judgement:
Civil Appeal No. 1257 (NL) of 1985.
From the Judgment and order dated 24th January, 1985 of the Patna High Court in Civil Writ Jurisdiction No. 5877 of 1983.
M.K. Banerjee, Sol.
Genl, D.N. Misra, B.D. Barucha and A.M. Dittia for the Appellant.
556 M.K. Ramamurthy and Mrs. Gyan Sudha Mishra for the Respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
The short question that arises for decision in this appeal by special leave is whether the dismissal in limine of a Special Leave Petition filed before this Court by a party challenging the award of a Labour Court would preclude the said party from subsequently approaching the High Court under Article 226 of the Constitution seeking to set aside the said award.
Having regard to the nature of the question arising for determination, it is not necessary for us to set out in detail the facts of the case and a brief narration thereof would suffice.
Respondent No. 3 was appointed in 1963 as a Sales officer in the service of the appellant The Indian oil Corporation.
He was dismissed from service in 1969 on charges of misconduct but was subsequently reinstated under orders of the Labour Court, Patna before which an industrial dispute had been raised.
During the period when Respondent No. 4 was out of employment consequent on his dismissal, some of his juniors had been promoted to higher posts.
Subsequent to his reintstatement, Respondent No. 3 claimed that he was entitled to be given promotion with effect from the date on which his juniors were promoted and also to be given the higher pay scale of Rs. 1025 1625 from such date.
This claim was not accepted by the appellant and that again gave rise to another industrial dispute.
The State Government of Bihar referred the said dispute to the Labour Court, Patna on September 26, 1980.
The Labour Court by its award dated March 11, 1983 held that Respondent No.3 was entitled to be paid salary in the scale of Rs. 1025 1625 with effect from December 30, 1970, that being the date on which his juniors were promoted to that scale.
It further directed that the 3rd Respondent should be promoted from grade 'B ' to grade 'C ' and should also be given the benefit of revision in the pay scales of those grades.
Aggrieved by the said award, the appellant moved this Court under Article 136 of the Constitution by filing Special Leave Petition No. 9147 of 1983.
Respondent No. 3 had filed a caveat before this Court and he was represented by Counsel at the time when the special leave petition was heard.
This Court on September 9, 1983 dismissed the special leave petition by a non speaking order, which was in the following terms: 557 "The special leave petition is dismissed.", Thereafter the appellant approached the High Court of Patna by preferring a writ petition under Article 226 of the Constitution seeking to quash the aforesaid award of the Labour Court dated March 11, 1983.
The High Court by its order dated January 31, 1984 admitted the writ petition and granted interim stay of enforcement of the award.
Thereupon the 3rd Respondent came up to this Court challenging the order of the High Court admitting the writ petition and granting interim stay of the award.
The principal contention taken in the special leave petition was that in view of the order of this Court dated September 9, 1983 dismissing the special leave petition (S.L.P. No. 2770 of 1984) filed by the appellant against the award of the Labour Court, it was not legally open to the appellant, thereafter, to approach to the High Court under Article 226 of the Constitution challenging the very same award.
This Court after hearing both sides, dismissed the special leave petition filed by the 3rd Respondent by the following order dated August 17, 1984: "Special Leave Petition is dismissed.
We hope that the High Court will dispose of the writ petition as expeditiously as possible preferably within four months from today.
In the meantime the respondents will deposit in the High Court a further sum of Rs. 10,000 (apart from Rs. 5,000 which has already been deposited towards the cost of the petitioner) within two weeks from today, which amount the petitioner will be at liberty to withdraw in case the Writ Petition will not be disposed of within four months from today. " Subsequently, when the writ petition came up for final hearing before a Division Bench of the High Court, the 3rd Respondent again urged the aforesaid contention as a preliminary objection to the maintainability of the writ petition.
That contention was upheld by the Division Bench which took the view that the dismissal in limine by this Court of the special leave petition filed by the appellant against the award by the non speaking order reproduced above precluded the appellant from challenging the said award before the High Court under Article 226 of the Constitution.
In the opinion of the High Court the doctrine of election was applicable to the case and the appellant having chosen the remedy of approaching a superior Court and failed in that attempt, he could not thereafter resort to the alternative re 558 medy of approaching the High Court for relief under Article 226 of the Constitution.
Another reason stated by the High Court is that the writ jurisdiction of the High Court under Article 226 of the Constitution being essentially discretionary in nature, it will be a sound exercise of the Court 's discretion to refuse relief in such a situation.
On the basis of the aforesaid reasoning the High Court dismissed the writ petition filed by the appellant without going into the merits of the case.
The appellant challenges the correctness of the decision so rendered by the High Court.
We are clearly of opinion that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground.
As observed by this Court in Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust and Another, ; the effect of a non speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted.
This conclusion may have been reached by this Court due to several reasons.
When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition.
A writ proceeding is a wholly different and distinct proceeding.
Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re opened in a subsequent writ proceeding before the High Court.
But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issue must have been decided by this Court at least by implication.
It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
This enunciation of the legal position has been reiterated by this Court in Ahmedabad Manufacturing & Calico Printing Company Ltd. vs Workmen and Anr, [1981] 3 S.C.R. 213.
The principles laid down in the two decisions cited above fully govern the present case.
559 It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment.
The dismissal of a special leave petition in limine by a non speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court.
It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court not to grant special leave except where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution.
In such cases also the special leave petitions are quite often dismissed only by passing a non speaking order especially in view of the rulings already given by this Court in the two decisions afore cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution.
In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.
In Wilson vs Colchester Justices, [1985] Vol.
2 All England Law Reports at page 97 the House of Lords had to consider the question whether the refusal of leave to appeal by the Appeal Committee of the House of Lords would constitute an implied approval of the decision which had been unsuccessfully sought to be impugned.
The following observations of Lord Roskill are apposite in our present context: "Seemingly the Divisional Court felt that this refusal indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn.
Counsel surprised your Lordships by.
saying that this impression was widespread in the profession.
My Lords, if that were so, as my noble and learned friend Lord Diplock remarked during the argument, the sooner this erroneous impression is emphatically corrected by your Lordships the better.
There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee.
I shall not attempt to embark on an exhaustive list 560 for it would be impossible to do so.
One reason may be that the particular case raises no question of general principle but turns on its own facts.
Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle.
Your Lordships House is only able, in any given year, to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen.
Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong.
It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms.
It is not difficult to find in the books examples of cases where, after leave to appeal has been refused in one case, another case will later arise in which leave to appeal has been given as a result of which the decision against which leave to appeal was originally refused is shown to have been wrong.
But that of itself does not mean that the initial refusal of leave was wrong.
" Thus the correct legal position is that the dismissal by this Court of the Special Leave Petition No. 9147 of 1983 by the non speaking order of this Court dated September 9, 1983 did not operate as a bar against the appellant in the matter of challenging the impugned award of the Labour Court by resort to proceedings before the High Court under Article 226 of the Constitution.
The doctrine of election referred to by the High Court has no application at all to the present situation and the decision in Shankar Ramchandra Abhyankar vs Krishnaji Dattatreya Bapat, ; is clearly distinguishable.
The question that arose in that case was whether a party who had a choice of resorting to one of two remedies before the same Court namely, the High Court, could successively move the High Court under Section 115 of the Civil Procedure Code and again under Articles 226 and 227 of the Constitution.
The question was answered in the negative for the simple reason that the order passed by the High Court under the first proceeding would conclude the matter inter parties.
In such a situation the party had to exercise his choice and elect which remedy he would resort to in the High Court.
The grant of leave under Article 226 of the Constitution is un 561 doutbedly in the discretion of the High Court but the exercise of that discretionary jurisdiction is to be guided by established legal principles.
