judgement:
Appeal No, 147 of 1953, 1355 Appeal by Special Leave from the Judgment and Order dated the 24th day of August 1951 of the High Court of Judicature at Bombay in Appeal No. 50 of 1951 arising out of the Order dated the 19th day of June 1951 of the said Court exercising Original Jurisdiction in Misc.
No. 143 of 1951.
M. C. Setalvad, Attorney General.for India (Porus A. Mehta and P. G. Gokhale, with him), for the appellant.
J. B. Dadachanji, M. V. Jayakar and Rajinder Narain for respondent No. 2. 1955.
March 4.
The Judgment of Vivian Bose, Venkatarama Ayyar and Sinha JJ.
was delivered by Sinha J. Jagannadhadas J. delivered a separate judgment.
SINHA J. This is an appeal by special leave from the order of the High Court of Judicature at Bombay dated the 24th August 1951 upholding that of a single Judge of that court sitting on the Original Side, dismissing the appellant 's petition under article 226 of the Constitution for a writ of certiorari quashing the order dated the 23rd January 1951 passed by the 1st respondent, the Authority under the (hereinafter referred to as the Act).
The facts leading up to this appeal may shortly be stated as follows: The 2nd respondent is and has been at all material times an employee of the Central Railway (formerly called the G.I.P. Rly.) represented by the appellant who has been nominated by the Railway Administration as responsible for payment of wages under section 3 of the Act.
Ever since 1941, the 2nd respondent has been employed by the Railway Administration as a carpenter on daily wages, and has been treated as a daily rated casual labourer and has been paid his wages at the rate of Rs. 3 4 0 per day.
He continued receiving his wages at that rate until October,, 1949 without any demur, and granting receipts for the wages thus received.
On the 2nd December, 1949 an application was made by one K. N. Pitkar " an official of Registered Trade Union, a person 1356 permitted by the Authority" under sub section (2) of section 15 of the , against the G.I.P. Ry.
administration through its Divisional Engineer, Parel, Bombay.
It was alleged on behalf of the 2nd respondent that his wages due in respect of six months from May to October 1949 amounting to Rs. 245 had not been paid or had been subjected to illegal deductions as shown in the schedule.
The schedule will be set out hereinafter.
A claim for Rs. 245 plus Rs. 15 by way of compensation was made.
The appellant, as the opposite party before the Authority, resisted the claim, inter alia, on the grounds (1) that Rs. 245 had not been illegally deducted from the wages of the 2nd respondent; and (2) that the claim of the 2nd respondent who was employed as a daily rated casual labourer on specified daily wages, to be placed on a permanent cadre on the scale of monthly rates of pay was unfounded.
It was further alleged that the 2nd respondent did not come within the purview of the Railway Services (Revision of Pay) Rules as he was a daily rated casual labourer charged to works and that no rules had been laid down governing the rates of pay and the conditions of service of daily rated casual laborers like the 2nd respondent.
Hence his terms of service were the daily wages paid to him all along.
It was thus contended that there had been no deduction from his wages.
In this connection reference was made to the award of the Railway Workers Classification Tribunal, dated the 28th May 1948.
The Authority by its orders dated the 23rd January 1951 decided that the position of the 2nd respondent was not that of a casual labourer but that of a "temporary employee" and that therefore he was entitled to be on the scale of Rs. 55 150 plus the allowances admissible.
In coming to this conclusion the Authority observed that the work done by the 2nd respondent is of the same nature as that of a member of the permanent staff.
Hence the 2nd respondent could not be called a casual labourer.
It also made reference to 1357 article 39 (d) of the Constitution containing the direction that there should be equal pay for equal work.
The Authority also negatived the contention raised on behalf of the appellant that the question of classification of an employee was outside its jurisdiction.
In pursuance of the said order the Authority allowed the 2nd respondent 's application by its further orders dated the 2nd March 1951.
Against the said orders of the Authority the appellant moved the High Court of Judicature at Bombay by an application under article 226 of the Constitution for quashing the aforesaid orders.
The matter was heard in the first instance by a learned single Judge of that court who by his orders dated the 19th June 1951 dismissed the application.
The appellant preferred an appeal under the Letters Patent which was heard by a Division Bench of that court.
The Division Bench by its order dated the 24th August 1951 dismissed the appeal and agreed with the conclusions of the Judge on the Original Side that the Authority had not acted without jurisdiction or had not exceeded its jurisdiction in entertaining the 2nd respondent 's application.
On the appellant 's application for leave to appeal to this court being rejected by the High Court, the appellant moved this court and obtained special leave to appeal on the 2nd February 1953.
The main controversy between the parties in this court is whether, having regard to the relevant provisions of the Act, the 1st respondent was competent to pass the orders it did, which orders had been upheld by the High Court of Bombay.
The Authority set up under section 15 of the statute in question is undisputably a tribunal of limited jurisdiction.
Its power to hear and determine disputes must necessarily be found in the provisions of the Act.
Such a tribunal, it is undoubted,, cannot determine any controversy which is not within the ambit of those provisions.
On examining the relevant provisions of the Act it will be noticed that it aims at regulating the payment of wages to certain classes of persons employed in industry.
It applies 1358 in the first instance to the payment of wages to persons employed in any factory or employed by a railway administration; but the State Government has the power after giving three months notice to extend the provisions of the Act or any of them to the payment of wages to any class of persons employed in any class or group of industrial establishments.
"Wages" means "all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable. . to a person employed in respect of his employment or of work done in such employment. " (omitting words not necessary for our present purpose).
Section 3 lays down that every employer or his re presentative or nominee shall be responsible for the payment to persons employed by him of all wages Section 's provides for fixation of "wage periods ' which shall not exceed one month in any case.
Section 5 indicates the last date within which, with reference to the particular wage period, wages shall be paid.
Section 7 lays down that the wages of an em ployed person shall be paid to him without deductions of any kind except those authorized by or under the Act.
Section 7(2) in clauses (a) to (k) specifies the heads under which deductions from wages may be made, namely, fines; deductions for absence from duty; deductions for damage to or loss of goods of the employer; deductions for house accommodation supplied by the employer; deductions for amenities and services supplied by the employer; deductions for recovery of advances or for adjustment of overpayments of wages; deductions of income tax payable by the employee; deductions to be made under orders of a court or other competent authority; deductions for subscriptions to, and for repayment of advances from any provident fund; deductions for payments to cooperative societies, etc.; and finally, deductions made with the concurrence of the employed person in furtherance of certain schemes approved by Government.
No other deductions are permissible.
It is also laid 1359 down that every payment made by the employed person to the employer or his 'agent shall be deemed to be deduction from wages.
Each of the several heads of deductions aforesaid is dealt with in detail in sections 8 to 13.
Section 8 lays down the conditions and limits subject to which fines may be imposed and the procedure for imposing such fines.
It also requires a register of such fines to be maintained by the person responsible for the payment of wages.
Section 9 deals with deductions on account of absence from duty and prescribes the limits and the proportion thereof to wages.
Section 10 similarly deals with deductions for damage or loss to the employer and the procedure for determining the same.
Like section 8, this section also requires a register of such deductions and realizations to be maintained by the person responsible for the payment of wages.
Section 11 lays down the limits of deductions for house accommodation and other amenities or services which may have been accepted by the employee, subject to such conditions as the State Government may impose.
Section 12 lays down the conditions subject to which deductions for recovery of advances may be made from wages.
Finally section 13 provides that the deductions for payment to co operative societies and insurance schemes shall be subject to such conditions as the State Government may prescribe.
Section 14 makes provision for the appointment of Inspectors for carrying out the purpose of the Act, with power to enter on any premises and to examine any registers or documents relating to the calculation or payment of wages and to take evidence on the spot.
His function is to see that the registers or documents prescribed by the Act containing the necessary entries as regards deductions and other matters have been properly kept by the employers or their agents in order to be able to ascertain whether any deductions from wages in excess of the provisions of sections 7 to 13 aforesaid have been made.
We then come to section 15 which makes provision for the appointment of the Authority "to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of 174 1360 the wages of persons employed or paid in that area".
Where the Authority finds that any deduction has been made from the wages of an employed person or the payment of any wages had been delayed, he may at the instance of the wage earner himself or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf, or any Inspector under the Act or any other person acting with the permission of the Authority, after making such enquiry as he thinks fit and after giving an opportunity to the person responsible for the payment of wages under section 3 to show cause, direct the refund to the employed person of the amount deducted or the payment of delayed wages together with such compensation as he may determine.
The section also lays down the limits and conditions of his power to direct payment of compensation to the employed person or of penalty to the employer, if he is satisfied that the application made on behalf of an employee was either malicious or vexatious.
His determination is final subject to a very limited right of appeal under section 17.
Section 18 vests the Authority with all the powers of a civil court under the Code of Civil Procedure, for the purpose of taking evidence, of enforcing the attendance of witnesses and of compelling the production of documents.
Section 22 lays down that no court shall entertain any suit in respect of wages or of deduction from wages in so far as the claim forms the subject matter of a pending proceeding under the Act or has formed the subject of a direction in favour of or against the plaintiff under section 15, or which could have been recovered by the application under that section.
