judgement:
Civil Appeal No. 1194 of 1984.
Appeal by Special leave from the Judgment and order dated the Ist and 3rd March, 1982 of the Punjab and Haryana High Court in 901 L.P.A No. 188 of 1982 Frank Anthony and Susheel Kumar for the Appellant M.S. Gujaral and S.K. Bagga for the Respondent The Judgment of the Court was delivered by MISRA, J.
The main question for consideration in this appeal by special leave is whether a person selected by the Subordinate Service Selection Board for direct appointment to the post of Assistant Sub inspector of Police has got an unfettered right to be appointed on the basis of the recommendation made by the said Board.
The material facts to bring out the point in controversy are as follows.
On 31st of March, 1978 the Inspector General of Police, Punjab, respondent No. 2, sent a requisition to the Subordinate Service Selection Board (for short, the Board), respondent No. 3, to select and recommend 7 suitable pensions for the post of Assistant Sub Inspectors of Police.
While the matter was pending consideration 50 more posts of Assistant Sub Inspectors of Police became available and, therefore, the Board was requested to recommend 57 suitable persons for these posts.
The appellants along with many others were interviewed and physically tested on various dates ranging from 24th of October 1978 to 6th of February, 1979.
Later on after the interviews were over but before the select list could be finalised by the Board the Inspector General of Police vide his letter dated 31st of August, 1979 requested the Board to recommend 170 more persons in addition to 57 already under consideration in anticipation of further vacancies likely to occur as a result of expected reorganisation of the Police force.
In that connection a proposal for the disbandment of the Punjab Armed Police Battalion and instead creation of some additional posts for the District Police, had already been submitted.
Thus, in all 277 candidates were to be recruited by the Board for the post of Assistant Sub Inspectors of Police.
The Board however, recommended a panel of 144 candidates on 22nd of December, 1979.
It appears that the proposal for disbandment of the Punjab Armed Police Battalion and creation of additional posts in the districts referred to above was turned down by the Government and, therefore, the anticipated 170 temporary vacancies of Assistant Sub Inspectors against direct recruitment quota could not be available.
Out of the earlier 57 posts, however, 9 were offered to the wards of 902 the deceased police officers in accordance with the Punjab Government instructions regarding priority appointments issued vide letter No. 80 (GOI) SII (3)/73 12092 dated 18th April, 1973.
The remaining 48 posts were offered to the candidates recommended by the Board in order of merit determined by the Board.
Since the remaining candidates recommended by the Board pursuant to the latter requisition were not appointed as there were no vacancies, the disgruntled candidates filed two petitions under article 226 of the Constitution before the High Court.
The stand of the petitioners in the two petitions was: (a) that the vacancies had already been communicated to the Board and it was on that basis that the Board had recommended their names for appointment and the State was bound to appoint them on the basis of the recommendation of the Board; (b) that the State was bound to follow the Punjab Police Rules and under rule 12.
3 twenty five per cent of the posts in the rank of Assistant Sub Inspectors are to be filled in by direct recruitment and the remaining seventy five per cent are to be filled by promotion; (c) that the State adopted a device of making ad hoc appointment of the Assistant Sub Inspectors by posting Head Constables as Assistant Sub Inspectors and the whole action was mala fide as the State Government intended to select and appoint its own favourites, (d) that the action of the Government in not appointing them pursuant to the recommendation of the Board is violative of articles 14 and 16 of the Constitution; (e) that even after the abolition of the Board the candidates recommended by it could not be refused appointment on the ground that the Board later on became functus officio; and (f) that even after the expiry of six months fixed by the Government instructions the petitioners could be appointed on the basis of recommendation of the Board.
903 The petitions were resisted by the State Government on the ground inter alia that by 7th of January, 1980 only 57 posts in the direct recruitment quota became available and appointments were made.
As regards the remaining vacancies of 170 temporary posts of Assistant Sub Inspectors, proposal for disbandment of the Punjab Armed Police Battalion and instead creation of some additional posts for the District Police was eventually turned down by the State Government and so no additional vacancies became available and the petitioners could not be appointed.
In any case the petitioners could not claim appointment as of right merely because the Board had recommended their names.
It was further pleaded that according to the Government instructions issued vide letter No.1673 C II 56 dated 22nd March, 1957 a time limit of six months had been prescribed for filling up the vacancies by persons recommended by the Board and after the expiry of six months a fresh reference had to be made to the Board.
As six months prescribed had already expired the petitioners could not be appointed on the basis of the recommendation of the Board.
They also denied the allegation of mala fides in the ad hoc appointment of other persons and further pleaded that the refusal of the Government to appoint them was not hit by Articles 14 and 16 of the Constitution.
On a consideration of the material on the record the learned Single Judge came to the conclusion that there was neither any vacancy in the quota of direct recruits of Assistant Sub Inspectors nor a single post meant for direct recruits is manned by an ad hoc employee, that no case of mala fides or favouritism has been made out, and that there was no violation of Articles 14 and 16 of the Constitution.
A letters patent appeal preferred by the petitioners before the High Court was also dismissed.
The petitioners in the writ petition feeling aggrieved have filed the present appeal by special leave.
The petitioners before this Court in appeal categorically stated on oath that 500 promotions had been made by the State of Punjab and that the petitioners were entitled to 25 percent of those posts according to quota rule.
They also alleged that 250 vacancies of Assistant Sub Inspectors were available in the C.I.D. wing alone in the Punjab Police and 250 persons had been promoted against those vacancies on ad hoc basis.
This Court by its order dated 9th January, 1984 directed the State to supply detailed information to the petitioners of the names and designations of the Head Constables 904 promoted as Assistant Sub Inspectors between the period from 1979 to 1983.
Pursuant to that order the State gave full details of the various promotions made by them during the period 1979 to 1983.
rt revealed that the promotions made in various ranges totalled 646 and according to the State during 1979 1983, 576 vacancies of Assistant Sub Inspectors in promotee quota became available on account of promotion of 576 Assistant Sub Inspectors to the rank of Offg.
Sub Inspectors, 5 against retirement of such officers, 13 due to death, 2 due to dismissal and 4 due to reversion of promotee Assistant Sub Inspectors.
In addition, a total of 60 additional temporary posts of Assistant Sub Inspectors were sanctioned by the Government c, during the period against which such promotions were made.
Thus, out of the total 660 vacancies of promotee quota during the aforesaid period 646 promotions had been made and on 31 December, 1983 there were 14 vacancies in the rank of Assistant Sub Inspectors Against promotee quota.
Before we deal with the points raised by Mr. Frank Anthony in support of the appellants we must record our disapproval of the inconsistent pleas taken by it at various stages.