It will not be a sound exercise of that discretion to refuse to consider a writ petition on its merits solely on the ground that a special leave petition filed by the petitioner in the Supreme Court had been dismissed by a non speaking order.
Apart from the above, in the present case there is the additional fact that after the writ petition was admitted by the High Court the 3rd Respondent challenged the High Court 's order admitting the writ petition and granting interim stay of the award by filing a special leave petition in this Court.
In that special leave petition the 3rd Respondent had raised the very same objection concerning the maintainability of the writ petition in the light of the dismissal of the prior special leave petition filed by the appellant.
This Court dismissed the special leave petition and requested the High Court to dispose of the writ petition within four months from the date of the order (17.8.1984).
Obviously, the intention of this Court in passing that order was that the writ petition should be considered and disposed of by the High Court on the merits within the said period.
It is unfortunate that this order has not been adverted to in the judgment of the High Court now under appeal.
In the light of the aforesaid discussion, we allow this appeal, set aside the order of High Court and remand the writ petition to the High Court for disposal on the merits.
Having regard to the fact that the case concerns the service benefits claimed by the 3rd Respondent, the High Court is requested to dispose of the writ petition as early as possible.
The parties will bear their respective costs.
M.L.A. Appeal allowed.

summary/full:
The appellant 's special leave petition against the award of the Labour Court dated March 11, 1983 granting relief to its employee respondent No. 3, was dismissed by a non speaking order.
In the said proceedings, respondent No. 3 had also been represented by a counsel.
Thereafter, the appellant approached the High Court by preferring a writ petition under article 226 of the Constitution seeking to quash the aforesaid award of the Labour Court.
The High Court admitted the writ petition and granted interim stay of enforcement of the award.
The third respondent unsuccessfully challenged the aforesaid interim order by a special leave petition.
Subsequently when the main writ petition came up for final hearing before the Division Bench of the High Court, the third respondent again raised a preliminary objection as to the maintainability of the writ petition.
The High Court upheld the preliminary objection and dismissed the writ petition holding (i) that the dismissal in limine by the Supreme Court of the special leave petition filed by the appellant against the award by the non speaking order precluded the appellant from challenging the said award before the High Court; (ii) that the doctrine of election was applicable to the case and the appellant having chosen the remedy of approaching the y superior court and failed in that attempt, he could not thereafter resort to the alternative remedy of approaching the High Court for relief under Article 226 of the Constitution; and (iii) that the writ jurisdiction 554 of the High Court under article 226 of the Constitution being essentially discretionary in nature, it will be a sound exercise of the court 's discretion to refuse relief in such a situation.
Allowing the appeal and remanding the case to the High Court for disposal on merits, ^ HELD: 1.(i) The view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground.
The dismissal by Supreme Court of the special leave petition of the appellant by a non speaking order did not operate as a bar against the appellant in the matter of challenging the impugned award of the Labour Court by resort to proceedings before the High Court under article 226 of the constitution.
[560D E] 1.(ii) The effect of the non speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave should be granted.
Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re opened in a subsequent writ proceeding before the High Court.
But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication.
It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.
[558C G] Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust and Another, ; and Ahmedabad Manufacturing & Calico Printing Company Ltd. vs Workmen and Anr, ; , relied upon Wilson vs Colchester Justices, (1985) Vol.
2 All England Law Reports at page 97, referred to. 2.
It is not the policy of the Supreme Court to entertain special 555 leave petitions and grant leave under article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved and there is manifest injustice resulting from the impugned order or judgment.
Moreover, having regard to the very heavy backlog of work in the Supreme Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of the Supreme Court not to grant special leave except where the party cannot claim effective relief by approaching the concerned High Court under article 226 of the Constitution.
In such cases also special leave petitions are quite often dismissed only by passing a non speaking order and it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under article 226 of the Constitution on the sole ground of dismissal of special leave petition.
[559A E] Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust and Another, ; and Ahmedabad Manufacturing & Calico Printing Company Ltd. vs Workmen and Anr, ; , followed.
The doctrine of election referred to by the High Court has no application at all to the present situation.
[560F] Shankar Ramchandra Abhyankar vs Krishnaji Dattatreya Bapat, ; , distinguished.
The grant of leave under article 226 of the Constitution is undoubtedly in the discretion of the High Court but the exercise of that discretionary Jurisdiction is to be guided by established legal principles.
It will not be a sound exercise of that discretion to refuse to consider a writ petition on its merits solely on the ground that a special leave petition filled by the petitioner in the Supreme Court had been dismissed by a non speaking order.
[561A B]


judgement:
Civil Appeal No. 2327 of 1986.
From the Judgment and order dated 10.10.1984 of the Punjab and Haryana High Court in R.S.A. No. 2198 of 1984.
K. N. Rai for the Appellant.
R. S .
Sodhi for the Respondents.
The Judgment of the Court was delivered by E RAY, J.
After hearing the learned counsel for both the parties and on consideration of the question of law involved in this petition.
Special Leave is granted.
Arguments heard.
The appellant petitioner was appointed as a lady constable in Hoshiarpur District on 7.5.1979.
After completion of training she was posted in March, 1980 in the police lines, Hoshiarpur.
The Superintendent of Police, Hoshiarpur discharged the appellant from service by an order dated 9.9.
1980 under Rule 12.21 volume 7 of the Punjab Police Rules, 1934.
The said order is in the following terms: "Lady Constable Rajinder Kaur No. 732 is unlikely to prove an efficient police officer.
She is, therefore, hereby discharged from the Police Force Under P.P. 12.21 with effect from today (9.9.1980).
502 Issue orders in O.R. and all concerned to notice and necessary action.
" This order was made, it has been stated in the petition, without serving any charge sheet on her and without asking her to explain any charge.
The order also has not recorded any reason for her discharge from service.
Against this order the appellant made a representation to the Deputy Inspector General of Police, Jullunder Range.
The said representation was rejected on 17.10.1980.
The appellant filed a revision against the order of the Deputy Inspector General of Police and the same was also dismissed on 15.4.1981.
The appellant thereafter filed a civil suit No. 327/ASSJ/82 in the Court of Additional Senior Sub Judge, Hoshiarpur on 16.11.1981 challenging the order of discharge as bad, arbitrary and against the principles of law.
The said suit was dismissed by the Additional Senior Sub Judge, Hoshiarpur on 28.2.1983.
Thereafter, the appellant Sled an appeal before the District Judge, Hoshiarpur on 31.3.1983 and it was numbered as Civil Appeal No. 45 of 1983.
The said appeal was dismissed on 7.5.
1984 and the judgment of the Trial Court was confirmed.
A Regular Second Appeal No. 2198 of 1984 was filed before the High Court of Punjab and Haryana at Chandigarh.
The said Second Appeal was dismissed on 10.10.1984.
Hence the instant application for grant of special leave to appeal under Article 136 of the Constitution has been filed in this Honourable Court by the appellant.
The main argument advanced on behalf of the appellant is that the impugned order of discharge from service was made not in accordance with Rule 12.21 of the Punjab Police Rules, 1934 in accordance with the terms and conditions of the service but it was made by way of punishment.
An enquiry was made by Deputy Police Superintendent, Garhshankar as to the character of the appellant into the allegation that she stayed at Mahalpur for 1 or 2 nights with one constable, Jaswant Singh and evidences were recorded therein without giving the appellant any opportunity of hearing in the enquiry and without giving her any opportunity to cross examine the witnesses and the impugned order was made after the completion of the investigation on the ground of her misconduct which casted a stigma on her service career.
The order in question is, therefore, not an innocuous one though expressed in innocuous terms.
It is made by way of punishment, the ground being her misconduct as found on the basis of the investigation of certain allegations behind her back.
It was urged on behalf of the respondents that the order dis 503 charging the appellant from service was not made by way of punishment.
