judgement:
TE JURISDICTION: Civil Appeal NO. 3182 of 1982.
Appeal by special leave from the Judgment and Order dated the 13th November, 1978 of the Kerala High Court in M.F.A. No. 145 of 1976.
B.S. Bhasme and H.S. Parihar for the Appellant.
K.N. Bhatt for Respondent No. 2.
A.S. Nambiar for the intervener.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This is an appeal by special leave under Article 136 of the Constitution against the judgment and order dated November 13, 1978 of the High Court of Kerala in M.F.A. No. 145 of 1976.
The facts leading to this appeal may be briefly stated thus: The appellant is the Maharashtra State Electricity Board (hereinafter referred to as 'the Electricity Board ').
Cochin Malleables (P) Ltd. (in liquidation) (hereinafter referred to as 'the Company in liquidation ') used to enter into contracts with the Electricity Board before it was ordered to be wound up by the High Court of Kerala to supply goods to the Electricity Board pursuant to tenders which were being issued from time to time.
One of the terms usually found in such tenders was that the intending supplier of goods should pay as earnest money and/or security to the Electricity Board alongwith every tender a sum approximately equivalent to 10% of the estimated price of the goods in question.
There was, however, a provision for exempting payment of such earnest money or security deposit in the case of those tenderers who would keep a permanent deposit of Rs. 50,000 either in cash or in any form approved by the Electricity Board and one such approved form was a bank guarantee to the tune of Rs. 50,000.
The effect of such deposit of Rs. 50,000 made by an intending tenderer with the Electricity Board under this condition was that he acquired the privilege of offering his tender for the supply of goods of any value to the Electricity Board and of such tender being considered along 564 with other tenders made by others who had in the ordinary course paid 10% of the estimated cost of goods as security deposit as per the usual condition.
Such privilege was available to him in the case of any tender that he might make as long as the deposit remained intact with the Electricity Board.
In other words, on depositing a sum of Rs. 50,000 an intending tenderer could offer to supply goods of any value either under one of more tenders without complying with the condition which required him to deposit alongwith with tender a sum equivalent to 10% of the estimated value of goods which he intended to supply.
The security of Rs. 50,000 thus given did not relate to any specific tender but it was open to the Electricity Board to appropriate the whole or any part of it towards any amount due from the tenderer under any supply contract entered into during the relevant period.
Any balance which remained unadjusted became refundable to the person who had made it on demand provided that there was no other subsisting liability towards which the said balance could be adjusted and on such refund being made the person ceased to enjoy the exemption from the requirement of making an earnest deposit in respect of any future tender.
Any bank guarantee given by any such intending tenderer in lieu of the cash deposit of Rs. 0,000 was deemed to be equivalent to the cash deposit made on date of the guarantee and the Electricity Board could realise the bank guarantee amount or any part of it at its will on any day irrespective of whether any tender had been made by the person concerned during the period or not.
On such realisation of the bank guarantee amount, the Electricity Board could deal with it in accordance with the terms of the contract as if the said amount had been deposited with it in cash on the date of bank guarantee.
The liability of the bank which gave the bank guarantee under these terms was unconditional and did not vary according to the number of tenders offered, the value of the goods offered for sale under those tenders, and the defaults, if any, committed by the tenderer in the supply of goods.
Pursuant to the above term, the Company in liquidation offered on September 1, 1966 a bank guarantee for a sum not exceeding Rs. 50,000 given by the Canara Bank Ltd. (now known as Canara Bank and hereinafter referred to as 'the Bank ').
The relevant part of the said guarantee was as follows "THE CANARA BANK LTD.", hereby agrees unequivocally and unconditionally to pay, within 48 (Forty eight) hours, on demand in writing from the Maharashtra 565 State Electricity Board or any officer authorised by it in this behalf, of any amount upto and not exceeding Rs.50,000/ (Rupees Fifty thousand only) to the said Maharashtra State Electricity Board, Bombay on behalf of M/s Cochin Malleables (Private) Ltd., Trichur, who have tendered and/ or contracted or may tender or contract hereafter for supply of materials equipment or service to the Maharashtra State Electricity Board and have been exempted from payment of earnest money and/or security deposit against such tenders or contracts.
" The original period of guarantee was one year.
It was, however, extended from time to time and the guarantee was in force in the year 1973.
On August 27, 1973, the Electricity Board called upon the Bank to pay the guarantee amount of Rs. 50,000.
Thereafter reminders were sent and a final demand was made on May 23, 1974.
In the meanwhile Company Petition No. 14 of 1973 was filed on July 30, 1973 on the file of the High Court of Kerala for the winding up of the Company in liquidation.
By an order dated September 16, 1974 the High Court ordered the winding up of the Company in liquidation and directed the Official Liquidator to take charge of its affairs.
In view of these proceedings the Bank wrote to the Official Liquidator on November 4, 1974 stating that the Company in Liquidation was liable to the Bank to the extent of Rs. 1,64,353.12 on two heads one of which was the sum of Rs. 50,000 demanded by the Electricity Board as per the terms of the bank guarantee referred to above.
Thereupon, the Official Liquidator filed an application under section 456(2) of the read with Rule 9 of the Companies (Court) Rules, 1959 before the Company Judge praying for an order restraining the Electricity Board from realising the amount covered by the guarantee on the ground that since the Company in liquidation had been ordered to be wound up the Electricity Board could not claim the amount of guarantee from the Bank.
The Electricity Board contended that the amount of Rs. 50,000 was not being claimed as a creditor of the Company in liquidation but on the basis of the bank guarantee, the liability under which was not affected by the liquidation proceedings.
The learned Company Judge upheld the plea of the Official Liquidator and issued an order restraining the Electricity Board from realising the amount from the Bank on the ground that since the Bank would have recourse to the securities given by the Company in liquidation to the Bank for realising the amount paid by it in accordance with the bank guarantee and such 566 action of the Bank would affect the assets of the Company in liquidation, it was not open to the Electricity Board to claim the amount of guarantee from the Bank except as a creditor in the winding up proceedings.
An appeal filed by the Electricity Board before the Division Bench of the High Court was dismissed.
This appeal is filed by the Electricity Board against the order of the Division Bench.
