judgement:
ivil Appeal No. 1739 of 1973.
Appeal by Special Leave from, the Judgment and Order dated 22.10.1973 of the Jammu and Kashmir High Court in Letters Patent Appeal No. 9/72) F.S. Nariman, O.C. Mathur, P.N. Tiwari and D.N. Mishra, for the appellants.
Dushiant Kumar Rampal respondent.
(in person) The Judgment of the Court was delivered by BHAGWATI, J.
, We pronounced our order on this appeal on 17th December, 1976 and we now proceed to give our reasons.
We may point out that the respondent was not represented by a lawyer and he argued case in person and though he is a lay man, not well versed in the science of law and in the art and skill of advocacy, we must admit that he argued his case with conspicuous ability.
Prior to 5th September, 1969 there was only one Univer sity for the entire territory of the State of Jammu & Kash mir, namely, the University of Jammu & Kashmir.
It was constituted under the Jammu & Kashmir University Act, 1965 (hereinafter referred to as the Act of 1965) and, as provid ed in section 20, its central authorities included the Senate and the Central Council.
The Central Council was the executive body of the University and it had the power inter alia to appoint teachers and to define their duties.
The respondent was appointed as a lecturer in English by the Central Council on 25th April, 1966 and after his period of probation was over he was confirmed as lecturer with effect from 29th April, 1967.
The conditions of service of the respondent, like those of other confirmed teachers, were regulated by the Statutes made by the Senate from time to time under the provisions of Act of 196.5.
Statute 2 provided that every salaried teacher of the University shall have to execute a written contract with the UniverSity and the conditions of service of teachers appointed by the University shall be those embodied in the agreement of service annexed to the Statutes and every teacher shall execute such agreement before he enters upon his duties or as soon as possible thereafter.
It appears that though Statute 2 required an agreement of service to be executed by a teacher, no such agreement of service was executed by the respondent on his appointment as 47 lecturer.
But it was common ground between the parties that the conditions of service of the respondent were governed by the provision set out in the form of agreement of service annexed to the Statutes.
Clause (6) of this agreement and this clause admittedly governed the respondent stipulated that in all matters, the teacher would "abide by the Stat utes and Regulations from time to time in force in the University, and in particular, by those determining his/ her grade, increment, conditions of service, rules of superannu ation and provident fund rules, provided that no change in the Statutes and Regulations in this regard shall be deemed to have adversely affected the teacher.
" The respondent was thus clearly bound by any changes which might be made in the Statutes from time to time and no change made in the Stat utes was to be regarded as having adversely affected the respondent and he could not complain against it.
The case of the respondent was that he satisfactorily carried on his duties as lecturer and earned his increments from year to year.
On 5th September, 1969 the Governor of Jammu & Kashmir promulgated Ordinance No. 10 of 1969 establishing in place of the University of Jammu & Kashmir, two separate univer sities, namely, the University of Kashmir for the Kashmir division and the University of Jammu for the Jammu division of the State.
This Ordinance was replaced by the Jammu & Kashmir University Act, 1969 (hereinafter referred to as the Act of 1969) which came into force on 30th October, 1969.
The:Act of 1969 made a slight departure from the earlier Act in the constitution of the various authorities of each University, Section 20 of the Act of 1969 provided that the authorities of each university shall include the University Council and the Syndicate.
The University Coun cil was constituted supreme authority of the university while the Syndicate was entrusted with the chief executive authority.
Whereas under the earlier Act, the power to appoint all teachers of the University was entrusted to the Central Council.
there was bifurcation of this power between the University Council and the Syndicate under the Act of 1969.
The University Council was given the power to appoint teachers of the status of a reader and above white the power to appoint teachers below the status of a reader was en trusted to the Syndicate.
The Syndicate was thus the au thority under the Act of 1969 vested with the power to appoint and that power would also carry with it the power to dismiss teachers below the status of a reader.
Since the University of Jammu & Kashmir came to an end on the repeal of the Act of 1965 and two new universities, one of Kashmir and the other of Jammu, were established, some provision had to be made in the Act of 1969 for continuance of the Stat utes and Regulations so that there might be no hiatus or break causing dislocation in the functioning of the two new universities.
Section 51 of the Act of 1969.
therefore.
provided that all Statutes and Regulations made under the Act of 1965 and in force immediately before the commencement of the Act of 1969 shall so far as may be consistent with the provisions of the latter Act, continue to be in force in each University and section 48.
sub sec.
(2) gave power to the special officer to "examine the Statutes and Regulations continued under section 51 of this Act and propose such modifica 48 tions, alterations and additions therein as may be necessary to bring such Statutes and Regulations in conformity with the provisions of this Act" and provided that the modifica tions, alterations and additions proposed by the Special officer shall, if approved by the Vice Chancellor, be deemed to have been made by the competent authority under the Act of 1969 and shall continue in force until altered or superseded by the authority constituted under the Act of 1969.
There was also the problem of ensuring continuance of service of the existing employees of the University of Jammu & Kashmir and their allocation between the two succeeding universities and this problem was solved by the enactment of section 52 in the Act of 1969.
That section, in so far as material, provided as follows: "52.
Continuance of service of the existing employees and their allocation Notwithstanding anything contained in this Act or any Statute or Regulation made thereunder or in any other law for the time being in force.
(1) all employees of the University of Jammu and Kashmir constituted under the Jammu and Kashmir University Act, 1965 (other than those serving on contract.
or on deputation 'in the University or those serving m the Publication Bureau of the University) who immediately before the commencement of this Act, were holding or discharging the duties of any post of office in connection with the affairs of the said University shall, subject to the provisions of sub section (2), continue in service on the same terms and conditions as regulated their service before such commencement; (2) the Chancellor may in consultation with the pro Chancellor by order allocate the employees of the University of Jammu & Kashmir (other than those serving on contract or deputation in the University or those serving in the Publication Bureau of the University) between the University of Kashmir and the University of Jammu constituted under this Act in such manner as he may consider necessary and every such allocation shall be deemed to b e an appointment, transfer or promotion as the case may be,to the post or office by the competent authority under this Act: Provided that in making such allocations the conditions of service of employment of such employees shall not be varied to their disad vantage; (3) x x x x x (4) all persons who immediately before the commencement of this Act were holding or discharging the duties of any post or office in connection with the affairs of the Univer sity of Jammu and Kashmir, on 49 contract basis or by virtue of their deputa tion to such posts or offices from other services in the State.
unless otherwise or dered by the Chancellor after consulting the Pro Chancellor, shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Act and all such contracts with or deputations to he University of Jammu & Kashmir shall stand terminated with effect from the expiry of the said period of 60 days.
" Since most of the teachers had entered into an agreement of service with the University of Jammu & Kashmir as provided in Statute 2 and the rest were also treated as having en tered into such agreement of service by reason of the com pulsive force of Statute 2 though in fact such agreement of service had not been executed by them, perhaps due to inad vertence, the Chancellor took the view that all of them held their posts on contract basis and hence, proceeding on the assumption that sub sec.
(4) of section 52 was attracted in their case, he made an order dated 24th December, 1969 ' directing that the appointments of the teachers set out in Schedule (1 ), which also included the respondent, shall continue on the respective posts mentioned In that schedule on the terms and conditions embodied in Schedule II with effect from 9th January, 1970.
Schedule II contained the terms and conditions on which teachers mentioned in Schedule I were continued in service of the University of Jammu and clause 9(ii) of that Schedule read as follows: "The Vice Chancellor may when he deems it necessary suspend the teacher on grounds of misconduct, insubordination, inefficiency or unsatisfactory performance of duty, when he suspends the teacher he shall report it to the university Council/Syndicate at the next meeting.
" The respondent and some other teachers were of the view that the terms and conditions set out in Schedule II effected a change in their conditions of service to their prejudice and hence they made a representation to the Chancellor and other authorities of the University of Jammu.
It does not appear from the record as to what happened to this representation but presumably it was rejected.
Now we come to the events which formed the immediate cause for the predicament of the respondent.
It appears that certain complaints were received by the Vice Chancel lor against the conduct of the respondent and the Vice Chancellor took the view that these complaints were of a serious character and needed to be enquired into and pending such enquiry, it was not desirable that the respondent should be allowed to continue to work as a lecturer.
The ViceChancellor accordingly passed an order dated 21st May, 1970 directing that the respondent be placed under suspen sion with immediate effect.
This order was purported to be passed by the Vice Chancellor in exercise of the powers vested in him under clause 9(ii) of Schedule II of the Order dated 24th December, 1969 and section 13 (4) of the Act of 1969.