The order was made in accordance with the terms of Rule 12.21 of the said Rules which empowers the authorities to do away with the service of the constable at any time within three years of her enrolment, if she is found unlikely to prove an efficient police officer, by the Superintendent of Police and no appeal has been provided for under the Rules against the said order of discharge.
It was, therefore, urged that the order being made in accordance with the conditions of service of the appellant and so it is unchallengeable before this Court by filing a special leave petition to appeal.
Admittedly, the appellant was appointed as a lady constable on 7.5.1979 and she was posted in March, 1980 in the police lines, Hoshiarpur after completion of her training.
It has been stated in para 15 of the petition that on an allegation made by the department against the appellant that she spent two nights with a constable an investigation was caused to be made into the said allegation against her conduct and on the basis of that investigation the impugned order of discharge was made by the Superintendent of Police, Hoshiarpur.
In para 15 of the counter affidavit sworn on behalf of respondents it has been stated that the Superintendent of Police, Hoshiarpur, got conducted a confidential enquiry through a Deputy Superintendent of Police regarding the conduct of the appellant.
On an overall assessment of the work and conduct of the appellant, the Superintendent of Police, Hoshiarpur came to the conclusion that she was not likely to become an efficient Police officer and thus passed an order discharging her from service in accordance with the conditions of the service.
These averments made in para 15 of the counter affidavit have been verified to be true and correct to the knowledge of the deponent based upon the information derived from the record of the case.
Thus, it is clear from these averments that the impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934, is really made on the basis of the misconduct as found on enquiry into the allegation behind her back by the Deputy Superintendent of Police, Garhshankar.
It is not disputed that the enquiry was made without serving her the charge sheet and without giving her any opportunity to explain the charges and the allegations levelled against her.
The enquiry was conducted behind her back and on the basis of the result of the investigation she was discharged from service.
Therefore in these circumstances, it does not lie in the mouth of the respondents to submit before this Court that the order is an innocuous one and it is an order made simply in accordance with the conditions of her 504 service under Rule 12.21 of the said Rules.
On the other hand, in the background of these facts and circumstances it is crystal clear that the impugned order of discharge from service of the appellant was made on the ground of her misconduct and it is penal in nature as it casts a stigma on the service career of the appellant.
The next question arises is whether the appellant who is yet to be confirmed in the service and has no right to the post in question, the impugned order can be assailed as violative of the protection given by Article 311(2) of the Constitution.
This point has been well settled by several decisions of this Court.
This Court has stated in no uncertain terms in the case of P. L. Dhingra vs Union of India, [1958] SCR p. 828 at 862 as follows: "But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with." This decision has been relied upon by this Court in the case of K.H. Phadnis vs State of Maharashtra, [1971] SCR (Supp.) p. 118 where it has been held that even in the case of reversion of an employee who has been repatriated from the temporary post of Controller of Food Grains Department to his parent department of Excise and Prohibition, to which he had a lien might be sent back to the substantive post in ordinary routine administration or because of exigencies of service.
Such a person may have been drawing a salary more than that of his substantive post but when he is reverted to the parent department the loss of salary cannot be said to have any penal consequences.
The matter has to be viewed as one of substance and all relevant factors have to be considered in ascertaining whether the order is a genuine one of accidence of service in which a person sent from the substantive post to a temporary post has to go back to the parent post without any aspersion against his character or integrity, or whether the order amounts to a reduction in rank by way of punishment.
505 lt has been further observed by this Court in the case of State of Bihar & Ors.
vs Shiva Bhikshuk Mishra, at 196.
"The form of the order is not conclusive of its true nature and it might merely be a cloak and camouflage for an order founded on misconduct.
It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine.
But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
" In the case of Shamsher Singh & Anr.
vs State of Punjab, [1975] 1 S.C.R. p.814 at 837 it has been observed as under: "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct, or inef ficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 31 l (2) f the Constitution.
" lt has been observed by this Court in the case of Anoop Jaiswal vs Government of India & Anr., [1984] 2 S.C.R. p.453 as under: "Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
" 506 On a conspectus of all these decisions mentioned hereinbefore, the irresistible conclusion follows that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct.
This order has been made without serving the appellant any charge sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross examine the witnesses examined, that is, in other words the order has been made in total contravention of the provisions of Article 311(2) of the constitution.
The impugned order is, therefore, liable to be quashed and set aside.
A writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service.
A writ in the nature of mandamus and appropriate directions be issued to allow the appellant to be reinstated in the post from which she has been discharged.
The appeal is thus allowed with costs.
The authorities concerned will pay all her emoluments to which she is entitled to in accordance with the extant rules as early as possible in any case not later than eight weeks from the date of this judgment.
P.S.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant, a temporary lady constable, was discharged from service by an order under Rule 12.21 Volume 7 of the Punjab Police Rules 1934 on the allegation that she was unlikely to prove an efficient police officer.
A representation made by her to the Deputy Inspector General of Police against that order was rejected.
A revision filed by the appellant against the latter order was dismissed.
A suit filed by her challenging the order of discharge as bad, arbitrary and against the principles of law was dismissed.
This order was confirmed by the District Judge and the High Court in appeal.
In the appeal to this Court by special leave it was contended for the appellant that the impugned order of discharge from service was made not in accordance with the said Rule, in accordance with the terms and conditions of the service, but was made by way of punishment on the ground of her misconduct, as found on the basis of the investigation of certain allegations behind her back, without giving her any opportunity of hearing in the enquiry or to cross examine the witnesses.
Allowing the appeal, the Court, ^ HELD: The impugned order of discharge, though couched in innocuous terms and stated to be made in accordance with the provisions of Rule 12.21, Vol.7 of the Punjab Police Rules, 1934, was really a camouflage for an order of dismissal from service on the ground of misconduct as found on an enquiry into the allegations behind her back.
It was penal in nature as it cast a stigma on the service career of the 501 appellant.
This order was made without serving the appellant any chargesheet without asking for any explanation from her without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross examine the witnesses.
It, therefore, contravenes article 311(2) of the Constitution and is liabie to be quashed and set aside.
[503F G; 504B; 506B C] P.L. Dhingra vs Union of India, [1958] SCR p. 828 at 862, K.H. Phadnis vs State of Maharashtra, [1971] SCR (Supp.)) p. 118, State of Bihar & Ors.
vs Shiva Bhikshuk Mishra, at 196, Shamsher Singh & Anr.
vs State of Punjab, [1975] 1 SCR p. 814 at 837 and Anoop Jaiswal vs Government of India & Anr., [1984] 2 SCR p. 453, referred to.


judgement:
Civil Appeal No. 1960 of 1980 From the Judgment and Order dated 23.7.1980 of the Punjab & Haryana High Court in C.R. No. 904 of 1980 624 Mrs. Urmila Kapur and S.N. Agarwala for M/s. B.P. Maheshwari & Co. for the Appellant.
S.K. Mehta, M.K. Dua, Aman Vachhar and E.M.S. Anam for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The Ist Respondent Om Parkash is the landlord of a building situated in Ferozpur Jhirka, District Gurgaon in the State of Haryana.
He had leased out the said premises in favour of one Musadi Lal for a commercial purpose.
After Musadi Lal took the premises on lease he sub let the premises in favour of Med Ram Respondent No. 2 without the written consent of the landlord Om Parkash.
Thereupon Om Parkash filed a petition for eviction against Musadi Lal and Med Ram before the Rent Controller, under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (Act No. 11 of 1973) (hereinafter referred to as 'the Act ') on the ground mentioned in section 13(2) (ii) (a) of the Act which entitled the landlord to file a petition for eviction where the tenant had after the commencement of the Act without the written consent of the landlord transferred his right under the lease or sub let the building.