After the petition for special leave was filed in this Court in July 1979, notice was issued to the Official Liquidator.
He has written a letter to this Court stating that the High Court of Kerala has since sanctioned a scheme for reconstruction of the Company in liquidation by an order dated November 6, 1979, subject to certain conditions and that the winding up proceedings are directed to be kept in abeyance till December 31, 1982.
He has further stated that he has handed over all the assets of the Company in liquidation to the new management as per directions of the High Court and that he has no funds to participate in these proceedings.
The Managing Director of the Company in liquidation has entered appearance as an intervener and is represented by a counsel.
The learned counsel for the intervener has been heard in this appeal.
He has also filed his submissions in writing.
The principal question which arises for determination in this appeal relates to the effect of the liquidation proceedings on the right of the Electricity Board to recover from the Bank the sum of Rs. 50,000 as per the terms of the bank guarantee.
It cannot be disputed that the terms of the document on the basis of which the Electricity Board has claimed the amount from the Bank constitute a contract of guarantee and not a contract of indemnity.
Under that document the Bank has undertaken to pay any amount not exceeding Rs. 50,000 to the Electricity Board within forty eight hours of the demand.
The payment of the amount guaranteed by the Bank is not made dependent upon the proof of any default on the part of the Company in liquidation.
It may be that in order to give the said guarantee, the Bank had in its turn taken as security from the Company in liquidation certain fixed deposit receipt and a certain quantity of imported zinc ingots and that the Bank had certain rights in respect of those securities.
There may also be some claims or counter claims arising out of the contracts of supply entered into between the Electricity Board and the Company in liquidation.
But the transactions viz. (1) the bank guarantee executed by the Bank in favour of the Electricity Board, (2) the 567 contracts of supply entered into between the Electricity Board and the Company in liquidation and (3) the document under which the Company in liquidation had given a fixed deposit receipt and certain quantity of zinc ingots as security to the Bank for executing the letter of guarantee in favour of the Electricity Board are independent of each other in so far as their legal incidents are concerned.
Under the bank guarantee in question the Bank has undertaken to pay the Electricity Board any sum upto Rs. 50,000 and in order to realise it all that the Electricity Board has to do is to make a demand.
Within forty eight hours of such demand the Bank has to pay the amount to the Electricity Board which is not under any obligation to prove any default on the part of the Company in liquidation before the amount demanded is paid.
The Bank cannot raise the plea that it is liable only to the extent of any loss that may have been sustained by the Electricity Board owing to any default on the part of the supplier of goods i.e. the company in liquidation.
The liability is absolute and unconditional.
The fact that the Company in liquidation i.e. the principal debtor has gone into liquidation also would not have any effect on the liability of the Bank i.e. the guarantor.
Under section 128 of the Indian Contract Act, the liability of the surety is co extensive with that of the principal debtor unless it is otherwise provided by the contract.
A surety is no doubt discharged under section 134 of the Indian Contract Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.
But a discharge which the principal debtor may secure by operation of law in bankruptcy (or in liquidation proceedings in the case of a company) does not absolve the surety of his liability (See Jagannath Ganeshram Aggarwala vs Shivnarayan Bhagirath & Ors.(1).
See also In re Fitzgeorge Ex parte Robson(2).
In view of the unequivocal language of the letter of guarantee, no reliance can be placed by the Company in liquidation on the decision of this Court in Punjab National Bank Limited vs Bikram Cotton Mills & Anr.(3) in which the surety 's liability was limited to the 'ultimate balance ' found due from the principal debtor and the said balance had not been ascertained before the institution of the suit.
568 The facts of this case are distinguishable from the facts in the case before us.
As mentioned earlier the liability of the Bank to pay the amount as per the letter of guarantee did not depend upon prior proof of any default on the part of the Company in liquidation.
Whether the whole of Rs. 50,000 should be demanded or any lesser sum should be demanded from the Bank was entirely within the choice of the Electricity Board.
The Bank has, therefore, to pay the amount due under the letter of guarantee given by it to the Electricity Board.
On such payment it is open to the Bank to have recourse to the securities given by the Company in liquidation for the purpose of the issue of the letter of guarantee.
The Electricity Board is not concerned with what the Bank does in order to reimburse itself after making payment of the amount guaranteed by it.
It is the responsibility of the Bank to deal with the securities held by it in accordance with law.
It was not, however, open to the Company Judge to make any order under the prohibiting the Electricity Board from realising the amount guaranteed by the Bank as this had nothing to do with the assets of the Company in liquidation.
The order of the Company Judge and the Judgment of the Division Bench in appeal are, therefore, liable to be set aside be and they are accordingly set aside.
Before concluding this judgment, we place on record the submission made on behalf of the Electricity Board that it is open to the Company in liquidation to prefer any claim arising out of the supply contracts as against the Electricity Board.
It is also open to the Electricity Board to claim any sum that may be due to it under such contracts.
In considering the above mutual rights and liabilities of the Electricity Board and the Company in liquidation the sum to be received by the Electricity Board from the Bank under the letter of guarantee will have to be taken into consideration and dealt with in accordance with the terms of the supply contracts.
The appeal is accordingly allowed.
No costs.
P.B.R. Appeal allowed.

summary/full:
The appellant Board invites tenders for the supply of goods.
One of the terms of the tenders required the intending supplier of goods to pay earnest money and/or security to the Board along with the tender a sum approximately equivalent to 10% of the estimated price of goods tendered.
But where an intending tenderer deposited a sum of Rs. 50,000 either in cash or in any form approved by the Board such as a Bank guarantee he could offer to supply goods of any value either under one or more tenders without complying with the above condition.
In accordance with the terms of tender the company in liquidation offered a bank guarantee for a sum of Rs. 50,000 for supply of goods to the Board.
As security for the guarantee, the Bank took from the company in liquidation a fixed deposit receipt and some quantity of imported zinc ingots and the Bank had certain rights in respect of these securities.
In August, 1973 the Board called upon the Bank to pay to it the guarantee amount.
In the meanwhile, however, the High Court ordered the winding up of the company in liquidation.
The Bank then wrote to the Official Liquidator that the company in liquidation was liable to the Bank a large sum of money one of which was the sum of Rs. 50,000 demanded by the Board.
