judgement:
Appeal No. 11 of 1971.
Appeal by Special Leave from the judgment and order dated March 26, 1970 of the Kerala High Court in Writ Appeal No. 197 of 1968.
Appellant appeared in person.
Gobind Dass and section P. Nayar, for the Respondent.
The Judgment of the Court was delivered by Hedge, J.
, This is an appeal by special leave.
The appellant was a Preventive Officer, Grade, 11, Customs Office, Cochin from June 16, 1962 to January 31, 1963.
In April 1962, he applied to the Assistant Collector of Customs, seeking permission to allow his wife to run a taxi service.
He was informed that no permission was necessary for his wife to operate a taxi service but he should not canvass any business for his wife.
Thereafter, it is said that the appellant acting on behalf of his wife purchased some cars which were used as taxis.
It appears that there were several ,complaints against the appellant to the effect that he was canvassing business for his wife.
Those complaints were enquired into.
Thereafter on March 25, 1963 the appellant was served with ' a memorandum stating that while functioning as Preventive Officer, Grade II, Cochin Customs House, during the period June 1962 to January 31, 1963 he had contravened the provisions of rule 12(1) of the Central Civil Services (Conduct) Rules, 1955.
The factual allegation made against the appellant was that he canvassed business for his wife.
He was told that an enquiry will be held against him on the basis of that charge.
Sri H. T. Soares, Assistant Collector, Customs House, Cochin was appointed as the Enquiry Officer.
During the pendency of the enquiry an additional ground in support of the charge was 487 served on the appellant to the effect that he himself was running the taxi service.
After enquiry the Enquiry Officer came to the, conclusion that the allegations made against the appellant were established and consequently he was guilty of contravening rule 12(1) of the Central Civil Service (Conduct) Rules, 1955.
The Enquiry Officer recommended appellant 's removal from service.
On the basis of that recommendation the Disciplinary Authority served on the appellant a notice to show cause why he should not be removed from service.
The appellant submitted his explana tion.
But the same was not accepted by the Disciplinary Authority.
In the result the appellant was ordered to be removed from service.
The appellant challenged that order by means of a petition under article 226 of the Constitution before the High Court of Kerala.
His writ petition was first heard by a single judge who dismissed the same and the order of the single _judge was affirmed by a Division Bench of that High Court.
Hence this appeal.
The appellant personally argued his appeal.
He challenged the validity of the order removing him from service on various grounds.
As we are of the opinion that the appellant had not been afforded reasonable opportunity to present his case and consequently the impugned order has to be struck down, we do not think it necessary to examine other contentions advanced by the appellant.
The appellant who was a member of the civil service of the Union of India was holding his office during the pleasure of the President; but in view of article 311 of the Constitution, he could not have been removed from service except after enquiry in which he had been given a reasonable opportunity of being heard in respect of the charge levelled against him.
This procedural guarantee is undoubtedly a valuable one.
Breach of that guarantee vitiates the enquiry.
Removal from service is a major penalty.
Procedure for imposing major penalties is prescribed in rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, a rule framed under article 309 of the Constitution.
Sub rule (5) of that rule provides "The Disciplinary Authority may nominate any, person to present the case in support of the charges before the authority inquiring into the charges (herein ' after referred to as the Inquiring Authority).
The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by 488 the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case , so permits.
" This rule bears upon the reasonable opportunity contemplated by article 311.
The validity of; this rule was not challenged.
Hence all that we have to see is whether the rule had been complied with.
For deciding this question it is necessary to refer to the relevant facts.
In September 1963, one A. M. Shivaraman was appointed as the officer to present the case before the Enquiry Officer in support of the allegations made against the appellant.
The said Shivaraman was a trained police prosecutor.
After he was appointed to present the case in support of the allegations made against the appellant, the appellant wrote to the Collector of Customs, Cochin, the Disciplinary Authority on October 4, 1963 as follows : "From : C. L. Subramanlam, Preventive Officer, Customs House, Cochin 3.
TO The Collector of Customs, Customs House, Cochin 3.
Sir, Sub : Sec.
1/63 Estt Cus dated 30th September 1963.
In the above memorandum it is stated in paragraph 4, that Shri A. M. Sivaraman as the officer to present the case in support of the allegations against me before the Enquiry Officer.
I understand that Shri A. M. Sivaraman is legally trained to conduct such prosecutions.
Under such circumstances I will be prejudiced in my defence unless I am permitted to engage a counsel to appear and defend me during the enquiry.
Hence I request that permission be accorded to engage a lawyer of my choice to represent and defend the charges before the Enquiry Officer.
Cochin 3, 4 10 1963 Yours faithfully, Sd/ C. L. Subramaniam".
He again reiterated his request for permission to engage a counsel to defend him in his letter to the Assistant Collector on 489 October 9, 1963.
Thereafter he again wrote to the Collector of Customs on October 14, 1963 as follows It may help me very much too, if you can grant the permission I have sought for engaging a Counsel of my choice at an early date so (that I could get the Counsel 's assistance for the inspection of documents too.
" On October 17, 1963, Sri Scares, Assistant Collector of Customs wrote to the appellant thus "Secret 1/1/63 Est.
Cus Custom House, Cochin 3 17th September 1963 From The Assistant Collector of Customs, Appraising Department, Customs House, Cochin 3 TO Shri C.L. Subramaniam, Preventive Officer, Custom House, Cochin 3.
Sub : Establishment Inquiry into the work and conduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin.
With reference to your letter Sc.
1/63/Estt.
Cus dated 14th October 1963, requesting permission for engaging a counsel to appear and defend you, during the enquiry, I am directed by the Collector to inform you that although Shri A. M. Sivaraman is illegally trained, he is not a legal practitioner and hence there is no necessity for engaging a lawyer to defend you at the enquiry.
Sd/ H. T. Soares, Assistant Collector of Customs".
It is clear from that letter that the Disciplinary Authority had overlooked the fact that the appellant sought permission to engage counsel not because Sivaraman wag a legal practitioner but because he was trained prosecutor.
On January 6, 1964, the appellant again wrote to the Collec tor of Customs explaining his difficulties in defending himself.
In Paragraph 4 of that letter, the appellant stated "In the nature of accusations made against me and the nature of their widespread source the importance 490 of the informants and their intentions, the varying types of witnesses supporting the charge, the complicated nature of the evidence, the inexperience I have in assessing the impact of such evidence and in sifting the evidence for preparing an effective cross examination and above all the lurking conspiracy of a series of persons whom I have to deal with firmly in discharging my duties as a Preventive Officer, all these when con sidered can lead you to the only conclusion that if I am denied the assistance of an experienced counsel at the enquiry it would be tantamount to denial of an opportunity to defend myself and prove my innocence.
This 'would be particularly so in the conte xt of the present enquiry where evidence have sought to be brought in by different stages and alleged incidents subsequent to the charges are sought to be proved in support of the allegations made before such incidents." Despite these communications, the appellant was not give permission to engage a legal practitioner to defend himself Therefore the question arises whether the appellant was give reasonable opportunity to defend himself in accordance with sub rule (5) of rule 15 of the Central Civil Services (Classification Control and Appeal) Rules, 1957.
The portion of that rule that is relevant for our present purpose is the last clause which say that the Government servant may not engage a legal practitioner for the purpose mentioned in that clause "unless the Disciplinary Authority having regard to the circumstances of the case so permits".
The grievance of the appellant was that he was pitted again a trained prosecutor and not that Sivaraman was a legal practitioner.
The Disciplinary Authority did not consider that grievance.
It brushed aside the request of the appellant on the ground that Sivaraman was not a legal practitioner, a consideration which was not relied on by the appellant.
The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant.
