judgement:
Appeal No. 433 of 1965.
Appeal from the judgment and order dated January 7, 1963 of the Punjab High Court in Letters Patent Appeal No. 157 of 1957.
Vikrant Chand Mahajan, R. N. Sachthey and section P. Nayar, for the appellants.
Sardar Bahadur, Arub B. Saharya, Vishnu B. Saha a and Youginder Khushalan, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This appeal is by a certificate granted by the Punjab High Court under article 133 of the Constitution against its judgment and order dated January 7, 1963 in Letters Patent Appeal.
No. 157 of 1959 reversing a decision of a single Judge of that Court who had dismissed a writ petition filed by the respondents on June 7, 1958 to declare that the order of the first appellant reverting him to his permanent post in the Delhi Administration was invalid and to quash the same.
The facts laid in the writ petition are as follows.
The petitioner, Sukh Raj Bahadur, respondent herein was a permanent official of the office of the Chief Commissioner, Delhi.
On December 9, 1952 he was accepted as a candidate for the post of Extra Assistant Commissioner on the Register A II of the Punjab Government along with two others, on the advice of the Punjab Public Service Commission.
He was posted as Inspector, Local Bodies, Jullundur Division and Assistant to Commissioner, Jullundur Division.
Later on, he acted as Personal Assistant to the Deputy Commissioner, Amritsar.
On being relieved from the Delhi State Government on January 15, 1953 he assumed charge of the post of Personal Assistant to the De Duty Commissioner, Amritsar in the P.C.S. (Executive Branch Cadre) on January 24, 1953.
He passed all the departmental examinations prescribed under rule 236 21 of the Punjab Civil Service (Executive Branch) Rules, 1930.
Under r. 22 of the aforesaid rules, he was to remain on probation for a period of 18 months subject to his completing the training and subject to further extension of the period of probation as the case maybe.
In his case, the period of probation expired in July 1954.
The same was however not extended by any order of the Governor of Punjab.
The petitioner claimed that under r. 24 of the said rules he became qualified for substantive permanent appointment to the P.C.S. (Executive Branch).
He received a charge sheet with a letter dated January 14, 1957 from the Secretary to the Government of Punjab, Anti Corruption Department, asking him to reply to the charge sheet within a fortnight and to inform whether he would produce defence or whether he would like to be heard in person.
The petitioner replied to the charge sheet on January 28, 1957 stating that he wanted an opportunity of being heard in person.
By order of the Punjab State dated 23/26th May 1958 purporting to be one, under r. 23 of the aforesaid rules, he was reverted by the Punjab State Government to his substantive post of Superintendent under the Chief Secretary, Delhi Administration with immediate effect.
According to the petitioner, the said order of 23/26th May 1958 terminated his service under the Punjab State Government and permanently removed him from the Punjab Civil Service.
The petitioner also complained that under r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, he should have been apprised of the grounds to terminate his employment as probationer for any specific fault or on account of any unsatisfactory record or unfavourable reports implying his unsuitability for service and given an opportunity to show cause against the same.
before any orders were passed by the authority competent to terminate the appointment.
The petitioner was never apprised of the rounds of any such proposal nor given an opportunity to show cause against it before the order reverting him to the post, of Superintendent mentioned above was made.
There was thus a clear breach of r. 23 of the Punjab Civil Service (Executive Branch) Rules.
Accordingly the petitioner prayed that the said order of 23/26th May 1958 be quashed and suitable relief be given to him.
The order complained of runs as follows "The Governor of Punjab is pleased to revert Shri Sukh Rai Bahadur, Extra Assistant Commissioner, officiating, from P.C.S. (Executive Branch) to the post of Superintendent under the Chief Secretary, Delhi Administration, with immediate effect.
" In the written statement of the respondents to the petition it was stated that the impugned order was not a penalty calling for compliance with the provisions regarding penalty etc.
and the 237 Punjab Civil Services (Punish ment and Appeal) Rules were not applicable.
It was submitted that he was appointed to the Punjab Civil Service (Executive Branch) as a nominee of the Chief Commissioner, Delhi, who was one of the nominating authorities under r. 8 of the Punjab Civil Service (Executive Branch) Rules, 1930 along with some of the officers of the Punjab Government.
By passing the departmental examinations in November 1956, the petitioner was due for confirmation thereafter.
The absence of confirmation implied that the probationary period was extended under r. 22(c) of the Punjab Civil Service Rules.
Lastly, it was said that the reversion of a probationer to his substantive rank could not amount to a punishment.
It is not necessary to examine the charges which were levelled against the petitioner in the charge sheet.
Suffice it to say that they were all of a fairly serious nature.
The points put forward before the learned single Judge who heard the petition were : (1) On the expiry of the period of probation and on his passing the departmental examinations, the petitioner became qualified for substantive permanent appointment.
(2) The impugned order in fact terminated his services under the Punjab State Government and removed him from the said service.
The petitioner was not afforded any opportunity to show cause against the charges contained in the charge 'sheet or against the proposed punishment.
As such there was violation of the provisions of article 311(2) of the Constitution.
(3) The petitioner being a probationer, r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was applicable.
The procedure prescribed by the rule was not followed although it was mandatory that before his employment as a probationer could be terminated, he should have been apprised of the grounds of the proposed termination and given an opportunity to show cause against it.
The learned single Judge held that the petitioner bad not acquired the status of a permanent member of the Punjab Civil Service merely by efflux of time and by reason of his having passed the departmental examinations.
He further held that the petitioner continued only in an officiating capacity.
The second point also was turned down by the learned Judge holding that the petitioner 's case was one of reversion and not of termination of service as the petitioner was never appointed in a permanent capacity and was not visited with any evil consequences.
In coming to this conclusion the, learned single Judge relied on several decisions starting from the case of Parshotam Lal Dhingra vs Union of India(1).
(1) 238 The learned single Judge examined the third point at some length.
It was urged before him that the petitioner did not fall within the definition of a 'probationer ' in rule 2.49 of the Punjab Civil Service Rules, Volume 1, Part 1.
On behalf of the petitioner, reference was made to the definition of 'Government ' contained in r. 2.24 of the Punjab Civil Service Rules and the definition of 4 cadre ' contained in r. 29 and "it was submitted that if the peti tioner had held a substantive post in a cadre under the Punjab Government and had been appointed on probation to another post, then the term 'probationer ' would not have covered his case, but since the petitioner held a lien on a post in Delhi State and not under the Punjab Government, he could not be deemed to fall within the exception contained in the definition of a 'probationer ' in r. 2.49.
" Reference was made to a number of other rules on behalf of both the parties.
Ultimately, on examination of the respective contentions of the parties, the learned Judge concluded that the petitioner "could not be regarded as a probationer within the meaning of r. 2.49 of the Punjab Civil Service Rules" and "he could not claim the benefit of r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952.
" He however did not think it necessary to decide whether in the presence of r. 23 of the Punjab Civil Service Rules the Punishment and Appeal Rules would apply at all.
Further, even if the said rule applied, the petitioner did not fall within the meaning of the word 'probationer ' as given in rule 9.
The learned Judge was of the view that there was force in the contention that r. 9 of the Punishment and Appeal Rules could not cover the case of revision as r. 9 only dealt with a case where it was proposed to terminate the employment of a probationer.
In the result, he dismissed the application.
The appeal was allowed by the Letters Patent Bench.
It ap pears that the Bench examined only the second point urged before the learned single Judge and over ruling his decision allowed the appeal quashing the order reverting the writ petitioner from the P.C.S. (Executive Branch).
The Bench relied principally on the judgment of this Court in Madan Gopal vs State of Punjab (1) and The State of Bihar vs Gopi Kishore Prasad (2) .
