judgement:
Civil Appeals Nos.
2000 2001 of 1969.
(Appeals by Special Leave from the Judgment and Order dated 17 10 1968 of the Kerala High Court in Income Tax Referred Case No. 79/67).
B. Sen, S.P. Nayar and 1.
Ramamurthi for the Appellant (in both appeals).
G.K. Viswanatha lyer, K. Jayaram and R: Chandrasekar for the Respondent (in both appeals).
The Judgment of the Court was delivered by BEG, J.
Civil Appeals Nos. 2000 2001 of 1969 from the judgment and order of the Kerala High Court are by grant of special leave by this Court filed on the ground that these appeals raise a question of wide general importance.
This question was thus framed, in a reference made by the Madras Bench of the Income tax Appellate Tribunal under Section 64(1) of the : "Whether on the facts and in the circum stances of the case, the Appellate Tribunal was correct in law in having included the value of the forest lands in the total value of the Estate for the purpose of Estate Duty ?" The assessee had claimed that large tracts of, forest land, covered with wild and natural forest growths, situated in the erstwhile Malabar District, were 'agricultural ' lands not liable to estate duty under the of 1953 (hereinafter referred to as the Act ').
According to the Revenue, duty had become leviable on the death of the former owners, Smt.
Jayalakshmi Devi, who died on 6 3 1954, and Shri Madhava Rajah of Kollengode, who died on 9th May, 1955, each owning 1/13th share in the Tarwad properties on the dates of their deaths.
348 No question as to the effect of any amendment of the law upon liability of agricultural laud to Estate duty was referred by the Tribunal to the High Court.
Nevertheless, it seems to have been considered by reason of the general nature of the question referred involving a determination of the correctness of the inclusion of the value of "forest land in the total value of the estate".
We may observe here that the question framed seems to rest on the assumption that the land under consideration was "forest land".
Howev er, the general nature of the question framed and the ques tions argued and decided by the Appellate Tribunal as well as the High Court indicated that the real contest was about the very nature of the land involved in order to determine whether it was liable to estate duty.
The High Court had observed that the Tribunal 's findings that land, to the extent of 36,857.16 acres, was not agri cultural land was "solely based on the absence of evidence or the assessee 's failure to prove that the disputed forest lands are agricultural lands".
The High Court had also mentioned the basis of this finding relating to two types of land about which it had disagreed with the Appellate Tribunal while agreeing with the Tribunal that 500 acres of rocky land was non agricul tural land.
This basis was given by quoting the 'fol lowing two passages from the judgment of the Appellate Tribunal: "(1) According to the valuers, the remaining extent of 15,000 and odd acres out of the first category, has been leased by the assessee fro.m time to time for cutting of timber and fuel wood, and has never been used by him either by himself or through lessees to bring it under cultivation for any purpose.
There is no material on record from which it can be said that this area can at all be brought under cultivation for any purpose.
Even if it is assumed that, there is a bare possibility of this area being brought under cultivation, the assessee has not placed any material before us from which it can be said that a prudent owner would undertake any process of farming in respect of this land".
(2) "With regard to the second category of the land of the extent of 16,000 and odd acres, the report of the valuers does not throw any light upon the nature of this land, and the only information available is that these lands have been held by the Kerala Government under a perpetual lease on an annual rent of Rs. 5,000/ .
The assessee has not shown whether this land was being cultivated.
by the Kerala Government or whether it was Only being exploited by the Kerala Government for its timber value.
On the material on record, it is not possible for these lands to come.
under the catego ry of agricultural lands".
349 The High Court had set out the provisions of Section 5 of the Act as they stood before a slight amendment in 1956.
It read: "5.
Levy of estate duty (1) In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property settled or not settled, including agricultural land situate in the States specified in the First Schedule to this Act, which passes on the death of such person, a duty called 'estate duty ' at the rates fixed in accordance with Section 35.
(2) The Central Government may, by notifica tion in the official Gazette, and the names of any other States to the First Schedule in respect whereof resolutions have been passed by the Legislatures of those States adopting this Act under clause (1) of Article 252 of the Constitution in respect of estate duty on agricultural lands situate in those States, and on the issue of any such notification the States so added shall be deemed to be States specified in the First Schedule within the meaning of sub section (1)".
After pointing out that agricultural land falls under item 48 of List II or the State List in the Seventh Sched ule of the Constitution, the High Court held that estate duty on the land under consideration would become leviable provided it was agricultural land on the passing of resolu tions by the legislature of the State of Madras as provid ed by Section 5 (2) set out above.
These resolutions having been passed on 2 4 1955, the State of Madras was added in the First Schedule to the Act with effect from 6th June, 1955.
Hence, the High Court held that the estate duty was not leviable under the Act on agricultural land,before 6th June, 1955, in the Madras State to which the land under consideration had belonged at the time when it was said to have become subject to a levy of estate duty.
Thus, the principal question which arose was: What is the meaning of "agricultural land" as that term is used in the Act ? The High Court of Kerala, which had to deal with this reference decided the question on two grounds: firstly, that, according to the views expressed in Sarojni Devi vs Srikrishna;(1) and Megh Raj vs Allah Rakha;(2) and C.I.T. West Bengal, Calcutta, vs Raja Benoy Kumar Sahas Roy,(3) the words "agricultural land" should be "interpreted in their widest significance"; and, secondly, that although the burden rested upon an assesee to establish an exemption from liability to estate duty in respect of any part of his estate, yet, if he claimed immunity on the ground that the subject matter does not fall within the ambit of the taxing power of the legislature imposing (1) A.I.R. 1944 Mad. 401.
(2) A.I.R. 1942 PC 27.
(3) 350 the duty, the Revenue had to establish that the subject matter involved is taxable.
It then gave its opinion in the following terms: "It is well known that the extensive areas of different varieties of plantation that we have got in this State were once forest lands, and it is also equally well known that year after year large areas of forest lands in this State are being cleared and converted into valuable planta tions.
In the absence of exceptional circum stances such as the land being entirely rocky or barren for other reasons, all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes.
There is no case that the forest lands concerned in this case or any part thereof are unfit for agricultural exploitation".
So far as the correct interpretation of the term "agricultural laud" in a taxing statute, such as the one before us, is concerned, we have already dealt with the question in our judgment in Commis sioner of Wealth tax, Andhra Pradesh vs Officer in Charge (Court of Wards) Paigah, C) where we have said: "We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression.
The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context.
We are entitled to look at the statute as a whole and give an interpretation in consonance with the purposes of the statute and what legally follows from the terms used.
We are to avoid absurd re sults.
If we were to give the widest possible connotation to the words 'agricultural land ', as the Full Bench of the Andhra Pradesh High Court seemed inclined to give to the term 'agricultural land ', we would reach the conclusion that practi cally all land, even that covered by buildings is 'agricultural land ' is as much as its potential or possible use could be agricultural.
The object of the Wealth Tax Act is to tax surplus wealth.
It is clear that all land is not excluded from the definition of assets.
It is only 'agricultural land ' which could be exempted.
Therefore, it is imperative to give reasonable limits to the scope of the agricultural land ', or, in other words, this exemption had to be necessarily given a more re stricted meaning than the very wide ambit given to it by the Andhra Pradesh Full Bench".
Learned Counsel for the respondents had sought to rely strongly upon State of Kerala & ,4nr.
vs The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc.
,(2) where the question under consideration was whether the Kerala Pri vate Forests (Vesting and Assignment) Act 26 of 1971, pur porting to acquire forest lands held on Janmam (1) ; (2) [1974] (1) S.C.R.p.
671, 682.
351 right, ' without payment of compensation, for implementing a scheme of agrarian reform by assigning lands or leasing them to poorer sections of rural agricultural population, was acquiring "agricultural land", for purposes ' stated in.
the Preamble to the Act before this Court for interpretation.