It may be convenient at this stage, before we proceed 50 further, to refer to section 13(4), since considerable argument before us turned upon it Section 13 deals with the powers and duties of the Vice Chancellor and sub section (4) of that section reads as follows: "(4) The Vice Chancellor may take action as he deems necessary in any emergency which, in his opinion, calls for immediate action.
He shall in such a ease and as soon as may be thereafter, report his action to the officer, authority or other body of the Uni versity concerned who or which would ordinari ly have dealt with the matter.
" Sub section (6) of section 13 is also material and it is in the following terms: "(6 ) The Vice Chancellor shall give effect to the orders of the University Council and the Syndicate of the University concerned regarding the appointment, dismissal and suspension of persons in the employment of the University and shall exercise general control over the affairs of the University.
He shall be responsible for the discipline of the University in accordance with this Act, Stat utes and Regulations.
" The Vice Chancellor, immediately after passing the Order of suspension, placed it before the Syndicate at its next meeting held on 24th June, 1970.
The respondent had also in the meantime submitted his representation against the Order of suspension and this representation also came up before this meeting of the Syndicate.
The Syndicate considered the Order of suspension made by the ViceChancellor as also the representation submitted by the respondent and passed a resolution rejecting the representation of the respondent recording the action taken by the Vice Chancellor and di recting that articles of charge be framed and communicated to the respondent and he may be required to submit his explanation in writing and a committee consisting of the Vice Chancellor and three other persons be appointed to investigate the matter and submit its finding to the Syndicate.
The Registrar of the University thereafter passed ,an order dated 6th June, 1970 declaring that, during the period of suspension, the respondent would not be enti tled to get full salary but he would be paid only subsist ence allowance at an amount equal to half pay and half dearness allowance in accordance with the usual practice followed by the University.
It may be pointed out that with effect from 21st May, 1971, that is after the expiry of a period of one year from the date of suspension, the subsist ence allowance payable ' to the respondent was raised to 75% of the pay and dearness allowance.
A charge sheet contain ing twelve charges was then given to the respondent and he was required to submit his explanation.
The respondent gave his explanation to the charges leveled against him and while doing so, he also objected to the constitution of the Committee which was appointed to enquire into the charges.
In consequence of his objection, the constitution of the committee was changed and the Vice Chancellor was kept out of it.
The enquiry by the Committee 51 commenced on 12th March, 19:71 and it went on for some time, but before it could be completed, the respondent filed a writ petition in the High Court of Jammu & Kashmir challeng ing the validity of the Order dated 24th December, 1969, the Order dated 6th June, 1970 in regard to payment of subsist ence allowance and also impugning the legality of the enquiry proceedings.
There were various grounds taken by the respondent in the writ petition but it is not necessary to refer to them in detail having regard to the course which the appeal has taken before us.
The writ petition was heard by a Single Judge of the High Court and by a judgment dated 28th April, 1972 the learned Judge dismissed the writ petition.
The respondent there upon preferred a Letters Patent appeal in the High Court.
During the pendency of the appeal, the departmental enquiry which was started against the respondent.
was completed and the committee made a report absolving the respondent of all the charges except charges Nos. 1 and 12 of which the respondent was found guilty.
The syndicate, after considering the report of the committee, resolved to issue a notice to the respondent to show cause why "the punishment for termination of his services from the University be not imposed on him" on the ground of charges Nos. 1 and 12.
Pursuant to this resolu tion, a show cause notice was issued to the respondent which led to the filing of a petition by the respondent in the Letters Patent appeal for taking notice of these subse quent events.
The respondent in this petition challenged the report of the committee as also the resolution of the Syndicate on various grounds which are no longer material.
The University filed its reply to the petition denying the allegations made against the committee and disputing the grounds on which the validity of the enquiry was challenged on behalf of the respondent.
The Letters Patent appeal thereafter came to be heard by a Division Bench of the High Court and the Division Bench, by a judgment dated 22nd October, 1973, took the view that the Order dated 24th December, 1969 was violative of section 52, sub section (1) of the Act of 1969 and the Order of suspension dated 21st May, 1970 was "defective for want of jurisdiction and other legal infirmities" and these two orders were accordingly quashed and set aside by the Division Bench.
The Division Bench also held that "as a necessary corollary to our find ings on the two impugned orders and also in consequence of our observations on the legal aspect of the show cause notice issued to the appellant to terminate his service, the same also deserves to be quashed." The Division Bench accordingly allowed the appeal, set aside the judgment of the learned Single Judge and issued a writ of certiorari quashing the Order dated 24th December, 1969 and the Order of suspension dated 21st May, 1970 as also the show cause notice issued to the respondent and directed the reinstate ment of the respondent.
The University and the Vice Chan cellor thereupon preferred the present appeal with special leave obtained from this Court.
The appeal was heard by this Court for some time on the points which were decided against the University and the Vice Chancellor and certain further points were also raised by the respondent in support of the order made by the Division Bench of the High Court.
52 But it is not necessary to examine the arguments advanced on behalf of the parties on these various points, since before the hearing of the appeal could be concluded, a partial settlement was arrived at between the University and the Vice Chancellor on the one hand and the respondent on the other.
It was agreed between the parties as a result of this settlement that the University should drop the disci plinary proceedings action against the respondent and that the respondent should be allowed to join service within fourteen days from the date of the order to be made by this Court and upon his joining, his pay should be fixed as lecturer taking in view the increments which he would have earned but for the suspension.
It was also declared in the settlement that there shall be no stigma whatsoever attached to the respondent and so far as the personal allegations made by him against the University authorities we;re con cerned, they would stand withdrawn by him.
The settlement also provided that the respondent should be given benefit of continuity of service and if the validity of the Order of suspension was ultimately upheld by this Court and it was held that the respondent was not legally entitled to any thing more than the subsistence allowance actually paid to him, the matter would be left to the Chancellor to determine in his sole and.
absolute discretion as to whether any additional amount at all, and if so, what amount, may be paid to the respondent for the period of suspension ex gratia without any liability on the part of the University.
The Chancellor was authorised to determine this matter in consultation with the Pro Chancellor or in such other manner as he thought proper and he could do so, even without giving any opportunity to either party to make his or their submis sions in the matter.
Having regard to this settlement, the only two questions which remained to be resolved by this Court were, first, whether the Order of suspension was valid, and secondly, if the Order of suspension was valid, whether the respondent was entitled to anything more than the subsistence allowance actually paid to him.
These two questions we shall now proceed to decide.
The first question is whether the Order of suspension made by the Vice Chancellor was a valid Order or it suffered from any legal infirmities.
The respondent assailed the validity of the order of suspension on the ground that it was made in purported exercise of the power conferred under clause (9) (ii) of Schedule II to the Order dated 24th December, 1969, but this Order w. as itself void and inoper ative as it was in conflict with the provisions of section 52, subsection (1) of the Act of 1969.
The argument of the respondent was that immediately before the commencement of the Act of 1969, he did not hold or discharge the duties of any post or office in connection with the affairs of the University on contract basis, nor was he on deputation from any other service of the State of Jammu & Kashmir and he was, therefore, not covered by section 52, sub sections (4) under which the Order dated 24th December, 1969 was purported to be made, but his case was governed by section 52, subsection (1) which ensured him continuity in service on the same terms and conditions as before and hence the order dated 24th December, 1969 altering his terms and conditions as set out in 53 Schedule II was invalid.
This argument would have required us to consider whether the employment or the respondent under the University of Jammu & Kashmir immediately prior to the commencement of the Act or 1967 was on contract basis, because the provision in regard to deputation being inapplicable, it is only if the employment of the respondent was on contract basis that the Order dated 24th December, 1969 could be justified under section 52, sub section (4).
But we shall, for the purpose of the present appeal, proceed on the assumption that the case of the respondent was gov erned by subsection (1) and not sub section (4) of section 52 and the order dated 24th December, 1969 in so far as it determined any different terms and conditions for the re spondent was not valid, since we find that, in the view which is being taken by us, it is not necessary to examine this question.
Undoubtedly, the effect of tins assumption would be to put clause (9) (ii) of Schedule II to the order dated 24th December, 1969 out of the way of the respondent and it would not be available to the University and the Vice Chancellor m support of the Order of suspension.
But even so, we think the Vice Chancellor had power to make the Order of suspension and he was within his authority in doing so.
