judgement:
ivil Appeal No. 4800 of 1989.
From the Judgment and Order dated 20.3.1987 of the Orissa High Court in Misc.
Appeal No. 453 of 1982.
Anil B. Divan and Vinoo Bhagat for the Appellant.
G.L. Sanghi and A.K. Panda for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
Special leave granted.
In respect of a dispute relating to the work Lankagada Minor Irrigation Project (Balance Work) in Jagannathaprasad Block which 351 was entrusted to him, the appellant contractor, invoking clause 23 of the agreement and section 8 of the Arbitration Act requested the Chief Engineer, Rural Engineering Organi sation, Bhubaneswar, Orissa, to nominate an arbitrator.
It may be mentioned that before making this request for nomina tion of an arbitrator the appellant made a claim on 16.6.
1975 before the Executive Engineer, M.I. Division, Berham pur, Ganjam, claiming to be paid a sum of Rs.2,81,745.
He had also claimed interest on this at the rate of 18 per cent from the date of receiving of the claim book till payment.
The work entrusted to the appellant was to commence on 6.12.
1971 and to be completed within 18 months i.e. on or before 5.6.1973 and the total cost of the work was Rs.9.98,970.
One Shri D.C. Panda, Superintending Engineer, Central Range, was nominated as the sole arbitrator to decide the dispute and give the award.
This arbitrator having accepted the appoint ment entered on the reference and issued notices to both the parties directing them to file their claims.
The appellant filed a claim statement on 5.4.
1977 before the arbitrator.
In this claim statement he had made a detailed description of each of the items of the claim and the total of the 15 items claimed came to Rs. 3,87,796.
To this he added inter est at 18 per cent from the date which according to him each of the claims should have been settled making a total claim of interest to the tune of Rs.2,95,894.
He thus prayed for an award of Rs.6,83,690 and also prayed for further interest on Rs.3,87,796 from 6.4. 1977 till date of award and there after until payment at 18 per cent.
It may be mentioned that in this statement of claim made before the arbitrator some of the claims made before the Executive Engineer were omit ted, some were reduced whereas some new claims were intro duced and some other items of claim were enhanced.
The State of Orissa filed a written statement and the arbitration proceedings continued for some time but before the arbitra tor could make the award an application before the Subordi nate Judge, Bhubaneswar was filed under sections 8(2) and 12 of the Arbitration Act.
By an order dated 17.12.1979 the learned Subordinate Judge removed the arbitrator and ap pointed one Shri J. Pati, Chief Construction Engineer, Paradip Port as the sole arbitrator to decide the dispute between the parties.
However, since Shri J. Pati expressed his inability to arbitrate, by another order dated 16.4.1980 the court appointed Shri Banabasi Patnaik, Superintending Engineer, Sambalpur as the sole arbitrator in place of Shri J. Pati.
This arbitrator entered on the reference, got all the relevant records from the previous arbitrator continued the hearing on the 9th June and 9th July, 1980.
On the ground that the appellant has not included some of his claims "relating to this work" in the claim statement sub mitted to the previous arbitrator, he made a supplemental claim for a sum of 352 Rs.8,27,857 and prayed that in addition to the claim stated in the original claim statement a sum of Rs.8,27,857 be awarded in his favour with interest at 18 per cent per annum on Rs.8.27,857 from 14.10.
1973 till date of payment.
The State of Orissa not only disputed the claim made but also objected to the entertainment of an additional claim in their written statement dated August 13, 1981.
The arbitra tor, however, decided to entertain the supplemental claim and proceeded with the hearing of the dispute.
The supple ment claim consisted of 11 items.
As seen from the note papers, the arguments on supplemental claims 1 to 6 were heard on two different dates and the hearing was adjourned to 8.11.
On that day arguments in respect of rest of the supplemental claim items were heard and the hearing was closed.
On the same day the appellant contractor filed what he termed as one consolidated 'abstract ' of his two claim statements and the abstract showed a total claim of Rs.31,44,437 and he had further prayed in this that the total amount of Rs.31,44,437 may be allowed along with an interest at 18 per cent per annum on the said amount from 9.11.
198 1 till date of payment.
The arbitrator made an award on 7.12.
1981 allowing a lump sum of Rs.25,00,156 together with interest at 9 per cent after the expiry of 30 days from the date of making the award, till the date of payment or decree whichever is earlier.
The award was filed in court for making a decree and the Government filed an application to set aside the award on various grounds.
The trial court overruled the objections of the State and the award was made a decree of the court.
However, learned Judge disallowed the interest from the date of decree till reali sation.
On appeal by the State Government, the High Court came to the conclusion that award suffers from non applica tion of the mind amounting to legal misconduct.
In that view the award was set aside and the matter was remitted back to the Arbitration Tribunal constituted under section 41 A of the Arbitration Act as amended by Orissa Act 3 of 1983.
The contractor claimant has filed this appeal against this judgment of the High Court.
As is seen from the award though it refers to getting all the relevant record from the ex arbitrator there is no reference to the heating of the parties or consideration of the documents relating to the original claim made on 6.4. 1977.
In the order sheet it has been mentioned that both parties had agreed that they had nothing more to add except what had been already given in their respective claim and counter statement and what had been recorded in the deposi tions already made before the previous arbitrator.
The reference to depositions already made is incorrect as it is admitted by both the parties that no deposition was at all recorded before the previous arbitrator nor 353 there is any record of the previous arbitrator showing such oral evidence was recorded by him.
Neither of the parties adduced any oral evidence before the new arbitrator.
Though the arbitrator is not bound to disclose as to what interpre tation he has made and what inference he has derived from the documentary evidence, he is bound to refer in the award that he had considered all the documents placed before him no matter whether he relies on them or discards them from consideration.
The arbitrator in his award ex facie does not mention that he has referred to or considered the documents placed before him in respect of the original claim.
The order sheet mentions about the hearing on different dates relating to the supplemental claim statement which was filed before him.
It is this argument in respect of the supplemen tal claim that has been mentioned in the award.
The other point to be noted.
is that the original claim together with the supplemental claim do not make total claim of Rs.31,44,437.
It is seen from the records that the arbi trator directed the claimant to submit a consolidated claim abstract which was submitted by him on 8.11.
1981 the date on which the hearing by the arbitrator was concluded.
There is clearly some discrepancy while consolidating both the claims.
In addition to the total of both the claims some other amounts, may be by way of extra interest or otherwise, have been included but the arbitrator seem to have not applied his mind.
Then again in the award it is stated that the total amount claimed by the claimantappellant inclusive of "damages, compensation and interest" is Rs.31,44,437.
Even the 'abstract ' filed before the arbitrator does not show any claim of "damages" or "compensation".
As may be seen from the facts set out above, before the appellant demanded the appointment of an arbitrator he had made a claim before the Executive Engineer for a sum of Rs.2.81,745.
This is an iternised claim.
This claim was made in the claim book kept by the Executive Engineer.
It may be that this claim did not cover the entire amount due.
We may point out that in the letter demanding the appointment of an arbitrator he had stated that during the execution of the work he had executed many extra items of work as per direc tions of the Department and also incurred heavy expenditure which were not covered in the agreement and that he had submitted "most of my claims in the claim book on 16.6.1965 but these have not yet been decided".
It may also be men tioned that in this letter itself he has stated that he has completed the work in all respects on 14.9.1973 and that though the final bill which should have been prepared within one month of the completion of the work has not yet been paid to him.
The claim made before the arbitrator originally as already stated was Rs.6,83,690 of which a sum 354 of Rs.3,87,796 represented the value of the work not paid and the remaining represented interest claimed.
The total agreed value of the work entrusted to the appellant was Rs.9,98,970.
In the counter affidavit filed by the State of Orissa in the special leave petition it is stated that a total of Rs.23,11,887 had been paid to the appellantcontrac tor by 20.11.
1976 which was with reference to the original work entrusted and the extra work done by the appellant.
Arejoinder was filed by the appellant to this counter affi davit but the fact of payment of Rs.23, 11,887 is admitted.
The supplemental claim itself was filed on 10.7.1980 and that amounted to Rs.8,27,857 over and above Rs.6,83,690 which he had claimed originally before the arbitrator.
Then again the 'abstract ' filed by him on 8.11.1981 showed a figure of Rs.31,44,437 as the claim.
We have already pointed out that the total of the claim made on 5.4.
1976 and the supplemental claim made on 10.7.
1980 itself will not make anyway that figure of Rs.31,44,437 and, therefore, some more claims have been included.
The foregoing facts do show that the award suffers from non application of the mind by the arbitrator.
This Court in State of Orissa vs Dandasi Sahu, ; to which one of us (Sabyasachi Mukharji, J.) was a party while noting that the amount award is quite high or that a large amount has been awarded does not by itself vitiate the award as such, observed that one has to judge whether the amount of the award was so disproportionately high to make it per se bad on the facts and circumstances of a particular case.
In this connection we have to keep in mind that we are concerned with a situation where the arbi trator need not give any reason and that even if he commits a mistake either in law or in fact in determining the matter referred to him, where such mistake does not appear on the face of the award, the same could not be assailed.
The arbitrator, in the case of a reference to him in pursuance of an arbitration agreement between the parties, being a person chosen by parties is constituted as the sole and final judge of all the questions and the parties bind them selves as a rule to accept the award as final and conclu sive.