The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him.
The Disciplinary Authority completely ignored that circumstance.
Therefore that authority clearly failed to exercise the power conferred on it under the rule.
It is not unlikely that the Disciplinary Authority 's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend him self.
491 The appellant contended that he had a right to engage a legal practitioner to defend him.
He sought to spell out that right on, the basis that what he could himself do, he could get it done by an agent of his and a legal practitioner acting for him would only have been his agent.
In support of his contention he placed reliance on the decision in Pet vs Greyhound Racing Association Ltd.(4).
The facts of that case were as follows Track stewards of a greyhound racing stadium owned by the defendants proposed to hold an inquiry into the withdrawal of a trainer 's dog from a race at a stadium licensed by the National Greyhound Racing Club.
The inquiry involved the question whether drugs had been administered to the dog.
The trainer held a licence from the National Greyhound Racing Club entitling him to race dogs on tracks licensed by the club, and thus the result of the inquiry might involve the trainer 's reputation and livelihood.
The rules of the club, to which the trainer had agreed when he obtained his licence, did not prescribe the procedure to be followed by track stewards at their inquiries, and did not exclude legal representation.
The procedure in fact followed at such an inquiry allowed the trainer to be present, to hear the evi dence and to have an opportunity to question witnesses.
The trainer sought to be represented by counsel and solicitor at the enquiry but the track stewards decided ultimately not to allow legal representation.
On appeal from the grant of an interlocutory injunction restraining the inquiry from being held unless the trainer were allowed to be represented, the Court of Appeal held that prima facie the trainer was entitled to an oral hearing and, the inquiry being one of serious importance to him, to be represented as it by counsel and solicitor, for he was entitled not only to appear himself but also to appoint an agent on his behalf, and so was entitled to appoint lawyers to represent him.
Lord Denning, M. R. who delivered the main judgment of the court in the course of his judgment dealing with the decision of stewards that they will not hear lawyers observed "I cannot accept this contention.
The plaintiff is here facing a serious charge.
He is charged either with giving the dog drugs or with not exercising proper control over the dog so that someone else drugged it.
If he is found guilty, he may be suspended or his licence may not be renewed.
, The charge concerns his reputation and his livelihood.
On such an inquiry I think that he is entitled not only to appear by himself but also to appoint an agent to act for him.
Even a prisoner can have his friend.
" (1) 492 Proceeding further the Master of Rolls observed "I should have thought, therefore, that when a man 's reputation or livelihood is at stake, he not only has a right to speak by his own mouth.
He has also a right to speak by counsel or solicitor.
" This decision, in our opinion, does not bear on the point under consideration.
Herein we, are dealing with a statutory rule, which prohibits the appointment of a legal practitioner excepting under certain circumstances.
Hence the agency theory has no relevance nor are we required to consider the principles of natural justice as those principles are only relevant when the concerned procedure is not regulated by any statute or statutory rule.
The rule laid down in Pet 's case(1) has not commended itself to this Court.
In Kalindi and ors.
vs Tata Locomotive and Engineering Co. Ltd.(2), a question arose whether in an enquiry by management into misconduct of a workman, the workman was entitled to be represented by a representative of the Union.
Answering this question this Court observed that a workman against whom an enquiry is being held by the management has no right to be represented at such an enquiry by a representative of the Union though the employer in his discretion can and may allow him to be so represented.
In such enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not fall to be considered and the workman is best suited to conduct the case.
Ordinarily, in enquiries before domestic tribunals a person accused of any misconduct conducts his own case and so it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of his Union.
The same view was taken by this Court in Brooke Bond India (Private) Ltd. vs Subba Raman (S) and anr.(3).
That view was reiterated again in Dunlop Rubber Co. vs Workmen (4 ).
The learned counsel for the State relied on the decisions mentioned above in support of his contention that the appellant was not entitled to have the assistance of a legal practitioner.
This contention is without force.
In those cases this Court considered, whether a person proceeded against in an enquiry before a domestic tribunal had a right to be represented by someone else on the basis of the principles of natural justice.
Therein this Court was not called upon to consider either the limits of the reasonable opportunity to defend oneself, guaranteed under article 311 or the scope of a statutory rule.
The question that falls for decision in this case did not arise for decision in those cases.
(1) (3) (2) ; (4) ; 493 The appellant supported his complaint of breach of rule 15 (5) on yet another ground.
After the appellant 's request for engaging a counsel was rejected, he requested the Disciplinary Authority to let him have the assistance of Abraham Kurian, clerk, Cochin Head Post Office, Cochin 1.
This request he appears to have made long before the date of enquiry i.e. December 5, 1963.
He had also requested the Disciplinary Authority to move the superiors of Abraham Kurian to grant permission to Abraham Kurian to assist him .
But it appears the Disciplinary Authority wrote to the Superintendent of Post Offices who is stationed at Trichur only on the 28th of November, 1963 requesting him to permit Abraham Kurian to assist the appellant.
That communication was not received by the Superintendent of Post Offices in time.
Hence Abraham Kurian did not get the permission sought before the date of enquiry.
After learning that fact from Abraham Kurian, the appellant wrote the following letter to the Collector of Customs on December 4, 1963.
"Sec. 1/1/63/Estt Cus.
No. 16 Customs Quarters Willingdon island, P.O. Cochin 3.
4th December 1963.
From C. L., Subramaniam, Preventive Officer Gr.
II, Customs House, Cochin 3.
To The Collector of Customs & Central Excise, Custom House, Cochin 3.
Sir, Sub Enquiry into the work and conduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin 3.
With reference to your letter dated 3rd December, 1963 wish to submit as follows Shri Abraham Kurian, Clerk, Cochin Head Post Office who is to assist me in the enquiry from 5 12 1963 in connection with certain allegations pending against me has urgently applied to his superior yesterday itself and is awaiting permission.
494 As I cannot appear for the enquiry without assistance I re quest you Sir, to adjourn the hearing by 10 days.
Thanking you, I remain Sir, Yours faithfully, Sd/ C. L. Subramaniam.
" On the date of the enquiry, the Enquiry Officer adjourned the case sine die after obtaining an undertaking from the appellant that on the next date of the enquiry he would go on with the case even if he was unable to get the assistance of Abraham Kurian on that date.
On December 9, 1963, the appellant wrote to the Enquiry Officer as follows "Sec.
No. 1/1/63 Estt.
9th December 1963 From C. L. Subramaniam, Preventive Officer, Custom House, Cochin 3.
To : The Asstt.
Collector of Customs (Apprg.), Enquiry Officer, Custom House, Cochin 3.
Sir, Sub : Enquiry into the work and conduct of Shri C. L. Subramaniam, Preventive Officer, Custom House Cochin.
I understand from a communication from the Senior Super intendent of Post Offices, Trichur addressed to the Assistant Collector of Customs (Apprg.), Custom House, Cochin with copy endorsed to Shri Abraham Kurian, that your communication informing that the enquiry was to have been held from 5 12 1963 was received by the Senior Superintendent of Post Offices only on 5th December, 1963, and therefore the relief arrangement could not be made by him.
Now that the enquiry is adjourned it is requested that you may be good enough to inform the Senior Superintendent of Post Offices, Trichur (Superior Officer of the Government who assists 495 me) sufficiently early 'as to the date of the enquiry, so that he may relieve the Government servant in time.
It is humbly pointed out that unless your goodself take necessary action in time in this regard it may not be possible to get me the assistance I have requested for.
Yours faithfully, Sd/ 9 12 63 (C. L. Subramaniam)" Even after getting this letter, the Enquiry Officer did not fix the date of the enquiry.
It appears that on December 30, 1963 the Enquiry Officer fixed January 8, 1964 as the date of enquiry.
