. Pitam Singh 's order to the Additional District Judge, Mr. J. N. Kapur.
This learned Judge held that the Senior Subordinate Judge (Mr. Pitam Singh) had no jurisdiction to make the complaint because he was 128 not Mr. Barlow 's successor.
He also held, on the merits, that there was no prima facie case.
The matter went to the High Court in revision and the learned High Court Judge who beard the matter held that the Senior Subordinate Judge had jurisdiction and that the material disclosed a prima facie case.
Accordingly, he set aside the Additional District Judge 's order and restored the order of the Senior Subordinate Judge making the complaint.
This raises three questions.
The first concerns the jurisdiction of the Senior Subordinate Judge Mr. Pitam Singh to entertain the application and make the complaint.
The second is whether the Additional District Judge had jurisdiction to entertain an appeal against Mr. Pitam Singh 's order; and the third is whether the High Court had power to reverse the Additional District Judge 's order in revision.
We will first deal with Mr. Pitam Singh 's jurisdiction to make the complaint.
This question is governed by the Criminal Procedure Code and by the Punjab Courts Act, 1918.
We will examine the Criminal Procedure Code first.
The offences said to have been committed are ones under sections 471 and 193 of the Indian Penal Code, namely, using as genuine a forged document knowing it to be forged and perjury.
Section 195(1) (b) and (c) of the Criminal Procedure Code prohibit any Court from taking cognizance of either of these two offences except on the complaint in writing of the Court concerned "or of some other Court to which such Court is subordinate".
The offences were committed in the Court of Mr. E.F. Barlow, a Subordinate Judge of the first class.
It seems to have been accepted that Mr. Gujral was not Mr. Barlow 's successor because be was only a Subordinate Judge of the fourth class, but whether he was the successor or not, he neither made the complaint nor rejected the application.
He declined to do either because he said be had no jurisdiction; so also neither Mr. Barlow nor Mr. Augustine made a complaint or rejected the application.
That carries 129 us on to section 476 A of the Criminal Procedure Code.
Section 476 A states that when the Court in which the offence is said to have been committed neither makes a complaint nor rejects an application for the making of a complaint, "the Court to which such former Court is subordinate within the meaning of section 195, sub section (3)" may take action under section 476.
Section 476 authorises the appropriate Court, after recording a finding that it is expedient in the interests of justice, etc., to, among other things, make a complaint in writing and forward it to a Magistrate of the first class having jurisdiction.
That was done by Mr. Pitam Singh.
So the only question we have to decide on this part of the case is whether the Court of the Senior Subordinate Judge over which Mr. Pitam Singh presided was the Court to which the Court of Mr. Barlow was subordinate within the meaning of section 195(3 ).
Now it is to be noticed that subordination has been given a special meaning in this section.
It is not any superior Court that has jurisdiction, nor yet the Court to which the "former Court" is subordinate for, what might be termed, most general purposes, but only the Court to which it is subordinate within the meaning of section 195(3).
Section 195(3) states that "For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate" and then follows this proviso "Provided that (a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and 130 (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed".
These provisions have given rise to much conflict in the High Courts.
The controversy has centred round the word "ordinarily".
One class of case, of which Wadero Abdul Rahman vs Sadhuram(1) is a sample, holds that "ordinarily" means "in the majority of cases" and that it has no reference to the particular case in hand.
We do not think that is right because that gives no meaning to the proviso to sub clause (3).
If appeals lie to a particular Court, e.g., the District Court, in the majority of cases and to another Court,say the High Court, only in a few cases, then the inferior tribunal is a fixed quantity and so the need to choose between the inferior and the superior Court cannot arise.
That makes sub clause (a) to the proviso otiose; also, it does not necessarily follow that the appeal in the majority of cases will always lie to the inferior Court.
Cases may occur in which the majority of appeals would go to the higher of two given tribunals; and in any case this interpretation has the disadvantage that a Court may be compelled to call for and go into a mass of statistics to ascertain which of two Courts entertains the majority of appeals over a given period of time, as well as to determine what is the appropriate period of time.
Another view considers that the word means that the higher Court is the one to which there is an unrestricted right of appeal and so cannot apply when any restriction intervenes such as when the right of appeal is limited to a particular class of cases or is hedged in by conditions.
This was the view taken in M. section Sheriff vs Govindan(2).
Other views are also possible but we do not intend to explore them.
In our opinion, the matter is to be viewed thus.
The first question to be asked is whether any decrees, orders or sentences of the original Court (1) [1930) (2) A.I.R. I , 1061, 131 are appealable at all.
If they are not, and the Court is a Civil Court, then,, under section 195(3), the appeal against the order making or refusing.to make a complaint will be to the principal Court of ordinary original civil jurisdiction.
If, however, appeals from its various decrees and orders lie to different Courts, then we have to see to which of them they "ordinarily" lie and select the one of lowest grade from among them.
In determining the Court or Courts to which an appeal will ordinarily lie, we have to see which Court or Courts entertain appeals from that class of tribunal in the ordinary way apart from special notifications or laws that lift the matter out of the general class.
Our meaning will be clearer when we turn to the case in hand and examine the Punjab Courts Act of 1918.
Apart from the Courts of Small Causes and Courts established under other enactments, the Punjab Courts Act, 1918 makes provision for three classes of Civil Courts, namely (1) the Court of the District Judge, (2) the Court of the Additional Judge, and (3) the Court of the Subordinate Judge.
At the moment we are concerned with the Subordinate Judge.
Section 22 enables the State Government to fix the number of Subordinate Judges after consultation with the High Court.
The local limit of jurisdiction of each of these Judges is the district in which he is appointed unless the High Court defines a different limit (section 27).
The pecuniary limits are set out in section 26: "The jurisdiction to be exercised in civil suits as regards the value by any person appointed to be a Subordinate Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit".
These are what might be termed the ordinary powers and jurisdiction of these Courts.
But sections 29 and 30 authorise the High Court to confer certain additional powers and jurisdiction on them.
We will deal with that later.
132 Next, we turn to the provisions for appeal.
They are governed by section 39.
In the absence of any other enactment for the time being in force, when the value of the suit does not exceed five thousand rupees the appeal lies to the District Judge, and in every other suit, to the High Court.
But by sub section (3) the High Court is empowered to direct by notification "that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other 'Subordinate Judge as may be mentioned in the notification" and when that is done "such other Subordinate Judge shall be deemed to be a District Court for the purposes of all appeals so preferred".
The High Court availed itself of this provision and provided that appeals lying to the District Courts from decrees or orders passed by any Subordinate Judge in two classes of case which are specified "shall be preferred to the Senior Subordinate Judge of the first class exercising jurisdiction within such Civil District".
There are thus three forums of appeal from the Court of the Subordinate Judge depending on the nature of the suit and its value.
The question is whether in each of these three classes of case the appeal can be said to lie "ordinarily" to one or other of these appellate tribunals.
Applying the rule we have set out above, the appeal to the Senior Subordinate Judge cannot be termed "ordinary" because the special appellate jurisdiction conferred by the Notification is not the ordinary jurisdiction of the Senior Subordinate Judge but an additional power which can only be exercised in a certain limited class of case.
It is not a power common to all Subordinate Judges nor even to all Senior Subordinate Judges.
Therefore, it cannot be said that appeals from the Courts of the various Subordinate Judges "ordinarily" lie to the Senior Subordinate Judge.
Consequently, that Court is not one of the appellate tribunals contemplated 133 by section 195(3) of the Criminal Procedure Code and its proviso.
But appeals do "ordinarily" lie either to the District Court or the High Court; and as the District Court is the lower of these two tribunals that must be regarded as the appellate authority for the purposes of section 476 B of the Criminal Procedure Code.
Now it is to be observed that this is a purely objective analysis is and is not subjective to any particular suit.