The award could be interfered with only in limited circumstances as provided under sections 16 and 30 of the Arbitration Act.
In this situation we have to test the award with circumspection.
Even with all this limitations on the power of Court and probably because of these limitations, we have to hold that if the amount awarded was disproportion ately high having regard to the original claim made and the totality of the circumstances it would certainly be a case where the arbitrator could be said to have not applied his mind amounting to legal misconduct.
It may be seen that in this case in the 355 original claim made before the arbitrator the value of the work not paid was stated as Rs.3,87,796, The supplemental claim made before the arbitrator amounted to Rs.8,27,857.
Thus the total value of the work not paid, according to the appellant, was Rs. 12, 15,653.
As against this claim the arbitrator has awarded a lump sum of Rs.25,00,156.
It is true that the appellant has asked for payment of interest and including interest his claim was Rs.31,44,437.
In a recent judgment of this Court in State of Orissa vs Niranjan Swain, [1989] 4 SCC 269 it has been held that where a refer ence to arbitration was made prior to the commencement of the (which Act came into force on August 19, 198l) the arbitrator is not empowered to grant interest for the period upto the date of submission of the claim or the period during which the dispute was pending before the arbitrator.
It was further held that where the award granted a lump sum amount it shall deem to have included the inter est also if interest had been claimed before the arbitrator and the inclusion of such interest rendered that part of award invalid.
If we exclude the interest portion then there could be no doubt that award of Rs.25,00,156 suffers from the vice of giving disproportionately high amount.
The learned counsel for the appellant, however, contend ed that the invalid part relating to the grant of interest may be set aside and the award may be accepted so far as the claim for the value of the work done applying the formula adopted in State of Orissa vs Niranjan Swain, (supra).
The learned Judges who decided the case after holding that inclusion of the interest rendered the award invalid, pro ceeded to separate the invalid part from the rest stating that the total amount awarded is principal plus interest, the rate of interest and the period for which the interest was claimed before known, the principal could be determined easily, and on that basis the principal amount and the interest out of the total amount awarded was divided and the award was sustained relating to the principal.
We are unable to apply this principle in this case as the State had dis puted major part of the claim in their counter statements before the arbitrator and we have held that the award suf fers not merely on the ground that it included interest but also on the ground of non application of the mind.
We are also of the view that there was nothing wrong in the approach of the High Court and that this is not a fit case for interference under Article 136 of the Constitution.
We accordingly dismiss the appeal with costs.
P.S.S Appeal dismissed.

summary:
The appellant contractor claimed a sum of Rs.3,87,796 before the sole arbitrator on April 5, 1977 for the value of 15 items of works not paid.
To this he added interest to the tune of Rs.2, 95,894 at 18 per cent from the date which according to him each of the claims should have been set tled, making a total of Rs.6,83,690.
He also prayed for further interest at 18 per cent from April 6, 1977 till date of award and thereafter until payment.
The respondent State filed its written statement and the arbitration proceedings continued for some time.
But before the arbitrator could make an award, an application under sections 8(2) and 12 of the Arbitration Act was filed before Subordinate Judge who by his order removed the arbitrator and appointed another person as the sole arbitrator.
The new arbitrator entered on the reference, got all the records from the previous arbi trator and continued the hearing.
The appellant made a supplemental claim for a sum of Rs.8,27,857 and also prayed for interest on that amount at 18 per cent from October 14, 1973 till date of payment.
The respondent State objected to the entertainment of additional claim.
The arbitrator, however, proceeded with the hearing.
On November 8, 1981, the day the hearing was closed, the appellant contractor filed one consolidated 'abstract ' of his two claim state ments showing a total claim of Rs.31.44.437 and also prayed for interest at 18 per cent per annum from November 9, 1981 till the date of payment.
The arbitrator made an award on December 7, 1981 allow ing a lump sum of Rs.25,00,156 together with interest at 9 per cent after the expiry of 30 days from the date of making the award, till the date of payment or decree whichever was earlier.
The award was made a decree of the court.
The court, however, disallowed interest from the date of decree till realisation.
349 On appeal by the respondent State the High Court came to the conclusion that the award was vitiated by non applica tion of mind amounting to legal misconduct.
In that view, it set aside the award and remitted the matter back to the Arbitration Tribunal constituted under section 41A of the Arbi tration Act, as amended by Orissa Act 3 of 1983.
Dismissing the appeal, the Court, HELD: 1.1 Though the arbitrator is not bound to disclose as to what interpretation he has made and what inference he has derived from the documentary evidence, he is bound to refer in the award that he had considered all the documents placed before him, no matter whether he relies on them or discards them from consideration.
[353A] 1.2 In the instant case, the arbitrator in his award ex facie did not mention that he had referred to or consid ered the documents placed before him in respect of the original claim.
The order sheet mentions about the nearing on different dates relating to tile supplemental claim statement which was filed before him.
It was this argument in respect of the supplemental claim that has been mentioned in the award.
[353B] 2.1 The arbitrator in case of a reference to him in pursuance of an arbitration agreement between the parties, being a person chosen by parties is constituted as the sole and final judge of all the questions and the parties bind themselves as a rule to accept the award as final and con clusive.
Even in a case where the arbitrator does not give any reason or he commits a mistake either in law or in fact in determining the matter referred to him and such a mistake does not appear on the face of the award, the same cannot be assailed.
It could be interfered with only in limited cir cumstances as provided under sections 16 and 30 of the Act.
The court has, therefore, to test the award with circumspection.
1354F, E, G] 2. 2 All the same, if the amount awarded is dispropor tionately high having regard to the original claim made and the totality of the circumstances, it would certainly be a case where the arbitrator could be said to have not applied his mind amounting to legal misconduct.
[354G H] State of Orissa vs Dandasi Sahu, ; , referred to.
In the instant case, in the original claim made before the arbitrator the value of the work not paid was stated as Rs.3,87,796.
The supplemental claim made before the arbitrator amounted to 350 Rs.8,27,857.
Thus, the total value of work not paid, accord ing to the appellant, was Rs.12,15,653.
As against this claim, the arbitrator had awarded a lump sum of Rs.25,00,156.
No doubt, the appellant had asked for payment of interest and including interest his claim was Rs.31,44,437.
[354H; 355A] 2.3 Where a reference to arbitration was made prior to the commencement of the which came into force on August 19, 1981 the arbitrator is not empowered to grant interest for the period upto the date of submission of the claim or the period during which the dispute was pending before the arbitrator, and where the award granted a lump sum amount it shall deem to have included the interest also if interest had been claimed before the arbitrator and the inclusion of such interest would render that part of award invalid.
[355B C] In the instant case, if the interest portion is exclud ed, then it becomes evident that award of Rs.25.00,156 suffers from the vice of giving disproportionately high amount.
[355C D] 2.4 Since the award suffers not merely on the ground that it included interest but also on the ground of non application of the mind the question of setting aside only the invalid part relating to the grant of interest does not arise.
[355F G] State of Orissa vs Niranjan Swain, [1989] 4 SCC 269, distinguished.


judgement:
ivil Appeal No. 917 of 1989 etc.
From the Judgment and Order dated 15.12.1988 of the Allahabad High Court in C.M.W.P. No. 10059 of 1987.
Yogeshwar Prasad, Satish Chandra, Mrs. section Dixit and Mukul Mudgal for the Appellants.
453 A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This is the third time the matter is coming before this Court and we hope that this is the last of a series of litigations between the parties.
We have been helpfully provided with a chronology of the events leading up to this appeal.
It is important that the chronology is made clear.
It is as follows: At Allahabad, there is a private college called "Kulb haskar Ashram Agriculture Intermediate College".
It is run by the "Kayastha Pathshala" which is a society registered under the Societies Registration Act.
Rajendra Prasad, the common respondent in the appeals, was a Chemistry lecturer in that College.
He was appointed on 15 July 1962 in the scale of Rs. 175 10 2 15.
On 20 June 1963, the management wrote to him stating that his services would not be required after 15 July ' 1963.
It was indeed a termination letter.
The respondent moved the Civil Court with suit No. 422/1963 for permanent injunction restraining the management from inter fering with his teaching work.
The management resisted the suit inter alia, contending that the respondent was appoint ed only for one year.
He was removed after the period of probation since his work was found to be unsatisfactory.
It was also contended that no injunction could be granted for enforcement of the contract of personal service and the suit was not maintainable.
On 20 May 1964, the Trial Court dis missed the suit as not maintainable.
It was also held that the suit had become infructuous since the management had withdrawn the impugned communication.
It seems that the management had withdrawn its earlier communication only to make another order.
On 28 August 1964, the respondent was placed under suspension and he again approached the Civil Court for relief.
He instituted suit No. 198 of 1964 in the Munsif Court seeking a declaration that the order of suspension was illegal.
The trial court dismissed the suit, but the appeal therefrom, F.A. No. 583/1965, was allowed by the First Additional Civil Judge, Allahabad decreeing the suit as prayed for.
That decision was affirmed by the High Court in Second Appeal No. 1111 of 1966.
The High Court rendered the judgment on 9 April 1968.