To start with, it took up the plea that there Were no ad hoc appointments of Assistant Sub Inspectors from 1979 but later on it went back upon its previous statement and admitted that there were ad hoc appointments made but explained the position by subsequent affidavits wherein it was stated that the C.I.D. has no cadre strength of its own and all the posts, except language Stenographer, are filled in by taking officers on deputation from other units of the Police department and no ad hoc appointments were made in the rank of Assistant Sub Inspectors and that the petitioners could not be appointed as no posts for the petitioners were available with the department, but it is not necessary to refer to those explanations in any detail.
Be that as it may, the fact remains that in anticipation of the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of some additional posts for the district police a requisition was made for selecting 170 more candidates for direct appointment to the post of Assistant Sub Inspectors.
But the proposal having been turned down by the Government there were no vacancies and, therefore, the question arises whether the petitioners have got an unfettered right to be appointed even though the aforesaid proposal had not been accepted and consequently there were no vacancies.
905 We now take up the contentions raised by Mr. Frank Anthony counsel for the appellants, that they have a right to be appointed to the post of Assistant Sub Inspectors on the basis of the selection made by the Board Article 320 of the Constitution enumerates the duties to be performed by the Union or the State Public Service Commissions: (i) to conduct examinations for appointments to the services of the Union and the services of the State respectively; (ii) if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required; (iii)to advise on matters enumerated under cl.
(3) of Article 320; and (iv) to advise on any matters so referred to them and any other matter which the President, or as the case may be, the Governor of the State may refer to them.
The fact that there is no provision in the Constitution which makes the acceptance of the advice tendered by the Commission, when consulted, obligatory renders the provisions of article 320(3) only directory and not mandatory.
The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment.
It is constituted by reasons of high ability varied experience and of undisputed integrity and further assisted by experts on the subject.
It Is true that they are appointed by Government but once they are appointed their independence is secured by various provisions of the Constitution.
Whenever the Government is required to make an appointment to a higher public office it is required to consult the Public Service Commission.
The selection has to be made by the commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission.
The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government.
The Government may 906 accept the recommendation or may decline to accept the same.
But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so.
Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution, This, however, does not clothe the appellants with any such right.
They cannot claim as of right that the Government must accept the recommendation of the Commission.
If, however, vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission.
It cannot disturb the order of merit according to its own sweet will expect for other good reasons viz., bad conduct or character.
The Government also cannot appoint a persons whose names does not appear in the list.
But it is open to the Government to decide how many appointments will be made.
The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus.
We are supported in our view by the two earlier decisions of this Court in A.N.D. Silva vs Union of India and State of Haryana vs Subash Chander Marwaha & Ors.
The contention of Mr. Anthony to the contrary cannot be accepted.
It was next contended for the appellants that the Punjab and Haryana High Court itself had taken a different view in G.S. Kalkat vs State of Punjab and Ors.
from the one taken in the instant case and a copy of the judgment in that case has been filed.
We have perused the judgment but find that the facts of the case were materially different from the facts of the case in hand.
The next contention raised on behalf of the appellants was that the action of the Government in not appointing them in spite of the fact that they were selected and their names were recommended by the Board for appointment, was mala fide.
The allegations about mala fides are more easily made than made out.
There are no materials before us to warrant the conclusion that the action of the State Government in not appointing them was mala fide especially when the posts in anticipation where of the Board was asked to select more 907 candidates came to an end.
There was no question of their appointment against those vacancies.
Likewise, the contention that the action of the Government is hit by article 14 and 16 of the Constitution has no substance.
The case of the appellants is not identical with those of the persons who were appointed as against 57 vacancies for which original requisition was made to the Board for selecting them.
An argument of desperation was further advanced about promissory estoppel stopping the State Government from acting in the manner it did in not appointing the appellants although their names had been recommended.
The notification issued by the Board in this case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts.
It did not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed.
The candidates did not acquire any right merely by applying for selection or for appointment after selection.
When the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of additional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State.
It was further contended by Mr. Anthony that the recommendation made by the Board would remain effective even after the body had become defunct.
It is not necessary to go into detail in this contention in as much as the fate of the case depends upon whether the appellants had a right to get appointed on the basis of the selection and recommendation made by the Board.
The appellants came to Court to vindicate their right but if they had no right there was no question of enforcing that right.
For the foregoing discussion the appeal has no force and therefore, it must fail.
It is accordingly dismissed but in the circumstances of the case the parties should bear their own costs.

summary:
Pursuant to a requisition of the Inspector General of Police Punjab to select and recommend suitable persons for the post of Assistant Sub Inspectors of Police against 57 available vacancies And 170 anticipated vacancies likely to occur as a result of expected re organisation of the Police Force by disbandment of the Punjab Armed Police Battalion, the appellant along with many others were interviewed and physically tested on various dates and the Board recommended panel of 144 candidates on 22nd December, 1979.
The proposal for disbandment of the Punjab Armed Police Battalion and creation instead of additional posts in the Districts was turned down by the Government with the result that there were only 57 posts out of which 9 were offered to The wards or the deceased police officers in accordance with the Punjab Government Instructions regarding priority appointments issued vide the letter No. 80(GOI) SII(3)/73/ 12092 dated 18th April, 1973 and the remaining 48 posts were offered to the candidates recommended by the Board in order of merit determined by the Board.
Since remaining candidates recommended by the Board pursuant to the requisition against anticipated vacancies were not appointed as there were no vacancies the disgruntled candidates filed two petitions under Article 226 of the Constitution before the High Court.
The petitions having been dismissed, two appeals were preferred under the Letters Patent which were also dismissed Hence the appeals by Special Leave.
Dismissing the appeals, the Court ^ HELD: 1.
The fact that there is no provision in the Constitution which makes the acceptance of the advice tendered by the Public Service Commission when consulted, obligatory renders the provisions of Article 320(3) only directory and not mandatory.
[905 E] 2.
The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment to the post to avoid arbitrariness and nepotism in the matter of appointment.
The selection by tho Commission, however, is only a recommendation of the Com 900 mission and the final authority for appointment is the Government.
The Government may accept the recommendation or may decline to accept the same.
But if it chooses not to accept the recommendations of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reason and report for doing so.
Thus the Government is made answerable to the l louse for any departure vide Article 323 of the Constitution.
This, however, does not clothe the appellants with any such right in the instant case.
l hey cannot claim as of right that the Government must except the recommendation of the Commission.
If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order merit as recommended by the Public Service Commission, it cannot disturb the order of merit according to its own sweet will except for other good reasons namely bad conduct or character.
The Government cannot appoint person whose name does not appear in the list.
But it is open to the (Government to decide how many appointments will be made.
The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a Mandamus.
[905 F H; 906 A D] A.N.D. ' Silva vs Union of India, [1962] Supp I S.C.R. 968; State of Haryana vs Subash Chander Marwaha & Ors., [1974]] I SCR 165: applied.
G.S. Kalkat vs State of Punjab & Ors.
(Punjab and Haryana decided on 15th July, 1980; held inapplicable.
The allegation about the mala fides are more easily made than made out.
In the instant case, there are no materials to warrant the conclusion that the action of The State Government in not appointing the appellants was mala fide especially when the post in anticipation whereof the Board was asked to select more candidates came to an end.