On application by the Official Liquidator the company Judge issued an order restraining the Board from realising the amount from the Bank on the ground that since the Bank would have recourse to the securities given by the company in liquidation for realising the amount paid by it in accordance with the bank guarantee and that since such action of the Bank would affect the assets of the company in liquidation, it was not open to the Board to claim the amount of guarantee from the Bank except as a creditor in the winding up proceedings.
A Division Bench of the High Court dismissed the Board 's appeal.
562 On the question whether the Board could recover from the Bank the sum of Rs. 50,000 according to the terms of the bank guarantee and what its effect would be on liquidation proceedings, Allowing the Appeal, ^ HELD: It was not open to the company Judge to make any order under the prohibiting the Board from realising the amount guaranteed by the Bank as this had nothing to do with the assets of the company in liquidation.
[568 D] The terms of the document on the basis of which the Board has claimed the amount from the Bank constituted a contract of guarantee and not a contract of indemnity.
[566 F] The three transactions, namely (1) the bank guarantee, (2) the contract of supply between the Board and the Company in liquidation and (3) the document under which the Company in liquidation gave a fixed deposit receipt and some quantity of zinc ingots as security are independent of each other in so far as their legal incidents are concerned.
[566 H; 567 A] In order to realise the guarantee amount of Rs. 50,000 all that the Board had to do was to make a demand, within 48 hours of which the Bank had to pay the sum to the Board.
The Board was not required to prove any default on the part of the Company in liquidation.
Nor could the Bank raise the plea that it was liable only to the extent of any loss sustained by the Board.
The Bank 's liability to pay the sum demanded by the Board was absolute and unconditional.
[567 C D] The fact that the principal debtor had gone into liquidation would not have any effect on the Bank 's liability as guarantor.
Under section 128 of the Indian Contract Act the liability of the surety is co extensive with that of the principal debtor unless it is otherwise provided by the contract.
A surety is no doubt discharged under section 134 of the Indian Contract Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.
But a discharge which the principal debtor may secure by operation of law in bankruptcy (or in liquidation proceedings in the case of a company) does not absolve the surety of his liability.
[567 D F] Jagannath Ganeshram Aggarwala vs Shivnarayan Bhagirath In re Fitzegeorge Ex parte Robson, , referred to.
Punjab National Bank Limited vs Bikram Cotton Mills & Anr., ; , held inapplicable.
On payment of the sum demanded by the Board it was open to the Bank to have recourse to the securities given by the Company in liquidation.
The 563 Board was not concerned with what the Bank did to reimburse itself.
It was the Bank 's responsibility to deal with the securities held by it in accordance with law.


judgement:
Civil Appeal No. 1531 of 1980.
Appeal by special leave from the judgment and order dated the 9th August, 1978 of the Allahabad High Court in C.M. Writ No.6788 of 1978 J.K Goel for the Appellant S.Markendeya for Respondent.
The order of the Court was delivered by DESAI J. Appellant Ramakant Misra joined service in the Kanpur Electric Supply Administration ( 'Administration ' for short) which was then a Department of the Government of Uttar Pradesh.
On the constitution of U.P. Electricity Board ( 'Board ' for short), under the provisions of ( 'Act ' for short), with effect from April 1,1958, the Kanpur Electric Supply Administration stood transferred to the Board and the employees working in the Administration were deemed to be on deputation to 650 the Board though they would continue to be Government servants as provided in a Circular dated March 13, 1959.
As per Notification No. 3721E/74 23P (3) 155E/174 dated August 3, 1974 the posts held formerly in the Administration by the employees working in the Administration were abolished and the deputationists were absorbed in the service of the Board.
However, before the appellant could be so absorbed he was served with a charge sheet on November 19, 1971, alleging that he was guilty of disorderly behaviour punishable under the relevant Standing orders.
Simultaneously the appellant was suspended from service pending a departmental inquiry.
The inquiry officer who was appointed to hold the inquiry after holding the inquiry recorded his finding that the charge was proved.
It would be advantageous to reproduce the charge.
It is extracted from the report of the inquiry officer: "Shri Rama Kant was charged for misconduct under clause 20 (9) .
18 and 28 of the Standing Orders for disorderly behaviour or conduct likely to cause a breach of peace threatening an employee within the premises and conduct prejudiced to good order and discipline".
The specific allegation is that on November 18, 1971, around 2.50 p.m. appellant was complaining about the deduction that was being made from his wages for his absence from the place of work and late attendance with Shri Mahendra Singh.
When Shri Mahendra Singh replied that he had no separate rules for him, the appellant is alleged to have lost his balance.
The threatening language alleged to have been used by the appellant when freely translated reads: "Are other persons your father.
I will make you forget your high handedness either here or somewhere else.
An officer of yesterday 's making discloses power consciousness".
The inquiry officer held that the words attributed to the appellant were used by him in reference to Shri Mahendra Singh and that use of such language would constitute misconduct within the relevant clauses of the Standing Orders hereinbefore mentioned.
The inquiry officer recommended dismissal from service.
As the matter was being dealt with on the footing that the appellant was a Government servant entitled to the protection of Article 311 of the Constitution, 651 a second show cause notice according to the provisions then contained in article 311 was required to be served before penalty was finally imposed upon him.
But even before the notice was served the appellant was dismissed from service on April 6, 1972.
A dispute having been raised questioning the validity of termination of service of the appellant, the 1st respondent made a reference to the Labour Court, U.P. for adjudication of the dispute.
The Labour Court by its Award dated March 21, 1978, held that the termination of service of the appellant was legal and proper.
A petition under Article 227 of the Constitution to the High Court failed.
Hence this appeal by special leave.
Mr. Markandeya, learned counsel who appeared for the respondent urged that any person who claims to be a Government employee cannot seek relief both under Article 311 on the footing that he is holding a civil post or is a member of the civil service of the State on the one hand and a workman falling under the purview of the , on the other, and that this aspect is being examined by a larger Bench.
In this case it is not necessary to resolve the controversy because we requested Mr. Markandeya to state specifically whether according to him the appellant on the date of his dismissal was a Government servant governed by article 311 or a workman within the meaning of the .
Mr. Markandeya specifically stated and it was also held by the Labour Court though wrongly but which aspect at present is not relevant that the appellant is not a Government Servant holding a civil post or a member of the civil service of the State but that he is a workman entitled to the protection of the .