Before the disposal of the appeal by the High Court, the manage 454 ment made a fresh order suspending the respondent pending enquiry on certain allegations That order was issued on 30 December 1965/7 January 1966.
This order was also the sub ject matter of a suit.
The respondent filed Civil Suit No. 48 of 1966 in the Munsif Court at Allahabad challenging the competency of the managing committee to take action against him.
He also contended that the prior approval of District Inspector of Schools (DIOS) was not taken for placing him under suspension The Munsif Court accepted the suit and declared that the suspension order was illegal and void.
But the management successfully took up the matter of Civil Appeal No. 117 of 1969 before the Additional Civil Judge.
The appeal was allowed reversing the trial court decree and upholding the respondent 's suspension.
The respondent pre ferred second appeal to the High Court and it was numbered as S.A. No. 2038 of 1970.
We may stop here for a moment and refer to some other events.
During the pendency of the said second appeal in the High Court, the U.P. Secondary Education Laws (Amendment) Act, 1976, was brought into force with effect from 18 August 1976.
The provisions thereunder required the management of the college to take prior approval of DIDS for taking any action against teaching staff.
The respondent took advantage of those provisions and made an application for amendment of his plaint to incorporate additional paragraphs 13 A and 14(g).
In the additional paragraphs, he challenged the validity of the suspension order since management did not take prior permission of the DIOS.
It was alleged that the suspension order became invalid and inoperative on the expiry of 60 days from the date of service.
The State of Uttar Pradesh was not a party to the original suit.
For the first time, on 31 October 1980 the respondent made an application for impleading the State of U.P. and DIOS as supplemental respondents to the appeal.
Their impleading was perhaps necessitated in view of the liability of the State Government to pay salaries to teach ers under the U.P. High School and Intermediate College (Payment of Salaries of Teachers and Other employees) Act, 1971.
Section 10(1) of the Act provides that the State Government shall be liable to payment of salaries of teach ers and employees of every institution due in respect of any period after March 31, 1971.
The High Court did not consider it necessary to allow the said amendment of the plaint.
But the respondent suc ceeded in this Court.
By order dated 20 April 1980 the Court allowed his appeal and 455 directed the High Court to allow the amendment.
The second appeal No. 2038 of 1970 thus fell for consideration in the light of fresh points raised in the amplified plaint.
Next, as to proximity, there is one other related liti gation between the same parties.
It is now necessary to refer to it.
The respondent filed a suit for recovery of arrears of salary past, pendente lite and future.
It was claimed for the period between 21 February 1964 and 20 February 1967.
That suit was filed in 1968 and registered as Civil suit No. 53 of 1968.
On 31 July 1969, the trial court decreed the suit for Rs.7812.92 being the arrears of salary for the period of three years.
The management of the college appealed to the District Court in Civil Appeal No. 268 of 1969.
The respondent filed a cross objection to the extent of the relief denied to him.
The second appeal No. 2038 of 1970 was then pending in the High Court.
It seems that the parties moved the High Court for withdrawal of C.A. No. 268 of 1969 from the District Court for being disposed of along with the second appeal No. 2038 of 1970.
That request was allowed and the said appeal was withdrawn.
It was renumbered by the High Court as First Appeal No. 450 of 1982.
The High Court disposed of both the said appeals by common judgment dated 22 October 1982.
The second appeal No. 2038 of 1970 was dismissed confirming the finding of the Additional Civil Judge as to the validity of the suspension order.
The first appeal No. 450 of 1982 was allowed revers ing the decree of the trial court and dismissing the re spondent 's suit for arrears of salary.
His claim for pen dente lite salary also vanished along with that.
The respondent stopped into this Court for the second time.
Being aggrieved by the decision of the High Court, he appealed to this Court in C.A. No. 5891 of 1983.
The appeal was allowed by a brief order dated 25 September 1986 which has since been reported in AIR 1987 SC 1644.
For immediate reference we may set out the same hereunder: "The High Court in the judgment recorded the following findings: "The result is, as noticed above, that al though it cannot be said that the order dated 30 December 1965/7 January 1966 suspending the plaintiff from service of the defendant col lege was illegal or null and void inoperative against the 456 plaintiff from its inception, it did cease to be operative with effect from 17 October 1975 on the expiry of 60 days from the commencement of the U.P. Secondary Education Laws (Amend ment) Act, 1975.
Having recorded this finding, the High Court refused to exercise its discretion to grant a declaration that the order of suspension ceased to be operative with effect from 17 October 1975.
We think that the High Court was wrong in refusing to grant the declaration.
We, therefore, declare that the order of suspension ceased to be operative with effect from 17 October 1975.
The appeal against the judgment of the High Court in second appeal No. 2038 of 1970 is disposed of accordingly.
In the appeal against the judgment of the High Court in First Appeal No. 450 of 1982 we do not see how the appellant can be denied his salary for the period between 20 February 1964 to 15 January 1966, the date on which the effective order of suspension was communicated to him.
Instead of sending the case back to the trial court for determining the amount, we think that a decree may straight away be passed for a sum of Rs. 10,000 which will include salary for the period, interest up to date and costs." With due apologies for this lengthy introduction, we then come to the proceeding out of which the present appeals arise.
On 18 May 1986 the respondent moved the High Court under Article 226 of the Constitution seeking a writ of Mandamus against the State of U.P. and management of the college for his reinstatement in service with payment of entire arrears of salary.
He rested his case on the afore said decision.
This High Court accepted the writ petition and gave him all the reliefs asked for.
As to the validity of suspension order, the High Court remarked: "The order of suspension being illegal was correctly set aside by the Supreme Court after the enforcement of U.P. Secondary Education Laws (Amendment) Act, 1975 as none of the conditions mentioned in sub section (5) of Section 16 G of the Act were fulfilled as no charges were framed against the petitioner, nor any charge sheet was served on him . . .
The petitioner, there fore, 457 could not have been suspended and the order of suspension, in our view, was void ab initio.
Under law there was no provision to keep the petitioner under suspension for more than 21 years without enquiry being held and without any charge sheet being submitted.
The peti tioner has a legal right to continue in serv ice and we direct him to be reinstated forth with.
" As regards the arrears of salary, the High Court observed: "Once the order of suspension ceased to be operative and was ab initio void from its very inception, the petitioner shall be deemed to be in continuous service.
That application of the petitioner was sent to State of U.P. through the Education Secretary and also the District Inspector of Schools.
The District Inspector of Schools has already sent a letter dated 7.1. 1987 (Annx. 28) to the Manager, Kulbhaskar Ashram Agriculture Intermediate College, Allahabad about the payment of ar rears of salary to the petitioner.
But the Manager and the State of U.P. do not seem to be interested in making payment of arrears of salary to the petitioner.
We are accordingly of the opinion that the petitioner has made out a case for issuance of a writ of mandamus directing the State of U.P. and the District Inspector of Schools, Allahabad to make pay ment of arrears of salary to the petitioner in view of Section 10 and prior to that date the arrears of pay and other emoluments would be payable by the institution.
In case the insti tution fails to make payment the procedure under Section 11 of the Payment of Salaries Act may be adopted.
" Finally, the High Court issued the following directions: "In view of the premises aforesaid, the present petition succeeds and is allowed Respondents Nos. 1 and 2 the State of Uttar Pradesh and the District Inspector of Schools, Allahabad are directed to make payment of salary to the petitioner since 16.1.1966 till date, forthwith including D.A. and other emoluments admissible under law, of course, after deducting the amount, if any, paid to him as subsistence allowance during the period of his suspension.
We further add that the petitioner shall be reinstated forthwith and shall be paid his salary regularly in accord ance 458 with the provisions of Section 3 of the Pay ment of Salaries Act, 1971.
" Challenging the judgment of the High Court, the management as well as State Government by obtaining leave have now appealed.
This how the matter is coming before the Court for the third time.
The first question for consideration is whether the High Court was justified in directing reinstatement of the re spondent? There is a long established rule of Courts that service contract cannot be specifically enforced.
There are, however, three exceptions which have been adverted to in very many cases.
In Vaish Degree College vs Lakshmi Narain, at 71 after examining a large vs number of authorities like: S.R. Tiwari vs District Board, Agra and Anr., ; , 59: The Executive Committee of U.P. Warehousing Corpora,on Ltd vs Chandra Kiran Tyagi, , 265: Bank of Baroda vs Jewan Lal Mehrotra, and Sirsi Municipality vs Kom Francis, ; the Court rounded off the conclusion: "On consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer.
This rule, however, is subject to three well recognised exceptions: (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the Statute.
This decision has been affirmed in Smt.
J. Tiwari vs Smt.
Jawala Devi Vidya Mandir and Ors., and reiterated in Deepak Kumar Biswas vs The Director of Public Instructions, and adverted to in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust and Ors.
vs V.R. Rudani and Ors., ; at 697.
These authorities say that a college owned by a private body, though recognised by or affiliated to a Statu tory University will not become a statutory body 459 since not enacted by or under a statute.
And the dismissed employee of such institution cannot get specific performance of service contract: The submission for the respondent, however, was that the present case stands on a different footing since there was no repudiation of the respondent 's contract of service.
The contract of service, according to him is still subsisting and it was, therefore, not inappropriate for the High Court to put the respondent back into service.