It is only thereafter he wrote to the Superintendent of Post Offices requesting him to permit Abraham Kurian to assist the appellant.
It is not known when that letter was received by the Superintendent of Post Offices but Abraham Kurian did not get the permission sought, before the date of enquiry.
Therefore he was unable to assist the appellant in the enquiry.
Hence the enquiry went on without the appellant having anybody 's assistance.
From the facts set out above, it is clear that the Enquiry Officer did not afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled to under the rule.
He was deprived of that assistance solely because of the indifferent attitude adopted by the Enquiry Officer.
Therefore we have no hesitation in coming to the conclusion that the Enquiry Officer had clearly breached rule 15(5).
It is needless to say that rule 15 is a mandatory rule.
That rule regulates the guarantee given to Government servants under article 311.
Government servants by and large have no legal training.
At any rate, it is nobody 's case that the appellant had legal training.
Moreover when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be.
The accusation against the appellant threatened his very livelihood.
Any adverse verdict against him was bound to be disastrous to him, as it has proved to be.
In such a situation he cannot be expected to act calmly and with deliberation.
That is why rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another government servant or in appropriate, cases by a legal practitioner.
For the reasons mentioned above, we think that there had ' been a contravention of rule 15(5).
We are also of the opinion 496 that the 'appellant had not been afforded a reasonable opportunity to defend himself.
Hence the impugned order is liable to be struck down and it is hereby struck down.
The facts of this case are not such as to justify any fresh enquiry against the appellant.
Hence we direct that no fresh enquiry shall be held against the appellant and he be restored to the position to which he would have been entitled to but for the impugned order.
The appeal is accordingly allowed.
The appellant is entitled to his costs from the respondents both in this Court as well as in the High Court.
S.C. Appeal allowed.

summary/full:
The appellant, a preventive officer, applied for permission to allow his wife to run a taxi service.
He was informed that no permission was necessary.
Thereafter, appellant acting on behalf of his wife, purchased a few cars which were used as taxis.
Later several complaints were made against him to the effect that he was canvassing business for his wife.
Enquiry was made and the appellant was served with a memorandum stating that while functioning as Preventive Officer he had contravened the provisions of Rule 12(1) of the Central Civil Services (Conduct) Rules 1955.
The factual allegation made against him was that he canvassed business for his wife.
An Enquiry Officer was appointed.
On enquiry the appellant was found guilty of contravening rule 12(1) of the Central Civil Service (Conduct) Rules 1955, and his removal from service was recommended.
On the basis of that recommendation, the Disciplinary Authority served on the appellant a notice to show cause why he should not be removed from service.
The appellant submitted his explanation; but the Disciplinary was not satisfied and consequently, the appellant.
was removed from service.
The appellant challenged the order by a writ petition which was dismissed both by a single judge as well as by a Division Bench of the High Court.
On appeal to this Court, it was contended by the appellant that he was not given a reasonable opportunity of being heard in respect of the charge levelled against him and there was a violation of rule 15 of ,the Central Civil Services (Classification, Control & Appeal) Rules 1957 and article 311 of the Constitution.
Hence the order of removal was bad in law One trained police prosecutor, was appointed as the officer to present the case before the Enquiry Officer in support of the allegations made against the appellant.
Therefore, the appellant wrote to the Disciplinary Authority for permission to engage a counsel to defend his case, but even after a number of written requests, he was not given the permission to engage a legal practitioner to defend himself.
Further, the appellant was denied the assistance of a government servant.
Allowing the appeal, HELD:(i) In the facts and circumstances of the case, it was clear that the appellant had not been afforded a reasonable opportunity to defend himself.
The grievance of the appellant that he was pitted against a trained prosecutor was not considered by the Disciplinary authority.
The fact that the case against the appellant was being hand led by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against 3 L1031SupCI/72 486 him.
The disciplinary authority completely ignored that circumstance.
Therefore, that authority clearly failed to exercise the power conferred on it under the rule.
[490 G] (ii)There had been a clear violation of rule 15(5) of the Central Civil Service (Classification, Control & Appeal).
Rules 1957 which provides for the engagement of a legal practitioner in certain circumstances.
The present case required that the appellant be given a chance to defend himself by a legal practitioner.
Since he was denied such an opportunity, the order was bad and therefore, it should be struct down.
1495 HI Pet.
vs Greyhound Racing Assn.
Ltd., ; Kalindi Ors.
vs Tata Locomotive & Engineering Co. Ltd, ; ; Brooke Bond India Private Ltd. vs Subba Ramman (S) & another, , discussed and distinguished.


judgement:
iminal Appeal No.51 of 1968.
Appeal by special leave from the judgment and order dated February 2, 1968 of the Bombay High Court in Criminal Application No. 393 of 1967.
Appellant appeared in person.
M.C. Bhandare, section B. Wad and, B. D. Sharma, for the respondent.
The Judgement of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the Bombay High Court finding the appellant who is an Advocate, guilty of contempt of court and sentencing him to simple imprisonment for a term of four weeks and a fine of 538 Rs. 1,000/ .
It was directed that in default of payment of the fine he would have to undergo simple imprisonment for a further period of four weeks.
He was also ordered to pay the costs of the Assistant Government Pleader in the High Court and the Government Pleader before the Sessions Judge.
The material facts may be stated: In March 1966 a suit was filed against the appellant by D. N. Santani who is also an Advocate for recovery of Rs. 640/ in the court of the Civil Judge, Junior Division, kalyan.
The plaintiff in that suit had engaged H. I. Jagiasi as his Advocate.
In the written statement filed by the appellant he made certain allegations against Jagiasi and alleged inter alia that the latter was responsible for the suit.
Jagiasi filed a criminal complaint for defamation in August 1966 against the appellant in the court of Shri P. D. Sayyid, Judicial Magistrate at Kalyan.
The appellant has set out a number of incidents and matters in his petition for special leave to appeal which it is not necessary for our purpose to mention.
It would suffice to say that on October 15, 1966 the appellant filed an application before the Judicial Magistrate saying that he intended to apply for transfer of the case to some other court.
On October 28, 1966 he presented a transfer application in the court of the Sessions Judge.
Thana.
The transfer application was ultimately dismissed by the Assistant, Judge and Additional Sessions Judge on March 8, 1967 before whom it came up for disposal.
Meanwhile it appears that the appellant applied for transfer of the civil suit which had been filed by D. R. Santani to the court of the District Judge.
The suit was stayed and we have been informed that ultimately it was transferred sometime in the year 1967 from the court of Shri M. B. `Baadkar from whose court transfer was sought.
It has further been stated at the Bar and that statement has not been challenged that the civil suit was ultimately dismissed in August 1969.
While dismissing the transfer application of the appellant in the criminal complaint filed by Jagiasi in the, court of Shri P. D. Sayyid the Additional Sessions Judge recorded an order that a report be submitted to the High Court for "considering the conduct of the appellant and the course adopted by him in making the transfer application and in making amputations or aspersions against the Judicial Officers and to take action for contempt of court under section 3 (2) of the , hereinafter called the 'Act '.
This was done after reproducing three paragraphs from the transfer application and expressing an opinion that the appellant had attempted to attack the integrity and honesty of the courts of the Judicial Magistrate and the Civil Judge and to scandalize and to malign the same.
The High Court made an 539 order on December 1, 1967.