In the present suit, the value of the suit was over Rs. 5,000, so the appeal would have lain to the High Court, but we are not concerned with that be cause section 195(3) does not say that the appellate authority within the meaning of that section shall be the Court to which the appeal in the particular case under consideration would ordinarily lie but generally "the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court".
It would, however, be wrong to say that the nature of the proceedings in the case must be wholly ignored because sub clause (b) to the proviso to sub section (3) states that "where appeals lie to a Civil and also to a Revenue Court, such.
Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding".
Therefore, to that limited extent the nature of the proceedings must be taken into account, but once the genus of the proceedings is determined, namely whether civil, criminal or revenue, the heirarchy of the superior Courts for these purposes will be determined, first by the rules that apply in their special cases and next by the rule in section 195(3) which we have just expounded and explained.
M. section Sheriff vs The State of Madras and Others,(1) was quoted but the present point was neither considered nor decided there.
The next question is whether the Court of the Senior Subordinate Judge is the same Court as Mr. Barlow 's Court, namely the Court of the Subordinate (1) [1954] section C. R. 1144,1147.
18 134 Judge of the first class.
That depends on whether there is only one Court of the Subordinate Judge in each district, presided over by a number of Judges, or whether each Court is a separate Court in itself.
That turns on the provisions of the Punjab Courts Act.
We make it clear that our decision on this point is confined to the Punjab Act.
We understand that similar Acts in other States are differently worded so that what we decide for the Punjab may not bold good elsewhere.
We say this because rulings were cited before us from other parts of India which take differing views.
We do not intend to refer to them because it would not be right to examine the language of Acts that are not directly before us.
Accordingly, we confine ourselves to the Punjab Act (Act VI of 1918).
Section 18 of the Punjab Courts Act states that there shall be the following classes of Courts, namely ". . . . . . . . (3) the Court of the Subordinate Judge".
Section 22 provides that "the State Government may. . fix the number of Subordinate Judges to be appointed".
Section 26, which has already been quoted, fixes the pecuniary limits of their jurisdiction.
Then comes section 27 defining the local limits of their jurisdiction: "(1) The local limits of the jurisdiction of a Subordinate Judge shall be such as the High Court may define.
(2) When the High Court posts a Subordinate Judge to a district, the local limits of the district shall, in the absence of any direction to the contrary, be deemed to be the local limits of his jurisdiction".
From there we go to the Notification.
It is High Court Notification No. 4 dated 3 1 1923.
It makes four classes of Subordinate Judges with effect from 5 1 1923 "in respect of the jurisdiction to be exercised by them in original suits, namely: Class I Subordinate Judges exercising juris 135 diction without limit as to the value of the cases; Class II Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 5.000; Class III Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 2,000; Class IV Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 1,000.
When a Subordinate Judge is appointed to any of the classes constituted by this Notification, he shall exercise the jurisdiction here in before defined for the class to which he is appointed within the local limits of the civil district to which he may be posted from time to time".
This gives rise to three points of view.
According to one, there is only one Court of the Subordinate Judge for each district and every other Subordinate Judge is an additional Judge to that Court.
This is based on the language of section 18, and the High Court Notification is, under that view, interpreted as dividing the Judges of that one Court into four categories but not as creating independent Courts.
Section 26 is there read as empowering the High Court to include each Subordinate Judge individually on appointment into a given class within the one Court and not to turn him into a separate Court.
According to the second view, there are four classes of Subordinate Judge 's Courts in the Punjab because of the High Court Notification.
The argument here runs that section 18 must be read with section 26, and as the High Court is empowered to divide Subordinate Judges in a district into classes it must mean that each class forms an independent Court, for according to this point of view, it would be anomalous to have Judges of the one Court invested with differing pecuniary jurisdictions because that is always regarded as inherent to the Court.
The position created by the Act, it is said, is not the same as the one that arises when work is administratively distributed among Additional Judges of the same 136 Court because the jurisdiction and powers of the Judges are unaffected by such distribution and there remains the one Court with one inherent and territorial jurisdiction despite the distribution.
The third view is that each Subordinate Judge is a separate and independent Court in himself and it is pointed out that section 27 invests each Judge personally with a territorial jurisdiction and not the Court, and so also section 26.
Under section 33 the power of control (apart from the High Court) over all civil Courts within the local limits of a District Judge 's jurisdiction is with him, and section 34 empowers the District Judge to distribute any civil business "cognizable by . the Courts under his control. among such Courts in such manner as he thinks fit".
The Senior Subordinate Judge does not therefore appear to be vested with either administrative or judicial control over any other Subordinate Judge except in so far as he is a Court of appeal in certain specified classes of case.
In our opinion, the Senior Subordinate Judge who made the complaint had no jurisdiction to make it, either as the original Court which tried the suit, or as the appellate authority under section 476 B of the Criminal Procedure Code.
It is not enough that he also had first class powers because be was not the same Court.
That is not to say that a successor could not have been appointed to Mr. Barlow so as to establish continuity in the Court over which he presided.
It is possible that one could have been appointed and indeed it seems to have been assumed that Mr. Augustine was his successor.
But as Mr. Augustine did not take up this matter we need not decide that point.
What we think is clear is that Mr. Pitam Singh was not a successor, especially as appeals lay to him from certain decisions of the Subordinate Judges in his district.
It would be unusual to provide an appeal from one Judge of a Court to another single Judge of the same Court.
It would be even more anomalous to have an appeal from the decision of a judge lie to his successor in office.
Even 137 in the High Courts, where there are Letters Patent appeals, the appeal is always heard by a Division Bench of at least two Judges; nor can this be treated as a case where a Court with inherent jurisdiction decides the matter as an original tribunal though, owing to territorial or other similar classification not affecting inherent jurisdiction, the case should have gone to some other tribunal of co ordinate or lesser authority.
Section 193(1) of the Criminal Procedure Code imposes a definite bar which cannot be ignored or waived any more than the prohibitions under sections 132 and 197 and, just as the sanctions provided for in those sections cannot be given by any authority save the ones specified, so here, only the Courts mentioned in section 195 (1) (b) and (c) can remove the bar and make the complaint.
This also appears to accord with the Punjab practice.
The Rules and Orders of the Punjab High Court reproduce a Notification of the High Court dated 16 5 1935 as amended on 23 2 1940, at page 3 of Chapter 20 B of Volume I, where it is said in paragraph 2 "It is further directed the Court of such Senior Subordinate Judge of the first class shall be deemed to be a District Court, etc.
" This appears to regard each Senior Subordinate Judge as a Court in himself and not merely as the presiding officer of the Court of the Subordinate Judge.
Section 39(3) of the Punjab Courts Act is also relevant.
It states that "the High Court may by notification direct that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the Court of such other Subordinate Judge shall 'De deemed to be a District Court, etc.
" Now this permits an appeal from one Subordinate Judge to another and the words the "Court of such other Subordinate Judge" indicate that the Subordi 138 nate Judge to whom the appeal is preferred is a separate and distinct Court.
The position thus reduces itself to this.
The original Court made no complaint; section 476 A of the Criminal Procedure Code was therefore attracted and the jurisdiction to make the complaint was transferred to the Court to which Mr. Barlow 's Court was subordinate within the meaning of section 195.
That Court, as we have seen, was the Court of the District Judge.
Now, when the matter was reported to the District Judge by Mr. K. K. Gujral, the District Judge dealt with it.
He had authority under section 476 A either to make the complaint himself or to reject the application.
He did neither.
Instead, he sent it to Mr. Pitam Singh who had no jurisdiction.
Of course, the District Judge could have sent it to the original Court or to the successor Judge of that Court if there was one, but he sent it to a Court without jurisdiction, so his order was ineffective and the subsequent order of Mr. Pitam Singh was without jurisdiction.
That still left the District Court free to act under section 476 A when the matter came back to it again.
This time it came by way of appeal from Mr. Pitam Singh 's order but that made no difference because the substance of the matter was this: the original Court had not taken any action, therefore it was incumbent on the District Judge to make an appropriate order either under section 476 A or by sending it for disposal to the only other Court that had jurisdiction, namely the original Court.