We are proceeding on that assumption in this case.
The charge of which appellant is found guilty is already extracted hereinbefore.
It amounts to a riotous or disorderly behaviour during working hours at the establishment.
At least this could not be said to be an act subversive of discipline.
The misconduct attributed to the appellant is that he used some language unbecoming of a disciplined workman and may have thereby exposed a threatening posture which is alleged to be subversive of discipline.
Shorn of all embellishments, enraged by deduction from his wages appellant, a Joint Secretary of Union of Workmen used some 652 language which can be said to be indiscreet.
In order not to minimise the gravity of the charge we have extracted the charge by its free translation and it must be confessed that both the learned counsel who appeared on either side were fully conversant with the Hindi language and, therefore, clearly understood the import of the language used by the appellant.
In the ultimate analysis the mis conduct is use of language indiscreet or may be said to be indecent or may be disclosing a threatening posture.
We will proceed on the assumption that use of such language is punishable under the relevant Standing Orders.
So what.
The punishment must be for misconduct.
To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences.
In this case it has resulted in dismissal from service.
In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged.
In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management.
More often the courts found that while the misconduct is proved the punishment was disproportionately heavy.
As the situation then stood, courts remained powerless and had to be passive sufferers incapable to curing the injustice.
Parliament stepped in and enacted section IIA of the which reads as under: "11A. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National or Tribunal for adjudication and, in the course of the adjudication proceeding, the Labour Court Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require".
It is now crystal clear that the Labour Court has the jurisdiction and power to substitute its measure of punishment in 653 place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.
And this Court is at present exercising jurisdiction under article 136 over the decision of the Labour Court.
Therefore this Court can examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under section 11A. Before we can exercise the discretion conferred by section 11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.
These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive.
As stated earlier, it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged.
What has happened here.
The appellant was employed since 1957.
The alleged misconduct consisting of use of indiscreet or abusive or threatening language occurred on November 18, 1971, meaning thereby that he had put in 14 years of service.
Appellant was Secretary of the workmen 's Union.
The respondent management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years ' service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet, improper or disclosing a threatening posture.
When it is said that language discloses a threatening posture it is the subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet improper, abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service.
Therefore, we are satisfied that the order of dismissal was not justified in the facts and circumstances of the case and the Court must interfere.
Unfortunately, the Labour Court has completely misdirected itself by looking at the dates contrary to record and has landed itself in an unsustainable order.
Therefore, we are required to interfere.
What ought to be the proper punishment in this case ? In our 654 opinion, in such a situation withholding of two increments with future effect will be more than adequate punishment for such a low paid employee.
Accordingly, this appeal is allowed and the Award of the Labour Court is set aside as also the penalty imposed by the management is quashed and set aside.
The appellant is reinstated with all the benefits, including the back wages, but his two increments falling due from the date of his termination of service be withheld with future effect.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged.
In the development of industrial relation norms law has moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management.
More often, the courts found that, while the misconduct was proved, the punishment was disproportionately heavy.
As the situation then stood, courts remained powerless and had to be passive sufferers incapable of curing the injustice.
Parliament stepped in and enacted section IIA of the Industrial Disputes Act by which the Labour Court is clothed with jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.
This Court, while exercising jurisdiction under Article 136 can examine whether the Labour Court has properly approached the matter in exercising or refusing to exercise its power under section 11A.
The words that the court must be "satisfied that the order of discharge or dismissal was not justified" occurring in section 11A indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive.
In the instant case the charge against the appellant workman was that he had used threatening and abusive language against a senior officer unbecoming of a disciplined workman and had adopted a threatening posture, subversive of discipline.
An inquiry was conducted.
On the recommendations of the Inquiry officer the workman was dismissed from service.
The Labour Court upheld the order of dismissal and the High Court dismissed the appellant 's petition under Article 227.
649 On the question whether the order of dismissal was justified on the facts and in the circumstances of the case.
^ HELD: The order of dismissal was not justified.
[653 A] It is a well recognized principle of jurisprudence, which permits penalty to be imposed for misconduct, that the penalty must be commensurate with the gravity of the offence charged.
[653 C D] The appellant workman had put in more than 14 years of service and had been the Secretary of the workers ' union.
The management had not shown that there was any blameworthy conduct on his part during the period of his service.
The misconduct alleged against him consisted of use of language which was indiscreet and improper, disclosing a threatening posture.
[653 E F] When it is said that his language disclosed a threatening posture it was the subjective conclusion of the person who heard the language because voice modulation of each person in the society differs.
Indiscreet, improper, abusive language may show lack of culture.
But mere use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service.
[653 F H]


judgement:
etition (Criminal) No. 1075 of 1982.
(Under article 32 of the Constitution of India) V.J. Francis for the Petitioner.
S.N. Jha for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
On October 4, 1982, we quashed and set aside the impugned detention order dated April 20, 1982, in respect of detenu Devi Lal Mahto, reserving the giving of the reasons for our order to a later date.
Here are the reasons.
This is a petition under Article 32 for a writ of hebeas corpus filed by detenu Devi Lal Mahto challenging the order of preventive detention dated April 20, 1982, made by the District Magistrate, Dhanbad.
Detenu Devi Lal Mahto was arrested on March 2, 1982, and was produced before the Chief Magistrate, Dhanbad, who remanded him to jail custody till March 17, 1982.
On March 1982, detenu moved an application for bail which was fixed for hearing on March 24, 1982.
On March 25, 1982 the bail application was rejected.
On April 20, 1982, the District Magistrate, Dhanbad, made the impugned order of detention in exercise of the power conferred by sub section
(2) read with sub section (3) of section 3 of the ( 'Act ' for short).
The District Magistrate stated in his order that with a view to preventing the detenu from acting in a manner prejudicial to the maintenance of public order he be detained.
Grounds of detention 632 were served upon the detenu on April 23, 1982.
Another application for bail moved by detenu was rejected on April 23, 1982 On May 13, 1982 the detenu submitted his representation to the State Government which came to be rejected by the State Government on June 3, 1982.
The order of detention was confirmed by the State Government on June 10, 1982.