The following part of that order may be reproduced "He made an application to the Sessions Judge for transfer of the proceedings to another Court and the ground objected to by the learned Sessions Judge is as follows : "The Magistrate below is on friendly relations with the complainant the respondent No. 1 in the present petition and he even enjoys the hospitality of the respondent No. 1 some times alone and some times in company of the, Civil Judge J. D. Kalyan (Shri M. B. Baadkar) whois also on friendly relations with the respondent No.1 and who also enjoys the hospitality of the respondent No. 1 The learned Sessions Judge had called for report from the Magistrate Mr. P. D. Sawed and was apparently satisfied after consideration of all the affidavits produced before him that the allegations was baseless.
He, there , fore,, referred the matter to this court for suitable action being taken against the respondent Advocate for his making such allegations and interfering with the course of justice and scandalizing or maligning the Courts below '.
It was further stated in that order that the appellant had asked for an opportunity to establish the truth of the allegation made above which had been made, both "because of his personal knowledge and also because of information obtained from others".
A list of witnesses was furnished by the appellant whom he proposed to examine.
The High Court directed the District Judge to regard the evidence and to submit his report along with the evidence and the reports of the two judges.
It was expressly stated that the inquiry was to be confined to the allegations which had been quoted above.
The show cause notice which was issued to the appellant by the High Court (omitting unnecessary portions) was as follows : "Whereas" upon reading letter No. 2434, dated 5th April, 1967 forwarded by the 2nd Addl.
Sessions Judge, Thana along with the Record and proceedings of Cri.
Transfer Application No. 108/66 on his file and the Record and Proceedings in Cri.
Case No. 2949 of 1966 of the Court of the Judicial Magistrate, F. C. Kalyan, requesting to take action under the against the Advocate Mr. G. L. Bhatia, who has made serious allegations against the Judicial 540 Officers Shri Baadkar and Shri Sayyad in Transfer Cri.
Application No. ' 108/66 in para one in the Court of the 2nd Addl.
Sessions Judge, Thana, etc., And whereas this Court has on 15th June 1967, passed the following order : "Notice to Mr. Bhatia Advocate to show cause why action for contempt of Court should not be taken against him.
Notice to G. P. also.
A copy of D. J. 's letter to, be sent to Mr. Bhatia along with the notice.
" The District Judge in accordance with the orders of the High Court submitted a report giving his own findings on the evidence recorded by him and.
also after taking into consideration the reports of Sarvshri Baadkar and Sayvid which had been called for from them apparently after the witnesses produced by the appellant had given their evidence and copies of their depositions had been sent to the two Judges.
The appellant raised two preliminary objections before the High Court.
The first was that the District Judge could only submit a record of evidence and could not give his findings and, secondly, he could not take into consideration the reports of the two judges which had not been shown to the appellant.
Another objection raised was that the reports of the Judicial Officers could not have been relied upon because the appellant had no opportunity to cross examine them.
The High Court repelled all these objections.
From the statement of preliminary facts it is clear that the High Court relied only on the allegations contained in para 1 of the application of transfer which have already been set out before and contents of which were that Shri Sayyid was on friendly relations with Jagiasi and that he had even enjoyed his hospitality sometimes alone and sometimes in the company of Shri Baadkar.
We have laid a certain amount of stress on the aforesaid allegation made in para 1 of the transfer application because that application consisted in substance of three paragraphs.
It will be desirable, owing to the nature of this case, to set out all the allegations made in the transfer application 1."The Magistrate below is on friendly relations with the complainant the Respondent No. 1 in the present petition and he even enjoys the hospitality of the Respondent No. 1 some times alone and some times in company of the Civil Judge J. D. Kalyan (Shri M. B. Baadkar) who is also on friendly relations with the Respondent No. 1 and who also enjoys the hospitality of the Respondent No. 1.
541 2.
The Magistrate below is prejudiced against the present application.
3.The Magistrate below has not taken and does not appear to take impartial disinterested view of the case in question.
(a) Evidently the complainant was not actuated by mere or bonafide professional interest.
He was the author of false litigation for a false and fabricated claim.
That matter Suit No. 213 of 1966 was still pending hearing and adjudication.
The com plaint in question could not as such be filed in all fairness and it ought not to have been entertained at least without the preliminary enquiries or at any rate it ought to have been stayed.
(b) That was not done and the process was ordained to be urgently issued and served and the socalled summons was served on the applicant a day or two 'before the date of hearing to harass and handicap him in his professional commitments.
(c) Even the said summons was not accompanied by copy of the complaint as mandatorily required by section 204(b) of the Code of Criminal Procedure, and the applicant was left guessing as to what the said summons related to.
(d) On 15th October 1966 when the case in question was Sr.
No. 10 12 on the Board and it was preceded by even part heard cases the trial Magistrate did not permit this application even leave for a while to enable him to go to Civil Court at a distance of furlong or so to obtain leave of the Court from his professional engagements and the trial Magistrate observed that he would "take up the case there and then and just now" and in the next moment the complainant was in the Box ready for "finishing" the case as though by previous understanding.
4.The applicant respectfully refrains from entering into further details in this regard and he would do the same if called upon.
For the present suffice to say that in view of what is stated above there is well founded apprehension in the mind of the applicant he would not get justice unless the case is transferred to some other Court of the competent jurisdiction".
542 The question which immediately arises is whether an allegation of the nature made in para (1) in the circumstances of the present case in a 'transfer application would amount to contempt of the two judges Sarvshri Sayyid and Baadkar.
The High Court made a detailed examination of the evidence adduced before the District Judge and also relied on the reports of Sarvshri Sayyid and Baadkar.
It came to the conclusion that the allegations made by the appellant had not been proved.
It was observed that these allegations "in the above quoted paragraph" which means paragraph 1 were quite serious.
The High Court was also influenced by the fact that the appellant had "pitched the case higher and tried to prove that the two judges concerned were continuously receiving from Mr. Jagiasi presents of large value in the shape of sarees and other articles and thus receiving bribes so as to indiscreetly favour Mr. Jagiasi and the litigants whom he represented in their Court".
The appellant was not even willing to tender an apology and his position as an Advocate was naturally regarded as making the contempt all the more serious.
The appellant, who has argued the case himself, has raised the following main contentions : 1.The Act is unconstitutional and invalid.
It violates Articles 20 and 21 of the Constitution.
2.No procedure has been provided in the Act and therefore if is bad.
3.Even the normal procedure which should be followed in such cases has not been followed.
4.The High Court was not entitled to call for a report from the District Judge or to delegate its functions ,including the examination of witnesses to the District Judge.
5.The show cause notice issued by the High Court containing the charge of contempt was confined only to paragraph 1 of the transfer application.
The statements made in that paragraph could not by themselves constitute contempt.
In our opinion it is wholly unnecessary to decide points 1 to 4 because the appellant must succeed on the 5th point.
This court has, after a review of all the relevant decisions, laid down in Perspective Publications (P) Ltd. & Anr.
vs State of Maha rashtra(1), inter alia, the following principles : 1.It will not be right to say that the committals for contempt for scandalizing the, court have become obsolete.
(1) ; 543 2.The summary jurisdiction by way of contempt must be exercised with great care caution and only when its exercise is necessary for the proper administration of law and justice.
3.It is open to any one to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him.
4.A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court.
The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculat ed to interfere with the due course of justice or the proper administration of law by his, court.
It is only in the latter case that it will be punishable as contempt.
5."Alternatively the test will be whether the wrong is, done to the judge personally or it is done to the public.
To borrow from the language of Mukherjea J., (as he then was,) Brahma Prakash Sharma 's case the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court 's administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties".
In that case it was held that the imputation in an article of impropriety, lack of integrity and oblique motives to a judge of the High Court in the matter of deciding a suit constituted contempt of court.
The question whether an action can be taken under section 3 of the Act if in a transfer application allegations are made against a judge which are of such nature as to constitute contempt of his court does not appear to be res Integra.