But the District Judge did not deal with it.
The application went instead to the Additional District Judge and what we now have to see is whether the Additional District Judge had the requisite power and authority.
That depends on whether the Additional District Judge was a Judge of the District Court or whether he formed a separate Court of his own like the various Subordinate Judges; and that in turn depends on the language of the Punjab Courts Act.
As we have already pointed out, section 18 of that Act states that, in addition to Courts of Small Causes 139 and Courts established under other enactments, "there shall be the following classes of Civil Courts, namely: (1) The Court of the District Judge; (2) The Court of the Additional Judge; and (3) The Court of the Subordinate Judge".
The Court of the Additional Judge is therefore constituted a distinct class of Court, and it is to be observed that the Act speaks of the Court of the Additional Judge and not of the Additional District Judge as is the case with certain other Acts in other parts of India.
This language is also to be compared with articles 214 and 216 of the Constitution which constitute and define the constitution of the High Courts in India. ``214(1).
There shall be a High Court for each State ' '.
"216 .
Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint".
The Punjab Courts Act nowhere speaks of an Additional District Judge or of an Additional Judge to the District Court; also, the Additional Judge is not a Judge of co ordinate judicial authority with the District Judge.
Section 21 (I) states that "When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judges as may be necessary".
But these Judges cannot discharge all the judicial functions of the District Judge.
Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge.
Section 21(2) states that "An Additional Judge so appointed shall discharge any of the functions of a District Judge ' which the District Judge may assign to him".
It is true that sub section (2) goes on to say that "in the discharge of those functions he shall exercise the same powers as the District Judge" but these powers are limited to the cases with which 140 he is entitled to deal.
Thus, if his functions are confined to the hearing of appeals he cannot exercise original jurisdiction and vice versa.
But if he is invested with the functions of an appellate tribunal at the District Court level, then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain.
This is a very different thing from the administrative distribution of work among the Judges of a sin ale Court entitled to divide itself into sections and sit as division Courts.
When the Chief Justice of a High Court or the District Judge of a District Court makes an administrative allotment of work among the Judges of his Court, their jurisdiction and powers are not affected, and if work allotted to one Judge goes to another by mistake his jurisdiction to entertain the matter and deal with it is not affected.
But that is not the scheme of the Punjab Courts Act and the mere fact that Mr. J. N. Kapur called himself the Additional District Judge and purported to act as such cannot affect the matter of his jurisdiction.
As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed.
The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction.
We hold therefore that the Court of the Additional Judge is not a division Court of the Court of the District Judge but a separate and distinct Court of its own.
Now, as we have seen, when the original Court does not make a complaint under section 476 of the Criminal Procedure Code or reject the application, then the only other Court competent to exercise these powers is the Court to which appeals from the original Court "ordinarily lie".
That Court, in the present case, was the Court of the District Judge and not the Court of the Additional Judge Mr. J. N. Kapur.
Therefore, Mr. J. N. Kapur 's order was also without jurisdiction.
141 Mr. Kapur 's order went up to the High Court in revision, and the next question we have to determine is whether the High Court had jurisdiction to entertain the revision and the extent of its powers.
Keshardeo Chamria vs Radha Kissen Chamria and Other8(1) and many cases from the High Courts were cited which show that there is much difference of opinion about this but we are fortunately not called upon to decide that question because this is not a case where a Court with jurisdiction has acted under section 476 of the Criminal Procedure Code of its own motion or has acted as a Court of appeal under section 476 B.
As we have shown, the Court of the Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction to entertain this matter either as a Court of appeal under section 476 B or of its own authority under section 476 A.
The Additional Judge Mr. J. N. Kapur, who has called himself an Additional District Judge, also had no jurisdiction under either section.
But he seised himself of the case and has rejected the application for the making of a complaint.
He therefore assumed a jurisdiction which he did not possess and that at once attracted the revisional jurisdiction of the High Court.
Now it does not matter in this case whether that jurisdiction lies under section 439 of the Criminal Procedure Code or under section 115 of the Civil Procedure Code because under either of these two sections the High Court is entitled to set aside an order of a Court subordinate to it which has assumed a jurisdiction that it does not possess.
Therefore, in so far as the High Court set aside the order of Mr. J. N. Kapur it was right.
But where it went wrong was in upholding the complaint made by the Senior Subordinate Judge.
As we have shown, that Court had no jurisdiction to make the complaint .
The next question is whether the High Court could itself have made the complaint in this particular case because if it could have done so then we would not have used our extraordinary powers of appeal under article 136 to set right what would in those circum (1) ; , 150 to 152.
19 142 stances have been a mere procedural irregularity.
But as our opinion is that the High Court had no jurisdiction to act under section 476 in this case, we are bound to interfere.
As we have shown, section 195 contains an express prohibition against taking cognizance of the kind of complaint we have here unless the bar is lifted either by the original Court or the Court to which it is subordinate within the meaning of section 195(3).
Those are the only Courts invested with jurisdiction to lift the ban and make the complaint.
Had this been a case in which the High ' Court was the superior Court within the meaning of section 195(3) the matter would have been different, but as the original Court was neither the original Court nor the Court to which the original Court was subordinate, according to the special definition in section 195(3), it had no jurisdiction to make the complaint of its own authority.
Therefore, all that the High Court could, and should, have done was to send the case to the District Judge for disposal according to law.
We will, therefore,, now do what the High Court should have done.
We were asked not to allow the proceedings to pend any longer but we are not prepared to do that in this case.
If the view taken by Mr. Pitam Singh and the High Court is right, then a serious offence of a kind that is unfortunately becoming increasingly common, and which is difficult to bring home to,an offender, has been committed against the administration of justice, and if the District Court is satisfied, as were Mr. Pitam Singh and the High Court, that a prima facie case has been made out and that it is expedient in the interests of justice that a complaint should be filed, then it is but right that the matter should be tried in the criminal Courts.
We will not say anything more lest it prejudice the appellant.
The District Judge will of course be free to exercise his own discretion.
The application for the making of a complaint will accordingly be remitted to the District Judge who will now deal with it.

summary:
The question as to which Court is competent to make a com plaint under section 476 A read with section 195(3) of the Code of Criminal Procedure where none wag made by the Court in which the offence was committed or its successor Court, will depend on the nature of the proceeding in which the offence was committed, whether civil, criminal or revenue, and on the hierarchy of superior Courts to which an appeal from such proceeding will ordinarily lie as contemplated by section 195(3) of the Code, apart from such exceptions as may be made in respect of any particular matters by any special notifications or laws.
Where, however, appeals ordinarily lie to different courts, the one of the lowest grade will be the Court competent to make the complaint.
Wadero Abdul Bahman vs Sadhuram, ([1930] and M. section Sheriff vs Govindan (A.I.R. , 1061), not approved.
Under the Punjab Courts Act of 1918 and the hierarchy of civil Courts established thereby, appeals from the Courts of the various subordinate Judges who constitute distinct Courts do not ordinarily lie to the Senior Subordinate Judge but to the District Judge and the Court of the Additional Judge is not a Court of coordinate jurisdiction with that of the District Judge.
The Act neither mentions nor recognises an Additional District Judge as a Court of that hierarchy.
Consequently, in a case where offences under sections 193 and 471 of the Indian Penal Code were alleged to have been committed in a civil proceeding in the Court of a Subordinate Judge of the first class, exercising jurisdiction under the Punjab Courts Act of 1918, and neither he nor his successor made a complaint or rejected the application for the making of it, the Senior Subordinate Judge had no jurisdiction to entertain the matter and make the complaint either as a Court of appeal under section 476 B or of Its own authority under section 476 A of the Code of Criminal Procedure and the Additional 17 126 Judge, by wrongly describing himself as an Additional District Judge, could not assume a jurisdiction which he did not possess under those sections.