According to the Bench the enquiry started with a notice which expressly stated that it was being made under sub r.
(2) of r. 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952.
Sub r.
(1) of r. 7 provided that an order of dismissal, removal or reduction should not be passed unless the person concerned had been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him while sub r.
(2) laid down the manner in which the enquiry was to be held.
From this the Bench inferred that : (1) [1963] 3 S.C.R. 716.
(2) A.I.R. 1960 S.C. 689.
239 .lm15 "When the charge sheet was sent to the appellant (writ petitioner), the object and the intention of the State Government was to punish him either by way of dismissal or removal or reduction in rank, .
Such an enquiry and any action consequent on such an enquiry would not be covered by principle of Rain Narayan Das 's case, as laid down by the Supreme Court in Madan Gopal vs The State of Punjab & others(1).
" The Bench however observed that although no enquiry in the proper sense of the word had been held the omission to hold such an enquiry could not be made a ground for saying that the case differed in principle either from Gopi Kishore Prasad 's(2) case or Madan Gopal 's(1) case.
Accordingly the conclusion reached was that "the reversion of the appellant was by way of punishment and amounted either to reduction in rank or removal from the P.C.S. (Executive Branch)" and as "these actions could not be taken without affording the appellant, adequate opportunity of showing cause against the punishment" there was violation of article 311(2) of the Constitution.
We find ourselves unable to accept the reasoning or the con clusion arrived at by the learned Judges of the Division Bench of the Punjab High Court.
It is not necessary to examine in detail the earlier decisions of this Court which bear on the issue before us.
In this case, the respondent did not cease to be a probationer at the time when the impugned order was passed on him.
Although the period of probation was fixed at 18 months and although the respondent had passed all the departmental examinations, he could not merely, as a consequence thereof, be considered to be holding a post substantively.
Apart from the question as to the right of the respondent under the Punjab Civil Service Rules, the respondent could not complain merely because he had been reverted to the post formerly held by him.
He would have cause to complain if he could show that the order of reversion was by way of punishment.
As was pointed out in Parshotam Lal Dhingra 's (3) case.
"The mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. . the court has to apply the two (1) [1963] 3 S.C.R. 716.
(2) A.T.R. 1960 S.C. 689.
(3) ; 240 tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service. . ." In the case of State of Orissa and another vs Ram Narayan Das(1) the respondent who was a Sub Inspector of Police on probation in the Orissa Police Force, was served with a notice to show cause why he should not be discharged from service "for gross neglect of duties and unsatisfactory Work".
He submitted an explanation which was considered by the Deputy Inspector General of Police as unsatisfactory.
The said authority passed an order discharging the respondent from service "for unsatisfactory work and conduct '.
The respondent 's contention was that the order was invalid because he had not been given a reasonable opportunity to show cause against the proposed action in terms of article 31.1(2) and that he was not give an opportunity to be heard nor was any evidence taken on the chaires.
It was pointed out by this Court that the enquiry against the respondent was only for ascertaining whether lie was fit to be confirmed, and although "an order discharging a public servant, even if a probationer , in in enquiry on charges of misconduct, negligence, inefficiency or other disqualifications, may appropriately be regarded as one by way of punishment, an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed is not of that nature.
" The Court distinguished Gopi Kishore Prasad 's(2) case on the round that there the public servant had been discharged from service consequent upon an enquiry into alleged misconduct and the Enquiry Officer had found that the public servant was 'unsuitable for the post '.
Finally it was held by this Court in Ram Narayan Das 's(1) case that ". the fact of the holding of an enquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment in the light of the tests laid down in Parshotam Lal Dhingra 's (3 ) .
" In the result the appeal of the State was allowed.
Reference may also be made to the case of R. C. Lacy vs The State of Bihar and other(1).
In this case the appellant who was working, as in Assistant Professor of Botany in Class IT Bihar Educational Service was temporarily promoted to Class I of the said service against a Permanent post created in April 1949 and (1) ; (2) A.I.R. 1960 S.C. 689.
(3) ; (4) Civil Appeal No. 590/1962 decided on 23 10 63.
241 appointed Professor of Botany in the college where he was working.
He was informed that Government would consider him for permanent appointment depending on the efficiency with which he ran the department, the extent to which he enjoyed the goodwill of his colleagues and the devotion to research work that he revealed during the course of the year.
In April 1950 the appellant moved the Government for confirmation in Class I.
The Government however decided to continue his temporary service in Class I for another year with the concurrence of the Public Service Commission.
Following an incident on February 9, 1951, the Commissioner of Patna Division was appointed to make an enquiry into the same.
The report of the enquiry was against the appellant.
On August 21, 1951, the Government passed an order reverting the appellant to his substantive post in Class 11 and trans ferred him from Patna College to Ranchi College.
The appellant filed a suit which was dismissed by the Subordinate Judge.
Losing appeal before the High Court, the appellant came to this Court by special leave.
It was contended on his behalf that the order of 21st August, 1951 amounted to infliction of punishment.
In dismissing the appeal, it was pointed out by this Court that "the enquiry which was held by the Commissioner in this case was in the nature of a preliminary enquiry to enable the Government to decide whether disciplinary action should be taken against the appellant.
It is clear however that the Government did not decide to hold any enquiry for the purpose of taking disciplinary action against the appellant, for no enquiry officer was appointed, no charges were framed and no regular departmental enquiry as envisaged by the rules and article 311(2) of the Constitution Was ever held." According to this Court the action of the Government was in pursuance of its right to revert an officer holding, a higher post temporarily if he was not found.
fit for the purpose.
In Madan Gopal vs State of Punjab(1) the termination of the appellant 's service was held to be in violation of article 311(2) of the Constitution.
There the appellant, Madan Gopal, was appointed an Inspector of Consolidation "on temporary basis and terminable with one month 's notice".
He was served with a charge sheet to the effect that he had received illegal ratification and called upon to show cause why disciplinary action should not be taken against him.
The appellant submitted his explanation and the Settlement Officer who had sent out the charge sheet submitted his report to the Deputy Commissioner that the charge relating to receipt of illegal gratification had been proved.
Thereupon the Deputy Commissioner ordered that the services of Madan Gopal be terminated forthwith and that in lieu of notice he would receive one month 's (1) [1963] 3 S.C.R. 716.
242 pay as required by the rules.
It was held by this Court that the enquiry made by the Settlement Officer was with the object of ascertaining whether disciplinary action should be taken against the appellant for his misdemeanour and the purpose of the enquiry was to take punitive action including dismissal or removal from service if the charge was substantiated.
After discussing Ram Narayan Das 's(1) case, the conclusion arrived at was that "Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das 's(1) case.
" In the result, the appeal was allowed.
In Jagdish Mitter vs Union of India(1) this Court allowed the appeal of the appellant who was appointed as a temporary second division clerk in the General Post Office, Lahore for a period of six months in October 1946.
His appointment was continued from time to time when the impugned order was passed terminating his services.
It was pointed out by this Court that even before discharging a temporary servant the authority may have LO examine the question about the suitability of the said servant to.
be, continued and: "a acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence, or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be Continued or not.
There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. . . in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a formal departmental enquiry in that behalf.
If such a formal enquiry is held, and an order terminating the services of a temporary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the temporary servant.
" The Court however was careful to add that considerations of the motive operating in the mind of the authority had to be eliminated in determining the character of the termination of service of a temporary servant and that the form in which the order terminating his services was expressed would not also be decisive.
If a (1) ; (2) A.I.R. 1964 S.C. 449.
243 formal departmental enquiry had been held in which findings were recorded against the temporary servant and as a result of the said findings, his services were terminated, the fact that the order by which his services were terminated, ostensibly purported to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounted to the dismissal of the temporary servant.