Mr. V.J. Francis, learned counsel who appeared for the petitioner canvassed three contentions before us.
They are: (i) the detenu being already deprived of his personal liberty having been confined in jail from March 2, 1982, and his bail application having already been rejected on March 25, 1982, he was not even if so inclined, in a position to repeat his activity and therefore, the preventive detention order could not be made against him with a view to preventing him from indulging into activity prejudicial to the maintenance of public order; (ii) the detaining authority was not even aware that the detenu was already in jail when he made the impugned detention order and, therefore, the order suffers from the vice of non application of mind which would vitiate the order; and (iii) there was inordinate delay which has remained unexplained in considering the representation of the detenu and, therefore, the detention order is vitiated.
Undoubtedly, for a period of one month and 18 days the detenu was in jail, his bail application having been rejected nearly 25 days before the date of the impugned detention order.
It is difficult to appreciate how the District Magistrate was subjectively satisfied that a detention order in respect of the detenu was necessary with a view to preventing him from acting in a manner prejudicial to the maintenance of public order.
This aspect we have most meticulously examined in four decisions of this Court, and therefore, we need not examine the same again.
As early as in Rameshwar Shaw vs District Magistrate, Burdwan & Anr.,(1) and as late as Vijay Kumar vs State of J & K and Ors.(2), the two recent most decisions in Biru Mahato vs District Magistrate, Dhanbad(3), and M. Satyanarayana, etc.
vs State of Andhra Pradesh & Ors.
,(4) it has been held that one can envisage a hypothetical case in which a preventive detention order 633 may have to be made against a person already deprived of his personal liberty by being confined or detained in jail but in such a situation the detaining authority must show awareness of this fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet for the reasons which may appeal to the District Magistrate on which his subjective satisfaction is grounded a preventive detention order is required to be made.
It is further held that this awareness must appear either in the order or in the affidavit justifying the impugned detention order when challenged.
Neither in the order nor in the affidavit we find even a whimper of this aspect being present to the mind of the detaining authority while making the detention order.
Therefore, it clearly discloses non application of mind and following the aforementioned decisions it must be held that the order of preventive detention having been mechanically made and suffering from the vice of non application of mind is vitiated.
The last contention is that there was an inordinate delay in considering the representation of the detenu and, therefore, the detention order is vitiated.
The detenu made a representation on May 13, 1982.
It also transpires that the case of the detenu was referred to the Advisory Board on May 15, 1982.
The affidavit in reply recites that the representation was rejected by the State Government on June 3, 1982.
How the representation was dealt at various levels from May 13, to June 3, has not been dealt with in the affidavit on behalf of the respondents.
It may be mentioned here that the counter affidavit on behalf of the respondents has been filed by one G.P.A. Kujur who has described himself as Deputy Collector of Dhanbad.
Obviously he was not the detaining authority.
The detaining authority though impleaded as a respondent has not filed the affidavit.
Mr. Jha, learned counsel who appeared for the respondents after referring to the file with him urged that the representation was received on May 14, 1982 and it was on May 24, 1982, that its examination commenced.
There was no further detail available as to how it was dealt with.
When a detention order is made by the District Magistrate in exercise of the power conferred by sub section
(2) read with sub section
(3) of section 3 of the Act, sub section
(4) makes it obligatory upon the State Government to examine the order and approve the same within a period of 12 days from the date of making of the order.
There is a proviso appended to the section which is not relevant.
There is nothing to show that the order was approved.
634 There is nothing to show why for a period of 10 days the representation was not examined by the competent authority.
There is nothing to show how the file moved after May 24, 1982, till the representation was rejected on June 3, 1982.
In our opinion in the facts and circumstances of this case a time of 21 days taken by the State Government in examining the representation of the detenu made under section 8 of the Act shows inordinate delay in dealing with the representation and that would vitiate the order.
For these reasons we had quashed and set aside the impugned detention order.
H.L.C. Petition allowed.

summary/full:
The petitioner who had been arrested on March 2, 1982 and whose application for bail had been rejected on March 25, 1982 was in jail when the District Magistrate, Dhanbad made the impugned order of detention against him on April 20, 1982 under sub section
(2) read with sub section
(3) of section 3 of the .
Another application for bail moved by the petitioner was rejected on April 23, 1982.
The grounds of detention were served on April 23, 1982 and the representation submitted to the State Government on May 13, 1982 was rejected on June 3, 1982 and the order of detention was confirmed on June 10, 1982.
It was contended that the impugned order could not have been made against the petitioner as he was already in jail, that the order was vitiated by non application of mind as the detaining authority was not even aware of the petitioner 's custody in jail and as there was inordinate delay in considering the representation against the order.
Allowing the petition, ^ HELD: When a preventive detention order is made against a person already deprived of his personal liberty, the detaining authority must show awareness of the fact that the person against whom the detention order is proposed to be made is already in jail and is incapable of acting in a manner prejudicial to the maintenance of public order and yet, for reasons which may appeal to the detaining authority on which its subjective satisfaction is grounded, a preventive detention order is required to be made.
This awareness must appear in the order or in the affidavit justifying the order when challenged.
[633 A B] In the instant case neither in the order nor in the affidavit was there even a whimper of this aspect being present to the mind of the detaining authority while making the order.
The order having been mechanically made and suffering from the vice of non application of mind was vitiated.
[633 C] Rameshwar Shaw vs District Magistrate, Burdwan & Anr. ; ; Vijay Kumar vs State of J&K and Ors. ; ; Biru Mahto vs 631 District Magistrate, Dhanbad; , and M. Satyanarayana, etc.
vs State of Andhra Pradesh & Ors. ; followed.
(b) When a detention order is made in exercise of the power conferred by sub section
(2) read with sub section
(1) of section 3 of the Act, sub section
(4) makes it obligatory upon the State Government to examine the order and approve the same within a period of 12 days from the date of making the order.
[633 G H] In the facts and circumstances of the instant case, a time of 21 days taken by the State Government in examining the representation of the detenu showed inordinate delay which vitiated the order.
[634 B]


judgement:
Appeal No. 135 of 1955.
Appeal by special leave from the judgment and order dated October 30, 1952, of the Labour Appellate Tribunal of India, Allahabad, in Misc.