There was no question of their appointment against these vacancies [906 G; 907 A] 3:2.
The action of the Government is not hit by Articles 14 and 16 of the Constitution and the case of the appellants is not identical with those of the persons who were appointed as against 57 vacancies for which original requisition was made to the Board for selecting them [907 B] 3:3.
The notification issued by the Selection Board in this case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts.
It did not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed.
The candidates did not acquire any right merely by applying for selection or for appointment after selection When the proposal for disbandment or the Punjab Armed Police Battalion and instead creation of additional posts for the district police was turned down by the State Government, the appellants were only informed of the situation and there was no question of any promissory estoppel against the State.
[907 C D]


judgement:
Civil Appeal No. 2386 of 1984.
Appeal by Special leave from the Judgment and Order dated the 2nd March, 1983 of the Delhi High Court in Writ Petition No. 314 of 1983.
Miss Mamta Sarin for the Appellant.
Pawan Kumar Jain and K. K. Gupta, for Respondent No. 2.
J. Appellant Rajinder Kumar Kindra was inducted as a peon by M/s Raymond Woolen Mills Ltd. ( 'employer ' for short).
In 1972 he was promoted as a salesman and at the relevant time he was serving at the Raymond 's retail showroom in Karol Bagh, New Delhi.
One Shri R.S. Negi was the Manager cum Cashier of the Karol Bagh Show room of the employer under whom the appellant was working.
He was served with a charge sheet dated December 11, 1975 which reads as under: "That you, Shri Rajinder Kindra, is hereby informed that you, while working as a salesman at Raymonds ' Retail Show room, 2397/1, Hardhian Singh Road, New Delhi 5 870 have misappropriated cash and funds from the amounts of Raymonds ' Woolen Mills Ltd., to the extent of Rs. 32,196/88 or a part thereof during the period 10.6.75 to 17.10.75 by manipulating false accounts, submitted bogus cheques into the Mills Account or by taking cash from the chest of the Retail Depot along with Shri R.S. Negi, Manager cum Cashier of Raymonds ' Retail Show room, 2397/1, Hardhian Singh Road, Karol Bagh, New Delhi.
That you Shri Rajinder Kumar Kindra while acting as a salesman aided, abetted, connived and conspired with the Manager cum Cashier Shri R.S. Negi of the said show room and issued various cheques in the amount of Rs. 15,027/75 from your cheque book with the ulterior motive and design to defraud the Company of the said amount by submitting these bogus cheques into the Mills ' Account and thereby causing unlawful gain to yourself and causing unlawful loss to the Company in collusion with Manager cum Cashier Shri R.S. Negi.
That you Shri Rajinder Kumar Kindra has willfuly/ negligently permitted the user of the cheques in order to defraud the company of the amount of Rs. 15,027/75 in conspiracy with Shri R.S. Negi and you have been habitually negligent and willfully disobedient in the performance of your duties as salesman.
" One Shri V.K. Soni was appointed as Enquiry Officer to enquire into the aforementioned charges.
In the course of enquiry, the appellant denied the charges levelled against him.
He stated that the cash used to remain with Manager cum Cashier Shri R.S. Negi and it is for him to explain about some cheques drawn and the statement of account submitted by him.
He denied himself having issued any cheque.
He denied that he was negligent in performance of his duty.
The employer examined Shri O.D. Sharma, Shri G.L. Kapur, Shri V.K. Malhotra and Shri Nandan Singh as witnesses for the management.
The appellant gave evidence on his behalf and he was cross examined on behalf of the employer.
He also examined one Shri A.K. Godbole as his witness.
The Enquiry Officer Shri V.K. Soni submitted his report dated June 22, 1976.
In the report, he Inter alia held that the appellant had been guilty of gross negligence and misconduct in the 871 discharge of his duties and he was 'actively responsible for committing the fraud on the Company with Shri R.S. Negi to the extent of Rs. 15027.75 and all the charges as contained in the charge sheet against the appellant were held proved.
The employer accepted the report and dismissed the appellant from service with effect from August 25, 1916.
The appellant raised an industrial dispute inter alia contending that the findings of the enquiry officer were perverse and there was no evidence in respect of either the charge of negligence or embezzlement of funds and that the dismissal from service was wholly unjustified.
The employer and the appellant by a written agreement agreed to refer the existing industrial dispute arising out of the dismissal from service of the appellant to an arbitrator, as provided by Sec. 10 (A) (1) of the (Act for short).
The first respondent Delhi Administration pursuant to aforementioned written agreement referred the following dispute to Shri G. C. Jain, Presiding Officer of the Labour Court, Delhi who was selected by the parties to be the arbitrator.
It reads as under: "(1) Whether the services of Shri R.K. Kindra were terminated illegally and unjustifiably ? (2) Whether the enquiry proceedings were initiated by the principles of natural justice and equity ? (3) To what relief if any, is the worker entitled ?" The employer contended before the arbitrator that the enquiry held by him is fair and just and full opportunity was afforded to the appellant to participate in the enquiry, to cross examine witnesses produced by the management and to lead his evidence.
It was further contended that the conclusions reached by the enquiry officer and findings recorded by him are borne out by the evidence and permissible inferences drawn from the evidence and they are such that any reasonable person would reach on the evidence the conclusion of guilt of the appellant.
It was submitted that the arbitrator cannot sit in appeal over the findings of the enquiry officer.
It was further contended that at any rate there is satisfactory evidence to show that the appellant negligently kept his cheque book in relation to his private banking account in such a manner as to be accessible to any one to misuse the same and this was done intentionally, so as to facilitate the commission of fraud 872 presumably by Manager cum Cashier Shri R.S. Negi.
In the ultimate analyses this was the only misconduct attributed to the present appellant.
The arbitrator held that none of the witnesses of the employer has stated that the appellant misappropriated any amount of the Company or he had manipulated false accounts or had submitted bogus cheques in the account of the employer or had taken away any amount from the chest of the retail depot or had abetted, aided, conspired or connived with Shri R.S. Negi or issued any cheque to defraud the Company.
Thus the employer failed to lead any evidence before the arbitrator to impute any misconduct to the appellant as alleged in the charge sheet.
The arbitrator concluded that there was no evidence in support of charge No. 1 and 2 and there was no evidence to prove Charge No. 3.
The conclusion reached by the arbitrator may be extracted: "In conclusion, I hold that the findings of the Inquiry Officer were based on no legal evidence and were, therefore, perverse.
The enquiry is, therefore, vitiated.
I hold accordingly.
" On these findings nothing remains save and except the consequential order that the dismissal from service of the appellant must be quashed and set aside and the appellant be reinstated in service with all consequential benefits unless of course the employer had sought an opportunity to lead evidence before the arbitrator to substantiate the charges.
No such opportunity was sought and therefore as held by this court in Shanker Chakraborte vs Britannia Biscuits Co. Ltd., nothing further was required to be done and the award reinstating the appellant should have followed.