The order of discharge of the appellant ran as follows : "Shri Jagdish Mitter, a temporary Second Division Clerk of this office, having been found undesirable to be retained in Government service is hereby served with a months notice of discharge with effect from November 1, 1949.
" According to this Court, the order cast an aspersion on the temporary servant and in substance it amounted to an order of dismissal.
The last decision to which we may refer is the one in A. G. Benjamin vs Union of India(1).
In this case, the appellant was temporarily employed as Stores Officer in the Central Tractor Organisation.
As he was not a confirmed government servant, his services could be terminated under r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 with one month 's notice on either side.
The services of the appellant were terminated on April 23, 1954.
There. had been certain complaints against him in respect whereof the Chairman of the, Central Tractor Organisation sent a notice to him asking him to show cause why disciplinary action should not be taken against him and an Enquiry Officer was appointed, but before the enquiry could be completed, the Chairman recommended that the services of 'the appellant should be terminated under r. 5 observing in his note to the Secretary that : "The departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities we will be able to deal with the accused in the way he deserves.
" Acting upon this suggestion the appellant was served with the order complained of.
The order was to the effect that the appellant was being informed that his services were no longer required in the organisation and the same were terminated with effect from the date on which the notice was served on him.
He was further informed that in lieu of the notice one month 's pay and allowances due to him, he would be given the same for that period.
This Court distinguished the facts in this case from those in Madan Gopal 's (2 ) case and held that the principle of that case could not be applicable.
(1) Civil Appeal No. 1341/1966 decided on 13 12 1966.
(2) (19631 3 S.C.R. 76.1 244 On a conspectus of these cases, the following propositions are clear: 1.
The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of article 31 1 of the Constitution.
The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of article 311 of the Constitution.
If there be a full scale departmental enquiry envisaged article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.
In this case the departmental enquiry did not proceed beyond the stage of submission of a charge sheet followed by the respondent 's explanation thereto.
The enquiry was not proceeded with, there were no sittings of any Enquiry Officer, no evidence recorded and no conclusion arrived at on the enquiry.
In these circumstances, the principle in Madan Gopal 's(1) case or Jagdish Mitter 's (2) case will not be applicable.
The case is in line with the decisions of this Court in State of Orissa vs Ram Narain Das(3).
R. C. Lacy vs The State of Bihar(3) and A. G. Benjamin vs Union of India(5).
In this view of the matter.
we are unable to concur with the opinion of the Division Bench of the Punjab High Court.
This does not however conclude the matter.
The respondent also complained against the non observance of the Punjab Civil Services (Punishment and Appeal) Rules.
The learned single Judge of the Punjab High Court does not appear to have expressed himself definitely on the third point canvassed before him although he observed that the contention of the Advocate General about the inapplicability of r. 9 was not without force, The learned Judges of the Division Bench did.
not consider this (1) [1963] 3 S.C.R. 716.
(2) A.I.R. 1964 S.C. 449.
(3) [1961] 1 S.C.R.606.
(4) C.A. No. 590/1962 (5) C.A No. 1341/66 dated 13 12 66.decided on 23 10 68.
245 question at all.
We therefore allow the appeal and set aside the judgment of the Punjab High Court and remand the matter to that court for consideration of the respective contentions of the parties based on Punjab Civil Services (Punishment and Appeal) Rules, 1952.
The costs of this appeal will abide by the decision of the High Court.
V.P.S. Appeal allowed and case remanded.

dataset_name: IN-Abs

summary/full:
The respondent who was a permanent official in the Delhi Administration was appointed to the Punjab Civil Service (Executive Branch).
He was on probation in the new post for a period of 18 months subject to extension of the period and subject to his completing training.
He passed all the departmental examinations.
The period of probation expired in July 1954, and there was no extension of it.
In January 1957, he received a charge sheet with a letter from the Anti Corruption Department asking him to reply to the charge sheet and to, state whether he would like to be heard in person.
The respondent replied that be wanted an opportunity of being heard in person.
There was however no enquiry at all, and much later, by an order dated 23/26th May 1958, the Punjab Government reverted him to his substantive post in the Delhi.
Administration without making any reference to the charges.
The respondent thereupon challenged the order on the grounds namely (1) that on the expiry of the period of probation and on his passing the departmental examinations he became entitled to a substantive permanent appointment; (2) that the impugned order terminated his service under the Punjab Government and removed him from the said service, in viola tion of the provisions of article 311(2) of the Constitution; and (3) under r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, it was mandatory that, before his employment as a probationer could be terminated, be should have been apprised of the grounds of the proposed termination and given an opportunity to show cause against it.
The High Court accepted the second contention and allowed the petition.
In appeal to this Court, HELD : (1) Merely because the respondent had passed all the departmental examinations and completed the period of probation fixed, he could not be considered to be holding the post substantively, or as being entitled to it.
[239 E F] (2) The respondent could not complain against the order reverting him to his former post because, the order of reversion was not by way of punishment.
[239 F] The circumstances preceding or attendant on the order of termination of service of a public servant have to be examined in each case, f(t determining whether the order was by way of punishment.
The motive behind it is immaterial.
it is only in a case whether either of the two tests, namely, (a) whether the public servant had a right to the Post or rank.
or (b) whether the public servant, no matter whether he was a probationer or a temporary servant, has been visited with evil consequences or an aspersion has been cast on his character or integrity, that the order could be said to be by way of punishment.
But the services of a temporary 235 servant or a probationer can be terminated under the rules of his employment and such termination without anything more, will not attract the operation of article 311.
[240 A; 244 A B, C D] Parshotam Lal Dhingra vs Union of India, ; , State of Orissa vs Rain Narayan Das, ; , R. C. Lacy vs State of Bihar, C.A. No. 590 of 1962 dated 23 10 63, A G. Benjamin vs Union of India , C.A. No. 1341/66 decided on 13 12 66, followed.
Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar V. Gopi Kishore Prasad, A.I.R. 19 S.C. 689 and Jagdish Mitter V. Union of India, A.I.R. 1964 S.C. 449.
referred to.
(3) As the High Court had not considered the contention of the respondent based on r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, the matter should be remanded to the High Court for consideration of that question.
[244 H]


judgement:
No. 151 of 1967.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
M. C. Chagla and Mohan Behari Lal, for the petitioner.
section T. Desai and O. P. Rana, for respondent No. 1.
C. B. Agarwala and O. P. Rana, for respondent No. 2.
O. P. Rana, for respondent No. 3.
P. M. Mukhi, Bishamber Lal and H. K. Puri, for the intervener.
The Judgment of WANCHOO, C.J., SIKRI, SHELAT and VAIDIALINGAM, JJ. was delivered by SHELAT, J. BHARGAVA, J., delivered a separate opinion.
Shelat, J.
On August 17, 1934 the Governor in Council of the then United Provinces, in exercise of powers under section 3 (1) of the Indian Electricity Act, IX of 1910 issued three licences to M/s. Alopi Parshad & Sons Ltd. for the supply of electrical energy within the tahsil areas of Firozabad in the district of Agra Shikohabad in the district of Manipur and Etawah in the district of Etawah.
The licences inter alia provided that the licensee would be supplied electrical energy in bulk by the Public Works Department, U.P. and the licensee in its turn should transmit the same on its own high tension mains within the areas of the licences.
The licences also provided that the responsibility for the maintenance of supply of electrical energy in the licensee 's, plant shall be borne entirely by the Public Works Department and thereafter by the licensee.
In 1937 the licences were assigned by the said M/s. Alopi Parshad and Sons Ltd. to the petitioner company with the consent of the Government.