Section 26 empowers the State Government to make rules to regulate the procedure to be followed by the authorities and courts referred to in sections 15 and 17 and provides that rules may be made inter alia, requiring the maintenance of records, registers, returns and notices necessary under the Act and the display in a conspicuous place of notices specifying the rates of wages payable to persons employed on such premises; and prescribing the authority for making a list of 1361 acts and omissions in respect of which fines may be imposed and the procedure for imposing such fines.
We have set out above in some detail the relevant provisions of the Act in order to point out that those provisions are not applicable to the complaint made in the present case.
In this connection it is necessary to set out in extenso the "particulars of claim" in the schedule appended to his application which are as follows: "The applicant is working as a carpenter mason with the opposite party under I.O.W., Byculla.
According to the orders on introduction of the prescribed scales, the Railway Administration has to make the staff working under I.O.W. on permanent monthly wages scheme under the rules of the prescribed scales.
The applicant along with others was up till now under daily wages scheme.
About 20 posts under I.O.W. where the applicant is working were to be made per manent.
The opposite party in supersession of claim of the applicant has confirmed his juniors on the permanent scales as a skilled workman in the scale of 55 3 85 4 125 5 130, whereas the opposite party continued to pay the applicant on daily wages scheme thus depriving him of his legitimate wages under the prescribed scale, which resulted in the monetary loss to the applicant of Rs. 40 13 4 per month.
Notice on behalf of the applicant was served on this count on the opposite party but of no avail and hence this application.
The juniors have been paid under the prescribed scales from April, 1949, from which date the applicant was also entitled to the prescribed scale 55 130 (scale for skilled workman).".
There is no allegation of delay in payment of wages inasmuch as it is not the respondent 's case that his wages were not paid within the time limit laid down in section 5; nor are there allegations to show that any payments have been made by the employed person to the employer or his agent which could be deemed to be a deduction from his wages within the meaning of section 7.
None of the categories of deductions as laid down in section 7 have been referred to.
In other words, it is not alleged that his Wages 1362 were so much and that so much had been deducted under any of the heads set out under section 7(2).
The allegations made by the respondent only amount to saying that he had been paid his actual wages as fixed by the railway administration but that after the introduction of the scheme of upgrading of persons employed under the daily wages scheme, others who were junior to him had been placed on the monthly wages scheme whereas his claim to be so placed had been ignored.
The respondent 's main grievance, therefore, appears to be that he had not been paid wages on the scale to which he would have been entitled if he had been placed on the monthly wages scheme.
In our opinion, the scheme of the Act as set forth above shows that if an employee were to state that his wages were, say Rs. 100 per month and that Rs. 10 had been wrongly deducted by authority responsible for the payment of wages that is to say, that the deductions could not come under any one of the categories laid down in section 7 (2), that a would be a straight case within the purview of the Act and the authority appointed under section 15 could entertain the dispute.
But it is said on behalf of the respondent that the authority has the jurisdiction not only to make directions contemplated by sub section (3) of section 15 to refund to the employed person any amount unlawfully deducted but also to find out what the terms of the contract were so as to determine what the wages of the employed person were.
There is no difficulty in accepting that proposition.
If the parties entered into the contract of service, say by correspondence and the contract is to be determined with reference to the letters that passed between them, it may be open to the authority to decide the controversy and find out what the terms of the contract with reference to those letters were.
But if an employee were to say that his wages were Rs. 100 per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognized and given effect to, 1363 that would not in our opinion, be a matter within the ambit of his jurisdiction.
The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages.
The respondent 's complaint in the present case comes within the latter illustration.
If the respondent 's claim to be placed on the scheme of higher wages had been.
unduly passed over by the appellant, if indeed he had the power to do so, the obvious remedy of the respondent was to approach the higher authorities of the railway administration by way of departmental appeal or revision; but instead of doing that, he has sought his redress by making his claim before the authority under the Act.
The question is, has the authority the power to direct the appellant or his superior officers who may have been responsible for the classification, to revise the classification so as to upgrade him from the category of a daily wageearner to that of an employee on the monthly wages scheme.
If the respondent had been on the cadre of monthly wages and if the appellant had withheld his rise in wages to which he was automatically entitled, without any orders of his superior officers, be might justly have claimed the redress of his grievance from the authority under the Act, as it would have amounted to an underpayment.
But in the present case, on the case as made on behalf of the respondent, orders of the superior officers were necessary to upgrade him from a daily wage earner to a higher care.
The authority under the Act has not been empowered under section 15 to make any such direction to those superior officers.
The appellant is responsible to pay the respondent only such wages as are shown in the relevant register of wages presumably maintained by the department under the provisions of the Act, but he cannot be directed to pay the respondent higher wages on the determination by the authority that he should have been placed on the monthly wages scheme.
In that view of the matter it is not necessary to go 1364 into the merits of the controversy as to what classification as adumbrated by the Railway Workers ' Classification Tribunal, and adopted by the Railway administration, the second respondent should have been brought under.
If that question were open to determination by the Authority, we would have had to remit the case to the Authority to give a fresh opportunity to the parties to adduce all the relevant evidence and then to come to its final conclusions, as it appeared to us during the hearing of the case that all relevant information had not been placed before the Authority.
But, as, in our opinion, that is not a matter within its limited jurisdiction, that contingency does not arise.
For the reasons given above we allow this appeal, quash the orders of the Authority and of the High Court, but in the special circumstances of this case we make no order as to costs.
JAGANNADHADAS J. I regret that I find myself unable to agree.
The second respondent before us, employed as a carpenter in the Railway since 1941, has been working as a daily rated casual labourer.
He claimed that he should have been absorbed as a monthly rated permanent employee and that he has been wrongly superseded.
His claim to be treated as a permanent employee was apparently not accepted by the Tribu nal (the Authority under section 15 of the for Bombay).
But it was held that the position of the applicant is not that of a daily rated casual labourer but that of a monthly rated temporary employee.
His claim was treated and upheld by the Tribunal as one substantially based on the ground that the Award of the Railway Workers ' Classification Tribunal in relation to the recommendations of the Central Pay Commission was approved by the Railway Board and directed to be implemented, and that by virtue thereof he was no longer a mere casual labourer but was entitled to higher wages on the footing of a monthly rated labourer.
No question arises that the order of the Tribunal is bad owing to the 1365 variation between the claim made and the relief granted.
As held by the High Court, pleadings in these cases have to be liberally construed.
That his claim was understood as having been based on the Award of Railway Workers ' Classification Tribunal, by the Railway Authorities themselves, is clear from the statement filed on their behalf in answer to the J. employee 's claim.
Apart from the question of jurisdiction, the defence was two fold.
(1) The applicant being a daily rated casual labourer, charged to works, the directive of the Railway Board did not apply to him.
(2) Even if it applied to a person in the situation of the applicant, he was not entitled to be brought on to the monthly rates of pay in the skilled grade, without his previously passing a trade test to establish himself as skilled in his trade and he did not pass the test.
The Tribunal.
on the material referred to by it in its order, came to the conclusion (1) that the applicant did not fall within the category of workcharged staff, (2) that under the Award of the Railway Workers ' Classification Tribunal, no trade test was necessary for the applicant who was a carpenter, and (3) that as per certain instructions of the concerned authority, the period of casual labour was to be limited to six months, and that since this applicant was admittedly a casual labourer under the Railway for a much larger period, i.e. since 1941, he became entitled to be treated as a temporary employee and not as a casual labourer and to receive wages as such.
Whether these conclusions are right or wrong is not the question before us.
The only question is whether or not the Tribunal had the jurisdiction to find that the applicant was entitled to the emoluments of a monthly rated temporary employee and not to that of a daily rated casual labourer, as the result of the order of the Railway Board directing implementation of the Award of the Classification Tribunal.
The jurisdiction of the Tribunal arises under section 15 of the (Act IV of 1936) (hereinafter referred to as the Act).
The Tribunal is set up to decide "all claims arising out of deductions from the wages or delay in payment of 1366 wages".
The relief which it is authorised to award,is to direct "the refund of the amount deducted, or the payment of the wages delayed".
Such a direction made by the Tribunal is final, under section 17 of the Act, subject to the right of appeal provided therein.
Under section 22, no suit lies in any court for the recovery of wages or of any deduction therefrom which could have been recovered by an application under section 15.
However limited this jurisdiction of the Tribunal, and however elaborate the provisions in the Act for the preparation and display by the employer of the table of wages payable to the employees, and for the inspection thereof by the Factory Inspectors, it cannot be supposed that the jurisdiction of the Tribunal is only to enforce the wages so displayed or otherwise admitted.
Such a narrow construction would rob the machinery of the Act of a great deal of its utility and would confine its application to cases which are not likely to arise often, in a wellordered administration like the Railways.
Indeed, I do not gather that such a construction was pressed for, before us, in the arguments.
Even a Tribunal of limited jurisdiction, like the one under consideration, must necessarily have the jurisdiction to decide, for itself, the preliminary facts on which the claim or dispute before it depends.
In the instant case, it must have jurisdiction to decide what the wages payable are and, for that purpose, what the contract of employment and the terms thereof are.
The judgment of my learned brothers in this case apparently recognizes the jurisdiction of the Tribunal as above stated, when it said that the Tribunal has the power "to find out what the terms of the contract were to determine what the wages of the employed person were".
Whether the Tribunal 's decision in this behalf is conclusive or not is a matter that does not arise for decision in this case.