Musadi Lal and Med Ram, the tenant and the alleged sub tenant respectively were impleaded as the respondents to the petition.
During the pendency of the petition Musadi Lal died.
Thereupon Bal Kishan, the appellant herein, filed an application before the Rent Controller to bring him on record as the legal representative of the deceased Musadi Lal alleging that he was the adopted son of Musadi Lal.
The said application was opposed by the landlord.
Overruling the objections of the landlord the Rent Controller ordered that the appellant Bal Kishan should be brought on record as the legal representative of the deceased Musadi Lal.
After the above order was passed Bal Kishan filed an additional written statement contending that the premises in question being non residential and commercial premises, the legal heir of a tenant could not be treated as a tenant as defined under section 2(h) of the Act and, therefore, the possession of such legal heir of a tenant would be that of a trespasser.
That being the case, according to the appellant, the Rent Controller had no jurisdiction to proceed with the case as the Rent Controller was not competent to pass a decree for possession against a trespasser.
On the above ground the appellant prayed for the dismissal of the eviction petition.
Overruling the said contention, the learned Rent Controller allowed the petition for eviction holding that Musadi 625 Lal had sub let the premises in favour of Med Ram, Respondent No. 2 without the written consent of the landlord.
Against the judgment of the Rent Controller, the appellant filed an appeal before the Appellate Authority at Gurgaon.
That appeal was dismissed.
Against the judgment in that appeal, the appellant filed a revision petition before the High Court which was also dismissed.
This appeal by special leave is filed against the judgment of the High Court.
In this appeal also it is contended that the proceedings before the Rent Controller were without jurisdiction since the appellant was not a tenant as defined in section 2(h) of the Act because the building in question was a non residential building.
That Musadi Lal was a tenant under Respondent No. 1 is not disputed.
We shall assume for purposes of this case but without deciding, that the appellant Bal Kishan was not entitled to be treated as a tenant of the building in question under the Act on the death of Musadi Lal.
The question for consideration is whether in the circumstances of this case the Rent Controller had lost his jurisdiction to try the case before him.
Order XXII Rule 4 of the Code of Civil Procedure, 1908 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, in an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
Since the action in this case related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative of the deceased Musadi Lal on record.
Sub rule (2) of rule 4 Order XXII authorises any person who is brought on record as the legal representative of a defendant to make any defence appropriate to his character as legal representative of the deceased defendant.
The said sub rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant had or could have raised except those which were personal to the deceased defendant or respondent.
In the instant case Bal Kishan, the appellant could not have, therefore, in the capacity of the legal representative of the deceased respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable.
It is true that it is possible for the Court in an appropriate case to implead the heirs of a deceased defendant in their 626 personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title as observed in Jagdish Chander Chatterjee & Ors.
vs Sri Kishan & Anr., ; The relevant part of that decision at page 854 reads thus: "Under sub clause (ii) of Rule 4 of Order 22 Civil Procedure Code any person so made a part as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent.
In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased.
Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.
" But in the instant case the appellant cannot claim the benefit of the above decision for two reasons.
First, the appellant had not been brought on record as a respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal.
Secondly, in the circumstances of this case, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller could not have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself.
The observations made in the Jagdish Chander Chatterjee & Ors. case (supra) have to be confined to only those cases where the Court hearing the case has jurisdiction to try the issues relating to independent title also.
The Rent Controller, who had no jurisdiction to pass the decree for possession against a trespasser could not have, therefore, impleaded the appellant as a respondent to the petition for eviction in his independent capacity.
We do not, therefore, find any substance in the above plea of the appellant.
Further the plea of the appellant that he was holding the property as a trespasser is also not tenable because the possession of Musadi Lal being permissive, the possession of the appellant who had succeeded to the estate of Musadi Lal as his heir could not be that of a trespasser in the circumst 627 ances of the case.
He could not, therefore, resist the passing of the decree for eviction on proof of the ground in section 13(2) (ii) (a) of the Act.
We agree with the findings recorded by the Rent Controller and the Appellate Authority which have been affirmed by the High Court that Musadi Lal had sub let the premises without the written consent of the landlord and, therefore, the legal representative of the tenant and the sub tenant were liable to be evicted from the premises under the Act.
The appeal, therefore, fails and it is dismissed.
There will be no order as to costs.
M.L.A. Appeal dismissed.

summary/full:
The appellant was brought on record, as the legal representative of the deceased tenant during the pendency of an eviction petition.
He filed an additional written statement contending that the premises in question being non residential and commercial premises, the legal heir of a tenant could not be treated as a tenant as defined under section 2(h) of the Haryana Urban (Control of Rent & Eviction) Act and therefore, the possession of such legal heir of a tenant would be that of a trespasser and, the Rent Controller had no jurisdiction to proceed with the case as he was not competent to pass a decree for possession against a trespasser.
Overruling the said contention, the Rent Controller allowed the petition for eviction on the ground that the tenant had sublet the premises in favour of respondent No. 2 without the written consent of the landlord.
The appellant 's appeal and the revision before the Appellate Authority and the High Court respectively failed.
Dismissing the appeal by the appellant, ^ HELD: 1.
The plea of the appellant that he was holding the property as a trespasser is not tenable because the possession of the tenant being permissive, the possession of the appellant who had succeeded to the estate of the tenant as his heir could not be that of a trespasser in the circumstances of the case.
He could not, therefore, resist the passing of the decree for eviction on proof of the ground in section 13(ii) (a) of the Act.
[525G H; 526A] 623 2.
Order XXII Rule 4 of the Code of Civil Procedure 1908 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
Sub rule (2) of rule 4 of Order XXII authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant had or could have raised except those which were personal to the deceased defendant or respondent.
[625D G] In the instant case, since the action related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative, of the deceased tenant, on record.
The appellant could not have therefore, in the capacity of the legal representative of the deceased respondent who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable.
[625G H] 3.
It is possible for the court in an appropriate case to implead the heirs of the deceased defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title.
But, in the instant case, the appellant cannot claim the aforesaid benefit for two reasons.
First the appellant had not been brought on record as respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of the tenant.
Secondly, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller could not have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself.
[626E F] Jagdish Chander Chatterjee & Ors.
vs Sri Kishan & Anr., ; , referred to.


judgement:
Civil Appeal No 531 of 1986 From the Judgment and order dated 22.5.1984 of the Rajasthan High Court in S.B. Civil Writ Petition No. 114 of 1985.
Sushil Kumar Jain and Sudhanshu Atreya for the Appellant.
B.D.Sharma for the Respondents.
The question is whether the appellant having his date of birth as January 2, 1956 had attained the age of 28 years on January 1, 1984 and was therefore disqualified from being considered for direct recruitment to 668 the Rajasthan Administrative Service under r. l l B of the Rajasthan State & Subordinate Service (Direct Recruitment by Competitive Examination) Rules, 1962 (for short 'the Rules ').
Put very briefly, the essential facts are these.
The Rajasthan Public Service Commission invited applications for direct recruitment to the Rajasthan Administrative Service and allied services of the Government of Rajasthan by a competitive examination to be held in 1983.
Under the directions issued by the Commission, the minimum age prescribed for candidates was 21 years and the maximum 28 years.
It was prescribed that the candidate should have attained the age of 21 years on January 1, 1984 and should not have attained the age of 28 years i.e. On the first day of January next following the last date fixed for receipt of application.
The appellant was allowed to appear in the written examination, but by an order dated June 12, 1984, the Assistant Secretary to the Commission intimated the appellant that his candidature was rejected on the ground that he had attained the age of 28 years on January 1, 1984 and was therefore ineligible for consideration.
Feeling aggrieved, the appellant moved the High Court under article 226 of the Constitution and contended that his date of birth was January 2, 1956 and that he had not attained the age of 28 years on January 1, 1984.