This Court interpreted the Preamble as having the effect of an earmarking by Legislature of certain forest lands for conversion into land meant for agriculture.
We do not think that the forest land involved in Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltds. ' case (supra), which had become linked up with agricultural purposes and earmarked for them, by reason of a special statute for special purpose can bear comparison with forest land with "spontaneous" or natural and wild growths of for est, which is involved in the case now before us.
The decision in Gwalior Rayon Silk Manufacturing (Wvg.) Co. 's case (supra) obviously depended upon the special facts of that case and the character of provisions to be interpreted.
This Court keeping in view the special features of that case, in the context of certain judicial pronouncements mentioned in the statement of objects and reasons for the statute to be interpreted, observed there (at p. 683): "It is, therefore, manifest that when the legislature stated in the Preamble that the private forests are agricultural land, they merely wanted to convey that they are lands which by and large could be prudently and profitably exploited for agricultural purposes".
It seems clear to us that this Court, by explaining why, for certain special reasons and in an unusual context, certain land described as "forest land" was to be treated as though it had become "agricultural", implied that ordinarily this is not so.
In Rajah Anand Brahma Shah vs State of U.P. & Ors.,(1) this Court held forest land to be nonarable which meant "non agricultural".
We think that, without evidence to show that such land had been cleared and pre pared or earmarked for agricultural purposes, it must be treated as prima facie nonagricultural land.
Learned Counsel appearing for the respondent stated before us that the lands under consideration had also been subsequently acquired by the Govt.
and put to agricultural uses.
There is, however, no finding or evidence before us to that effect.
Apparently, the learned Counsel meant that forest land subsequent to the levy of estate duty had been acquired by the State to be converted and used for agricul tural purposes.
There being no evidence or finding of such a character before the events which attracted the estate duty, we cannot take notice of such a statement by Counsel.
It is irrelevant for the purpose of the cases before us.
So far as the question of burden of proof is concerned, we think that to proceed on the assumption that all land is prima facie capable of cultivation, so that the State must prove that it is non agricultural in order to establish that it could be the subject matter of legislation (1) ; at p. 379. 352 which was within Parliament 's legislative competence, and, therefore, covered by the Act, is to mix up the question of legislative competence and that of taxability of what is, on the face of it, taxable as part of the estate or property of the assessee within the meaning of Section 5 of the Act set out above.
Indeed, the question of legislative competence of Parliament was neither in issue nor part of the question referred even if such a question could have been referred at all by a Tribunal functioning under the Act.
We think that the burden of establishing the exemption lay upon the asses see respondent as was rightly held by the High Court.
We think that the High Court was not correct in placing the burden upon the Department, after it was admitted that it was "forest land", on the ground that the further question of an immunity of the subject matter from taxation by Par liament arose here and that, therefore, the onus lay on the Department.
Even if there could be such an onus here, it was, we think, sufficiently discharged by the admission that this was "forest land" covered with natural or wild growths.
After that, at any rate, the assessee had to prove change of its character.
In Commissioner of Wealth Tax, Andhra Pradesh vs Offi cer incharge (Court of Wards) Paigah, (supra), in which we heard arguments together with arguments in the case now before us, we found that there was some evidence of the agricultural character of land in the shape of entries in revenue record.
We do not find what could similarly consti tute evidence of agricultural character of the land involved in this case.
On the other hand, the assessee 's admission that the land under consideration was "forest land", covered by wild and natural growth of forests, constituted evidence to the contrary.
We think that, unless there was evidence that such lands had been, in some way, set apart or earmarked for or linked up with an agricultural purpose, by their owners or occupiers, it could not be held that they are agricultural lands.
We think that the view of the Kerala High Court, that "all forest lands in this State are agricultural lands in the sense that they can be prudently and profitably exploit ed for agricultural purposes", is too wide.
It is erroneous for the reasons we have already set out in our judgment in the case from the Andhra Pradesh High Court.
The question has to be decided on evidence of actual or intended user for which land may have been prepared or set apart.
In the case before us now, the Tribunal said in its referring order: "The Tribunal permitted the accountable person to raise the contention that the value of the forest lands has to be excluded as they were agricultural lands.
So far as this contention was concerned, the following facts were not in dispute: viz., that the forest consisted of trees of sponta neous growth; that no operations in the nature of forest development were being carried on; and, that only operations in the nature of exploitation of the forest were being conducted.
The account able person, however, contended that these lands were capable of being brought under cultivation at a future 353 date and that therefore they must be deemed to be agricultural lands.
Reliance was sought to be placed upon the decision of the Madras High Court in Sarojini Devi vs Shri Krishna (AIR 1944 Madras p. 401) in which it was held that the expression 'agricultural lands ' must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry.
The Tribunal was, however, of the view that in the said decision their Lordships did not intend to lay down a defi nition of the expression 'agricultural lands ' for all purposes, and that, on the other hand, they clearly indicated that the expression admits of different interpretations and that it was only from the context of the particular enactment in which this expression is used that ' its meaning has to be inferred.
The Tribunal observed that the very wide definition of the expression 'agricultural lands ' laid down in the above cited decision was not applicable to cases under the .
The Tribunal, therefore, negatived the contention of the accountable person that the forest lands had to be excluded from the value of the assessable estate of the deceased".
Thus, it is clear that the assessee, after having been given due opportunity to lead evidence to show that what was prima facie nonagricultural land, in the sense that it was covered by the spontaneous or natural growth of forests, was really agricultural land, had led no such evidence.
It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately.
It appears that the nature of exploitation of the forest lands was simply to give contracts for cutting of the trees.
The assessee not having led any evidence of any intention to prepare or appropriate or ear mark the land for any agricultural use or purpose, but ', on the other hand, having contended that mere possibility of using such land for agricultural purposes in future was enough, could not be said to have discharged his onus of proof.
After the assessee 's admission that it was "forest land" which presumably prevented cultivation, no evidence was led as we have already observed to indicate any change of character of this land or its conversion into agricultural land.
We therefore think that the Appellate Tribunal was correct in expressing the view it had taken and the conclusions it had recorded.
And, no case is made out for sending the case back to the Tribunal for any fresh decision.
Consequently, we allow these appeals, set aside the judgment and orders of the High Court.
The parties will bear their own costs.

summary:
Under s.5 of the , all property, including agricultural land situate in the States specified in the First Schedule to the Act, which passes on the death of the owner is subject to estate duty.
The State of Madras was added in the First Schedule with effect from 6th June, 1955.
The assessee claimed that large tracts of land, covered with wild and natural forest growths situate in the Malabar District of the Madras State, were agricultural lands and that they were not liable to estate duty because the former owners died before 6th June, 1955.
The High Court held that the property was agricultural land and not liable to estate duty, because, (1) the words 'agricultural land ' should be interpreted in their widest significance, so that.
in the absence of exceptional circumstances such as the land being entirely rocky or barren for other reasons, all forest lands in the State of Kerala in which the District of Malabar was since included, are agricultural lands in the sense that they can be prudently and profitably exploited for agricul tural purposes; and (2) although the burden rested upon an assessee to establish an exemption from liability to estate duty in respect of any part of his estate, yet, if he claimed immunity on the ground that the subject matter does not fall within the ambit of the taxing power of the legis lature imposing the duty, the Revenue had to establish that the subject matter involved is taxable.
Allowing the appeal to this Court, HELD: (1) The expression 'agricultural land ' has to be given a restricted meaning and not the wide meaning given by the High Court.
The question whether land is agricultural land has to be decided on evidence of actual or intended user for an agricultural purpose for which the land may have been prepared or set apart.
[352 F] Commissioner of Wealth tax, Andhra Pradesh vs Officer in Charge (Court of Wards) Paigah, [1977] 1 S.C.R. 146 followed.
(a) The land in the present case was covered by sponta neous or natural growth of forests.
It was not shown that the assessee or his predecessor in interest did anything to develop the forest in the sense that any particular trees were planted deliberately.
