judgement:
Civil Appeal No. 1434 1435 of 1968.
Appeal from the Judgment and order dated 6th April 1967 of the Calcutta High Court in Appeal from original order No. 175 of 1963 and 177 of 1963.
G. L. Sanghi and Girish Chandra, for the Appellant.
H. K. Puri and M. C. Dhingra, for Respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
These two appeals are on certificate by the Calcutta High Court from its common judgment of April 6, 1967, in Appeal Nos. 175 and 177 of 1963.
Respondent No. 1 prior to its liquidation was a private limited company carrying on business as an importer and dealer in sewing machines.
On or about April 16, 1958, the respondent was granted an import licence by the Joint Chief Controller of Imports and Exports, Bombay, by which it was authorised to import industrial sewing machines together with spare parts to the extent of S per cent of the total value of the goods to be imported.
The total value of the imports authorised was Rs. 47,406/ .
The respondent could under the licence import the goods through any port in India.
Out of the permitted value under the licence, goods worth about Rs. 9,919/ were imported by the respondent through the Bombay port.
The respondent then wanted to arrange the rest of the import through the Calcutta port.
At the request of the respondent the Customs authorities of Bombay gave a release order in respect of the remaining goods to be imported in terms of the aforesaid licence through the Calcutta port.
By an indent of November 11, 1958, the respondent placed orders with M/s Fuji Trading Company Limited, Osaka, Japan, for supply of 162 pieces of industrial sewing machine head "Raruna Brand" and 973 208 dozen of oscillating rock shafts.
By two other indents of December 3, 1958, the respondent sent orders to M/s Alickson & Company, Osaka, for the supply of 59 sets of industrial sewing machine head "Prosper Brand" And certain industrial sewing machine parts.
All these three indents were accepted by the two Japanese Companies in , due course.
M/s Fuji Trading Company Limited shipped the goods against orders placed with them on January 30, 1959, by section section Sydney Maru.
M/s Alickson & Company also shipped the goods covered by the indents placed with them on January 28, 1959, by section section State of Andhra.
The respondent apparently had some financial difficulties for releasing the goods at Bombay, as, according to it, it did not have sufficient credit with the Bombay Bank "to open the letter of credit with payment of a nominal margin only".
The respondent, therefore approached the Bombay and Calcutta Cycle Company (briefly the Cycle Company), a partnership firm, which also used to carry on business as dealers in sewing machines and had previous dealings with the respondent.
The Cycle Company agreed to guarantee the letter of credit if it were opened through their Bankers at Delhi. 'the respondent agreed to do so and thereupon at the request of the Cycle Company the Mercantile Bank Limited of Delhi agreed to Act as the respondent 's Bankers and also to allow the respondent to open the letter of credit.
There after on or about December 29/30, 1958, the respondent opened with the Mercantile Bank Limited, Delhi, a letter of credit being L. C. No. 101/1085.
The respondent advanced a sum of Rs. 2884.50 np by way of marginal deposit to the extent of 10 per cent of the value of the letter of credit and the necessary Bank charges.
On February 20, 1959, while the said goods were on the high seas there was an agreement between the respondent and the Cycle Company by which the respondent agreed to sell and the Cycle Company agreed to buy at a future date certain quantities of industrial sewing machine heads and oscillating rock shafts.
The contract of sale may be quoted in extenso: "SALE CONTRACT" We Messrs. Pednekar and Co. Private Ltd., 172, Girgaon Road, Bombay 1 .
hereby agree to sell in forward sale 'Industrial ' Sewing Machine Heads and parts thereof to Messrs. Bombay & Calcutta Cycle Co.
Of 48, Popatwadi, Kalbadevi Road, Bombay, on the following terms and conditions: Items and quantity: 221 pcs.
IndustrialSewing Machine Head TA 1 Model complete with knee Lifter, accessories box Bobbin winder made in Japan.
200 dozen oscillating Rock Shaft "Coto" brand made in Japan.
Rates and value: 221 pcs.
Industrial Sewing Machine Heads @ 305/ per machine .
Rs. 67,405/ 20O dozen oscillating Rock Shaft @ Rs. 24/ per dozen .
Rs. 4,800/ __________ Total .
Rs. 72,205/ __________ 974 Payment: The sum of Rs, 13,300/ already recied by the sellers from the buyers (Rs. 7000/ received on 19th June, 1958, Rs. 2300/ received on 7th July, 1958, and Rs. 4000/ received on 22nd December, 1958) will by adjusted against the above payment.
The sum of Rs. 56,000/ (Rs. fifty six thousand only) will be paid by buyers as and when required before the delivery of the goods and the balance sum of Rs. 2,905/ will be paid by the buyer after the delivery of the goods to them in good condition in their godown.
Place of delivery: Buyers ' Godown at Bombay.
Time of Delivery : June July 1959 Sales Tax : Buyers will issue 'K ' From (Bombay Sales Tax) against sellers Bill for the goods.
For Pednekar & Co. Private Ltd. Sd/ Managing Director Bombay, dated 20th February, 1959.
We confirm.
For Bombay & Calcutta Cycle Co. Sd/ Partner".
section section State of Andhra and section section Sydney Maru arrived at the port 6 of Calcutta on February 26 and February 27, 1959, respectively The respondent instructed the Bankers to engage M/s Mackinon ,.
Mackenzie & Co. Pvt. Ltd. (briefly the Clearing Agents) as Agents for clearing the goods arriving by the said two ships.
The Bankers were also asked to despatch the shipping documents to the Clearing Agents.
The Bankers carried out these instructions and the Clearing Agents filed with the Customs authorities, Calcutta, bills of entry or in respect of the aforementioned goods for consumption in the name of the respondent.
On the requisition of the Customs authorities several documents, as required, were supplied to them.
Informations as to who guaranteed for the letter of credit, who retained the documents and who paid for the goods were also supplied to the Customs authorities by the Clearing Agents as desired.
On October 28, 1959, the Assistant Collector of Customs for Appraisement issued a show cause notice on the respondent under section 167(8) and section 167(37) of the , read with section 3(2) of the Imports and exports (Control) Act 1947 relating to the goods that arrived by section section Sydney Maru.
On November 18, 1959, an exactly similar show cause notice was served upon the respondent by the Assistant Collector of Customs in respect of the goods arrived by section section State of Andhra.
In these notices it was alleged that the importation of the goods in question had been " made by the Cycle Company without any valid import licence in their favour and not by the respondent and that the Cycle Company was the real owner of the goods.
It was further alleged that the respondent had aided and abetted in the unauthorized importation of the goods by the Cycle Company.
There was a further charge that the respondent had transferred the licence in favour of the Cycle 975 Company.
It was alleged in the show cause notice of October 28, A 1959, that the licence in any case did not cover the importation of oscillating rock shafts.
The respondent was asked to show cause within 14 days of receipt of the respective notices as to why the goods should not be confiscated and why a penalty should not be imposed on the respondent for being concerned in the unauthorized importation of the said goods.
The respondent was also asked in the first show cause notice to show cause why oscillating rock shafts of the value of Rs. 1373.19 np should not be confiscated under section 167(37) of the and why a penalty should not be imposed on the respondent.
The respondent submitted its explanation repudiating the allegations.
The respondent further contended that the oscillating rock shafts were spare parts of which clearance could be allowed to the extent of S per cent of the face value of the notices.
The respondent denied the applicability of clause 37 of section 167 of the and demanded the release of the goods immediately.
On December 17, 1959, the Assistant Collector addressed a letter to the respondent which is described as an additional show cause notice.
The substance of the allegations made in this letter is that the goods in question were ascertained and specific goods and that the property in the goods had passed from the respondent to the Cycle Company by reason of the agreement for forward sale dated February 20, 1959, and that the property in the goods had already vested in the Cycle Company at the time of importation so that the goods were not covered by the licence submitted by the respondent.
The respondent was asked to make further submissions within a fortnight from receipt of this letter.
There was a similar additional show cause letter dated December 22, 1959, addressed to the respondent with regard to goods which arrived by section section State of Andhra.
The respondent sent a reply to the additional show cause notices.
The respondent denied in its explanation that the property in the goods had passed to the Cycle Company before the goods were cleared On March 18, 1960, the Deputy Collector of Customs passed an order by which the go which arrived by section section State of Andhra were confiscated under section 167(8) of the read with section 3(2) of the Imports and Exports (Control) Act, 1947.
personal penalty.
Of Rs. 350/ was also imposed on the respondent as well as on the Cycle Company.
Thereafter on March 23, 1960, the Deputy Collector of Customs passed another order by which the goods which arrived by section section Sydney Maru were confiscated and a personal penalty of Rs. 1000/ was imposed on the respondent as well as on the Cycle Company.