We have already pointed out that by reason of Statute 2 read with clause (6) of the Form of Agreement annexed to the Statutes made under the Act of 1965, the respondent was bound by any changes which might be made in the Statutes from time to time and no change made in the Statutes was to be regarded as having adversely affected the respondent.
Now, the Statutes made under the Act of 196.5 continued to be applicable to the University by reason of section 51, but section 48, sub section (2) provided for making of modifica tions, alterations and additions in the Statutes with a view to bringing them in conformity with the provisions of the Act of 1969.
The Special Officer accordingly proposed certain modifications in the Statutes which were found necessary to bring the Statutes in conformity with the provisions of the Act of 1969 and.
these modifications were approved by the Chancellor by an Order dated 24th December, 1969 and by reason of section 48, sub section (2) they were deemed to have been made by the competent authority under the Act of 1969.
This Order dated 24th December, 1969 substituted Chapter iV in the Statutes by a new Chapter and Statute 24(ii) in the newly substituted Chapter made the same provision as clause (9)(ii) of .Schedule II to the Order made under sub section (4) of section 52.
Now, obvi ously, if Statute 24(ii) were a valid provision, the Vice Chancellor would have power to suspend a teacher "on the ground of misconduct, insubordination, inefficiency or unsatisfactory performance of duty" and the Order of suspen sion made against the respondent would be within the au thority of the ViceChancellor.
The respondent, there fore, assailed the validity of Statute 24(ii) on the ground that it was not necessary for the purpose of bringing the Statutes m conformity with the provisions of the Act of 1969 and was hence not within the terms of section 48, subsection (2).
Turning to the language of section 48, sub section (2) it is clear that the power conferred on the Vice Chancellor under 54 that provision to approve modifications in the ' Statutes is a power which can be exercised only where the modifications are necessary for bringing the Statutes in conformity with the provisions of the Act of '1969, and if it is found that any modifications purported to be approved by the Chancel lor are plainly unnecessary from the point of view of bring ing the Statutes in conformity with the provisions of the Act of 1969 ', it would be outside the power of the Chancel lor to approve them.
The Chancellor cannot say that it is for him to decide in his subjective opinion whether the modifications proposed to be made are necessary for bringing the Statutes in conformity with the Act of 1969 and that his subjective opinion is immune from scrutiny in a court of law.
Of course, if the view taken by the Chancellor is a reasonably possible view, the Court would not interfere with the Order made by him approving the modifications, but if what has been done by him is plainly and egregiously wrong, the Court would certainly interfere on the ground that the order made by the Chancellor is beyond the power conferred on him by section 48, sub section(2).
The question which, therefore, arises for consideration is whet.her Statute 24(ii,) could reasonably be said to be necessary for bring ing the Statutes in conformity with the provisions of the Act of 1969.
We may first refer to section 13, sub section (4) of the Act of 1969 which confers power on the Vice Chancellor to take such action as he deems necessary in any emergency which in his opinion calls for immediate action.
A similar provision was also made in section 13, sub section (4) of the Act of 1965.
But the Act of 1969 introduced a new provision in sub section (6) of section 13 to the effect that the Vice Chancellor shall be responsible for the disci pline of the University in accordance with the Act, Statutes and Regulations.
The Vice Chancellor was, thus, entrusted under sub section (6) of section 13 with the task of main taining discipline in the University and the entrustment of this task carried with it by necessary implication power to.
take whatever action was necessary for the purpose of main taining discipline, provided of course such action was in accordance with the Act of 1969 ' and the Statutes and Regu lations.
Since sub section (6) of section 13 was a new provision enacted in the Act of 1969, it was necessary to make Statutes for the purpose of enabling the Vice Chancel lor to effectively discharge the responsibility of maintain ing the discipline of the University and for that purpose, vesting power in the Vice Chancellor to suspend a teacher pending departmental enquiry against him.
It was with this object of bringing the Statutes in confirmity with sub section (6) of section 13 that Statute 24(ii) was added by way of modification in the Statutes by the Order dated 24th December, 1969.
We may concede straight away .that if there was anything in the Act of 1969 which was inconsistent with the conferment of power of interim suspension on the Vice Chancellor, Statute 24(ii) could not be approved by the Chancellor, because no Statute can be made is in conflict with any provision of the Act.
But we do not find anything in the Act of 1969 which militates against vesting of power in the ViceChancellor to order interim suspension of a teacher and hence Statute 24(ii) must be held to be a Stat ute validly approved by the Chancellor 55 within his authority under section 48, sub section (2).
The view taken by the Chancellor that Statute 24(ii) was neces sary for bringing the Statutes in conformity with sub sec tion (6) of 'section 13 can not in any event be said to be so plainly erroneous that the Court would strike down Stat ute 24(ii) as invalid.
Now, if Statute 24(ii) is valid, there can be no doubt that the respondent would be bound by it and in that event, the order of suspension made by the ViceChancellor would be clearly within the power conferred on him by that Statute.
It is true that the Order of sus pension did not recite StatUte 24(ii) as the source of power under which it was made, but it is now well settled, as a result of several decisions of this Court, that when an authority makes an order which is otherwise within .its competence, it cannot fail merely because it purports to be made under a wrong provision of law, if it can be shown to be within its powers under any other provision a wrong label cannot vitiate an order which is otherwise within the power of the authority to make, Vide Hukamchand Mills Ltd. vs State of Madhya Pradesh(1) and P. Balakotaiah vs Union of India.(2) We may also point out that the Order of suspension was, in any event, justified by the provision in section 13, sub section (4).
The Order of suspension, in fact, recited that it was made in exercise of the power conferred under section 13, sub section (4).
Sub section (4) of section 13 is general in terms and provides that the ViceChancellor shall be entitled to.
take such action as he deems necessary in any emergency which in his opinion calls for.
immediate action.
It does not talk specifically of an order of interim suspension of a teacher but the width and amplitude of the language of the provision would clearly include action by way of interim suspension of a teacher, ' when there is in the opinion of the Vice Chancellor an emergency calling for immediate action.
The respondent contended that the power to order interim suspension is a quasi judicial power and it would not be comprehended within the language of sub section (4) of section 13.
But this contention is clearly falla cious and the premise on which it is based is unsound.
It is not correct to say that an order of interim suspension is a quasi judicial order and in any event, the language of sub section (4 ) of section 13 is sufficiently wide and comprehensive to take within its scope and ambit every kind of action which may be considered necessary by the ViceChancellor in an emergency and there is no reason why such action should not include making of an order of interim suspension.
The Vice Chancellor, therefore, clearly had power under section 13, sub section (4) to make an order of interim suspension if he thought it necessary to make such an order in an emergent situation which in his opinion called for immediate action.
The respondent sought to contend that at the date when the order of suspension was passed, there was no emergency which called for immediate action on the part of the Vice,Chancellor and, therefore, the foundation for taking action under section 13, sub section (4) was wanting and the order of suspension could not be justified under that provision.
(1) ; (2) ; 5 240SCI/77 56 But this contention cannot be entertained by us since it has not been taken as a ground of challenge in the writ peti tion.
Whether or not there was 'an emergency requiring immediate action on the part of the Vice Chancellor .is entirely a question of fact and if the respondent wanted to contest the validity of the exercise of power by the Vice Chancellor under section 13, sub section (4) in making the order of suspension, he should have pleaded in the writ petition that the order of suspension was outside the power conferred under section 13, sub section (4) as there was no emergency.
The respondent was aware from the recital con tained in the order of suspension that it was made by the Vice Chancellor in exercise of the power conferred under section 13, sub section (4) and, therefore, if the respond ent wanted to challenge the exercise of this power on.
the ground that there was no emergency justifying its exercise, he should have made an averment to that effect in the writ petition.
If such averment had been made in the writ peti tion, the University and the Vice Chancellor would have had an opportunity of meeting it in the affidavit in reply filed by them, but no such averment having been made in the writ petition, the University and the Vice Chancellor were not called upon to meet it.
Hence, we cannot permit the re spondent to challenge the validity of the order of suspen sion on the ground that there was no emergency attracting the applicability of section 13, sub section (4).
The order of suspension made by the Vice Chancellor was plainly and indubitably an order which the Vice Chancellor had power to make under section 13, sub section (4).
It may be noted that immediately after making the order of suspension the ViceChancellor placed it before the Syndicate at its next meeting as required by the second part of section 13, sub section (4) and the Syndicate approved of the action taken by the Vice Chancellor by rejecting the representation of the respondent and recording the fact of the making of the order of suspension.