Unfortunately making of this consequential order was postponed.
The finding of the arbitrator is dated May 24, 1976.
It appears that soon thereafter Shri G.C. Jain arbitrator was elevated as a Judge of the Delhi High Court and he consequently before taking his oath did not make the final order which was merely a formal part of his duties.
That unfortunately led to a second reference.
This time reference was made under Sec.
10 (A) (1) to Shri N.L. Kakkar, retired Additional District and Sessions Judge, Delhi as an arbitrator.
The same three points were referred to Shri Kakkar for his decision.
Shri Kakkar after narrating the evidence that was led before the enquiry officer summed up his findings as under: 873 (a) "That the services of Shri R.K. Kindra, were not terminate illegally or unjustifiably but on account of charges having been successfully proved against him, especially the third charges that is with regard to willfully/negligently permit the user of cheques in order to defraud the company in conspiracy with Shri R.S. Negi and negligence in the performance of his duties as a salesman.
(b) That the enquiry proceedings were not vitiated by the principles of natural justice and equity as full opportunity was given to the workman and no prejudice was caused to him by any act of the management, although he was given full opportunity to lead his evidence and to cross examine the witnesses of the management and particularly there was no enmity between the work man and the enquiry officer and the dismissal as such was not wrongful.
(c) That the workman is not entitled to any relief, and is not entitled to reinstatement with back wages and continuity of service since he has been gainfully employed with Shri Tara Chand at his coal depot ever since his dismissal.
The reference by way of award is answered accordingly.
" The appellant filed a writ petition under article 226 in the High Court of Delhi questioning the correctness, validity and the legality of the award made by Shri Kakkar.
A Division Bench of the High Court dismissed the matter in limine, observing that the matter depends upon assessment of evidence and the Court cannot reappraise the same under article 226 of the Constitution.
Hence this appeal by special leave.
Let it be made absolutely clear at the outset that the only misconduct imputed to the appellant was that he was negligent in keeping his cheque book in relation to his own private account in such a manner that it enabled Shri R.S. Negi, Manager cum Cashier of the Branch in which the appellant was a salesman at the relevant time to misuse the cheque forms and thereby defraud the employer.
Mr. P.K. Jain learned counsel for employer specifically 874 conceded that the only misconduct alleged against the appellant consists of his negligence in keeping his own cheque book by which he could operate his own private account in such manner as to enable someone so minded to misuse the cheque forms.
He was repeatedly asked what law, rule, regulation or a standing order, if there be any, which requires an employee to keep his own private cheque book under lock and key or safe custody so that no one except himself can have access to it and we waited for the answer in vain.
It was conceded that the appellant is not guilty of any embezzlement or misappropriation of funds of the employer though a grandiose albeit flamboyant charge was framed that he misappropriated cash and funds from the accounts of the employer to the extent of Rs. 32,196.88 p. or part thereof during the period June 10, 1975 to October 10, 1975 by manipulating false accounts, submitting bogus cheques into the employer 's account or by taking cash from the chest of the branch alongwith Shri R.S. Negi, Manager cum Cashier of the Branch.
There is not a tittle of evidence in support of the allegation of misappropriation or embezzlement of funds or manipulation of accounts by the appellant.
This was in terms conceded.
The allegation, to be specific, of the employer is that Shri R.S. Negi, Manager cum Cashier misused the cheque forms from the cheque book of the appellant in respect of his private account and embezzled funds of the employer.
It was not the case of the employer that applicant drew cheques or embezzled cash from the chest.
Another allegation was that the appellant abetted, aided, connived at or conspired with Manager cum Cashier Shri R.S. Negi, in charge of the branch and issued various cheques in the amount of Rs. 15,027.75 p. drawn on forms of cheques contained in the cheque book of the appellant issued to him for operating his own private account with ulterior motive of defrauding the employer by submitting bogus cheques into the account of the employer and thereby caused wrongful gain to himself and wrongful loss to the employer, in collusion with Shri R.S. Negi.
Again it was conceded that there is absolutely not an iota of evidence which could indicate that the appellant issued any a cheques himself or that he aided or abetted someone to issue the r bogus cheques.
These were the allegations in charges Nos. 1 and 2 and the finding by Mr. Kakkar that they are proved can be styled as perverse on the admission of the employer himself because not a single witness in the course of domestic enquiry so stated.
Mr. Jain, learned counsel for the respondent could not point out one single sentence of evidence in support of these two charges.
875 Mr. P.K. Jain urged that the third charge which was to the effect that the appellant permitted the use of the cheques from the cheque book issued to him by the Bank in which he was maintaining his own private account to defraud the employer to the tune of Rs. 15,027.75 p. in conspiracy with Shri R.S. Negi and that he was negligent and was guilty of wilful disobedience ill performance of his duties as a salesman was substantiated.
It is a composite charge.
The first limb of the charge refers to negligence in handling his private cheque book so that in conspiracy with Shri R.S. Negi cheque forms contained in the cheque book issued to the appellant for operating his private account were used by Shri R.S. Negi to defraud the employer.
Rejecting the language improperly used the charge is that the appellant kept his private cheque book unattended or not in safe custody so that Mr. R.S. Negi misused the cheque forms from this cheque book.
In support of this allegation, the evidence is that the appellant did not keep his cheque book under lock and key or in safe custody so that no one else except himself will have access to the same We have not been able to understand apart from appreciating this charge.
When a cheque book is issued to a holder of an account by the Bank, there is no law which requires him to keep his cheque book in safe custody.
He may keep it in any manner and if in the process some one misuses the cheque and withdraws money from the account of the holder, the bank will be able to disown its liability pleading negligence of the holder of the account.
A man can keep his cheque book anywhere he likes and even if it is not in safe custody he does so at his own peril.
In the event of misuse as a result of negligent handling of the cheque book, the Bank will be able to disown its liability if someone by misuse of the forms of cheques withdraws any amount from the account in respect of which the cheque book is issued.
That is not the case here.
The accusation is that the appellant kept his cheque book in such a manner as to be accessible to any one and that some one unscrupulously removed the forms of cheques from the cheque book of the appellant and used them to withdraw money from the appellant 's account but from the employer 's account.
Some one so minded to forge cheque and to withdraw money from some one 's account may use anybody 's cheque book.
In such a situation, the owner of the cheque book unless he has participated in the conspiracy in any manner for facilitating withdrawal of the amount cannot be attributed any misconduct for keeping his cheque book unattended or not in safe custody.
There fore first limb of the charge No. 3 can be rejected as per se untenable without anything more.
876 The second limb of the third charge is that the appellant was negligent and guilty of wilful disobedience in performance of his duties as a salesman.
Not a single witness has spoken of any negligence on the part of the appellant in performance of his duties.
There is not the remotest suggestion in the evidence to that effect.
Not a single witness has spoken about any wilful disobedience in performance of duty.