The above is the background which led to two writ applications in the High Court against the aforesaid two orders under article 226 of the Constitution of India which the respondent filed against the appellants impleading also the Cycle Company as respondent No. 4 therein.
The learned single judge of the High Court dismissed the respondent 's writ applications except with reference to the oscillating rock 976 shafts.
According to the learned judge these shafts were properly imported under section 2, Part V, Item 76(a) of the Import 'trade Control Policy Book, but these shafts also except 8 dozen were liable to confiscation in view of his decision against the respondent in respect of 200 sewing machine heads.
The respondent then appealed to the Division Bench of the High Court.
The Division Bench allowed the appeals by setting aside the judgment of the single judge with out disturbing at the same time the aforesaid portion of the judgment regarding oscillating rock shafts.
The High Court granted certificates to appeal to this Court under article 133 (1) (a) of the Constitution of India to the appellants.
,; We may note in passing that during the pendency of the proceedings before the High Court, the respondent was wound up by an order of the High Court of Bombay and necessary substitution was made.
We are only concerned in these appeals with the confiscation of 200 sewing machine heads and of 200 oscillating rock shafts.
Since there had been no appeal by the appellant against that part of the order of the single judge with regard to the importation of 8 oscillating rock shafts, Mr. Sanghi has, rightly, not addressed us in respect of the same.
Mr. Sanghi at the commencement of his argument submitted, to quote his own words, that "the main thrust of the show cause notice was the realness of the transaction".
In other words, he wanted to raise the question, which had also been unsuccessfully pressed into service before the Division Bench that though everything ostensibly was done by the respondent the real importer in the case was the Cycle Company and the respondent merely lent his name.
The Division Bench, in our opinion, rightly rejected the submission holding that that was a completely new case which had not been made out either before the adjudicator or before the learned single judge.
The Division Bench further rightly held as follows: "It was never the contention of the Customs authorities that the importation of the goods was not done by the petitioner and that though everything is ostensibly done by the petitioner the real importer is B. C. Cycle Company.
In the show cause notice there is no allegation made on the part of the Customs that the contract with the Japanese supplier was a sham or that the petitioner 's contract with the B. C. Calcutta Cycle Co., was also a sham transaction.
" We are, therefore, unable to agree with Mr. Sanghi that he can be permitted to raise this question of a "make believe ' transaction by the respondent.
The only question, therefore, that arises for decision in this case and on which Mr. Sanghi has addressed us is as to the question whether property in the goods had passed to the Cycle Company when the contract had been entered by the respondent with it, that is to say.
prior to the arrival of the goods at Calcutta port for clearance 977 We may even quote what was stated in the additional show cause notice: "Thus it appears that the sale contract which purports to be an 'agreement to sell ' is actually a sale and that the property in the subject goods vested with M/s Bombay & Calcutta Cycle Co., at the time of importation." The learned single judge answered the question in the following words: "In this case the goods were specific goods in a deliver able state as already held.
There was nothing in the con tract indicating that the property in the goods would pass to the buyer at a later stage.
Therefore, under section 20 of the Sale of Goods Act, that property passed at the time of the contract of sale and it was immaterial that time for payment of price and also time for delivery were postponed.
" The Division Bench, on the other hand, after extensively dealing with all the facts and circumstances of the case including the terms of the contract, came to the conclusion that ". no property could pass before the goods were delivered at the Bombay godowns of the B. C. Cycle Company.
" The controversy has to be resolved by reference to sections 18, 19 and 20 of the .
It is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959.
The contract to sell related not to the entire consignment of the goods which were being imported by the respondent but only to part of those goods, even though it may be a major 'part.
Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2.
There was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment.
The place of delivery of the goods was buyer`s godown in Bombay.
The property in the goods could not pass in favour of respondent No. 2 until, after the arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated.
So far as industrial sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract.
The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods in Bombay.
No specific goods in a deliverable state were attached to the contract when it was made.
Mr. Sanghi summits that the fact that the Cycle Company was principally financing the whole transaction and stood guarantee to the Bankers in Delhi enabling the respondent to open a letter of credit for the importation of the goods clearly indicates that, notwithstanding the place of delivery in the contract, the parties intended that the 978 imported goods were appropriated to the contract when the same was made.
In many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence.
The mere fact of financial guarantee to a Banker for the purpose of opening a letter of credit, without any thing more, would not convert the guarantor to be the owner of the property the moment the contract was entered if the terms therein pointed to the contrary.
We are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arrangement, which the respondent made with the Bankers in Delhi, would lead to the in escapable conclusion that the property in the goods had passed to the Cycle Company at the time when the contract was made.
The cor respondent between the respondent and the Cycle Company, that between the parties and the Banker and the arraignments for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.
It is clear that the respondent had a valid import licence under the cover of which It imported the goods from Japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customs authorities.
The entire controversy before the adjudicator was with reference to the importation of the goods by the Cycle Company which fact was sought to be established against the respondent from the legal position urged with regard to the passing of property to the Cycle Company at the time the contract had been made on February 20, 1959.
Mr. Sanghi submits that if, on the facts and circumstances, conduct of the parties and the correspondences during the relevant period taken with the advance of finance and guarantee of the Cycle Company, the adjudicator came to the conclusion that the property had passed and the goods were liable to confiscation and the conclusion was prima facie reasonable the High Court had no jurisdiction to interfere with the order under article 226 of the Constitution.
p This would be true, says counsel, even if the High Court could on the same facts and circumstances take another view in the matter.
We are unable to accede to the submission.
We are dealing with an order of confiscation of certain goods imported under a licence granted to the respondent.
It was never disputed that it was a valid licence.
It was also not an Actual User licence. 'the respondent, therefore, could sell these imported goods to others.
The whole matter, therefore, turned on the legal issue as to whether property had passed at the time the respondent had enter ed into the contract for the sale of the imported goods.
Even the Customs Authority in its additional show cause notice made particular reference to section 20 of the appointed out that: "the ownership in the goods under consideration appears to have passed on to M/s Bombay & Calcutta Cycle Co. right from the time the sale contract was concluded.
" 979 When, therefore, on the terms of the contract along with other relevant facts and circumstances which had to be looked into by the adjudicator for application of section 20 of the , he committed a manifest error of law apparent on the face of the order the High Court 's jurisdiction to interfere under article 226 of the Constitution is clearly attracted.
The submission of Mr. Sanghi is, therefore, without any force.
In the view we have taken regarding passing of property in the goods we need not deal with Mr. Sanghi 's submission with reference to the provisions of warranty under section 12 of the .
The orders of confiscation of the goods and penalties imposed are invalid and the High Court was right in quashing the same by issuing the appropriate writs.
In the result the appeals are dismissed with costs.
V.P.S. Appeals dismissed.

summary/full:
The first respondent, an importer and dealer in sewing machines, was granted an import licence for importing industrial sewing machines and spare parts.
After importing some goods through the Bombay port, the first respondent was permitted by the Customs Authorities to import the rest through the Calcutta port, and the first respondent entered into contracts with Japanese companies for supply of a certain number of industrial sewing machines and oscillating rock shafts.
Being in some financial difficulty the first respondent approached the 2nd respondent, and the latter stood guarantee to Bankers at Delhi enabling the first respondent to open the necessary letter of credit.
Thereafter, while the goods contracted for from the Japanese companies were on the high seas, there was an agreement by which the first respondent agreed to sell to the second respondent at a future date, certain quantities of sewing machines, heads and oscillating rock shafts.
When the goods arrived at Calcutta, the Customs authorities took the view that the goods were ascertained and specific goods, that the property in them had passed to and vested in second respondent by reason of the agreement to sell, so that at the time of importation the goods were not covered by the licence in favour of the first respondent and ordered confiscation of the goods and the imposition of a penalty.
The first respondent thereupon moved the High Court and the High Court held against the appellant.
In appeal to this Court, the appellant Collector of Customs, also raised the contentions that though everything ostensibly was done by the 1st respondent the real importer was the 2nd respondent and that, therefore, the importation was unauthorized; and that the High Court had no jurisdiction to interfere Under article 226, with the order of the Customs authority.
Dismissing the appeal, ^ HELD: (I) It is not possible to hold on the facts of this case, that the property in the goods passed to the second respondent at the time of the agreement, and the High Court was right in holding that the property in the goods did not pass to the buyer till the time of delivery of the goods in Bombay., [977E, G H] (a) The agreement to sell related not to the entire consignment of the goods which were being imported by the first respondent but only to part of those goods even though it was a major part.
Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold to the 2nd respondent.
There was nothing to prevent the first respondent from selecting for itself any 8 dozen rock shafts out of the consignment.