We may also refer to one other contention urged on behalf of the respondent and that was that by reason of section 52, sub section (1) the respondent was entitled to continue in service of the University on the same terms and conditions as regulated his service before the commencement of the Act of 1969 and in view of the provide to sub section (2) of section 52 the conditions of service of the respondent could not be varied to his disadvantage and, therefore, neither Statute 24(ii) nor section 13, sub section (4) could operate to confer on the Vice Chancellor power to make the order of suspension which he did not possess under the old terms and conditions.
This contention, plausible though it may seem, is, in our opinion, not well founded.
Section 52, sub section (1) undoubtedly continued the service of a teacher on the same terms and conditions as regulated his service before the commencement of the Act of 1969 and that was subject to the provisions of sub section (2) of section ,52, but this subjection to the provisions of sub section (2) did not import the requirement set out in the second proviso that the conditions of service of a teacher shall not be varied to his disadvantage.
The words "subject to the provi sions of sub section (2)" employed in subsection (1) of section 52 were intended merely 'to clarify that a 57 teacher shall continue in service on the same terms and conditions but subject to any allocation which may be made by the Vice Chancellor under sub section (2) of section 52.
Nothing in sub section (1) should be construed as in any way derogating from the power of the Vice Chancellor to make an allocation of the teacher under section 52, sub section (2).
The proviso to sub section (2)imposed a limi tation on the power of the Chancellor to make an allocation by providing that in making such allocation the conditions of service of the employee shall not be varied to his disad vantage and it could not be construed.
as a substantive provision adding a requirement in sub section (1 ) that even though the terms and conditions of service may permit alter ation to the disadvantage of an employee, such alteration shall be inhibited.
We must, therefore, consider the impact of sub section (1) of section 52 unaffected by the provision to sub section (2).
Now, it is obvious that even if the respondent was entitled to continue in service on the same terms and conditions as before by reason of sub section (1) of section 52, these very terms and conditions provided that he would be bound by any changes which might be made in the Statutes from time to time Vide Statute 2 read with clause (6) of the Form of the Agreement annexed to the Statutes made under the Act of 1965.
If, therefore, any changes were made in the terms and conditions of service of the respondent by Statutes validly made under, the Act of 1969, the respondent could not complain of any infraction of the provision of sub section (1) of section 52.
Statute 24(ii) was, as already pointed out above, a Statute validly made under section 48, sub section (2) and hence the Vice Chan cellor was entitled to make the order of suspension against the respondent in exercise of the power conferred by that Statute.
Section 13, sub section (4) of the Act of 1969 could also be availed of by the Vice Chancellor for sustain ing the order of suspension, since it conferred the same power on the Vice Chancellor as section 13, sub section (4) of the Act of 1965 and exercise of the power conferred by it as against the respondent did not involve any violation of sub section ( 1 ) of section 52.
We are, therefore, of the view that the order of suspension was a valid order made by the Vice Chancellor in exercise of the power conferred upon him under Statute 24(ii) as also section 13, sub section (4) of the Act of 1969.
Now, if the order of suspension was a valid order, it suspended the contract between the respondent and the Uni versity and neither the respondent was bound to perform his duties under the contract nor was the University bound to pay any salary to him.
The respondent was entitled to receive from the University only such subsistence allowance as might be payables under the rules and regulations govern ing his terms and conditions of service.
The legal position in regard to the right of a master to suspend his servant is now well settled as a result of several decisions of this Court.
The law on the subject was succinctly stated the following words by Hegde,J. in V P Gindroniya vs State Madhya Pradesh (1): (1) [1970] 3 S.C.R. 448.
58 "The general principle is that an em ployer can suspend an employee of his pending an enquiry into his misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension.
It is now well settled that the power to suspend, in the sense of a right to forbid a employee to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself.
Ordi narily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some Statute would mean that an employer would have no power to suspend an employee of his and even if he does so in the sense that he forbid the employee to work, he will have to pay the employee 's wages during the period of suspension.
Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder the order of suspension has the effect of temporarily sus pending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.
It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld.
The distinction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important, The suspension in the latter case is always an implied term in every contract of service.
When an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service required of him during a par ticular period.
In other words, the employer is regarded as issuing an order to the employee which because the contract is sub sisting, the employee must obey.
" It will, therefore, be seen that where there is power con ferred on the employer either by express term in contract or by the rules governing the terms and conditions of service to suspend an employee, the order of suspension has the effect of temporarily suspending the relation of master and servant with the consequence that .the employee is not bound to render service and the employer is not bound to pay.
In such a case the employee would not be entitled to receive any payment at all from the employer unless the contract of employment or the rules governing the terms and conditions of service provide for payment of some subsistance allow ance.
Here, as we have held, 59 the Vice Chancellor had the power to suspend the respondent under Statute 24(ii,) or in any event under section 13, sub section (4) and hence the respondent could not claim payment of his salary during the period of suspension.
The only ' payment which the respondent could claim to receive from the University was subsistence allowance.
if the rules governing the terms and conditions of his service made such a provision.
The University stated that it had adopted as a matter of practice the rules relating to Civil Servants of the State of Jammu & Kashmir for the purpose of payment of subsistence allowance to its employees and in fact the University Council at its meeting held on 22nd February, 1971 formally accorded approval to this practice.
The respondent was, therefore, clearly not entitled to receive from the University anything more than the subsistence allowance actually paid to him, which, we are told, was paid on the same basis as that prevailing under the rules relat ing to Civil Servants of the State of Jammu & Kashmir.
These were the reasons for which we made our order dated 17th December, 1976 upholding the validity of the order of suspension dated 21st May, 1970 and holding that the respondent was not entitled to anything more than the subsistence allowance paid to him during the period of sus pension under the order of the Registrars dated 6th June, 1970.

summary:
The Jammu and Kashmir University, which was a university constituted under the Jammu and Kashmir University Act, 1965, was bifurcated into two universities one for Jammu area and the other for Kashmir area by an act called the Jammu and Kashmir Universities Act, 1969.
Statute 2 made under the 1965 Act required every teacher to sign the pre scribed agreement of service with the University.
Clause (6) of the agreement stipulated that in all matters the teacher would abide by the statutes and regulations in force in the university from time to time.
The proviso to this clause provided that no change in the statutes and regula tions in this regard shall be deemed to have adversely affected the teacher.
Section 51 of the 1969 Act provides for continuing in force the statutes and regulations made under the 1965 Act; but section 48(2) empowered a special officer to propose modifi cations necessary to bring the statutes made under the 1965Act in conformity with the provisions of the 1969 Act and if such modifications were approved by the Chancellor they were deemed to have been made by the competent author ity under the 1969 Act.
Section 52(1) of the 1969 Act provides that all employees of the university employed under the 1965 Act shall continue in service on the same terms and conditions as regulated their service before the commence ment of the 1969 Act.
Sub section (2) empowers the Chancel lor to allocate employees of the university (other than those serving on contract) between the two new universities and the allocation so made was deemed to be an appointment to the post under the 1969 Act.
The proviso to this sub section provides that in making such allocations the condi tions of service of employment of such employees shall not be: varied to their disadvantage.
Sub section (4) provides that all persons who were employed under the former univer sity on contract shall cease to hold such posts after 60 days from the commencement of the 1969 Act and all such contracts with the former university shall stand terminated on the expiry of 60 days.
Section 13(4) of the 1969 Act empowers the Vice Chancel lor to take such action as he deems necessary in any emer gency which calls for immediate action.
Section 13(6) provides that the Vice Chancellor shall be responsible for the discipline of the University.
Section 14(3) of the 1969 Act contained an identical provision as that contained in section, 13(4) of the 1965 Act.
To bring the statutes under the 1965 Act in conformity with the provisions of the 1969 Act modifications proposed by the special officer under section 48(2) of the 1969 Act were approved by the Chancellor by his order dated December 24, 1969.
This order substituted Chapter IV in the statutes by a new chapter.
Acting under section 52(4), the Chancellor made an order on December 24 1969 directing that certain teachers shall continue on the respective posts in the new Universities on the terms and conditions embodied in Schedule II to the order.
Clause 9(ii) of the Schedule empowered the Vice Chancellor to suspend a teacher on grounds.
among others of misconduct.
The respondent, a teacher appointed under the. 1965 Act, was transferred to the Jammu area by the Chancellor 's order dated December 24, 1969.
In exercise of the power under el.
9(ii) of Schedule II of the Chancellor 's order 44 and section 13(4) of the 1969 Act, the Vice Chancellor, by an order dated May 21, 1970, suspended the respondent from service.
