judgement:
ivil Appeal No. 1995 of 1990.
From the Judgment and Order dated 23.11.1988 of the Patna High Court in C.W.J.C. No. 8457 of 1988.
A.K. Sen. Shankar Ghosh and M.P. Jha for the Appellant.
G.S. Misra for the Respondents.
The Judgment of the Court was delivered by J.
This appeal on special leave is directed against the judgment and order dated November 23, 1988 passed in C.W.J.C. No. 8457 of 1988 by the High Court, Patna dismiss ing the writ petition moved by the appellant assailing the order of his compulsory retirement from service by notifica tion dated October 26, 1988 issued by the Government of Bihar compulsorily retiring him from service with effect from the date of issue of the notification.
The salient facts giving rise to this appeal are that the appellant was initially appointed on December 9, 1957 to the post of Industrial Expansion Officer and he was con firmed to the said post on May 15, 682 1958.
The appellant was promoted to the post of Planning cum Evaluation officer, a Gazetted post, on December 19, 1973 because of his excellent service career.
The appellant was further promoted to the next higher post of Industrial Economist by notification dated September 24, 1983 with effect from December 19, 1978 in the scale of Rs.1350 2000.
Because of excellent character role and merit of the appellant, he was promoted to the next higher post of Joint Director in his original scale of pay of Rs.1350 2000 with 20 per cent personal pay for holding such higher post which he held from September 24, 1983 to March 31, 1984.
From April 1, 1984 the appellant was provided with the higher post of General Manager under the respondent State in its Industries Department.
The respondent State issued a notification on September 16, 1988 promoting a large number of juniors to the higher scale of Rs.1575 2300 without considering the case of the appellant.
Being aggrieved the appellant filed one representation against his supersession which was made without considering the case of the appellant.
The representation was filed on October 7, 1988.
In the said representation the appellant brought to the notice of the respondent State that the serv ice record of the appellant throughout remained excellent, integrity beyond doubt and the appellant was never communi cated with any punishment in his service career.
While the appellant was awaiting for a decision, the respondent State issued the impugned notification dated October 26, 1988 compulsorily retiring the appellant from the post of General Manager, District Industries Centre, Deoghar under the provisions of Rule 74(b)(ii) of the Bihar Service Code.
The appellant claimed that the aforesaid order of com pulsory retirement has been issued by the respondent State on the basis of a memorandum dated October 6, 1988 though in the garb of Rule 74(b)(ii) of the Bihar Service Code, but in fact this has been made as a measure of punishment.
Being aggrieved and dissatisfied by the order of compul sory retirement passed against him by the respondents, the appellant preferred a writ petition being C.W.J.C. No. 8457 of 1988 before the High Court, Patna questioning the im pugned order on the grounds inter alia 683 that the appellant throughout his 30 years had an exemplary service career and his integrity remained unquestionable, that the appellant was never communicated with any adverse remarks nor any departmental proceeding was ever initiated against the appellant, nor any explanation was ever called for.
The High Court without at all considering and appreci ating the contentions dismissed the writ application by a laconic order.
Feeling aggrieved by the said order the instant appeal on special leave has been filed.
The only crucial question that fails for consideration in this Court is whether the impugned order of compulsory retirement from service has been made by the Appointing Authority in public interest in accordance with Rule 74(b)(ii) of Bihar Service Code, 1979 or for any oblique motive as an extraneous consideration or by way of punish ment casting stigma on the service career of the appellant even though the impugned order was couched in innocuous language.
The relevant Rule 74(b) reads as follows: "Rule 74(b)(i): Notwithstanding anything contained in the preceding subrule a Government Servant may, after giving at least three months ' previous notice, in writing, to the appointing authority concerned, retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice.
Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government.
Provided further that in case of officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi), under the rule marking authority of the Chief Justice, no such officers and servants under suspension shall retire from service except with the specific approval of the Chief Justice.
Rule 74(b)(ii): The appointing authority concerned may, after giving a Government servant at least three months ' previous 684 notice in writing, or an amount equal to three months ' pay and allowances in lieu of such notice, require him in public interest to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date there after to be specified in the notice.
" On a plain reading of the said Rule it appears that the appointing authority has been conferred power to retire a government servant from service in public interest after giving three months ' prior notice in writing or an amount equal to three months ' pay and allowances in lieu of such notice on the date on which such government servant com pletes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
The impugned notification was made on October 26, 1988 by the Government of Bihar intimating the appellant that as he had completed the age of more than 50 years, and in the opinion of the Government of Bihar, in public inter est he is compulsorily retired from service with effect from the date of issue of this notification.
He will be paid salary of three months with allowances in lieu of three months ' notice under Rule 74(b)(ii) of Bihar Service Code.
It has been contended on behalf of the appellant that though the impugned order is couched in innocuous terms and it is made in compliance with the provisions of Rule 74(b)(ii) of Bihar Service Code on appellant 's reaching the age of more than 50 years and it does not prima facie appear to cast any stigma on the service career of the appellant yet it has been made by way of punishment casting stigma on the appellant 's service career and as such the impugned order is illegal, bad and the same has been made in viola tion of audi alterem partem rule as well as Article 311(2) of the Constitution.
It has been further submitted in this connection that the power to retire the appellant compulso rily from service has not been made in public interest under Rule 74(b)(ii) of Bihar Service Code but on the basis of the fact finding report given by the Deputy Development Commis sioner, Dumka by his letter dated September 19, 1987 re garding grave financial irregularities committed by the appellant in consideration of which a memorandum was pre pared by the Additional Commissioner cum Special Secretary, Shri T. Nand Kumar on October 6, 1988 recommending to the respondent State to compulsorily retire the appellant from service under Rule 74(b)(ii) of Bihar Code.
It has also been contended that the basis of the order was made with oblique purposes 685 in consideration of extraneous matter and the impugned order purports to removal from service on certain serious allega tions of misconduct and consequently it casts a stigma on the service career of the appellant.
Such order of compulso ry retirement from service though appears to be innocuous, has been made by way of punishment and as such it is liable to be set aside and quashed.
It has, on the other hand, been urged on behalf of the respondent State that the impugned order has been made under Rule 74(b)(ii) of Bihar Service Code in public interest and there is nothing to show from the order itself that it has been made by way of punishment and it casts a stigma on the service career of the appellant.
The language of the order is innocuous.
The appellant cannot delve into the secretari at files to find out the basis of the order.
Some decisions have been cited at the bar in support of this submission.
Rule 74(b)(ii) of the Bihar Service Code confers power on the Appointing Authority to compulsorily retire a govern ment servant on his attaining 50 years of age or after completing 30 years of qualifying service in public inter est.
The object of this rule is to get rid of the government servant who has become dead wood.
This order is made only to do away with service of only those employees who have lost their utility, become useless and whose further continuance in service is considered not to be in public interest.
In the instant case the appellant has an unblemished career and undoubtedly by dint of his merit and flawless service career he had been promoted to the post of Joint Director in 1983 and subsequently on 1st April, 1984 he was promoted to the higher post of General Manager under the respondent State in its Industries Department.
The appellant has specifically pleaded in paragraph K of this appeal that he came to know that the impugned order of compulsory retirement has been issued by the respondent State on the basis of a memorandum dated October 6, 1988.
It has been further pleaded that the appellant came to know from the memorandum that the impugned order of compulsory retirement dated October 26, 1988 has been issued by the respondent State though in the garb of Rule 74(b)(ii) of the Bihar Service Code, but in fact the same has been issued as a measure of punishment.
This fact will be evident from the memorandum dated 6th October, 1988 wherein the State has alleged that six items of charges have been proved against the petitioner (appellant).
The State Government has also accepted that there is no question of going into the formality of departmental proceeding but has decided to retire the petitioner compulsorily under Rules 74(b)(ii) of the Bihar Service Code.
Paragraphs 686 2 to 4 of the Memorandum dated 6th October, 1988 make it clear that the impugned order dated October 26, 1988 of compulsory retirement, has been issued as a measure ' of punishment.
It is further submitted that the order passed on October 26, 1988 was without giving any notice or any show cause to the petitioner.
It has been stated in para 4 to 7 of the counter affidavit as under: (4) That it is not at all necessary to draw departmental proceeding against the petitioner (appellant) before effect ing his compulsory retirement from government service.