His claim was contested by the respondents who pleaded that the appellant had attained the age of 28 years on January 1, 1984 and therefore his form was properly rejected.
During the pendency of the writ petition, the High Court by an interim order dated September 14, 1984 directed the Commission to interview the appellant if he was otherwise eligible for being considered except on the ground of age.
The appellant was acoordingly interviewed but the result was withheld.
A learned Single Judge by his judgment and order dated January 19, 1985 held that if the date of birth of the appellant was January 2, 1956 he would complete the age of 28 years only at the end of the day of January 1, 1984 and there he could not be said to have attained the age of 28 years on that date.
He accordingly held that the Commission was not justified in rejecting the candidature of the appellant on the ground that he had attained the age of 28 years on January 1, 1984 and therefore was not eligible for consideration.
On appeal, a Division Bench disagreed with the view expressed by the learned Single Judge and reversed his judgment on the ground that the words used in r. 11 B of the Rules are, 'must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of application ' and not that he should have completed the age of 28 years on that day.
They relied upon the 669 undisputed fact that the first day of January next following the last A date fixed for receipt of application in this case was January l, 1984.
Accordingly, they held that the appellant was born on January 2, 1956 and, as such, he had attained the age of 28 years as soon as the first day of January, 1984 commenced.
They further held that the appellant had not only attained the age of 28 years, but had also completed the same at 12 o 'clock in the midnight of January 1, 1984.
According to the learned Judges, on January 2, 1984, the appellant would be one day more than 28 years and, as such, he was disqualified to appear at the examination under r. 11 B of the Rules.
The conclusion of the learned Judges may best be stated in their own words: "In calculating a person 's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birth day." In coming to that conclusion the learned Judges relied upon the language of r. 11 B of the Rules which prescribes the age limit for the said examination and also referred to section 4 of the .
They have relied on certain decisions of different High Courts, particularly to that in G. Vatsala Rani represented by guardian and father, P.M.G. Kini vs Selection Committee for Admission to Medical Colleges, Bangalore Medical College, Bangalore 2 represented by the Secretary, AIR and to some English decisions laying down the principle for determination of age.
It is argued that the learned Judges were in error in introducing the legal concept of the age of majority as laid down in section 4 of the for the purpose of interpreting r. 11 B. It is said that the purpose of r. 11 B framed by the Government was to prescribe the maximum and minimum age limits for entry into the Rajasthan Administrative Service and allied services of the Government of Rajasthan.
It is submitted that as commonly understood, a person attains a particular age after he has completed a given number of years.
It is said that there is no reason why the words of r. 11 B 'must have attained the age of 21 years and must not have attained the age of 28 years ' should not be understood in the ordinary sense.
At first blush, the contention advanced appears to be rather attractive but on deeper consideration it cannot prevail.
Learned counsel for the appellant drew our attention to the fact that the Union Public Service Commission has been interpreting the 670 words 'must have attained the age of 21 years and must not have attained the age of 26 years on the first day of August next following ' in the way the appellant contends for.
These words are taken from r.4 of the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955 framed by the Central Government in pursuance of r. 7 of the Indian Administrative Service (Recruitment) Rules, 1954.
Presumably, there would be similar provisions laying down the qualification as to age in other central services as well.
R. 4 insofar as material reads: "4.
Conditions of Eligibility In order to be eligible to compete at the examination, a candidate must satisfy the following conditions, namely: (i) (ii) Age He must have attained the age of 21, and not attained the age of 28 on the first day of August of the year in which the examination is held: Provided that the upper age limit may be relaxed in respect of such categories of persons as may from time to time, be notified in this behalf by the Central Government, to the extent and subject to the conditions, notified in respect of each category. ' Undoubtedly, the Union Public Service Commission has been interpreting the provision as to attainment of age in a like manner.
This would be clear from the advertisement issued by it on December 8, 1984 which is in these terms: "Age limit: (ka) The candidate should have attained the age of 21 years on 1st August.
hut should not have attained the age of 26 years, that is, he should not have born before the 2nd August, 1959 and after the 1st August, 1964," We are afraid, the interpretation of r.
I l B of the Rules cannot proceed upon the basis adopted by the Union Public Service Commission.
Rule 11 B of the Rules provides: "11 B. Age.
Notwithstanding anything contained regarding 671 age limit in any of the service Rules governing through the A agency of the Commission to the posts in the State Service and in the Subordinate Service mentioned in Schedule I and in Schedule II respectively, a candidate for direct recruitment to the posts to be filled in by combined competitive examinations conducted by the Commission under these Rules must have attained the age of 21 years and must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of application.
" It is plain upon the language of r. l l B that a candidate 'must have attained the age of 21 years and must not have attained the age of 21 years on the first day of January next following the last date fixed for receipt of application '.
Last day fixed for receipt of application in this case, was January 1, 1983.
First day of January next following that day would be January 1, 1984.
The object and intent in making r. 11 B was to prescribe the age limits upon which the eligibility of a candidate for direct recruitment to the Rajasthan Administrative Service and other allied services is governed.
At first impression, it may seem that a person born on January 2, 1956 would attain 28 years of age only on January 2, 1984 and not on January 1, 1984.
But this is not quite accurate.
In calculating a person 's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birth day.
We have to apply well accepted rules for computation of time.
One such rule is that fractions of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a full day.
A legal day commences at 12 o 'clock midnight and continues until the same hour the following night.
There is a popular misconception that a person does attain a particular age unless and until he has completed a given number of years.
In the absence of any express provision, it is well settled that any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birth day.
In Halsbury 's Laws of England.
3rd edn., vol.
37, para 178 at p. 100, the law was stated thus: "In computing a period of time, at any rate, when counted in years or months, no regard is generally paid to fractions of a day, in the sense that the period is regarded as comp 672 lete although it is short to the extent of a fraction of a day Similarly, in calculating a person 's age the day of his birth counts as a whole day; and he attains a specified age R on the day next before the anniversary of his birth day.
" We have come across two English decisions on the point.
In Rex vs Scoffin, LR the question was whether the accused had or had not completed 21 years of age.
section l0(I) of the Criminal Justice Administration Act, 1914 provides that a person might be sent to Borstal if it appears to the court that he is not more than 21 years of age.
The accused was born on February 17, 1909.
Lord Hewart, CJ held that the accused completed 21 years of age on February 16,1930 and that he was one day more than 21 years of age on February 17, 1930 which was the Commission day of Manchester Assizes.
In Re.
Shurey, Savory vs Shurey, LR [1918] I Ch.
263 the question that arose for decision was this: Does a person attain a specified age in law on the aniversary of his or her birthday, or on the day preceding that anniversary? After reviewing the earlier decisions, Sargant, J. said that law does not take cognizance of part of a day and the consequence is that person attains the age of twenty one years or of twenty five years, or any specified age, on the day preceding the anniversary of his twenty first or twenty fifth birthday or other birthday, as the case may be.
From Halsbury 's Laws of England, 4th edn., vol 45, para 1143 at p. 550 it appears that section 9 of the Family Law Reforms Act, 1969 has abrogated the old common law rule stated in Re. Shurey, Savory vs
Shurey (supra).
It is in recognition of the difference between how a person 's age is legally construed how it is understood in common parlance.
The Legislature has expressly provided in section 4 of the that how the age of majority is to be computed.
It reads: "4.
Age of majority how computed In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of section 3, at the beginning of the twenty first an 673 niversary of that day, and if he falls within the second A paragraph of section 3, at the beginning of the 18th anniversary of that day." The Section embodies that in computing the age of any person, the day on which he was born is to be included as a whole day and he must be deemed to have attained majority at the beginning of the eighteenth anniversary of that day.