By another order dated June 6, 1970 the respondent was allowed a subsistence allowance amounting to half his pay and half D.A. which was later raised to 75% of his pay and allowances.
The respondent 's writ petition under article 226 of the Constitution challenging the suspension order of May 21, 1970, as well as the order dated June 6, 1970 was dismissed by a single Judge of the High Court.
On appeal the Division Bench struck down the order of suspension as violative of section 52(1) of the 1969 Act.
In appeal it was contended by the respondent that (1) since his case was governed by section 52(1) the order of Decem ber 24, 1969 made under section 52(4) was invalid because the terms and conditions set out in Schedule H to the order altered his conditions of service; (2) statute 24(ii) was invalid because it was not within the terms of section 48(2) and the statute was not necessary for bringing the statutes in conformity with the provisions of the 1969 Act; (3) the power to order interim suspension was a quasi judicial power and it would not be comprehended within the language of section 13(4) and (4) section 52(1) entitled him to continue in service on the same terms and conditions as before and under section 52(2) his conditions of service could not be varied to his disadvantage; therefore neither statute 24(ii) nor section 13(4) could confer power on the Vice Chancellor to suspend him which power the Vice Chancellor did not have under the earlier Act.
Allowing the appeal, HELD: The Vice Chancellor had the power to make the order of suspension and he was within his authority in doing so.
By reason of statute 2 read with el.
(6) of the form of agreement the respondent was bound by any changes made, in the statutes from time to time and no change made in the statutes was to be regarded as having adversely affected him.
Statutes made under the 1965 Act continued to be applicable by reason of section 51.
To bring the statutes in conformity with the provisions of the 1969 Act, modifica tions proposed by the special officer were approved by the Chancellor by his order dated December 24, 1969 and by reason of section 48(2) they were deemed to have been made by the competent authority under the 1969 Act.
This order substi tuted Chapter IV in the Statutes by a new Chapter and stat ute 24(ii) made the same provision as el.
9(ii) of Schedule II to the order made under section 52(4).
If statute 24(ii) were a valid provision, the Vice Chancellor would have power to suspend a teacher and the order of suspension against the respondent would be within the authority of the Vice Chancellor.
[53D E] Statute 24(ii) iS a statute validly approved by the Chancellor under section 48(2).
[54H] 2(a) Section 13(6) has entrusted the Vice Chancellor with the task of maintaining discipline in the university and the entrustment of this task carried with it, by neces sary implication, the Vower to take whatever action was necessary for maintaining the discipline.
Since section 13(6) was a new provision, it was necessary to make statutes for enabling the Vice Chancellor to discharge the responsibili ty of maintaining the discipline and for that purpose, vesting power in him to suspend a teacher pending departmen tal enquiry against him.
It was with this object of bring ing the statutes in conformity with section 13(6) that statute 24(ii) was added by way of modification in the statutes by the order of December 24, 1969.
Moreover, there is nothing in the 1969 Act which militates against vesting power in the Vice Chancellor to order interim suspension of a teacher.
The ChancellOr 's view that statute 24(ii) was necessary to bring it in conformity with section 13(6) cannot be said to be erroneous.
[54F G] (b) If statute 24(ii) is valid, the respondent would be bound by it and in that event the order of suspension made by the Vice Chancellor would be within the power conferred on him by that statute.
[55B] (c) Though the order of suspension did not recite stat ute 24(ii) it is wellsettled that when an authority makes an order which is otherwise within its competence, it cannot fail merely because it purports to be made under a wrong 45 provision of law, if it can be shown to be within its power under any other provision; a wrong label cannot vitiate an order which is otherwise within the power of the authority to make it.
[55B C] P.Balakotaiah vs Union of India, ; fol lowed.
3(a) It is not correct to say that an order of interim suspension was a quasijudicial order and in any event the language of section 13(4) is sufficiently wide and comprehensive to take within its scope and ambit every kind of action considered necessary by the Vice Chancellor in an emergency.
The order of suspension.
made by the Vice Chancellor was plainly an order which he had the power to make under section 13(4).
[55F] (b) Section 13(4) does not talk specifically of an order of interim suspension of a teacher but the width and ampli tude of the language of the provision would clearly include action by way of interim suspension of a teacher, when there is in the opinion of the Vice Chancellor, an emergency calling for immediate action.
[55E] (c) The respondent 's contention that there was no emer gency which called for immediate action on the part of the Vice Chancellor and, therefore, the order of suspension could not be justified, cannot be entertained by this Court because no such averment had been made in the writ petition.
[55H] 4(a) The respondent could not complain of any infraction of the provisions of section 52(1).
Since statute 24(ii) was a statute validly made the Vice Chancellor was entitled to make the order of suspension.
The Vice Chancellor could also avail of section 13(4) for sustaining the order of suspen sion since it conferred the same power on him as section 13(4) of the 1965 Act and exercise of the power conferred by it as against the respondent did not involve any violation of the provisions of section 52(1).
[57D E] (b) Section 52(1) continued the service of a teacher on the same terms and conditions as regulated his service before the commencement of the 1969Act and that was subject to the provisions of section 52(2).
But this subjection to the provisions of sub section (2) did not import the requirement set out in the proviso that the conditions of service of a teacher shall not be varied to his disadvantage.
The words "subject to the provisions of sub section (2)" in section 52(1) were intended merely to clarify that a teacher shall contin ue in service on the same terms and conditions but subject to any allocation which may be made by the Chancellor under section 52(2).
Nothing in sub section
(1) should be construed as in any way derogating from the power of the Chancellor to make an allocation of the teacher under section 52(2).
The proviso imposed a limitation on the power of the Chancellor to make an allocation by providing that in making such allocation the conditions of service of the employee shall not be varied to his disadvantage and it could not be construed as a substantive provision adding a requirement in sub s.(1) that even though the terms and conditions of service may permit alteration to the disadvantage of an employee, such alteration shall be inhibited.
[56H; 57A] (c) Even if the respondent was entitled to continue in service on the same terms and conditions as before by reason of section 52(1) these very terms and conditions provided that he would be bound by any changes which might be made in the statutes from time to time.
If, therefore, any changes were made in the terms and conditions of service of the respondent by statutes validity made under the 1969 Act the respondent could not complain of any infraction of the provisions of section 52(1).
[57C D] 5(a) The order of suspension suspended the contract between the respondent and the university and neither the respondent was bound to perform his duties under the contract nor was the university bound to pay any salary to him.
The respond ent was entitled to receive only such subsistence allowances as might be payable under the rules and regulations govern ing his terms and conditions of service.
[57G] (b) Where there is power in the employer either by an express term in the contract or by the rules governing the terms and conditions of service to 46 suspend an employee, the order of suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the employee is not bound to render service and the employer is not bound to pay.
In such a case the employee would not be entitled to receive any payment at all from the employer unless the contract of employment or the rules governing the terms and conditions of service provide for payment of some subsistence allow ance.
[58H] In the instant case the Vice Chancellor had the power to suspend the respondent under statute 24(ii) and the respond ent could not claim payment of his salary during the period of suspension.
P. Gindroniya vs State of Madhya Pradesh, [1970] 3 SCR 448 followed.


judgement:
l Appeal No. 2054/69.
(Appeal by Special Leave from the Judgment and Order dated the 5 8 1969 of the Punjab and Haryana High Court in Regular Second Appeal No. 983 of 1969).
V.C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appellants.
Ram Sarup and R. A. Gupta, for respondent No. 1.
The Judg ment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave which is directed against the judgment and order dated September 24, 1969, of the High Court of Punjab and Haryana at Chandigarh, passed in R.S.A. No. 983 of 1969 arises in the following circumstances : Bhawani Dass, respondent No. 2 herein, who owned agri cultural land measuring 50 kanals and 6 mafias comprised in Khewat No. 223, Khatauni No. 467 468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs.10,000/ by means of registered sale deed (Ext.
D 1) dated October 17, 1966.
Alleging that he held as a non occupancy tenant under Bhawani Dass the aforementioned land on the date of its sale to the appellants and had continued to do so and as such had a preferential right of its purchase under clause Fourthly of section 15(1)(a) of the Punjab Pre emption Act, 1913 (Punjab Act 1 of 1913) which still applies to the State of Haryana, Richpal, re spondent No. 1 herein, brought a suit on October 17, 1967 for possession of the said ' land by pre emption, in the Court of the Sub Judge, Charkhi Dadri.
The suit was resist ed by the appellants contending inter alia that the plain tiff respondent was neither a nonoccupancy tenant of the land in question under Bhawani Dass, vendor, nor was he in possession of the land either on the day of the aforesaid sale or on the day of the institution off the suit.