But, it is said that the Tribunal has no authority to determine the question of "potential wages".
Undoubtedly a claim to a higher potential wage cannot be brought in under the category of "claim arising out of deduction from the wages or delay in pay 1367 ment of the wages" if that wage depended on the determination by a superior departmental or other authority as to whether or not a particular employee is entitled to the higher wage a determination which involves the exercise of administrative judgment or discretion or certification, and which would, in such a situation., be a condition of the payability of the wage.
But where the higher wage does not depend upon such determination but depends on the applica tion of, and giving effect to, certain rules and orders which, for this purpose, must be deemed to be incorporated in the contract of employment, such a wage is, in my view, not a prospective wage, merely because the paying authority concerned makes default or commits error in working out the application of the rules.
In this context it is relevant to notice that the definition of "wages" in the Act is "all remuneration which would if the terms of the contract, express or implied, were fulfilled, be payable".
The word "were" in this definition which I have underlined, seems to indicate that even a "prospective wage" which would be payable on the proper application of the rules in the sense which I have explained above may well fall within its scope.
he wage under the Act is not, necessarily, the immediately pre existing wage but the presently payable wage.
In the case before us, the order of the Tribunal proceeded on the view that the applicant was presently entitled to be treated as a monthly rated temporary employee and not as a daily rated casual labourer, by virtue of the directions of the Railway Board for the implementation of the scheme of classification and that therefore he was entitled to the appropriate higher wage.
We have not been shown any material to indicate that this higher classification of the applicant depended not on the mere application, of the classification scheme and the rules thereunder, to him but upon any determination by a departmental higher authority.
If it was the latter, undoubtedly the Tribunal cannot claim to sit in judgment over that determination, whether it was right or wrong.
Such 175 1368 determination, if wrong, could be corrected only by a further departmental appeal, if any, available.
But the Tribunal had, to my mind, the authority to find whether the applicant 's case falls within the scope of determination by the departmental authority or is one of mere application of the rules to the facts of this case.
If the decision of the Tribunal in this behalf was wrong, the appropriate remedy for the Railway Authority was by way of an appeal under section 17 of the Act.
Since the finding of the Tribunal in this case involved the case of as many as six persons and the net additional amount ordered was a sum of Rs. 1,341, its finding was appealable under section 17 of the Act.
Whether or not an employee was entitled to wages of a higher category than what he was till then drawing would depend entirely on the scope of the rules with reference to which he is entitled to become one in the higher category and it cannot be assumed a priori that such a claim is a claim to "prospective wages".
In my view, therefore, there is no sufficient reason to reverse the judgment of the learned Judges of the Bombay High Court and this appeal should be dismissed with costs.
BY THE COURT.
In accordance with the decision of the majority, the appeal is allowed and the orders of the Authority and of the High Court are quashed.
There will be no order as to costs throughout.
Appeal allowed.

summary/full:
The second respondent had been an employee of the Central Railway as a daily rated casual labourer on specified daily wages since 1941.
He continued to receive his wages at the specified rate until October 1949.
In October 1949 he made an application through an official of the Registered Trade Union a person permitted by the authority under sub section (2) of section 15 of the Payment of Wages Act, 1936 claiming his wages due in respect of six months from May to October 1949.
The respondent did not allege delay in the 1354 payment of his wages or deduction of his wages in contravention of the provisions of section 5 or section 7 of Act IV of 1936 respectively.
The respondent alleged that he had been paid his actual wages as fixed by the railway administration but that after the introduction of the scheme of upgrading of persons employed under the daily wages scheme, others who were junior to him had been placed on the monthly wages scheme whereas his claim to be so placed, had been ignored and that he had not been paid wages on the scale to which he would have been entitled if he had been placed on the monthly wages scheme.
Held, per SINHA J. (VIVIAN BosE and VENYATARAMA AYYAR JJ.
concurring, JAGANNADHADAS J. dissenting), that the respondent 's complaint fell under the category of potential wages and the authority appointed under the Act had no jurisdiction to decide the question of potential wages.
It had the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages.
On the case as made on behalf of the respondent, orders of the superior officers were necessary to upgrade him from a daily wageearner to a higher cadre.
The authority under the Act has not been empowered under section 15 to make any such direction to the superior officers.
Per JAGANNADHADAS J. Undoubtedly a claim to a higher potential wage cannot be brought in under the category of "claim arising out of deduction from the wages or delay in payment of the wages" if that wage depended on the determination by a superior departmental or other authority as to whether or not a particular employee is entitled to the higher wage a determination which involves the exercise of administrative judgment or discretion or certification, and which would, in such a situation, be a condition of the payability of the wage.
But where the higher wage does not depend upon such determination but depends on the application of and giving effect to certain rules and orders which, for this purpose, must be deemed to be incorporated in the contract of employment, such a wage is not a prospective wage merely because the paying authority concerned makes default or commits error in working out the application of the rules.
The wage under the Act is not necessarily the immediately pre existing wage but the presently payable wage.
Whether or not an employee was entitled to wages of a higher category than what he was till then drawing would depend entirely on the scope of the rules with reference to which he is entitled to become one in the higher category and it cannot be assumed a priori that such a claim is a claim to "prospective wages".
On the facts of the case as found the dispute as to the wage was one that fell within the jurisdiction of the "authority" concerned.


judgement:
Appeal 1236 of 1970.
Appeal by Special Leave from the Judgment and Decree dated the 6th November, 1968 of the Allahabad High Court in First Appeal No. 361 of 1964.
Yogeshwar Prasad, section K. Bagga and section Bagga; for the Appellant.
section N. Prasad and section P. Nayar, for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The plaintiff appellant 's allegations, in the suit which comes up by special leave before us, may be stated as follows The appellant was appointed a Clerk on 29 7 1925 at Gorakhpur in the Accounts Department of what was then the Bengal North Eastern Railway.
In January, 1930, he was appointed Assistant Office Superintendent.
The Railway was taken over by the State and renamed as Oudh Tirhut Railway (0.
T. R.), and, subsequently, it became the North Eastern Railway.
In January, 1949, the appellant was appointed officiating Assistant Secretary to the General Manager as a Class II Officer.
On 11 5 1949, he was promoted to the post of Office Superintendent.
But, on that very date, he was served with a charge sheet by the Deputy General Manager and called upon to explain, within 3 days, the use of certain first class passes issued to him.
On 14 5 1949, he submitted his explanation and justified the use of these passes by quoting specific rules and similar instances.
On 29 6 1949, the General Manager reverted the appellant from the Post of office Superintendent to that of the Assistant Office Superintendent with effect from 1 7 1949 without holding any enquiry at all as required by the Disciplinary and Appeal Rules of the Railway.
The appellant 's case is that, despite his demotion, he continued to perform the duties of the Office Superintendent presumably because he was efficient.
On 27 7 1949, the appellant filed an appeal to the General Manager with the result that, on 29 11 1950, the Deputy General Manager had to withdraw the charges with the remarks: ,,since the appellant had used the passes under a genuine and reasonable belief, no stigma was attached".
Thereupon, the appellant applied to the General Manager for formal reinstatement in the post of Office Superintendent and payment of arrears of his salary.
Curiously, the General Manager, while awarding an honorarium of Rs. 40/ per month for the additional work of Office Superintendent done by the appellant, practically upheld the reversion order with the remark that the appellant 's guilt was established.
Against this order the appellant filed an appeal on 30 7 1952 to the Railway Board through the General Manager which was daily forwarded to the Railway Board on 19 8 1952.
On 30th October, 1954, the Railway Board sent a letter to the General Manager stating that the question raised by the appellant was not a "live issue", and, therefore, there was no reason to interfere with the General Manager 's action.
On 30 9 1959, the appellant retired at the age of 57 despite his claim that he was entitled to continue up to the age of 60 years.
The appellant alleged that he received no intimation about the disposal of his appeal by 487 the Railway Board despite the fact that he went on sending reminders.
to the Railway Board.
On 15 12 1959, the Railway Board had asked for clarification from him.
He had also been assured by the then General and Deputy General Managers, in 1961, that his case would ' be decided to his satisfaction.
Furthermore, he alleged that he wrote to the General Manager on 16 3 1962, and, again on 22 3 1962, to find out the result of his appeal but he received no answer.
Therefore, finally he served a notice on 24 9 1962 under Section 80 Civil Procedure Code upon the General Manager, North Eastern Railway, Gorakhpur, and the Union of India.
He claimed that Rs. 21,088.04 was due to him as arrears of salary and allowances.
He filed his suit on 27 11 62 ' for a declaration that from 1 7 1949, the date of illegal reversion,.
up to 30 9 1959, the date of the appellant 's retirement, he was a Rail way employee on a salary ranging from, Rs. 450/ to Rs. 575/ per month, together with 20% special pay from 10 6 1956 to 30 9 1959 and increased gratuity, and, that, after his retirement, he became entitled to the appropriate pension and gratuity allowance.
He had also demanded payment of a sum of Rs. 19,795/ , the details.
of which were given in a schedule, after relinquishing Rs. 1,293.04 and interest.
The defendants ' version was : The plaintiff, who was an Assistant Office Superintendent from 29 9 1948, was promoted to officiate as.
Office Superintendent with effect from 12 7 1948 in the scale of Rs. 360 500 with a clear stipulation that the promotion was subject to the plaintiff 's selection subsequently and would not give him any claim to the post.