The exploitation of the forest lands was simply to give contracts for cutting trees.
It must, therefore, be treated prima facie as non agricultural land.
[353 E] (b) The decision in State of Kerala vs Gwalior Rayon Silk Manufacturing (Wvg) Co. Ltd. ; depended upon the special facts of that case and the provisions of the Kerala Private Forests (Vesting and Assessment) Act, 1971, interpreted therein.
This Court, in that case ex plained, why for certain special reasons and m an unusual context, certain land described as 'forest land ' was to he treated as 'agricultural '.
Forest land ordinarily means non arable, that is, non agricultural land.
[351 C & E] Rajah Anand Brahma Shah vs State of U.P. & Ors. ; followed.
347 (c) Assuring that the forest land subsequent to the levy of estate duty had been acquired by the State to be converted and used for agricultural purposes, there being no evidence or finding of such a character before the events which attracted the estate duty, it is an irrelevant circum stance of which the Court cannot take notice.
[351 G] (2) (a) The burden of establishing the exemption lay upon the assessel.
The High Court was not correct in placing the burden upon the Revenue when it was admitted that the land was forest land.
The reason given by the High Court, that a question of immunity of the subject matter from taxation by Parliament arose here, and that, therefore, the onus lay on the Department mixes up the questions of legis lative competence and of taxability.
Even if there could be such an onus, it was, sufficiently discharged in the present case by the admission of the assessee that the land was forest land covered with natural or wild growths.
[352 A C] (b) The assessee, was given due opportunity to lead evidence to show, that what was prima facie non agricultural land, was really agricultural land but he led no evidence to prove his intention to put the land to agricultural use or purpose.
On the other hand, he contended that the mere possibility of using such land for agricultural purposes in future was enough.
Therefore, he had not discharged his onus, and no case is made out for sending the case back to the Tribunal for any fresh decision.
[353 D F]


judgement:
Civil Appeal No. 908 of 1975.
Appeal from the Judgment and Order dated 13 3 75 of the Punjab and Haryana High Court in Civil Writ No. 2586/71 and CIVIL APPEAL No. 1041 oF 1975.
Appeal from the Judgment and Order dated 13 3 75 of the Punjab & Haryana High Court in Civil Writ No. 2586/71.
Kapil Sibal and S.K. Gambir, for the Appellant in C.A. No. 908/75.
Anand Sarup and H.S. Marwah, for Respondent No. 1 in C.A. 908/75 and for Respondent No. 2 in C.A. 1041/75.
Naunit Lal, M.N. Shroff and R.N. Sachthey, for Respond ent No. 3 in C.A. 908/75 for the Appellant in C.A. 1041/75.
The Judgment of the Court was delivered by GOSWAMI, J.
These two appeals are by certificate from the judgment of the Full Bench of the High Court of Punjab and Haryana.
Both the appeals question the decision of the High Court one by the Judicial Officer and the other by the State Government.
The appellant in Civil Appeal No. 908 of 1975 (hereinaf ter to be referred to as the officer) was originally a member of the Punjab Civil Service (Judicial Branch).
He was appointed as a Subordinate Judge, IV Class, on February 27, 1956.
Thereafter he was promoted as a SubJudge, First Class, and was duly confirmed.
While, as a Subordinate Judge cum Magistrate First Class in Amloh, District Patiala, the Bar Association of Amloh on May 11, 1965, sent a resolu tion to the High Court levelling certain charges against the officer affecting his integrity and impartiality.
The High Court ascertained the facts through a preliminary enquiry held by the District Judge, apparently, ex parte, at this stage.
Thereafter, on the report of the District Judge a regular departmental enquiry was instituted.
The officer was suspended by the Government on June 6, 1966, at the instance of the High Court.
The District Judge, Sangrur, was appointed as the Enquiry Officer on July 21, 1966.
He enquired into the charges levelled against the officer.
The Enquiry Officer submitted his report and found him guilty of all the charges except one.
The High Court agreed with the Enquiry Officer and came to a tentative conclu sive that the officer should be removed from service.
Meanwhile, the services of the officer were allocated to the State of Haryana with effect from November 1, 1966.
428 The High Court recommended to the State Government of Haryana to serve a notice under Article 311(2) of the Con stitution asking the officer to show cause why the penalty of removal from service should not be imposed on him.
This was done by the State Government on March 13, 1967.
The officer submitted his explanation through the High Court on April 20, 1967.
The High Court found the explanation to be unsatisfactory and recommended to the Government that the officer should be removed from service.
The State Government, although on its own showing, "was inclined to agree with the views of the High Court and with the recommendation made by it", however, referred the case to the Haryana Public Service Commission for advice purporting to act under Article 320(3)(c) of the Consti tution.
The Commission advised that no case had been made out against the officer and that he should be exonerated.
The Governor accepted the advice of the Commission and passed the order on August 24, 1968, reinstating the officer in service with immediate effect.
The High Court was re quested by the Government to post the officer on his rein statement.
The High Court did not issue any posting order to the officer as it was of the opinion that the order of the Government was illegal for the vice of consultation with the Public Service Commission and for accepting its advice disregarding the recommendation of the High Court.
The High Court requested the Government to review its order but the Government did not take any action on that suggestion.
Since the High Court refused to pass any posting order notwithstanding his several prayers the officer preferred in the High Court of Punjab and Haryana a petition under Arti cle 226 of the Constitution on July 12, 1971, praying for a writ of mandamus directing the High Court to issue an appro priate order of posting and also for a mandamus directing the Government to disburse full salary to the officer including the salary for the period under suspension and other consequential reliefs.
While the writ petition was pending before the Full Bench, the Governor, accepting the recommendation of the High Court, passed an order on December 16, 1974, issuing three months ' notice of compulsory retirement to the officer and the officer thus retired on March 18, 1975, after at taining the age of 55 under the service Rules.
The officer challenged the notice of retirement by way of a writ petition in the High Court on March 10, 1975.
The same was, however, withdrawn by the officer on March 13, 1975, on which date judgment of the Full Bench was delivered in the other writ application out of which the present appeals have arisen.
The officer, however, later on filed a writ petition No. 747 of 1975 in this Court against the order of compulsory retirement and he was allowed by us to withdraw the same on July 30, 1976.
The ' retirement of the officer is, 'there fore, not in dispute.
429 The High Court by a majority of four learned Judges held as follows : (1)"Since the impugned order, exonerating the petitioner from all charges and reinstating him, was not passed in accordance with the mandatory provision of the Constitution embodied in Article 235 of the Constitution, order is void and non est being ultra vires Article 235 of the Constitution and the High Court was right in not giving effect to it".
They also observed that any recommendation made by the High Court in exercise of power under Article 235 must be held to be binding on the Governor.
(2) "Since the Public Service Commission was an extraneous body and could not be consulted and was able to influence the decision of the punishing authority, the order suffers from a grave constitu tional infirmity and is, therefore, liable to be declared ultra vires Article 235 of the Constitu tion and hence void and non est on this ground too.
The High Court was, therefore, right in disregarding that order and not implementing it by giving the posting orders to the petitioner".
The fifth learned Judge (Gujral, J.) did not agree with the majority with regard to the conclusion on the aforemen tioned first point.
He, however, agreed with the majority with regard to the second point and also agreed with the final decision.
The High Court dismissed the officer 's writ application under Article 226 and held that he could not claim any relief on the basis of the order of reinstatement of the Governor of August 24, 1968.
The High Court further held that the dismissal of the petition would "not bar the State Government from passing an order against the petition er in accordance with the recommendation of the High Court completely ignoring and keeping out of consideration the advice tendered by the Public Service Commission".
Firstly, the appellants contend that the Governor being the appointing authority is not bound to accept the recom mendation of the High Court and the order of reinstatement is well within his powers under Article 311 read with the Rules for Appointment of Subordinate Judges in Haryana and the Punjab Civil Service (Punishment and Appeal) Rules, 1952, and is perfectly valid.