But counsel for the appellants added that the respondent himself has abandoned his post after he was suspended and there was therefore no need to terminate his service.
The declaration made by the respondent when he enrolled himself as an advocate in 1968 stating that he was not employed nor engaged in any business or profession was relied upon to support the submission.
It is said that the law required that the respondent at the time enrolment must have given particulars of his employment or of his business or trade it he had one.
He must have also produced a character certificate from the employer and proved as to how the employment came to an end.
Since he did not furnish any such particulars counsel urged that it was a clear case of abandonment of service and no specific order of termination was necessary.
Much could be said on both the contentions, but we refrain from expressing any opinion since this is not a proper case for reinstatement.
Indeed, the reinstatement would be an unwise move from any point of view.
In educa tional institutions, the Court cannot focus only on the individual forgetting all else.
The Court must have regard to varying circumstances in the academic atmosphere and radically changed position of the individual sought to be reinstated.
The Court must have regard to interests of students as well as the institution.
It is not unimportant to note that the respondent was out of teaching for over 25 years.
He seems to have taught Chemistry for one or two years in 1962 and 1963.
Thereafter, he did not teach Chemis try at any time in any College.
In 1964 65 he diverted his attention and sought admission in LL.B. Degree Course.
In 1968, he enrolled himself as an advocate and since then concentrated only in law courts.
In this gap of twenty five years he must have clearly lost touch with Chemistry as well as art of teaching.
It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge.
Reinstatement of such a person seems to be unjustified and uncalled for.
The next question for consideration is whether the respondent is entitled to damages or salary as ordered by the High Court and if so what should be the measure for determination? Counsel for the appel 460 lants urged that the respondent 's claim for salary was the subject matter of previous litigation which finally ended with a decree by this Court in C.A. No. 5891 of 1983 and it was a final settlement of all his claims.
It was also argued that in any event, the respondent is not entitled to damages or salary for more than three years.
Our attention was drawn to the decision in Tilok chand Motichand & Ors.
vs B. Munshi & Anr., In reply and in support of the High Court order, counsel for the respondent referred to us a number of decisions and in particular (i) Malmoona Khatun and Anr.
vs State of U.P. & Anr.
; , ; (ii) Managing Director, Uttar Pradesh Warehousing Corporation and Anr.
vs Vinay Narain Vajpayee, ; and (iii) Maharaja Sayajirao University of Baroda and Ors.
vs R.S. Thakur, AIR 1969 SC 2112.
We have read cases carefully, but it is not necessary to refer to them in detail when we have guidance from binding precedents in similar cases.
There is a triology of cases on the question, See: (i) The Vaish Degree College, (ii) Smt.
J. Tiwari and (iii) Deepak Kumar Biswas to which brief reference was made earlier.
in the first of the three cases, the institution concerned was a degree college managed by a registered co operative society.
The dismissed Principal of the College filed a suit for reinstatement, inter alia, contending that the management of the college though a society registered under the cooperative societies Act was a statutory body since affiliated to the Agra University (and subsequently to Meerut University).
It was contended that the Principal 's termination was in violation of statutory obligation of the society, and therefore, his reinstatement should be ordered.
But that contention was not accepted and the Court said (at 74 75): "That the plaintiff/respondent served the institution for a short period of two years only, i.e. from 1964 to 1966 and thereafter he was bereft of all his powers and did not work in the college for a single day.
(2) That if the declaration sought for or the injunction is granted to the plaintiff/re spondent the result would be that he would have to be paid his full salary with interest and provident fund for full nine years, i.e. from 1966 to 1975, even though he had not worked in the institution for a single day during this period.
461 (3) That consequent upon the declaration the appellant would have to pay a very huge amount running into a lakh of rupees or perhaps more as a result of which the appellant and the institution would perhaps be completely wiped out and this would undoubtedly work serious injustice to the appellant because it is likely to destroy its very existence.
(4) It is true that the plaintiff/re spondent is not at fault,but the stark reali ties, hard facts and extreme hardship of the case speak of themselves.
And said: "It appears but by virtue of the interlocutory orders passed by this Court, the appellant has already deposited Rs.9,000 before the High Court which was to be withdrawn by the re spondent after giving security, and a further sum of Rs.9,100 being the salary of 13 months has also been deposited by the appellant before the trial court under the orders of this Court.
It is also stated by Counsel for the appellant that the appellant has deposited Rs.3,000 more.
We feel that in the circum stances the respondent may be permitted to keep these amounts with him and he will not be required to refund the same to the appellant.
The amount of deposit in the High Court, if not withdrawn by the respondent may now be withdrawn by him without any security and if he has already withdrawn the amount he will be discharged from the security.
This will vindi cate the stand of the respondent and compen sate him for any hardship that may have been caused to him by the order terminating his services, and will also put a stamp of finali ty to any further litigation between the parties.
" The case of Smt.
J. Tiwari seems to be closer to the case before us.
There the appellant claimed arrears of salary for six years covered by the period of suspension from 1952 till 1958.
In January 1952 she filed a suit in the court of Munsif challenging her suspension which was later withdrawn by the High Court of Allahabad for trial by it self.
The High Court decreed the suit holding that the order of suspension was not made by a properly constituted Commit tee.
On 24 May 1958, her services were terminated by the management of the college with retrospective effect from the date of suspension.
On 28 August 1958, she filed a suit for a declaration that she continued in the service and 462 for setting aside the termination order.
She claimed a decree in a sum of Rs.37,657.40 by way of salary.
The trial court upheld her contention that the termination of service was bad and ineffective.
The trial Court, however, passed a decree in her favour in the sum of Rs. 15,250 as arrears of pay for a period of 3 years from August 1, 1955 to July 31, 1958.
Both the parties filed appeals before the High Court.
The Division Bench of the High Court partly allowed the appeal of the management and dismissed the appeal of Smt.
J. Tiwari.
The High Court took the view that though the dis missal was wrongful, she was entitled to a decree of damages only and not to a declaration that she still continued to be in the service of the management.
The High Court upheld the money decree passed by the trial court, but did so on the ground that the amount awarded by the trial court by way of arrears of salary could justifiably be granted to her by way of damages.
This Court while affirming the decree of the High Court has, however, said as follows (at p. 162): "The High Court has treated the claim for three years ' arrears of salary as being pay able to the appellant on account of damages.
But that is not a right approach to the prob lem.
The appellant is entitled to three years ' arrears of salary for the period of suspension ,since the order of suspension was without jurisdiction and until May 1958 no order of termination of her service was passed by the Society.
In addition to the arrears of three years ' salary, the appellant would be entitled to three months ' salary as provided for by clause 10 of the agreement.
We would like to add that even if the appel lant could be held to be entitled to a decla ration that she continued to be in the service of respondent 1, this is not a proper case in which such a declaration should be granted to her.
The appellant 's claim according to her counsel would amount to over Rs.2 lakhs.
The appellant has admitted in her evidence that she did not make any attempt to mitigate the damages by trying to obtain an alternative employment during the last 20 years.
The difficulty of obtaining employment is an argument which cannot be permitted to a person who, on her own showing, has made no effort to obtain any employment." Deepak Kumar Biswas case appears to be the closest to the present case.
There the appellant was a Lecturer in English in Lady Keane 463 Girls College, Shillong.
The college was governed by the statutes of the Meghalaya University and the Education Code framed by the State Government.
The college was also receiv ing financial aid from the Government.
His appointment was terminated for want of approval by the Director of Public Instruction.
The trial court decreed the suit for declara tion and permanent injunction.
The appellate Court set aside that decree and granted monetary compensation of one year salary as damages although his removal was found to be wrongful.
This Court sustained the removal but enhanced the compensation to three years ' salary following the pattern adopted in the aforesaid two cases.
What do we have here? In 1962 the respondent was ap pointed as a Chemistry lecturer in the scale of Rs. 175 10 215.
His performance was found to be unsatisfactory.
In August 1964, he was placed under suspension.
In January 1966, he was again suspended.
Thereafter, he brought suit after suit, appeal after appeal from the lowest court to the Apex Court.
He continued the litigation for about 25 years.
On 17 March 1976 the management had appointed Dr. Gopendra Kumar as Chemistry Lecturer and his appointment was approved by the DIOS.
On 28 October 1982 the management passed a resolution confirming his appointment w.e.f. 27 September 1975.
That was also approved by the DIOS.
Dr. Gopendra Kumar was not a party to any one of the earlier litigations nor to the present appeal.
The respondent knew very well that his service contract was with the private management.
In 1964 itself learned Munsif while dismissing the first suit No. 422/1963 has held that his contract of employment could not specifically be enforced.
He was then obliged to place his services on the market to mitigate the damages.
But he did nothing of the kind.
In 1968 he joined legal profession and he is still not out of it.
He has not disclosed his professional income.
In fairness he ought to have disclosed his income to the Court since it is in his personal knowledge.
Instead, he seems to have urged before the High Court that the professional income is not relevant for consideration.
The High Court while accepting the submission went a step further and observed: "that joining the legal fraternity can never be said to be employment and could not disentitle the respond ent to claim his arrears of salary.
" Legal profession may not be considered as an employment but the income from profession or avocation if not negligible, can not be ignored while determining damages or back wages for payment.
It must also be taken into consideration.