Case No. C 146 of 1952.
R. R. Biswas, for the appellant.
Sukumar Ghose (amicus curiae), for the respondents.
November 28.
The Judgment of the Court was delivered by S.K. DAS J.
This is an appeal by special leave from the judgment and order of the Labour Appellate Tribunal of India at Allahabad dated October 30, 1952.
The relevant facts are these.
The Banaras Ice Factory Limited, the appellant before us, was incorporated on September 13, 1949, as a private limited company and was carrying on the business of manufacturing ice in the city of Banaras though its registered office was in Calcutta.
The factory worked as a seasonal factory and had in its employment about 25 workmen at all material times.
These workmen were employed from the month of March to the month of September 145 year.
The appellant company got into financial difficulties on account of trade depression, rise in the price, of materials and increase in the wages and emoluments of workmen.
It tried to secure a loan of Rs. 10,000/ from a Bank but met with no success.
Thereupon, it decided to close down the factory and on January 15, 1952, a notice was given to its workmen saying that the factory would be closed down with effect from January 17, 1952, and the services of the workmen would not be necessary for two months from that date.
The work.
men received their wages up to January 16, 1952.
On March 18, 1952, they were again taken into service but this temporary closing of the factory gave rise to an industrial dispute and the workmen complained that they were wrongfully laid off with effect from January 17, 1952.
The dispute was referred to the Regional Conciliation Officer, Allahabad, for adjudication.
In the meantime, that is, on June 6, 1952, the workmen gave a strike notice and as there was no coal in the factory, the appellant also gave a notice of closure on June 12, 1952.
A settlement was, however, arrived at between the parties on June 15, 1952, at the house of the Collector of Banaras.
The terms of that settlement, inter alia, were: (1) the management would withdraw its notice of closure dated June 12, 1952 ; (2) the workmen would withdraw their strike notice dated June 6, 1952; (3) there being no coal, the workers would remain on leave for a period of thirty days with effect from June 16, 1952, and would report for duty on July 16, 1952, at 8 A.M. and (4) after the workers had resumed their duty on July 16, 1952, the appellant would not terminate the services of any workmen or lay them off in future without obtaining the prior permission of the Regional Conciliation Officer, Allahabad.
On June 28, 1952, the Regional Conciliation Officer, Allahabad, gave his award in the matter of the industrial dispute between the appellant and its work , men with regard to the alleged wrongful laying off of the workmen from January 17, 1952, to March 18, 1952, 19 146 referred to above.
By his award the Regional Conciliation Officer gave full wages to the workmen for the period in question.
On July 16, 1952, none of the workmen reported for duty in accordance with the terms of the agreement referred to above, and on that date the appellant gave a notice to its workmen to the effect that the appellant found it difficult to run the factory and had decided to close it down; the workmen were informed that their services would not be required and would be terminated upon the expiry of thirty days from July 16, 1952.
The workmen, it is stated, accepted the notice and took their pay for one month (from July 16 to August 15, 1952) without any protest.
Against the award of the Regional Conciliation Officer dated June 28, 1952, the appellant filed an appeal to the Labour Appellate Tribunal on July 25, 1952.
On August 31, 1952, a complaint was made on behalf of the workmen to the Labour Appellate Tribunal under section 23 of the Industrial _ Disputes (Appellate Tribunal) Act, 1950, hereinafter referred to as the Act.
The gravamen of the complaint was that the appellant had contravened the provisions of section 22 of the Act.
because the appellant had discharged all the workmen with effect from August 15, 1952, without the permission in writing of the Labour Appellate Tribunal during the pendency before it of the appeal filed on July 25, 1952, against the award of the Regional Conciliation Officer.
The Labour Appellate Tribunal dealt with this complaint by its order dated October 30, 1952.
Before the Labour Appellate Tribunal it was urged on behalf of the appellant that there was no contravention of a. 22, because on July 16, 1952, when the notice of discharge was given by the appellant, no appeal was pending before it, the appellant 's appeal having been filed several days later, namely, on July 25, 1952.
This contention was not accepted by the Labour Appellate Tribunal on the ground that though the notice of discharge was given on July 16, 1952, the termination of service was to come into operation after one month, that is, from August 15, 1952, on which date the appeal before the Labour Appellate Tribunal was certainly pending.
As learned counsel for the 147 appellant has not again pressed this point before us, it is not necessary to say anything more about it.
A second point uroed before the Labour Appellate Tribunal was that the appellant had the right to close down the factory, when the appellant found that it was not in a position any longer to run the factory.
The agreement of June 15, 1952, did not stand in the appellant 's way, as the workmen themselves did not report for duty on July 16, 1952.
The closure being a bona fide closure, it was not necessary to obtain the permission of the Labour Appellate Tribunal and there was therefore no contravention of section 22 of the Act.
The Labour Appellate Tribunal apparently accepted the principle that the appellant had the right to close its business but took the view that permission should have been obtained before the closure.
It referred to the agreement of June 15, 1952, and held that though the appellant had the right to close its business, permission was still necessary and in the absence of such permission, the appellant was guilty of contravening cl.
(b) of section 22 of the Act, and directed that the appellant should pay its workmen full wages as compensation for the period of involuntary unemployment up to the date of its award, that is, during the period from August 16, 1952, to October 30, 1952.
Relying on the decision in J. K. Hosiery Factory vs Labour Appellate Tribunal of India (1), learned counsel for the appellant has urged three points before us.
His first point is that the termination of the services of all workmen on a real and bona fide closure of business is not 'discharge ' within the meaning of cl.
(b) of section 22 of the Act.
His second point is that if the word 'discharge ' in cl.
(b) aforesaid includes termination of services of all workmen on bona fide closure of business, then the clause is an unreasonable restriction on the fundamental right guaranteed in el.
(g) of article 19 (1) of the Constitution.
His third point is that, in any view, the Labour Appellate Tribunal, was not entitled to grant compensation to the workmen, because section 23 of the Act did not in terms entitle the Labour (1) A.I.R. 1956 All.
148 Appellate Tribunal to pass an order of compensation.
We may state here that if the appellant succeeds on the first point, it becomes unnecessary to decide the other two points.
For a consideration of the first point, we must first read sections 22 and 23 of the Act.