After settling the necessary issues and recording the evidence adduced by the parties, the trial court by its judgment dated February 1, 1969, decreed the suit in favour of the plaintiff pre emptor on payment of Rs. 10,000/ (the consid eration of the aforesaid sale) plus Rs. 727/ (the costs incurred by the vendees appellants on the stamps, registra tion fee etc.) holding that he had been a tenant at will under the vendor from Kharif, 1957 to Rabi, 1968; that he was forcibly dispossessed after the sale; that wrongful eviction of a tenant could be of no consequence in the eye of law; that the plaintiff pre emptor continued to hold his rights as a tenant, including the right to immediate posses sion and cultivation of the land notwithstanding his wrong ful ouster therefrom by the vendees who could not be allowed to take advantage of their own wrongs and the former must be deemed to continue in legal possession of the land which was comprised in his tenancy under the vendor on the date of the sale right upto the date of the suit and the date of the decree of the trial court in his favour.
The trial court further held that 'a tenant 's eviction can only be had under sections 7 and 7A of the Pepsu Tenancy and Agricul tural Lands Act, 1955, and there is nothing on the record of the case to even insinuate that the plaintiff 's tenancy 3 which subsisted at the time of the impugned sale was ever determined or terminated under section 7 or 7A of the Act and the plaintiff who was in physical possession of the land in suit as a tenant at the time of the sale has to be taken to be in legal possession up till the present moment '.
In conclusion, the trial could held that the mere act of forcible dispossession of the plaintiff pre emptor at the hands of the vendees after the sale could not have the effect of divesting him of his right to hold the land which he had acquired as a tenant of the vendor and in the eye of law he must be presumed to have continued to be a tenant all along and as such had a preferential right of pre emption.
The judgment and decree passed by the trial court was affirmed in appeal not only by the Additional District Judge, Gurgaon, but also by a learned Single Judge and Letters Patent Bench of the High Court.
Aggrieved by these decisions the vendees appellants have, as already stated, come up in further appeal to this Court.
The sole point that has been urged before us on behalf of the appellants is that as according to the decision of this Court in Bhagwan Das vs Chet Ram(1) the plaintiff pre emptor has to prove his subsisting right of pre emption on all the three material dates viz.(1) the date of sale, (2) the date of institution of the suit and (3) the date of passing of the decree and in the instant case, he failed to file a suit in the revenue court for recovery of possession of the suit land within one year of the date of his dispos session as contemplated by section 50 of the Punjab Tenancy Act 1887 not only his remedy was destroyed but his right and title was also extinguished at the expiry of that period on the general principles underlying section 27 of the , which may not in terms be applica ble to the present case.
Though the learned counsel for the appellants cited a few cases in support of his contention but did not unfortunately bring to our notice the decision of this Court in Dindyal & Anr.
vs Raja Ram (2) which may in an appropriate case require reconsideration by a larger bench of this Court, we think, he cannot be allowed canvass the aforesaid point.
A reference to the record of the case shows that the point now sought to be agitated before us was not raised by the appellants either in their written state ment or in the grounds of the three appeals preferred by them before the courts below.
All that appeals from the record to have.
been urged by them in the grounds of the aforesaid appeals was that the evidence had not been proper ly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor, mere entries in the khasra girdawaries were not enough to establish that the plaintiff pre emptor was a tenant of the suit land under the vendor at the time of the sale.
The suit land being situate in the district of Mohindergarh which formed part of the territories of the erstwhile of Pepsu, the case, as rightly observed by the court of first instance, was governed by sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of section 4 of that Act have an overriding effect and provide as under : "4.
Act to over ride other laws Save, as otherwise expressly provided in this Act, the provisions of this Act (1) ; (2) 4 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instru ment having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority.
Termination of tenancy. (1) No tenancy shall be terminated except in accord ance with the provisions of this Act or except of any of the following grounds, namely : (b) that the tenant has failed to pay rent within a period of six months after it falls due; Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such ar rears during that period; (c) that the tenant, not being a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapa ble of cultivating land by reason of physical or mental infirmity has after commencement of the President 's Act sublet without the consent in writing of the landowner, the land comprising his tenancy or any part thereof; (d) that the tenant has, without sufficient cause, failed to cultivate personally such land in the manner and to the extent customary in the locality in Which such land is situat ed; (e) that the tenant has used such land or any part thereof in a manner which is likely to render the land unfit for the purpose for which it was leased to him; (f) that the tenant, on demand in writing by the landowner, has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.
(2). . . . . 7A. Additional grounds for termination of tenancy in certain cases. (1) Subject to the provisions of sub sections (2) and (3), a tenancy subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated on the following grounds in addition to the grounds specified in section 7, namely : (a) that the land comprising the tenancy has been reserved by the land owner for his personal cultivation in accordance with the provisions of Chapter II: (b) that the landowner owns thirty standard acres or less of land and the land falls within the permissible limit; 5 Provided that no tenant shall be ejected under this subsection (i) from any area of land if the area under the personal cultivation of the tenant does not exceed five standard acres, (ii) from an area of five standard acres, if the area under the personal cultivation of the tenant exceeds five standards acres.
until he is allowed by the State Government alternative land of equivalent value in stand ard acres.
(2) No tenant, who immediately preceding the commencement of the President 's Act has held any land continuously for a period of twelve years or more under the same land owner or his predecessor in title, shah be ejected on the grounds specified in sub section (1) (a) from any area of land, if the area under the personal cultivation of the tenant does not exceed fifteen standards acres, or (b) from an area of fifteen standards acres, if the area under the personal cultiva tion of the tenant exceeds fifteen standard acres; provided that nothing in this sub section shall apply to the tenant of a landowner who both, at the commencement of the tenacy and the commencement of the President 's Act, was a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity.
Explanation.
In computing the period of twelve years, the period during which any land has been held under the same land owner or his predecessor in title by the father, brother or son of the tenant shall be included.
(3) For the purpose of computing under sub sections (1) and (2) the area of land under the personal cultivation of a tenant, any area of land owned by the tenant and under his personal cultivation shall be included.
" It cannot, in view of the above noted provisions of law and the decision of this Court in Rikh Ram & Anr.
vs Ram Kumar & Ors.(1) be disputed that an order or decree direct ing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy.
A fortiori, a person who has been in possession of land with the right to possess it continues to hold the 'land and to be a tenant in spite of having been wrongfully put out of possession espe cially if he has initiated proceedings for recovery of possession.
As in the instant case, it has been concur rently found by all the courts below that the plaintiff pre emptor was a tenant of 'the suit land on the date of sale (1) 6 and it has not been alleged much less proved that his tenancy was, thereafter determined or terminated on any of the grounds set out in sections 7 and 7A of the Pepsu Tenan cy and Agricultural Lands Act, 1955 and he had admittedly applied to the Tehsildar for restoration of his posses sion, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other materi al dates and thus fully qualified and entitled to pre empt the land.
We must fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above.
For the foregoing reasons, we do not find any merit in this appeal which is dismissed.
In the circumstances of the case, we leave the parties to bear their own costs of this appeal.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
Section 7 of the Pepsu Tenancy and Agricultural Lands Act, 1955, which deals with termination of tenancy, provides that no tenancy shall be 'terminated except on any of the grounds mentioned in the section.
Section 7 gives additional grounds for termination of tenancy in certain cases.
Respondent No. 2 sold his land to the appellants.
Claiming that he was a non occupancy tenant under respondent No. 2, respondent No. 1 filed a suit for possession of the land by pre emption.
The trial Court decreed the suit in favour of the plaintiff pre emptor holding that he had been a tenant at will on the date of the sale and that he was forcibly dispossessed after the sale.
The District Judge as well as the High Court upheld the trial Court 's decision.
It was contended on behalf of the appellants that the pre emptor had to prove his subsisting right of pre emption on the date of sale, date of institution Of the suit and date of passing of the decree and since the plaintiff had failed to file a suit for recovery of possession under section 50 of the Punjab Tenancy Act, 1887 his right and title had been extinguished.
Dismissing the appeal, HELD: The plaintiff cannot but be deemed to be the tenant of the suit land on the date of sale as well as on all other material dates and is thus fully qualified and entitled to pre empt the land.
[5H] The point now sought to be raised was not raised by the appellant in the Courts below.
In view of the provisions of sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which have an over riding effect and the decision of this Court in Rikki Ram & Anr vs Ram Kumar & Ors it cannot be disputed that an order or decree di recting eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy.