The petitioner company has since then been supplying under the said licences electricity to consumers within the said areas of the licences.
It is an admitted 314 position that though the petitioner company had the said licences assigned to it it did not acquire any exclusive or monopolistic right of supplying electrical energy within the said areas.
Clause (e) of sec.
3(2) of 1910 Act which governed the said licences provides that the grant of a licence thereunder shall not in any way hinder or restrict the grant of a licence to another person within the same area of supply for a like purpose.
The Electricity (Supply) Act, LIV of 1948 (hereinafter referred to as 1948 Act) by sec.
5(1) enjoins upon the State Government to constitute a State Electricity Board.
19(1) provides that the Board may, subject to the provisions of this Act, supply electricity to any licensee or person requiring such supply in any area in which a scheme sanctioned under Chapter V is in force.
The proviso to Sec.
19(1), however, lays down that the Board shall not : "(b) supply electricity for any purpose to any person, not being a licensee for use in any part of the area of supply of a licence without the consent of the licensee, unless the maximum demand of the licensee, being a distributing licensee and taking a supply of energy in bulk is, at the time of the request, less than twice the maximum demand asked for by any such person; or the licensee is unable or unwilling to supply electricity for such purpose in the said part of such area on reasonable terms and conditions and within a reasonable time.
" Section 26 provides that "Subject to the provisions of this Act, the Board shall, in respect of the whole State, have all the powers and obligations of a licenses, under the , and this Act shall be deemed to be the licence of the Board for the purposes of that Act.
" The definition of a licensee in section 2(6) of 1948 Act, however, states that it would not include the Board.
Though the Board is not a licensee for the purposes of the 1948 Act the Act being deemed to be the licence for the Board under Sec.
26 it is a licensee under the 1910 Act.
26 however is subject to the provisions of the Act which means that it is inter alia subject to the provisions of sec.
Therefore, in the absence of a scheme under Chapter V, the Board, though a licensee under the 1910 Act, was not competent to supply directly electrical energy to consumers such as the 3rd respondent.
This was the position until 1961, When the U.P. legislature to remove this disability of the Board, passed the Indian Electricity (U.P.) Amendment Act, XXX of 1961.
Section 2 of the Amendment Act substituted the following, for cl.
(e) of sec.
3(2) of the 1910 Act: 315 "(e) grant of a licence under this Part for any purpose shall not in any way hinder or restrict (i) the grant of licence to another person within the same area of supply for a like purpose; or (ii) the supply of energy by the State Government or the State Electricity Board wihin the same area, where the State Government deems such supply necessary in public interest.
" It also added after sub sec.
2, the following sub sec.
3: "(3) Where the supply of energy in any area of the State Electricity Board is deemed necessary under subclause (ii) of clause (e) of sub section (2), the Board may, subject to any terms and conditions that may be laid down by the State Government, supply energy in that area notwithstanding anything to the contrary contained in this Act or the Electricity Supply Act, 1948.
" Sec. 3 of the Amendment Act also added a new sub sec.
(1 B) in sec.
28 of the 1910 Act.
The new sub section reads as under: "(1 B).
The State Government may notwithstanding that sanction for engaging in the business of supplying energy to the consumer in an area has been given to any person under sub section (1), whether before or after coming into force of the Indian Electricity (U.P. Sanshodhan) Adhiniyam, 1961, give direct supply, or authorise the State Electricity Board to give direct supply, in the same area.
" This sub section has no application to the licensees for, it empowers the State Government either to supply directly or authorise the Board to directly supply energy even in an area for which it has given sanction to a person other than a licensee to engage in the business of supplying energy to the public in such area.
A perusal of these provisions makes it clear that the Board can directly supply electricity to the consumers and the State Government also can authorise the Board to do so provided the State Government deems it necessary in public interest that it should be so done.
The condition precedent for the direct supply by the Board to the consumers in the area where a licence has been granted to a licensee is that such supply by the Board must be deemed necessary by the State Government in public interest.
In pursuance of the powers under sees.
46 and 49 of the 1948 Act, the Board by a notification dated April 24, 1962 fixed the rates and tariffs for electrical energy for the Ganga Sarda 316 Grid.
These were to apply to both the licensees obtaining bulk supply from the Board and to consumers to whom electrical energy was being supplied direct by the Board in the area covered by the said Grid.
According to these rates, consumers to whom electrical energy was being supplied direct by the Board would pay a demand charge at the rate of Rs. 8/ per KVA and on energy charge at the rate of 4.5nP per KWH for the first 170 KWH per KVA, at the rate of 3.5nP for the next 170 KWH per KVA and at the rate of 3.0 nP per KWH for the remaining KVA consumed during the month.
For the licensees, the rates were Rs. 12.75 per KVA for the demand charge for the first 500 KVA, Rs. 10 per KVA for the next 1500 KVA and Rs. 8.50 per KVA for above 2000 KVA of the chargeable demand during the month.
For energy charge, the rates were 5 nP per KWH for the first 170 KVM per KVA, 4nP per KWH for the next 170 KWH per KVA and 3nP per KWH for the remaining KWH per KVA of chargeable demand consumed during the month.
The rates chargeable from licensees were thus higher than those applicable to the consumers both in respect of demand and energy charges even though licensees would be larger customs who in the normal course of business would be charged lower rates than the consumers.
The notification is not under challenge before us and therefore it is not necessary for us to consider its validity.
As the Board was not yet authorised by the State Government to supply electricity directly to the consumers within the areas of the petitioner company 's licences the 3rd respondent entered into an agreement in 1964 for a period of 3 years under which the petitioner company was to supply electricity to it.
On September 21, 1966 the State Government issued a notification which stated that the Governor deemed it necessary in public interest that the State should supply energy to the 3rd respondent and in exercise of the power under sec.
3 (2) (e) of the 1910 Act as amended by Act XXX of 1961 directed the Board to give direct supply of energy to the 3rd respondent on the same terms and conditions on which the Board was supplying energy I to other consumers.
Thereupon the 3rd respondent by its notice dated January 19, 1967 terminated the said agreement.
It seems that the Board was still not ready to supply energy direct to the 3rd respondent and therefore on April 18, 1967, only one day before the said agreement would have ended, the 3rd respondent withdrew the said notice.
On June 23 1967, the 3rd respondent, however, gave a fresh notice terminating the said agreement as from September 23, 1967.
The result of the notification dated September 21, 1966 was two fold : (1) that notwithstanding the subsistence of the petitioner company 's licences and its right thereunder to supply energy to consumers within the areas of its licences, the Board 317 was directed to supply energy to the 3rd respondent and (2) that the Board was directed to supply energy to the 3rd respondent at rates lower than the rate charged by the Board from the petitioner company as the licensee.
Mr. Chagla appearing for the petitioner company raised the following three contentions : ( 1 ) that the amended sec.
3 (2) (e) was invalid on the ground that it amounted to acquisition of the petitioner company 's property and as no compensation has been provided for such acquisition cl.
(e) of section 3 (2) was in violation of article 31(2) of the Constitution; (2) that the notification dated September 21, 1966 was ultra vires sec.
3 (2) (e) as the direction by the State Government to the Board to supply electricity directly to the 3rd respondent was not founded on public interest; and (3) that the said direction to supply electricity at rates chargeable from the consumers as against the rates chargeable to the licensees was discriminatory.
The respondents, on the other hand, contended that the 3rd respondent was a concern in which the Government has an interest to the extent of 51 % of its share capital, that therefore, it was almost a public utility concern, that supply by the petitioner company to the 3rd respondent was found to be defective resulting in lay off of labour on several occasions and consequent loss in production and that therefore the Government was justified in public interest to issue the said notification.