Secondly, they contend that the Governor is entitled under Article 320(3)(c) of the Constitution to consult the Public Service Commission with regard to the matter in question arising out of a disci plinary proceeding.
Thirdly, it is contended on behalf of the officer that in view of the fact that he was ultimately compulsorily retired on the recommendation of the High Court and the order of suspension merged with the order of rein statement it is no longer possible for the Governor to pass the order of removal of a person who has already retired from service.
it is submitted that m that view of the matter the writ application had become infructuous.
and even the High Court 430 need not have decided the writ application.
It is, there fore, submitted on behalf of the officer that since on his reinstatement the order of suspension lapsed and he had retired, he would be entitled to his full salary during the entire period of suspension upto the date of his retirement.
On behalf of the High Court it is submitted that under Article 235 of the Constitution the sole and exclusive disciplinary control over the subordinate judiciary being vested in the High Court the High Court 's recommendation is binding on the Governor and the Governor ought to have accepted the recommendation and passed an order of removal of the officer.
It is further submitted that the order of reinstatement passed by the Governor after consulting the Public Service Commission is absolutely void and ultra vires.
The controversies, such as we have to deal with, have raised their unpicturesque heads from time to time.
We are, therefore, not required to write on a clean slate on this subject.
Even so, one aspect of the matter, viz., that relating to the consultation with the Public Service Commis sion by the Governor with regard to judicial officers ' misconduct assumes a great importance in this case in a manner that has not arisen earlier before this Court.
The controversy in these appeals is rather disquieting.
In view of several decisions of this Court wherein different facets of like problems were noticed and resolved one would have thought that a healthy convention has grown and taken firm roots by now in fulfilment of one of the cherished Directive Principles of the Constitution in Article 5 which is based on the bed rock of the principle of independence of the judiciary.
Here, the High Court, after a full enquiry, which has not been questioned at any stage, came to the conclusion that the charges of misconduct of a judicial officer were established and that the officer was of dubious integrity.
Who else but the High Court, in such a situation, is better posted to determine the issue and advise the Governor ? Yet, the stark reality is that the High Court 's recommendation was given a go by and the Commission 's contrary advice was preferred by the Governor.
Time and again this Court has been observing hopefully that it will be in the best interest of a high and healthy tradition for the Governor to ordinarily accept the recommendation of the High Court in a disciplinary matter concerning judicial officers ! We are concerned in these appeals with regard to a disciplinary proceeding in respect of a Subordinate Judge and hence falling within the purview of Article 235 of the Constitution.
That Article reads as follows : article 235.
"The control over district courts and courts subordinate thereto including the posting and promotion d, and the grant of leave W, persons belonging to the judicial service of a State and holding any post inferior to the post 431 of district Judge shall be vested in the High Court, but nothing in this article shall be con strued as talking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him other, vise than in accordance with the conditions of his service prescribed under such law".
In The State of West Bengal vs Nripendra Nath Bachi(1) this Court in an elaborate judgment went into the history of Articles 233 to 237 of the Constitution.
This Court held: "The word 'control ' as we have seen, was used for the first time in the Constitution and it is accom panied by the word 'vest ' which is a strong word.
It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge".
Dealing with the argument based on Article 311 this Court further observed in the above case as follows : "There is, therefore, nothing in article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power m it.
In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismiss al or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by el.
(2) of article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.
The High Court alone could have held the enquiry in this case.
To hold other wise will be to reverse the policy which has moved determinedly in this direction".
Article 235 makes reference to the conditions of service which are prescribed under Article 309 of the Constitution.
The Punjab Civil Services (Punishment and Appeal) Rules, 1952 (hereinafter to he referred to as the Punishment Rules), were made by the Governor of Punjab in exercise of the powers conferred under Article 309 of the Constitution.
The judicial officers also hold posts in connect;on with the affairs of the State and the rules made under Article 309 so far as applicable, would govern their conditions of service.
There are also the Rules relating to the Appointment of Subordinate Judges in (1) ; 432 Haryana (hereinafter to be referred to as the Appointment Rules) which were promulgated by the Governor in exercise of the powers conferred by Article 234 read wire proviso to Article 309 of the Constitution.
These Rules were made by the Governor after consultation with the State Public Serv ice Commission and with the High Court.
Under rule 14, Part F of the Appointment Rules relating to Discipline, Penalties and Appeals, it is provided as follows : "In matters relating to discipline, penalties and appeal including orders specified in Appendix B, members of the Service shall be governed by 'The Punjab Civil Services (Punishment and Appeal) Rules, 1952 ' as amended from time to time.
Provided that the nature of penalties which may be inflicted, the authority empowered to impose such penalties or pass such orders and the appel late authority shall be as specified in Appendices 'A ' and 'B ' below : " In Appendix 'A ' it is provided in item (f) that the punish ing authority in case of removal from the service which does not disqualify from future employment is the "Government" and there is no appeal therefrom.
In item (g) of Appendix 'A ' dismissal is also provided for in similar terms.
In Appendix 'B ' the authority competent to pass an order of termination of the service of a Subordinate Judge is the "Government" and there is no appeal against such an order.
It will be seen that under rule 14 of the Appointment Rules of the Subordinate Judges, the Punishment Rules are being made applicable to the Subordinate Judges.
Under rule 4(vi) of the Punishment Rules read with Appendix 'A ' of Part (F) of the Appointment Rules.
the competent authority to remove a Subordinate Judge from service is the ,Government".
It was, therefore, appropriate that the High Court, after close, of the departmental en quiry, when it was satisfied that the officer was guilty of misconduct deserving removal from service, recommended to the Governor for his removal.
Upto this stage there was no difficulty.
Trouble arose when the Government, although on its own showing, was inclined to agree with the High Court thought it proper to obtain the advice of the Public Service Commission as is usually done in the case of other civil servants.
As stated earlier, the Commission tendered its advice contrary to the recommendation of the High Court and held the opinion that the officer should be exonerated from the charges.
The Government accepted the advice of the Commission and reinstated the officer which resulted in refusal to accept the recommendation of the High Court.
In the above premises the questions that are raised .are (1) Whether the Governor is bound under the Constitution to accept the recommendation of the High Court and to pass an order of removal of the judicial officer.
433 (2) Whether consultation with the Public Service Commission in a matter of a disciplinary proceeding relating to the judicial officer under the control of the High Court is unconstitutional.
Is the order of reinstatement passed by the Government constitutionally valid ? (3) If not, what will be the position of the officer on the date of the officer 's compulsory retirement ? Is an order of removal possible after that date ? There is no dispute that the appointing authority of a Subordinate Judge under Article 235 as well as under the Appointment Rules is the Governor.
Under Article 235 itself the Subordinate Judge will be governed by the Appointment Rules made under Article 234 read with Article 309.
The Appointment Rules by reference, bring in the Punishment Rules whereby the punishing authority for removal is the "Government" mentioned in the former Rules.
With regard to the first question the appellants submit that the Governor being the appointing authority both under Article 235 and the Appointment Rules read with the Punish ment Rules, is the final authority to pass the order of removal of the officer and is not under any constitutional obligation to be bound by the recommendation of the High Court.
They rely upon Article 311 of the Constitution read with the aforementioned service Rules and submit that the control of the High Court under Article 235 does not impinge upon the power of the Governor to refuse to accept the recommendation of the High Court and to pass an appropriate order.
The learned counsel for the High Court, on the other hand, submits that Article 235 of the Constitution leaves no option to the Governor to refuse to accept its recommenda tion in a disciplinary matter in respect of a judicial officer.
He draws our attention to a very recent decision of this Court in State of Haryana vs Inder Prakash Artand H.C.S. and Others(1) to support his submission.
He particu larly relies upon paragraph 18 of that decision which reads: "The control vested in the High Court is that if the High Court is of opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment.