The High Court has power to revise orders of subordinate Courts made without jurisdiction both under section 439 of the Code of Criminal Procedure and under section 115 of the Code of Civil Procedure, therefore, it was not necessary to decide under article 136 of the Constitution which of these two sections applied in the present case, but the High Court erred in upholding the complaint made by the Senior Subordinate Judge because that court had no jurisdiction to make the complaint.
The High Court is not a Court to which the Subordinate Judge of the first class is subordinate within the meaning of section 196(3) of the Code of Criminal Procedure and could not, therefore, make the complaint of its own authority and should have remitted the application to the District Judge for disposal according to law.


judgement:
Civil Appeal No. 2077 of 1972.
From the Judgment and Order dated 2 8 1971 of the Delhi High Court in Civil Writ No. 162 D of 1966.
E. C. Agarwala and R. N. Sachthey for the Appellants.
Lal Narain Sinha, K. K. Jain, section K. Gupta, Pramod Dayal and Bishamber Lal for the Respondent No. 1 455 Rameshwar Dial, Adarsh Fial, and A. D. Mathur for Respondents 2 3.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This appeal by certificate raises an interesting controversy between the Sales Tax Authorities in the Union Territory of Delhi and those in Haryana, the question being as to which of the two authorities can assess respondent 1 to sales tax.
One of the reliefs sought by respondent 1 is that until the Sales Tax authorities of the two territories settle their differences, no sales tax should be levied or recovered from it since, it does not know to whom to pay the tax.
This controversy arises on the following facts.
Respondent 1 is a private limited company called K. G. Khosla & Co. (P) Ltd., having its head office in the Union Territory of Delhi at 1, Deshbandhu Gupta Road, New Delhi.
The company carries on business in Air Compressors and garage equipment which it manufactures in its factory at Faridabad, which was formerly in the State of Punjab and is now a part of the State of Haryana.
For the purposes of sales tax, respondent 1 is registered as a dealer both in the Union Territory of Delhi and in the State of Haryana.
It filed returns of sales tax with the sales Tax authorities in Delhi since, according to it, the sale of goods manufactured in the factory at Faridabad was being effected from Delhi by its head office.
The sales tax was being paid by the company under the Bengal Finance (Sales Tax) Act, 1941 as extended to Delhi, on the basis that the sales effected by the company were intra State sales within the territory of Delhi.
On November 24, 1965, however, the Sales Tax Assessing Authority at Gurgaon, which was then in the State of Punjab but which subsequently became a part of the State of Haryana, sent a notice to the company under sections 11 and 14 of the East Punjab Central Sales Tax Act, 1948 and rule 33 made thereunder that, in respect of the period commencing on April 1, 1961 and ending with the year 1964 65, the sales made by the company were liable to assessment in Haryana.
On March 13, 1968 an assessment was made by the Assessing Authority at Faridabad on the basis that the sales effected by the company were inter State sales liable to be assessed to sales tax under the Central Sales Tax Act, 74 of 1956.
An appeal against the order of assessment is said to be pending.
In the meanwhile, on February 14, 1966, the company filed a writ petition before the Punjab High Court Circuit Bench at Delhi which, after the recorganisation of States, was dealt with by the Delhi High 456 Court.
The Chief Commissioner of the Union Territory of Delhi and the Assessing Authority of the territory were impleaded as respondents 1 and 2 to the writ petition.
Respondent 3 was the State of Punjab and respondent 4 the Assessing Authority at Gurgaon.
Respondent 3 was later substituted by the State of Haryana.
The company contended by its writ petition that except the manufacturing of goods at the Faridabad factory, all of its activities, including those of booking of orders, sales, despatching of goods, billing and receiving of sale price were being done by and through the head office in Delhi and that no sales were effected by or from the factory.
Since, however, both the Sales Tax authorities, namely, at Delhi and Haryana, were demanding payment of sales tax on the same sale transactions, the company prayed by its writ petition that the High Court do resolve the controversy between the Sales Tax authorities of the two States and decide the question of their respective jurisdiction to assess its turnover.
The State of Haryana contended by its counter affidavit to the writ petition that the goods were manufactured by the company at Faridabad in pursuance of contracts of sale with outside purchasers, that those goods were appropriated to the various contracts of sale in the State of Haryana and that the movement of the goods from Faridabad to Delhi and onwards was caused as a necessary incident of the contracts of sale made by the company.
The sales, according to the State of Haryana had taken place at Faridabad during the course of inter State trade.
The Union of India, on the other hand, contended that the goods were brought from Faridabad to Delhi and were thereafter sold by the company to the various purchasers outside Delhi.
These sales according to the Union of India, were governed by the Bengal Finance (Sales Tax) Act, 1941 as extended to Delhi, their situs being the Union Territory of Delhi.
The Delhi High Court by its judgment dated August 2, 1971 allowed the writ petition and granted a declaration that the sales effected by respondent 1 which fell under section 3 (a) of the were liable to be assessed to inter State sales tax by the Sales Tax authorities at Faridabad since, those sales caused the movement of goods from Faridabad to Delhi.
The High Court added that the writ petition was confined to the goods manufactured at Faridabad in pursuance of pre existing contracts of sales and therefore, its judgment would have no application to the local sales 457 effected by respondent 1 at Delhi.
In the result, the High Court passed an order directing that the amount of tax which respondent 1 had wrongly paid to the sales tax authorities at Delhi on the inter State sales between 1.4.1961 to 30 9 1965 be transferred by the Sales Tax authorities at Delhi to the Sales Tax authorities at Faridabad.
The High Court has granted a certificate of fitness to the Union of India to file an appeal to this Court under Article 133, (1) (b) of the Constitution.
The question which arises for decision is whether the sales made by respondent 1 were made at Faridabad in the course of inter State trade as contended by the State of Haryana or whether they are intra State sales effected within the Union Territory of Delhi as contended by the appellant, the Union of India.
The answer to this question would depend upon the course and nature of transactions in relation to which the movement of goods was caused from Faridabad to Delhi and the terms of the contracts of sales which caused that movement.
But before adverting to those aspects of the matter, it would be necessary to notice the relevant provisions of the 74 of 1956 ("The Act").
Section 3 of the Act provides as follows: "3.
When is a sale or purchase of goods said to take place in the course of inter State trade or commerce: A sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase: (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another.
" There are two Explanations to the section but they have no bearing on the appeal.
Section 9(1) of the Act provides as follows: 9.
"Levy and collection of tax and penalties (1) the tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government 458 in accordance with the provisions of sub section (2), in the State from which the movement of the goods commenced.
" There is a proviso to section 9(1) to which it is unnecessary to refer since it has no application.
In the light of these provisions, what has to be considered is whether the sales effected by respondent 1 occasioned the movement of goods from one State to another State, which on the facts of the instant case would mean, from the State of Haryana to the Union Territory of Delhi.
It is only if a sale occasions the movement of goods from one State to another that it can be deemed to have taken place in the course of inter State trade or commerce within the meaning of section 3 (a) of the Act.
Clause (b) of section 3 is not relevant for our purpose.
The course and manner of its business have been set out by respondent 1 in paragraphs 3 and 27 of the writ petition in the following terms: "3.
Orders for the supply of goods from various parties are received by the petitioner 's company at its head office in Delhi.
The head office draws out a production programme and advises the factory to manufacture the goods in accordance therewith.
After the goods are so manufactured in the factory, the goods are collected by the head office and brought to its head office in Delhi.
From its head office the goods are despatched to various customers whether outside Delhi or in Delhi.
The price of goods is also received at the head office.
In short, the position is that excepting the manufacture of goods at the factory, all other activities including that of booking of orders, sales, despatching and billing and receiving of sale price are being carried out from the head office in Delhi." "27.
The goods manufactured in the factory are future goods within the meaning of the and the dispute does not relate to any ready goods.
" It is clear from these averments that goods were manufactured by respondent 1 in its factory at Faridabad, Haryana, in pursuance of specific orders received by its head office at Delhi.