Since his retirement under Rule 74(b)(ii) of the Bihar Service Code does not amount to dismissal or removal from government service within the meaning of clause (2) of Article 311 of the Constitution, it is, therefore, not necessary to obtain the advice of the Bihar Public Service Commission (Limita tion of Functions) Regulation, 1956.
(5) That it is relevant to state that while the petitioner (appellant) was General Manager, District Industries Centre, Dumka and Deoghar during the year 1985 onwards till his compulsory retirement, an enquiry into the serious charges of corruption, omission and commission of financial and administrative lapses and foul play against him had been conducted respectively by Deputy Development Commissioner, Dumka, Deputy Commissioner, Dumka and Additional Director of Industries, Bihar, Patna.
The above charges were proved such as: (i) The charge of registration of bogus unit had clearly been established; (ii) Allegations of recommendations and sanction of capital subsidy on D.G. sets to bogus units have been proved; (iii) Where there were no D.G. sets and the unit was bogus, subsidy had been sanctioned against the departmental in structions; (iv) Seed money had been sanctioned to non existent units and payments made in violation of Government orders; 687 (v) Registration had been done for restricted items; (vi) Subsidy on D.G. sets had been sanctioned and payments made to units located outside his jurisdiction; and (vii) Appointment of persons had been made on ad hoc basis beyond his delegated powers in gross violation of Government rules.
(6) That in the above mentioned cases registration; recom mendations and payments had been made by the petitioner (appellant) after making personal inspections of the units which facts are sufficient to prove that he had commited the said irregularities knowingly for his personal gains and thereby the State Government had suffered a heavy loss.
This misconduct on his part had tarnished the image of the Gov ernment in the public.
It is, therefore, his so called exemplary service record which has no co relation with his compulsory retirement as stated in the aforesaid paragraph.
(7) That contention of the petitioner (appellant) as stated in para (viii) of the special leave petition that the memo randum which have formed the basis of causing the compulsory retirement of the petitioner (appellant), is absolutely wrong and without any substance.
It is relevant to state that the memorandum being confidential papers of the re spondent State Government cannot be termed as the Order of compulsory retirement and which order does not contain any word from which a stigma may be inferred.
" It has been further averred in para 8 of the said affi davit that on a perusal of the order of compulsory retire ment of the petitioner (appellant), it is sufficiently clear that no stigma has been attached to the petitioner nor there is any word in the said Order from which a stigma may be inferred.
The Supreme Court has held in the case of I.N. Saxsena vs The State of Madhya Pradesh, [967] 2 SCR 496 that where an order requiting a Government servant to retire compulsorily contains express words from which a stigma can be inferred that order will amount to removal within the meaning of Article 311.
But where there are no express words in the order itself which would throw any stigma on the Government order, we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research.
688 In para 9 it has been stated that it is, therefore, as per the decision of the Supreme Court in the said case, the Court cannot look into the background resulting in the passing of the order of compulsory retirement in order to discover whether some kind of stigma can be inferred and accordingly in the instant case the memorandum is totally irrelevant for the consideration by the Court and in view of the same the appeal of the appellant can be dismissed.
A supplementary affidavit has been filed on behalf of the appellant sworn by Suhird Kumar, son of the appellant.
In para 3 of the said affidavit it has been submitted that the memorandum is prepared on the basis of two enquiry reports done by the different officers without there being any notice or getting any other version and this sort of memorandum cannot be said to be a fair memorandum in the eyes of law and so any action taken by the State Government on the basis of the said Memorandum is bad and violative of Article 14 and 16 of the Constitution of India.
It is thus, clear and evident from the counter affidavit filed on behalf of the State Government referred to herein before that the basis of the impugned order of compulsory retirement from service of the appellant is not in public interest as stated in the order of compulsory retirement dated October 26, 1988.
The impugned order, in fact, has been passed on the basis of the memorandum dated October 6, 1988 which is also based on the Report given by the Deputy Development Commissioner, Dumka by his letter dated Septem ber 19, 1987 without asking any explanation from the appel lant and without giving him any opportunity to defend his case before the Deputy Development Commissioner.
It is, therefore, wrong to say that the basis of the order is not the said memorandum as well as the report of the Deputy Development Commissioner which clearly evinces that the impugned order of compulsory retirement is a mere camouflage being couched in innocuous terms and in fact the same has been made by way of punishment.
In support of the impugned order it has been vehemently urged on behalf of the respondent State that the order of compulsory retirement dated October 26, 1988 does not show prima facie that it has been made by way of punishment.
The Order as it is, speaks of compulsory retirement of the appellant from service in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code.
It has been con tended further ' that this order being couched in innocuous terms cannot be questioned and the appellant cannot delve into the secre 689 tariat filed to find out the basis of the order and to challenge the same on that basis.
Reference has been made in this connection to the case of 1.
N. Saksena vs The State of Madhya Pradesh, (supra).
In that case, the State of Madhya Pradesh issued a memorandum on February 28, 1963 raising the age of retirement of its employees from 55 to 58 years.
Clause 5 of the memorandum, however, said that the appoint ing Authority may require a Government servant to retire after he attained the age of 55 years on three months ' notice without giving any reasons.
The clause further said that this power was normally to be used to weed out unsuit able employees.
The appellant who was a District and Ses sions Judge in the service of the State Government would normally have retired at the age of 55 years in August, 1963.
In September, 1963, however, Government communicated to.
him an order that he was to retire on December 31, 1963 under Rule 56 of the Fundamental Rules applicable to the State of Madhya Pradesh.
This order was challenged by the appellant by writ petition before the High Court of Madhya Pradesh.
It was rejected.
Thereafter, the appellant came with a certificate, to this court.
It has been held by this Court in that case that: "Where there are no express words in the order of compulsory retirement itself which would throw a stigma on the Govern ment servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research.
Since in the present case there are no words of stigma in the order compulsorily retiring the appellant, there was no removal requiring action under article 311 of the Constitution.
" This decision does not, in any way, apply to this case for the simple reason that in the affidavit in counter filed by the respondent State it has been categorically stated that while passing the impugned order of compulsory retirement the officers concerned were guided by the report dated September 19, 1987 submitted by the Deputy Development Commissioner, Dumka who stated in his report that the appel lant was responsible for the grave and serious financial irregularities resulting in financial loss to the State Government, without giving any opportunity of hearing and without intimating the allegations to the appellant before forming his opinion.
The said report was taken into consid eration and memorandum in question was issued on October 26, 1988 by the Additional Secretary, Industries Department, Government of Bihar wherein it has been clearly stated that the impugned order of compulsory retirement was made as the said mis 690 conduct on the part of the appellant tarnished the image of the Government in the public.
This categorical statement made in the affidavit in counter clearly proves that the basis of making the order of compulsory retirement of the appellant from the service is the aforesaid report of the Deputy Development Commissioner, Dumka referred to hereinbe fore.
In such circumstances, it is futile to argue that the order of compulsory retirement being couched in an innocuous language without causing any stigma is unassailable.
It is pertinent to mention in this connection the case of Shyam Lal vs The State of U.P. & Anr., ; wherein it has been held by the Constitution Bench that: "A compulsory retirement under the Civil Services (Classifi cation, Control and Appeal) Rules, does not amount to dis missal or removal within the meaning of Article 311 of the Constitution and therefore, does not fall within the provi sions of the said Article.
" "There is no such element of charge or imputation in the case of compulsory retirement.
The two requirements for compulsory retirement are that the officer has completed 25 years ' service and that it is in the public interest to dispense with his further services.
It is true that this power of compulsory retirement may be used when the authori ty exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465 A make it abundantly clear that an imputation or charge is not in terms made a condi tion for the exercise of the power.
In other words, a com pulsory retirement has no stigma or implication of misbeha viour or incapacity.
" It has been further held that: "A compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution.
In Baldev Raj Chadha vs Union of India and Ors., 1 it was held that: 691 "The whole purpose of Fundamental Rule 56(j) is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution.
But under the guise of 'public interest ' if unlimited direction is regarded accept able for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal.
The exercise of power must be bona fide and promote public interest.
" It has also been observed that: "An officer in continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immedi ately before the compulsory retirement cannot be compulsori ly retired on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms.
" In the case of Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791 it has been observed by this Court that: "Fundamental Rule 56(i) does not in terms require that any opportunity should be given to the concerned Government servant to show cause against his compulsory retirement.
It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so.