It was admitted that the plaintiff was appointed to officiate as Assistant Office Superintendent from 21 1 1949, but, it was alleged that, during the period of 18 days for which he held this.
post upto 7 2 1949, and, even after that, the plaintiff had illegally utilised certain passes obtained under his signatures.
A Selection Board, which met on 12 2 1949, for selection to the post of Office Superintendent, did not find the plaintiff to be the most suitable candidate.
Hence, the plaintiff was reverted to the post of Assistant Office Superintendent from 14 2 1949.
The plaintiff was again promoted to officiate as Office Superintendent with effect from 11 5 1949, but he was again reverted to his substantive post with effect from 1 7 1949 as a result of the charge sheet against him.
The Railway administration had decided to appoint a second Selection Board after canceling the appointment of the first one.
The second Selection.
Board, which met on 11 11 1949, placed the appellant only second in order of merit so that the appellant had to continue as Assistant Office Superintendent.
Hence, no question of his promotion as Office Superintendent arose.
Furthermore, it was stated that the post of the Office Superintendent itself was held in abeyance from 1 7 1949, but, another post.
of Assistant Office Superintendent was created in its place.
It was, therefore, submitted that the plaintiff could never have held a post which was in abeyance.
it was asserted that the Plaintiff was given reasonable opportunity for showing cause against the action proposed to be taken against him before his reversion,.
and that, after 1 7 1949, as a result of the representation made by the. 488 plaintiff, the General Manager gave the plaintiff a personal hearing and also appointed a Committee of three officers to examine the whole case of the plaintiff, including alleged withdrawal of the charge against him.
The Committee reported to the General Manager that the remark made by the Deputy General Manager that no stigma was attached to the plaintiff was not justified.
Nevertheless, the General Manager had directed payment of Rs. 40/ per month for the period from 1 7 1949 to 31 5 1951 for the extra work done by the plaintiff in addition to his duties as Assistant Office Superintendent.
The jurisdiction of the Court to question the reversion from a merely officiating post was challenged.
Furthermore, it was alleged that the plaintiff had.
knowledge of the dismissal of his appeal as he was working in the office of the General Manager as Assistant Office Superintendent.
The plea of limitation was also raised in defence.
The Trial Court, while dismissing the suit in toto had held that the suit was maintainable.
This finding was upheld by the High Court on the plaintiff 's appeal which was allowed only to the extent that Rs. 180/ was decreed as within time as the suit for the remaining arrears of salary was held barred by Article 102 of of 1908.
The Trial Court had denied any declaration to the plaintiff, but the High Court had decreed the suit for declaration in the following terms : "The suit, therefore, is also decreed for the declaration that the plaintiff, on being superannuated, became entitled to get gratuity and pension, as admissible under the service rules applicable to the case, on the basis that he retired as Office Superintendent in the grade of Rs. 360/5001 .
It would, of course, now be open to the plaintiff to move the Authorities concerned for gratuity and pension in accordance with the declaratory decree passed by this Court in his favour".
As regards the enquiry subsequently held with regard to the plaintiff 's grievance, the Trial Court held that it could not take the place of fullfledged enquiry to which the appellant was entitled under section 240 cl. 3 of the Govt.
of India Act and the procedural safeguards in a disciplinary action.
It, therefore, held that the order of demotion passed against the appellant on 29 6 1949 was illegal.
The High Court had, on the plaintiff 's appeal, after considering the evidence, held : "Therefore, the order of reversion, which had been passed really as a penal measure, cannot be held to be valid.
The inevitable consequence of this finding would be that plaintiff was and remained legally entitled to hold the post of office Superintendent and as such to receive the salary etc.
payable for that post until he retired.
In this view of the matter, the relief for declaration, in the circumstances of the case, was redundant and not an essential prerequisite to his claim for recovery of salary etc.
attached to that post, provided, of course, the claim was not barred under article 102 of the ". 489 The Trial Court had held that the order keeping the post of an Office Superintendent in abeyance being administrative in nature could not be questioned in a civil suit.
But, the High Court held: "The overall position, therefore, appears to be that the order of abeyance was not in reality a bona fide administrative order pure and simple but it was a device to obviate the difficulties which would otherwise have been created by the order of reversion, itself as, in the absence of an order of punishment duly passed, the plaintiff would have a right to revert to the post of the Office Superintendent.
In the instant case, from the evidence on record and the relevant circumstances, it clearly appears that the alleged order of abeyance of the post of the Office Superintendent had resulted in definite prejudice and loss to the plaintiff.
In the circumstances of the case, in our opinion, the suit was legally maintainable and the decision of the Court below to the contrary is erroneous".
it, therefore, appears to us that the High Court had taken in view that the action against the appellant, being penal and violative of the constitutional protection afforded by Section 240(3) Govt.
of India Act, was void, and, therefore, could be ignored as "non est".
Similarly, the order abolishing the post of Office Superintendent, having been passed with an oblique motive, was not a bonafide order so that.
it could be ignored.
Even administrative action, to be valid, has to be honest and bonafide.
On these findings, the High Court appears to us to have been justified in giving the declaration it did give.
The only question of some difficulty raised before us is whether Article 102 or Article 120 of the of 1908 would apply to the case.
After having heard the attractive arguments of Mr. Yogeshwar Prasad, we have no doubt that a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable: from a claim for wages.
But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not advisable to review the authorities of this Court, after such a lapse of time when, despite the view taken by this Court that Article 102 of the of 1908 was applicable to such cases, the of 1963 had been passed repeating the law, contained in Articles 102 and 120 of the of 1908, in identical terms without any modification.
The Legislature must be presumed to be cognizant of the view of, this Court that a claim of the nature before us, for arrears of salary, falls within the purview of Article 102 of the of 1908.
If Parliament, which is deemed to be aware of the declaration of law by this Court, did not alter the law, it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt.
If doubts had arisen, it was for the Legislature to clear these doubts.
When the Legislature has not done so, despite the repeal of the of 1908, and the enactment of the of 1963 after the decisions of this Court, embodying a possible questionable view, we think it is expedient and proper to 490 over rule the submission made on behalf of the appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be reexamined by a larger Bench.
This Court, in Shri Madhav Laxman Vaikunthe V.
The State of Mysore (1), following the case of the Punjab Province V. Pandit Tarachand (2), had held that Article 102 of 1908 will apply to such a case.
It reiterated this view in Jai Chand Sawhney V. Union of India(3), and, again in State of Andhra Pradesh V. Kutubuddin(4).
Furthermore, the finding that the plaintiff had knowledge of the disposal of his appeal by the Railway Board in 1954 is one of fact.
Even if this be a finding which is assailable, we do not consider it to be baseless.
We do not, therefore, propose to enter into evidence for the purpose of determining the correctness of this finding for ourselves.
If this finding is correct, as we are assuming it to be, a suit filed on 27 11 1962 will be barred by time even if Article 120 of the were to be applied.
Six years ' period of limitation would have expired long before 1962, even if time were to begin to run, as is submitted on behalf of the appellant, from the time the appellant became aware of the decision of the Railway Board.
The appellant 's contention, however, is that, even if suit was barred by time, he would get three years more of arrears of salary as within time if Article 120 (instead of Article 102) of 1908 was applied and each failure to pay the monthly salary due constituted a fresh cause of action.
We cannot accept this view as we have, for reasons already given, held that article 102 of the Limitation Act, 1908, was correctly applied.
We think that the High Court was right in treating the order of reversion passed against the petitioner to be void and inoperative, or "non est", The result was that no declaration was needed for the purpose of enforcing a claim which fell within 3 years .
Consequently, only the amount which fell within three years of the suit filed could be decreed.
So far as the remaining part of the declaration is concerned the amount claimable by reason of it would depend upon the rate at which the plaintiff would have been entitled to draw his salary if he had occupied the post which he should have held when he retired.
It has to be, therefore, determined what would be the arrears of pension and gratuity to which the plaintiff would have been entitled if he had held the post of Office Superintendent to which he was entitled.
We have been informed by the learned Counsel for the North Eastern Railway that as the appellant was entitled, on the finding of the High Court to hold the post of an Office Superintendent, he could draw a salary in the scale from Rs. 450 to Rs. 575 with effect from 1 7 1959.
(1) [1962] 1 S.C.R. p. 886 at 894.
(2) , 93, 108.
(3) [1969] (III) S.C.C. p. 642.
(4) Civil Appeal No. 2289 of 1966 decided on 8 10 1969.
491 Before parting with the case we may observe that on the findings of the High Court about the correctness of which we have no doubt, the appellant was not treated justly.
He was even denied promotion due to an order which was not a bonafide one inasmuch as its object was to deprive the appellant of the rights he would have otherwise enjoyed.
It is regrettable that a subordinate Govt.
servant should be treated in this manner by his superior officers.
We hope that, although the claim of the appellant has been found to be barred by limitation, the Union of India will consider the equities of the case and see its way to giving such relief to the appellant as we are precluded under the law from granting to him due to the operation of the law of limitation.
The result is that we modify the decree passed by the High Court to the extent that we hold that the amount which falls due to be paid to the appellant within three years of the filing of the suit (i.e. within the period of limitation) in accordance with the above mentioned statement of the learned Counsel for the North Eastern Railway will be calculated on the correct basis now stated to us by the learned Counsel.