Some flamboyant charges appears to have been cooked up by the employer without any regard for truth or without any regard for responsibility ill making such heinous allegation and levelling serious accusation without an iota of evidence in support of it We repeatedly asked Mr. P.K. Jain, learned counsel for the employer to show from the evidence led before the inquiry officer which order of the employer was disobeyed much less unwilfully by the appellant, as also acts of omission and commission in performance of duty to spell out negligence.
The only reply we received was that the appellant kept his cheque book unattended.
Keeping one 's own cheque book unattended is no part of performance of duties of the employee and there was no order by the employer how appellant should handle his private cheque book.
Let is be made distinctly clear that this Court in this appeal is not re appreciating evidence.
Mr. G.C. Jain, the first Arbitrator who completed a major part of the enquiry in the reference made to him under sec.
10 (A) (1) after meticulously examining the evidence led on behalf of the employer in the enquiry proceedings concluded as under: "22.
I have carefully examined this entire evidence.
None of the witnesses has stated that Shri Kindra had misappropriated any amount of the Company or he had manipulated false accounts, or had submitted bogus cheques in the mills account and had taken away any amount from the chest of the retail depot or had abetted, aided conspired or connived with Shri R.S. Negi or issued any cheque to defraud the company.
What PW 1 to PW 3 said is that Shri Negi used five cheques from the cheque book of this workman to defraud the company.
There is no evidence to show any fraud on the part of Shri Kindra or to connect him with misappropriation by Shri Negi.
The mere fact that his cheques were used is not sufficient to hold that he had entered into conspiracy with Shri Negi or that he wilfully or negligently permitted the use of the cheques in order to defraud the company to the amount of Rs. 877 15,027.75 p.
Or part thereof Management 's own witness have stated that these cheques were utilised either with the connivance of Shri R.K. Kindra or because of his negligence in respect of the same.
None of them has stated with certainty that Shri Kindra was a party to this misappropriation.
No doubt the evidence shows that he was not very careful in keeping his cheque book under lock and key.
But this circumstance is not sufficient to hold that he had entered into any conspiracy with Shri R.S. Negi or was a party to the misappropriation.
Thus there was no evidence in support of charge No. 1 and 2.
There is no evidence that Shri Kindra wilfully permitted the user of his cheque book.
There is no evidence that his negligence in keeping the cheque book in a drawer without a lock was with a view to defraud the company.
There is no evidence that he was habitually negligent or willfully disobedient in the discharge of his duties.
The manner of keeping his personal cheque book was not a part of his duties as salesman.
Thus there was no evidence to prove charge No. 3 as well." He further concluded in paragraph 23 of his award that the findings of the enquiry officer were based on no legal evidence and were therefore perverse and the enquiry was vitiated.
The employer never sought an opportunity to lead evidence before arbitrator to substantiate the charges.
In fact on the conclusion recorded by Mr. G.C. Jain he should have made a consequential order of setting aside the order of dismissal and directing reinstatement with back wages but he unnecessarily procrastinated and then before he could attend to the remainder of the work, he was elevated to the bench of the Delhi High Court leaving the appellant to face the music of a fresh enquiry and a complete sommer sault by the new arbitrator.
A fresh reference was made to Sh.
N.L. Kakkar, Mr. P.K. Jain, learned counsel for the employer/contended that this Court is only concerned with the award of Mr. Kakkar and the findings recorded by Mr. G.C. Jain are not relevant.
We have serious reservations about this submission, but it is not necessary in this case to decide that point.
We would now confine ourselves to the award of Shri Kakkar.
In Paragraph 1 to 5, the history of the dispute and the charges 878 framed against the appellant have been set out by Mr. Kakkar.
Paragraph 6 deals with what the enquiry officer did.
Paragraph 7 reproduces the contentions on behalf of the appellant.
Paragraph 8 summarises the contentions on behalf of the employer.
Paragraphs 9, 10 and 11 deal with the manner in which the enquiry was held.
Paragraph 12 refers to the written arguments submitted on behalf of the employer.
In the concluding paragraph 13, Mr. Kakkar states that the circumstances of the case and the evidence produced by the parties before the enquiry officer as well as in the present proceedings and on the consideration of the documents filed and proved, it is held as therein stated.
He then recorded his ipse dixit not discussing the evidence or the total absence of it.
It may be pointed out that in the course of the enquiry held against the appellant by Mr. U.K. Soni, enquiry officer, the employer had examined 4 witnesses namely Shri O.D. Sharma, Shri G.L. Kapur, Shri V.K. Malhotra and Shri Nandan Singh.
No witness was examined before Shri G.C. Jain and the employer relied upon the report of the enquiry officer and the evidence of the four witnesses recorded by the enquiry officer.
When the matter came up before Mr. Kakkar, the employer had not examined any witness but had submitted the report of the enquiry officer and the evidence of the aforementioned witnesses.
Therefore when it was contended before the arbitrator that even accepting the evidence of the four witnesses, as if unchallenged, no reasonable man could ever come to the conclusion that the misconduct imputed to the appellant in charges No. 1, 2 and 3 could be said to be proved, it was incumbent upon him to examine the evidence.
We invited Mr. P.K. Jain to point out to us which evidence is being relied upon in support of the charge of embezzlement and the charge relating to alleged misappropriation of funds.
He could not lay his hand on any piece of evidence.
Conceding that there is no evidence in support of the charge of embezzlement and misappropriation of funds simultaneously conceding that charges No. 1 and 2 are not proved, he repeatedly emphasised that the only conducts of which appellant is guilty is that the appellant had so deliberately left his cheque book unattended as to be accessible to anyone who may misuse it and this constitutes negligence in performance of duty.
Even at the cost of the repetition, we must point out that keeping one 's private cheque book in any manner is no par.
Of the performance of the duty of the employee.
To say the least the charge apart from being frivolous is ludicrous and could not have even framed.
Even if the allegation in the charge is left unquestioned it does not constitute misconduct.
The employer could not have framed such charges without any evidence in support of them yet 879 Mr. Kakkar holds them proved.
Therefore Mr. Kakkar accepted the findings of the enquiry officer which were per se perverse.
Not only Mr. Kakkar did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the enquiry officer had reached.
The award of Mr. Kakkar, apart from the fact that it is based on no legal evidence suffers from the additional infirmity of total non application of mind.
Any finding of misconduct based on total absence of evidence must fail.
Mr. Jain contended that once Mr. Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under article 226 nor this Court under article 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence.
We have not at all attempted to re appreciate the evidence though in exercise of the jurisdiction conferred by sec.
11 A of the both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman.
It is too late in the day to contend that the arbitrator has only the power to decided whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to re appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not.
This court in Workmen of M/s Firestone Tyre Rubber Company of India (P) Ltd. vs Management & Others, held that since the introduction of sec.
11 A in the , the Industrial tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman.
It is equally well settled that the arbitrator appointed under Sec.