The Place of delivery was the second respondent 's godown in Bombay, and therefore, the property in the goods could not pass in favour of the second respondent until after the arrival of the goods in Bombay and the 200 dozen rock shafts to be delivered to the 2nd respondent were separated.
So far as the sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract was one indivisible contract.
No specific goods in a deliverable state were attached to the contract when it was made.
[977E G] 972 (b) [n many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence.
The mere fact of financial guarantee by the second respondent to a banker for the purpose of enabling the first respondent to open a letter of credit, without anything more, would not convert the guarantor (2nd respondent) to be the owner of the property, the moment the contract was entered into, if the terms therein pointed to the contrary.
[978A B] (2) It was never the contention of the Customs authorities that the importation of the goods was not done by the 1st respondent or that the 1st respondent 's contracts with the Japanese suppliers were sham.
Therefore the appellant cannot be permitted to raise the contention that the real importer was the 2nd respondent.
[977E G] (3) The 1st respondent 's licence was not an Actual User Licence and there fore the 1st respondent could sell the imported goods to others.
The legal issue in the case was whether property had passed to the 2nd respondent at the time the agreement was entered into between the respondents and if on the terms of the agreement along with relevant facts and circumstances, the customs authorities had committed a manifest error of law apparent on the face of the order the High Court 's jurisdiction to interfere under article 226 is attracted.
[978G 979B]


judgement:
Civil Appeal No. 571 of 1972.
Appeal by Special Leave from the Judgment and order dated the 15th June 1971 of the Madras High Court in W.P. No. 3112/70.
P. P. Rao and G. Chandra for the Appellant.
P. C. Bhartari and J. B. Dadachanji for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court.
The learned Judges, Veeraswami, C.J., and Raghavan, J., had held, in a very short judgment, a notification of the Railway Department, retiring the petitioner respondent from service with effect from 3rd October, 1970, to be inoperative.
The petitioner respondent had been appointed a temporary Clerk on 10th December, 1936, and had been confirmed in that post on 1st 1086 September, 1938.
He contended that he was entitled to continue in service until he had attained the age of 60 years.
He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement.
He claimed the benefit of Rule 2046(b) of the Railway Establishment Code.
According to Rule 2046(b), a Ministerial Railway Servant was entitled to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly, he had held "on that date" (i.e. on 31st March, 1938), either: (i) "a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption until he was confirmed in that post".
It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938.
The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the bene fit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement.
It is very difficult to appreciate the reasoning of the High Court when Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant "on that date", that is to say, on 31st March, 1938.
The specified requirements of the rule could not be over ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938.
The second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a "temporary Government servant" and not a "provisional Government servant" as defined by Rule 2008(2).
Rule 2008 may be reproduced here.
It reads: "2008 Suspension of lien: (a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity: (1) to a tenure post or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule.
1087 (b) A competent authority may, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
(c) Notwithstanding anything contained in Clause (a) and (b) of this Rule a railway servant 's lien on a tenure post may, on circumstances, be suspended.
If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.
(d) If a railway servant 's lien on a post is suspended under clause (a) or (b) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revives.
NOTE: This clause applies if the post concerned is a post in a selection grade of a cadre".
The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date.
He could neither have a lien nor a suspended lien on a permanent post.
He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938.
The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938.
Learned Counsel for the appellant, therefore, relied on: State of Punjab vs Dharam Singh State of Nagaland vs G. Vasantha Director of Panchayat Raj & Anr.
vs Babu Singh Gaur.
Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court.
Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled.
The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.
We allow this appeal and set aside the judgment and order of the High Court.
The parties will bear their own costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Under Rule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled to the higher age of retirement at 60 years (i) if he had entered service on or before 31st March 1938 and (ii) if he held on 31st March 1938 either a lien or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post.
The respondent had been appointed a temporary clerk on 10th December 1936 and was confirmed in that post on 1st September 1938.
When he was retired on attaining the age of 58, he challenged the orders claiming benefit of Rule 2046(b).
The High Court allowed the writ petition holding that since he was confirmed on 1st September 1938 he would be deemed to have been permanently appointed since 10th December 1936.
Allowing the appeal by special leave the court, ^ HELD: (1) Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Government servant "on that date" i.e. 31st March 1938.
The specified requirement of the rule could not be overridden by some deemed retrospective benefit alleged to accrue from a confirmation subsequent to 31st March 1938.
[1086D E] State of Punjab vs Dharam Singh ; ; State of Nagaland vs G. Vasantha A.I.R. 1970 SC 537: Director of Panchayat Raj & Anr.
vs Babu Singh Gaur ; , (followed) [His Lordship observed that the position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision]


judgement:
Civil Appeal No. 222 of 1975.
Appeal by special leave from the judgment and order dated the 8th August, 1973 of the Allahabad High Court in Special Appeal No. 189 of 1972.
B. Sen, Mrs. Lela Seth, B. Mohan, Parveen Kumar and O.P. Khaitan for the appellant.
T. section Krishnamoorthy lyer and P. K. Pillai for Respondent No. 4 The Judgment of the Court was delivered by BEG, J.
The appellant, here, by special leave, is a tenant of premises in Dehradun in respect of which the landlord respondent No. 4 had sought permission, under Section 3 of the U.P. (Temporary) Control of Rent & Eviction Act III of 1947 (hereinafter referred to as 'the 1093 Act '), to sue for his eviction.
The permission was granted by the Rent Control and Eviction officer, Dehradun, as long ago as 11 August, 1969, and, thereafter, the suit for ejectment of the appellant was filed on 19th November, 1969.
Section 3, sub.
(1) of the Act had merely imposed a bar on suits in Civil Courts filed without the permission of the District Magistrate except on certain grounds which are given there.
The plaintiff respondent, one Mrs. Sheila Kalha wife of a retired army officer, was given permission to file her suit on the ground that she required the accommodation for personal residence.
She is said to have been living at considerable expense to her at New Delhi due to inability to live in her own house at Dehradun as it has been occupied by the appellant.
The tenant had applied on 19th August, 1969, for a certified copy of the order of the Rent Control officer granting the landlord permission to sue and got its copy on 25th August, 1969.
Thereafter, the tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut Division, but actually filed on 16th September, 1969, before an Additional District Magistrate of Dehradun who had forwarded it on to the Commissioner.
The Revision Application was received in the Commissioner 's office on 24th September, 1969.
It was rejected by the Commissioner on the ground that it was filed beyond the time prescribed by Section 3(2) of the Act which reads as follows: "(2) Where any application has been made to the District Magistrate for permission to sue a tenant for eviction from any accommodation and the District Magistrate, grants or refuses to grant the permission, the party aggrieved by his order may within 30 days from the date on which the order is communicated to him apply to the Commissioner to revise the order.
" The State Government also rejected the revision application of the appellant tenant, filed under section 7F of the Act, against the Commissioner 's order.
The appellant tenant then approached the Allahabad High Court with a petition under Article 226 of the Constitution.
The petition was rejected by a learned Judge on 21st October, 1972, on two grounds: firstly, under Section 3(2) of the Act; and, secondly, that the time spent on obtaining the certified copy of the order of the District Magistrate could not be excluded under Section 12(2) of the Limitation Act of 1963.
For the second proposition reliance was placed upon Shyam Sunder Bajpai vs Commissioner Allahabad Division, Allhabad & Anr.and Ram Lakhan vs Commissioner, Varanasi Division, Varanasi & ors.
A Division Bench of the Allahabad High Court had rejected the tenant 's Special Appeal summarily.
This Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th 1094 July, 1975.
We need not express any opinion on the correctness of the second proposition here if we agree with the High Court 's view on the first point because, in that case, the tenant 's application would be time barred even if the time spent in obtaining the copy was excluded.
The only contention, put forward by Mr. B. Sen on behalf of the tenani appellant, on the first point, is that there is a practice in Dehradun, acting on some instruction of the Commissioner, Meerut Division, to receive revision applications to the Commissioner through an Additional District Magistrate of Dehradun, who has, therefore, the Commissioner 's authority to receive these applications.
It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances, to be sufficient compliance with the requirements of Section 3(2) of the Act which provides, as it clear from a bare look at it, that the revision application lies before the Commissioner.
It is difficult to see how a practice could possibly modify the provisions of the Act.
There is not even a rule on this subject made by the State Govt.
under the provisions of Section 17 of the Act which authorises the Govt.
to "make rules to give effect to the purposes of this Act.
" There are rules on other matters but not on such a matter.
Mr. B. Sen relied on a Division Bench decision of the Allahabad High Court in T. C. Pasricha & Anr.
vs The State of U.P.where it was held: "It appears that the Commissioner had authorised the District Magistrate to receive revisions meant for him.
By so authorising, the Commissioner was only indicating the place and, the manner of representation of the revisions.