To this extent we allow the appeal, but we dismiss the rest of the appellant 's claim.
In the circumstances of the case, the parties will bear their own costs throughout.
P.B.R. Appeal allowed in part.

dataset_name: IN-Abs

summary/full:
The appellant, who was Assistant Office Superintendent, was promoted as Office Superintendent but immediately thereafter was reverted after issuing a charge sheet but without holding an enquiry.
He, however, continued to perform the duties of Office Superintendent.
A few months later charges against him were withdrawn with the remark that "no stigma was attached to him".
Thereupon the appellant applied to be reinstated in the post of Office Superintendent and for payment of arrears of his salary.
But his reversion order was upheld with the remark that his guilt was established.
The appellant retired in 1959 and filed a suit in 1962 claiming arrears of salary and allowances and for a declaration that from the date of reversion to the date of retirement he was a Railway employee on a salary ranging from Rs. 400 to 575 and for certain other benefits.
The trial court, while dismissing the suit in toto, had held (i) that the suit was maintainable but denied any declaration to him and (ii) that the order of demotion passed against him was illegal.
The High Court decreed the suit and held that the suit for arrears of salary, except to the extent of Rs. 180/ was barred by article 102 of the Limitation Act, 1908.
The High Court further held that the action against the appellant being penal and violative of the constitutional protection afforded by section 240(3) of the Government of India Act, 1935 was void and, therefore, could be ignored as non est.
[489F H] On the question (i) whether article 102 of the Limitation Act would apply to the case and (ii) whether a declaration was needed for enforcing a claim which fill within time.
Allowing the appeal in part.
HELD : (1) In Shri Madhav Laxman Vaikunthe vs The State of Mysore ; , which view was reiterated in two later decisions, it was held that article 102 of the Limitation Act would apply to a case of this kind.
Though a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable from a claim for wages, the question is no longer open for consideration afresh.
it is not advisable to review the authorities of this Court after such a lapse of time when, despite the view taken by this Court that article 102 of the Limitation Act, 1908 was applicable to cases of this kind, the Limitation Act of 1963 had been passed repeating the law, contained in article 102 of the Limitation Act, 1908, in identical terms without any modification.
The legislature must be presumed to be cognizant of the view of this Court that a claim of the nature, as in the instant case, falls within the purview of article 102 of the Limitation Act, 1908.
If Parliament, which is deemed to be aware of the declarations of law by this Court, did not alter the law it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt.
It was for the legislature to clear these doubts.
When the legislature has not done so despite the repeal of the Limitation Act 1908 and the enactment 1 of the after the decision of this Court it is inexpedient to reexamine the correctness of the view adopted by this Court in its decisions on the question.
[489 FH] The Punjab Province V. Pandit Tarachand , 93, 108, Jai Chand Sawhney vs Union of India [1969](III) S.C.C: p. 642 and State of Andhra Pradesh vs
Kutubuddin,civil Appeal No. 2289 of 1966 decided on 8 10 69, referred to.
(2)The High Court was right in treating the order of reversion to be void and inoperative or non est.
Therefore no declaration was needed for the purpose of enforcing a claim which fell within three years.
Consequently only the amount which fell within 3 years of the suit could be decreed in accordance with the statement of the counsel for the respondent.
[490F] 486


judgement:
minal Appeal No. 151 of 1970.
Appeal by Special Leave from the judgment and order dated the 25th March 1970 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 517 of 1969.
N. P. Maheshwari, for the appellant.
section N. Anand, M. N. Shroff and section P. Nayar, for the respondent.
The appellant, Ahir Bhagu Jetha, is one of the 18 persons charged with the Offence of rioting, armed with deadly weapons, on, 28th of June, 1968 ' at about 7 30 p. m. at the village Kumbharia in the State of Gujarat.
This riot, which was alleGed to have a communal background, was said to have resulted in simple injuries to several persons, grievous injuries to others, and the death of Lalmamad Murvaji.
The Sessions Judge of Kutch, who tried the case, acquitted 9 accused persons and convicted the rest of various offences said to have been committed in the course of the riot.
Out of those, six accused persons, including the appellant, were convicted under Section 302, 5 602 Sup.
CI/74 478 I.P.C. read with section 149, I. P. C. and sentenced to imprisonment for life.
On an appeal to the High Court of Gujarat, the whole story of riot, as set up, was disbelieved.
Seven convicted persons were acquitted.
The appellant alone was convicted under section 302, I. P. C. and sentenced to life imprisonment.
Another accused, who did not appeal, and who was convicted under section 324, I. P. C. only and sentenced to 9 months rigorous imprisonment and to pay a fine of Rs. 300/is not before us.
We are, therefore, concerned only with the case against Bhagu Jetha who has been convicted by the High Court for an offence punishable under section 302, I. P. C., although he was charged and convicted of an offence punishable under section 302 I.P.C. only with the aid of section 149 I. P. C.
As the charge for rioting failed, he was not and could not be convicted with the aid of section 149 I. P. C.
No separate charge was framed under section 302 I. P. C. simpliciter.
We need not consider the effect of the omission in this case as we are satisfied, for reasons given below, that the appeal must be allowed on a bare examination of allegations and evidence in the case.
The two groups, between which tension existed, prior to the occurrence, consisted of Ahirs, who are Hindu, and Samas, who are Muslims, over the taking out of "tazia" processions during Mohurrum.
On the day of occurrence, Bhuraii Ravii and Ranaji Viraji, of the Samas community, were said to be sitting at the trance of the Samas locality when Govan Mandam, an Ahir, objected to it on the ground that Ahir womenfolk had to pass that way for fetching water Bhuraji and Ranaji were alleged to have expostulated and said that they were doing no wrong in sitting outside in their own locality and that the Ahir ladies are like their own sisters and daughters to them.
It is said that the deceased Lalmamad then appeared at the scene and took the side of Bhuraji and Ranaji.
Thereupon, Govan Mandan (acquitted) is alleged to have dragged Lalmamad towards a dunghill.
At that time, a number of Ahirs are said to have collected and fallen upon Lalmamad,who was thus said to have been done to death.
It was also alleged that Ahirs threw stones at members of the Samas community, as a result of which Bhuraji and Ranaji were injured.
One Nandaji, who is said to have tried to save Lalmamad, is also alleged to have been injured.
Shrimati Jambai, P. W. 8., the wife of Nandaji, who is alleged lo have come to the scene of occurrence and covered her husband, was also injured An F.I.R. was lodged at noon on 29 6 68 by a cousin of Lalmamad who alleged having seen the attack on Lalmamad and to have been near Lalmamad (deceased) when he was actually struck by the appellant by a Dharia.
In this F.I.R. only four accused persons, including the appellant, are mentioned, and Lalmamad, Ranaji and Nandaji, are shown to have been injured.
No injuries on the person of the appellant were mentioned.
The High Court, in the course of a fairly elaborate judgment, came to the conclusion that the origin of the incident set up, intended to suggest that the Ahirs picked up a quarrel deliberately by saying that their women folk were to take water from the Samas locality, was most improbable in view of the previous tension and division of the village into Ahir and Samas compartmentalised localities.
It pointed out that no quarrel over the taking of water from any well or 479 pond from the Samas locality by Ahir women folk had ever before taken place.
It also came to the conclusion that the story that the Lalmamad was dragged 50 feet by the Ahirs before he was assaulted and killed was untrue.
The postmortem report shows that there were no marks of dragging on the body of Lalmamad.
No clothing of the deceased was proved to be torn.
It pointed out that all the prosecution witnesses spoke of an attack upon the deceased Lalmamad begun by a heavy blow on the head given by Megha Bhima (acquitted accused person) with a Lathi which had an iron ring attached to it.
This version was belied by the only injury with a sharpedged weapon found on the body of Lalmamad (deceased).
The serious injuries of the appellant, who was also found lying on the road, could not be explained by the prosecution version.
It was also found that a stick and not a Dhariya was found lying beside the appellant.
No one spoke of the Dhariya, alleged to have been used by the appellant, having been taken away from the scene by anybody.
Therefore, the whole story of an attack by the appellant on Lalmamad, deceased, with a Dhariya, either in the course of the riot or after it, became most improbable.
The High Court, while discarding the case of an unlawful assembly, as set up by the evidence of the prosecution witnesses, had held the appellant guilty of murdering Lalmamad only because the appellant was undoubtedly found lying injured on the spot and had pleaded that he was attacked because he had objected to the beating of a boy named Duda Pachan by a group of members of the Samas community approaching with Dhariya, spears, sticks, and axes.
The High Court had found that the appellant had serious injuries on his body.
We think that the High Court had not given due importance to this fact and had dismissed the statement of the appellant that he had only a stick with him, without examining the credibility of this version supported by the fact that only a stick was found lying near the appellant who was so badly injured that he could not get up.
There was only one injury found on the body of Lalmamad.
It was described as follows by Dr. D. A. Joshi, who also performed the postmortem examination : "There was only one injury on the neck mentioned in the column No. 7.
The mustoid bone was not fractured.
The wound was 9" long 4" broad and 3" in depth.
The place where the impact of the weapon would take place will be deeper.
The depth of the wound 3" shown by me is the maximum depth which I found and it was at the back of the neck.