In such cases it is the contemplation in the Constitution that the Governor as the Head of the State will act in harmony with the recommen dation of the High Court.
If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate.
It is in public interest that the State will accept the recommendation of the High Court.
The vesting of complete control over the subordinate judiciary in the High Court leads to this that the decision of the High Court in matters within its (1) [1976] supp.
S.C.R. 603.
434 jurisdiction will bind the State. 'The Governor will act on the recommendation of the High Court.
That is the broad basis of Article 235.
(See Shamsher Singh & Anr.
vs State of Punjab at page 841)".(1) It is pointed out by the appellants that in Inder Pra kash Anand 's case (supra) the question was whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under the Punjab Civil Services Rules against the recommendation of the High Court and that it was not a case relating to dismissal or removal on the disciplinary side.
Though the question involved in I.P. Anand 's case related to a different matter the above quoted observations of this Court, useful for all occasions, have, hopefully, a wider cast and their significance can be overlooked only at some peril of the desideratum nurtured in the Constitution.
The High Court, in making its recommendation to the Governor for passing the order of removal, has rightly conceded the authority of the Governor to pass the same.
The question is: Is the recommendation of the High Court binding on the Governor ? Since the Governor is the ultimate authority to pass the order of removal it will not be cor rect always to insist that he has no authority even under certain extraordinary circumstances to decline to accept forthwith, the particular recommendation.
Ordinarily and as a matter of graceful routine, recommendations of the High Court are and should be always accepted by the Governor.
That is ordinarily so and should be in practice the rule as a matter of healthy convention.
Articles 233 to 237 relating to the subordinate judici ary are specially carved out and placed in the safe niche of a separate chapter, Chapter VI in Part VI of the Constitu tion under sub title 'Subordinate Courts '.
This by itself is significant.
It is a major breakthrough in the Constitu tion from the position under the Government of India Act 1935 so far as the subordinate judiciary is concerned and clearly unfolds the keen awareness of the rounding fathers in what has been a passionate and raging topic with regard to independence of the judiciary all through, over the years.
For the first time, in the country 's history, appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts.
The quality of exclusive control of the High Court does not appear to be whittled by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration.
When, therefore, the High Court exercising disciplinary control over the subordinate judiciary finds.
after a proper enquiry, that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and, therefore, recommends to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice (1) ; 435 of the council of ministers or, as is usually the case, of one of the ministers.
It is in this context that this Court has more than once observed that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor.
This is the inner significance of the constitutional provisions relating to the subordinate judiciary.
Whenever in an extraordinary case, rare in itself, the Governor feels, for certain reasons, that he is unable to accept the High Court 's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
It is, however, inconceivable that, without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court.
That will be contrary to the contempla tion in the Constitution and should not take place.
It is not necessary to pursue the matter in further depth as sought to be canvassed by the parties taking ex treme stances in the view taken by us on the second ques tion.
With regard to the second submission we are clearly of opinion that consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer is not warranted by the provisions of Article 235.
It is true that under Article 235 as well as under the Appointment and Punishment Rules the Governor is the ap pointing and punishing authority.
But under Article 235 the High Court is the sole custodian over the discipline of the judicial officers.
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer.
It is submitted on behalf of the appellants that Article 320(3)(c) provides that the Public Service Commission shall be consulted on all disci plinary matters affecting a person serving under the Govern ment of a State in a civil capacity.
Judicial Officers although holding posts in civil capacity are not serving under the Government of a State.
They hold posts in connec tion with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of con trol and discipline.
There is, therefore, no constitution al justification or sanction for the Governor, even if he wishes, to consult the Public Service Commission under Article 320 (3) (c) in respect of judicial officers.
Con sultation with the Public Service Commission in this case and preference accorded to its advice ignoring the recommen dation of the High Court have introduced a serious consti tutional infirmity in the final order of reinstatement passed by the Governor.
The appellants drew our attention to a decision of this Court in Pradvat Kumar Bose vs The Hon 'ble The Chief Justice of Calcutta High Court(1) where this Court had to deal with one of the arguments founded on Article 320(3)(c) of the Constitution.
In the above decision Pradyat Kumar Bose, who was Registrar and Accountant General of the High Court on its original side and who was the (1) [1955]2 S.C.R. 1331.
436 appointee of the Chief Justice, was dismissed by the Chief Justice after a full and thorough enquiry held by one of the Judges of the High Court whose findings were accepted by the Chief Justice.
Inter alia, it was contended before this Court that the order of dismissal by the Chief Justice was vitiated as the Chief Justice did not consult the State Public Service Commission prior to dismissal of the Regis trar as provided for under Article 320(3)(c).
This Court repelled the contention holding that Article 320(3)(c) was contrary to the implications of Article 229 and the language thereof was also not applicable to the High Court staff since the members of the High Court staff did not serve under the Government of the Union or of the State.
It is submitted by the appellants that this court held that Article 320(3) (e) was not applicable since the Chief Justice was the sole appointing and punishing authority so far as the High Court staff was concerned under Article 229 of the Constitution.
On a parity of reasoning it is con tended by the appellants that since the Governor is the sole appointing and punishing authority under the Appointment and Punishment Rules, Article 320(3)(c) is, therefore, clearly attracted, since, according to them, if Article 229 were not there the matter would have been considered by this Court in a different light.
We are unable to accept this submission since, as we have pointed out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the State Government.
The appellants also relied upon a decision 01 this Court in The High Court, Calcutta vs Amal Kumar Roy(1).
In this case also a submission was made in this Court that the High Court should have consulted the State Public Service Commission in superseding seniority of a Munsif as a result of his exclusion from consideration for promotion in a particular year which resulted in his loss of eight places in the cadre of Subordinate Judges at the time he was actu ally appointed to act as an Additional Subordinate Judge.
The particular officer 's case in substance was that this exclusion by the High Court amounted in law to the penalty of "withholding of promotion".
It was contended that the High Court should have consulted the State Public Service Commission since article 320(3)(c) contemplated disciplinary matters.
This Court disposed of this submission by holding that losing places in a rank was not 'reduction in rank ' and that no disciplinary proceedings had been started against the particular officer and hence there could be no occasion for the State Public Service Commission being consulted.
It is submitted by the appellants that this Court did not reject the submission based on Article 320(3)(c), out of hand, holding that the Article was not applicable.
It is true that the aforesaid submission was disposed of in this particular manner by this Court in the above decision.
That however, does not mean that this Court categorically held Article 320(3)(c) was attracted in the case of judicial officers.
The question did not arise in that form.
(1) [1963] 1 S.C.R.437.
437 The matter should not be considered from the angle of supremacy of one organ over the other.
That will be an entirely erroneous approach.
The Constitution reposes certain power in the Governor even under Article 235.
He is the authority to pass the order of removal, albeit, on the recommendation of the High Court.
That is the constitution al scheme.
The Governor, however, cannot pass any order, as has been done in this case, without reference to the High Court and except on its recommendation.
Solution must be found in harmony and not in cold war between the two organs.
The Governor could not have passed any order on the advice of the Public Service Commission in this case.
The advice Should be no other authority than the High Court in the matter of judicial officers.
This is the plain implication of Article 235.
Article 320 (3) (c) is entirely out of place so far as the High Court is concerned dealing with judicial officers.
To give any other interpretation to Article 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intend ed for protection of the judicial officers and necessarily the independence of the subordinate judiciary.
It is abso lutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it.
There is no room for any outside body between the Governor and the High Court.
The Governor in relying upon the advice of the Public Service Commission in this case took alien considerations into account and acted erroneously in passing the order of reinstatement based on the same.
The order of the Governor is, therefore, constitutionally invalid and is liable to be quashed and we order accordingly.
That brings us to the third submission of the appellants.
At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired.
We, however, find that even in the writ application there was a prayer for a mandamus to the Govern ment to disburse the officer 's full salary during the entire period of suspension upto the date of his retirement.