If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.
" In Shamsher Singh & Anr.
vs State of Punjab, ; the appellant Shamsher Singh was a Subordinate Judge on probation.
His services were terminated by the Government of Punjab in the name of Governor of Punjab by an order which did not give any reasons for the termination.
It has been held that: "No abstract proposition can be laid down that where the services of probationer are terminated without saying any 692 thing more in the order of termination that it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of mis conduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportu nity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
" In that case the appellant was asked to show cause why his services should not be terminated and there were four grounds.
One was that the appellant 's behaviour towards the Bar and the litigant public was highly objectionable, de rogatory, non cooperative and unbecoming of a judicial officer.
The second was that the appellant would leave his office early.
The third was the complaint of Om Prakash, Agriculture Inspector that the appellant abused his position by proclaiming that he would get Om Prakash involved in a case if he did not cooperate with Mangal Singh, a friend of the appellant and Block Development officer, Sultanpur.
The fourth was the complaint of Prem Sagar that the appellant did not give full opportunity to Prem Sagar to lead evi dence.
Prem Sagar also complained that the decreeholder made an application for execution of the decree against Prem Sagar and the appellant without obtaining office report incorporated some additions in the original judgment and warrant of possession.
The appellant showed cause stating that he was not provided with an opportunity to work under the same superior officer for at least six months so that independent opinion could k., formed about his knowledge, work and conduct.
Thereafter, the appellant received a letter from the Deputy Secretary to the Government addressed to the Registrar, Punjab and Haryana High Court that the services of the appellant had been terminated.
It has been held that in the facts and circumstances of the case it is clear that the order of the termination of the appellant, Shamsher Singh was one of punishment.
The authorities were to find out the suitability of the appellant.
The order of termination is in infraction of Rule 9 which makes it incum bent upon the authority that the services of a probationer can be terminated on specific fault or on account of unsat isfactory record implying unsuitability.
The order of termi nation was, therefore, set aside.
This judgment has been followed in the case of Anoop Jaiswal vs Government of India and Anr., ; It has been observed that: 693 "It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the Court holds that the order though in the form is merely a determination of em ployment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the fights conferred by law upon the employee.
" It has also been observed that: "Even though the order of discharge may be non committal, it cannot stand alone.
Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored.
The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character.
If on reading the two together the Court reaches the conclu sion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in article 3 11(2) of the Constitution.
" On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government serv ant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any miscon duct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal 's case.
This being the position the respondent State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code 694 which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant.
But in view of the clear and specific averments made by the respondent State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment.
As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide.
In the premises aforesaid we hold that the impugned order has not been made bona fide but for collateral pur poses and on extraneous consideration by way of punishment.
The impugned order is, therefore, illegal and unwanted and so it is liable to be quashed and set aside.
We, therefore, allow the appeal and set aside the impugned order.
We fur ther direct the respondents to reinstate the appellant in service forthwith with full back wages.
The respondents will pay costs to the appellant.
N.P.V. Appeal allowed.

summary/full:
The appellant, an officer of Bihar State, filed a writ petition before the High Court, challenging the order of compulsory retirement passed by the respondent State, under Rule 74(b)(ii) of Bihar Service Code, 1979, contending that throughout his service of 30 years he had an exemplary service career and his integrity remained unquestionable and that neither any adverse remarks were communicated to him nor any departmental proceedings were initiated against him, nor any explanation called for from him.
The High Court dismissed the writ petition by a laconic order.
In the appeal, by special leave, the appellant contended that though the order was couched in innocuous terms and made in compliance with the provisions of Rule 74(b)(ii) of Bihar Service Code on appellant 's reaching the age of more than 50 years, and prima facie not appearing to cast any stigma, it was not made in public interest, but made by way of punishment for oblique purposes, in consideration of extraneous matter and purporting to removal from service on certain serious allegations of misconduct, casting a stigma, and hence the order was illegal, bad and in violation of audi alterem partem rule and Article 311(2) of the Constitu tion and was liable to be quashed.
On behalf of the respondent State it was contended that the order had been made in public interest under Rule 74(b)(ii) and there was nothing to show from the order itself that it had been made by way of punishment, casting a stigma, the language of the order was innocuous, and the appellant could not delve into the secretariat files, to find out the basis of the order.
680 Allowing the appeal, this Court, HELD: 1.1 Even though the order of compulsory retirement is couched in innocuous language without making imputations against the government servant, who is directed to be com pulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant.
[693F G] Shamsher Singh & Anr.
vs State of Punjab, and Anoop Jaiswal vs Government of India and Am '.
, ; , relied on.
Shyam Lalv.
The State of U. P. & Anr., ; ; Baldev Raj Chadha vs Union of India and Ors., ; and Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791, referred to.
I.N. Saxsena vs The State of Madhya Pradesh, ; , distinguished.
1.2 The object of Rule 74(b)(ii) of the Bihar Service Code is to get rid of the government servant who has become dead wood.
This order is made only to do away with service of only those employees who have lost their utility, become useless and whose further continuance in service is consid ered not to be in public interest.
[655D] 1.3 In the instant case, the appellant had an unblem ished career, and undoubtedly by dint of merit and flawless service career, had been promoted to the post of Joint Director and ultimately to the post of General Manager.
The counter affidavit filed on behalf of the respondent State has categorically stated that while passing the order of compulsory retirement the officers concerned were guided by the report dated September 19, 1987 which stated that the appellant was responsible for grave and serious financial irregularities resulting in financial loss to the State Government, without giving any opportunity of hearing and without intimating allegations to the appellant before forming the opinion.
The memorandum in question has clearly stated that the order of compulsory retirement was made as the appellant 's misconduct tarnished the image of the Gov ernment in the public.
This categorical 681 statement clearly proves that the basis of making the order is the report dated September 19, 1987.
Therefore, the order of compulsory retirement cannot be defended on the mere plea that it has been made in accordance with the provisions of Rule 74(b)(ii) which prima facie does not make any imputa tion or does not cast any stigma on the career of the appel lant.
[657E, 689F H, 690A, 693H, 694A] In view of the clear and specific averments made by the respondent State that the order has been made under Rule 74(b)(ii) as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the order cannot but be said to have been made by way of punishment.
Such an order is in contravention of Article 311 of the Constitution and arbitrary as it violates princi ples of natural justice.
It has not been made bona fide, but for collateral purposes and for extraneous consideration by way of punishment and is, therefore, illegal, unwarranted and liable to be quashed.
[694A B, C] Accordingly the order of compulsory retirement is set aside and the respondents are directed to reinstate the appellant with full back wages.
[694D]


judgement:
Appeals nos.
317 to 320 of 1957.
Appeal from the judgment and order dated March 5, 1954, of the Madras High Court, in Writ Petitions Nos. 613 and 629 of 1952 and 201 and 202 of 1953.
A. V. Viswanatha Sastri and B. K. B. Naidu, for the appellants.
191 A. N. Kripal, R. H. Dhebar and D. Gupta, for respondent No. 1. 1958.
October 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These four appeals arise from four petitions filed against the Income tax Officer , Nellore Circle, Nellore, respondent 1, in respect of the proceedings taken by him against three firms under section 34 of the Indian Income tax Act (hereinafter called the Act).
The firm M/s. Bellapu Audeyya and Chilla Pitchayya was formed on April 20, 1936, and it was dissolved on March 31, 1948.
It consisted of two partners, Chilla Pitchayya and Bellapu Audeyya.
Chilla Pitchayya had started another firm in the name and style of G. Pitchayya & Co. with another partner R. Subba Rao.
This firm was formed on July 30, 1941, and it was dissolved on March 31, 1949.
Bellapu Audeyya and.
Chilla Pitchayya had also formed another firm along with five other partners which carried on its business in the name and style of Prabbat Textiles.
This firm was formed on December 1, 1941, and it " as dissolved by a decree of the civil court Passed oil December 22, 1949, the dissolution having taken effect from January 1, 1949.
All the three firms were carrying on business in yarn and cloth and all of them were registered under section 26A of the Act.
It appears that for the purpose of assessing the income of these firms for the years 1943 44 and 1944 45, respondent 1 was satisfied on making enquiries that each of the three firms was a separate entity and so separate assessment orders were passed in respect of the income of each one of them for the said two years.
Subsequently on August 14, 1951, respondent I issued notice against the firm of Prabliat Textiles under s.34 of the Act.