In State of Madhya Pradesh vs Revashankar(1) aspersions of a serious nature had been made against a Magistrate in a transfer petition.
, One of such aspersions was that the Magistrate in whose court the proceedings were pending was a party to a conspiracy with certain others the object of which was to implicate, the complainant in a false case of theft and that a lawyer appearing for the accused persons in whose favour the Magistrate, was inclined, had declared (1) 544 that he had paid a sum of Rs. 500/ to the Magistrate.
It was also asserted that the applicant was sure that he would not get impartial and legal justice from the Magistrate.
It was held that the aspersions taken at their face value amounted to what is called ' scandalizing the court ' itself and the attack on the Magistrate tended to create distrust in the popular mind and impair the confidence of the people in the courts.
This decisions is quite apposite for the purposes of the present case.
It decides that allegations made even in a transfer application casting aspersions on a judicial officer can constitute contempt of his court within section 3 of the Act.
It is difficult to comprehend that the mere statement that a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will constitute contempt unless there is an imputation of some improper motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of the people in the courts.
The allegations contained in para 1 of the transfer application may or may not amount to defamation of the two judges, namely, Sarvashri Sayyid and Baadkar but to constitute contempt the other tests which have been discussed above must be fulfilled.
As noticed before the High Court confined the action, which was to be taken, only to the matter stated in paragraph 1 and did not choose or decide to include or consider paragraphs 2 or 3 either in the show cause notice or in the judgment the following part of which may be reproduced: .
"We have considered the whole of the evidence on record that can be relied upon on behalf of the condemner on the one side and by the State in support of the case for action against the condemner.
We have with some anxiety considered the arguments advanced by the contemner in support of his case that the evidence is sufficient to prove the allegations made by the contemner in the above quoted paragraph.
We find it impossible to hold in his favour that he has proved that Mr. Sayyid had friendly relations with Mr. Jagiasi and was enjoying the hospitality of Mr. Jagiasi either alone or in company with Mr. Baadkar.
He has failed to prove that Mr. Baadkar had friendly relations with Mr. Jagiasi and enjoyed the hospitality of Mr. Jagiasi".
It is true that a party cannot make such allegations even in a transfer application which may fall within the rule laid down in Revashankar 's(1) case or in the Perspective Publication 's case(2) and which may amount to scandalizing the court in the sense pointed out in these decisions.
In the State vs The Editors & (1) (2) [1969] 2 S.C.R.779.
545 Publishers of Eastern Times and Prajatantra(1), Jagannadhadas C.J. (as he then was) delivering the judgement of the Division Bench, after an exhaustive examination of the decided cases where the jurisdiction of the court for this, class of contempt had in fact been exercised, observed "A review of the cases in which a contempt committed by way of scandalising the court has been taken notice of, for punishment, shows clearly that the exercise of the punitive jurisdiction is confined to cases of very grave and scurrilous attack on the court or on the Judges in their judicial capacity, the ignoring of which would only result in encouraging a repetition of the same with a sense of impunity and which would thereby result in lowering the prestige and authority of the court".
There are not many decisions in which punishment has been inflicted for committing contempt of court by making scurrilous allegations in an application for transfer of a case from one court to another.
Mention may, however, be made of one of such cases: Swarnamayi Panigrahi vs B. Nayak & Ors.
(2) There, during the pendency of certain rent suits filed before the Rent Suit Collector by the landlord, who was the wife of the Chief Justice of the Orissa High Court, the tenant filed certain transfer applications before the Additional District Collector making statements like these : "1.
The lower court openly identified himself with 'the plaintiff Shrimati Swammayi Panigrahi and is so partial to her that no justice or impartial decision can be expected from him; 2.He has gone out of the course prescribed by law and has taken over the function of witness and court in himself in such a way that there is no parallel to it in the history of litigation in India; and 3.That opposite party wields extraordinary in fluence in the State as she is the wife of Shri Lingarai Panigrahi Chief Justice of Orissa High Court.
It is being openly talked about that the conclusions are foregone".
It was observed that though some latitude has to 'be given in a transfer application but the question was whether or not the applicant in that case had exceeded the limits permissible under the law.
As a rule applications for transfer were not made merely (1) (2) A.I.R 1959 Orissa 89.
546 because the trying judge was alleged to be incompetent but there may be circumstances beyond the judge 's control such as the acquaintance with one of the parties or personal interest in the subject matter of the proceedings which in law would be considered as preventing him from giving an unbiased decision.
It was held that the, applicant had exceeded the limits and had gone out of his way not only to malign the personal integrity and judicial honesty of the lower court but had also directly attacked the whole administration of justice headed by the Chief Justice of the State.
It is noteworthy that on an allegation made in a transfer application the judge against whom the allegation is made is often afforded an opportunity of giving explanation by the higher court and he can dispel any cloud that might have been cast on his fairness and integrity.
The higher court takes action for transfer after full consideration of all the circumstances of the case including the report of the judge against whom the allegations are made.
In this way it can well be said that cases in which applications for transfer are made stand on a slightly different footing from those where a party makes an allegation, either inside or outside the court of a scandalizing nature imputing improper motives to the judge trying the case.
The Allahabad High Court in Emperor vs Murli Dhar & Another(1) was of the view that where an accused person in an application for transfer of a case made an assertion that the persons who had caused the Proceedings to be instituted were on terms of intimacy with the officer trying the case and, therefore, he did not expect a fair and impartial trial was not guilty of offence under section 228, Indian penal Code, there being no intention on the part of the applicant to insult the court, his object being merely to procure a transfer of his case.
It is true that.
in the garb of a transfer application a person cannot be allowed to commit contempt of court by making allegations of a serious and scurrilous nature scandalizing the court and imputing improper motives to the judge trying the case.
But then the nature of the allegations will have to be closely examined and so long as they do not satisfy the requirements of what May be regarded as contempt of court no punishment can possibly be inflicted.
The appellant, in the present case, is an advocate and it is most unfortunate that though at the stage of the transfer application be made certain allegations in para 1 about the social intimacy between Jagiasi and Sarvashri Sayyid and Baadkar, the two judicial officers, with the apparent object of securing a transfer of the case he proceeded to take the highly ill advised step of attempting to substantiate, the allegation so made.
We are, however, not concerned with any charge relating to the matters subsequent to the notice which was issued by the High Court with regard.to the allegations for which punishment has been (1) I.L.R. 8 All, 284.
547 imposed on the appellant.
That notice on the face of it discloses no such allegation which could be regarded as falling within the rule laid down by this Court and by a series of decisions of the Privy Council in which this head of contempt i.e. scandalizing court has come up for examination.
Most of those decisions have been referred to in the case of Perspective Publications (P) Ltd.(1).
In addition we may mention Debi Prasad Sharma & Others vs Emperor(2) in which in a newspaper report the Chief Justice of a High Court was untruly alleged to have committed an ill advised act in writing to his.
subordinate judges asking them to collect subscriptions for the War Fund.
According to their lordships there was no criticism of any judicial act of the Chief Justice nor any imputation was made for anything done or omitted to be done by him in the administration of justice nor was there any criticism of him in his administrative capacity.
In the opinion of their lordships the proceedings in contempt were misconceived.
In our judgment the allegations contained in para 1 of the transfer application were not such as would amount to contempt of court.
We cannot help observing that the appellant did not show the sense of responsibility in making the allegations in question which is expected from an advocate and in further attempting to substantiate them which he failed to do.
The appeal is allowed and the order passed by the High Court is hereby set aside.
Parties will bear their own costs in this Court.
S.C. Appeal allowed.
(1) ; (2) A.I.R. (1943) P.C. 202.