The breadth of the injuries does not depend upon the breadth of the Dhariya.
The width is correlative with the depth of the wound.
I was not sent any weapon.
The wound is also possible by an axe having a blade 9" or less, and it depends on injury of the weapon from the back side of the neck upto the chest.
The wound started from the middle of the back of neck.
There was no injury on the teeth but the jaw bone was exposed.
This injury was possible by one blow".
480 The injury on the body of Lalmamad belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack.
The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs ' locality by somebody who cut his neck with a weapon like a Dhariya.
Night had fallen then.
It could not be asserted, on the evidence on record, that the person who cut the neck of Lalmamad, was necessarily the appellant.
It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty.
Apparently, this is why the witnesses had tried to 'involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition.
This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad.
But, a court of justice has to sift and analyse evidence very carefully ' so as to determine whether the case against an accused person is established beyond reasonable doubt.
This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty.
The result is that we allow this appeal and set aside the conviction and sentence of the appellant, who will be released forthwith unless wanted in some other connection.

summary/full:
A riot which was alleged to have a communal background resulted in the death of a person.
The trial court convicted the appellant and some others under section 302 read with section 149, I.P.C. The High Court, in appeal, convicted only the appellant under section 3020.
The High Court, while discarding the case of unlawful assembly as set up by the prosecution held the appellant guilty of murder only because the appellant was found lying injured near the scene of occurrence and had pleaded that he was attacked by a group of members of the Muslim community.
Allowing the appeal to this Court, HELD : The High Court had not given due importance to the fact that the appellant had serious injuries on his body.
The High Court dismissed his statement that he had only a stick with him without examining the credibility of his ver sion which was supported by the fact that only a stick was found near him; while the only injury on the deceased was caused by a sharp edged weapon.
It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty, and, partisan witnesses may depose falsely out of a mistaken or misplaced sense of group loyalty.
In the present case, the participation of the appellant in the occurrence might have seemed to the witnesses to have been established by his having been found lying near the scene of occurrence in an injured condition.
This may be enough to convince unsophisticated persons of his complicity in the murder, but a court of justice has to sift and analyse the evidence very carefully, particularly in a case with a communal background, to determine whether the case against the accused is established beyond reasonable doubt.
[479E F; 480B D)


judgement:
Appeal No. 1475 of 1970.
Appeal by Special Leave from the Judgment and Order.
dated the 29th May, 1970 of the High Court of Delhi in Second Appeal No. 25 D of 1966.
525 V.M. Tarkunde, M. N. Bombhra and Saroja Gopala Krishnan for the appellant.
Hardyal Hardy, section K. Mehta, K. R. Nagaraja, A. C. Sehgal and O. P. Gupta for the respondent.
The Judgment of the Court was, delivered by PALEKAR, J.
This is an appeal by special leave from an order passed by the single Judge of the High Court of Delhi in second appeal under section 39 of the Delhi Rent Control Act, No. 59 of 1958.
On or about September 10, 1959 the respondent landlord let out the premises in suit to the appellant on a rent of Rs. 125/ per month.
The premises consisted of a shop.
On 1 9 1962 the respondent applied under section 14 of the above Act to the Rent Controller, Delhi for evicting the appellant on the ground that she had sub let the entire premises to one Sohan Singh who, according to the respondent, was running a business under the name of Royal Dispensing Chemists and Druggists in the shop.
It was further alleged that the appellant was charging a fabulous amount as rent from her sub tenant Sohan Singh.
The appellant in her written statement admitted the tenancy but denied sub letting.
She alleged that Sohan Singh was her husband and from the time of the lease the business of a Chemist was being run there in the premises by her husband and she also occasionally helped him in the running of the business.
The Rent Controller was of the view that the appellant was the legally Wedded wife of Sohan Singh.
In any event he held, Sohan Singh and the appellant were living together as husband and wife and, therefore, there was no question of any sub letting by the appellant of the premises.
That finding was confirmed in appeal by the Rent Control Tribunal, Delhi.
Aggrieved by the decision, the respondent went in second appeal to the High Court under section 39(1) of the Act.
It was contended before the court by the respondent that two substantial questions of law and fact were involved in the appeal one relating to the status of the appellant as wife and the other whether on the facts found the ground of sub letting had been established.
The learned single Judge agreed that the appeal involved substantial questions of law as submitted, and came to the conclusion that there was sub setting in favour of Sohan Singh.
Accordingly, he gave an order for evicting the appellant.
So this appeal by special leave.
It is contended on behalf of the appellant that the learned single Judge has interfered with a pure finding of fact.
Under section 39(2) of the Act the High Court could interfere in second appeal only if there was a substantial question of law.
In the present case, he submitted, there was no question of law, much less substantial question of law and, therefore, the High Court was in error in interfering with the concurrent finding of the Rent Control authorities, There is great force in this contention.
The High Court has dealt with the case as if this is a matrimonial proceeding in which the status of the appellant as the wife of Sohan M8 602 SUP CI/74 526 Singh was under direct challenge.
The simple question which had to be determined in the case was whether having regard to the fact that the appellant and Sohan Singh were living as husband and wife, it was open to draw, in the absence of evidence to the contrary, the factual inference that the wife had sub let the premises to her husband.
Sub letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee.
If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it,it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises.
And that is what the learned single Judge has done in the present case.
He was of the view that even if it is assumed that the appellant was the wife of Sohan Singh, she, who was entitled to possession of the shop premises as a tenant, must be presumed to have sub let the same to Sohan Singh to carry on his business, In support of this conclusion he relied on clause (b) of the proviso to sub section (1) of section 14 of the Act read with sub section 4 of that section.
The provisions are as follows : 14(1) Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the rec overy of possession of the premises on one or more of the following grounds only, namely (a). . . . . (b) that the tenant has, on or after the 9th day of June, 1952 sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;" Sub section (4) of section 14 is as follows : "(4) For the purposes of clause (b) of the proviso to sub section (1),any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person or occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub letting such premises to that person.
Under sub section (4) referred to above the premises could be deemed to have been sub let by the tenant only when the Controller is satisfied that some person is let into possession ostensibly as a partner in business but really for the purposes of sub letting.
These provisions evidently have no application to the facts of the present case.
It is not the case of anybody that the appellant was the owner of the business carried on in the premises and she had let in Sohan Singh into possession ostensibly as a partner in their business.
The learned Judge was, 527 therefore, in error in relying on the provisions of the Act for presuming that the appellant must have sub let the premises.
The case of the respondent in his application under section 14 of of the Act was that the appellant had sub let the whole premises to Sohan Singh who was running the business under the name of Royal Dispensing Chemists and Druggists and that the entire premises have been sub let by the appellant and the appellant had completely parted with possession without the written consent of the respondent.
It was also alleged that the appellant was charging fabulous amount of rent from the sub tenant Sohan Singh.
Sub letting was, ' therefore, the principal ground on which eviction was sought.
When eviction is sought on that ground it is now settled law that the onus to prove sub letting is on the landlord.
If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
See:Associated Hotels of India Ltd., Delhi V. S.B. Sardar Ranjit Singh(1).In the present case the respondent produced no evidence to show such sub letting in spite of the appellant 's denial in the written statement of any sub letting.
It was averred by her therein that Sohan Singh was her husband and that right from the taking of the shop premises on rent Sohan Singh was carrying on business of a Chemist therein and appellant also helped him occasionally as his wife.
The averment that she was the wife of Sohan Singh provided the necessary ammunition for a formidable battle in which the respondent took upon himself to show that she was not the legally married wife of Sohan Singh.
He called Sohan Singh 's first wife as his first witness in this case but all that the lady was able to say was that she had no knowledge if the appellant was married to Sohan Singh but she knew that he lived with the appellant since about six years before her deposition, recorded in 1963.
The respondent himself in his testimony admitted that he had never himself made any enquiry as to whether Sohan Singh and the appellant are husband and wife or not.
Nor could he deny that they were living together.
His reasons for saying that Sohan Singh was a sub tenant were in his own words ; "As Sohan Singh is the tenant, I can, therefore, say that the capital invested in the shop might be that of Sohan Singh.
Neither any talks regarding sub letting took place in my presence, nor the rent was paid in my presence," In undertaking to prove that the appellant was not Sohan Singh 's wife the respondent completely lost sight of his own weak position.
The appel lant had passed a rent note in the respondent 's favour and it was the case of the appellant that in that rent note the respondent had in his own handwriting written ' that the appellant was the wife of Sohan Singh.
The appellant summoned him to produce his rent note but the respondent did not produce it.
So in his cross examination he was shown a typed copy of it and this he accepted as a true copy.
The true copy disclosed that the appellant was accepted as the wife of Sohan Singh.
Besides, when the appellant and Sohan Singh gave evidence of the ,fact that they were living as husband and wife and looking after the (1) ; 528 business in the shop there was hardly any cross examination on the point.
The respondent relied principally on some previous self serving statements made by Sohan Singh in other proceedings which could not be used as substantive evidence in the present case.
The evidence was clear namely, that to the knowledge of the respondent, the appel lant and Sohan Singh were living as husband and wife and from the day the rent note was passed by the appellant in 1959 a Chemist 's shop was opened in the premises which was run principally by Sohan Singh but occasionally by the appellant also.