Since the Rent Control Act did not either by itself or rules framed under it lay down the precise procedure in regard to the presentation of the revision, the Commissioner who was the authority entitled to entertain and decide the revisions was within his rights to prescribe the procedure in respect of rep resentation of the revisions.
The direction given by the Commissioner in 1946 with regard to the presentation of revision was valid and enforceable".
In Pasrich 's case (supra), the Single Judge decision in Seth Bal Gopal Das vs State of U.P. on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice.
Both Pasricha 's case (supra) and the case now before us come from the Dehradun District.
We think it is difficult to reconcile the Division Bench decision in Pasricha 's case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches.
1095 We prefer the reasoning of the learned Single Judge in Seth Bal Gopal Das vs State of U.P. (supra) to the reasoning of the Division Bench in Pasricha 's case (supra).
A wrong practice cannot possibly modify what naturally and logically follows from the language in Section 3(2) of the Act.
This provision says that the party aggrieved must "apply to the Commissioner to revise the order".
The natural inference is that the party must apply to the Commissioner directly and not through some other authority or official.
It is true that Section 3(2) does not prescribe the manner and place of presentation of applications.
But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office, to act as the agent of the Commissioner, or a clear and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to the Commissioner.
In Pasricha 's case (supra), the Division Bench had gone to the extent of holding that some communication made by the Commissioner in 1946 to the District Magistrate of Dehradun, even a copy of which was not placed before the Court, could be shown by means of an affidavit of a party, to have been both established and to be enough to confer an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3(2) of the Act which were introduced after 1946 according to the statement of facts in Pasricha 's case (supra) itself.
Primafacie, an authorisation cannot relate to a power or right conferred by a provision which could not be present to the mind of the Commissioner at all at the time when he is supposed to have made some communication to the District Magistrate as the provision for a revision in such a case did not even exist then.
We, therefore, think that the reasoning of the Division Bench in Pasricha 's case (supra) is unacceptable.
The alleged practice cannot be held to have been even established.
And, in any event, such a practice was not enough to confer authority to receive petitions on behalf of the Commissioner.
For that purpose, proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.
The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his eviction long enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land lady"), has been required to meet the landlord 's dire personal needs since at least 1969.
We hope that the trial of the suit in such a case will not be delayed now.
We dismiss this appeal with costs throughout.
M.R. Appeal dismissed.

summary/full:
The Rent Control and Eviction officer Dehradun.
granted permission to the respondent landlady under section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, to file a suit for eviction of the appellant tenant, on the ground that the accommodation was required for her personal residence.
The tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut Division but actually filed before the Additional District Magistrate who rejected it as time barred.
The appellant tenant 's further revision application, made under section 7F of the Act.
was rejected by the State Government, and then his petition under Article 226 was rejected by a Single Judge of the Allahabad High Court on two grounds: Firstly that neither the Act, nor the rules made thereunder had any provision enabling the Additional District Magistrate to receive the tenant 's application under section 3(2).
and secondly that the time spent in obtaining the certified copy of the District Magistrate order could not be excluded under section 12(2) of the .
The appellant 's special appeal was summarily rejected by a Division Bench of the High Court.
In appeal by special leave, the appellant contended before the Court that.
as a practice had grown up in Dehradun, that the Additional District Magistrate receives the revision applications made to the Commissioner, the requirements of section 3(2) should be deemed to have been sufficiently complied with.
Dismissing the appeal, the Court, ^ HELD: There is not even a rule on this subject made by the State Government.
A wrong practice cannot possibly modify what naturally follows from the language if s.3(2) of the Act, that the party must apply to the Commissioner directly and not through some other authority or official.
For that purpose proof of at least specific authorisation by the Commissioner, after the introduction of section 3(2), was required.
[1094C; 1095A & F]


judgement:
Civil Appeal No. 1097 of 1970.
Appeal from the Judgment and order dated the 25th April 1967 of the Delhi High Court in Letters Patent Appeal No. 106 D of 1964.
M. N. Phadke, section Balakrishnan and N. M. Ghatate, for the Appellant.
L. N. Sinha, Sol.
General, P. P. Rao and Girish Chandra, for Respondents.
The Judgment of the Court was delivered by UNTWALIA, J.
This appeal is by certificate granted by the High Court of Delhi under Article 133 (1) (a) & (b) of the Constitution of India as it stood prior to the 30th Constitution Amendment Act.
No substantial question of law is involved in this appeal.
It is to be decided mostly on facts.
And since we are in agreement with the judgment of the Division Bench of the High Court given in the Letters Patent appeal, we shall advert only to the necessary facts and the main points argued before us.
Shri H. C. Sarin the appellant was employed in the Indian Railways as Senior Railway Inspector attached to the Office of the India Stores Department at London.
He was in that job from the 6th August, 1954.
The Government of India placed orders with various firms in the United Kingdom and the continent for supply of rolling stock and other materials for the Indian Railways.
In December, 1956 the appellant was deputed to the Essen Area of West Germany as Senior Railway Inspector in which capacity he had to inspect and pass the goods in the first instance at the site.
Although this work of inspection in West Germany was entrusted to the German Federal Railway in January 1958, the appellant remained there associated with the work till April or May, 1958.
In July, 1956 orders were placed with M/s Leo Gottwald and Company for supply of several breakdown cranes both for meter gauge and broad gauge railway tracks in India.
This was a family concern of one Dr. Hans Dieter Gottwald.
Prior to the appellant 's going to the Essen Area 41 of West Germany, there were other Senior Railway Inspectors doing the work of inspection including one section N. Hussain (since deceased) immediately preceding the appellant.
One of the clauses in the contract with Gottwald was that he would be liable to pay liquidated damages in the specified sums if he made delay in the delivery of the cranes.
Eventually there being delay, the amount of such damages was quantified at a figure in the neighbourhood of & 45,000/ .
Dr. Gottwald carried on business of his firm at Dusseldorf in West Germany.
He came to London on July 30, 1958 to discuss with Shri L. T. Madmani, Railway Advisor certain technical aspects of the cranes contract.
A meeting took place in the morning wherein were present other officers including one Mr. Bayross.
In the afternoon, Gottwald saw section N. Hussain at the lndia Stores Department when the latter told the former that delay had occurred in the supplies of cranes and consequently the firm of contractors may have to pay liquidated damages.
Upon this, Gottwald disclosed that Sarin was responsible for the delay, he had taken money by way of bribes from the firm and in such a situation the firm was not liable to pay any damages.
Since the allegation made by Gottwald against Sarin was a serious one section N. Hussain advised him to inform Madnani about it.
He did accordingly.
After some preliminary steps Gottwald 's statement was recorded on September 8, 1958 at India Stores Department where he gave a detailed account of the allegedly corrupt practices of the appellant.
Shri Shukla was the Director General of the India Stores Department at the relevant time.
He directed Gottwald to furnish some tentative proof in support of his accusation against Sarin.
Gottwald 's second statement was recorded on October 21, 1958.
One Shri M. A. Hussain, I. C. section was the Deputy High Commissioner for India stationed in U. K. at the relevant time.
On cxamining the papers and the statements of Dr. Gottwald given before the various officers of the India Stores Department the Deputy High Commissioner formed an opinion that prima facie the accusations against the appellant were such that required to be investigated in a departmental enquiry.
He accordingly made a recommendation to that effect to the Government of India.
The Government, however, directed a preliminary enquiry to be made by Shri N. section Pandey, Financial Advisor to the Indian High Commission and then to start a departmental enquiry, if necessary.
Accordingly, Pandey went to Gottwald 's place in West Germany, made preliminary investigations and submitted a report dated January 19, 1959 finding a prima facie case made out against the delinquent government servant.
At the instance of the Government of India, Ministry of Works, Housing and Supply, charges were served upon the appellant on April 7, 1959 along with two Annexures containing various details of the accusations made by Gottwald against him.
The appellant was asked to indicate by April 15 the papers which he wanted to inspect and the papers the copies of which he required to enable him to enter his defence.
He was asked to submit his written explanation by 30th of April, 1959.
In the meantime he was placed under suspension.
42 Shorn of details which were to be found in the Annexures the Charge Sheet served on the appellant contained the following three charges: "CHARGE I.
That Shri H. C. Sarin, while functioning as the Senior Railway Inspecting Officer in the India Stores Department, London, during the period between December, 1956 and May, 1958, demanded and obtained illegal gratification from the firm of Messrs. Leo Gottwald of Dussaldorf.
CHARGE II.
That during the aforesaid period and while functioning as aforesaid, the said Shri H. C. Sarin violated Rule 10 of the Railway Services (Conduct) Rules, 1956 in that he accepted an Opel Car from Messrs. Talbots of Achen as a gift.
CHARGE III.