10 A is comprehended in sec.
This court in Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, held that an arbitrator appointed under sec.
10 A of the is comprehended in sec.
11 A and the arbitratal reference apart from sec.
11 A is plenery in scope.
Therefore it would be within the jurisdiction 880 both of the arbitrator as well as this court to re appreciate the evidence though it is not necessary to do so in this case.
It is thus well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under sec.
10 A or this court in appeal under article 136 can reject such findings as perverse.
Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of Powers conferred by sec.
11 A to do so.
It is equally well settled that where a quasi judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non application of mind and stands vitiated.
The industrial tribunal or the arbitrator or a quasi judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non application of mind.
Viewed from either angle, the conclusion of the enquiry officer as well as of the arbitrator Mr. Kakkar are wholly perverse and hence unsustainable.
The High Court, in our opinion, was in clearly error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.
Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short circuited the writ petition.
If there is absolutely no evidence in support or the only allegation of misconduct namely negligence in not keeping one 's private cheque book in safe custody, the conclusion is not only not a plausible one but it is wholly perverse and we are in complete agreement with findings recorded Mr. G.C. Jain that the findings of enquiry officer were perverse and the enquiry was wholly vitiated.
Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non application of mind the only course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same.
881 It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him.
Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages.
In support of this submission Mr. Jain pointed out that the appellant in his cross examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father in law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father in law and that he had no alternative source of maintenance.
If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment.
The gross perversity with which the employer had approached this case has left us stunned.
If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father in law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father in law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed.
This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed.
This cannot be said to be gainful employment E so as to reject the claim for back wages.
There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service.
Therefore, the appellant would be entitled to full back wages and all consequential benefits.
Accordingly, the appeal is allowed and the award of the arbitrator Shri Kakkar is set aside and the appellant is re instated in service with full back wages and consequential benefits to which he would have been entitled had he not been unlawfully thrown out from service, and the costs of this appeal quantified at Rs. 3,000.
The back wages payable to the appellant and the costs awarded herein shall be paid to him within 2 months from today.
The appellant shall be physically reinstated in service within a week from today.
The appellant shall be entitled to all the consequential benefits f his continuous service.
H.S.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was working as a salesman at a show room of a company.
The company charge sheeted the appellant inter alia on the ground of misconduct.
The misconduct imputed to the appellant was that he was negligent in keeping his cheque book in relation to his own private account in such a manner that it enable the Manager cum Cashier of the show room of the company in which the appellant was a salesman at the relevant time to misuse the cheque forms and thereby defraud the company.
An Inquiry Officer was appointed to enquire into the charges.
The company examined some with cases and adduced evidence.
The Inquiry Officer found the appellant guilty of all the charges.
On the basis of the findings of the Inquiry Officer the company dismissed the appellant from service.
The appellant raised an industrial dispute and the same was, by agreement, referred by the appropriate Government to an arbitrator as provided under Sec.
10(A)(1) of the .
The company submitted that the arbitrator cannot sit in appeal over the findings of the inquiry.
In his award, the arbitrator held that the findings of the Inquiry Officer were based on no legal evidence and were, therefore, perverse and the enquiry was therefore vitiated.
Before a formal final order could be made by the arbitrator, he was elevated as a Judge of the Delhi High Court.
That led to a second reference.
The second arbitrator found the appellant guilty of all the charges and held that The dismissal of the appellant was not wrongful.
The appellant filed a writ petition under article 226 in the High Court question 867 ing the correctness, validity and the legality of the award of the second arbitrator.
A Division Bench of the High Court dismissed the matter in limine observing that the matter depends upon assessment of evidence and the Court cannot reappraise the same under article 226 of the Constitution.
Hence this appeal by special leave.
Allowing the appeal, ^ HELD: The charge levelled against the appellant is a composite charge and has two limbs.
The first limb of the charge refers to negligence in handling his private cheque book so that in conspiracy with the Manager cheque forms contained in the cheque book issued to the appellant for operating his private account were used by the Manager to defraud the company.
When a cheque book is issued to a holder of an account by the bank, there is no law which requires him to keep his cheque book in safe custody.
He may keep his cheque book anywhere be likes and even if it is not in safe custody he does so at his own peril.
Some one so minded to forge cheque and to withdraw money from some one 's account may use anybody 's cheque book.
In such a situation, the owner of the cheque book unless he has participated in the conspiracy in any manner for facilitating withdrawal of the amount cannot be attributed any misconduct for keeping his cheque book unattended or not in safe custody.
Therefore first limb of The charge can be rejected as per se untenable without anything more.
The second limb of the charge that since the appellant left his cheque book unattended the appellant was negligent and guilty of wilful disobedience in performance of his duties as a salesman, has no force.
Keeping one 's own cheque book unattended is no part of performance of duties of the employees and there was no order by the employer how appellant should handle his private cheque book.
Therefore, the charge apart from being frivolous is ludicrous and could not have been even framed.
Even if the allegation in the charge is left unquestioned it does rot constitute misconduct.
The employer could not have framed such charges without any evidence in support of them yet and the second arbitrator holds them proved.
Therefore the second arbitrator accepted the findings of the Inquiry Officer which were per se perverse.
Not only the second arbitrator did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without in any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the Inquiry Officer had reached.
The award of the second arbitrator, apart from the fact that it is based on no Legal evidence suffers from the additional infirmity of total non application of mind.
Any finding of misconduct based on total absence of evidence must fall.
[875 B C; D E; G H; 878 H; 879 A B] The contention that once the second arbitrator came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under article 226 nor this Court under article 136 can sit in appeal over the findings of the Inquiry Officer and reappraise the evidence, has no force.
In exercise of the jurisdiction conferred by Sec.
11 A of the both arbitrator and this Court can reappraise the evidence led in the domestic enquiry and satisfy itself whether 868 the evidence led by the employer established misconduct against the workman.
It is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the Inquiry Officer were plausible one deducible from the evidence led in enquiry and not to re appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not.
[879 C E] Workmen of M/s Firestone Tyre and Rubber Company of India (P) Ltd. vs Management and Others, ; , referred to.
It is well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Sec.
10 A or this Court in appeal under article 136 can reject such findings as perverse.
Holding that the findings are perverse does not constitute reappraisal of evidence, though this Court would have been perfectly justified in exercise of powers conferred by Sec.
11A to do so.
[880 A B] Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, ; , referred to.
It is equally well settled that where a quasi judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non application of mind and stands vitiated.
The industrial tribunal or the arbitrator or a quasi judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non application of mind.
[880 C D] In the instant case, viewed from either angle, the conclusion of the Inquiry Officer as well as of the second arbitrator are wholly perverse and hence unsustainable.
The High Court was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence [880 F] Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short circuited the writ petition.
[880 F] If there is absolutely no evidence in support of the only allegation of misconduct namely negligence in not keeping one 's private cheque book in safe custody, the conclusion is not only not a plausible one but it in wholly perverse and this Court is in complete agreement with the findings recorded by the first arbitrator that the findings of Inquiry Officer were perverse and the enquiry was wholly vitiated.