In the proceedings thus commenced, respondent I hold that the firm of Prabhat Textiles was a fictitious tirm and that the real partners ",ere C. Pitchayya and B. Audeyya.
As a result of this finding, respondent I cancelled the registration of the said firm under r. 6B of the Income tax Rules and passed fresh orders of assessment against the said firm on the 192 basis that it was an unregistered firm for the assessment years 1943 44 and 1944 45 on August 14, 1952, and February 25, 1953, respectively.
Similar action was taken by respondent I in respect of the two other firms on the same dates.
Thereupon Y. Narayana Chetty, one of the partners of the Prabhat Textiles filed a writ petition in the High Court of Madras, No. 613 of 1952, against respondent I under article 226 of the Constitution and prayed that the High Court, should issue a writ of prohibition or any other appropriate writ, order or direction prohibiting the first respondent from continuing the proceedings as per his notice of August 14, 1951, and from enforcing the order of fresh assessment passed in the said proceedings oil August 14, 1952, in regard to the assessment year 1943 1944.
In respect of the same firm Chilla Pitchayya sought for a similar relief by Writ Petition No. 201 of 1953 in regard to the proceedings and assessment order for the assessment year 1944 45.
The same Chilla Pitchayya also filed Writ Petitions Nos.
629 of 1952 and 202 of 1953 in respect of the proceedings taken and fresh assessment orders passed against the two remaining firms for the assessment years 1943 44 and 1944 45 respectively.
The four petitions were heard together by the High Court and were dismissed on March 5, 1954.
The petitioners then applied for and obtained from the High Court a certificate under article 133 read with 0.
XLV, r. 1, 2, 3 and 8 that the value of the subject matter in the peti tions before the High Court as well as of the appeals before this Court was more than Rs. 20,000.
It is with this certificate that the four appeals have come before this Court.
Y. Narayana Chetty is the appellant in Civil Appeal No. 317 of 1957 whereas Chilia Pitchayya is the appellant in Civil Appeals Nos. 318, 319 and 320 of 1957.
In the High Court it was urged by the appellants that the proceedings taken under section 34 against each of the said firms were without jurisdiction and void.
It was also contended that the cancellation of the registration of each of the firms was similarly void and without jurisdiction inasmuch as r. 6B under which the said order of cancellation was passed was ultra vires the Central Board of Revenue which promulgated the rules under the powers conferred on it by the Act.
Besides the appellants attacked the validity of the orders passed against them under section 31 on the ground that it was illegal to assess escaped income under section 34 on the basis that the firms were unregistered firms while maintaining the original assessment for the said firms on the basis that they had been duty registered under section 26A of the Act.
The High Court has held against the appellants on all these points.
Besides the high Court has stated in its judgment that it was admitted by the appellants before it that appeals had been filed against each one of the orders challenged in the writ proceedings and the High Court thought that that itself would suffice to justify its refusal to exercise its jurisdiction under article 226 of the Constitution.
However, since the primary relief asked for by the appellants in their respective petitions was the issue of writ of prohibition the If High Court felt that it may as well deal with the merits of the contentions raised by the appellants.
That is why the High Court examined the merits of the said contentions.
On behalf of the appellants, Mr. Viswanatha Sastri has raised the same three points before us.
The first point raised by Mr. Sastri is that the proceedings taken by respondent I under section 34 of the Act are invalid because the notice required to be issued under the said section has not been issued against the assessees contemplated therein.
In the, present case the Income tax Officer has purported to act under section 34(I)(a) against the three firms.
The said sub section provides inter alia that " if the Income tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income tax has been under .assessed", he may, within the nine prescribed, " serve on the assessee a notice containing all or any of the requirements which may 194 be included in the notice under sub section
(2) of section 22 and may proceed to reassess such income, profits or gains.
" The argument is that the service of the requisite notice on the assessee is a condition precedent to the validity Of any reassessment made under section 34; and if a valid notice is not issued as required, proceedings taken by the Income tax Officer in pursuance of an invalid notice and consequent orders of reassessment passed 'by him would be void and inoperative.
In our opinion, this contention is well founded.
The notice prescribed by section 34 cannot be regarded as a more procedural requirement; it is only if the said notice is served on the assessee as required that the lncome tax Officer would be justified in taking proceedings against him.
If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the Income tax Officer without a notice or in pursuance of an invalid notice would be illegal and void.
That is the view taken by the Bombay and Calcutta High Courts in the Commissioner of Incometax, Bombay City vs Ramsukh Motilal (1) and B. K. Das & Co. vs Commissioner of Income tax, West Bengal (2) and we think that that view is right.
Let us then consider the nature of the notice issued by the Income tax Officer in the present proceedings.
It is conceded by Mr. Sastri that the notice issued by the Income tax Officer was served on the appellant C. Pitchayya on behalf of the firms in question and that in each case the notice specifically averred that the Income tax Officer had reason to believe that the income of the assessee had been under assersed in the relevant years of assessment.
The notice further required the assessee to deliver to the officer within thirty five days of the receipt of the notice a return in the attached form of the total income and total world income of the assessee assessable for the relevant period.
In pursuance of this notice the appellant Pitchayya in fact appeared before the officer during the course of the proceedings commenced under s.34.
Mr. Sastri contends that this notice is defective be cause it purports to be issued Against the firm and no (1) [1955] '27 I.T.R. 54.
(2) 195 notice has been issued against the respective partners of the firm.
According to Mr. Sastri the assessee who is entitled to a notice under section 34(1)(a) is not the firm but each individual partner of the firm.
He also suggests that each individual partner should have been called upon to make a return of his total income assessable for the relevant year; inasmuch as the notice is issued against the firm and not against individual partners it is invalid.
In support of this argument Mr. Sastri has referred us to the definition of the word " assessee" under section 2, cl.
(2) as it stood prior to the amendment of 1953.
Under the said clause, assessee meant " person by whom income tax is clearly payable".
In the case of a registered firm income tax is clearly payable by the individual partners of the firm under section 23(5) of the Act, savs Mr. Sastri; and so, if the Income tax Officer intended to take action under section 34 it was his duty to issue the requisite notice against individual partners in respect of their respective incomes for which they were liable to pay the tax.
This argument purports to derive support from the provisions of section 23(5) as they stood before the amendment introduced in 1956.
The effect of the said provisions was that "the sum payable by the firm itself shall not be determined but the total income of each partner of the firm including therein his share of its income, profits and gains in the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined "; so that what the Income tax Officer had to do in assessment proceedings against a registered firm was to determine the total income of each partner of the firm and not to determine the sum payable by the firm itself.
The argument is that this provision shows that the person liable to pay the tax was each individual partner of the firm and so it is the individual partners of the firm who are entitled to the statutory notice under section 34(1)(a).
In our opinion, this argument is not well founded.
Section 3 of the Act which is the charging section provides inter alia that "where any Central Act enacts that income tax can be charged for any year at any rate or rates, tax at that rate or those rates shall be 196 charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous year of every firm ; " in other words, a firm is specifically treated as an assessee by section 3.
Besides, the word "person" used by section 2, sub section (2) of the Act while defining the assessee, would obviously include a firm under section 3(42) of the General Clauses Act since it provides that a person includes "any company or association or body of individuals whether incorporated.
or not ".
Therefore, it would not be correct to say that an assessee under section 2, sub section
(2) of the Act necessarily means an individual partner and does not include a firm.
The argument based upon the relevant provisions of section 23(5) is also not valid be.
cause it is obvious that for the purposes of assessment at all relevant and material stages under sections 22 and 23 it is the firm that is treated as an assessee.
When a return of the income is made for the relevant year, it is a return with regard to the total income of the firm that has to be submitted under section 22; and when assessment is levied under section 23, the Income tax Officer determines and can determine the total income of each partner of the firm only after ascertaining the total income of the firm itself It is true that section 23(5) as it then stood required the Income tax Officer to determine the total income of each partner of the firm including his share of the firm 's income and to assess each partner in respect of such income, and in that sense individual partners of the firm undoubtedly became liable to pay income tax ; but it is clear that in determining the total income of each partner his share in the firm 's income has to be included and so the firm does not cease to be an assessee for the purpose of section 23(5).
This position is now clarified by the provisions of section 23(5)(a)(i) and (ii) as amended in 1956.