As already stated, a legal day commences at 12 o 'clock midnight and continues untill the same hour the following night.
It would therefore appear that the appellant having been born on January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o 'clock on the midnight of January 1, 1984.
On the next day i.e. On January 2, 1984, the appellant would be one day more than 28 years.
The learned Judges were therefore right in holding that the appellant was disqualified for direct recruitment to the Rajasthan Administrative Service and as such was not entitled to appear at the examination held by the Rajasthan Public Service Commission in 1983.
We affirm the view taken by the learned Judges as also the decisions in G. Vatsala Rani 's case, (supra).
It is rather unfortunate that the appellant should upon the construction placed on r. 11 B of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules.
1962 fail to secure entry into the Rajasthan Administrative Service and allied services of the Government of Rajasthan merely because he exceeds the upper age limit just by one day.
The Government ought to consider the question of relaxing the upper age limit in the case of the appellant in order to mitigate the hardship, if otherwise permissible.
There is need for a provision like the proviso to r. 4 of the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955, conferring the power of relaxation on the State Government under certain conditions without which a deserving candidate would be rendered ineligible for appointment.
The result is that the appeal must fail and is accordingly dismissed.
There shall be no order as to costs.
G A.P.J. Appeal dismissed.

summary/full:
For direct recruitment to the Rajasthan Administrative Service and allied services of the Government of Rajasthan by a competitive examination to be held in 1983, the Rajasthan Public Service Commission prescribed that the candidate should have attained the age of 21 years on January 1, 1984 and should not have attained the age of 28 years i.e. On the Ist day of January next following the last date fixed for receipt of application.
F The appellant was allowed to appear in the written examination, but later on he was intimated by the Commission that his candidature was rejected on the ground that he had attained the age of 28 years on January 1, 1984 and was therefore ineligible for consideration.
The writ petition filed by the appellant under article 226 was allowed by a Single Judge holding that if the date of birth of the appellant was January 2, 1956 he would complete the age of 28 years only at the end of the day of January 1, 1984 and therefore he could not be said to have attained the age of 28 years on that date.
666 on appeal by the respondents, a Division Bench reversed the Judgment of the Single Judge.
In appeal to this Court, on behalf of the appellant it was con tended: (i) that the Division Bench erronously introduced the legal concept of the age of majority as laid down in section 4 of the for the purpose of interpreting r. 11 B of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules 1962 and (ii) that as commonly understood, a person attains a particular age after he had completed a given number of years and there is no reason why the words of r. 11 B "must have attained the age of 21 years and must not have attained the age of 28 years" should not be understood in the ordinary sense.
Dismissing the appeal, ^ HELD: 1.
In the absence of any express provision, while calculating a person 's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birthday.
One of the well accepted rules for computation of time is that fractions of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a full day.
A legal day commences at 12 O 'clock midnight and continues until the same hour the following night.
This principle is in conformity with section 4 of the Indian Majority Act 1875.[671F G] G. Vatsala Rani, P. M. C. Kini v .
Selection Committee for Admission to Medical Colleges, Bangalore Medical College, Bangalore 2, AIR , Rex
Scoffin, LR [1930] l KB 741 & Shurey, Savory F. vs Shurey, I,R , approved.
Halsbury 's Laws of England, 3rd edn.
37, para 178 at 100, relied upon.
The object and intent in making r. llB of the Rajasthan State & Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 was to prescribe the age limits upon which the eligibility of a candidate for direct recruitment to the Rajasthan Admmistrative Service and other allied services is governed.
The expression "must not have attained the age of 28 years on the first day of January next following the last day fixed for receipt of application" in r. llB has to be interpreted by applying the aforesaid principle and not on the basis 667 adopted by UPSC while interpreting r. 4 of the Indian Administrative A Services (Appointment by Competitive Examination) Regulations, 1955 framed by the Central Government in pursuance or r. 7 of the IAS (Recruitment) Rules 1954.
[670A B] 3.
The last day fixed for receipt of application in this case, was January 1, 1983.
First day of January next following that day would be January 1, 1984.
the appellant having been born on January 2, 1956, he had not attained the age of 28 years but also completed the same at 12 o 'clock on the midnight of January 1, 1984.
On the next day i.e. On January 2, 1984, the appellant would be one day more than 28 years.
The Division Bench of the High Court was, therefore, right in holding that the appellant was disqualified for direct recruitment of the Rajasthan Administrative Service in the examination held by the Rajasthan Public Service Commission in 1983.
[673C D] The Court emphasised the need for a provision like the proviso to r. 4 of the Indian Administrative Service (Appointment by Competitive Examination) Regulations 1955 conferring the power of relaxation on the State Government under certain conditions without which a deserving candidate would be rendered ineligible for appointment and advised the Government to consider the question of relaxing the upper age limit in the case of the appellant in order to mitigate the hardship, if otherwise permissible, because he exceeded the upper age limit just by one day.
[673E F]


judgement:
Civil Appeal No. 172 of 1979 From the Judgment and order dated 4.4.1978 of the Delhi High Court in Civil Writ No. 261 of 1978.
B.R. Aggarwala for the Appellants.
O.P. Sharma for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This appeal on special leave arises out of a Judgment of 699 the Delhi High Court dated 4th April, 1978.
The leave is granted on a limited question as regards the question of interpretation of sub clause .
(m) of Section 111 of the ( 'Act ' for short).
The appellants imported 27 knitting machines as the appellants owns a hosiery factory in 1972.
The appellants held an import licence for import of knitting machinery.
According to the Customs authorities the machinery was not new as the licence permitted to import, but was old reconditioned.
The Customs authorities also held that the price shown by the appellant on the basis of invoice was much lower than what the price actually should be.
The price shown by the appellant on the basis of invoice was Rs.77441 whereas according.
to the Customs authorities the price came to Rs.2,98,359.
On this basis, a show cause notice was issued and after hearing the appellant, the Collector of Customs Bombay by order dated 29.12.73 found that the appellants had committed breach of Section 111(d) of the Act and also Section 111(m) of the Act and for both the counts the penalty was imposed on the appellants.
Under Section 111(d) the penalty imposed was Rs.1,12,000 in lieu of confiscation of goods and for breach Section 111(m) a penalty of Rs. 1.47,000 was imposed under Section 112 of the Act.
Against this order passed by the Collector of Customs, an appeal was filed by the appellants before the Board and the Board maintained the order passed by the Collector of Customs.
On revision, the Central Government reduced the penalty from Rs.1,47.000 to Rs. One lac only.
Against this the appellant preferred a writ petition before the Delhi High Court which was dismissed by a Division Bench of the High Court by its judgment dated 4th April, 1978 and aggrieved by this the present appeal has been preferred.
So far as the penalty under Section 111(d) in lieu of confiscation was concerned, the leave has not been granted and it is not disputed that the appellants have taken away the goods after paying the duty and in this appeal therefore we are not concerned with it.
The only challenge before us therefore is in respect of penalty of Rs. One lac imposed under Section 111(m) of the Act.
It is not disputed that Section 111(m) of the Act has been amended in 1973 by Act No. 36 of 1973 but this amendment will not be applicable to the present case.
Section 111(m) as it stood before the amendment reads as under: 700 "Any dutiable or prohibited goods which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof." and After the Amendment Act 1973 this provision now reads like: "any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof.
" It is therefore clear that the word 'value ' was inserted in this provision.
Before the insertion of this word 'value '; Section 111(m) appears to mean that if the dutiable or prohibited goods are imported which do not correspond in any material particular with the entry made under Section 46 of the Act and in case of baggage with the declaration made under Section 77, then alone Section 111(m) could be attracted: Section 46 of the Act provides: "46(1) The importer of any goods, other than goods in tended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form: Provided that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs or (b) to deposit the goods in a public warehouse appointed under Section 57 without warehousing the same.