The contracts of sales were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts.
This, therefore, is not that type of case in which goods are manufactured in the general course of business for being 459 sold as and when offers are received by the manufacturer for their purchase.
Contracts of sales were finalised in the instant case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts.
Those were "future goods" within the meaning of section 2(6) of the .
After the goods were manufactured to agreed specifications, they were despatched to the head office at Delhi for being forwarded to the respective customers at whose instance and pursuant to the contracts with whom the goods were manufactured.
The goods could as well have been despatched to the respective customers directly from the factory but they were sent in the first instance to Delhi as a matter of convenience, since there are better godown and rail facilities at Delhi as compared with Faridabad.
The despatch of the goods of Delhi was but a convenient mode of securing the performance of contracts made at Delhi.
Goods conforming to agreed specifications having been manufactured at Faridabad, the contracts of sale could be performed by respondent 1 only by the movement of the goods from Faridabad with the intention of delivering them to the purchasers.
Thus, the movement of goods was occasioned from Faridabad to Delhi as a result or incident of the contracts of sale made in Delhi.
It is true that in the instant case the contracts of sales did not require or provide that goods should be moved from Faridabad to Delhi.
But it is not true to say that for the purposes of section 3(a) of the Act it is necessary that the contract of sale must itself provide for and cause the movement of goods or that the movement of goods must be occasioned specifically in accordance with the terms of the contract of sale.
The true position in law is as stated in Tata Iron and Steel Co. Ltd., Bombay vs section R. Sarkar and others(1) wherein Shah, J. speaking for the majority observed that clauses (a) and (b) of section 3 of the Act are mutually exclusive and that section 3(a) covers sales in which the movement of goods from one State to another "is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State" (page 391).
Sarkar, J. speaking for himself and on behalf of Das Gupta, J. agreed with the majority that clauses (a) and (b) of section 3 are mutually exclusive but differed from it and held that "a sale can occasion the movement of the goods sold only when the terms of the sale provide that the goods would be moved; in other words, a sale occasions a movement of goods when the contract of sale so provides" (page 407).
The view of the majority was approved by this Court in the Central 460 Marketing Co. of India vs State of Mysore,(1) State Trading Corporation of India vs State of Mysore(2) and Singareni Collieries Co. vs Commissioner of Commercial Taxes, Hyderabad.(3) In K. G. Khosla & Co. vs Deputy Commissioner of Commercial Taxes,(4) counsel for the Revenue invited the Court to reconsider the question but the Court declined to do so.
In a recent decision of this Court in Oil India Ltd. vs The Superintendent of Taxes & others(5) it was observed by Mathew, J., who spoke for the Court, that: (1) a sale which occasions movement of goods from one State to another is a sale in the course of inter State trade, no matter in which State the property in the goods passes; (2) it is not necessary that the sale must precede the inter State movement in order that the sale may be deemed to have occasioned such movement; and (3) it is also not necessary for a sale to be deemed to have taken place in the course of inter State trade or commerce, that the covenant regarding inter State Movement must be specified in the contract itself.
It would be enough if the movement was in pursuance of and incidental to the contract of sale (page 801).
The learned Judge added that it was held in a number of cases by the Supreme Court that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is an inter State sale.
The decision in Tata Engineering & Locomotive Co. Limited vs The Assistant Commissioner of Commercial Taxes and Another(6) on which the Union of India relies, proceeds on a different consideration and is distinguishable.
The appellant therein carried on the business of manufacturing trucks in Jamshedpur in the State of Bihar.
The sales office of the appellant in Bombay used to instruct the Jamshedpur factory to transfer stocks of vehicles to the stockyards in various States after taking into account the production schedule and requirements of customers in different States.
The stocks available in the stockyards were distributed from time to time to dealers.
The transfer of the vehicles from the factory to the various stockyards was a continuous process and was not related to the requirement of any particular customer.
It was the stockyard incharge who appropriated the required number of vehicles to the contract of sale out of the stocks available with him.
Until such appropriation of vehicles was made, it was open 461 to the company to allot any vehicle to any purchaser or to transfer the vehicles from the stockyard in one State to a stockyard in another State.
At page 870 of the report, a statement occurs in the judgment of Grover, J., that it was not possible to comprehend how in the above situation it could be held that "the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale.
" This statement is relied upon by the Union of India in support of its contention that the contract of sale must itself provide for the movement of goods from one State to another.
We are unable to read any such implication in the observation cited above.
At page 866 of the report, after referring to certain decisions, the Court observed that the principle admits of no doubt, according to the decisions of this Court, that the movement of goods "must be the result of a covenant or incident of the contract of sale.
" This decision may be usefully contrasted with another decision between the same parties, which is reported in State of Bihar & Anr.
vs Tata Engineering & Locomotive Co. Ltd.(1).
In that case the turnover in dispute related to the sales made by the company to its dealers of trucks for being sold in the territories assigned to them under the dealership agreements.
Each dealer was assigned an exclusive territory and under the agreement between the dealers and the company, they had to place their indents, pay the price of the goods to be purchased and obtain delivery orders from the Bombay office of the company.
In pursuance of such delivery orders trucks used to be delivered in the State of Bihar to be taken over to the territories assigned to the dealers.
Since under the terms of the contracts of sale the purchasers were required to remove the goods from the State of Bihar to other States, no question arose in the case whether it was or was not necessary for a sale to be regarded as an inter State sale that the contract must itself provide for the movement of goods from one State to another.
If a contract of sale contains a stipulation for such movement, the sale would, of course, be an inter State sale.
But it an also be an inter State sale, even if the contract of sale does not itself provide for the movement of goods from one State to another but such movement is the result of a covenant in the contract of sale or is an incident of that contract.
The decisions to which we have referred above show that in order that a sale may be regarded as an inter State sale, it is immaterial whether the property in the goods passes in one State or another.
The question as regards the nature of the sale, that is, whether it is an inter 462 State sale or an intra State sale, does not depend upon the circumstances as to in which State the property in the goods passes.
It may pass in either State and yet the sale can be an inter State sale.
The High Court was, therefore, right in holding that the sales in question are inter State sales and that the turnover of sales is assessable to sales tax under the at the instance of the Sales Tax authorities at Faridabad.
The amount of tax which respondent has wrongly paid to the Sales Tax authorities at Delhi on such inter State sales from 1 4 1961 to 30 9 1965 shall have to be transferred by the Sales Tax authorities at Delhi to the Sales Tax authorities at Faridabad, as directed by the High Court.
The appeal is accordingly dismissed but there will be no order as to costs.
N.K.A Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent company who was a manufacturer of air compressors and garage equipment had its factory at Faridabad (in the State of Haryana) and its head office in Delhi (Union Territory of Delhi).
The head office drew the production programme and advised the factory to manufacture the goods in accordance therewith.
After the goods were so manufactured in the factory they were collected by the head office and brought to Delhi and despatched to various customers whether outside Delhi or in Delhi.
The price of goods was received at the head office.
In other words excepting the manufacture of goods at the factory all other activities, were carried out from the head office in Delhi.
In respect of sale of goods manufactured at Faridabad the respondent company filed sales tax returns with the sales tax authorities at Delhi on the ground that the sales were effected from Delhi by the head office and that they were intra state sales within the territory of Delhi and accordingly paid sales tax at Delhi.
In November, 1965, however, the sales tax authorities of Haryana demanded payment of sales tax under the East Punjab General Sales Tax, Act, 1948 for the period commencing from April 1, 1961 and ending with the year 1964 65 pointing out that the sales effected were inter state sales liable to be assessed by them under the .
In its writ petition the respondent company alleged that since all its activities were being carried on by or through the head office in Delhi and no sales were effected by or from the factory at Faridabad sales tax was paid by it in Delhi and since the sales tax authorities in Haryana were demanding payment of Central Sales Tax in respect of the same transaction the High Court might resolve the controversy.