The learned counsel for the officer has also argued the matter fully before us.
We would, therefore, deal with the same.
Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order.
It is undisputed that he had been under suspension during that period.
It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension.
It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case of reinstatement.
438 We are, however, unable to accept this submission.
The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely dif ferent.
Suspension is a step to dismissal and may culminate in dismissal.
When an officer is suspended no work is taken from him but he does not cease to be in service.
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal.
Nothing re mains to be done about his suspension.
When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect.
The suspended officer, on reinstatement, goes back to serv ice.
A further order may have to be passed by the authority as to in what manner the period of suspension will be treat ed.
That will be, therefore, a distinct and separate pro ceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed.
If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension.
There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer.
In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on the recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement.
The officer in this case was, there fore, compulsorily retired while he was under suspension from service.
It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter.
It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the pur pose of removal of the officer.
We, however, do not fail to see that the Government, on its own.
was inclined to accept the recommendation of the High Court at the initial stage.
In the result the appeals are dismissed and the order of reinstatement of the officer passed by the Governor stands quashed for the reasons given in this judgment.
There will be no order as to costs.

dataset_name: IN-Abs

summary:
The appellant was a member of the Subordinate Judicial Service of the State.
On receipt of certain allegations the High Court made a preliminary enquiry and the State Govern ment suspended him from service.
After the final enquiry the High Court recommended to the State Government to remove him from service.
The State Public Service Commission, on reference by the Government, stated that he should be exon erated.
On the basis of this recommendation, the Governor ordered the appellant 's reinstatement; but the High Court did not give him a posting on the view that the order of the Governor was illegal because of consultation with the Serv ice Commission and in accepting its advice, disregarding the High Court 's own recommendation.
The High Court, therefore, suggested to the Government to review its order of rein statement, but the Government did not take any action.
The appellant then filed a writ petition in the High Court challenging its refusal to give him a posting.
In the mean time the Governor compulsorily retired the appellant from service on his attaining 55 years of age.
Dismissing the writ petition the High Court held that the Governor 's order ;reinstating the appellant was void and non est because: (i) it was not passed in accordance with the provisions of article 235 of the Constitution and (ii) the Government could not have consulted the Public Service Commission which was an extraneous body.
In appeal to this Court it was contended for the appellant that (i) the Governor was not bound by the recom mendation of the High Court; (ii) the Governor was entitled under article 320(3)(c) to consult the Public Service Commis sion on the question arising out of a disciplinary proceed ing; and (iii) since the appellant was later compulsorily retired, the order of suspension merged with the order of reinstatement, and since no other order of suspension was passed thereafter, he was entitled to full salary upto the date of his compulsory retirement.
Dismissing the appeal, HELD: (1)(a) Articles 233 to 237 relating to the subor dinate judiciary are specially carved out and placed in the safe niche of a separate chapter.
For the first time in the country 's history appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts.
But the appointing authority of a Subordinate Judge under article 235 as well as under the Appointment Rules, is the Governor.
The High Court, in making its recommenda tion to the Governor for passing the order of removal, had rightly conceded the authority of the Governor.
Ordinarily and as a matter of graceful routine, recommendations of the High Court are and should always be accepted by the Gover nor.
This is ordinarily so and should be in practice the rule as a matter of healthy convention.
But it will not be correct always to insist that the Governor has no authority even under extraordinary circumstances to send the matter for reconsideration.
(b) The quality of exclusive control of the High Court is not whittled down by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration.
When, therefore.
the High Court, exercising disciplinary control, over the subordinate judiciary found, after a proper enquiry, that a certain officer was guilty of gross misconduct and was unworthy to be retained in judicial service and, therefore, recommended to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommenda tion could be rejected by the Governor acting with the aid and advice of ministers or, of one of them.
[434 G H] The State of West Bengal vs Nripendra Nath Bagchi ; ; and State of Haryana vs Inder Prakash Anand H.C.S., and others [1976] Supp.
S.C.R. 603.
referred to.
(c) Whenever in an extraordinary ease, the Governor feels, for certain reasons, that he is unable to accept the High Court 's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer.
The Governor could not have passed any order on the advice of the Public Service Commission in this case.
The advice should be of no other authority than the High Court in the matter of judicial officers.
This is the plain impli cation of Article 235.
There is no room for any outside body between the Governor and the High Court.
In relying upon the advice of the Commission the Governor took alien considerations into account and acted erroneously in passing the order of reinstatement.
[435 B, E F] Consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer was not warranted by the provisions of article 235.
Under the Constitution the High Court is the sole custodian over the discipline of judicial officers.
[435 D] (2) (a) Just as the High Court staff are not serving under the Government of the State, the judicial officers are also not under the State Government.
They hold posts in connection with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of control and discipline.
article 320(3)(c) is entirely out of place so far as the High Court is concerned dealing with judicial officers.
D] Pradvat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; and The High Court, Calcutta vs Amal Kumar Roy [1963]1 SCR 437 distinguished and held inapplicable.
(b) The Governor cannot pass any order without reference to the High Court and except on its recommendation.
The matter should not be considered from the angle of supremacy between one organ over the other.
Solution must be found in harmony and not in cold war between the two organs.
[437 A B] (3) The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different.
Suspension is a step to dismissal and may culminate in dismissal.
When an officer is suspended no work is taken from him but he does not cease to be in serv ice.
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal.
When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect.
The suspended officer, on rein statement, goes back to service.
A further order may have to be passed by the authority as to in what manner the period of suspension will be treated.
That will be there fore a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of rein statement was passed.
If the order of reinstatement is set aside the officer is bound to revert to his immediate ante rior status of suspension in the absence of any order in that behalf from the Court.
[438 A C] In the instant case since the order of reinstatement stood quashed, the appellant would have the status of a suspended officer on the date of his compulsory retirement.
It is not for this Court to say whether he would be entitled to his 427 full salary while on suspension.
Since the officer had already retired, it is not necessary for the Governor to consider the recommendation of the High Court for the pur pose of his removal.
[438 E F]


judgement:
Appeal No. 1367 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 25 3 1965 of the Kerala High Court in A.S. No. 487 of 1961).
S.V. Gupte and K.M.K. Nair, for the appellant.
Mrs. Shyamla Pappu, B.B. Sawhney, Raju Ramachandran and Girish Chandra, for the respondent.
420 The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave by the State of Kerala is against the Full Bench decision of the Kerala High Court affirming on appeal the judgment and decree of the trial court whereby the suit for recovery of Rs. 28,208.70 filed by the appellant against the General Manager, Southern Railway respondent was dismissed.
The appellant booked 2,000 tons of rice in 21,310 bags from Bareilli railway station for being transported to Trivandrum central railway station as per 10 railway re ceipts during the period from June 25 to July 5, 1950.
According to the case of the appellant, the rice delivered at Trivandrum central railway station was short by 79,378 lbs.
It was also averred that the rice in 327 bags was found to be damaged.
The appellants accordingly claimed Rs. 28,208.70 as damages from the respondent.
The respondent resisted the claim of the appellant, inter alia, on the ground that the suit was not maintainable as the Union of India had not been impleaded as a defendant to the suit and that a suit by a State against the Union of India could be instituted only in the Supreme Court of India under article 131 of the Constitution.
It is not necessary to set out the other pleas of the respondent.
As many as nine issues were framed by the trial court.
Two of the issues, namely, issue Nos. 1 and 3, were treated as prelimi nary issues and arguments were heard on those issues.
Issue Nos. 1 and 3 read as under: "1.
Is the suit maintainable ? Can a decree be passed against the defendant as now impleaded ? 2.
Will the suit lie in this Court ? Is the suit barred by the provisions of the Constitution of India ?" On issue No. 3 it was held by the trial court that since the Union of India had not been made a party to the suit, clause (a) of article 31 of the Constitution had no application.