In support of these allegations the respondents filed an annexure to their counter affidavit showing low voltage and high tension trippings during the months of April, May and June 1966.
It was alleged that owing to defective and short supply by the petitioner company there Were high tension trappings on numerous occasions resulting in low voltage, the consequence Whereof was that the 3rd respondent was obliged to stop the working of the Mills sometimes for several hours.
The petitioner company 's case, however, was that these allegations were an afterthought and that the real object in issuing the notification dated September 21, 1966 was to subvert the petitioner company 's rights under the said licences.
We are inclined to think that there is considerable force in the contention of the petitioner company.
Though the allegation was that supply of energy by the petitioner company to the 3rd respondent suffered from shortage and other defects the 3rd respondent does not seem to have at any time made any complaint about such shortage or defects either to the petitioner company or to the Board or to the State Government.
Similarly, the Board also does 318 not seem to have at any time complained to the petitioner company about such defective supply.
Even when the petitioner company, after the said notification was issued, made a representation to the State Government to reconsider its decision the Government did not, while rejecting it, rely upon the fact that the petitioner company was not in a position to give full and proper supply of energy to the 3rd respondent or that supply by it was, as now alleged, short or defective.
It is an undisputed fact that the petitioner company has been throughout all these years supplying high tension energy to the 3rd respondent and the 3rd respondent has been converting such high tension energy into low tension energy through its own transformers.
The aforesaid annexure shows that though the high tension trippings were only for a few minutes except on three or four occasions low voltage was for several hours.
In some cases though there was no tripping at all there was low voltage for as long as sixteen hours.
It is clear, therefore, that the petitioner company had no difficulty in maintaining supply of high tension electrical energy to the 3rd respondent and there must have been some defect in the stepping down system of.
the 3rd respondent resulting in low voltage.
It is impossible thus to find from the annexure that the petitioner company was guilty in any manner of shortage or defective supply of high tension energy to the 3rd respondent.
The allegation therefore that the 3rd respondent suffered in production and losses as a result of short or defective supply by the petitioner company is not borne out by the record in this case.
If there was any justification for the allegation now made by the respondents it is inconceivable that for all these years the 3rd respondent would not have made any complaint for such defective supply either to the Board or to the State Government.
It is certain that but for the amendment of sec.
3 (2) (e) of 1910 Act, the Board, though a licensee under that Act, could not have supplied energy directly to the 3rd respondent in the absence of a scheme under sec.
19 of 1948 Act.
Under the proviso to that section the Board would not have been entitled to supply energy for any purpose to any person not being a licensee for use in any part of the area of supply of a licensee without the consent of such licensee.
It is true that under its licences the petitioner company was not conferred monopolistic rights to supply energy to the consumers and the Government could have granted another licence to another licensee.
But the Government has not granted such licence to any other person.
But it was said that the Board was another such licensee.
As already stated the Board could not have distributed energy to the consumers though it is a licensee under 1910 Act unless (a) there was a scheme or (b) that it was authorised in public interest under the amended sec.
3 (2) (e).
Neither of these two conditions having been fulfilled it 319 is clear that the notification of September 21, 1966 and the direction contained therein to the Board to supply energy to the 3rd respondent were in breach of the petitioner company 's rights under its licences and the requirements of the amended sec.
3 (2) (e).
Apart from its being in breach of the amended sec.
3 (2) (e) and the petitioner company 's rights under its licences, the notification and the Government 's direct on to the Board therein results in clear discrimination.
If the Board were to supply energy directly to the 3rd respondent it has to do so at rates lower than the rates at which electricity is supplied by it to the petitioner company.
The petitioner company being thus charged at higher rates must as a distributor charge hi her rates from its other consumers with the result that the 3rd respondent would get energy at substantially lower rates than other consumers including other industrial establishments in the area.
The notification thus results in discrimination between the 3rd respondent on the one hand and the other consumers on the other as also between the 3rd respondent and the petitioner company.
It follows therefore that the notification of September 21, 1966 cannot be sustained as a valid notification as it is discriminatory and is also in breach of the amended sec.
3 (2) (e) of 1910 Act.
In that view the Board is not entitled to supply directly electricity to the 3rd respondent as the direction contained in the said notification which is the only authority under which it could so supply is invalid in law.
In this view, it is not necessary for us to decide the question whether the amended sec.
3 (2) (e) amounts to acquisition and whether such acquisition is in violation of article 31 of the Constitution.
The said notification being thus invalid respondents 1 and 2 are directed not to, supply electrical energy directly to the 3rd respondent.
The respondents will pay to the petitioner company the costs of this petition.
Bhargava, J. I agree with my brother Shelat J. that the notification of September 21, 1966 cannot be sustained as a valid notification because it is discriminatory and consequently I concur in the order proposed by him.
I am, however, not prepared to hold that that notification is also invalid, on the other two grounds, viz., that the notification and the directions contained therein to he Electricity Board to supply energy to the third respondent were in breach of the petitioner Company 's rights under its licence and of The requirements of the amended section 3 (a) (e).
I may briefly indicate the reasons for my view.
It is admitted on all hands that under its licences, the petitioner company was not conferred monopolistic rights to supply energy 320 to the consumers in the area covered by the licences and that Government could have granted another licence to another licensee to supply energy in the same areas without violating any provision of the Electricity Act of 1910 or of the conditions or which licences were granted to the petitioner Company.
It in true that the Government has not granted any such licences to any other person but, in my opinion the effect of the subsequent legislation is to bring into existence another statutory licencee viz., the Electricity Board and any directions permitting the Elec tricity Board to supply electricity in the areas covered by the petitioner Company 's licences cannot be held to be in violation of the conditions of those licences.
By the Electric Supply Act 1948, the Board 'was constituted a licensee for purposes of the Electricity Act of 1910, though section 26, which brought about this result, provided that in that capacity, the Board was subject to other provisions of the Electric Supply Act 1948.
One such provision is contained in section 19(1) of the Act of 1948.
The U.P. Electricity Amendment Act 1961, however, introduced provi sions in the Act of 1910 the result of which was that the Board, in acting as a licensee under the Act of 1910, was no longer subject to the limitation laid down in section 19(1) of the Act of 1948.
It has not been contended that either the Supply Act of 1948 or 'the U.P. Electricity Amendment Act of 1961 was not competently enacted by the appropriate legislature.
The Supply Act of 1948 was no doubt passed by the Central Legislature in respect of a concurrent subject but the U.P. Electricity Amendment Act of 1961 was reserved for the assent of the President and, having received the assent of the President, the provisions of that Act would prevail to the extent to which they may be inconsistent with the, Central Act of 1948.
The result of that legislation was that the Electricity Board became a licensee under the Electricity Act of 1910 and was no longer subject to the limitation laid down in section 19(1) of the Electricity Supply Act of 1948.
The only limitation after the enactment of the U.P. Electricity Amendment Act 1961 that remained was that the Board could supply electricity only after the Stat Government issued a valid notification under clause (e) of section 3(2) of the Act of 1910.
If the State Government was competent under the original section 3(2) (e) of the Act of 1910 to grant a licence to any person for supply of electricity in the areas covered by the licences issued to the petitioner Company, I do not see why v similar result could not be validly brought about by legislation, by the appropriate legislatures creating a statutory licensee for purposes of the Act of 1910.
Consequently, the power granted to the Electricity Board by the notification of September 21, 1966 to supply electricity to a consumer in the area covered by one of the licences of "he petitioner Company cannot be, held to be in violation of the conditions of the licence.