The present section 23(5)(a)(i) and (ii) provides: section 23(5)(a)(i) and (ii): (5) Notwithstanding anything contained in the foregoing sub sections, when the assessee is a firm and the total income of the firm has been assessed under subsection (1), sub section (3) or sub section (4), as the case may be 197 (a) in the case of a registered firm (1) the income tax payable by the firm itself shall be determined; and (ii) the total, income of each.
partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined: and so it is clear that the registered firm does not at all cease to be an assessee under this provision.
In this connection it would be relevant to refer to section 23(4).
This subsection provides: " If any person fails to make the return required by any notice given under subsection (2) of section 22 and has not made a. return or a revised return under sub section (3) of the same section or fails to comply with all the terms of a notice issued under sub section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under subsection (2) of this section, the Income tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered: Provided that the registration of a firm shall not be cancelled until fourteen days have elapsed from the issue of a, notice by the Income tax Officer.to the firm intimatiiig his intention to cancel its registration" This provision clearly shows that the person to whom the first part of the provision refers includes a firm and it lays down that if a firm commits a default as indicated the Income tax Officer may refuse to register it or may cancel its registration if it is already registered.
Thus there can be no doubt that section 23(4) treats the fit in as an assessee and provides for the imposition of penalty against the firm in case the firm commits any of the defaults indicated in the sub section.
The effect of the relevant provisions of section 23 therefore is that for the assessment of the total taxable income it is the affairs of the assessee firm that are investigated and 198 examined and when the total income of the firm is ascertained, it is allocated to its individual partners in proportion to their respective shares.
The result of such allocation undoubtedly is to make the partners liable to pay tax in respect of their taxable income thus allocated ; but that cannot justify the inference that the firm is not an assessee in the relevant proceedings.
Even when the notice is issued under section 34(1)(a) the Income tax Officer proceeds to act on the ground that the income, profits and gains of the firm which are chargeable to an income tax have been under assessed; it is the income of the firm which is initially ascertained in the assessment proceedings under section 23 and it is in respect of the said income of the firm that the Income tax Officer finds that a part of it has escaped assessment.
We do not, therefore, think that the appellant 's argument that the notice issued against the firm and served on the appellant was invalid under section 34(1)(a) can be accepted.
It is then urged that the Income tax Officer was bound to issue notices to individual partners of the firms because at the material time all the firms had been dissolved.
Mr. Sastri concedes that under section 63 (2) a notice or requisition under the Act may in the case of a firm be addressed to any member of the firm but his contention is that this applies to a firm in existence and not to a firm dissolved.
If the, appellants ' case is that as a result of dissolution of the firms the firms had discontinued their business as from the respective dates of dissolution they ought to have given notices of such discontinuance of their business under section 25(2) of the Act.
Besides, in the present case, the main appellant has in fact been served personally and the other partners who may not have been served have made no grievance in the matter.
We are, therefore, satisfied that it is not open to the appellants to contend that the proceedings taken by the Income tax Officer under section 34(1)(a) are invalid in that notices of these proceedings have not been served on the other alleged partners of the firms.
Incidentally it may be pointed out that the finding of 199 the Income tax Officer in respect of all the three firms is that the only persons who had interest in the business carried on by the said firms were B. Audeyya and C. Pitchayya.
It is remarkable that B. Audeyya has not cared to challenge the proceedings or to question the validity of the fresh assessment orders passed by the Income tax Officer in the present proceedings.
Mr. Sastri then challenges the validity of the cancellation of the registration of the three firms on the ground that r. 6B under which the Income tax Officer purported to act is ultra vires.
Rule 6B provides that in the event of the Income tax Officer being satisfied that the certificate granted under r. 4 or under r. 6A has been obtained without there being a genuine firm in existence he may cancel the certificate so granted.
The material rules of which r. 6B is a part have been framed by the Central Board of Revenue under the authority conferred by section 59 of the Act.
This section empowers the Central Board of Revenue, subject to the control of the Central Government, to make rules inter alia for carrying out the purposes of the Act.
Section 59 (2)(e) lays down that such rules may provide for any matter which by this Act is to be prescribed and the rules preceding r. 6B deal with the procedure to be followed, and prescribe the application to be made, for the registration of firms under section 26A of the Act.
Section 59(5) provides that the rules made under the said section shall be published in the official gazette and shall thereupon have effect as if enacted in this Act.
Thus there is no doubt that the rules are statutory rules and once they are published in the official gazette they are operative as if they were a part of the Act.
Mr. Sastri concedes this position; but he argues that r. 6B is inconsistent with the material provisions in the Act and is therefore ultra vires the Central Board of Revenue.
This argument is based substantially on the provisions of section 23(4).
We have already referred to the provisions of this subsection.
Mr. Sastri contends that it is only where the requirements of section 23(4) are satisfied that the registration of a firm can be cancelled.
The procedure for registration of firms is laid down in section 26A of 200 the Act.
An application has to be made to the Incometax Officer on behalf of any firm constituted Linder the instrument of partnership specifying the individual shares of the partners for registration for the purposes of the Act and of any other enactment for the time being in force and relating, to income tax and supertax.
Sub section (2) requires that the said application ,,hall be made by such person or persons and, at such times and shall contain such particulars and shall be in such form and be verified in such manner as may be prescribed and it shall be dealt with by the Incometax Officer in such manner as may be prescribed.
It is in pursuance of the requirements of section 26(2) that the relevant rules for the registration of the firms have been made.
The question which arises for our decision in this connection is: if a firm has been registered Linder section 26A, when can such registration be cancelled ? The appellant suggests that the only cases in which such registration can be cancelled are those prescribed in section 23(4).
We have no doubt that this argument is fallacious.
The cancellation of registration under section 23(4) is in the nature of a penalty and the penalty can be imposed against a firm if it is guilty of any of the defaults mentioned in the said subsection.
It would be noticed that where registration is cancelled under section 23(4), there is no doubt that the application for registration had been properly granted.
The basis of an order under section 23(4) is not that the firm which had been registered was a fictitious one, but that, though the registered firm was geniuine, by its failure to comply with the requirements of law it had incurred the penalty of having its registration cancelled.
That is the effect of the provisions of section 23(4).
On the other hand, r. 6B deals with cases where the Income tax Officer is satisfied that a certificate of registration has been granted under r. 4 or under r. 6A without there being a genuine firm in existence ; that is to gay an application for registration had been made in the name of a firm which really did not exist; and on that ground the Income tax Officer proposes to set right the matter by cancelling the certificate which should never have been granted to the 201 alleged firm.
That being the effect of r. 6B it is im possible to accede to the argument that the provisions of this rule are inconsistent with the provisions of section 23(4) of the Act.
If the Income tax Officer is empowered under section 26A read with the relevant rules to grant or refuse the request of the firm for registration, it would normally be open to him to cancel such registration if he discovers that registration had been erroneously granted to a firm which did not exist.
Rule 6B has been made to clarify this position and to confer on the Income tax Officer in express and specific terms such authority to review his own decision in the matter of the registration of the firm when he dis covers that his earlier decision proceeded on a wrong assumption about the existence of the firm.
In our opinion, there is no difficulty in holding that r. 6B is obviously intended to carry out the purpose of the Act and since it is not inconsistent with any of the provisions of the Act its validity is not open to doubt.
It is, however, urged that whereas the firm aggrieved by the order passed by the Income tax Officer under section 23(4) can challenge the correctness or propriety of the order in an appeal against the final assessment order passed under section 23, no such remedy is available to the firm whose registration is cancelled under r. 6B.
We are not impressed by this argument.
The validity of the rule cannot, in our opinion, be challenged merely on the ground that no appeal has been provided against the order passed under the impugned rule.
It is also true that whereas before taking action under section 23(4) the Income tax Officer is required to issue a notice to the firm, no such provision is made under r. 6B.
Mr. Sastri has, however, conceded that the appellant before us had notice and was given an opportunity to satisfy the Income tax Officer that the respective firms were genuine and not fictitious.
Thai being so we do not think that it would be open to the appellant to contend that the order passed against him under r. 6B is invalid on the purely academic ground that r. 6 B does not require notice to be issued before the registration of a firm is cancelled.
If the power 26 202 under r. 6B is exercised by the Income tax Officer against a firm without giving it a notice in that behalf and without affording it an opportunity to satisfy the officer that it is a genuine firm, it may be open to the firm to question the validity of the order on that ground.