The High Court held that the sales fell under section 3(a) of the and were liable to be assessed to inter state sales tax by the Sales Tax Authorities at Faridabad and accordingly ordered that the sales tax paid by the respondent in Delhi be transferred to the Sales Tax Authorities at Faridabad.
On appeal the Union of India contended that since the situs of sale was Delhi Sales Tax was payable in Delhi.
Dismissing the appeal, 454 ^ HELD: 1 (a) The High Court was right in holding that the sales were inter state sales and that the turnover on sales was assessable to sales tax under the and that the amounts of sales tax wrongly paid in Delhi be transferred to the Sales Tax Authorities at Faridabad.
[462 A B] (b) In order that a sale may be regarded as an inter state sale it is immaterial whether the property in the goods passes in one State or another.
The question as regards the nature of the sale, that is, whether it is an inter State sale or an intra State sale does not depend upon the circumstance as to in which State the property in the goods passes.
It may pass in either and yet the sale can be an inter State sale.
[461 G H, 462 A] In the instant case the contracts of sales were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts.
This, therefore, is not that type of case in which goods are manufactured in the general course of business for being sold as and when offers are received by the manufacturer for their purchase.
Contracts of sales were finalised in the instant case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts.
These were "future goods" within the meaning of section 2(6) of the .
After the goods were manufactured to agreed specifications, they were despatched to the head office at Delhi for being forwarded to the respective customers at whose instance and pursuant to the contracts with whom the goods were manufactured.
The despatch of goods of Delhi was but a convenient made of securing the performance of contracts made at Delhi.
Thus the movement of goods was occasioned from Faridabad to Delhi as a result or incident of the contracts of sale made in Delhi.
[458 H, 459 A D (c) For the purpose of section 3(a) it is not necessary that the contract of sale must itself provide for and cause the movement of goods or that the movement of goods must be occasioned specifically in accordance with the terms of contract of sale.
[459 E] Tata Iron and Steel Co. Ltd., Bombay vs section section Sarkar & Ors., ; ; Central Marketing Co. of India vs State of Mysore, ; State Trading Corporation of India vs State of Mysore, ; Singareni Collieries Co. vs Commissioner of Commercial Taxes, Hyderabad, ; ; K. G. Khosla & Co. vs Dy.
Commr.
of Commercial Taxes; , ; Oil India Ltd. vs The Superintendent of Taxes & Ors., ; ; followed.
Tata Eng. & Locomotive Co. Ltd. vs The Asstt.
Commr.
of Commercial Taxes & Anr.
, ; ; distinguished.
State of Bihar & Anr.
vs Tata Eng. & Locomotive Co. Ltd.; , ; referred to.


judgement:
Civil Appeal No. 2152 of 1969.
Appeal by Special Leave from the Judgment and Order dated 1 8 1967 of the Assam and Nagaland High Court in Civil Rule No. 256 of 1966.
Naunit Lal for the Appellant.
section K. Dutta, section K. Nandy and A. Sen for the Respondent.
J. Respondent J. Ahmed joined service in Assam State in 1945 and some time in 1959 came to be promoted to the Indian Administrative Service Cadre.
In that very year he was posted as Deputy Commissioner and District Magistrate, Nowgong District.
While he was holding the aforementioned post, some time in the beginning of June 1960 there were large scale disturbances in Nowgong city and District area described in official parlance as 'language disturbances '.
There was considerable damage to property.
One Shri A. N. Kidwai, the then Additional Chief Secretary to the Government of Assam, undertook an inquiry into the causes of disturbances at Nowgong with a view to ascertaining the responsibility of District officials.
After Shri Kidwai submitted his Report, the Government took the first step of suspending the respondent from service by an order dated 14th September 1960.
The Chief Secretary to the Government of Assam by his communication dated 13th September 1960 conveyed to the respondent various charges framed against him and called upon him to submit his explanation.
A statement of allegations was annexed to the communication.
Respondent submitted his explanation and thereafter the Government appointed respondent 507 No. 4, K. Balachandran as the Enquiry Officer.
After the inquiry was concluded, the Enquiry Officer submitted his report.
It may be noticed that respondent was born on 1st February 1907 and according to Rule 16 of the All India Services (Death cum Retirement Benefits) Rules, 1958 ( 'Retirement Rules ' for short), then in force, the age of retirement being 55 years, the respondent would have retired from service on 1st February 1962.
First, the Governor of Assam by his order dated 31st January 1962 purporting to exercise power under Rule 16(1) of the Retirement Rules, directed that the respondent then under suspension be retained in service for a period of three months beyond the date of his retirement which fell on Ist February 1962 or till the termination of departmental proceedings drawn up against him whichever is earlier.
By subsequent orders dated 21st June 1962, Ist September 1962, 23rd February 1963 and 28th August 1963 respondent was retained in service, till the inquiry pending against him concluded and final orders were passed in the proceedings.
It may be mentioned that the order dated 28th August 1963 was made by the Governor in exercise of the powers conferred by subrule (2) of rule 16 of the Retirement Rules.
The Enquiry Officer submitted his report holding charges 1, 2, 3, 5 and 6 proved and in respect of charge No. 4 the finding recorded was that though the charge was proved, the Enquiry Officer took note of certain extenuating circumstances mentioned in the report.
A Memorandum dated 22nd February 1963 was served by the Government of India on the respondent forwarding the report of the Enquiry Officer and the respondent was called upon to show cause why the provisional penalty determined by the Government of removal from service be not imposed upon him.
Ultimately, by order dated 11th October 1963 the President, after consultation with the Union Public Service Commission, imposed the penalty of removal from service on the respondent.
A memorial submitted by the respondent to the President under Rule 20 of the All India Services (Discipline & Appeal) Rules, 1955, ( 'Discipline and Appeal Rules ' for short), against the imposition of the penalty was rejected.
The respondent filed a petition under Article 226 of the Constitution in the High Court of Assam and Nagaland.
Two contentions were raised before the High Court: (1) Whether rule 16(2) of the Retirement Rules is attracted so as to retain the respondent in service beyond the period of his normal retirement for the purpose of completing disciplinary proceedings against the respondent; and (2) if rule 16(2) was not attracted, whether the retention of respondent beyond the normal period of his retirement was valid and if it was not valid, whether he 508 could be removed from service after he had actually and effectively retired from service ? While examining these two contentions, the High Court was of the opinion that disciplinary proceedings can be held and punishment can be imposed for misconduct and the charges held did not disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would not constitute misconduct.
On the second point it was held that if the Enquiry was not for any misconduct, sub rule (2) of rule 16 would not be attracted and the Government had no power to retain the respondent in service for the purpose of holding or completing disciplinary proceeding which can only be for misconduct, and as there was no inquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was not legal and valid, and, therefore, the respondent could not bemoved from service from which he had retired.
In accordance with these findings, the writ petition filed by the respondent was allowed declaring that the respondent was deemed to have retired from service from Ist February 1962 and that the punitive or disciplinary action taken against him after that date is completely without jurisdiction and wholly unjustified, and the same was quashed.
The Union of India and the State of Assam have preferred this appeal by special leave.
Rule 3 of the Discipline and Appeal Rules provides that the penalties therein set out may, for good and sufficient reasons, be imposed on a member of service.
One such penalty prescribed therein is 'removal from service which shall not disqualify for future employment '.
Rule 4 prescribes the authority competent to institute disciplinary proceedings.
Where a member of a service has committed any act or omission which renders him liable to any penalty specified in rule 3, an inquiry shall be held according to procedure prescribed in rule 5.
Therefore penalty prescribed in rule 3 can be imposed upon a member of the service for any act or omission committed by him which, according to rule 3, must provide good and sufficient reason to impose one or the other of the penalties mentioned therein.
Rule 7 of the Discipline and Appeal Rules enables the Government to put under suspension a member of the Service during disciplinary proceeding if having regard to the nature of charges and circumstances the Government thinks it proper to do so.