In S.M. Saiyad vs Baroda Municipal Corporation, Baroda, [1984] (Supp) SCC 378 the Court gave deduction of even a small income of Rs. 150 per month 464 earned by the worker turned advocate while awarding back wages upon reinstatement.
But we cannot accept the contention for the appellants that the sum of Rs. 10,000 decreed in favour of the respond ent in Civil Appeal No. 5891 of 1983 was a final settlement of all his claims.
There is no indication in the order of this Court to that effect.
In the light of all these facts and circumstances and the authorities to which we have called attention, it seems to us that it would be sufficient if the respondent is given salary for three years on account of damages.
In the result, the appeals are allowed and in reversal of the judgment of the High Court, we direct that the re spondent be paid three years salary.
The payment shall be treated as a final settlement of all his claims.
The payment shall be made by the management and not by Government.
In a case like this, the Government cannot be saddled with the liability to make payment.
There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent.
So far as statutory liability to pay salary to teachers is concerned, the Government has been paying salary to Dr. Gopendra who has since been appointed as Lecturer in the place of respondent.
Therefore, the Management alone should pay the amount ordered.
The payment shall be made within four weeks.
In the circumstances of the case, we make no order as to costs.
Y. Lal Appeals al lowed.

dataset_name: IN-Abs

summary:
The respondent was appointed on 15.7.1962 as a Chemistry lecturer in Kulohaskar Ashram Agriculture Intermediate College run by the appellant society.
By a communication dated 20.6.1963, he was informed by the management that his services were no longer required after 15.7.1963.
He filed a civil suit for permanent injunction restraining the manage ment from proceeding with the proposed action.
But the management having withdrawn the letter, he withdrew the suit as having become infructuous.
However on 28.8.1964, the respondent was placed under suspension whereupon he again filed a civil suit for a declaration that the order of suspension was illegal.
The trial court dismissed the suit but the first appellate court allowed the appeal and decreed the suit as prayed for.
On appeal the High Court affirmed that decision, on 9.4.69.
During the pendency of the appeal before the High Court, the management appellant had passed a fresh order suspending the respondent pending enquiry on certain allegations.
The respondent again filed a civil suit to challenge the competency of the managing committee to take action against him.
In the said suit he also pleaded that the prior approval of the District Inspector of Schools having not been taken, the order placing him under suspen sion was bad.
The Munsiff Court accepted the suit and de clared the suspension order as illegal and void.
The first appellate court reversed that order and the respondent preferred second appeal to the High Court.
During the pendency of the respondent 's second appeal, U.P. Secondary Educational Laws (Amendment) Act, 1976 came into force from 18.8.76 which inter alia provided that prior approval of the District Inspector of School was necessary before any action could be taken against teaching staff of a college.
The respondent sought to amend the pleadings of second appeal in consonance with the Act but 451 the High Court declined but he succeeded on this question before this Court.
Contemporaneously with the litigation set out above, the respondent filed a suit for recovery of arrears of salary, past pendente lite and future.
It was claimed for the period between 21.2.1964 and 20.2.1967.
The trial court decreed the suit for Rs.7812/92 p. being the arrears of salary for the period of three years.
The management appealed to the Dis trict Court and the respondent filed cross objection.
As stated earlier, the second appeal preferred by the respond ent was pending in the High Court.
Hence the parties moved the High Court for withdrawing the appeal pending before the District Court for being disposed of alongwith the second appeal No. 2038/1970, which request was accepted and the said appeal came to be registered as First Appeal No. 460 of 1982.
The High Court disposed of both the appeals by a common judgment whereby the second appeal was dismissed and the finding as to the validity of the suspension order was confirmed.
However the First Appeal was allowed and the decree of the trial court was reversed and a suit for ar rears of salary filed by the respondent was dismissed.
The respondent appealed to this Court and his appeal was allowed and his claim to salary between 20.2.1964 to 15.1.1966 was settled at Rs. 10,000 and the court further held that the order of suspension ceased to be operative w.e.f. 17.10.1975.
Thereafter the respondent on May 18, 1986 moved the High Court under Article 227 of the Constitution for a writ of Mandamus against the State of U.P. and the management of the College for his reinstatement in service and for payment of entire arrears of salary.
The High Court accepted the writ petition and granted him the relief asked for.
Hence these appeals by the Management of the school and the State of U.P.
Allowing the appeals, this Court, HELD: Indeed, the reinstatement would be an unwise move from any point of view.
In educational institutions, the Court cannot focus only on the individual.
The Court must have regard to varying circumstances in the academic atmos phere and radically changed position of the individual sought to be reinstated.
The court must have regard to interests of students as well as the institution.
[459E] In the instant case, during the gap of twenty five years, the respondent must have clearly lost touch with Chemistry as well as the 452 art of teaching.
It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge.
Reinstatement of such a person seems to be unjustified and uncalled for.
[459G] Legal profession may not be considered as an employment but the income from profession or avocation if not negligi ble, cannot be ignored while determining damages or back wages for payment.
[463G] In a case like this.
the Government cannot be saddled with the liability to make payment.
There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent.
So far as statutory liability to pay salary to teacher is concerned, the Government has been paying salary to Dr. Gopendra Kumar who has since been appointed as Lec turer in the place of the respondent.
Therefore, the manage ment alone should pay the amount ordered.
[464D E] Vaish Degree College vs Lakshmi Narain, ; G.R. Tiwari vs District Board, Agra and Anr., ; , 59; The Executive Committee of U.P. Warehousing Corpo ration Ltd. vs Chandra Kiran Tyagi, ; , 265; Bank of Baroda vs Jewan Lal Mehrotra, and Sirsi Municipality vs Kom Francis, ; ; Smt.
J. Tiwari vs Smt.
Jawala Devi Vidya Mandir & Ors., ; ; Deepak Kumar Biswas vs The Director of Public Instruc tions, ; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust & Ors.
V.R. Rudani & Ors., ; at 697; TrilokChand Modichand & Ors.
vs H.B. Munshi & Anr., ; Maimoona Khatun & Anr.
vs State of U. P. & Anr.
, ; ; Managing Director U.P. Warehousing Corporation & Anr.
vs Vinay Narain Vajpayee, ; ; Maharaja Sayajirao University of Baroda & Ors.
vs R.S. Thakur, AIR 1968 SC 2112 and S.M. Saiyad vs Baroda Municipal Corpora tion, [1984] Supp.
SCC 378, referred to.


judgement:
N: Review Petition (Criminal) Nos.
24 1 242 of 1989.
IN Criminal Appeal Nos.
544 545 of 1986.
Mahabir Singh for the Petitioner.
A.N. Mulla, S.B. Upadhyay for the Respondents.
The Order of the Court was delivered by RAY, J.It is very unfortunate that a controversy has arisen following the judgment sought to be reviewed in Criminal Appeal Nos.
544 45 of 1986 rendered by this Bench on 31st January 1989 whereby this Court while confirming the conviction of both the respondents/accused reduced the sentence of imprisonment in respect of each of the respond ents from 10 years to 5 years by invoking the proviso to Section 376(2) of the Indian Penal Code observing "the peculiar facts and 498 circumstances of this case coupled with the conduct of the victim girl, in our view, do not call for the minimum sen tence as prescribed under Section 376(2).
" The State of Haryana has filed the above petitions seeking review of the judgment and to "pass such other or further order(s) as may be necessary in the circumstances of the case.
" At the outset, we may examine the scope of review of a judgment in a criminal case already pronounced by this Court.
Article 137 of the Constitution of India gives the power to the Supreme Court to review its judgment but such special power is exercisable in accordance with, and subject to, the rules of this Court made under Article 145 of the Constitution of India.
Order XL, Rule 1 of the Supreme Court Rules provides: "The Court may review its judgment or order but no application for review will be enter tained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of the Code and in a criminal proceeding except on the ground of an error on the face of the record." This Court in a series of decisions has examined the scope of review in criminal cases after the judgment pro nounced or order made.
Though we are not citing all those decisions, we may refer to a In the case of P.N. Eswara Iyer and Ors vs Registrar, Supreme Court of India, ; the Constitution Bench of this Court while considering the rule observed thus: "The rule (Order XL, Rule 1), on its face affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis a vis criminal proceedings to 'errors apparent on the face of the record. '.
" See also Sow Chandra Kanta & Anr.
vs Sheik Habib, ; and Sheonandan Paswan vs State of Bihar and Or ders, In our considered view, when the present matter is examined in the light of the decisions referred to above, we find no error apparent on the face of the record necessitat ing review of the judgment and as such these review peti tions are liable to be dismissed.
499 We have heard the arguments of the learned senior coun sel, Mr. Rajinder Sachar who though initially started his arguments on behalf of the People 's Union for Civil Liber ties ultimately advanced his arguments on behalf of the State in these review petitions on the representation made by Mr. Mahabir Singh, the learned counsel for the State.
Mr. R.K.P. Shankar Dass who advanced his arguments on behalf of Mahila Sanyukt Morcha stated that his arguments may also be treated as supplemental to the arguments of Mr. Rajinder Sachar.
Mr. Mulla, the learned senior counsel appeared on behalf of the respondents.