The question is whether that evidence gives rise to the factual inference that the appellant had sublet the premises to Sohan Singh.
The first two courts held that it did not.
This was a concurrent finding of fact and it seems to us that the learned counsel for the appellant is right in contending that the High Court in second appeal should not have interfered with that finding especially when section 39(2) of the Act provides that no appeal shall it to the High Court unless 'the appeal involved some substantial question of law.
The learned single Judge thought that two substantial questions of law were involved one relating to the status of the appellant as the alleged wife of Sohan Singh and the second whether on the facts found, sub letting was established.
Both these questions involved, according to the learned Judge, substantial questions of mixed fact and law.
As to the first question whether the appellant was legally married, that was a question on which no finding was necessary in an eviction suit.
It was sufficient for the Rent Court to proceed on the finding that the appellant and Sohan Singh were living as husband and wife, whether they were legally married or not.
This was specifically pointed out by the Additional Rent Controller in his judgment.
As regards the second question, one does not see how it is a mixed question of law and fact.
In the 'determination of a question of fact no application of any principle of law is required in finding either the basic facts or arriving at the ultimate conclusion; in a mixed question of law and fact the ultimate conclusion has to be drawn by applying principles of law to basic findings.
See : Meenakshi Mills, Madurai vs The Commissioner of Income Tax, Madras (1).The basic facts in the present case were (1) the appellant and Sohan Singh were living as husband and wife to the knowledge of the respondent; (2) the appellant took the lease of the shop premises from the respondent in 1959; (3) from the time of the letting a Chemist 's business was carried in the shop by Sohan Singh with the occasional help of the appellant.
The question to be determined was whether in the above circumstances it was likely that the appellant had (1) ; 529 sub let the premises to Sohan Singh.
The negative answer given to it by the Rent Courts is merely the factual common sense inference which did not call for the application of any principle of law.
In out view, no question of law much less, a substantial question of law was involved in the second appeal and the learned Judge was in error in disturbing the concurrent findings of fact of the rent control authorities.
The appeal is, therefore, allowed, the order passed by the High Court is set aside and that of the Rent Control Authorities is restored with costs throughout.
V.P.S. Appeal allowed.

summary/full:
The appellant took a lease of shop premises from the respondent.
From the time of letting, a chemist 's business was carried on in the shop by S with the occasional help of the appellant.
S and the appellant were living as husband and wife to the knowledge of the respondent.
The respondent applied under section 14 of the Delhi Rent Control Act, 1958, for eviction of the appellant on the ground that she had sublet the premises toS.
The Rent Controller and the Tribunal on appeal held that the appellant and section were living together as husband and wife, and that therefore there wasno question of any subletting by the appellant.
In second appeal, holding that two substantial questions of law were involved namely, one relatingto the status of the appellant as the wife of S, and the other, whether sub lettingwas established, the High Court concluded that there was subletting in favour oOf section Allowing the appeal to this Court, HELD : (1) Under section 39 (2) of the Act the High.
Court could interfere in second appeal only if there was a substantial question of law.
On the question whether the appellant was legally married no finding was necessary in the eviction suit.
It was sufficient for the rent court to proceed on the finding that the appellant and S were living together as husband and wife, whether they were legally married or not.
[528C D, E F] (2)The question whether there was subletting is not a mixed question of law and fact.
In a mixed question of law and fact the ultimate conclusion has to be drawn by applying principles of law to basic findings, but in the determination of a question of fact no application of any principle of law is required in finding either the basic facts or in arriving at the ultimate conclusion.
The question to be determined in the circumstances of this case was whether it was likely that the appellant had sublet the premises to section The negative answer given by the rent court is merely the factual common sense inference which did not call for the application of any principle of law.
[528F G; 529A B] Meenakshi Mills, Madurai vs The Commissioner of Income tax, Madras, ; , followed.
(3)When eviction is sought on the ground of subletting the onus of proving subletting is on the landlord.
If the landlord prima facie shows that the occupant was in the exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
But in the present case the respondent produced no evidence to show subletting in spite of the appellant 's denial in the written statement.
[527C D] Associated Hotels of India Ltd. Delhi vs section B. Sardar Ranjit Singh, ; , followed.
(4)Under section 14 (4) premises could be deemed to have been sub let by the tenant only when the Controller is satisfied that some person is let into possession ostensibly as a partner in business but really for the purposes of subletting.
This provision has no application to the facts and circumstances of the present case.
[526G H]


judgement:
minal Appeal No. 164 of 1970.
Appeal by special leave from the Judgment and order dated the 3rd/ 4th December, 1969 of the Gujarat High Court in Criminal Appeal No. 295 of 1966.
573 R. H. Dhebar and section P. Nayar, for the appellant.
A. section Qureshi, Vimal Dave and Kailash Mehta for the respondent.
The Judgment of the Court was delivered by BEG, J.
This is an appeal, by special leave, against the acquittal of the appellant, from a charge framed on 21 9 1967 as follows: "That you on or about the 31st day of March 1967 at about 9.30 p.m. were found in State Transport Corporation Workshop at Naroda in Ahmedabad, and you are a foreigner and you had come from Pakistan and you had been permitted to stay in India till 20th September, 1958, by Assistant Secretary to the Government of Bombay and did not depart from India before expiring of that permit issued to you by No. 19904 dated 6 12 1967 before the date 20th September 1958 and remained in India and thereby you contravened the previsions of clause 7(iii) of Foreigners Order 1948 and thereby committed an offence punishab le under Section 14 of and within my cognizance".
The above mentioned charge was supported by the statement of Mahmadmiya, P. W. 2, Sub Inspector, Special Emergency Branch, Ahmedabad, showing that the appellant was working in Baroda Central State Transport Workshop when he was arrested as a consequence of the information that he was a Pakistani national who had come to India in 1955 on a Pakistani passport.
The accused had produced his Pakistani passport (exhibit 11) dated 8th September, 1955.
The prosecution had also relied upon an application for a visa made by the accused to the High Commissioner for India in Pakistan on 10th October, 1955, in which he had, inter alia, stated that he had migrated from India to Pakistan in 1950.
Undoubtedly, the prosecution was handicapped in producing evidence to show when and how and with what intention the appellant had gone to Pakistan.
It could only show how and when and on what passport he returned to this country.
The accused respondent had produced credible evidence to prove: that, he was born at Dhandhuka in the State of Gujarat on 15th May, 1936; that, he was living at Dhandhuka and attendee school there until 1952 when he moved to Ahmedabad with his father; and, that he had gone to Pakistan in a state of anger while he was a minor, after a quarrel with his father who had driven him out of his house.
The respondent denied that he had the intention of settling down in Pakistan.
He asserted that within six months of his arrival in Pakistan he regretted having left India and tried to come back to his home.
He alleged that, as he was unable to come home without a Pakistani passport, he had to apply for and get one.
The respondent asserted that he was an Indian citizen when the Constitution came into force on 26th January, 1950, and that he had continued to be an Indian citizen thereafter as he had never migrated to Pakistan.
His explanations about 1 M602Sup.
CI/74 574 the passport and the visa application implied that he had obtained the passport by making false declarations and that the statement in the visa application, that he bad migrated to Pakistan in 1950, was one of those untrue declarations which had been made only to obtain a passPort.
Probably lie had to show under the law in Pakistan that he had settled down in Pakistan and become a Pakistani national before obtaining a Pakistani passport.
The judicial Magistrate had acquitted the respondent after examining the cases set up by the two sides and holding that the respondent had proved that he was an Indian citizen who had never, in fact migrated to Pakistan.
In an appeal against the acquittal the High Court of Gujarat had upheld the acquittal and confirmed the finding that the appellant was an Indian citizen when the Constitution came into force on 26th January, 1950.
It had also held that the appellant was a minor when he visited Pakistan.
It had found it unnecessary to record a finding en the question whether the appellant 's visit to Pakistan could be held to be one made under compulsion or for a specific purpose so as to come within the class of those exceptional cases mentioned in Kulathil Mammu.
vs The State of Kerala (1) in which a "migration" would not take place even if the wider test of the term migration were adopted.
That wider test would apply to those who had gone to Pakistan in the period between 1st March, 1947, and the commencement of the Constitution, It has to be remembered that Article 7 of the Constitution was held, in Kulathil Mammut 's case (supra), to contain an exception to the operation of Article 5 of the Constitution for conferring citizenship of India on persons who, at the commencement of the Constitution, had satisfied the test of Indian domicile.
The general principle laid down by Article 5 was that citizenship followed domicile at the commencement of the Constitution.
But. the "migration" as contemplated by Article 7 was held, in Kulathil Mammu 's case (supra), to have a wider meaning than change of domicile.
Hence, the view of this Court in Smt.
Shanno Devi vs Managin Sain (2) was overruled.
It has, however, to be remembered that in Kulathil Mammu 's case (supra), where the alleged migrant, who was also a minor at the time of the alleged migration, had gone to Karachi in 1948 which was before the commencement of the Constitution.
in the case before us, the finding of the Trial Court as well as the High Court, on the evidence before them was that the appellant had.
as he asserted, gone to Pakistan in 1953 54 which was after the commencement of the Constitution.
Hence, the case of the respondent could not fall within the classes to which Article 7 was especially intended to apply.