Sub rule (2) of Rule 16 of the Retirement Rules as it stood at the relevant time reads as under: "16(2).
A member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service but shall be retained in service until the 509 inquiry into the charges against him is concluded and a final order is passed".
A survey of these rules would show that disciplinary proceedings can be held against a member of the service for any act or omission which renders him liable to a penalty and such penalty can be imposed for good and sufficient reasons.
All India Services (Conduct) Rules, 1954, prescribe a code of conduct for members of service.
Discipline and Appeal Rules provide for disciplinary action and imposition of penalties.
Sub rule (2) of rule 16 of the Retirement Rules contemplates a situation where a member of service against whom disciplinary proceeding is pending is likely to retire and the proceedings may be thwarted and provides for his retention in service beyond the date of his retirement till the completion of the inquiry, provided the delinquent officer is under suspension on a charge of misconduct.
The respondent contended and the contention has found favour with the High Court that the charges framed against the respondent, even if they are held proved, would not constitute misconduct, and, therefore, it could not be said that he was under suspension on a charge of misconduct and accordingly sub rule (2) of rule 16 would not be attracted and he could not be retained in service beyond the date of his retirement.
It was said that retention in service being invalid, imposition of penalty after his retirement is illegal.
Therefore, what constitutes misconduct for a member of a service liable to be removed from service on proof of such misconduct in a disciplinary proceeding, looms large in this case.
To appreciate the contention it is better to have a look at the charges framed against the respondent.
They are as under: "(i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed.
(ii) Showed complete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and co ordinate co operations with the police to restore Law and Order; (iii) Did not personally visit the scenes of disturbances within the town or in the Rural areas, in time to take personal control of the situation and to exercise necessary supervision; 510 (iv) Did not keep Government informed of the actual picture and extent of the disturbances; (v) Showed complete inaptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete break down of Law and Order in Nowgong town as well as the rural areas of Nowgong District.
Thus you proved yourself completely unfit to hold any responsible position".
The Inquiry Officer has treated the statement in the letter conveying the charges that the respondent proved himself completely unfit to hold a responsible position as a separate and independent charge which on the face of it is merely a surmise or a conclusion drawn from the five charges set out above.
This surmise or conclusion has to be ignored and cannot be treated as a specific charge.
The five charges listed above at a glance would convey the impression that the respondent was not a very efficient officer.
Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges.
to wit, charge No. 2 refers to the quality of lack of leadership and charge No. 5 enumerates inaptitude, lack of foresight, lack of firmness and indecisiveness.
These are qualities undoubtedly expected of a superior officer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under rule 3.
Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules.
The words 'acts and omission ' contemplated by rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 ( 'Conduct Rules ' for short).
The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services.
Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty.
Lack of integrity, if proved, would undoubtedly en 511 tail penalty.
Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty.
The expression 'devotion to duty ' appears to have been used as something opposed to indifference to duty or easy going or light hearted approach to duty.
If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation.
But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings.
This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules.
The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto as to run counter to the expected code of conduct would certainly constitute misconduct.
Some other act or ommission may as well constitute misconduct.
Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general rule 3 prescribing devotion to duty.
It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct.
If it is so, every officer rated average would be guilty of misconduct.
Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent.
These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty.
Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service.
It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct.
If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce vs Foster(1)].
A disregard of an essential condition of the contract of service may constitute misconduct [see Laws vs London Chronicle .(Indicator Newspapers) (2)].
This 512 view was adopted in Shardaprasad Onkarprasad Tiwari vs Divisional Superintendent, Central Railway, Nagpur Division, Nagpur(1), and Satubha K. Vaghela vs Moosa Raza(2).
The High Court has noted the definition of misconduct in Stroud 's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct".
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. vs Workmen, Miss Shanti Patnaik(3), in the absence of standing orders governing the employee 's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive.
In section Govinda Menon vs Unio nof India(4), the mamnner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings.
A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani vs Air France, Calcutta(5), wherein it was found that the two mistakes committed by the employee while checking the load sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct.
It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct.
There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence.
Carelessness can often be productive of more harm than deliberate wickedness or malevolence.
Leaving aside the classic example of the sentry who sleeps at his post 513 and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life.
Misplaced sympathy can be a great evil [see Navinchandra Shakerchand shah vs Manager, Ahmedabad Co op.
Department Stores Ltd.(1)].
But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea.
We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may no involve mens rea but may still constitute misconduct for disciplinary proceedings.
Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation.
Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner.
Charges Nos. 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent.
It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision.
These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess.
They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings.
In fact, charges 2, 5 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances.
We do not take any notice of charge No. 4 because even the Enquiry officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge.
What was styled as charge No. 6 is the conclu 514 sion, viz., because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position.
Somehow or other, the Enquiry Officer completely failed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent.
It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment.
But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct, viz., such acts and omissions which would render him liable for any of the punishments set out in rule 3 of the Discipline & Appeal Rules, 1955.
No such case has been made out.
Mr. Naunit Lal for the appellant contended that the word 'misconduct ' is nowhere used either in the Conduct Rules or in the Discipline and Appeal Rules and the Court should not import any concept of misconduct in this inquiry.
The word 'misconduct ' has relevance here because the respondent in due course would have retired from service on 1st February 1962 on attaining the age of 55 years.
The inquiry could not be completed before the relevant date and it became necessary for the Government to retain the respondent in service beyond the normal period of retirement on superannuation for continuing the inquiry.
Rule 16(1) of the Retirement Rules 1955 as it stood at the relevant time provided for retirement on superannuation on attaining the age of 55 years.
There is a proviso to rule 16(1) which enables the State Government to postpone the period of retirement and retain the Government servant in service for an aggregate period not exceeding six months and if the retention in service beyond that period is required, the same will have to be with the sanction of the Central Government.
Respondent would have retired from service on attaining the age of 55 years on 1st February 1962.
He was served with a charge sheet dated 13th September 1960.
The inquiry could not be completed before the date of retirement of the respondent.
The Government of Assam by order dated 31st January 1962 retained the respondent in service for a period of three months beyond the date of his retirement which fell on 1st February 1962 or till the termination of the departmental proceedings drawn up against him whichever is earlier.
In view of the language of rule 16(1), the Assam Government had no power to extend the period of service of a member of the service beyond a period of six months in the aggregate.
Therefore, retention for a period of three months would be legal and valid with the result that the 515 date of retirement of the respondent would be postponed to 1st May 1962.
Admittedly no order was made by the Assam Government before 1st May 1962.
The order postponing the date of retirement and retention of the respondent in service beyond 1st May 1962 was made on 21st June 1962.
No order was made by the Assam Government for postponing the period of retirement of the respondent and his retention in service before 1st May 1962.
The State Government had power under rule 16(1) (a) of the Retirement Rules to retain the respondent in service for a period of six months in aggregate and therefore, even though specific period was mentioned in the order, simultaneously providing for retention in service till the date of termination of the proceedings, the extension would be valid for a period of six months in the aggregate if the inquiry was continuing till the expiration of six months but not exceeding six months.
In that event the respondent would retire from service by 1st August 1962.
Putting the construction on rule 16 (1) (a) and the order of extension, most favourable to the State Government, it may be stated at once that retention in service upto 1st August 1962 would be valid but unfortunately the inquiry was not over by 1st August 1962.
No order was made before 1st August 1962 for retention of the respondent in service beyond 1st August 1962.
The order next in succession in of 1st September 1962.
This order is again made by the State of Assam.
The State Government had no power to retain a member of the service for a period exceeding six months in the aggregate after the date of his normal retirement.
The maximum period for which retention could be ordered by the State Government being thus six months, the respondent would have retired from service on 1st August 1962.
Even if an order had been made by the State Government to retain the respondent in service it would be without jurisdiction and the order in fact was made on 1st September 1962.
Now, undoubtedly under rule 16(1) (b) the Central Government has power to retain a member of the service in service after the date of retirement for any period beyond six months.