Although we have found that the Review Petitions are liable to be dismissed on the ground that there is no error apparent on the face of the record, we, however, in view of the elaborate submissions made by the various learned coun sel appearing before us, would like to make the following observations.
The facts of the case are briefly stated in the Criminal Appeals and, therefore, it is not necessary to restate the same.
Suffice to say that during the course of the ' hearing on the appeals on behalf of the respondents/accused, it has been urged by the learned defence counsel that the victim Suman Rani was a woman of questionable character and easy virtue with lewd and lascivious behaviour and as such her version is not worthy of acceptance.
After considerable debate on the merits of the case, the argument was confined only with regard to the quantum of sentence.
after meticu lously examining the entire matter, this Court came to the conclusion that the proviso to Section 376(2) I.P.C. could be invoked having regard to the peculiar facts and circum stances of the case coupled with the conduct of the victim and the mandatory sentence provided under the penal provi sion is not called for.
At this juncture, we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under Section 376 I.P.C. We would like to state with all emphasis that such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for impos ing the sub minimum sentence with the aid of the proviso to Section 376(2) of the I.P.C.
In fact, we have expressed our 500 views in the judgment itself ' stating "No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment.
" We have neither characterised the victim, Suman Rani as a woman of questionable character and easy virtue nor made any reference to her character or reputation in any part of our judgment but used the expression "conduct" in the lexi graphical meaning for the limited purpose of showing as to how Suman Rani had behaved or conducted herself in not telling any one for about 5 days about the sexual assault perpetrated on her till she was examined on 28.3.1984 by the Sub Inspector of Police (PW 20) in connection with the complaint given by Ram Lal (PW 14) on 22.3.1984 against Ravi Shanker.
In this connection, we make it further clear that we have not used the word 'conduct ' with reference to the character or reputation of the victim Suman Rani.
Before parting with this matter, we would like to ex press that this Court is second to none in upholding the decency and dignity of woman hood and we have not expressed any view in our judgment that character, reputation or status of a raped victim is a relevant factor for considera tion by the Court while awarding the sentence to a rapist.
With the above observations, we dismiss the Review Peti tions.
G.N. Petitions dismissed.

summary:
This Court rendered a judgment in this case on 31.1.1989 confirming the conviction of both the respondents and reduc ing the sentence of imprisonment from 10 years to 5 years by invoking the proviso to Section 376(2) I.P.C.
The petitioner State has sought review of the said judgment.
Dismissing the review petitions, this Court, HELD: 1.
As per order XL Rule 1 of Supreme Court Rules, 1966, review in criminal proceedings is limited to errors apparent on the face of record.
In the instant case, there is no error apparent on the face of the record necessitating review of the judgment.
[498F] P.N. Eswara Iyer and Ors.
vs Registrar, Supreme Court of India, ; Sow Chandra Kanta and Anr.
vs Sheikh Habib; , ; Sheonandan Paswan vs State of Bihar and Ors., , relied on.
The very confirmation of the conviction accepting the sole testimony of the victim, rejecting the arguments of the defence counsel, is itself a clear indication that this court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment 497 under Section 376 I.P.C.
Such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for impos ing the sub minimum sentence with the aid of the proviso to Section 376(2) of the I.P.C. [499G H] 3.
This Court neither characterised the victim, as a woman of questionable character and easy virtue nor made any reference to her character or reputation in any part of the judgment but used the expression "conduct" in the lexigraph ical meaning for the limited purpose of showing as to how she had behaved or conducted herself in not telling any one for about 5 days about the sexual assault perpetrated on her till she was examined on 28.3.1984 by the sub Inspector of Police.
The word "conduct" was not used with reference to the character or reputation of the victim.
[500B C] 4.
This Court is second to none in upholding the decency and dignity of womanhood and this Court has not expressed any view in the judgment that character, reputation or status of a raped victim is a relevant factor for considera tion by the Court while awarding the sentence to a rapist.
[500D]


judgement:
Civil No. 1134 of 1986.
503 (Under Article 32 of the Constitution of India) Petitioner in person and Mohan Pandey for the Petitioners.
K. Madhava Reddy, P.P. Rao, R.N. Keshwani and H.S. Parihar for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The petitioners who are employees of respond ent No. 1 National Bank for Agriculture and Rural Develop ment (hereinafter referred to as the Bank) request for a direction to the Bank to give them fitment benefits which were given to their counter parts who were in the Bank 's service prior to 1st February 1984.
The admitted facts are that on 1st February 1984, petitioner No. 1 was in the Bank 's service as a 'Grade B ' Officer land was promoted to 'Grade C ' Officer 's.cadre on March 7, 1984.
Petitioners 2 to 4 were not in the service of the Bank on 1st February 1984.
Petitioner No. 2 was appoint ed as a 'Grade C ' Officer and Petitioners 3 and 4 were appointed as 'Grade B ' Officers, on various dates in March 1984.
Petitioners 5 and 6 were in the Bank 's service in Clerical Grade prior to 1st February 1984 and were appointed as Officers 'Grade A ' after the said date.
The first respondent Bank came into existence on July 12, 1982 under an Act of Parliament, viz National Bank for Agriculture and Rural Development Act, 1981.
The initial staff of the Bank consisted of the employees of the Reserve Bank of India and of those recruited by the Reserve Bank of India exclusively to serve the erstwhile Agriculture Refi nance and Development Corporation which was taken over by the 1st respondent Bank.
On February 24, 1986, the Bank revised pay scales of all its Officers as a result of a settlement on the charter of demands submitted by the Bank 's Officers ' Association called NABARD Officers ' Association.
One of the demands of the Association was that the revision in the scales of their pay should be on the same basis as of the revision of the Officers in the Reserve Bank of India.
It appears that the NABARD Officers Association had submit ted its charter of demands on November 30, 1984 which was on the same lines as the charter of demands submitted by the Officers Association of the Reserve Bank of India to the Reserve Bank of India.
On October 9, 1985, the Reserve Bank of India revised the pay scales of its Officers w.e.f 1st February 1984.
As a result, the 1st respondent Bank 504 also revised the pay scales of its Officers, as stated earlier, on February 24, 1986, and to bring it on parity with the pay scales of the Reserve Bank of India, gave effect to them also from 1st February, 1984.
Hence the importance of the date February 1, 1984.
Incidentally it may be stated that the revision of pay scales of the Officers in the entire Banking Industry was brought into effect from that date.
The said date is thus not arbitrarily fixed by the respondent Bank for giving effect to the revision of pay scales.
Since the revision of pay scales was given effect to from February 1, 1984, it was necessary to fit the pay of the employees in service prior to February 1, 1984 in the revised pay scales.
Hence it was necessary to evolve some uniform formula for the fitments.
The Reserve Bank of India had already prepared a refixation chart for the purpose.
The respondent Bank also prepared its refixation chart for the purpose.
This chart was also approved of by the NABARD Officers Association.
The Association at the relevant time had 2284 members and except the present six petitioners nobody has made a grievance against the said chart.
By the present Petition what is in effect, challenged is the said refixation chart.
The refixation chart which is an Annexure to the Petition gives effect to the terms of settlement between the Bank and its Officers, which as stated above, is a part of the general settlement in the Banking Industry.
The said chart is made applicable to all the Officers who were in the service of the Bank holding either probationary, permanent or temporary appointments and its benefit is given from 1st February 1984.
The chart is no more than a device for fit ting the pay of the concerned Officers in the revised pay scales.
Since the revised pay scales were given retrospec tive effect from 1st February 1984 it was necessary, as a first step.
to fit the pay in the old scales into the new scales on and from 1st February 1984.
Such a fitment was necessary only in the case of those who were in service prior to February 1, 1984.
The entrants in service after that date would automatically be treated as being employed on the new scales from the date of their entry.
There was therefore, no need, as indeed there could not be, of making fitment adjustments in their case.
There is further no dispute that the employees like the petitioners who were appointed either for the first time, or promoted to the higher post, after February 1, 1984, were given all the benefits of the revised pay scales including the arrears in salary, treating them as if they were appointed initially in the new scales.
505 6.
The refixation chart under challenge, therefore, contained a table of fitment of salaries of those employees who were in service prior to 1st February 1984.
It is common knowledge that such fitment has to be made not by reducing the existing pay of the employees but fixing it into the nearest higher stage in the new scale.
The table incorporat ed in the chart therefore contained fitment increments for the employees in service prior to 1st February 1984 (herein after referred to as the old employees) to avoid reduction and anomalies which would otherwise result.
These increments were to merge in the new scales in course of time, when the concerned employees reached the appropriate stage in the new scale.
The increments given were not designed to grant higher emoluments to the old employees for all time to come.
As has been pointed out by the respondent Bank, there was a possibility of reduction in salary in some cases and of anomalies in other cases if a stage to stage adjustment was made in their salaries.
Hence the table was so prepared that the fitments avoid the said consequences.
The said fitment adjustments in the salaries of the old employees resulted in temporary increases in their pay packets, although, as stated earlier these fitment increments were to merge in future increments in the new scales.
The grievance of the petitioners in this petition is directed precisely against these fitment increments given to the old employees.
It is their case that these increments give undue benefit to the old employees as against them, and since they occupy the same posts they are also entitled to the same fitment bene fits.
That is the main relief which they have claimed in the petition by prayer (a).