We are, however, not called upon to deal with such a case in the present appeals.
In this connection we may incidentally refer to the decision of this Court in Ravula Subba Rao vs Commissioner of 1.
T., Madras (1) where this Court has held that rules (2) and (6) of the rules framed under section 59 of the Indian Income tax Act are not ultra vires the rule making authority.
The last argument which Mr. Sastri sought to raise before us was that the revised assessment is completely illogical, and therefore illegal, in each case inasmuch as the original assessment for the two assessment years still remains as on the basis that the firms in question are registered and the fresh assessment in respect of the escaped income for the same years is made on the basis that the said firms are not registered.
Mr. Sastri says that it is not open to the Income tax Officer to adopt such a course.
If registration has been cancelled the whole of the assessment should be made on that footing; the department cannot treat the firm as registered for part of the income, and unregistered for the balance, during the same assessment years; that is Mr. Sastri 's grievance.
We do not propose to deal with the merits of this contention.
There can be no doubt that it would be open to the appellants to raise this contention in the appeals which they have filed against the fresh orders of assessment.
We understand that applications have been made by the appellants in respect of the said orders of assessment under section 27 of the Act.
If that be so, the appellants may, if it is open to them to do so, ventilate their grievance in the said proceedings also.
We hold that this contention cannot be urged in petitions for writs of prohibition under article 226 of the Constitution, since they do not raise any question of jurisdiction.
All that the appellants would be able to argue on this ground (1) [1956] S.C.R. 577.
203 would be that the course adopted by the Income tax Officer in making orders of fresh assessment is irregular and illogical and should be corrected.
That is a matter concerning the merits of the orders of assessment and by no stretch of imagination can it be said to raise any question of jurisdiction under article 226.
That is why we express no opinion ' on this point.
Before we part with this case we would like to, observe that Mr. Kripal for the respondent sought to raise three preliminary objections.
He urged that the issue of a writ is a discretionary matter and since the High Court has refused to exercise its discretion in favour of the appellants the appeals would be virtually incompetent inasmuch as this Court would be slow to interfere with the exercise of discretion by the High Court.
He also argued that the original petitions to the High Court are incompetent under article 226 since under the Act the appellants had an alternative effective remedy available to them in the form of appeals against the impugned orders and in fact they had filed such appeals and had also made applications under section 27 of the Act.
Mr. Kripal also contended that the High Court would have no jurisdiction to issue a writ of prohibition against the tax authorities.
We do not propose to consider these objections because, as we have already indicated, we are satisfied that the view taken by the High Court on the points raised before it is right.
These objections may have to be considered in future on a suitable occasion.
The result is the appeals fail and must be dismissed with costs.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Two persons, B and C, formed a partnership firm on April 20, 1936, and the firm was dissolved on March 31, 1948.
I and C along with R formed a second firm on July 30, 1941, and it was dissolved on March 31, 1949.
B and C along with five others formed a third firm on December 1, 1941, and it was dissolved on January 1, 1949.
All the three firms were carrying on business in yarn and cloth and all of them were registered under section 26 A of the Income tax Act.
For the years 1943 44 and 1944 45 tile said firms were treated as separate entities and separate assessment orders were passed in respect of the income of each one of them for the said years.
Subsequently, the Income tax Officer served notices under section 34 Of the Act on C on behalf of the firms and after hearing the parties he held that the firms were fictitious and so cancelled their registration under r. 6B of the Income tax Rules and passed fresh orders of assessment against them on the basis that they were unregistered firms.
One Y who was a partner in the third firm and C filed four writ petitions under article 226 of the Constitution in the High Court challenging the validity of the orders passed.
The High Court dismissed the petitions but granted certificates of fitness to appeal 190 under article 133.
The appellants contended that r. 6B was inconsistent with section 23(4) of the Act and was ultra vires, that consequently the cancellation of registration of the firms was without jurisdiction and was void and that the proceedings taken under section 34 Of the Act were invalid as the required notice was not issued against the individual partners who were the assesses.
Held, that r. 6B of the Income tax Rules was not inconsis tent with section 23(4) Of the Act and was not ultra vires.
Rule 6B dealt with cancellation of registration in cases where the certificate of registration had been granted without there being a genuine firm in existence, while section 23(4) dealt with cancellation of registration on account of failure to comply with the requirements of law, though the registered firm was genuine.
Rule 6B was obviously intended to carry out the purpose of the Act and was valid.
The fact that no appeal had been provided against an order made under r. 6B was no ground for challenging its validity.
It was also not open to the appellants to contend that the orders passed under section 6B were invalid on the ground that the rule did not require the giving of any notice before the can cellation of registration as in the present case notice had actually been given and the appellants had been afforded an opportunity of being heard.
Held, further, that in the cases of registered firms, the firms themselves were the assessees and as such the notices issued under section 34 against the firms and served upon C were valid and proper notices, :and it was not necessary to serve notices upon the individual partners of the firms.
The notice prescribed by section 34 was not a mere procedural requirement.
If no notice was issued or if the notice issued was shown to be invalid then the proceedings taken by the Income tax Officer would be illegal and void.
Commissioner of Income tax, Bombay City vs Ramsukh Motilal, and R. K. Das & Co. vs Commissioncy of Income tax, West Bengal, , approved.
The contention that the assessments were completely illogical and therefore illegal could not be urged in a petition under article 226 of the Constitution since it did not raise any question of jurisdiction.


judgement:
Appeal No. 62 of 1990.
From the Judgment and Order dated 2.12.1989 of the Allahabad High Court in C.M.Appn.
No. 17984 (W) of 1989 in W.P. No. 5400 of 1989.
Mukul Mudgal for the Appellant.
Anil Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit, E.C. Agrawala, Atul Sharma and V.K. Pandita for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This appeal by special leave is against the Order of the Allahabad High Court, Lucknow Bench, in C.M. Application No. 17984 (W) of 1989 in Writ Petition No. 5400 of 1989.
The application for clarification and modification of the judgment in the Writ Petition was filed in the High Court by the appellant, though not a party to that proceed ing, on the ground that he was adversely affected by it.
The appellant was nominated by the State of Himachal Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh.
The appellant successfully completed his course of studies in Uttar Pradesh and secured the B.D.S. degree.
For that purpose he had stayed in that State for over a period of five years.
He later applied for admission to 671 the M.D.S. course at King George Medical College, Lucknow.
He secured admission to the course, but in a subject other than that of his choice.
The subject of his choice was Oral Surgery, but what was offered to him was Periodontics.
The reason for denying the appellant the subject of his choice was that he had to step down in favour of others who had come within the rule of preference as per the Notification dated August 19, 1983 issued under section 28(5) of the U.P. State Universities Act, 1974 (U.P. Act No. 29 of 1974) providing for reservation of seats and prescribing a resi dence qualification for selection to the M.D.S. course.
By the impugned order, the High Court rejected the appellant 'S prayer for clarification and modification of its judgment in Writ Petition No. 5400 of 1989 and held that that judgment was rendered in accordance with the principle laid down in its earlier decision in Writ Petition No. 5325 of 1988 where the residence qualification prescribed by the Notification was so construed as to be applicable only to a person who was a resident in the State of Uttar Pradesh for reasons other than that of merely completing a course of studies.
In other words, the High Court refused to accept the appellant 's contention that the residence qualification should be so construed as to entitle to admission a person, like the appellant, who had come from outside the State strictly and solely for the purpose of undergoing a course of studies and returning to his own State upon completion of the course.
The High Court held that residence strictly for studies without more did not bring a person within the ambit of the Notification.
This is what the High Court stated in its judgment in Writ Petition No. 5400 of 1989, clarifica tion of which was sought by the appellant: "In other words those candidates who joined B.D.S. Course on the basis of nominations made by the Central Government or their own State and were not bona fide residents of the State of Uttar Pradesh prior to joining the B.D.S. Course will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State of Uttar Pradesh for five years or more for completion of the B.D.S. Course or housemanship." The appellant does not challenge the validity of the notified provisions.
The sole question which arises for consideration is as regards the construction of clause 4 of the said Notification.
Before reading that clause, it may be noticed that clause 1 of the Notification provides for reservation of seats in favour of candidates belonging to the 672 categories specified therein.
Clause 2 then provides: "2.