321 I further considered that, in view of the language of the provisions contained in the amended section 3(2) (e) of the Act of 1910, it is not competent for this Court in this writ petition, on the material available, to declare that the notification of September 21, 1966 is invalid because the direction contained therein was not made by the State Government in public interest.
The power under the amended section 3 (2) (e) is to be exercised when Government deems it necessary in public interest.
The notification, on the face of it, shows that the State Government did apply its mind before issuing that notification and form the opinion that in this particular case it was necessary in public interest that the Board should be directed to supply electricity to respondent No. 3 in the area covered by one of the licences of the petitioner Company.
The opinion was formed by the.
State Government on material which I do not think can be said to be totally irrelevant for the purpose of forming such opinion.
As long as the State Government based its order on an opinion formed on relevant material, it is not open to the courts to examine and take a different view on the basis of other material such as want of complaints by respondent No. 3 to the Government that the supply of energy by the petitioner Company was not satisfactory.
It is not for courts to sit in judgment over the view of the State Government which the State Government is required to form in order to make an order under the amended section 3 (2) (e).
Consequently, I cannot hold that the notification of September 21, 1966 was invalid on the ground that it was issued in breach of the amended section 3(2) (e) of the Act of 1910.

summary/full:
The petitioner company a licensee was supplying electrical energy to the 3rd respondent.
By the Electric Supply Act 1948 the Electricity Board was constituted and by Indian Electricity (U.P.) Amendment Act, 1961, the disability of the Board to supply directly electrical energy to consumers such as the 3rd respondent was removed.
The State Government issued a notification directing the Board to directly supply energy to the 3rd respondent.
The rates chargeable by the Board for energy supplied to licensees were higher than the rates the direct consumers.
The 3rd respondent terminated the agreement with the petitioner company.
The petitioner company filed a petition under article 32 of the Constitution.
HELD : (Per Full Court) : The notification could not be sustained as a valid notification as it was discriminatory.
If the Board were to supply energy directly to the 3rd respondent it had to do so at rates lower than the rates at which electricity was supplied by it to the petitioner company ' The petitioner company being thus charged at higher rates must as a distributor charge higher rates from its other consumers with the result that the 3rd respondent would get energy at substantially lower rates than other Consumers including other industrial establishments in the area.
The notification thus resulted in discrimination between the 3rd respondent on the one hand the other consumers on the other as also between the, 3rd respondent and the petitioner company.
[319 B D] (Per Wanchoo C.J., Sikri, Shelat and Vaidialingam, JJ.).
The Board ,could not have distributed energy to the consumers though it was a licensee under 1910 Act unless (a) there was a scheme or (b) that it was authorised in public interest under the amended section 3(2)(e).
Neither of these two ,conditions having been fulffilled the notification and the direction contained therein to the Board to supply energy to the 3rd respondent were in breach of the petitioner company 's rights under its licences and the, requirements of the amended section 3 (2) (a).
[3 1 8 H] The allegation that the 3rd respondent suffered in production and losses as a result of short or defective supply by the petitioner company was not borne out by the record in this case.
if there was any justification for the allegation now made by the respondents it is inconceivable that for all these years the 3rd respondent would not have made any complaint for such defective supply either to the Board or to the State Government.
(Per Bhargava, J.) The notification cannot be held to be invalid on the ground that it was issued in breach of the amended section 3 (e) of the Act.
If the State Government was competent under the original section 3 (2) (e) of the Act of 1910 to grant a licence to any person for supply of electricity 313 in the areas covered by the, licences issued to the petitioner company , it cannot be seen why a similar result could not be validly brought about by legislation by the appropriate legislatures creating a statutory licensee for purposes of the Act of 1910.
Consequently the power granted to the Electricity Board by the notification to supply electricity to a consumer in the area covered by one of the licences of the petitioner company could not be held to be in violation of the conditions of the licence.
In view of the language of the provisions contained in the amended 3 (2) (e) of the Act of 1910, it was not competent for this Court in this writ petition, on the material available, to declare that the notification was invalid for the reason that the direction contained therein was not made by the State Government in public interests As long as the State Government based its order on an opinion formed on relevant material, it was not open to the courts to examine and take a different view on the, basis of other materials.
[320 G 321 B]


judgement:
iminal Appeal No.28 of 1965.
Appeal by special leave from the judgment and order dated December 14, 1964 of the Rajasthan High Court in section B. Criminal Appeal No. 656 of 1963.
K. R. Chaudhuri, for the appellants.
K. Baldev Mehta,for the respondent.
The Judgment of the Court was delivered by Hegde, J.
The two appellants were convicted by the High Court of Rajasthan under sections 120 B and 1 61, IPC, and under sections 5 ( 1 ) (a) and 5 ( 1 ) (d) read with section 5 (2) of the Prevention of Corruption Act.
They have come up in appeal to this Court by special leave.
The first appellant was a Havaldar and the second appellant a Subedar in the Rajasthan Armed Constabulary.
At the relevant point of time they were serving in the outpost at SajanKa Par in Barmer district of Rajasthan State, which was a border outpost.
That post was within two miles from the Pakistan border.
The prosecution case is that the two appellants conspired to extort money as well as other valuable things from the villagersby using force or threat of force or by harassment.
Though they were indulging in these activities for quite some time, the matter came to a head when they tried to compel PW 1 Mohammad to give them Rs 100.
It was said that about the middle of September 1962, the first appellant came to the field of Mohammad and took him to the outpost saying that the second appellant wanted him to go over there.
At the outpost the second appellant told him that he was constantly visiting Pakistan; he was also blackmarketing; hence unless he gave him (2nd appellant) Rs. 200 he would send him to prison.
PW 1 pleaded that he was innocent.
He also pleaded that he was a poor man and hence he was unable to pay the amount demanded.
As the second appellant insisted on the payment he agreed to pay him Rs. 100 but as he had no money at that time PW 3 Kalla stood surety for him.
After a few days when PW 1 was sitting in the shop of PW 5 Bhoja, he happened to talk about the illegal activities of the appellants.
It so happened that a CID officer was there who evidently passed on that information to PW 17 Kaneihalal the Deputy Superintendent of Police,in the Special Police Establishment.
On getting that information PW 17 came to the village on September 30, 1962 and checked up the 191 facts with PW 1.
On the morning of October 1, 1962.
PW 1 was again called to the outpost by the 2nd appellant and told that the amount should be paid immediately.
He promised to pay the same that afternoon and asked the appellants to come to his house that afternoon to which they agreed.
Thereafter he passed on that information to PW 17 and gave him the complaint Exh.
Then a trap was arranged.
PW 1 produced before PW 17, Rs. 100 in ten rupee currency notes.
PW 17 noted down their numbers in the presence of panch witnesses PW 2 Bhakha and PW 4 Ballu and returned the amount to PW 1 with instructions to give the same to the appellants if they again demanded money.
At the same time he instructed PWs 2 and 4 to be with.
PW 1 so that they may witness the payment.
of the money.
Then PW 17 posted himself in a house near the house of PW 1.
On the evening of that day the first appellant came to the house of PW 1 and demanded the money.
He told PW 1 that the second appellant could not come as.
he was not well.
Then PW 1 took out the currency notes whose numbers had been noted down earlier and paid the same to the first appellant.
The first appellant put them in his pocket.
On receipt of that information, PW 17 came to the place and asked the first appellant to produce those currency notes.
On seeing PW 17, the first appellant became pale and nervous.
After some hesitation he took out the notes in question from his pocket and gave them to PW '17.
On examining their numbers it was found that they were the very notes which had been returned to PW 1 after noting their numbers.
As soon as the villagers came to know of the trap, several of them came forward with complaints against the, appellants.
After investigating all those complaints this case was launched.