A fortiori, the person who has been in possession of the land with the right to possess it continues to hold the land and be a tenant in spite of having been wrongfully put out of posses sion specially if he has initiated proceedings for recovery of possession.
[3E & 5F] Since in the instant case, it has been concurrently found by the Courts below that the plaintiff pre emptor was a tenant of the suit land on the date of sale and it has not been alleged that his tenancy was thereafter determined or terminated on any of the grounds set out in sections 7 and 7A of the Act and the plaintiff had applied to the Tehsildar for restoration of possession, he could not but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre empt the land.
[5G] Rikki Ram & Anr.
vs Ram Kumar & Ors. followed.
Bhagwan Das vs Chet Ram ; and Dindyal & Anr.
vs Rajaram referred to. 2


judgement:
Appeal No. 2080 of 1968.
Appeal by Special Leave from the Judgment and Order dated 11 4 68 of the Assam and Nagaland High Court in Second Appeal No. 98/65.
G.L. Sanghi and K.J. John for the Appellant.
S.K. Nandy and G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
, This appeal by special leave raises a short question relating to the validity of a notice to quit given by the appellant terminating the tenancy of the respondents.
The appellant, as landlord, filed a suit for eviction against the respondents as tenants, after giving a notice to quit dated 25th September, 1962.
The Trial Court dismissed the suit but on appeal, the First Appellate Court reversed the judgment of the Trial Court and passed a decree of evic tion against the respondents.
The respondents preferred a second appeal to the High Court and the only question debat ed before the High Court was in regard to the validity of the notice to quit.
There were two grounds on which the notice to quit was assailed as invalid.
The first is imma terial since the decision of the High Court negativing it has not been challenged before us on behalf of the respond ents.
The second was 76 that the notice to quit was invalid as it was not in con formity with the requirements of section 106 of the Transfer of Property Act.
That section says that in the absence of a contract or local law or usage to the contrary, a lease from month to month shall be terminable, "on the part of either lessor or lessee, by fifteen days ' notice expiring with the end of a month of the tenancy".
The argument of the re spondents before the High Court was that the notice to quit did not expire with the end of the month of the tenancy and was hence invalid.
This argument found favour with the High Court and it held that the notice to quit was not clear and unambiguous and was "open to doubt as to the date of deter mination of the tenancy" and did not terminate the tenancy on the expiration of the month of the tenancy and was, therefore, invalid and in this view it dismissed the suit of the appellant.
The appellant thereupon preferred the present appeal with special leave obtained from this Court.
The only question which arises for determination in this appeal is whether the notice to quit given by the appellant to the respondents was invalid as not being in conformity with the requirements of section 106 of 'the Transfer of Property Act.
The notice to quit, so far as material, was in the following terms: "You are hereby informed by this notice that you will vacate the said house for our possession within the month of October 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house.
" The tenancy was admittedly a monthly tenancy and hence the notice to quit could not be said to be valid under section 106 of the Transfer of Property Act unless it expired with the end.
of the month of the tenancy.
The view taken by the High Court was that since by the notice to quit the appel lant called upon the respondents to.
vacate the premises "within the month of October 1962" and not on the expiration of that month, the notice to quit was not in accordance with law and did not operate to determine the tenancy of the respondents.
The question is whether this view taken by the High Court can be sustained.
Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat.
"The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Sidebotham vs Holland(1), "ought not to turn on the split ting of a straw".
It must not be read in a hyper critical manner, nor must its interpretation be affected by pedagogic pendantism or overrefined subtlety, but it must be construed in a commonsense way.
See Harihar Banerji vs Ramsashi Roy(2).
The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation.
It is indisputable that under section 106 of the Trans fer of Property Act the notice to quit must expire with the end of the month of the tenancy or in other words, it must terminate the tenancy with effect (1) (2) 45 I.A. 222. 77 from the expiration of the month of the tenancy.
If it terminates the tenancy with effect from an earlier date, it would be clearly invalid.
Now, ' here the notice to quit required the respondents to vacate the premises "within the month of October 1962" and intimated to them that otherwise they would be "treated as trespassers from 1 st November" in respect of the premises.
The question is: what is the meaning and effect of the words "within the month of October 1962" in the context in which they are used in the notice to quit ? Do these words mean that the tenancy of the respond ents was sought to be terminated at a date earlier than the expiration of the month of October 1962 and they were re quired to vacate the premises before such expiration ? We do not think so.
When the notice to quit required the respondents to vacate "within the month of October 1962"; what it meant was that the respondents could vacate at any time within the month of October 1962 but not later than the expiration of that month.
The last moment up to which the respondents could, according to the notice to quit, lawfully continue to remain in possession of the premises was the mid night of 31st October, 1962.
We fail to see any differ ence between a notice asking a tenant to vacate "within the month of October 1962" and a notice requiring a tenant to vacate latest by the mid night of 3 l st October, 1962, because in both cases, the tenant would be entitled to occupy the premises up to the expiration of 31st October, 1962 but not beyond it.
This position would seem to follow logically and incontestably, as a matter of plain natural construction, from the use of the words "within the month of October 1962" without any thing more, but here it is placed beyond doubt or controversy by the notice to quit proceeding to add that otherwise the respondents would be treated as trespassers from 1st November, 1962.
This makes the inten tion of the authors of the notice clear that they are termi nating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month.
If the respondents do not vacate the premises within the month of October 1962, they would be treated as trespassers from 1st November, 1962 and not from any earlier date, clearly imply ing that they would lawfully continue as tenants up to the expiration of the month of October 1962.
The tenancy was, therefore, sought to be determined on the expiration of the month of October 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by section 106 of the Transfer of Property Act.
It was in the circumstances a valid notice which effectively determined the tenancy of the respondents with effect from the mid night of 31st October, 1962.
We accordingly allow the appeal, set aside the order of the High Court and restore the decree for eviction passed against the respondents.
Since the respondents have been in possession of the premises for a long time, it is but fair that they should have some reasonable time to vacate the premises.
Hence we direct that the decree for eviction shall not be executable against the respondents up to 31st October, 1977 on condition that the respondents continue to pay to the appellant regularly from month to month an amount equivalent to the monthly rent as and by way of compensation for use and occupation of the permises.
There will be no order as to costs throughout.
M.R. Appeal allowed.

summary:
The appellant filed a suit for evicting his tenant Bhagwandas Kanu etc.
after giving them a notice to quit.
The Trial Court dismissed the suit but on appeal, the First Appellate Court passed a decree for eviction against the respondents.
In second appeal before the High Court, the respondents assailed the validity of the notice to quit, on the ground that it did not conform with the requirements of section 106 of the Transfer of Property Act.
The High Court allowed the appeal holding that the notice to quit did not clearly terminate the tenancy on the expiration of the, month of the tenancy, and was invalid.
Allowing the appeal by special leave, the Court, HELD: A notice to quit must be construed ut res magis valeat quam pereat.
It must not be read in a hyper critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it should be construed in a common sense, way.
The notice to qui re quired the respondents to vacate "within the month of Octo ber 1962", otherwise they would be treated as trespassers from 1st November, 1962.
This makes the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month.
Sidebotham vs Holland ; Harihar Banerji vs Ramsashi Roy 45 I.A. 222, applied.


judgement:
Appeal No. 900 of 1976.
Appeal by Special Leave from the Judgment and Order dated 8 3 1976 of the Gujarat High Court in Spl.
Civil Appln.
No. 263 of 1976.
P.H. Parekh and (Miss) Manju jetley for the Appellant.
S.C. Agarwal, V.J. Francis and A.P. Gupta for the Respond ents.
933 The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave at the in stance of the Bhavnagar Municipality is directed against the order of the Gujarat High Court dismissing in limine its writ application challenging the award of the Industrial Tribunal, Gujarat, made under section 33A of the Industrial Disputes Act (briefly the Act).
There was an industrial dispute pending between the Bhavnagar Municipality (briefly the appellant) and its workmen before the Industrial Tribunal 'in Reference No. 37 of 1974 referred to it under section 10(1) (d) of the Act on March 5, 1974.
The said industrial dispute related to several demands including the demand for permanent status of the daily rated workers of the Water Works Section of the Municipality who had completed 90 days ' service.
While the aforesaid industrial dispute was pending before the Tribu nal, the appellant, on September 30, 1974, passed orders retrenching 22 daily rated workmen (briefly the respondents) attached to the Water Works Section of the Municipality.