XX XX XX XX XX XX XX XX XX XX XX XX (4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to MANOHAR 701 the truth of the contents of such bill of entry and shall, in A support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods.
" XX XX XX XX It is in respect of this that Section 111(m) indicated that wherever goods actually imported are different in material particulars than the goods which were shown in the bill of entry or a declaration as contemplated in Section 46 then it will be a breach of Section 111(m).
The difference in particulars could be in respect of anything but value, as this sub clause clearly show that the difference in value could not be made the basis of breach of this sub clause before the amendment of 1973, when the term 'value ' has been introduced into this sub clause.
It was contended by the learned counsel for the appellants that in fact in the decision of this Court in Union of India & ors.
vs M/s Rai Bahadur Shree Ram Durga Prasad (P) Ltd. & ors.
; , this Court considered the question of description and came to the conclusion that a penal provision has to be construed strictly and in absence of specific words requiring 'value ' to be mentioned, it could not be inferred that any difference in value could be made the basis of penalty.
Whereas learned counsel appearing for the respondents contended that although the term 'value ' was not in Sec.
111(m) of the Act before the amendment but that will make no difference as according to him even without the term 'value ' a mis description could be interpreted to be a mis description on the basis of value stated and ultimately the goods found to be of a higher value.
By the amendment the Legislature had only tried to explain or clarify the position and he contended that this was the view taken by the High Court while considering this question.
In Union of India 's case the Court held: "If we are to hold that every declaration which does not state accurately the full export value of the goods exported is a contravention of the restrictions imposed by section 12(1) then all exports on consignment basis must be held to contravene the restrictions imposed by section 12(1).
Admittedly section 12(1) governs every type of export.
Again it is hard to believe that the legislature intended that any minor mistake in giving the full export value should be penalised in the manner provided in section 23(A).
The wording of section 12(1) does 702 not support such a conclusion.
Such a conclusion does not accord with the purpose of section 12(1).
It is true that the regulations contained in the Act are enacted in the economic and financial interest of this country.
The contravention of those regulations which we were told are widespread are affecting vital economic interest of this country.
Therefore the rigour and sanctity of those regulations should be maintained but at the same time it should not be forgotten that section 12(1) is a penal section.
The true rule of construction of a section like section 12(1) is, if we may say so with respect, as mentioned by Plowman, J. in Re H.P.C. Productions Ltd. [1962] Ch.
Dn. 466 at 473.
" It is therefore clear that their Lordships relied on the rule of construction holding that penal provision has to be strictly construed and held that where the provision itself did not require the value to be stated for any error in respect of that, no penalty could be imposed.
Learned counsel contended that it was because of this decision that the Amendment Act 1973 was passed by the Parliament and the term 'value ' was inserted in Sec.
111(m) of the Act.
Learned counsel referred to objects and Reasons for the amendment mentioned in the Bill, which resulted in Act No. 36 of 1973.
The material words mentioned in the objects and Reasons for the amendment as stated in the Bill reads as under "The amendments to these Acts proposed in the Bill mainly seek to make the punishments prescribed thereunder more severe and to make certain other provisions the rein with regard to the rules of evidence and procedure with a view to removing the loopholes noticed in the working of these Acts and making their enforcement more effective.
The notes on clauses explain in detail the various provisions of the Bill.
Clause(2).
This clause seeks to amend Section 111 of the , with a view to providing for the confiscation of goods in cases of mis declaration of the value or imported goods irrespective of whether or not such goods 703 are dutiable or prohibited, in order to cover cases of over invoiced imports.
" It is not in dispute that in order to interpret a particular provision and to infer the intention of the Legislature, the objects and Reasons stated in the bill, when it is presented to the Legislature, could be used.
In this view of the matter it appears that before the amendment in 1973, Sec.
111(m) did not contemplate any difference in material particulars in respect of value but it referred matters other than the value.
It is not disputed that penalty under Sec.
111(m) has been imposed solely on the ground that the price shown by the appellant in the declaration was much less than what was ultimately found by the Department to be the price of imported goods and in respect of this difference of price, it was held that there is a difference in material particulars which brought the matter within the mischief of Sec.
111(m) of the Act.
But in view of the fact that the term 'value ' was not in Sec.
111(m) before the amendment of 1973 this difference on the basis of value could not be said to be a difference in material particulars within the meaning of the language of Sec.
111(m) and in this view of the matter, the view taken by the authorities could not be maintained.
The High Court in its judgment realising this difficulty observed that this amendment where the term 'value ' has now been inserted is merely explanatory and that was what was also contended by learned counsel for the respondents.
It is not in dispute that a penal provision has to be strictly construed and reading Sec.
111(m) before the amendment it is not possible to draw an inference that any difference in material particulars may be referable to 'value '.
This argument therefore can not be accepted.
The scheme of Sec.
111(m) as it stood then nowhere referred to the difference of value as one of the ingredients which may attract this provision.
In such a situation therefore if it was not the specific intention of the provision, a difference in respect of value therefore could not be said to attract this provision and on that basis no penalty could be imposed.
704 The appeal is allowed and the orders passed by the Collector, Board, Central Government and the High Court are hereby set aside.
The penalty imposed on the appellants under Sec.
111(m) read with Sec.
112 is hereby quashed.
The appellant shall be entitled to get refund of the penalty if already deposited.
No order as to costs.
A.P.J. Appeals allowed.

summary/full:
The appellants, owners of a hosiery factory, imported 27 knitting machines in 1972 under the import licence held by them.
According to the Customs authorities the machinery was not new as the licence permitted to import, but was old reconditioned, and that the price shown was much lower than the actual value.
After hearing the appellants, the Collector of Customs found that the appellants had committed breach of section l l l(d) and also of section l ll(m) of the and for both the counts he imposed the penalty, which was maintained by the Board.
On revision the Central Government reduced the penalty from Rs. 1,47,000 to Rs. 1,00,000 which had been imposed for breach of section 111 (m).
A writ petition filed by the appellants was dismissed by the High Court.
In the appeal to this Court, on behalf of the appellants it was contended that a penal provision has to be construed strictly and in absence of specific words requiring 'value ' to be mentioned, it could not be inferred that any difference in value could be made the basis of penalty.
On behalf of the respondents it was contended that although the term 'value ' was not in section 1 l l(m) before the 1973 amendment but that will make no difference as even without the term 'value ' a mis description could be interpreted to be a mis description on the basis of value stated and ultimately the goods found to be of a higher value.
By the amendment the Legislature had only tried to explain or clarify the position.
698 Allowing the Appeals, the Court, ^ HELD: 1.
The impugned orders are set aside and the penalty imposed on the appellants under section Ill(m) read with section 111(d) of the is quashed.
[704A B] 2.
Before the amendment in 1973, section 111(m) did not contemplate any difference in material particulars in respect of value but it referred matters other than the value.
[703B C] 3.
Unamended section 111(m) indicated that wherever goods actually imported are different in material particulars than the goods which were shown in the bill of entry or a declaration as contemplated in section 46 then it will be a breach of section 11 l(m).
The difference in particulars could be in respect of anything but value, as this sub clause clearly shows that the difference in value could not be made the basis of breach of this sub clause before the amendment of 1973, when the term 'value ' has been introduced into this sub clause.
[70 1 B C ] 4.
In order to interpret a particular provision and to infer the intention of the Legislature, the objects and Reasons stated in the Bill, when it is presented to the Legislature, could be used.
[703B ] 5.
The amendment inserting the term 'value ' in section 111(m) cannot be said to be explanatory.
[703Fl Union of India & ors.
vs M/s. Rai Bahadur Shree Ram Durga Prasad (P) Ltd. & ors.
; , , relied upon.