It was tried by the special judge,, Balotra, who accepted the prosecution case in full and convicted the appellants under sections 161 and 120B, IPC and under section 5 (2) read with section 5 (1) (a) and 5(1)(d) of the Prevention of Corruption Act.
In appeal the High Court of Rajasthan affirmed the convictions of the appellants in respect of all the charges levelled against them.
It did not award any separate sentence in respect of the offence under section 161 or section 120 B, IPC.
As regards the other offences it reduced the sentence awarded by the trial court.
We shall now proceed to consider the evidence relating to the various charges levelled against the appellants.
It is not disputed that both the appellants were public servants.
So far as the evidence relating to the trap is concerned, we have the evidence of PWs 1,2,4 and 17.
Their evidence has been believed by the trial court as well, as the High Court.
The plea of the 1st appellant was that on that evening when he was going in front of the house of PW 1, PWs 1 and 192 2 and others caught hold of him and struggled with him; at that, time his note book fell down; thereafter he saw them producing the currency notes in question before PW 17.
This is a very artificial story.
The same has been disbelieved by the trial court as Well as, the appellate court.
No case is made out to interfere with their findings.
The evidence relating to the trap does not by itself connect the second appellant with that incident but then the evidence of PWs 1 and 3, which has been accepted by the trial court as well as the High Court, shows that it was the 2nd appellant who compelled PW 1 to give that amount.
The contention of the second appellant that he had incurred the displeasure of the their way of smuggling goods from Pakistan to India and from India to Pakisthan and therefore he 'was victimised was not,accepted either by the trial court or the High Court.
Those. courts also did not accept his version that several days before the trap was laid he had reported against 'most of the prosecution witnesses in this case.
The defence evidence led by him was disbelieved by those courts and even the documents produced by him were rejected either on the ground that they were got up for the purpose of this case or as having been tampered with.
This ' court being a court of special jurisdiction, does not interfere with, findings of facts reached by the High Court except under exceptional circumstances.
No such circumstance is available in this case.
We are unable to accept the contention of the Iearned coun sel for the appellants that PWs 1, 2, 3, 4 and 17 and,, other prosecution witnesses to whose evidence we shall presently refer, ' should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted.
On the proved facts, even those who gave illegal gratification to the appellants cannot be considered 'as accomplices as the same was extorted from them.
Though PWs 1, 2, 4 and 17 can be considered as interested.
witnesses as regards their evidence relating to trap, as a matter of law, it is not correct to say that their.
evidence cannot be accepted without corroboration, see the State of Bihar vs Baswan Singh(1).
The next incident is that spoken to by Bhoja PW 5 and Hussain, PW 6.
Their evidence was.
that on June 22, 1962 the ,second appellant along with the first appellant visited the shop of PW 5 and told, him that he was blackmarketing and that people ; 193 from Pakistan were visiting him.
He denied those charges.
Then the second appellant told him that unless he (PW 5) paid him Rs. 50 he would involve him in some case some day.
But still PW 5 did not give any money to the second appellant.
Then the second appellant insisted that he should give at least the wrist watch that he was wearing.
Finding no alternative her gave him the watch, article 3.
According to him when all these things happened PW 6 was in his shop.
PW 6 fully corroborated PW 5.
It was not denied that PW 17 seized the watch in question from the second appellant.
But his explanation was that that watch had been pledged by PW 5 with Shriram PW 4for Rs. 50 but that amount had been advanced to DW 4 by him (appellant No. 2); DW 4 left the watch with him and that is how he happened to be in possession of the watch.
Neither the trial court nor the appellant court accepted this version.
On the other hand they relied on.
the evidence of PWs 5 and 6 coupled with the, circumstance that the watch was seized from the second appellant.
We see no reason to disturb the findings reached by those courts.
PW 18 Ukaram spoke to the fact of having paid a sum of Rs. 101 to the second appellant in the presence of the first appellant on August 13, 1962.
Though his evidence was believed by the trial court, the same was not relied on by the High Court.
Therefore we exclude that evidence from consideration.
We next come to the evidence of PWs 8, 11 and 12.
PW 8 is one Kastura.
His evidence is that some days prior to October 1, 1962 the first appellant came and.
took him to the outpost.
There the second appellant accused him of being in the habit of visiting Pakistan.
When he denied that charge he was asked to kneel down.
Sometimes thereafter he was asked to pay Rs. 100.
As he had no money he was kept in the outpost during the night.
On the next morning Imam PW 11 and Bhakha PW: 2 happened to come to the post.
8, 11 and 12 pleaded with the second appellant to accept a lesser sum.
Ultimately, the second appellant agreed to receive Rs. 50.
Thereafter PW 1 1 was sent to the house of PW 8 to sell his goats and get Rs. 50.
He accordingly went to the village,, sold some goats of PW 8 and ' got Rs. 50.
During this incident, according to the evidence of the above witnesses, the first appellant was also present in the outpost.
Sadiq PW 13 speaks to the fact that about nine days prior to his arrest the first appellant went to his house and took him to the outpost saying that he was wanted by the second appellant.
There he was falsely accused of selling goats in Pakistan; then, he was beaten by the second appellant and thereafter he was.
told by the second appellant that he should pay him Rs. 100.
As, 194 he could not make the payment in question he was kept in the outpost that night.
Next day his brother Gafoor came there and paid a sum of Rs. 80 to the second appellant.
It is only thereafter he was allowed to go back.
At about the time when money was extorted from PW 13, Alladin PW 14 was said to have been in the outpost.
PW 14 corroborated the testimony of: PW 13.
PW 14 has his own grievance against the. appellants.
His case was that about 25 days prior his arrest, the first appellant ,came to his field and demanded his camel for cultivation of his field.
But as he himself required the camel he refused to give it.
After about 8 or 9 days both the appellants came to his field .and, forcibly took him to the outpost and beat him.
Thereafter, they demanded from him a sum of Rs. 60 and he was told that if he did not pay that amount, lie would be prosecuted in some false case.
Next we come to the evidence of Murad PW 7 and Subhan PW 9.
The evidence of these two witnesses was that about seven or eight days before the first appellant was arrested .
both the appellants came to their houses in the village Talab Ka Par and took them to the outpost.
There they were made to kneel down.
Further they were falsely accused of indulging in smuggling ,of goods and visiting Pakistan without valid permits.
Thereafter Rs.80 were demanded from PW 7 and Rs. 200 from PW 9.
Ultimately it was settled that PW 7 should pay Rs. 50 and PW 9 Rs. 150.
By that time Kalla PW 3 came there.
He was sent to .the house of those witnesses to get money.
He got Rs. 40 for PW 7 and Rs. 130 for PW 9.
Those, amounts were paid to the second appellant.
Next we come to the evidence of Minimal PW 10.
His version was that in July or August 1962 his brother in law died and in that connection a feast had been arranged.
When the feast was about to commence the first appellant came there and told him that unless he paid a sum of Rs. 100 he would not be allowed to have the feast.
As he refused to pay that money he was taken to the outpost.
There the second appellant again demanded from him Rs. 100.
Ultimately PW 10 paid the second appellant Rs. 30.
Lastly we come to the evidence of Nemichand PW 15.
His case was that about a month before the first appellant was trap ped he had come to his shop and told him that he should go and meet the second appellant at the outpost.
Accordingly he went to the outpost.
There the second appellant accused him of indulging in black marketing and demanded from him Rs. 100, and he was told that if he did not pay that amount he would be beaten and prosecuted.
Ultimately it was settled that he should 195 pay Rs. 50.
Thereafter he was allowed to go home and get the money.
On the next day he went to the outpost and paid Rs. 50 to the second appellant.