[880 G] 869 Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non application of mind the only course open to court is to set it aside and consequently relief of reinstatement must be granted.
[880 G] The submission of the company that since the appellant was gainfully employed during the period of his dismissal, he should not be awarded back wages must fail.
The only evidence was that during his forced absence from employment since the date of termination of his service, the appellant and the members of his family were staying with his father in law and during this period the appellant was helping his father in law who had a coal depot.
On this evidence it cannot be said that the appellant was gainfully employed so as to reject the claim for back wages.
If this is gainfully employment as contended by the company, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be the gainful employment.
Therefore, the appellant would be entitled to full back wages and all consequential benefits.
[881 C E]


judgement:
Civil Appeal No. 1275 of 1979 Appeal by Special leave from the Judgment and Order dated 891 the 27th March, 1979 of the Allahabad High Court in Civil Misc.
Writ No. 1416 of 1977.
Mr. E.C. Agarwala, Advocate for the Appellant.
Mr. J. P. Goyal, Mr. section R. Jain and Mr. Rajesh, for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by special leave against the judgment of the Allahabad High Court dated 27th of March, 1979 centers round a shop No. 270 situate in Grouceganj, Bulandshahr.
This shop was owned by Ratan Lal and Naubat Singh was a tenant of the shop.
Nabuat Singh died on 31st of August, 1974.
He had no male issue but had four daughters, all of whom were married and were residing with their husbands outside Bulandshahr.
He also left behind his widow who was residing in village Rampur, district Bulandshahr.
He was carrying on some business in the disputed shop during his lifetime.
On his death Ratan Lal, the landlord, filed an application under section 12 read with section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short, referred to hereinafter as 'the U.P. Act No. 13 of 1972 ') for a declaration that the shop was vacant and he required the same for his personal need.
The application was resisted by Jaspal Singh, the present appellant, on the ground that he was the heir of Naubat Singh deceased and was in occupation of the disputed shop; that on 4th of July 1973 Naubat Singh before his death executed a will conveying all his rights and properties including the tenancy rights in the disputed shop to him; that he had been helping Naubat Singh in his business s for the last several years and remained in continuous possession of the disputed shop after the death of Naubat Singh and so he was entitled to get the benefit of s.14 of the U.P. Act No. 13 of 1972.
The Rent Control and Eviction officer rejected the application holding that Jaspal Singh the, appellant, had been living with the deceased Naubat Singh and was also assisting him in doing the business in the disputed premises to the full knowledge of the landlord, and so he was entitled to get the tenancy rights under section 14 of the U.P. Act No. 13 of 1972, as it stood prior to its amendment made by U.P. Act No. 28 of 1976.
892 Feeling aggrieved the landlord preferred a revision before the District Judge, Bulandshahr,, which was transferred to the Additional District Judge, who dismissed the same on 8th of July, 1976.
He, however, did not agree with the finding of the Rent Control and Eviction officer that Jaspal Singh was entitled to the benefit of original section 14 of the U.P. Act No. 13 of 1972 but since even after the death of Naubat Singh, on 31st of August 1974 Jaspal Singh had been permitted to continue in possession of the premises he got the benefit of amended section 14, as amended by U.P. Act No. 28 of 1976.
Undaunted by his failures, the landlord filed a petition under article 226 of the Constitution challenging the orders of the two authorities below.
The High Court endorsed the finding of the Additional District Judge that Jaspal Singh could not get the benefit of the unamended section 14 of the U.P. Act No. 13 of 1972 inasmuch as on the date immediately preceding the commencement of the Act, i.e., on 14th July, 1972 Naubat Singh was very much alive and admittedly he was the tenant of the premises in question and as such no question of regularisation of Jaspal Singh as tenant could arise.
The High Court also held that Jaspal Singh was not even entitled to get the benefit of the amended section 14 as it stood amended by the U.P. Act No.28 of 1976, which came into force on 5th of July, 1976.
According to the High Court the benefit of amended section 14 would be available to Jaspal Singh, the appellant, only when he was living in the premises with the consent of the landlord provided that no proceedings for his eviction were pending.
The landlord, however, in the instant case immediately after the death of Naubat Singh started the proceedings for the release of the premises in 1974.
The High Court took exception to the assumption of the learned Additional District Judge regarding the consent of the landlord.
According to the High Court consent of the landlord cannot be assumed or presumed, it must be proved as a fact but there was no proof of the consent of the landlord.
The High Court alter construing the scheme and the various provisions of the Act also held that the appellant could not be an heir on the basis of the will executed by Naubat Singh nor could Naubat Singh execute any will in respect of the tenancy rights.
On these findings the High Court held the possession of Jaspal Singh to be unauthorised.
Consequently, the High Court allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law.
Jaspal Singh has not approached this Court by special leave, and the counsel for the appellant has reiterated the same points before us.
893 The first question which calls for consideration is whether Jaspal Singh, the appellant is entitled to the benefit of the unamended and amended section 14 of the rent Act.
It would be appropriate at this stage to read the old unamended and amended section 14 of the Act.
Section 14 as it stood originally in the U.P. Act No. 13 of 1972 read: "14.
Regularisation of occupation of existing tenants.
Notwithstanding anything contained in and general order made under sub section (2) of section 7 of the old Act, any tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act, not being a person against whom proceedings under section 7 A of the old Act are pending immediately before such commencement, shall be deemed to be in authorised occupation of such building.
Section 14 of the Act as amended by the U.P. Act No. 28 of 1976 reads: "14.
Regularisation of occupation of existing tenants.
Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2 A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent. and Eviction Amendment) Act, 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.
" A bare perusal of section 14 as it stood prior to its amendment in 1976 would indicate that in order to get the benefit of this section a person must satisfy that (1) he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement, i.e., on 14th July, 1972 (date of commencement of the Act being 15 July, 1972).
Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act (i.e., 15th July, 1972) and he was alive 894 and therefore no question of Jaspal Singh being regularised as a tenant arises.
In order to attract section 14 as it stood after the amendment in 1979, Jaspal Singh had to prove that he was a licensee or a tenant with the consent of the landlord immediately before the commencement of the U.P. Act No. 28 of 1976 which came into force on 5th July, 1976.
At the relevant time, however, the application for release filed by the landlord against Jaspal Singh was pending in court of Additional District Judge by way of revision petition wherein the landlord Ratan Lal had contested the claim of tenancy by Jaspal Singh.
The appellant, therefore, could not get the benefit of amended 5.
14 as well and the High Court was right in so holding.
This leads us to the next contention that the appellant is a tenant within the meaning of section 3(a) of Act No. 13 of 1972: "3.
In this Act, unless the context otherwise require (a) "tenant" in relation to a building, means a person by whom its rent is payable, and on the tenant 's death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non residential building, his heirs:" The appellant would be a tenant within the meaning of section 3 (a) only when he is an heir.