Article 7 had necessarily to be read with Articles 5 and 6 of the Constitution and not in isolation. 'The High Court had come to the conclusion that as the only case set up by the prosecution was that the respondent had migrated before the 26th January.
1950, it need not consider and decide the question (1) ; (2) ; 575 whether he had gone to Pakistan after 26th January, 1950, and thus had voluntarily acquired Pakistani nationality and lost Indian citizenship.
If, as it rightly held, it had been proved that the respondent went to Pakistan after 26th January, 1950, Article 5 of the Constitution would still operate in his favour.
The High Court rightly pointed out that, as the respondent was an Indian citizen on the date of the commencement of the Constitution, entitled to the benefit of article 5 of the Constitution, the further question whether he had lost Indian citizenship after that date or not, could only be decided by the Central Government as laid down in section 9 of the Indian .
It acquitted the respondent because it thought that the prosecution had not proved the only case set up by it.
We have, therefore, to examine the charge framed against the respondent so as to determine whether the view of the High Court that the only question which need be considered by it was whether the respondent was an Indian citizen on 26th January, 1950, was correct.
We find, from the charge set out above, that the prosecution case was not confined to the determination of the citizenship of the respondent at the time of the commencement of the Constitution.
We also find that the respondent had himself raised the question whether, on the facts set up by him, the prosecution could proceed at all in view of section 9 of the .
The Trial Court had observed "The lawyer of the accused argued that under Section 9 of the the question whether any citizen of India had any time between the 26th day of January, 1950 and the commencement of the acquired the citizenship of another country was to be determined by the Central Government.
A court should not decide whether an Indian citizen had acquired the citizenship of another country.
The police prosecutor argued that as the accused had gone to Pakistan and he obtained Pakistani Passport the accused must be held to be national of Pakistan and so a citizen of Pakistan and so is foreigner in India and so the accused must be convicted of the offence section 14 of the Foreigners ' Act read with clause 7(3), rule (iii) of Foreigners ' Order 1948.
The Court had jurisdiction to decide whether the accused is a foreigner.
if the accused wanted to get it decided that he is yet citizen of India, the accused should apply to the Central Government and get decision under section 9(2) of the .
The clause (3) of Schedule III of the Citizenship Rules 1956 provides that the fact that a citizen of India has obtained on any date a passport from the, Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date.
As this accused has come from Pakistan to India, the Police Prosecutor argued, the accused should be convicted of the offence section 14 of Foreigners ' Act read with clause 7(3) (iii) of Foreigner 's order".
576 We also find from the grounds of appeal against the acquittal of the, respondent, the appellant 's application for certificate of fitness for appeal to this Court under Article 134 of the Constitution, and from the special leave petition under Article 136 of the Constitution in this Court, that the prosecution had been inviting a decision on the question whether an order of acquittal could be passed without deciding a question which fell within the purview of Section 9 of the Indian .
It was not proper for the prosecuting authorities to have proceeded with the case against the respondent, when, upon the facts set up by the respondent, it became clear that the respondent could not be prosecuted or convicted without a determination under Section 9 of the , that he had voluntarily acquired the citizenship of Pakistan between 26th January, 1950, and the commencement of the on 30th December, 1955.
This Court has re peatedly laid down that if such a question arises in the course of a trial, it must be left for decision by the appropriate authorities.
It may be that the rules framed by the Central Government under Section 30, sub.
s (2) of the Citizenship Rules, under Section 18 of the , had provided that the passport shall be conclusive proof that its holder has acquired the citizenship of the country whose passport he holds.
We, however, do not know whether the Central Government has modified such a rule.
When the validity of that rule came up for consideration before a Bench of seven judges of this Court, an assurance was given on behalf of the Central Government that a suitable modi fication of the relevant rule would be made.
However, that question is not under consideration before us now.
All we need consider here is whether the acquittal of the respondent was, in the circumstances disclosed above, justified.
in view of Section 9(2) of the , which has been subject matter of several decisions of this Court (See : State of Andhra Pradesh vs Abdul Khader (1); Abdul Sattar vs State of Gujarat (2): and Akbar Khan vs Union of India (3), the question whether a person voluntarily acquired the citizenship of Pakistan during the specified period, could 'only be determined by the Central Government.
In Akbar Khan 's case (Supra) it was observed by this.
Court: (at page 782) "If it was found that the appellants had been on January 26, 1950, Indian citizens, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise.
That question the Courts cannot decide.
The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify ' (1) ; (2) A.I.R. [1965] S.C. 810 (3) ; 577 On principle it does not matter whether the question which can only be determined by the Central Government under Section 9 of the arises in a civil suit or in a criminal prosecution.
If the real question which arises for determination is whether a person, who was an Indian citizen when the Constitution came into force, had acquired the citizenship of another country or not during the specified period, the proper thing to do for a Court where the question arises is to refuse to adjudicate on that question.
In the case before us it appears that the issue was raised but not decided either in the Trial Court or in the High Court.
Indeed, the judgment of the High Court shows that probably for this very reason the prosecution had tried to obtain the conviction of the respondent on the ground that he had acquired Pakistani citizenship before the commencement of the Constitution.
That question had been rightly decided against the appellant.
on that short ground the acquittal of the appellant could have been upheld if the prosecution case was confined to that question.
But, after having examined the charge framed, the cases set up by the two sides, the contentions advanced in the Trial Court, the grounds of appeal to the High Court, and those given in the special leave petition in this Court, we think that a question of Jurisdiction of the criminal courts to record either a conviction or acquittal in the case of the respondent had properly arisen.
Indeed, the real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26th January, 1950, but whether he had lost that nationality at the time when he entered this country on a Pakistani passport.
The respondent has been charged for overstaying contrary to the terms of the permit issued on 6th December, 1957, by which he was allowed to stay until 20th December, 1958.
Therefore, it was clear that the decisive question which the Courts should have considered was whether, at the time when permission was given, and when the alleged overstay, contrary to the provisions of clause 7(iii) of the Foreigners ' Order, 1958, took place, the respondent was a foreigner.
Without a decision of an appropriate authority on that question neither an acquittal nor a conviction could be recorded.
As no finding can be given by criminal or civil Courts, in a case in which an issue triable exclusively by the Central Government has properly arisen, the question of burden of proof, dealt with in Section 9 of the , is immaterial.
However, in view of the erroneous procedure adopted on behalf of the State in pressing for a conviction when it was clear that the charge could not succeed at all without obtaining a decision from the appropriate authority, we think that the correct order to pass in this case is 578 not just to stay further proceedings after quashing the acquittal so as to await the decision of the appropriate authority but to quash the charge itself so that the accused may be discharged.
This would leave the State free to prosecute the respondent if and when a decision is obtained against him from the appropriate authority in accordance with the law.
That authority will no doubt consider all the relevant facts, including the total period of the respondent 's stay in this country as compared with the short period of his stay in Pakistan and the circumstances in which the respondent alleges having obtained a Pakistani passport and made a false statement in the visa application relied upon by the prosecution.
The result is that we allow this appeal and set aside the acquittal of the respondent.
We also quash the charge framed against the respondent and order that he be discharged.
S.B.W. Appeal allowed.

summary/full:
The respondent was prosecuted under clause 7(iii) of the Foreigner 's Order, 1958 read with Sec.
14 of the for over staying in India after the expiration of the permit.
The respondent had entered India on a Pakistani passport.
At the trial, the respondent produced evidence to show that he was a citizen of India when the Constitution came into force on 26 1 1950 and never migrated to Pakistan to obtain the citizenship of that country.
He further stated that he had to obtain the Pakistani passport against was volition.
The respondent further urged that without the decision of the Central Government u/s 9(2) of the as to whether he has acquired Pakistani citizenship or not, the prosecution under the was incompetent.
The trial Magistrate acquitted the respondent, holding that he had proved that he was an Indian citizen who never migrated to Pakistan.
The High Court upheld the acquittal as it thought that the prosecution had not proved the only case set up by it namely that the res pondent was not an Indian citizen on 26 1 1950.
Quashing the charge and setting aside the acquittal, HELD : (1) The real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26 1 1950 but whether he had lost that nationality at the time when he entered this country on Pakistani passport.
Without a decision of the Central Government under section 9(2) of the on that question, the Criminal Court had no jurisdiction to acquit or convict a person.
(II) After having examined the charge framed, the cases set up by the two sides, the contentions advanced in the trial court, the grounds of appeal of the High Court and those in the special leave petition, we think that the question regarding acquisition of foreign citizenship by the respondent was the decisive question.
The respondent had himself raised the plea although he gave an impression that the prosecution was inviting a decision on the legality of the order of acquittal without obtaining a prior decision of the Central Government under Sec.
9(2) of the .
It was not proper for the prosecuting authorities to have proceeded with a case without the determination of the said question under sec.
9(2) of the .
[577 D] (III) In view.
of the erroneous procedure adopted on behalf of the State in pressing for a conviction without obtaining a decision from the appropriate authority, quashing of the charge itself is the correct order.
This would leave the State free to follow the proper procedure under law regarding the acquisition of foreign citizenship by the respondent and then to prosecute the respondent.
(577 H) State of Andhra Pradesh vs Abdul Khader ; , Abdul Sattar vs State of Gujarat A.I.R. 1965 section C. 810 and Akbarkhan vs Union of India ; , followed.
Kulathilmammu vs State of Kerala ; , referred to.