dataset_name: IN-Abs

summary/full:
An advocate, in a transfer application in respect of a criminal complaint, filed before the Sessions Judge made certain allegations against two judicial officers before whom the criminal complaint and a civil suit, were pending.
While dismissing the transfer application, the Additional Sessions Judge, who heard ' the application, recorded an order that a report be submitted to the High Court for considering the conduct of the applicant as to the course adopted by him in making imputations or aspersions in the transfer petition against the judicial officers and to take action for contempt of court under section 3(3) of the .
Paragraph 1 of the transfer application stated that "the Magistrate below is on friendly relations with the complainants the respondent No. 1 in the present petition and he even enjoys the hospitality of the Respondent No. 1 sometimes alone and sometimes in company of the Civil Judge J. D. Kalyan (Shri M. B. Boadkar) who is also on friendly relations with the respondent No. 1 and who also enjoys the hospitality of the respondent No. 1".
There were other allegations in the transfer petition.
The show cause notice issued by the High Court containing the charge of contempt was confined only to paragraph 1 of the transfer appli cation.
The High Court held that the appellant was guilty of contempt of court and he was sentenced accordingly.
Allowing the appeal.
HELD : (1) The show cause notice on the face of it disclosed no such allegation which could be regarded as falling within the rule laid down by this Court in which the head of contempt, i.e. scandalizing the Court, had come up for examination.
In Perspective Publications (P) Ltd. vs State of Maharashtra, ; this Court has laid down certain principles as to the law of contempt.
They are : (i) It will not be right to say that Committals for contempt for scandalizing the Court have become obsolete.
(ii)The summary jurisdiction by way of contempt should be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.
(iii)Any one may express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or make a proper or fair comment on any decision given by him.
(iv)A distinction must be made between a mere libel or defamation of a judge and what amounts to contempt of court.
The test in each 537 case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with due course of justice or the proper administration of law by the court it is only in the latter case that it will be punishable as contempt.
[542 H] (v)Alternatively, the test will be whether the wrong is done to the judge personally or it is done to the public.
The publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability of fairness of the judges or to deter actual and prospective litigants from lacing complete reliance upon the courts administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties".
[543 E] (2)Allegations made even in a transfer application casting aspersions on a judicial officer can constitute contempt of his court within section 3 of the Act.
However, cases in which applications for transfer are made/ stand on a slightly different footing from those where a party makes an allegation, either inside or outside the court of a scandalizing nature imputing improper motives of the judge trying the case; but even in the case of a transfer application, a person cannot be allowed to commit contempt of court by making allegations of a serious nature scandalizing the court and imputing improper motives to the judge trying the case.
[544 B, 546 D] In the present case, the mere statement that a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will not constitute contempt unless there is an imputation of some improper motives as would amount to scandalizing the court itself and as would have a tendency to create distrust in the popular mind and impair the confidence of the people in the courts.
[544 C] State of Madhay Pradesh vs Revashankar, , State vs
The Editors and Publishers of Eastern Times and Prajatantra, and Swaranamavi Panigrahi vs B. Nayak & Ors., A.I.R. 1959 Orissa 89, referred to and discussed.


judgement:
Appeal No. 1807 of 1971.
Appeal by special leave from the judgment and order dated May 6, 1971 of the, Patna High Court in C.W.J.C. No. 41 of 197 1.
L. M. Singhvi, section C. Dingra and U. P. Singh, for the appellant.
section V. Gupte and B. P. Singh, for respondents Nos.
1 to 5.
section N. Prasad and D. N. Mishra, for respondent No. 6.
The Judgment of the Court was delivered by Mathew, J.
The appellant filed a writ petition before the High Court of Patna_praying for quashing an order passed by the Minister of Forest, Government of Bihar, on December 13, 1970, and for issue of a writ in the nature of mandamus directing the respondents 1 to 5 to give effect to the previous order of the Minister of Forest dated November 27, 1970.
The writ petition was heard by a Division Bench of the Court and the petition was dismissed.
This appeal, by special leave, is from that judgment.
There is a bamboo coup know as "Bantha Bamboo coup in Chatra North Division of Hazaribagh district.
On July 22, 1970, the Forest Department of the Government of Bihar advertised for settlement of the right to exploit the COUP by Public auction ' The auction was held in the Office, of the Divisional Forest Officer on August 7, 1970.
Five persons including the appellant participated in the auction.
Though the reserve price fixed in the tender notice was Rs. 95,000/ , the appellant 's bid of Rs. 92,001/ , being the highest, was accepted by the Divisional Forest Officer.
The petitioner thereafter deposited the security amount of Rs. 23,800/ and executed an agreement.
The Divisional Forest officer reported about the auction We servator of Forests, Hazaribagh Circle, by his letter dated August 25, 1970.
As the price for which the coup was provisionally, 632 settled exceeded Rs. 50,0001 , the Conservator of Forests forwarded the papers regarding the auction sale to the Deputy Secretary to Government of Bihar, Forest Department, for coation of the acceptance by the Government.
Since the provisional settlement was made for an amount less than the reserve price, the matter was also referred to the Finance Department.
The Finance Department invited comments from the Divisional Forest Officer as to why the settlement was made for a lesser amount.
The Divisional Forest Officer, by his letter dated October 30, 1 970.
submitted his explanation for the provisional settlement at an amount below the reserve price.
When the matter was pending before the Government, the appellant expressed his willingness to take the settlement at the reserve price of Rs. 95,000 by his communication dated October 26, 1970.
The appellant thereafter filed an application on November 3, 1970, praying for settlement of the coup on the basis of the highest bid.
The Minister of Forest, by his proceedings dated November 27, 1970, directed that the coup may be settled with the highest bidder.
namely the appellant, at the reserve.
price.
A telegram was sent by the Government to the Conservator of Forests, Hazaribagh Circle on November 28, 1970, with a copy of the same to the Conservator of Forest, Bihar, confirming the auction sale to the appellant at the reserve price of Rs. 95,000/ .
As no intimation was received by the Divisional Forest Officer, he did not cormmunicate the proceedings of the Minister to the appellant.
One Md. Yakub, Respondent No. 6, filed a petition on December 4. 1970, before the Government of Bihar, Respondent No. 1.
offering to take the settlement of the coup in question for Rs. 1,01,125/ .
A telegram was sent by the Government on December 5, 1970, to the Divisional Forest Officer, directing him not to take any action on the basis of the telegram dated November 28, 1970, sent to him in pursuance of the proceedings of the Government dated November 27, 1970.
That telegram was received by the Divisional Forest Officer on December 10, 1970.
and the Divisional Forest Officer, by his letter dated December 10. 1970, informed the Government that the previous telegram dated November 28, 1970, was not received by him and so it content was not communicated to the appellant.
The whole matter was there after placed before the Minister of Forest and the Minister, by his proceedings dated December 13, 1970, cancelled the settlement of the coup with appellant and settled the same with Respondent No. 6 for.
1,01,125/ .
The Government thereafter sent telegrams on December 21, 1970, /to the Conservator of Forests and the Divisional Forest Officer informing them that the coup had been settled with Respondent No. 6.
The Divisional Forest Officer.
by his letter dated December 23, 1970, directed Respondent No. 6 to deposit the security amount and to pay the first instalment.
Respondent No. 6 deposited the same and executed an agreement.
633 The contention of the appellant in the writ petition was that there was a concluded contract when the bid of the appellant was accepted by the Divisional Forest Officer though that was subject to confirmation by the Government and that, when the Government confirmed the acceptance by its proceedings, dated November 27, 1970, it was no longer within the power of Government to make the settlement of the coup upon the 6th Respondent by its proceedings dated December 13, 1970.