The other reliefs are declaratory in nature and incidental to it.
In support of their claim they have invoked the theory of Equal Pay for Equal Work and Articles 14 and 16 of the Constitution by alleging discrimi nation between them and the old employees.
They have also pressed certain decisions in support of their case.
As will be obvious from what we have stated earlier, the whole basis of the petitioners ' case is misconceived.
It proceeds on wrong presumptions and unwarranted premises.
The present is not a case of discrimination between employees belonging to the same class or of granting different scales of pay to them.
The present is a case of adjusting and fitting the salaries of the old employees belonging to the same class into the new scales of pay which are made avail able to both the new and the old employees.
If in effecting such adjustments, it becomes necessary to give fitment increments to the old employees, it is to work out the equities and to do justice to them.
Their past service in fact merits it.
To deny them such adjustment is to treat them unequally by ignoring their past service and placing them on par with 506 the new entrants.
For this purpose, however limited it may be, the old employees in the present case stand in a differ ent class from that of the new.
The classification for the purpose is not only justified but necessary.
The revision of pay scales is always effected with a particular date pro spectively or retrospectively.
Whatever the date from which it is effected, it necessarily involves fitment of the salaries of the existing employees in the new scales.
A retrospective operation of the new scales therefore in volves, for the same purpose, a classification of employees into two categories, viz. those who were in service prior to the retrospective date and those who entered the service thereafter.
If the benefit of the revised pay scales is to be conferred equitably on the old and the new employees, the fitment of salaries is inevitable.
To avoid it is to deny the equal benefit of the revised scales to the employees in service prior to the date from which the new scales come into effect.
The service jurisprudence, therefore, makes it imperative to grant such fitments in the emoluments of the old employees.
The fitment/adjustment in the new scales further, as stated above, has to be done by revising the salaries upward.
This sometimes necessarily involves fitment in a higher stage in the pay scale than what the employee would be entitled to by a strict application of the stage to stage adjustment.
The provision is also, therefore, some times made to treat the additional benefit as a personal pay till it gets merged in the next higher increment.
This is a known practice of equitable adjustment of the old pay scales to the new pay scales.
There is no other way of effecting the just and required adjustment.
Thus, it is not a case of giving undue benefits to one section of the employees be longing to the same class, but is a case of conferring equitable benefits on the old employees and effecting a just adjustment between the salaries of the old and new employ ees, as necessitated by the new pay scales.
As stated above, there is no dispute in the present case that the petitioners were either appointed to the higher post or they came in the service of the Bank, for the first time after February. 1, 1984.
Those who were appointed to the higher post after February 1, 1984 and who were therefore necessarily in the lower post prior to that date, get the benefit of fitment into the new scales in theft earlier lower post according to the very same refixation chart and received arrears of salary on account of such refixation.
What they claim now is that notwithstanding the benefit of the refixation they got in theft lower post, they should also get the said benefit in the higher post, as if they were promoted to the higher post prior to February 1, 1984.
Similarly, those of the petitioners who entered the Bank 's service for the first time after February 1, 1984, want the benefit of refixation as if they 507 were in service prior to February 1, 1984.
The claim of the petitioners is thus on the face of it both unreasonable and unsustainable in law.
We may now examine the authorities cited before us.
K.N. Ananda & Ors.
vs The Karnataka State Financial Corpora tion, Bangalore & Anr., [1985] Labour & Industrial Cases Vol. was not a case of fitment of the salaries of the old employees into the revised scales of pay.
In that case, what the respondent Karnataka State Financial Corpora tion had, instead done was to prepare a conversion table and give the old employees salaries in the revised scale accord ing to the said table.
The pay given to,the old employees according to the table had apparently no relation to the stages in the revised pay scale at which the salaries of the old employees had to be fitted.
The Corporation also could not explain the basis on which the said table was worked out.
In fact, as is apparent from paragraph 16 of the judg ment, the learned counsel for the Corporation being unable to furnish the basis of the differentiation in the salaries, submitted before the court that in fact the Corporation wanted to protect the total emoluments and to allow the new employees, who were petitioners in that case, to earn incre ments over and above the pay, as enacted in the Corpora tion 's resolution of 30th March 1978 which was reproduced in the judgment.
But the State Government did not agree.
It is for this reason that the High Court there held that the conversion table insofar as it was made applicable to the old employees only, was discriminatory in nature and therefore invalid.
It will thus be seen that the facts in that case were different and hence the ratio of the said decision is not applicable to the present case.
P. Savita S/o.
Shri PL Savita vs Union of India, Minis try of Defence (Deptt. of Defence Production) New Delhi & Ors., ; was again not a case of fit ment of the salaries of the old employees into a new pay scale.
In fact, what was done in that case was to prescribe two separate pay scales for Senior Draftsmen by dividing them artificially into seniors and juniors, and awarding Senior Draftsmen new scales while keeping the Junior Drafts men on the old scale.
The Court, therefore, struck down the classification.
D.S. Nakara & Ors.
vs Union of India 's case ; was a case of dividing the same class of individu als, namely, the pensioners on the basis of an artificial date, and giving benefit of pension calculated on a new basis to those employees only who had retired after 31st March 1979.
while denying the benefit of the same 508 computation to those who had retired before that date.
The classification made of the pensioners into two categories on the basis of their retirement date had no nexus to the object which was sought to be achieved, namely to mitigate the hardship of the fixed income group, on account of the ever rising prices, and of the lowering of the value of the rupee.
In fact, it was pointed out by the Court in that case that by extending the benefit to those employees who had retired prior to March 1979 the Court was not making liber alisation of the pension retroactive.
It was only giving the benefit of the same basis of computation to all the pension ers whether they had retired before or after that date.
The Court also pointed out in that context that retroactiveness is implicit in the theory of wages.
When revised pay scales are introduced from a certain date, all existing employees are brought on to the revised scales adopting a theory of fitments and increments for the past service.
The benefit of the revised scales is not limited to those who enter service subsequent to the date fixed for introducing the revised scales but is extended also to those in service prior to that date.
These observations would also make it clear that it is a general practice recognized even by this Court that when new pay scales are introduced, the salaries of the old employees have to be adjusted and fitted into the new scales by adopting some formula of fitments and increments for past service.
In fact, if such fitment is not made, the old employees would get no benefit for the service rendered by them in the past, and they would be placed on par with those who enter the service after the date of the revision of scales.
That would be a case of unequals being treated equally.
It is, therefore, an absence of fitments and ad justments and not their application which results in dis crimination.
In State Government Pensioners ' Association & Ors.
vs State of Andhra Pradesh.
[1986] 3 SCC 501, the Government Order dated 26th March 1980 providing for higher gratuity to the employees who had retired after 1st April 1978 was challenged by the Pensioners ' Association on the ground that the benefit of the said higher gratuity was not made avail able to them.
The Court held that the provision of payment of gratuity on stepped up basis prospectively from a speci fied date of retirement, was not unconstitutional.
In Kanpur Suraksha Karamchari Union vs Union of India, the Government of India by its Order of 25th July 1981 accorded sanction to treat employees of canteens established in Defence Industrial Installation under Section 46 of the Factories Act as the Government employees with immediate effect.
By an amend 509 ment, the said Govt.
Order was given effect to from 22nd October 1980.
The question which was raised in the case was whether the employees who were recognised as Government employees w.e.f. 22nd October 1980, were entitled to calcu late the service rendered by them prior to 22nd October 1980 for the purpose of their pension, and the Court held that the period of service rendered by the employees prior to that date has to be counted for the said benefit.
This was thus in effect giving benefit to the old employees of their past service.
In Reserve Bank of India & Ors.
vs C.N. Sahasaranaman & Ors., 1, what was challenged was the com bined seniority and scheme of promotions for cadres of Officers and non Officers in the Reserve Bank of India.
In the past, there was a separate departmentwise and grade wise seniority, and the promotions to the cadres of Officers and non Officers were effected on the basis of such seniority.
In September 1962, a need was felt for the maintenance of a combined seniority list at each centre for the purposes of promotions as recommended by the National Industrial Tribu nal presided over by Justice Desai.
These recommendations for centre wise combined list were approved by this Court in 1966.
In 1970, the supervisory staff in Class1 was upgraded to staff officers in Class 1 pursuant to the settlement between the employees and the Bank on January 9, 1970 sub ject to certain conditions.
On 6th June 1970, a circular was issued for introduction of written examination for depart mental promotions of clerks grade I/Assistants etc.
to the post of Staff Officers Grade II in all the groups.
The circular was not, however, enforced.
On May 7, 1972 the Bank took several steps towards equalising promotional opportuni ties of employees by introducing what was known as Optee Scheme of 1965 and the Optee Scheme of 1966, and finally by entering into a settlement with the Association of the employees on May 7, 1972.
The Association by that settlement accepted the principle of maintenance of a combined seniori ty list at a centre.
On the same date, the Bank formulated a Scheme for promotions of staff officer Grade I1 after giving full opportunity to the Association to make its suggestions.
On that occasion, tile Bank and the Association further agreed by exchange of correspondence that the ratio of direct recruits to the promotees in the total strength of officers staff Grade II should be 17.5%: 82.5%.
On 13th May, 1972, the Bank introduced administrative circular No. 8 which was binding on all employees of the Bank.