Section 22: " During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall (a)alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or (b)discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal.
" Section 23: " Where, an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee, aggrieved by such contravention, may make a complaint in writing, in the prescribed manner, to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly." The short question before us is whether the word 'discharge ' occurring in cl.
(b) of section 22 includes termination of the services of all workmen on a real and bona fide closure of his business by the employer.
It is true that the word 'discharge ' is not qualified by any limitation in cl.
We must, however, take the enactment as a whole and consider section 22 with reference to the provisions of the , (XIV of 1947) which is in pari materia with the Act under our consideration.
We have had occasion to consider recently in two cases the general scheme and 149 scope of the .
In Burn & Co., Calcutta vs Their Employees(1) this Court observed that the object of all labour legislation was ' firstly, to ensure fair terms to the workmen and secondly, to prevent disputes between employers and employees so that production might not be adversely affected and the larger interests of the public might not suffer.
In Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union (2) it was observed " The objects mentioned above can have their fulfilment only in an existing and not a dead industry.
" We accepted the view expressed in Indian Metal and Metallurgical Corporation vs Industrial Tribunal(3) and K. M. Padmanabha Ayyar vs The State Of Madras (4) that the provisions of the , applied to an existing industry and not a dead industry.
The same view was reiterated in Hariprasad Shivshankar Shukla vs A. D. Divikar (5) where we held that 'retrenchment ' in cl.
(oo) of section 2 and section 25F did not include termination of the services of workmen on bona fide closure of business.
Turning now to section 22 of the Act, it is clear enough that el.
(a) applies to a running or existing industry only; when the industry itself ceases to exist, it is otiose to talk of alteration of the conditions of service of the workmen to their prejudice, because their service itself has come to an end.
The alteration referred to in cl.
(a) must therefore be an alteration in the conditions of service to the prejudice of the workmen concerned, in an existing or running industry.
Similarly, the second part of cl.
(b) relating to punishment can have application to a running or existing industry only.
When the industry itself ceases to exist, there can be no question of punishment of a workman by dismissal or otherwise.
We are then left with the word 'discharge '.
Unqualified though the word is, it must, we think, be interpreted in harmony with the general scheme and scope of the .
Our attention has been drawn to (1) ; (4) (2) 2.
(5) [1957] S.C. R.121.
(3) A.I. R. 150 the definition of 'workman ' in cl.
(s) of a. 2, which says ". for the purposes of any proceeding under this Act in relation to an industrial dispute, (the definition) includes any person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
" In the said definition clause also, the word 'discharge ' means discharge of a person in a running or continuing business not discharge of all workmen when the industry itself ceases to exist on a bona fide closure of business.
The true scope and effect of sections 22 and 23 of the Act were explained in The Automobile Products of India Ltd. vs Rukmaji Bala (1).
It was pointed out there that the object of section 22 was " to protect the workmen concerned in disputes which formed the subject matter of pending proceedings against victimisation " and the further object was " to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of these proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relations between the employer and the workmen.
" Those objects are capable of fulfilment in a running or continuing industry only, and not a dead industry.
There is hardly any occasion for praying for permission to lift the ban imposed by section 22, when the employer has the right to close his business and bona fide does so, with the result that the industry itself ceases to exist.
If there is no real closure but a mere pretence of a closure or it is mala fide, there Is no closure in the eye of law and the workmen can raise an industrial dispute and may even complain under a.23 of the Act.
For these reasons, we must uphold the first point taken before us on behalf of the appellant.
The Appellate Tribunal was in error in holding that the (1) ; 151 appellant had contravened cl.
(b) of section 22 of the Act.
The Appellate Tribunal did not find that the closure of the appellants business was not bona fide; on the ' contrary, in awarding compensation, it proceeded on the footing that the appellant was justified in closing its business on account of the reasons stated by it.
As to the agreement of June 15, 1952, the workmen themselves did not abide by it and the appellant 's right cannot be defeated on that ground.
In view of our decision on the first point, it becomes unnecessary to decide the other two points.
On the point of construction of section 22 of the Act,, we approve of the decision of the Allahabad High Court in J. K. Hosiery Factory vs Labour Appellate Tribunal of India (supra) but we refrain from expressing any opinion on the other points decided therein and we must not be understood to have expressed our assent, contrary to the opinion expressed by us in the case of The Automobile Product8 of India Ltd. (supra) to the view that under section 23 of the Act, it is not open to an industrial Tribunal to award compensation in an appropriate case.
In the result, the appeal is allowed and the decision of the Labour Appellate Tribunal dated the 30th October 1952 is set aside.
As the workmen did not appear before us, there will be no order for costs.
We are indebted to Mr. Sukumar Ghosh for presenting before us the case of the workmen as amicus curiae.
Appeal allowed.

summary/full:
Clause (b) Of section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 provides that during the pendency of any appeal under the Act no employer shall discharge any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal, and section 23 enables any employee to make a complaint in writing to such Appellate Tribunal, if the employer contravenes the provisions Of section 22 during the pendency of proceedings before the said Tribunal.
144 During the pendency of an appeal filed before the Labour, Appellate Tribunal the appellant company finding it difficult to run the factory decided to close it down and gave notice to all the workmen that their services would be terminated upon the expiry of thirty days from July 16, 1952.
On August 31, 1952, a complaint was made on behalf of the workmen to the Tribunal under section 23 Of the Act that the appellant had discharged them without the permission in writing of the Tribunal and had thereby contravened the provisions of section 22 of the Act.
It was found that the closure of the appellant 's business was bona fide.
Held, that section 22 of the Act is applicable only to an existing or running industry and that the termination of the services of all workmen, on a real and bona fide closure of business, is not 'discharge ' within the meaning of section 22(b) of the Act.
J. K. Hosiery Factory vs Labour Appellate Tribunal of India (A.I.R. 1956 All. 498), approved on the point of construction of section 22 of the Act.
Pipraich Sugar Mills Ltd. vs The Pipraich Sugar Mills Mazdoor Union followed.


judgement:
etition (Criminal) No. 1166 of 1982.
(Under article 32 of the Constitution of India) AND Writ Petition (Criminal) No. 1167 of 1982 (Under article 32 of the Constitution of India) Gobinda Mukhoty, N.R. Choudhury and S.K. Bhattacharya for the Petitioners.