It was also contended in the alternative that the settlement of the coup in favour of.
the 6th Respondent was in violation of statutory rules and, therefore, in any event, that settlement was invalid.
As already indicated, the High Court negatived these conten tions and upheld the validity of the settlement in favour of the 6th Respondent.
The special conditions in the tender notice makes it clear that the Divisional Forest Officer has the right to, accept a bid of less than Rs. 5,0001 , that acceptance of a bid of more than Rs. 5,0001 by him is subject to confirmation by the Chief Conservator of Forests and the Forest Department of the Bihar Goverment, that an auction sale for an amount of more than Rs. 5,0001 would not be recognised until it is confirmed by the competent authority, and that a bid made in auction and which has been provisionally accepted by the Divisional Forest Officer shall be binding on the bidder for two months from the date of auction or till the date of rejection by the competent authority, whichever is earlier.
Counsel for the appellant contended that there was a condi tional acceptance of the offer of the appellant by the Divisional Forest Officer, that on confirmation by the Government, that acceptance became unconditional and, therefore, there was a concluded contract when the Government confirmed the acceptance, even though the confirmation was not communicated to the appellant.
In support of this, he relied on The Rajanagaram Village Cooperative Society vs Veerasami Mudaly(1).
There it was held that in the case of a conditional acceptance in the presence of a bidder, the condition being that it is subject to approval or confirmation by some other person, the acceptance, though conditional, has to be communicated and when that is communicated, there is no further need to communicate the approval or confirmation which is the fulfillment of the condition.
It was further held that a conditional acceptance has the effect of binding the highest bidder to the contract if there is subsequent approval or confirmation by the person indicated, that he cannot resile from the contract or withdraw the offer, and if there is approval.
or confirma (1) [1950] 11 M.L.J.486.
634 tion, the contract becomes concluded and enforceable.
This decision was considered in Somasudaram Pillai vs provincial Government of Madras(1) where Chief Justice Leach, speaking for the Court said that, to have an enforceable contract, there must be an offer and an unconditional acceptance and that a person who makes an offer has the right to withdraw it before acceptance, in the absence of a condition to the contrary supported by consideration.
He further said the fact that there has been a provisional or conditional acceptance would not make any difference as a provisional or conditional acceptance cannot in itself make a binding contract.
The question whether by an acceptance which is conditional upon the occurrence of a future 'event a contract will become concluded was considered by Williston and this is what he says : ( ) " A nice distinction may be taken here between (1) a so called acceptance by which the acceptor agrees to become immediately bound on a condition not named in the offer, and (2) an acceptance which adopts unequivocally the terms of the offer but states that it will not be effective until a certain contingency happens or fails to happen.
In the first case there is a counteroffer and rejection of the original offer; in the second case there is no counter officer, since there is no assent to enter into an immediate bargain.
There is, so to speak, an acceptance in escrow, which is not to take effect until the future.
In the meantime, of course, neither party is bound and either may withdraw ' More over, if the time at which the acceptance was to become effectual is unreasonably remote, the offer may lapse before the acceptance becomes effective.
But if neither party withdraws and the, delay is not unreasonable a contract will arise when the contingency happens or sti pulated event occurs" In this case, it is not the want of communication of the confirmation by the Government to the appellant that really stands in the way of there being a concluded contract, but rather the want of confirmation by the Government of the conditional acceptance by the Divisional Forest Officer.
The appellant 's bid was for Rs. 92,001/ .
The, acceptance of the bid by the Divisional Forest Officer was, therefore, subject to confirmation by Goverment.
The proceedings.
of the Minister dated November 27, 1970, would show that he did not confirm the acceptance of the (1) A.I.R. 1947,34 Madras, 366.
(2) Williston On Contracts, Vol.
I, 3rd Ed.
Section 77A, 635 offer by the Divisional Forest Officer.
What the Minister did was not to confirm the acceptance made by the Divisional Forest Officer, but to accept the offer made by the appellant in his communication dated October 26, 1970, that he would take the coup for the reserved price of Rs. 95,000/ .
There was, therefore, no confirmation of the acceptance of the bid to take the coup in settlement for the amount of Rs. 92,001/ .
If the offer that was accepted was the offer contained in the communication of the appellant dated October 26, 1970, we do not think that there was any communication of the acceptance of that offer to the appel lant.
The telegram sent to the Conservator of Forest, Hazaribagh, by the Government on November 28, 1970, cannot be considered as a communication of the acceptance of that offer to the appellant.
The acceptance of the offer was not even put in the course of transmission to the appellant; and so even assuming that an acceptance need not come to the knowledge of the offeror the appellant cannot contend that there was a concluded contract on the basis of his offer contained in his communication dated October 26, 1970, as the acceptance of that offer was not put in the course of transmission.
Quite apart from that, the appellant himself revoked the offer made by him on October 26, 1970, by his letter dated November 3, 1970, in which he stated that the coup may be settled upon him at the highest bid made by him in the auction.
We are, therefore, of the opinion that there was no concluded contract between the appellant and the Government.
This takes us to the question whether the settlement in favour of the 6th Respondent was in violation of any statutory rule.
The appellant 's contention was that the settlement in favour of the 6th Respondent by a private treaty was in violation of the, rules of executive business made under Article 166(3).
Rule 10 of the Rules provides : "10(1) No department shall, without previous consultation with the Finance Department, authorise any orders (other than orders pursuant to any general or special delegation made by the Finance Department) which (a) either immediately or by their repercussion, will affect the finances of the State, or which, in particular, (i) involve any grant of land or assignment of revenue or concession, grant, lease or licence of mineral or forests, rights or a right to water power of any easement or privilege in respect of such concession.
** *** ** *** 636 (2), Where on a proposal under this rule, prior consultation with the Finance Department is required, but on which the Finance Department might not have agreed, no further action shall be taken on any such proposal until the cabinet takes a decision to this effect.
" A copy of the letter from the Deputy Secretary to the Government of the Accountant General, Bihar, dated November 22, 1967 would show that some relaxation of Rule 10(1) of the rules of executive business was made by the Finance Department relating, to lease of forest Coups or forest produce of the value of more than Rs. 50,0001 .
That letter reads as under : "Subject : Revision of procedure in issuing any order involving any grant of lease, sale or licence of minerals of forest rights if such order is issued by the Administrative Department at the, Secretariat level.
"Sir, I am directed to say that in relaxation of rule 10 of the Rules of Executive Business, Government have been pleased to decide that the Forest Department shall authorise orders sanctioning leases of Forest coups or produce of the value of more than Rs. 50,0001 (rupees fifty thousand) each, subject to the following conditions that (1) Reserve price of the coup has been fixed before auction.
(2) Highest bid should be accepted.
(3) Highest bid should not be less than the reserve price.
(4) Any relaxation to the above conditions may not ordinarily be allowed except with the prior concurrence of the Finance Department.
" Before the High Court the contentions of the 6th Respondent were, firstly, that the rule 10(1) is not a statutory rule and, secondly, that it did not concern lease of forest land.
The High Court, without deciding the question whether the rule is a statutory rule, held that the rule has nothing to do with the lease of forest coups and said that there was nothing which prevented the Government from giving the coup on lease by private treaty.
The High Court, therefore, held that there was no bar statutory or otherwise, to the settlement of the coup in favour of Respondent 637 No. 6 by private negotiation and as such the settlement in his favour was valid.
, Counsel for the appellant argued that the High Court went wrong in its conclusion that rule 10(1) as relaxed, did not apply to the grant of the lease of the coup in question and that it really prohibited a lease of forest land except by public auction.
, We are not satisfied that the construction contended for is correct.
Neither rule 10(1) nor the rule as relaxed says that forest land can be leased only by public auction.