The appellant is not a son but only a nephew of Naubat Singh.
He, however, claims to be an heir on the basis of a will executed by Naubat Singh conveying all his rights and properties including the tenancy rights in respect of the disputed shop in his favour and that he had been helping Naubat Singh in his business for the last several years and continued to remain in possession of the shop even after the death of Naubat Singh.
Accordingly he was entitled to the benefit of section 14.
We have already dealt with the question whether the appellant was entitled to the benefit of section 14 as it stood prior to its amendment in 1976 and also of the amended provisions of section 14 and we have negatived the contention of the appellant.
Therefore, the precise question for consideration would be whether the appellant is an heir within the meaning of section 3(a) on the basis of the will executed in his favour by Naubat Singh.
There seems to be a cleavage of opinion on this point in various High 895 Courts.
The Allahabad High Court in Smt.
Rukmani Devi vs III Addl.
District Judge, Kanpur and Munni Lal vs Smt.
Shiva Devi held that the question as to who are heirs of the deceased tenant, will be decided in accordance with the personal law of the tenant, as this Act does not lay down the list of heirs on whom the tenancy should devolve.
Tn some of the Rent Control Acts list of the heirs has been specified for the purpose of devolution of tenancy on the death of the tenant.
A Division Bench of the Punjab and Haryana High Court in Gulzara Singh vs Smt.
Tej Kaur on the other hand held: "Generally speaking 'heirs ' are those persons whom the law declares to be entitled to the estate of a deceased person, and in common legal parlance the word 'heir ' like the expression 'heir at law ' undoubtedly connotes and is suggestive of a person who succeeds to the estate in case of intestacy under the statutes of succession.
But in common speech this word is also not infrequently used to indicate those who come in any manner to the ownership of any property by reason of the death of the owner or persons upon whom the property devolves on the death of another either by law or by will.
" In other words, it is indicative of persons entitled by will or otherwise to share the estate of the deceased.
It is thus true that technically the word 'heir ' may be distinguish able from the word 'legatee ' but it is also at times used in its more general and comprehensive sense as indicating the person upon whom the property devolves on the death of another and hence when the intent is clear the word 'heir ' may well be treated as equivalent to 'Legatee ' or devised '.
The true scope, effect and significance of this word is, there fore, in all cases a question of intention which has to be determined principally on a consideration of the objection and purpose of the statute in which it is used." Thus, the word 'heir has been construed both in a wider as well as in a narrower sense.
Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs.
This will also 896 raise an allied question whether the tenancy rights could be devised by a will.
It will be relevant at this stage to refer to material provisions of the Act.
The word 'family ' has been defined in section 3(g) of the Act: (g) "family" in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female, having a legal right of residence in that building;" Section 11 deals with the prohibition of letting without allotment order.
It reads: "Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16." Section 12 deals with a deemed vacancy of building in certain cases and reads: "(1) A landlord or a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
897 (2) In the case of non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
" Section 13 provides for restrictions on occupation of building without allotment or release, and reads: "Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise then under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.
" Section 15 casts an obligation on the landlord or the tenant to intimate vacancy to the District Magistrate.
Section 16 deals with allotment and release of a vacant building.
Section 20 puts a bar of suit for eviction of a tenant except on specified grounds enumerated therein.
From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant.
There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building.
In the case of a non residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
If a tenant subjects the premises, he is able to ejectment.
Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members.
He obviously, cannot be allowed to transfer a tenancy right.
A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime.
Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the 898 original tenant.
Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights.
The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop.
Having given our anxious consideration to the questions involved in the case we see no reason to differ from the finding of the High Court.
The appeal is accordingly dismissed but in the circumstances of the case the parties are allowed to bear their own costs.
M.L.A. Appeal dismissed.

summary:
Section 14 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act (For short, the Act) as it stood prior to its amendment in 1976 and also after its amendment by the U.P. Act No. 28 of 1976 deals with regularisation of occupation of existing tenants.
The unamended section 14 of the Act provided that a person must satisfy two conditions in order to get the benefit of this section, namely, (i) that he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and (ii) that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement.
The amended section 14 of the Act lays down that a person shall be deemed to be an authorised licensee or tenant of building if (i) any licensee or tenant is in occupation of a building with the consent of the landlord immediately before the commencement of the Act as amended by the U.P. Act No. 28 of 1976 and (ii) that he was not a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement.
Section 3(a) of the Act provides that a tenant in relation to a building means a person by whom its rent is payable, and on the tenant 's death, in the case of a non residential building, his heirs.
On the death of Naubat Singh a tenant in a shop situated in Bulandshahr, the landlord started eviction proceedings section 12 read with section 16 of the Act for the release of his shop.
The appellant a nephew of the deceased tenant, resisted the eviction application on the grounds: (i) that he was entitled to get the benefit of the amended and/or unamended section 14 of the Act since he had been helping the deceased tenant in his business for the last several years and remained in continuous possession of the disputed shop after his death; and (2) that he was an heir of the deceased tenant on the basis of a will executed by the deceased tenant in his favour and therefore be was a tenant within the meaning of section 3(a) of the Act.
890 The Rent Control and Eviction officer rejected the application holding that the appellant was entitled to get the tenancy rights under the unamended section 14 of the Act.
In revision the Additional District Judge held that, since even after the death of Naubat Singh on 31st August 1974, the appellants been, permitted to continue in possession of the premises, he got the benefit of amend ed section 14 of the Act and therefore dismissed the revision petition.
Thereupon the landlord filed a writ petition under Article 226 in the High Court against the orders of the two authorities below.
The High Court negatived all the contentions of the appellants, allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law.
Hence this appeal by special leave.
Dismissing the appeal, ^ HELD: (1) Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act, that is, 15th July 1972 and he was alive and therefore no question of the appellant being regularised as a tenant arises.
The appellant also could not get the benefit of amended sec.
14, since at the relevant time the application for release filed by the landlord against the appellant was pending in the court of Additional District Judge by way of revision petition wherein the landlord had contested the claim of tenancy by appellant.
[893 H; 894, B C] (2) The word 'heir ' has been construed both in a wider as well as in a narrower sense.
Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs.
[895 G] Smt.
Rukmani vs III Addl.
District Judge, Kanpur (1) and Munni Lal vs Smt.
Shiva Devi 1981 ARC (S.N. 13); referred to Gulzara Singh vs Smt.
Tej Kaur, AIR 1961 Punjab 288, approved.
(3) It is clear from a survey of ss 3(g), 11, 12,13 and 15 of the Act that there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members.
He obviously cannot be allowed to transfer a tenancy right.
A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime.
[897 G H] (4) In the instant case, the appellant was neither a tenant of the disputed shop nor he was an heir of the deceased tenant since he is not a member of the family of the deceased tenant as defined section 3(g) of the Act.
Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy right.
There fore, this Court sees no reason to differ from the finding of the High Court.
[898 A B]