That during the aforesaid period and while functioning as aforesaid, the said Shri Sarin used his official influence for personal advancement.
" Time for filing the written defence by the appellant was extended.
It was filed on May 27, 1959.
The appellant denied all the charges against him.
The Board of Enquiry set up by the Government of India consisted of the following : (1) Shri M. A. Hussain, ICS, Deputy High Commissioner, Chairman.
(2) Col. Hendricks, Deputy Director General (Inspection), I. section D., London, Member.
(3) Shri T. M. Duraiswamy, Deputy Director General, I. section D., London, Member.
The correspondence which passed between the appellant and the Board in connection with the departmental enquiry instituted against him is too voluminous to be referred to in this judgment.
No useful return will be achieved by referring to the correspondence in any detail.
Suffice it to say at this stage that the correspondence does indicate a calculated design and planned attempt on the part of the appellant to non cooperate with the enquiry and an anxiety and earnestness on the part of the Board to proceed in the matter as fairly as possible in the circumstances of the case.
The Board was obliged to go to Dusseldrof, hold an enquiry at the spot by examining as many as 21 witnesses there, some of whom had been cited by the appellant as his defence witnesses and to examine the relevant papers, documents and account books of the contractor 's firm.
All this proceeded ex parte between July 14 to July 17, 1959.
The Board 43 returned to London on July 19 and examined some witnesses there who had been cited as defence witnesses by the appellant.
Almost the entire departmental enquiry had to be conducted ex parte as the appellant would not participate in it even with a pair of tongs.
The appellant had named S/Shri Bhalla, Sharma, Johri and Sen, Railway officers in India as his defence witnesses.
He was asked to examine them by quesionnaries as it was not possible to call them to London for the purpose of the enquiry.
Nor was their evidence so material as to necessitate their examination viva voca before the Board.
The appellant refused to cooperate and did not submit any questionnaire.
The Board, thereupon, sent to all the four officers aforesaid copies of the charges levelled against the appellant and asked them to state if they had anything to say in relation to them.
Bayross was examined by the Board in London on September 29, 1959 after copies of the earlier statements of the witnesses and other papers had been supplied to the appellant on September 21, 1959.
The appellant was present on September 29 but did not actively participate in the enquiry, in that he did not take any part in it by cross examining Bayross.
The Board submitted its report to the Government of India on November 2, 1959 holding that charges I and III had been proved against the appellant and charge II had neither been proved nor disproved.
The Government gave a show cause notice on November 4, 1960 to the appellant asking him to show cause against his removal.
He filed his reply on January 31, 1961.
Later, however, the Government gave another show cause notice dated September 20, 1961 to the appellant to show cause as to why he should not be dismissed from service.
In October/November, 1961 the appellant filed three show cause explanations in writing.
He made another representation to the Government on March 4, 1962 for holding a fresh enquiry which naturally was not acceded to.
Eventually the appellant was dismissed from service by an order of the Government of India dated September 10, 1962.
He filed a writ petition in the High Court on December 6, 1962 to challenge the order of dismissal on several grounds, in nut shell, on the ground of violation of principles of natural justice in the conduct of the enquiry.
A learned single Judge of the High Court by his judgment and order dated August 3, 1964 allowed the writ petition and quashed the order of dismissal without any further or consequential order.
A Letters Patent appeal was filed by the Government which was disposed of by a Bench of the Delhi High Court on April 25, 1967.
The judgment if the single Judge was set aside and the order of dismissal passed against the appellant by the Government was maintained holding that there was no violation of the principles of natural justice in any manner.
Since the amount of salary payable to the appellant if the dismissal order could be found to be bad would, indisputably have been more than Rs. 20,000/ certificate was granted under Article 133(1)(a) & (b), strictly speaking, under sub clause (b).
Thus comes this appeal in this Court.
44 Mr. M. N. Phadke, learned counsel for the appellant pressed only the following points in support of the appeal.
(1) That the appellant was not allowed to go to Germany to examine and assess various matters which were necessary for submission and conduct of his defence.
It was done so in gross violation of the principles of natural justice and requirement of Article 311 of the Constitution.
(2) That copies and inspection of certain relevant and necessary documents were not allowed to the appellant by the Board.
It was not possible for him to cooperate and participate in the enquiry without them.
(3) That no adequate and reasonable opportunity was given to the appellant to defend himself at the enquiry.
(4) That the accusation made by Gottwald against the appellant was maliciously false as it was made with the ulterior motive of saving his firm from the liability of liquidated damages.
As a matter of fact the firm was not made to pay any damages in view of Gottwald 's success in his false accusation against the appellant.
(5) That Shri M. A. Hussain.
Chairman of the Board of Enquiry was highly biased against the appellant and the enquiry conducted under his stewardship was a farce.
(6) That Shri section N. Hussain was inimically disposed to wards and adversely interested against the appellant.
(7) That the services of a professional lawyer for cross examining Gottwald and a Railway officer of his choice from India were not made available to the appellant for conducting his defence.
Learned Solicitor General appearing for the Union of India the respondent refuted all the submissions made on behalf of the appellant.
In particular he focussed his submissions on point nos.
1, 5 and 7 as the other four points, counsel submitted, did not require any detailed reply.
Point No. 1 When the appellant was placed under suspension, in accordance with the relevant service rules he was asked not to leave London without permission of the Board.
As soon as the Charge Sheet was served on him by his letter dated the 10th April, 1959 the appellant wanted permission to visit Germany stating in para 6: "In order for me to prepare my defence I would request permission to visit Germany to collect essential information 45 required when submitting my written defence, especially as the charges refer to periods two to three years ago.
" The Chairman of the Board of Enquiry in his reply dated the 15 April, 1959 stated in para 3 thus: "In regard to your request to be permitted to visit Germany, the Board would like to have in writing before April 20, 1959, the purpose for which you wish to visit Germany and the names and addresses of person/persons you wish to contact and the paper/papers you may wish to examine.
" The appellant sent his letter dated April 20, 1959 stating in para 4 thus: "Regarding the visit to Germany and the persons and documents to be interviewed and seen, I thought it was plain that this depended on the inspection of documents referred to in paras 4 and 5 of your letter under reply.
Consequently until I have done this properly, I shall not be in a position to know what items or facts I require to investigate or check ' in Germany.
I shall therefore be glad if you will postpone this application of mine so that I may in due course specify the visits, persons and papers.
" The Chairman, thereupon, by this letter dated April 21, 1959 asked the appellant to supply the information in respect of his visit to Germany by April 30, 1959.
In his letter dated April 30, 1959 the appellant stated in para 3 thus: "I submit in view of the grave charges, false allegations, it is necessary for me to examine in detail Leo Gottwald 's system of accounting, storekeeping, procedure for telephone accounting, mailing letters etc.
Likewise the system of telephone connecting, booking, mailing letters etc.
at other firms mentioned by Dr. Gottwald, This is absolutely imperative and my defence would be incomplete without this.
In the absence of full information, examination of all documents studying systems of working mentioned above, I am not in a position to submit names of persons.
I would request early arrangements may please be made for me to study the systems of working mentioned above at the respective firms in Germany.
" The Chairman in para 4 of his letter dated May 1, 1959 informed the appellant: "In regard to your request for visiting Germany in order to examine the Leo Gottwald 's system of accounting, store keeping, mailing letters etc.
, it is felt that it is not necessary for you to visit Germany for the purpose because witnesses pertaining to all these matters will be called by the Board for examination and you will be given full 46 opportunity to elicit all relevant information required by you.
" Further correspondence followed in the matter and the appellant was not given permission to visit Germany prior to the visit of the Board of Enquiry.
In the light of the relevant correspondence which passed between the appellant and the Chairman of the Board of Enquiry we have come to the conclusion that it was not at all necessary for the appellant to visit Germany for preparing his defence.
The Board committed no mistake and violated no principles of natural justice in refusing the permission.
No useful purpose would have been served by such a visit in the interest of the appellant 's defence, if any.
on the other hand his insistence to visit Germany at the earliest opportunity smacks of some ulterior design on his part in regard to his defence.
When the Board decided to visit Germany for holding the enquiry, it gave ample opportunity to the appellant to proceed to Germany to take part in it.
The main part of the enquiry.
rather, the only substratum of the materials was to be done and collected at Dusseldorf in Germany.
Yet on one excuse or the other the appellant, it appears, was advised to adopt an attitude of non cooperation which was likely to forge a ground of attack on the departmental enquiry, thinking that participation in it would.
perhaps, worsen his case.
It is found more often than not that Government servants who have no real defence to take against the accusations are advised, and sometimes not without success, to non cooperate with the enquiry.
It seems to us this was one such case.
The Chairman by his letter dated June 18, 1959 asked the appellant whether he proposed to be present at the enquiry at Dusseldorf and such other places as the Board may determine on the dates to be intimated to him.