The suit was accordingly held to be not liable to be dis missed on that ground.
On issue No. 1 the trial court held that the Union of India was a necessary party to the suit and as the Union of India had not been impleaded as a party, the suit was incompetent.
As a result of its find ings on issue No. 1 the trial court dismissed the suit.
The decision of the trial court on issue No. 1 was affirmed in appeal by the High Court.
An application was also filed at the hearing of the appeal before the High Court for implead ing the Union of India as a party to the suit.
The High Court rejected that application on the ground that no useful purpose would be served by allowing that application.
It was observed that if the application was allowed and the Union of India was made a party, the suit would have to be dismissed as under article 131(a) of the Constitution a suit by one State against the Union of India could only lie in the Supreme Court.
In the result, the High Court dismissed the appeal filed by the appellant.
In appeal before us Mr. Gupte on behalf of the appel lant has invited our attention to the definition of "railway administration" in 421 section 3(6) of the Indian Railways Act, 1890 (Act 9 of 1890) (hereinafter referred to as the Act) which reads as under: "railway administration or 'administration ' in the case of a railway administered by the Government means the Manager of the railway and includes the Government and, in the case of a railway adminis tered by a railway company, means the railway company," He has further referred to sections 72, 74, 76 and 80 of the Act.
According to section 72, the responsibility of a railway administration for the loss, destruction or dete rioration of animals or goods delivered to the administra tion to be carried by railway shall, subject to other provi sions of the Act, be that of a bailee under sections 151, 152 and 161 of the .
Section 74 absolves the railway administration of any responsibility for the loss, destruction or deterioration of any luggage belonging to or in charge of a passenger unless a railway servant has hooked and given a receipt therefor.
Section 76 deals with burden of proof in suits for compensation against a railway administration for any delay, loss, destruction, deterioration or damage.
Section 80 at the relevant time read as under: "80.
Suits for compensation for injury to throughbooked traffic.
Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, de struction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railway of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his tick et, or to which the animals or goods were deliv ered by the consignor thereof, as the case may be, or against the railway administration on whose railway the loss, injury, destruction or deteriora tion occurred.
" It is urged by Mr. Gupte that as, according to section 3 (6) of the Act, railway administration means a Manager of the railway and as some of the sections 72 to 80 make ex press reference to suits against railway administration, a suit against the General Manager of the railway concerned is competent.
The trial court and the High Court, according to the learned counsel, were in error in holding that the suit was not maintainable because of the Union of India having not been impleaded as a party to the suit.
The above argument has the quality of being ingenious, attractive and not lacking in apparent plausibility.
A closer examination, however, reveals its infirmity and after giving the matter our earnest 422 consideration, we find it difficult to accept it.
The Act deals with and specifies, inter alia, the rights and liabil ities which arise in case the goods consigned to the rail ways are not delivered to the consignee.
It likewise deals with short delivery of those goods as well as the cases in which the goods get damaged during transit.
Most of the railways in India are owned by the Union of India, but there were some minor railways which till recently were owned by railway companies.
The definition of "railway administra tion" as given in section 3(6) is comprehensive and deals with both types of railways.
i.e., railways administered by the Government as well as those administered by railway companies.
The words "railway administration" have been used in sections 72 to 80 because those sections pertain to rights and liabilities of the parties in both types of cases, i.e., cases where liability is incurred by Government administered railways as well as cases in which liability is incurred by railway administered by railway company.
The Act, however, does not deal with, the question as to who should be impleaded as a defendant when a suit is brought against the railway.
administration.
This is essentially a matter relating to the frame of suits, and is dealt with by the Code of Civil Procedure.
According to section 79 of the Code, in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State.
This section is in accordance with article 300 of the Constitu tion, according to which the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State.
It is not disputed that Southern Railway is owned by the Union of India.
As such, a suit dealing with the alleged liabili ty of that railway should have been brought against the Union of India.
Section 80 of the Code of Civil Procedure provides inter alia that no suit shall be instituted against the Government until the expiration of two months next after the notice in writing has been delivered to or left at the office of, in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway.
The above provision clearly contemplates institution of a suit against the Central Government even though it relates to a railway.
A suit against the Central Government in terms of section 79 of the Code would necessarily have to be brought against the Union of India.
The Act no doubt makes provision for the liability of the railway administration, but from that it does not follow that the railway administration is a separate legal entity having a juristic personality capable of being sued as such.
The definition of "railway administration" in section 3(6) of the Act that it would mean the Manager of the railway does not warrant the inference that a suit against the railway administration can be brought against the Manager of that railway.
We have to bear in mind the distinction between the owner of the railway, namely, the Union of India, and the authority which actually runs the railway and to whom duties have been assigned for 423 this purpose by the Act.
The manager of the railway under the Act is such authority.
When, however, liability is sought to be fastened on the railway administration and a suit is brought against it on that account, the suit, in our opinion, would have to be brought against the Union of India because it is the Union who owns the railway and who would have the funds to satisfy the claim in case decree is awarded in such suit.
The scheme of the Act, even though there are now hardly any company owned railways in India, is to treat different railway administrations as different units, although all of them may be owned by the Union of India.
Neither the defi nition of the "railway administration" in section 3(6) of the Act nor the language of sections 72 to 80 of the Act lends support for the view that the railway administrations are to be treated as separate personalities, entities or separate juridical persons as seems to have been observed in the case of Dominion India vs Firm Museram Kishunprasad(1).
Yet the treatment of the different railway administrations as different units for the purpose of fastening liability on the Union of India has got significance and relevance.
Viewed in that light, it would follow that the definition of the "railway administration" given in section 3(6) of the Act does not make the railway administration or its General Manager a legal entity or a corporate body or a juridical person to represent the railway administration as such in suits.
The claim in a suit for recovery of money under the Act against the different railway administrations owned by the Central Government in accordance with the general prin ciple of law contained in Order 1 Rule 3 of the Code of Civil Procedure has got to be made against the person against whom the right to relief is alleged to exist.
The significance of creating the various railway administra tions as separate units, even though they may be State owned, is to be found in section 80 of the Act, and section 80 of the Code of Civil Procedure.
For claiming a decree against the Union of India under the Act the plain tiff has got to specify the railway administration or admin istrations on account of which liability is sought to be fastened upon the Union of India, as contemplated by section 80 of the Act.
The institution of the suit has to be preced ed by service of notice under section 77 of the Act and section 80 of the Code to the appropriate authority which is the General Manager of the railway concerned.
The require ment of clause (b) of section 80 of the Code that a notice in the case of a suit against the Central Government where it relates to a railway must go to the General Manager of the concerned railway or railways is also based upon the assumption that it is primarily the liability of the railway administration of the said railway or railways to satisfy the claim of the suitor in accordance with section 80 of the Act.
The demarcation of the different State owned railways as distinct units for administrative and fiscal purposes cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.
(1) A.I.R. (1950) Nagpur 85.
11 1104SCI/76 424 The Bombay High Court in two cases, Sukhanand Shamlal vs Oud, h & Rohilkhand Railway(1) and Hirachand Succaram Gandhy & Ors.
G.I.P. Railway Co.(2) has held that a suit against a State railway should be brought against the Government.
Similar view was pressed by Patna High Court in Shaikh Elahi Bakhsh vs
E.I. Railway, Administration(3) and a Full Bench of Assam High Court in the case Chandra Mohan Saha & ,Anr.
vs Union of India & Anr.(4) The observations of a Division Bench of the Madras High Court in the case of P.R. Nara yanaswami lyer & Ors.
vs Union of India(5) also lend support to the above view.
It may be stated that the reasoning employed in the eases mentioned above was different and not identical, but whatever might be the nature of that reason ing the fact remains that the learned Judges deciding those cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India.
Any contrary view would be against the well established practice and procedure of law, as evidenced by various decisions of the High Courts, and as such, must be rejected.
Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint.
We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted.
The appeal consequently fails and is dismissed but in the circumstances without costs.
M R. Appeal dismissed.
(1) A.I.R. 1924 Bombay 306.
(2) A.I.R. 1928 Bombay 421.
(3) A I.R. 1931 Patna 326.
(4) (5) A.I.R. 1960 Madras 58.

summary:
The appellant booked rice for being transported by train, from Bareilly railway station to Trivandrum railway station.
On delivery, the rice was found to be damaged and short in quantity.
The appellant claimed damages from the respondent, who resisted the claim on the grounds that the suit was not maintainable as the Union of India had not been impleaded as a defendant, and that a suit by a State against the Union of India could only be instituted in the Supreme Court under article 131 of the Constitution.
The suit was dismissed by the Trial Court, and an appeal from it was dismissed by the High Court.
Dismissing the appeal, the Court, HELD: The Southern Railway is owned by the Union of India.
As such, a suit dealing with the alleged liability of that railway should have been brought against the Union of India.
Section 80 of the C.P.C. contemplates institution of a suit against the Central Government even though it relates to a railway.
[422 E FI] Sukhanand Shamlal vs Oudh Rohilkhand Railway AIR 1924, Born.
306; Hirachand Succaram Gandhy & Ors.
G.I.P. Rail way Co., AIR 1928 Born.
421; Shaikh Elahi Bakhsh vs
E.I. Railway Administration, AIR 1941 Patna 326: Chandra Mohan Saha & Ant.
vs Union of India & Anr.
and P.R. Narayanaswami lyer & Ors.
vs Union of India AIR 1960 Madras 58, Approved.
(2) Neither the definition of the "railway administra tion" in Section 3(6) of the Indian Railways Act, nor the language of sections 72 to 80 of the Act, lends support for the view that the railway administrations are to be treated as separate personalities, entries or separate juridical persons.
[423 B C] Dominion of India vs Firm Musaram Kishunprasad AIR 1950 Nagpur 85.
overruled.
(3) The demarcation of the different State owned rail ways as distinct units for administrative and fiscal pur poses cannot have the effect of conferring the status of juridical person upon the respective railway administrations or their General Managers for the purpose of civil suits.


judgement:
Appeal No. 874 of 1975.
Appeal by Special Leave from the Judgment and Order dated 5 3 75 of the Rajasthan High Court in D.B. Civil Appeal No. 18 of 1975.
M.C. Bhandare, S.M. Jain, S.K. Jain and Mohd. Fasiuddin, for the Appellant.
P.C. Bhartari, for Respondent No. 3.
K.J. John, for Respondent No. 4.
The Judgment of the Court was delivered by GOSWAMI, J.
The appellant and the respondents 3 and 4 were the former existing stage carriage operators of Jaipur Sainthal route which was nationalised on January 25, 1973.
All of them applied for the grant of non temporary stage carriage permits of Jaipur Padampura route as alterna tive route permits.
The Regional Transport Authority, Jaipur (briefly the RTA) by it 's order of July 22, 1974, granted nontemporary permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3.
That led to an appeal to the State Transport AppeLlate Tribunal at Jaipur, Rajasthan, by respondent 460 No. 3.
The notice of appeal was served upon the appellant but since he did not appear the appeal was heard ex parte and by its order dated December 17, 1974, the State Trans port Appellate Tribunal set aside the order of the RTA and granted the permit in favour of respondent No. 3.
The appellant filed a writ application under Article 226 of the Constitution before the Rajasthan High Court and the learned single Judge by a rather long speaking order dismissed the same summarily.
A further appeal by the appellant to the Division Bench met with the same fate.
The High Court also refused to grant certificate to appeal to this Court.
Hence this appeal by special leave.
Mr. Bhandare, the learned counsel on behalf of the appellant, submits that the order of the State Transport Appellate Tribunal (briefly the Tribunal) is invalid inas much as the appeal was heard in the absence of a proper notice of appeal as required under the law.
He draws our attention to rule 108(c) of the Rajasthan Motor Vehicles Rules.
1951, which reads as follows : "Upon receipt of an appeal preferred in accordance with sub rule (b) the Appellate Tribunal may appoint a date, time and place for hearing of the Appeal, giving the State Transport Authority, or the Regional Transport Authority, as the case may be, and the appellant.
not less than thirty days notice thereof".
Although the above rule does not contain any provision for service of notice on the respondent, it is, however, implic it that a notice similar to one intended under the rule for service on the appellant must also be served on the respondent.
Mr. Bhandare could not dispute the factual service of notice on the appellant in view of the Tribunal 's finding.
He however, submits that the notice which was served on the appellant did not recite the place for the hearing of the appeal although the date and time were noted therein.
It is true that the Tribunal could not, in law, hear the appeal without intimating the respondent.
about the date, time and place for hearing of the appeal but since the appellant had received the notice from the Tribunal indicat ing the date and time for hearing of the appeal, the omis sion in the notice to describe the place where the appeal is to be heard is not fatal enough to make the appeal proceed ing invalid before the Tribunal.
The appellant, admittedly, is a resident of Jaipur where also the office of the Tribu nal is situated.
He was also a stage carriage permit holder and not a stranger to the office of the Transport Authori ties.
Besides, although the notice of the appeal fixed the date of hearing on October 8, 1974, the appeal was adjourned on that day to October 21, 1974 and again to November 12, 1974 and it was only on December 12, 1974 that the final hearing of the appeal took place.
It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advan tage of the mere omission of the place of hearing of the appeal in the notice.
Besides, the RTA was present as provided for under section 64(1) of the (briefly the Act) before the Tribunal to defend its own order.
The submission of the appellant is, therefore, of no avail.
461 Mr. Bhandare next submits that the Tribunal failed to comply with section 47 of the Act and did not at all consid er the relevant matters (a) to (f) provided therein.
It is well settled that in considering an application for a stage carriage permit the RTA shall have regard to the matters described in section 47.
Before we go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first in stance, did not make any reference to the relevant consider ations under section 47 of the Act.
The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy".
There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits.
The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such.
For example, the condition of the vehicles of the two parties was duly considered by the Tribunal.
The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3.
This aspect can well arise under clauses (a) and (b) of section 47.
We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal.
The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal.
The second submission of the learned counsel also fails.
In the result the appeal is dismissed but we will make no order as to costs.
P.H.P. Appeal dismissed.

summary:
The appellant and respondents No. 3 and 4 applied for the grant of nontemporary stage carriage permits.
The Regional Transport Authority granted the permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3.
Respondent No. 3 filed an appeal to the State Transport Appellate Tribunal.
The notice of appeal was served upon the appellant where the date and time were mentioned but the place was not mentioned.
Since the appellant did not appear the appeal was heard ex parte.
The Tribunal set aside the order of the Transport Authority and granted the permit in favour of respondent No. 3.
A writ petition filed by the appellant against the order of the Tribunal was dismissed summarily by the learned Single Judge by a long speaking order.
A Division Bench dismissed the appeal filed by the appellant.
In an appeal by Special Leave the appellant contended: 1.
The notice as required by rule 108(c) of the Rajasthan Motor Vehicles Rules, 1951 served on the appellant was not proper notice since it did not mention the place of the hearing of the appeal.
The Tribunal did not consider the relevant matters as mentioned in section 47(a) to (f).
HELD: 1.
The omission to mention the place is not fatal.
The appellant is a resident of Jaipur where also the office of the Tribunal is situated.
He was a Stage Carriage permit holder and not a stranger to the Transport authorities.
In fact, hearing of the appeal was adjourned twice even after the date mentioned in the notice.
[460 F] 2.
The Regional Transport Authority did not make any reference to the relevant considerations under section 47 of the Act.
The Tribunal on the other hand has considered various aspects of the matter as required by section 47 although without a reference to that section.
The Tribunal and the learned Single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal.
[461 B D]