It is not disputed that the appellant had complied with sec tion 25F of the Act and due retrenchment compensation had been paid to those workers.
On June 20, 1975, the respond ents filed a complaint to the Tribunal under section 33A of the Act for contravention of section 33 of the Act by the appellant.
Neither party adduced any oral evidence before the Tribunal but relied only upon documents produced before it.
On October 30, 1975, the Tribunal made its award holding that the appellant contravened section 33(1)(a) of the Act and, therefore, directed reinstatement of the respondents.
The appellant preferred a writ application before the High Court which was dismissed in limine, as stated above.
Hence this appeal by special leave.
Two questions arise for decision in this appeal.
First, whether the appellant contravened section 33 (1)(e) of the Act by ordering retrenchment of the respondents who, along with other workers, were directly involved in the industrial dispute pending before the Tribunal.
Second, whether contra vention of section 33 will automatically lead to an order of reinstatement of the respondents, as has been held by the, Tribunal.
It is common ground that the appellant did not obtain prior permission of the Tribunal before retrenching the respondents.
It is well settled that a complaint under section 33A is maintainable only if the employer contravenes section 33 of the Act.
It is submitted by Mr. Agarwal, on behalf of the respondents, that the object of section 33 should be borne in mind in considering the question about alteration of conditions of service under section 33(1)(a) of the Act.
He submits that since the respondents were directly in volved in the dispute and the question of their permanent status from a casual or temporary status formed the subject matter of the dispute, the reference.
has been made nuga tory by the action of the appellant in retrenching them. 'Mr. Parekh, on the other hand, submits that retrenchment of the respondents does not ' involve alteration of conditions of service and hence there is no contravention of section 33 of the Act.
934 There is no complaint by Mr. Agarwal that there is any noncompliance by the appellant with section 28F of the .Act.
Mr. Agarwal further rightly concedes that he cannot bring his case under section 33(1) (b) or under section 33(2)(b) since it is not a case of discharge or dismissal for miscon duct.
His entire submission is based on section 33(1)(a) of the Act.
Section 33 of the Act so far as material for us may be set out: "33(1) During the pendency of any . proceeding before a . Tribunal . in respect of an industrial dispute, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the condi tions of service applicable to them immediate ly before the commencement of such proceeding; X X X save with the express permission in writing of the authority before which the proceeding is pending".
There is a clear prohibition in section 33(1)(a) against altering conditions of service by the employer under the circumstances specified except with the written permission of the Tribunal or other authority therein de scribed.
In order to attract section 33(1)(a), the following features must be present: (1) There is a proceeding in respect of an industrial dispute pending before the Tribunal.
(2) Conditions of service of the workmen applicable immedi ately before the commencement of the Tribunal proceeding are altered.
(3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.
(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.
(5) The alteration of the conditions of service is to the prejudice of the workmen.
The first feature is admittedly present in this case since action has been taken by the appellant in retrenching the respondents during the pendency of the proceeding before the Tribunal.
The point that requires consideration is whether the other features are also present in the instant case.
Before we proceed further we should direct our attention to the subject matter of the industrial dispute pending before the Tribunal.
It is sufficient to take note of the principal item of the dispute, namely, the demand of the respondents for conversion of the temporary status of their employment into permanent.
To recapitulate briefly the appellant employed daily rated workers to do the work of boring and hand pumps in its Water Works Section.
These workers have been in employment for over a year.
They claimed permanency in their employment on their putting in more than 90 days ' service.
They also demanded two pairs of uniform every year, cycle allowance at the rate of Rs. 10/ per month, Provident Fund benefit and National Holidays and other holidays allowed to the other workers.
While this particular dispute was pending before the Tribunal, the appellant decided to entrust the work, which had till then been performed by these workers in the Water Works Section, to a contractor.
On the employment of the contractor by the Municipality for the self same work, the services of the respondents became unnecessary and the appellant passed the orders of retrenchment.
It is, therefore, clear that by retrenchment of the respondents even the temporary employ ment of the workers ceased while their dispute before the Tribunal was pending in order to improve that temporary and insecure status.
Retrenchment may not, ordinarily, under all circum stances, amount to alteration of the conditions of service.
For instance, when a wage dispute is pending before a Tribu nal and on account of the abolition of a particular depart ment the workers therein have to be retrenched by the em ployer, such a retrenchment cannot amount to alteration of the conditions of service.
In this particular case, howev er, the subject matter: being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service.
They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication.
And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services.
The alteration of the method of work culmi nating in termination of the services by way of retrenchment in this ease has a direct impact on the adjudication pro ceeding.
The alteration effected in the temporary employ ment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute.
The character of the temporary employment of the re spondents being a direct issue before the Tribunal, that condition of employment, however insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition.
This could have been done only with the express permission of the Tribunal.
It goes with out saying that the 936 respondents were directly concerned in the pending industri al dispute.
No one also deny that snapping of the temporary employment of the respondents is not to their prejudice.
All the five features adverted to above are present in the instant case.
To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of section 33 which is principally directed to preserve the status quo under speci fied circumstances in the, interest of industrial peace during the adjudication.
We are, therefore, clearly of opinion that the appellant has contravened the provisions of section 33(1)(a) of the Act and the complaint under section 33A, at the instance of the respondents, is maintainable.
The submission of Mr. Parekh to the contrary cannot be accepted.
That, however, does not conclude the matter.
The Tribu nal was clearly in error in not adjudicating the complaint on the merits.
It is well settled that in a complaint under section 32A, event if the employer is found to have contra vened the provisions of section 33, the Tribunal has to pronounce upon the merits of the dispute between the par ties. ' The order passed in an application under section 33A is an award similar to one passed in a reference under section 10 of the Act.
The award passed has to be submitted to the Government and the same has to be published under section 17 of the Act.
For the purposes of the Act the complaint under section 33A takes, as it were, the form of a reference of an industrial dispute by the appropriate au thority and the same has to be disposed of in a like manner.
The Tribunal has committed an error of jurisdiction in declining to adjudicate the matter and to make its award on the merits as required under the law.
The High Court was, therefore, not right in dismissing the writ application of the appellant in limine.
We should also.
observe that, in the absence of adjudication on the merits by the Tribunal, the High Court was not right in holding that the retrench ment by the appellant was "a gross act of victimisation".
In the result the order of the High Court is set aside.
It follows that the award of the Tribunal ordering rein statement of the respondents fails and is set aside.
We should also add that the.
observations of the Tribunal with regard to the question of prosecution of the appellant under sections 31 and 32 of the Act were not at all perti nent in an enquiry under section 33A and ought not to have been made.
The writ application in the High Court stands allowed to the extent indicated.
The appeal is allowed as directed in this order.
The complaint under section 33A stands restored to the file of the Tribunal for disposal on the merits in accordance with law and in the light of this judgment.
The appellant, however, shall pay the costs of the respondents as ordered at the time of granting of the Special Leave.
M.R. Appeal allowed.

summary:
An industrial dispute between the appellant and its workmen including the respondents, was pending before the Industrial Tribunal.
The dispute, inter alia, related to the demand for permanent status of the respondents who were rated workers of the water works section of the Munici pality.
Meanwhile, without obtaining the Tribunal 's prior permission, the appellant retrenched the respondents.
On a complaint by the respondents section 33 A of the Industrial Disputes Act, the Tribunal made an award holding that the appellant had contravened section 33(1)(a) of the Act, and di rected reinstatement of the respondents.
The complaint was not adjudicated on merits.
The appellant filed a writ petition which was dismissed in limine by the High Court.
Allowing the appeal, but agreeing that the appellant had contravened section 33 ( I ) (a) and that the respondents ' com plaint section 3 3 ( 1 ) (a) was maintainable, the Court re stored the respondents ' complaint for disposal on merits by the Tribunal.
HELD: (1) The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition must subsist and cannot be altered to their prejudice by putting an end to that temporary condition.
This could be done only with the express permission of the Tribunal.
[933 G H] The Court further observed: To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to.
set at naught the avowed object of section 33 which is principally direct ed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication.
[936 A B] (2) In a complaint under section 33 A, even if the employer is found to have Contravened the provisions of section 33, the Tribunal has to pronounce upon the merits of the dispute between the parties.
For the purposes of the Act, the complaint under section 33A takes the form of a reference of an industrial dispute by the appropriate authority and the same has to be disposed of in a like manner.
[936 C D] (3) The Tribunal has committed an error of jurisdiction in ordering reinstatement of the respondents and declining to adjudicate the matter and to make its award on the merits as required under the law.
[936 D]