judgement:
Civil Appeal No. 2843 of 1986 From the Judgment and Order dated 17.12.1982 of the Punjab & Haryana High Court in Civil Writ Petition No. 5548 of 1982.
V.M. Tarkunde, Raian Karanjawala, Mrs. M. Karanjawala and Ejaz Mazbooi for the Appellant.
Naunit Lal for the Respondents.
The Judgment of the Court was delivered by 619 OZA,J.
Leave granted.
This appeal arises out of the judgment of the High Court of Punjab and Haryana in Civil Writ Petition No. 5548 of 1982 dated 17.12.1982.
The appellant is a shopkeeper occupying Shop No. 13 situated on the road along side the Railway Line, Golebagh site in the city of Amritsar.
There are 56 other shops similarly situated which are occupied by other allottees like the petitioner.
The premises in occupation of the petitioner and other shopkeepers are on licences given by the Railway since April 1981.
After the sanction was given to Railway for construction of these shops some dispute arose and the Corporation chose to revoke the sanction and ultimately as a result of litigation the present petitioner and the other shopkeepers similarly situated were given a notice to show cause by the Municipal Corporation, Amritsar and under section 269(i) of the Punjab Municipal Corporation Act, 1976.
This was a composite notice also under Section 270(1) of the said Act.
The petitioner received this notice along with other shopkeepers in the first half of October 1981.
The petitioner and other shopkeepers submitted their replies to the Commissioner of Municipal Corporation and the Commissioner passed an Order directing the demolition of the shops on 9.11.1981.
This order was served on the petitioner and all other shopkeepers.
The petitioner being aggrieved by this order preferred an appeal before the District Judge under Section 269 sub clause (2).
In this appeal before the District Judge the District Judge rejected an application submitted by the petitioner for recording of evidence and it was against this order passed by the District Judge that the petitioner filed a writ petition before the High Court wherein the Division Bench of the High Court took a view that if the District Judge so feels the application for recording of evidence could be considered under Order 41 Rule 27.
The only question raised in this appeal is about the interpretation of Section 384.
It was contended before us by the learned counsel for the appellant that in view of the language of Section 384 of the Punjab Municipal Corporation Act, 1976 in this appeal before the District Judge the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed and on the basis of this provision it was contended that the District Judge was bound to follow the procedure of a civil suit thereby framing of issues and recording of evidence 620 is necessary whereas the learned counsel for the respondent Municipal Corporation contended that the language of Section 384 only provides that in these proceedings before the District Judge the procedure of a civil suit as far as possible will be followed.
It was, therefore, contended that the expression "civil suit" in Section 384 includes an appeal as an appeal is nothing but a continuation of proceedings of the civil suit and therefore the meaning of Section 384 could only be that in case of appeal the procedure of appeal under the Code of Civil Procedure shall be followed.
Learned counsel for the parties also draw our attention to various facts and the manner in which the shops were initially allotted and the grievance that the Municipal Corporation had about the allotment of these shops to the particular persons.
But in our opinion those are matters not relevant for the purpose of decision of this case.
The only question that arises is as to whether in an appeal filed under Section 269 sub clause (2) the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of language of Section 384 of the Punjab Municipal Corporation Act, 1976.
Section 384 reads as follows: "The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the court of the District Judge under this Act or any bye law made thereunder.
" This provision talks of the procedure provided in the Code of Civil Procedure in regard to a suit shall be followed but it also refers to "as far as it can be made applicable" and the phrase that follows refers to an application, appeal or reference.
This, therefore, clearly indicates that in the appeal, application or reference the same procedure need not be followed although it talks of the procedure of a civil suit but it is also mentioned that as far as it can be made applicable this goes to show that the procedure of a civil suit will have to be followed if it is consistent with the proceedings pending before the District Judge.
The suit has not been specifically defined in the Code and from the scheme of the Code of Civil Procedure it appears that an appeal also is a continuation of the suit.
The language used in Section 384 621 therefore only indicates that the procedure as comtemplated in the Code of Civil Procedure will have to be followed in these proceedings under this Act when the matter goes to the District Judge either by way of an application, reference or appeal.
The procedure of this suit will include even the procedure of an appeal and it is because of this that the phrase as far as it can be made applicable has been used in this section.
It, therefore, could not be contended that in an appeal under Section 269 sub clause (2) before a District Judge the procedure of a suit as provided in the Code of Civil Procedure (filing of plaint, written statements, issues, recording of evidence) will be necessary.
The three proceedings contemplated in Section 384 are application, reference and appeal and therefore out of the scheme of the Code of Civil Procedure pertaining to the procedure of a civil suit or an appeal the relevant provisions will have to be applied for purposes of guidance of procedure and therefore the use of the phrase as far as it can be made applicable clearly indicates that it is not expected in any one of these proceedings to follow the procedure of a suit technically and strictly in accordance with the provisions contained in the Code of Civil Procedure.
It is only for purposes of guidance that the procedure of a suit as provided in the Code of Civil Procedure can be considered and it will be the discretion of the authority (the District Judge) to apply as far as it could be applied in the appropriate proceedings.
In our view, therefore, what High Court said, appears to be proper as the High Court stated in the impugned judgment that if the District Judge so feels, he may allow any additional evidence to be led under Order 41 Rule 27 of the Code of Civil Procedure.
In fact, it would be enough to say that in an appropriate case whenever the District Judge feels satisfied he may give an opportunity to the parties to lead evidence as it will be open to the District Judge to apply the procedure as far as it can be made applicable in the facts and circumstances of each case.
We, therefore, see no substance in this appeal.
It is, therefore, dismissed.
In the circumstances, no order as to costs.
P.S.S. Appeal dismissed.

summary/full:
Section 384 of the Punjab Municipal Corporation Act 1976 states that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the District Judge under the Act or any bye law made thereunder.
A dispute between the Railways and the Municipal Corporation resulted in revocation of the sanction for construction of certain shops situated on the road along side the railway line in the city of Amritsar.
Subsequently, the Municipal Commissioner passed an order directing demolition of these shops.
The appellant, who is an allottee of one of these shops on licence from the Railways, being aggrieved by that order preferred an appeal before the District Judge under section 269(2) of the Act.
In that appeal, the District Judge rejected an application submitted by the appellant for recording of evidence.
The appellant filed a writ petition against that order before the High Court which took the view that if the District Judge so feels the application for recording of evidence could be considered under Order 41, Rule.27 of the Code of Civil Procedure.
In the appeal by Special Leave to this Court on the question: 618 Whether in an appeal filed under section 269(2) of the Punjab Municipal Corporation Act 1976, the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of the language of section 384 of the 1976 Act.
Dismissing the Appeal, the Court, ^ HELD: The language used in section 384 of the Punjab Municipal Corporation Act 1976 only indicates that the procedure as provided in the Code of Civil Procedure in regard to a suit will have to be followed in proceedings under that Act when the matter goes to the District Judge either by way of an application, reference or appeal.
The use of the phrase "as far as it can be made applicable" in that section goes to show that it is not expected in any one of the proceedings contemplated therein that is, applications, appeals and references to follow the procedure of a suit technically and strictly in accordance with the provisions contained in the Code of Civil Procedure.
It is only for the purposes of guidance that the procedure of a suit as Provided in the Code of Civil Procedure can be considered.
[621A B; C D] In an appropriate case whenever the District Judge feels satisfied he may give an opportunity to the parties to lead evidence under Order 41, Rule 27 of the Code of Civil Procedure, as it will be open to him to apply the procedure as far as it can be made applicable in the facts and circumstances of each case.
[621E F] It, therefore, could not be said that in an appeal under section 269 sub cl.(2) before a District Judge the procedure of a suit as provided in the Code of Civil Procedure will be necessary.
[621B C]