The appellant was specifically asked this question because he cast some baseless aspertions against the Board in his letter dated the 4th June, 59.
The appellant in his letter dated the 14th June had stated in para 14: "In the circumstances that I have put into, and hardly been left any choice, I feel no useful purpose call be served by my attending such an enquiry or having anything further to do with such as enquiry.
" The appellant 's reply dated June 20, 1959 clearly demonstrates the unjustifiably non cooperative attitude of the appellant.
He was running from pillar to post to find out some excuse to justify his non cooperation at the enquiry.
He insisted that Dr. Gottwald 's statement recorded in September, 1958 should be got signed by him which the Board rightly did not consider it necessary to do.
Another with stand which the appellant had taken was that the contents of his written defence submitted on May 27 were made known to section N. Hussain by some members of the Board of Enquiry an allegation 47 which was strongly refuted by the Board.
Lastly in the 10th paragraph of his letter dated June 20 the appellant said: "What can I do Mr. Chairman in the position you have placed me, you may proceed in any way you consider reasonable, just and fair." In spite of the unreasonable and unsustainable stand of the appellant, the Board of Enquiry, constituted as it was of high officials of the Government of India headed by the Deputy High Commissioner stationed in London, time and again expressed their anxiety to make the appellant participate in the enquiry.
But the appellant under a wrong advice played a game of hide and seek, at times adopted a tantalizing attitude showing his willingness to cooperate, but backed out at the eleventh hour.
To justify this comment we just mention some other letters viz. letter of the Board dated June 22, appellant 's reply dated June 23, Board 's letter dated June 26, appellant 's sticking to his previous stand in his letter dated June 29, Board asking the appellant to proceed to Germany in their letter dated July 2 and the appellant 's reiterating his previous stand in his letter dated July 8.
From the report of the Board it would appear that Sarin did not give a categorical answer as to whether or not he would go to Dusseldorf on July 13.
On the 10th July, he agreed to go and came to India Stores Department to collect his advance of T. A.
But on the evening of July 11, he informed the Secretary to the Board that he would not proceed to Dusseldorf to be present at the oral enquiry.
Mr. Phadke drew our attention to Sarin 's show cause reply dated January 31, 1961 in which he stated that the Board permitted him to go to Dusseldorf only if he agreed to participate in the oral proceedings there, otherwise not.
He therefore, cancelled his reservations to proceed to Dusseldorf.
He also referred to the photostat copy of the appellant 's letter dated July 24, 1959 and the addendum to this letter.
Nothing new; the same stand was taken by the appellant.
This, to our mind, makes patent the latent factor in the mental attitude of the appellant.
Did he want to go to Dusseldorf without agreeing to take part in the enquiry ? or did he want to go there to participate in it? Having appreciated all that has been said for the appellant in support of his first point we have come to the conclusion that the appellant was not denied any reasonable opportunity of visiting Germany at the proper time to participate in the enquiry.
He has to thank himself for deciding not to go.
Point No. 2.
It is not necessary to enter into any detailed discussion of this point.
In agreement with the Bench of the High Court we hold that all relevant documents were made available to the appellant either for inspection or for copies.
Some file containing the field inspection papers was not traceable.
The suspicion of the Board was that the Prosecutor at the departmental enquiry was not to gain anything by making the file untraceable.
On the other hand it was the appellant who was to gain by it.
The very same letters exchanged between the appellant and the Board in June and July, 1959 dealt 48 with this aspect also.
The High Court has extracted passages from the relevant letters in this connection and has rightly held: "It appears to us to be clear from this correspondence that all legitimate demands of the respondent for the inspection of papers which were available in the ISD office in London were fulfilled, but the respondent went on making unfounded claims in this behalf without specifying the documents.
We therefore, hold that all documents which were available in the ISD office in London were made available to the respondent." Point No. 3.
In support of the third point arguments were advanced with reference to letters dated July 18, August 6 and October 6, 1959.
Notes were handed over to us referring to the other pieces of correspondence.
We have studied them but think it unnecessary to increase the bulk of our judgment by referring to the correspondence in any detail.
It merely shows that on one ground or the other the appellant was adopting delaying tactics, shifting stands and excuses for not presenting himself at the enquiry either to cross examine the prosecution witnesses or to examine his defence witnesses.
All the time he was reiterating his stand taken in his letters dated June 14, and June 20, 1959.
The detailed report of the Board of Enquiry, apart from the correspondence which preceded it, is a clear proof of the anxiety of the Board to conduct the encquiry as fairly and fully as they could in the circumstances of the case.
The submission of the appellant is rejected as being devoid of substance.
In view of the attitude taken by the appellant of complete noncooperation in his letters dated June 14 and June 20, 1959 no useful purpose would have been served by associating him with the examination of the witnesses in London.
Madnani and section N. Hussain were examined in July and August.
The appellant never expressed his willingness to cooperate and be present at the examination of the witnesses in London.
His presence at the time of the examination of Bayross was a make believe more of cooperation to colour and cloud his real attitude of non cooperation.
The Board committed no irregularity or illegality in sending a general questionnaire to S/Shri Bhalla, Sharma, Johri and Sen in India as the appellant had refused to submit a questionnaire.
Copies of all the relevant statements and papers given to the Board at Dusseldorf were given to the appellant in September, 1959.
Although there was some delay in supply of these papers, that did not cause any prejudice to the appellant.
Point No.4 This point mainly concerns the merits of the findings of the Board of Enquiry and their final acceptance by the Government of 49 India.
Whether a charge levelled against the appellant was true or false had to be and has been judged in the light of the appellant 's stand that Gottwald had a motive to accuse falsely the appellant of having taken bribe from him in order to establish that he was not at fault in the delay which was made in the delivery of the contracted cranes.
Without much elaboration we reject this argument.
Gottwald was to gain by merely throwing the blame on the shoulders of Sarin.
He had nothing to gain and only to lose by making an accusation of having paid bribe to Sarin under his pressure.
No person would like to involve himself in the deal of payment of bribe to a Government servant merely for the purpose of explaining the delay caused in effecting the deliveries.
Ordinarily bribe could be paid so that there may not be any delay in inspection.
But here was a case where it is said delay was caused in the inspection because there was delay in the payment of the bribe.
It is not for us to examine in any detail the correctness of the findings recorded against the appellant at the departmental enquiry; but in passing, we may just observe that it could not have been possible for Gottwald to make a false accusation against Sarin, and then support it before the Board by examining his father, the bank records, vouchers, account books and a large number of persons working in his firm.
There was nothing in the records of this case to show that the claim of liquidated damages against the contractor was given up in view of the finding of guilt of the appellant.
We were informed at the Bar by the Soilcitor General that the claim was settled and not given up.
Be that as it may, we find the fourth submission made on behalf of the appellant unsustainable.
Points 5 and 6 These points may be dealt with together as they have got some inter connection.
It could not be substantiated on behalf of the appellant that section N. Hussain had any animus against him or was adversely interested against him in the matter.
Some letters with reference to the work of section N. Hussain at Barmingham with comments of the appellant thereon were placed before us.
Mr. Phadke could not substantiate the point with reference to them.
Time and again he laid stress on the fact that Gottwald made this complaint to Madnani on July 30, 1958 on being asked to do so by section N. Hussain because he had his own axe to grind against Sarin.
This argument has been stated merely to be rejected.
It was just in the natural course of events that when section N. Hussain was finding fault with Gottwald for the delay in the execution of the contract the latter became forced by circumstances to blurt out the truth.
The accusation against Sarin was too serious to be taken note of by section N. Hussain alone.
Naturally, therefore, he advised him to go and make this complaint to the higher officer Madnani.
No connection between M. A. Hussain the Chairman of the Board and section N. Hussain a Senior Inspector who was in Essen Area of West Germany immediately before the appellant, was established.
It is an argument of desperation to suggest that M. A. Hussain was biased against the appellant to protect or help section N. Hussain.
The charge of being communal levelled against the Chairman by the appellant in his letter dated October 50 5, 1959 written to the Government of India was obviously made with an ulterior motive after conclusion of the enquiry and sensing that it had gone against the appellant.
Great stress was led in court to show M. A. Hussain 's bias on the ground that at the earlier stage in the later half of 1958 he had formed his opinion against the appellant and recommended and insisted for the starting of a departmental enquiry against him without any further preliminary enquiry.
Mr. Phadke submitted that the Government turned down the proposal of M. A. Hussain and directed a preliminary enquiry to be made by Pandey.
We do not appreciate the force of this argument.
It would appear from the enquiry report that M. A. Hussain did not want, as he had no time, to be the Chairman of the Board of Enquiry.
Being a Deputy High Commissioner he was too busy in other affairs of the State.