The remaining seats shall be filled up on the basis of merit by the candidates who have passed the B.D.S. examina tion from the K.G. Medical College, Lucknow, obtaining a minimum of 55% marks in the aggregate and who are bona fide residents of Uttar Pradesh.
(emphasis supplied) The High Court notices that clause 2 stipulates two conditions, namely (i) institutional; and (ii) residential.
The High Court observes that the appellant satisfies the first requirement the institutional, but does not fulfill the second requirement, namely, bona fide residence.
A bona fide resident is one who comes within the meaning of that expression in clause 4, which reads: "4.
For the purpose of this order the expression 'bona fide resident of Uttar Pradesh ' shall mean (a) a citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh; or (b) a citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pra desh for not less than five years at the time of making the application." (emphasis supplied) It is not disputed that the appellant is a citizen of India and is domiciled in India.
The question is whether he is a 'bona fide resident of Uttar Pradesh '.
The contention of the appellant before the High Court was that he had stayed in the State of Uttar Pradesh for more than five years for the purpose of completing his studies and was, therefore, fully qualified as a bona fide resident of that State.
The High Court found that residence merely for the purpose of studies would not satisfy the requirement of clause 4.
The appellant was nominated by the State of Himachal Pradesh to undergo a course of studies in the State of Uttar Pradesh and he stayed in Uttar Pradesh for over five years solely for that purpose.
There is no evidence that he had any other object for staying for that length of time, as he did, in Uttar Pradesh.
There is no evidence that 673 he had any intention of indefinitely residing in that State.
A person is treated as a 'bona fide resident of Uttar Pradesh ' in terms of sub clauses (a) and (b) of Clause 4 by reason of either his 'domicile ' or 'residence ' in that State.
While sub clause (a) speaks of the domicile of the candidate and his father, sub clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State.
The concept of 'domicile ' is irrelevant to the construction of sub clause (b) in respect of the residence qualification of the candidate.
All that it requires is his requisite resi dence.
Domicile which is a private international law or con flict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law.
A person is domiciled in the country in which he is considered to have his permanent home.
His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it.
No one can be without a domicile and no one can have two domiciles.
A domicile of origin is attributed to every person at birth by operation of law.
This domicile is not decided by his place of birth, or by the place of residence of his father or mother, but by the domicile of the appropriate parent at the time of his birth, according as he is legiti mate or illegitimate.
It is possible for the domicile of origin to be "transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin." (See Dicey & Morris, The Conflict of Laws, 10th ed.
I, Rule 9, p. 108).
The domicile of origin continues until he acquires a domicile of choice in another country.
Upon abandonment of a domicile of choice, he may acquire a new domicile of choice, or his domicile of origin, which remained in abeyance, revives.
The burden of proving a change of domicile is on him who asserts it.
The domicile of origin is more tenacious.
"Its character is more enduring, its hold stronger and less easily shaken off." Per Lord Macnaghten, Winans vs A.G., , 290.
The burden of proving that a domicile of origin is abandoned is needed much heavier than in the case of a domicile of choice.
No domicile of choice can be acquired by entering a country illegally.
The domicile of choice is a combination of residence and intention.
Residence which is a physical fact means "bodily presence as an 674 inhabitant" (Re Newcomb, ; (1908).
See Dicey, op.
Such residence must be combined with intention to reside permanently or for an unlimited time in a country.
It is such intention coupled with residence that acquires him a new domicile.
It is immaterial for this purpose that the residence is for a short duration, provided it is coupled with the requisite state of the mind, namely the intention to reside there permanently.
"If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency", Re Fuld 's Estate (No. 3) 1968 (P) 675.
such as, the end of his studies, he lacks the intention required by law.
His "tastes, habits, conduct, actions, ambitions, health, hopes, and projects" Casdagli vs Casdagli, , 178 are keys to his intention.
"That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary pur pose, but with a present intention of making it his perma nent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home".
Lord vs Colvin, [1859] 4 Drew 366 at 376.
We must, in this connection, hasten to add that 'domi cile ', being a private international law concept, is inappo site to the relevant provisions, having no foreign element, i.e., having no contact with any system of law other than Indian, unless that expression is understood in a less technical sense (see observations to this effect in Dr. Pradeep Jain and Others etc.
vs Union of India and Others etc.
, [1984] 3 SCC 654. 666 669).
An expression which has acquired a special and technical connotation, and developed as a rule of choice or connecting factor amongst the compet ing diverse legal systems as to the choice of law or forum, is, when employed out of context, in situations having no contact with any foreign system of law, apt to cloud the intended import of the statutory instrument.
When a person is referred to as domiciled in a country, the expression 'country ' is used in private international law as a term of art denoting, in the words of dicey, "the whole of a territory subject under one sovereign to one body of law".
See Dicey & Morris, The Conflict of Laws, Vol. 1, page 24.
But in a federation like the United States, Austra lia, or Canada, or in a composite State like the United Kingdom, different systems of law may prevail in different regions in respect of certain matters.
In such cases, each of the territories governed by a separate system of law is treated, for the purpose of private international law, as a 'country ', though in public international law or 675 constitutional law it is not a separate sovereign State.
As stated by Halsbury, "in federal states, some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law, and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the states or provinces of the federation, and the individual will be domiciled in one state or province only".
Halsbury 's Laws of England Vol. 8, para 422; See D.P. Joshi vs The state of Madhya Bharat and Another, 15.
This is, however, not the position in India.
Though a Union of States, and a federation in that sense, the whole country is governed by a single unified system of law, with a unified system of judicial administration, notwithstanding the constitutional distribution of legislative powers be tween the Centre and the States.
There is no State wise domicile within the territory of India.
A man who is domi ciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervad ing throughout the country.
He is 'domiciled ' in the whole of this country, even though his permanent home may be located in a particular spot within it.
Udny vs Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell vs Kennedy, i18681 LR 1 Sc & Div 307, H.L. The expression, as understood in private international law, makes no sense in the context of Clause 4, for Indian domicile cannot be limited to any particular State within India.
The full import of 'domicile ' is, there fore, inapplicable to the construction of clause 4.
We would in this connection recall the words of this Court in Dr. Pradeep Jain & Ors.
vs Union of India & Ors.
, [1984] 3 SCC 654 at 668, See also D.P. Joshi vs The State of Madhya Bharat and Another, ; "It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws.
The concept of 'domicile ' has no relevance to the applica bility of municipal laws, whether made by the Union of India or by the States.
It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or another forming part of the Union of India.
The domicile which he has is only one domicile, namely, domicile in the territory of India." 676 'Domicile ' for the purpose of clause 4 must, neverthe less, be understood and applied in a limited sense and in contradistinction to 'residence ', for that clause uses both the expressions and demands compliance with either of them with reference to the State of Uttar Pradesh.
Unlike 'resi dence ' which is only bodily presence, 'domicile ' in this context must necessarily mean physical residence coupled with the intention to settle down in Uttar Pradesh, al though, being confined to a particular region rather than the whole area of operation of the territorial legal system and lacking in any foreign complexion or unconcerned with any foreign element, the animus manendi required for the purpose of clause 4 is much less in quality and contents than what is required in Private International Law.
Sub clause (a) of Clause 4 prescribes no minimum length of residence or minimum degree of intention, and, however short or insignificant the two elements may be, their combination, in whatever proportion, is sufficient to constitute 'domi cile ' for the purpose of clause 4(a).
In the present case, the appellant came to the State of Uttar Pradesh with a predetermined mind, namely, to complete the chosen course of studies and return to the State which had nominated him for the purpose.
Having regard to the time and duration, the object and obligation, and the uncontro verted facts, the appellant was undoubtedly a bona fide student who resided in Uttar Pradesh for over five years, but whose residence did not acquire the attributes of 'domicile ' within the meaning of clause 4(a).
The question then is whether the appellant is a 'bona fide resident of Uttar Pradesh ' within the meaning of clause 4(b).
Residence is a physical fact.
No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence.
Any period of physical presence, however short, may consti tute residence provided it is not transitory, fleeting or casual.
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence To insist on an element of volition is to confuse the features of 'resi dence ' with those of 'domicile '.
For an interesting discus sion on The Meaning of Residence, see J.D. McClean, Interna tional & Comparative Law Quarterly [1962] Vol.
II PP.
1153 et seq.
A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life.
Per Viscount Cave, Commissioner of Inland Revenue vs Lysaght, ; Levene vs Commissioners of Inland Revenue; , 677 at p. 222.