On the same date, the Bank introduced another circular No. 9 on "Scheme of Combined Seniority List and switch over from clerical to non clerical" w.e.f. May 7, 1972 which was also binding on all employees.
The constitutional validity of this Scheme also was upheld by this Court.
510 On May 22, 1974 the Bank took a decision based on the recommendations of the Cadre Review Committee, and issued administrative circular No. 15 to prepare a common seniority list and to provide for another group mobility at the lowest level of officers in Grade A w.e.f. January 1, 1970.
On January 7, 1978 the Bank took further decision based on the recommendations of two Committees, and issued circular No. 8 to combine the seniority of all officers in Grade B and above, w.e.f. May 22, 1974, with a view to equalise the opportunity for promotion among officers.
Three employees who were Grade II clerks working at the Nagpur branch of the Bank ever since their employment, variously between 1962 to 1965, challenged clauses (II)(a)(i) of the Administrative Circular No. 8 of May 13, 1972 dealing with "the Scheme for promotion from staff officer Grade 1I" (later designated as Grade A) before the Nagpur Bench of the Bombay High Court.
This clause provided for the number of candidates who will be qualified to appear in the test at the written examina tion.
The clause stated that an estimate of the vacancies to occur in each office during the panel year, i.e. 1st Septem ber to 31st August, will be declared by the Bank in advance, and the number of candidates in that office will not exceed twice the number of such vacancies subject to other clauses in the Scheme.
The grievance of the petitioners was that the said clause was violative of their rights under Articles 14 and 16 of the Constitution since the chance to appear in the examination depended not on relative merits but merely on the fortuitous circumstance, namely, the number of vacancies occurring in the particular centre in a panel year which had no nexus with the purpose of promotion, namely, to secure a fresh cadre of staff officers, and therefore, the Scheme was bad in law.
The High Court found force in the submission and struck down the said clause.
In allowing the appeal filed by the Bank, this Court there held, among others, that: "In service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitution ality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touch stone.
Further, whether there has been denial of equality of the view of promotion or any constitutional right infringed or not cannot be judged, where interest of large number of people are con cerned, in the abstract." 3.2 "The reference held pursuant to the orders of this Court dated 2nd May, 1984 undoubtedly indicates that 511 majority of the employees are in favour of acceptance of the modified settlement.
In matters of service conditions it is difficult to evolve as ideal set of norms governing various conditions of services and in grey area where service rules operated, if more than one view is possible without sacrificing either reasons or commonsense the ultimate choice has necessarily to be conditioned by several considerations ensuring justice to as many as possible and injustice to as few.
These principles, however, significant do not authorise the majority of the employees to trample upon the constitutional guarantees or rights of the individuals or minority employ ees.
Majority cannot thwart or barter away the constitutional rights of the minorities.
The constitutional guarantees are to protect this very danger.
But in judging the content of the constitutional rights, the entire perspective of the equality of opportunity here and denial of equal right in public employment have to be viewed in a fair, reasonable and just perspec tive.
Viewed in that light, it is true there may be individual instances exemplifying injustices by postponing or delaying the chances of promotions of the contesting re spondents yet that does not deny them their constitutional right in its proper measure, and the considerations that have weighed with the making of the modified scheme and in light of the other considerations it must be ob served that with whatever care and objectivity or foresight any rule is framed, some hard ship, inconvenience or injustice might to result but the paramount consideration is the reconciliation of the conflicting claims of two important constituents of service one which brings fresh clerical employees and the other mature experience.
There has been a happy merger of these two considerations in the scheme proposed and in that merger, no violation of the guaranteed rights of the opposing respondents have occurred.
" The observations have much bearing on the present case.
As has been pointed out hereinabove, in the present case also refixation chart of the salaries of the employees was worked out with the approval of the Association of the Bank Officers concerned.
The employees involved were further large in number.
Any chart evolved to fit the salaries of the old employees who had entered the service during the whole span of the period prior to 1st February 1984, was bound to result in some employees getting slightly more and others getting 512 slightly less.
It is not possible in such circumstances to satisfy all employees to the same degree.
Hence, as contend ed by the petitioners, if in some cases.
the employees have received some excessive benefit, the chart cannot be faulted on that account.
The chart as applied is a uniform one and is designed to adjust the old salaries in the new scale.
In a large organisation with a large number of employees in volved in the exercise, a few marginal cases of excessive benefits cannot be relied upon to invalidate the entire chart, for no adjustment chart in such cases can be free from some defects.
In Tarsem Lal Gautam & Anr.
vs State Bank of Patiala & Ors., AIR 1989 SC 30 and in C.R. Seshan & Anr.
vs State of Maharashtra & Ors., AIR 1989 SC 1287 this Court has, in fact, held that a higher category in the same class of employees on the basis of seniority cummerit can be carried out and a higher pay scale can be given to such higher category and that it is neither arbitrary nor unconstitu tional to do so.
The aforesaid review of the authorities shows that none of them supports the proposition advanced by the peti tioners, namely, that the salaries of the old employees cannot be brought on to the new or revised pay scales by giving them fitment increments as is done in the present case.
In fact, in such a case to refuse to fit the salaries of the old employees in the new scales of pay by denying them the necessary fitment or adjustment increments, is to deny them the equality of treatment.
That amounts to ignor ing their past service and to treating them on par with the new entrants which would be unjust in itself.
The adjustment increments granted to the old employees on such occasions automatically achieve the dual purpose of rewarding them for their past service and of adjusting their salaries in the new scale.
The adjustment fitment and increments are there fore not discriminatory but eminently just and valid.
In the circumstances, we find no merit in this petition and dismiss the same.
There will, however, be no order as to costs.
Y. Lal Petition dismissed.

summary:
In response to the charter of demands concerning the revision of pay scales, submitted by the officers of the Respondent Bank, called "NABARD Officers ' Association", the bank on 9.10.85 revised the pay scales of all its officers as per settlement with the Association and gave the said revision retrospective operation w.e.f.
1st February 1984, following the same date as was done in the Reserve Bank of India.
In order to fix the salaries of the employees, who were in employment of the Bank of 1 2 1984, the Respondent Bank prepared a refixation chart which was duly approved by the NABARD Officers ' Association.
The chart was made ap plicable to all the officers who were in service of the Bank on 1.2.1984.
The chart was a device to fit the salaries of the concerned officers in the new revised pay scales.
Thus it contained fitment increments for the employees in service prior to 1.2.84 to avoid reduction in emoluments and anamo lies which would otherwise have resulted.
These increments were to merge in the new scales in the course of time as they were not designed to grant higher emoluments to the old employees for all time to come but to avoid anamolies re sulting from refixation of salaries into new scales.
The Petitioners challenged the fitment increments granted to old employees.
It was their case that these increments gave undue benefit to the old employees as against them, and since they occupied the same posts they were also entitled to the same fitment increments.
They also invoked the theory the 'Equal pay for Equal work ' by alleging discrimination between them and the old employees.
It may be mentioned that the Association had 2284 members and except the present petitioners no body had made a grievance against the refixa tion chart.
Dismissing the Petition, this Court, 502 HELD: The revision of pay is always effected with a particular date prospectively or retrospectively.
Whatever the date from which it is effected, it necessarily involves fitment of the salaries of the existing employees in the new scales.
A retrospective operation of the new scales there fore involves, for the same purpose, a classification of employees into two categories viz., those who were in serv ice prior to the retrospective date, and those who entered the service thereafter.
If the benefit of the revised pay scales is to be conferred equitably on the old and the new employees, the fitment of salaries is in evitable.
To avoid it is to deny the equal benefit of the revised scales to the employees in service prior to the date from which the new sales came into effect.[506B C].
The fitment/adjustment in the new scales further, has to be done by revising the salaries upward.
This sometimes necessarily involves fitment in a higher stage in the pay scale than what the employee would be entitled to by a strict application of the stage to stage adjustment.
Some times the additional benefit is treated as personal pay till it gets merged in the next higher increment.
This is a known practice of equitable adjustment of the old pay scales to the new pay scales.
There is not other way of effecting the just and required adjustment.
[506D E] The adjustment increments granted to the old employees on such occasions automatically achieve the dual purpose of rewarding them for their past service and of adjusting their salaries in the new scale.
The adjustment, fitment incre ments are therefore not discriminatory but eminently just and valid.
[512F] K.N. Ananda & Ors.
vs The Karnataka State Financial Corporation, Bangalore & Anr., [1985] Labour & Industrial Cases Vol.
18 p. 1079; P. Savita S/o Shri P.L. Savita vs Union of India, Ministry of Defence (Deptt. of Defence Production) New Delhi & Ors., ; ; D.S. Nakara & Ors vs Union of India, ; ; State Government Pensioners Association & Ors.
vs State of Andhra Pradesh, [1986] 3 SCC 501; Kanpur Suraksha Karamchari Union vs Union of India, ; Reserve Bank of India & Ors.
vs C.N. Sahasaranaman & Ors., ; ; Tarsem Lal Gautam & Anr.
vs State Bank of Patiala & Ors., AIR 1989 SC 30; C.R. Seshan & Anr.
vs State of Maharashtra & Ors.
, AIR 1989 SC 1287, referred to.