But since the matter to be enquired into was against a high official of the Government, M. A. Hussain was appointed as the Chairman of the Board.
The appellant never objected to his being on the Board, until after the conclusion of the enquiry.
We are dis tressed to find that the appellant was ill advised to invent at a late stage a crudse and false story that on the 5th October, 1959 Doraiswamy a member of the Board of Enquiry had shown the secret file to the appellant which showed the bias of M. A. Hussain as he had dealt with the matter in the latter half of 1958.
Although according to the statement in the Writ Petition (vide para 28) he had written his letter dated October 5, 1959 after the alleged showing of the confidential file by Doraiswamy to him, not a word is to be found in the said letter to this effect.
Such a story was put forward in the written explanations which the appellant filed in answer to the punishment show cause notices.
We reject points 5 and 6 of the appellant.
Point No. 7 The enquiry was being conducted in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume I.
In the main body of the rule where a procedure for holding a departmental enquiry has been provided for, there is nothing said in relation to the engagement of a lawyer.
Certain notes are appended to the rule.
They seem to have been appended not on the basis of the executive instructions but as parts of the rule itself.
One such note was appended as note 4, which subsequently became note 3, on September 25, 1956 by the President of India who had framed Rule 1730.
This note reads as follows: "In a departmental enquiry, the accused railway officer may, if he so desires, be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer.
The term 'professional lawyer includes those persons who are competent to practice in a court of law. ' In face of the above note, treating it as a part of the rule, the appellant was not entitled to the services of a professional lawyer.
Gottwald, 51 as it appears, was a lawyer in name but actively in business.
The services of a professional lawyer were not necessary to cross examine him.
The fact was a simple one as to whether he had paid money to the tune of about 24,000 D.M. to the appellant from time to time.
Even if we treat the note aforesaid as one based merely on the executive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it.
At the most it had a discretion in the matter.
The question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that principles of natural justice were violated when the services of a professional lawyer were not made available to the appellant.
We give the answers against the appellant.
Great reliance was placed for the appellant on a decision of this Court in C. L. Subramaniam vs Collector of Customs, Cochin(1).
In this case the argument that, rule or no rule, the services of a professional lawyer should be made available at a departmental enquiry when asked for was not accepted.
What was held in that case was that the disciplinary authority brushed aside the request of the appellant before the Surpreme Court on a wrong ground completely ignoring the circumstances which were relevant.
It was, therefore, said at page 490: "Therefore that authority clearly failed to exercise the power conferred on it under the rule.
It is not unlikely that the Disciplinary Authority 's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself." In Tara Singh etc. etc.
vs State of Rajasthan and Ors.(2) the importance which is to be attached to the note appended the rule has been emphasized by Ray, C. J. delivering the judgment on behalf of the Division Bench of this Court to which one of us (Krishna Iyer, J) is a party, in these terms: "The notes are promulgated with the rules in exercise of legislative power.
The notes are made contemporaneously with the rules.
The function of the notes is to provide procedure and to control discretion.
The real purpose of the notes is that when rules are silent the notes will fill up gaps.
" The appellant was not entitled as a matter of right to have the services of any railway officer stationed in India to assist him in the conduct of his defence.
He wanted an officer from India especially Shri Bhalla.
It was not possible to make available the services of an officer from India.
The appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent or some other personnel of the Indian High Commission in London.
The accusations made against the appellant were not 52 such that required any expert or special skill.
The question was a simple one whether he had taken money from Gottwald in discharge of his official duties.
Having appreciated all the facts and circumstances of the case we have come to the conclusion that no principle of natural justice was violated in not making available to the appellant the services of Shri Bhalla or any other railway officer stationed in India for the conduct of his defence.
In the entire background of this case we find a passage occuring at page 803 in the Judgment of Lord Denning, Master of the Rolls in the case of R vs Secretary of State for the Home Department ex parte Mughal(1) quite apposite to be quoted.
The passage runs thus: "The rules of natural justice must not be stretched too far.
Only too often the people who have done wrong seek to invoke 'the rules of natural justice ' so as to avoid the consequences.
" In the result we find no merit in this appeal and dismiss it with costs.
V.P.S. Appeal dismissed.

summary/full:
Indian Railways Establishment Code, Vol.
I r. 1730 Right of delinquent officer to services of on advocate or another Railway offcial.
The appellant was a railway official of the Indian Railways, in London.
In connection with the purchase of stock from a West German firm three charges were framed against him that he obtained illegal gratification from the proprietor of that firm and that he had used official influence for personal advancement.
A board of enquiry as set up by the Government of India and the enquiry was held in London and West Germany.
The board held that two of the charges were proved and the appellant was dismissed from service.
He filed a writ petition in the High Court which was dismissed.
In appeal to this Court, it was contended that the enquiry was held in gross violation of the principles of natural justice and requirements of article 311 of the Constitution; that the proprietor of the German firm made the false accusation against him in order to escape payment of damages; that the chairman of the board of enquiry was biased against him, and that the appellant was denied the services of a professional lawyer or a railway official of his choice from India for conducting his defence and for cross examining the proprietor of the German Firm.
Dismissing the appeal, ^ HELD: (1) The correspondence that passed between the board and the appellant snows that there was no violation of any principle of natural justice, that the appellant was given inspection of all necessary documents; that he was given adequate and reasonable opportunity to defend himself and that the allegation that the chairman of the board was biased against the appellant was totally false.
[46 B C] (2) No principle of natural justice was violated in not making available to the appellant the services of a professional lawyer or of another railway official from India.
[51 B] (a) The enquiry was conducted in accordance with r. 1730 of the Indian Railways Establishment Code, Vol.
I, which prescribes the procedure for holding a departmental enquiry.
There is nothing in the rule about engagement of a lawyer but the note appended to the rule provides that in a departmental enquiry the accused may, if he so desires, be accompanied by another railway officer, provided he is approved by the competent authority, and provided that the person so nominated shall not be a professional lawyer.
[50 F G] (b) The notes are promulgated with the rules.
Their function is to provide procedure, to control discretion, and to fill up gaps when rules are silent.
Under the rule, the appellant was not entitled to the services of a professional lawyer.
[51 F G] Tara Singh etc.
vs State of Rajasthan and ors.
, [1975]3 SCR 1002, followed.
(c) Even if the note is treated as an executive instruction and not part of the rule itself, there is no reason why the authority should not follow the note.
The authority would still have a discretion in the matter.
In the present case, the question involved was a simple one whether he had taken money from the 40 proprietor of the German firm.
No prejudice was caused to the appellant, because the proprietor was only a lawyer in name but was actively in business and the services of a professional lawyer were not necessary to cross examine him.
[51 B] (d) The appellant wanted an officer from India to assist him in the conduct of his defence.
Under the rule, he was not entitled, as a matter of right, to have the services of any railway officer stationed in India.
He was in fact given a choice to choose either one stationed in London or on the Continent.
[51 G H] C. L. Subramaniam vs Collector of Customs, Cochin, [1972]3 SCR 485, explained and distinguished.
R. vs Secretary of State for the Home Department ex parte Mughal [1973] All England Law Reports, 796, referred to.


judgement:
Civil Appeals Nos.
1867 1924, 1952 of 1975 and 9 to 66 of 1976.
From the Judgments and orders dated the 18 4 75, 28 4 75 and 27 5 75 of the Mysore (Karnataka) High Court in Writ Appeal Nos.
1034 1039/74 and 116 to 143/75, 951 74, 922 923/74, 32/75, 1035 of 1974 and 976 to 1033/74 respectively.
L. N. Sinha, Sol.
General in C.A. No. 1891 and 1952 for the appellants in C.As.
1867 1924 and Respondent in CA 1952/75 and K.S. Puttaswamy, 1st Addl.
Government Advocate (In Cas.
1867 1924 and 1952/75) B. R. G. K. Achar.
section G. Sundaraswamy, K. section Gourishanker and K. N. Bhatt for the Appellants in C.As.
1952/75 and Respondents in C.A. 1891/75.
L. N. Sinha, Sol.
General in (CA 9) K. section Puttaswamy, Asstt.
Government Advocate, Narayan Netter and B. R. G. K. Achar for the Appellants in C.As. 9 to 66 of 1976.
section V. Gupta (In CA 1890/75), section section Javali and B. P. Singh for Respondents in CAs.
1875 to 79, 1882 83 1885, 1887 90, 1893, 1895, 1897, 1902 08, 1909, 1910, 1912, 1914, 1917, 1920, 1923 24/75 and for R. 2 in C.As.