Rule 10(1) in so far as it is relevant to the present case only says that no department shall, without prior consultation with the Finance Department, authorise by any order, the lease or licence of mineral or forests.
The relaxation made to rule 10(1) as evidenced by the letter from the Deputy Secretary to the Government is to the effect that in the case of lease of forest land of the value of more than Rs. 50,000/ , if made by public auction, it can only be made subject to the conditions mentioned there.
In other words, rule 10(1) as relaxed does not prohibit the grant of a lease by private treaty.
The rule read in the context of its relaxation as mentioned in the letter of the Deputy Secretary would only show that consultation with the Finance Department is not necessary for a lease, if the lease is of of the value of more than Rs. 50,000/ and is granted in pursuance of a public auction held in conformity with the conditions mentioned in the letter of the Deputy Secretary.
Now the question is whether the coup in question was settled in favour of the, 6th Respondent in accordance with Rule 10(1).
It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease.
But counsel for the Government of Bihar and 6th Respondent contended that rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and therefore, even if there was no prior consultation, the settlement was valid.
So, the question arises whether rule 10(1) which requires prior consultation with the Finance Department is mandatory or not.
Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory.
No universal rule, can be laid down on this matter.
In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured.
Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford.
The Construction of Statues, pp.
523 4).
638 Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the, duty is imposed (see Dattatreya Moreshwar Pangerkar vs The State of Bombay and others(1)].
Where, however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649650).
in this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals.
The negative or prohibitive language of rule 10(1) is a strong indication of the intent to make the rule mandatory.
Further, rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation does not agree to the proposal, the department originating the proposal can take no further action on the proposal.
The cabinet alone would be competent to take a decision.
When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre requisite to the exercise of the power.
We, therefore, think that the order passed by the Minister of Forest, Government of Bihar on December 13, 1970, settling the coup in favour of the 6th Respondent was bad and we quash the order.
We allow the appeal to the extent indicated but make no order as to costs.
G.C. Appeal allowed.
(1) ; at p. 624.

summary/full:
The right to exploit a bamboo coup in the Hazaribagh district of Bihar was auctioned in August 1970.
The reserve price was Rs. 95,000/but the appellant 's bid of Rs. 92,001/ being the highest was accepted by the Divisional Forest Officer.
The petitioner deposited the security required and executed an agreement.
The Divisional Forest Officer about the auction sale to the Conservator of Forests, Hazaribagh Circle .
As the price for which the coup was provisionally settled exceeded Rs. 50,0001 the Conservator of Forests forwarded the papers regarding the auction sale to the Deputy Secretary to the Government of Bihar, Forest Department for confirmation of the acceptance, by the Go Since provisional settlement was made for an amount less than the reserve price the matter was also referred to the Finance Department.
When the matter was pending the appellant expressed his willingness to take the settlement at the reserve price of Rs., 95,000/ by his communication dated October 26, 1970.
The appellant thereafter filed an application on November 3, 1970 praying for settlement of the coup on the basis of the highest bid.
The Minister of Forest by his proceedings dated November 27, 1970 directed that the coup may be settled with the highest bidder viz. the appellant at the reserve price.
A telegram was sent by the Government to the Conservator of Forests, Hazaribagh Circle on November 28, 1970 with copy of the same to the Conservator of Forest, Bihar co the auction sale at the reserve price of Rs, 95,000/.
As no intimation was received by the Divisional Forest Officer he did not communicate the proceedings of the Minister to the appellant.
On December 24, respondent No. 6 filed a petition to the Government offering to take the settlement of the coup in question for Rs. 101125/ .
The Minister, by his proceedings dated December 13, 1970 cancelled the settlement of the coup with the appellant and settled the same with respondent No. 6 for Rs. 101125/ . 'The appellant filed a writ petition in the high Court contending that there was a concluded contract when the bid of the appellant was accepted by the Divisional Forest Officer though that was subject to the confirmation by the Government and when the Government confirmed acceptance by its proceedings dated number 27, 1970 it was no longer within the Dower of the Government to make the settl ement of the coup upon the 6th respondent.
It was also contended that the settlement of the coup in favour of the 6th respondent was invalid because (a) rule 10(1) of the Rules of Executive Business made under article 166(3) of the Constitution as relaxed by the letter of.
the Deputy Secretary to the Government dated November 27, 1967 pro hibited the grant of lease by private treaty and (b) the requirement of 12 L1031SupCI/72 630 prior consultation in r. 10(1) with the Finance Department was mandatory and had not been complied with.
The High Court rejected the appellant 's contentions.
In appeal to this Court by special leave.
HELD : (1) The acceptance of the appellant 's offer was subject to confirmation by the Government and in the absence of such confirmation them could be no concluded contract.
The appellant 's bid was for Rs;.
92001/ .
The acceptance of the bid by the Divisional Forest Officer was therefore, subject to confirmation by the Government.
The proceeding of the Minister dated November 27, 1970 would show that he did not confirm acceptance of the offer by the Divisional Forest Officer.
What the Minister did was not to confirm the acceptance made by the Division 31 Forest Officer but to accept the offer made by the appellant in his communication dated October 26, 1970 that he would take the coup for the reserved price of Rs. 95,000/.
There was, there for, no confirmation of the acceptance of the bid to take the coup in the settlement for the amount of Rs. 92,001/ .
[634 G 635B] If the offer that was accepted was the offer contained in the communication of the appellant dated October 26, 1970 it could not be said that there was any communication of the acceptance of that offer to the appellant.
The telegram sent to the Conservator of Forest, Hazaribagh by the Government on November 28, 1970 could not be considered as a communication of the acceptance of that offer to the appellant.
The acceptance , of the offer was not even put in course of transmission to the appellant; and so even assuming that acceptance need not come to the knowledge of the offer or, the appellant could not contend that there was a concluded contract on the basis of his offer contained in his communication dated October 26, 1970, as the acceptance of that offer was not put in the course of transmission.
Apart from that the appellant himself revoked the offer made by him on October 26, 1970 by his letter dated November 3, 1970 in which he stated.
that the coup may be settled upon him at the highest bid made by him in, the auction.
There was, thus no concluded contract between the appellant and the government.
[635B D] The Rajanagaram Village Cooperative Society, vs Veeraswami Mudaly, , distinguished.
Somasundaram Pillai vs Provincial Government of Madras, A.I.R. 1947 Madras, 366, applied.
(ii)Rule 10(1) in so far as it was relevant to the present case only says that no department shall without prior consultation with the Finance Department authorise by any order the lease of license of mineral or forests.
The rule read in the context of its relaxation as mentioned in the letter of the Deputy Secretary would only show that consultation with the Finance Department is not necessary for a lease if lease is of land of the value of more than Rs. 50,0001 and 'is granted in pursuance of public auction held in conformity with the conditions mentioned in the letter of the Deputy Secretary.
The rule where before or after relaxation did not prohibit the grant of leave by private treaty.
[637C] (iii)It was clear from records relating to the proceedings for the grant of the lease in favour of the 6th respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970.
to grant lease.
It could not be said that rule 10(1) in so far Is it requires prior consultation with the Finance Department is only drirectory and therefore even if there was no, prior consultation the settlement 631 was valid.
The negative or prohibitive language of rule 10(1) is a strong indication of the intent to make the rule mandatory.
Further rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal.
The Cabinet alone would be competent to take a decision.
Prick consultation is, therefore, an essential prerequisite to the exercise of power.
The, order passed by the Minister of Forest, Government of Bihar on December 13, 1970 settling the coup in favour of the 6th respondent was, therefore bad and the order must be quashed.
[637EF; 638D F] Dattatreya Moreshwar Pangerkar vs The State of Bombay and Others.
applied.