The evidence of all the witnesses mentioned above excepting PW 18 has been accepted by the trial court as well as by the appellate court, and we see no reason to differ from them.
This takes us to the question whether on the basis of the evidence accepted by the High Court both or any of the appellants could in law have been convicted for any of the offences with which they were charged.
The first appellant was a subordinate of the second appellant.
From the evidence referred to earlier it is clear that both the appellants were acting together.
It is obvious that the second appellant was mainly responsible for the extortions complained of and the first appellant was aiding him in his activities.
Hence there was no need to charge the appellants under section 120 B, IPC even in respect of the amount received from PW 1.
The evidence adduced by the prosecution shows that every single act complained of amounts to an extortion in law.
Before an offence is held to, fall under section 161 IPC, the following requirements have to be satisfied: (1) the accused at the time of the offence was, or expected to be, a public servant, (2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification, (3) that such gratification was not a legal remuneration due to him, and (4) that he accepted the gratification in question as a motive or reward, for (a) doing or forbearing to do an official act; or (b) showing, or forbearing to show favour or disfavour to.
some one in the exercise of his official functions; or (c) rendering, or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant.
As mentioned earlier admittedly the appellants were public servants.
It is also established that they obtained from the several witnesses examined in this case illegal gratification.
The word 'obtain ' is a strong word.
It includes also things received by extortion.
But can it be said that they obtained the gratifications in question as a motive or reward for doing or for forbearing to do an official act or for showing or for forbearing to show favour or disfavour to the persons in question in the exercise of their official functions.
The evidence on record clearly shows that neither the appellants intended to, show any official favour to the persons from whom they extorted money or valuable things, nor those persons expected any official favour from them.
, They paid the amounts in question solely with a view to avoid being ill treated 196 or harassed.
The scope of section 161, IPC had been considered by this Court in State of Ajmer vs Shivji Lal(1) as well as in State Of Uttar Pradesh vs Kuljas Rai(2).
Though the former decision.
was overruled in certain respects by a later decision of this Court to which reference will be made hereinafter, that part of 'the decision which considered the requirements of section 161 I.P.C. was not differed from.
Therefore it is difficult to hold that the acts complained against the appellants can be held to constitute offences under section 161, IPC.
Before an offence can, be held to come within cl.
(a) of subs.
1 of section 5 of the Prevention of Corruption Act, the requirements of section 161, IPC have to be satisfied.
If an offence does not fall under section 161, IPC.
it cannot come.
within section 5(1)(a) of the Prevention of Corruption Act.
But so far as cl.
(d) of sub section 1 of section 5 of the Prevention of Corruption Act is concerned, that stands on a different footing.
At the relevant time that sub section read "A public servant is said to commit the offence Of criminal misconduct in the discharge of his duty . . . . . . (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
Therefore if it is proved that the appellants had by illegal means or by otherwise abusing their position as public servants obtained for themselves money or other valuable things, then, they can be said to have committed the offence of criminal misconduct in the discharge of their official duties.
To bring home an offence under section 5 (1) (d), it is not necessary to prove that the acts complained of were done by the appellants in the discharge of their official duties.
The contrary view taken by this Court in State of Ajmer vs Shivji Lal(1) was over ruled by this Court in Dhaneshwar Narain Saxena vs The Delhi Administration(3).
In that case it was observed that the words occurring in section 5 of the Prevention of Corruption Act "in the discharge of his duty" do not constitute an essential ingredient of the offence under section 5 (1) (d), the ingredients of that offence being (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise abuse his position as a (1) (1959) Supp. 2 S.C.R. 739.
(2) Cr.
Appeal 177 of 1960, decided on 22 8 62.
(3) ; 197 public; servant; (3) that he should have obtained a valuable thing or pecuniary advantage, and (4) for himself or any other person.
That decision was followed in State of Uttar Pradesh vs
Kuljas Rai(1).
It must be noted that clause 5 (1) (d) is much wider in scope than clause 5 ( 1 ) (a).
Therefore, the conviction of the, Appellants under section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act stands on a firm ground.
It was contended on behalf of the State that if this Court holds that the conviction of the appellants under section 161, IPC and under section 5 (1 ) (a) of the Prevention of Corruption Act is,, not sustainable, their conviction may, be altered to one under section 384, IPC It was said that such an alteration cannot be said to prejudice the appellants though they were no charged and tried for that offence.
We have not thought it necessary to examine that question as in any event the appellants are liable to be convicted under section 5 (2) read with section 5 ( 1 ) (d) of the Prevention of Corruption Act.
In the result we partly allow the appeal and acquit the appellants under sections 120 B and 161, IPC, as well as under section 5 (2) read with section 5(1)(a) of the Prevention of Corruption Act.
The second appellants conviction under section 5(2) read with section 5 (1) (d) of the Prevention of Corruption Act is sustained and for that offence the sentence of 18 months rigorous imprisonment and a fine of Rs. 200, 'in default further imprisonment of two months imposed by the High Court is affirmed.
The conviction of the first appellant is altered to one under section 5(2) of the Prevention of Corruption Act read with section 114, IPC and for that offence he is sentenced to suffer rigorous imprisonment for one year.
Y.P. Appeal partly allowed.
(1) Cr.
Appeal 177 of 1960, decided on 22 8 62.

summary/full:
On the allegation that the appellant Havaldar and the second appellant a Subedar in the Rajasthan Armed Constabulary. were demanding certain amount from a person accusing him of indulging in blackmarketing and constantly visiting Pakistan and unless he paid the amount demanded he would be beaten and prosecuted, a police trap was successfully laid, and the appellants convicted under sections 161 and 120B I.P.C. and under section 5(2) read with section 5(1)(a) and section 5(1)(d) of the Prevention of Corruption Act.
In appeal, this Court.
HELD : The conviction of the appellants under section 120B and 161 as well as under section 5 (2) read with section 5 (1) (a) of the Prevention of Corruption Act must be set aside.
The second appellant 's conviction under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act must be sustained.
The first appellant 's conviction be altered to one under section 5(2) of the Prevention of Corruption Act read with section 114 I.P.C.
The first appellant was a subordinate of 'second appellant.
From the evidence it is clear that both the appellants were acting together.
It is ' obvious that the second appellant was mainly responsible for the extortions complained of and the first appellant was aiding him in his activities.
Hence there was no need to charge the appellants under section 120 B. I.P.C.
The evidence clearly showed that neither the appellants intended to show any official favour to the Persons from whom they extorted money nor those persons expected any official favour from them.
The amounts in question were paid solely with a view to avoid being ill treated or haras sed.
Therefore, it is dffficult to hold that the acts complained can be held to constitute offences under section 161 I.P.C. State of Ajmer vs Shivji Lal, [1959] Supp. 2 S.C.R. 739 and State of Uttar Pradesh vs Kuljas Rai.
A. No. 177 of.
1960 dated 22 8 62, referred to.
Before an offence can be held to come within section 5(1)(a) Of the Prevention of Corruption Act, the requirements of section 161 I.P.C., have to be satisfied.
If an offence does not fall under section 161 I.P.C. it cannot come.
within section 5(1)(a) of the Prevention of Corruption Act.
[196 C] But so far as section 5(1) (d) of the Prevention of Corruption Act is concerned, that stands on a different footing.
To bring home an offence under section 5(1) (d), it is not necessary to prove that the acts complained of were done by the appellants in the discharge of their official duties.
Clause 5(1)(d) is much wider in scope than cl.
5(1)(a).
[196 D 197 B] 190 State of Uttar Pradesh vs Kuljas Rai, Cr.
A. No. 177 of 1960 dated 22 8 62 and Dhaneshwar Narain Saxena vs The Delhi Administration, ; , referred to.