1867, 1874, 1880 81, 1884, 1889 1901, 1903 1906 07 and 1921/75 and for Respondent in Appeals Nos. 9, 13 18, 20, 21, 39 44, 54, 56, 58, 60 63 and for Respondent No. 1 in Cas 19, 22 23, 37, 43, 46, 51, 55, 59, 65 and Respondent No. 2 in C.As 38 of 1975.
The Judgment of the Court was delivered by RAY, C.J.
These appeals are by certificate from the judgment dated 18 April, 1975 of the High Court of Karnataka.
The respondents were the petitioners in the High Court.
The respondents are either holders of Bane lands in the District of Coorg or holders of such lands who purchased timber standing on them from such holders.
The respondents in the High Court asked for writ directing the Divisional Forest officer of the State to issue permits to the respondents to remove trees standing on Bane lands as particularised in the petition.
1090 The Divisional Forest Officer refused permits to the respondents to cut trees and remove timber.
The two grounds on which the respondents challenged the order of refusal are these.
First, the respondents claimed a vested right to redeem the trees on Bane lands on payment of 50 per cent of the value of timber under Coorg Land and Revenue Regulation of 1899 and the rules framed thereunder.
Second the respondents claimed that, by section 75 of the Karnataka Land Revenue Act, 1964, an absolute right was conferred on them in respect of trees on Bane lands and the Government have no right even to demand 50 per cent of the value.
The learned Single Judge referred to the provisions of Coorg Land and Revenue Regulation of 1899 and in particular rule 97 thereof.
The learned Single Judge came to the conclusion that rules conferred a right on the holders of Bane land to redeem the trees standing on such Bane lands.
He also held that under the rules, the respondents were required to pay 50 per cent of the value of the timber to the State along with other incidental charges.
The contention of the State that the Coorg Land and Revenue Regulation, 1899 was repealed and, therefore, the respondents had no right under those Regulations to remove timber was repelled by the learned Single Judge.
The learned Judge held that section 202 of the Karnataka Land Revenue Act of 1964 did not affect the right acquired by the holders of Bane lands in spite of repeal of the Coorg Land and Revenue Regulation of 1899.
In this view of the matter, the learned Single Judge did not consider it necessary to express any opinion on the second contention of the respondents whether under section 75 of the Karnataka Land Revenue Act of 1964, the State had no right to demand 50 per cent of the value.
The Division Bench on appeal held that the respondents could be divided into two categories.
As to the first category, the Division Bench in sub paragraph (1) of paragraph 59 of the judgment said that those who deposited before 15 January, 1974, 50 per cent of the value of timber as determined by the Divisional Forest officer, could be granted permits to cut and remove timber.
If there was any difference between the 50 per cent of the actual value of timber and the amount paid on the basis of determination by the Divisional Forest officer, the Divisional Forest officer would recover the difference as mentioned in the said paragraph 59(1).
In sub paragraph (2) of paragraph 59, the Division Bench dealt with respondents who did not fall within category 1, but made applications before 15 January, 1974.
The Solicitor General appearing for the State with his usual fairness said that he did not want to take up time of the Court in going into the merits of the appeals.
He accepted the conclusions of the High Court in paragraph 59 of the judgment.
The result is that the conclusions of the High Court in paragraph 59 are affirmed.
The matter, however, does not end there because counsel for the respondents submitted that the Division Bench went into the nature and tenure of Bane lands and expressed views which are not correct 1091 and which in any event were not necessary for the purpose of the present case.
The learned Single Judge rightly did not express any view on the second question as to whether the Bane land holders could ask for removal of trees without payment of full value.
The Division Bench, however, in paragraphs 16 and 20 dealt with the legal position of Bane lands prior to 1 November, 1899, in paragraph 30 on the legal position between 1 November 1899 and 1 April 1964 and in paragraphs 36 and 43 on the legal position after 1 April 1964.
The Division Bench of the High Court in paragraphs 17 and 19 of the judgment dealt with Bane and Kumki lands and equated the same.
It may be stated here that one of the respondents Consolidated Coffee Ltd., also filed an appeal from the judgment of the High Court.
The Solicitor General contended that the Consolidated Coffee Ltd. was not competent to file an appeal because the company had obtained relief and could not, therefore, attack the judgment.
Having heard the Solicitor.
General and counsel for the respondents, we are of opinion that the course adopted by the learned Single Judge was correct.
The Division Bench of the High Court need not have gone into the question on the nature and tenure of Bane lands and expressed opinion on rights of the parties.
These observations were not necessary.
We, therefore, hold that we affirm the conclusions of the Division Bench of High Court as stated in paragraph 59 of the judgment and make it clear that the observations and opinions expressed by the Division Bench on the nature and tenure of Bane lands and rights of the parties will not bind the parties on these questions in future.
It will be open to both parties, namely, the appellants and respondents to urge their rival contentions on these questions if in future there will be any dispute between the parties.
The directions given by the Division Bench in paragraph 59 of the judgment will be followed by the parties.
The directions are explicable because of 15 January 1974 being taken as the dividing line with regard to persons who made payment and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rule, 1969.
The appeals are dismissed.
Parties will pay and bear their own costs.
S.R. Appeals dismissed.

summary/full:
"Bane lands" are forest lands granted for the service of the "Warg", holding rice fields to which they are allotted to be held, free of revenue, for grazing, leaf manure/firewood and for timber required in the Warg, capable of being alienated only along with the Warg lands u/s 97 of the Coorg Land and Revenue Regulation 1899, which is in pari materia with Rule 151 A and B made under the Indian Forest Rules 1954.
The holders of the Bane Land had the right to redeem the trees standing on such Bane lands subject to the payment of seignorage etc.
Under Rule 137 of the Karnataka Forest Rules 1969, effective from 1st March 1969, redemption of the growth on "Bane lands" was allowed on payment of 50% of the value of the timber.
Rule 137 was however deleted w.e.f. 15th January 1974.
The various appellants who were holders of "Bane Lands" challenged, under article 226.
the orders of the Forest authorities demanding full value of the timber sought to be "redeemed" by them contending that (i) they had vested right to redeem the trees on Bane lands on payment of 50% of the value of timber under the Coorg Land and Revenue Regulations of 1899 and (ii) Section 75 of the Karnataka Land Revenue Act, 1964 vested in them an absolute right in respect of the trees on Bane lands and the Government therefore had no right even to demand 50% of the value.
All the writs were accepted by the Mysore High Court following its earlier decision in I.L.R. (Karnataka) 1975 Vol. 25, p. 443 (Ramaraju Naidu vs Divl.
Forest officer) holding that the Rules conferred a right on the holders of Bane lands to redeem the trees standing on such lands on payment of 50% of the value of the timber to the State along with other incidental charges.
The court did not express any opinion whether the State had no right to demand 50% of the value under the Karnataka and Revenue Act of 1964.
Allowing the State appeal against I.L.R. (Karnataka) 1975 Vol.
25 page 443 the Division Bench held [in State of Karnataka vs Ramaraju Naidu I.L.R. (Karnataka) 1975 Vol.
25 p. 1361] that (i) the Bane holders had no propriety right to the soil of Bane Land and to the trees standing thereon but only limited privilege to collect grass leaves timber etc.
for domestic purposes (ii) Even after section 75(1) of the Karnataka Land Revenue Act was enacted the Bane holders did not become holders or occupants as defined in the Act and ownership of trees did not accrue to them and (iii) Section 79 of the Karnataka Land Revenue Act which preserved the preexisting privileges of Bane holders has no application to Bane lands.
Keeping 15 1 74, the date of deletion of Rule 137 of the Karnataka Forest Rules 1969, the Division Bench, however directed that (1) the respondents who deposited before 15th January 1974, 50% of the value of timber as determined by the Forest officer could be granted permits to cut and remove timber, with liberty to the Forest officer to recover and any differential amount between the 50% of the actual value of timber and amount paid on the basis of prior determination and (ii) those respondents who have made applications under rule 137 before 15th January 1974, but not deposited the amount could also be granted permits on deposit of 50% of the value of timber.
Dismissing the State appeals, by certificate, the court ^ HELD: (1) The learned single judge in ILR (Karnataka) 1975 Vol.
25 p. 443 rightly did not express any view on the second question as to whether 1089 the Bane Land holders could ask for removal of trees without payment full of value u/s 75 of the Karnataka Land Revenue Act, 1964.
[1091A] Ramaraju Naidu vs Divl.
Forest Officer I.L.R. (Karnataka) 1975, Vol.
25 p. 443 (partly affirmed).
(ii) The directions given by the Division Bench are explicable because of 15th January 1974 being taken as the dividing line with regard to persons who made payments and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rules, 1969.
[109lF] [Their Lordships left open to the parties to urge their rival contentions on the questions of the nature and terms of Bane lands and right, if in future, there will be any dispute between them, in view of their making clear that the observations and opinions of the High Court Division Bench should not operate as res judicata]