But in this connection it may be pointed out that no such order appears to have been made by the Central Government.
All the subsequent orders were made by the Government of Assam.
Such orders made by the Government of Assam would not have the effect of retaining the respondent in service beyond a period of six months from the date of his normal retirement.
That being the maximum period, the State Government had no power to retain the respondent in service.
If the State Government could not retain him in service beyond 1st August, 1962, it could not continue the inquiry thereafter.
This position seems to be clearly established by the decision of this Court in State of Assam 516 vs Padma Ram Borah(1).
In that case the State Government had made an order to retain the Government servant in service up to the end of March 31, 1961.
Subsequent order extending the period was made on 9th May 1961.
This Court held that according to the earlier order of the State Government itself the service of the Government servant had come to an end on March 31, 1961 and the State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961.
If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961.
It is thus clear that the retention of the respondent in service by order of the State Government not made before the retirement taking place on 1st August 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative Service, beyond a period of six months, the respondent could not be said to have continued in service so that an inquiry could be continued against him.
Mr. Naunit Lal, however, contended that sub rule(2) of rule 16 clearly provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service until the enquiry into the charges against him is concluded and a final order is passed.
It is in the context of sub rule (2) of rule 16 that the question of the nature of the proceedings held against the respondent assumed importance.
If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made.
But before sub rule (2) of rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being conducted against him.
As pointed out earlier, no misconduct as one would understand that word in the context of disciplinary proceeding was alleged against the respondent.
There was an inquiry but before sub rule (2) of rule 16 is attracted, it had to be an inquiry on a charge of misconduct.
What is alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings.
Therefore, it could not be said that an inquiry on a charge of misconduct was being held against the respondent and sub rule (2) of rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was concluded.
It thus appears crystal clear that there was no case stricto sensu for a disciplinary proceeding against the respondent.
In fact the inquiry was held to establish that the respondent was not fit to hold a respon 517 sible post.
The respondent was actually retiring from service and there was no question of his any more holding a responsible position.
Yet not only the inquiry was initiated but he was retained in service beyond the date of his normal retirement till the final order was made on 11th October, 1963 when he was removed from the Indian Administrative Service.
It appears that there were large scale disturbances in the State.
There followed the usual search for a scapegoat and the respondent came handy.
Some charges were framed none of which could costitute misconduct in law.
Some charges were mere surmises.
Substance of the allegations was that he was not a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision making.
These deficiencies in capacity would not constitute misconduct.
If the respondent were a young man and was to continue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post.
He may or may not be retained but to retain him in service beyond the period of his normal retirement with a view to punishing him was wholly unjustified.
The High Court was, therefore, right in coming to the conclusion that the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void.
Accordingly, this appeal fails and is dismissed with costs.
P.B.R. Appeal dismissed.

summary:
The respondent, an officer belonging to the Indian Administrative Service, was due to retire on February 1, 1962.
Since a departmental enquiry in respect of some charges levelled against him was pending, he was retained in service, in the first instance, for a period of three months beyond the date of his retirement or till the termination of departmental proceedings whichever was earlier.
This date was, however, extended from time to time and eventually on August 28, 1963 an order under r. 16(2) of the All India Services (Death cum Retirement) Rules, 1958 was passed.
That Rule provides that "a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from service but shall be retained in service until the enquiry into the charges against him is concluded and a final order is passed.
" The charges levelled against the respondent were (1) that he completely failed to take any effective preventive measures against widespread disturbances which broke out in the district, (2) that he showed complete lack of leadership and failed to give proper directions to his subordinate officers, (3) that he did not personally visit the scene of disturbances; (4) that he did not keep the Government informed of the extent of disturbances; and (5) that he showed complete inaptitude, lack of foresight, capacity to take firm and quick decision and, that therefore, he proved himself completely unfit to hold any responsible position.
On the report of the enquiry officer that all the charges (except one) were substantially proved, he was removed from service.
Striking down the order of his removal from service, the High Court held that (i) negligence and efficiency in the performance of one 's duty would not constitute misconduct so as to attract punishment of removal from service and (ii) under r. 16(2) an officer could be retained in service only for the purpose of holding or completing disciplinary proceedings for misconduct and since in this case there was no enquiry into what could be called misconduct, his retention in service beyond his date of retirement was void.
Dismissing the appeal, ^ HELD: 1(a) No case, stricto sensu, for a disciplinary proceeding for misconduct had been made out against the respondent.
Any deficiency in the discharge of one 's duties would not constitute misconduct.
The enquiry held 505 was to establish that the respondent was not fit to hold a responsible post; it did not establish any misconduct on his part to deserve the punishment.
[516 H] (b) Conduct which is blameworthy on the part of a government servant in the context of the Conduct Rules would be misconduct, that is if a government servant conducts himself in a way which is not consistent with due and faithful discharge of his duties it is misconduct.
Similarly, disregard of an essential condition of the contract of service may constitute misconduct.
So too an error or omission resulting in serious or atrocious consequences may amount to misconduct.
But competence for the post, capability to hold and discharge the functions attached to it with requisite efficiency are different from some act or omission on the part of its holder so as to be called misconduct.
A single act or omission or error of judgment while holding a post of responsibility unaccompanied by serious or atrocious conduct would not constitute misconduct.
[511 G H] Pierce vs Foster, 17 QB 536 at 542; Laws vs London Chronicle (Indicator Newspapers),[1959] 1 WLR 698; section Govinda Menon vs Union of India, ; ; P.H. Kalyani vs Air France, Calcutta, ; ; referred to.
(c) The All India Services (Conduct) Rules, 1954 prescribe a code of conduct for members of the service, such for example as, that every member shall at all times maintain absolute integrity and devotion to duty and that an act or omission contrary to or in breach of the prescribed norms of conduct would constittute misconduct for disciplinary proceedings.
But the Rules are not exhaustive.
In the absence of an exhaustive or self contained code, therefore it would not be correct to say that only that act or omission would constitute misconduct for the purposes of Discipline and Appeal Rules which is contrary to the provisions of the Conduct Rules.
[511 C E] In the instant case all that the charges framed against the respondent show is that he was not a very efficient officer.
They did not specify any act or omission in derogation of or contrary to Conduct Rules, except the general rule (r.3) prescribing devotion to duty.
Lack of leadership, inaptitude, lack of foresight, lack of firmness and indecisiveness which are deficiencies in the personal character or ability of a Government servant would not by themselves constitute misconduct for the purpose of disciplinary proceedings.
They may be relevant while considering an officer 's promotion to higher post or for his retention in a higher post but they cannot be elevated to the level of acts of omission or commission contemplated by Discipline and Appeal Rules for imposing punishment.
When the respondent was sought to be removed from service as a disciplinary measure by way of penalty, a clear case of misconduct should have been established.
(d) In the context of disciplinary proceedings, misconduct does not mean misbehaviour involving some form of guilty mind or mens rea.
Gross or habitual negligence in the performance of one 's duty may not involve mens rea but yet it may constitute misconduct for disciplinary proceedings.
[513 D] 2(a) The respondent was no longer in service on the date on which the order removing him from service was made and to retain him in service 506 beyond the period of his normal retirement with a view to punishing him was wholly unjustified.
[517 C D] (b) Since the State Government had no power to retain him in service under r. 16(1)(a) of the Retirement Rules beyond August 1, 1962 it could not continue the enquiry thereafter.
Although under r. 16(1)(b) the Central Government had power to retain him in service beyond six months of the date of his retirement, no order had been passed by it.
[515 H] (c) Before r. 16(2) (which provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from service until the enquiry into the charges against him is concluded and a final order passed) would be attracted it must be shown that a member of the service was under suspension on a charge of misconduct and an enquiry was being conducted against him.
No misconduct having been alleged against the respondent, it cannot be said that r. 16(2) was attracted and that he was deemed to have been retained in service until the enquiry was concluded.
[516 F G]