A man may be ordinarily resident or habitually resident m more than one place.
While 'ordinary residence ' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence ' may denote a quality of endurance longer than ordinary residence, although duration, past or prospective, is only one of the many relevant fac tors, and there is no requirement of any particular minimum period.
See Dicey & Morris; The Conflict of Laws, 10th ed., PP.
145 & 200 202.
See also Cheshire & North; Private International Law, 11th ed., PP.
171173; Halsbury 's Laws of England, 4th ed., Vol. 18 330.
In Reg vs Barnet L.B.C., Ex p. Shah, , the House of Lords held that a person was ordinarily resi dent in the United Kingdom, if he normally resided lawfully in that country from choice and for a settled purpose.
If a person resided there for the specific and limited purpose of education, he was ordinarily resident in that country, even if his permanent residence or real home was outside that country or his future intention or expectation was to live outside that country.
Residence must be voluntary.
"Enforced presence by reason of kidnaping or imprisonment, or a Robins 'on Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is".
Per Lord Scarman, Reg vs Barnet L.B.C., exhibit p. Shah, at 344.
Education, business, profession, employment, health, family, or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode.
It is only lawful residence that can be taken into account.
If a man stays in a country in breach of immigration laws, his presence there does not constitute ordinary residence.
While residence and intention are the two essential elements constituting the 'domicile of choice ' residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc.
To read into residence volition as a necessary element is, as stated above, to mistake residence for domicile of choice, and that is the error which the High Court appears to have committed.
Where residence is pre scribed within a unified legal system as a qualifying condi tion, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law.
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony 678 with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided.
Clause 2, which we have set out above, refers to a 'bonafide ' resident and such a person is defined under clause 4 to include a person who has resided in Uttar Pra desh for not less than five years at the time of making his application.
These two clauses indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona.fide.
The converse of bona.fide being mala fide, meaning lack of good faith, in the absence of any allegation that the appellant 's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a 'bonafide resident '.
Any other construction of the clauses would, in our view, be unreasonably restrictive and thus conflict with the appellant 's constitutional rights.
Viewed in this light, we have no doubt that the con struction placed by the High Court upon sub clause (b) of clause 4 of the Notification is unsustainable.
In our opin ion, a person, such as the appellant, who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years, albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident ' as defined in the said clause.
In the circumstances, we set aside the impugned order of the High Court, and allow the appeal with the costs of the appellant here and in the High Court.
N.V.K. Appeal allowed.

summary/full:
The appellant who was nominated by the State of Himachal Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh, successfully completed his course and secured the B.D.S. degree.
For this purpose he had stayed in that State for over a period of five years.
Later, he applied for admission to the M.D.S. course at King George Medical Col lege, Lucknow and the subject of his choice was Oral Sur gery.
He secured admission but the subject 'that was offered to him was Periodontics.
The reason for denying the appellant the subject of his choice, viz. Oral Surgery; was that he had to step down in favour of others who had come within the rule of preference provided for in the Notification dated August 19, 1983.
issued under Section 28(5) of the U.P. State Universities Act, 1974, providing for reservation of seats, and prescrib ing a residence qualification for selection to the M.D.S. course.
The High Court in its judgment in Writ Petition No. 5400 of 1989 following an earlier decision of the Court held that those candidates who joined B.D.S. course on the basis of nominations made by the 667 Central Government or their own State will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State for five years for completion of the course.
The appellant who was not a party to the proceedings in the writ petition applied for clarification and modification on the said judgment as it had adversely affected him.
The High Court rejected the application, holding that clause 2 of Notification stipulates two conditions viz: (i) institu tional and (ii) residential: and that the appellant satis fies the first requirement, namely, institutional but does not fulfill the second requirement, viz 'bona fide resident '; that a 'bona fide resident ' is one who comes within the meaning of that expression in clause 4 of this Notification, and that residence merely for the purpose of studies would not satisfy the requirement of clause 4.
In the appeal to this Court on the question: Whether the appellant was a 'bona fide resident of Uttar Pradesh ' within the meaning of clause (b) of the Notification dated August 19, 1983.
Allowing the appeal, and setting aside the order of the High Court, this Court, HELD: 1.
A person is treated as a 'bona fide resident of Uttar Pradesh ' in terms of sub clauses (a) and (b) of Clause 4 by reason of either his 'domicile ' or 'residence ' in that State.
While sub clause (a) speaks of the domicile of the candidate and his father, sub clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State.
The concept of domicile is irrelevant to the construction of sub clause (b) in respect of the residence qualification of the candidate.
All that it requires is his requisite resi dence.
[673A B] 2.
Clauses 2 and 4 indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona fide.
The convers of bona fide being mala fide, meaning lack of good faith, in the absence of any allegation that the appellant 's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a ' bona fide resident. ' [678B C] 3.
The construction placed by the High Court upon sub clause (b) 668 of clause 4 of the Notification is unsustainable.
A person such as the appellant who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident ' as defined in the said clause.
[678D E] 4.
Domicile which is a private international law or conflict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law.
[673B C] 5.
A person is domiciled in the country in which he is considered to have his permanent home.
His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it.
No one can be without a domicile and no one can have two domiciles.
[673C D] Re Fuld 's Estate (No. 3) 1968 (P) 675; Casdagli vs Casdagli. , 178 and Dicey & Morris, The Con flict of Laws, Vol.
I page 24, referred to.
Domicile being a private international law concept, is inapposite to the relevant provisions, having no foreign element i.e. having no contact with any system of law other than Indian.
unless that expression is understood in a less technical sense.
[674D E] Dr. Pradeep Jain and Others etc.
vs Union of India & Others etc.
, [1984] 3 SCC 654, 666 669, referred to.
An expression which has acquired a special and tech nical connotation and developed as a rule of choice or connecting factor amongst the competing diverse legal system as to the choice of law of forum is, when employed out of context, in situations having no contact with any foreign system of law.
apt to cloud the intended import of the statutory instrument.
[674E F] 8.
India though a Union of States, and a federation in that sense, the whole country is governed by a single uni fied system of law, with a unified system of judicial admin istration, notwithstanding the constitutional distribution of legislative powers between the Centre and the States.
1675B C] 9.
There is no State wise domicile within the territory of India.
A 669 man who is domiciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervading throughout the country.
He is domiciled in the whole of this country even though his permanent home may be located in a particular spot within it.
[675C D] Halsbury 's Laws of England, vol.
8 para 422; D.P. Joshi vs The State of Madhya Bharat and Another, ; ; Udny vs Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell vs Kennedy, [1868] LR 1 Sc & Div 307, H.L. and D.P. Joshi vs The State of Madhya Bharat and Another, ; , referred to.
Education, business, profession, employment, health, family or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode.
It is only lawful residence that can be taken into account.
If a man stays in a country in breach of immigra tion laws.
his presence there does not constitute ordinary residence.
[677E F] 11.
Residence is a physical fact.
No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence.
Any period of physical presence, however short, may consti tute residence provided it is not transitory, fleeting or casual.
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence.
To insist on an element of volition is to confuse the feature of 'residence ' with those of 'domicile '.
[676E F] 12.
A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life.
A man may be ordinarily resi dent or habitually resident in more than one place.
While 'ordinary residence ' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence ' may denote a quality of endurance longer than ordinary resi dence, although duration, past or prospective, is only one of the many relevant factors, and there is no requirement of any particular minimum period.
[676H; 677A B] 13.
While residence and intention are the two essential elements constituting the 'domicile of choice ', residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc.
To read into residence volition as a necessary element is to mistake residence for domicile of choice.
[677F] 670 14.
Where residence is prescribed within a unified legal system as a qualifying condition, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law.
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony within the guaran teed rights under the Constitution, and such a construction must necessarily he avoided.
[677G H; 678A] J.D. McClean, International & Comparative Law Quarterly, [1962] Vol.
II pp.
1153 et seq; Commissioner of Inland Revenue vs Lysaght, ; Levene vs Commissioner of Inland Revenu, ; at p. 222 and Dicey & Morris; The Conflict of Laws, 10th ed., pp.
143 145 & 200 202.
Cheshire & North; Private International Law, 11th ed., pp. 171 173 and Halsbury 's Laws of England, 4th ed., vol.
318 330, referred to.