P. Ram Reddy and G.N. Rao for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
On October 8, 1982, we quashed and set aside the detention order dated December 26, 1981 in respect of detenu Merugu Satyanarayana s/o Ramchander, deferring the giving of the reasons to a later date.
On the same day we quashed the detention order dated February 13, 1982, in respect of detenu Bandela Ramulu @ Lehidas @ Peddi Rajulu @ Ramesh, s/o Venkati, deferring the giving of the reasons to a later date.
Identical contentions were raised in both these petitions and, therefore, by this common order we proceed to give our reasons on the basis of which we made the aforementioned orders.
1166/82.
Detenu M. Satyanarayana was working in Belampalli Coal Mines.
According to him he was arrested on October 22, 1981, but was kept in unlawful custody till October 31, 1981, when he was produced before the Judicial Magistrate who took him in judicial custody and sent him to Central Jail, Warangal.
According to the respondents detenu was arrested on October 30, 1981, and was produced before the Judicial Magistrate on October 31, 1981.
When he was thus confined in jail a detention order dated December 26, 1981 (in the counter affidavit the date of the detention order is shown to be December 28, 1981) made by the District Magistrate, Adilabad, in exercise of the power conferred by sub section
(2) read with sub section
(3) of section 3 of the ( 'Act ' for short) 639 was served upon him on December 29, 1981.
The District Magistrate also served upon the detenu grounds of detention on January 2, 1982.
It is not clear from the record or from the counter affidavit filed on behalf of respondents 1 to 3 whether any representation was made by the detenu and when the matter was disposed of by the Advisory Board.
1167/82.
Detenu Bandela Kamulu according to him was arrested on January 1, 1982, and he was produced before the Judicial Magistrate on January 11, 1982.
The dates herein mentioned are controverted by the respondents and they assert in the counter affidavit that the detenu was arrested on January 8, 1982, and was produced before the Judicial Magistrate on January 9, 1982.
During the period of his incarceration the District Magistrate, Adilabad in exercise of the power conferred by sub section
(2) read with sub s (3) of section 3 of the made an order of detention which was served on the detenu in District Jail, Nizamabad, on February 14, 1982.
Even in this case it is not clear from the record whether the detenu made any representation on how his case was dealt with by the Advisory Board.
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court It appears both the petitions were rejected.
Thereafter the present petitions were filed.
It may be stated at the outset that there is some dispute about the date of arrest of detenu in each case.
But in order to focus attention on the substantial contention canvassed in each case we would proceed on the assumption that the date of arrest given in each case by the respondents is correct.
We do not mean to suggest that the averment of the respondents with regard to the date of arrest is correct but that would be merely a presumption for the purpose of disposal of these petitions.
Mr. Gobinda Mukhoty, learned counsel who appeared for the detenu in each petition urged that on the date on which the detention order came to be made against each detenu he was already deprived of his liberty as he was already arrested and was confined in jail and, therefore, he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order.
Hence no order of detention could be made against him.
640 The impugned detention order in each case recites that the detaining authority, the District Magistrate of Adilabad, made the impugned detention order with a view to preventing the detenu from continuing to act further in the manner prejudicial to the maintenance of public order.
The fact situation in each case as transpires from the counter affidavit filed on behalf of the respondents is that detenu Merugu Satyanarayan was in jail since October 31, 1981, and the detention order in his case was made on December 28, 1981, meaning thereby that the detenu was already confined in jail for a period of nearly two months prior to the date of the detention order.
Similarly, in the case of detenu Bandela Ramulu according to the counter affidavit he was arrested on January 8, 1982, and was confined to jail under the orders of the First Class Magistrate from January 9, 1982.
The detention order in his case was made on February 13, 1982, meaning thereby that the detenu was already confined to jail for a period of one month and four days prior to the date of the detention order.
It is in the background of this fact situation in each case that the contention canvassed on behalf of the detenu by Mr. Mukhoty may be examined Sub section (2) of section 3 of the confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc.
In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity pre judicial to the maintenance of public order.
In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated.
This is the postulate of the section.
And this indubitably transpires from the language employed in sub section
(2) which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order.
Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub section
(2) of section 3, if exercised, would imply that one who is already is sought to be further prevented which is not the mandate 641 of the section, and would appear tautologous.
An order for preventive detention is made on the subjective satisfaction of the detaining authority.
The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order.
(see Ujagar Singh vs State of Punjab, and Jagir Singh vs State of Punjab)(1).
Now, if the man is already detained, can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? In Rameshwar Shaw vs District Magistrate, Burdwan & Anr.(2), this Court held that as an abstract proposition of the law detention order can be made in respect of a person who is already detained.
But having said this, the Court proceeded to observe as under: "As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.
Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years.
It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him.
In dealing with this question, again the consideration of proximity of time will not be irrelevant.
On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a 642 valid order of detention a few days before the person is likely to be released.
The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.
It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years ' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence.
Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
" One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained.
But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But as stated by this Court it will depend on the facts and circumstances of each case.
The view herein taken finds further support from the decision of this Court in Vijay Kumar vs State of J & K and Ors (1), wherein this Court recently held as under: "Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail.
But in such a situation the detaining authority must disclose awareness of the fact that 643 the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made.
This, in our opinion, clearly exhibits non application of mind and would result in invalidation of the order." Mr. Mukhoty next contended that even if a hypothetical case can be envisaged as contemplated by the decision of this Court in Rameshwar Shaw that a preventive detention order becomes necessitous in respect of a person already confined to jail, the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in jail and yet a detention order is a compelling necessity.
It was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order.
Otherwise, according to Mr. Mukhoty, the detention order would suffer from the vice of non application of mind.
The awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason.
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order.
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequence resulting in deprivation of liberty, if mechanically passed without application of mind, is obviously liable to be set aside as invalid.
And that is the case here.
Coming to the facts of each case, the detention order refers to the name of the detenu and the place of his residence.
There is not even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of roughly two months and in another case for a period of one month and four days.
The detenu is referred to as one who is staying at a 644 certain place and appears to be a free person.
Assuming that this inference from the mere description of the detenu in the detention order is impermissible, the affidavit is conspicuously silent on this point.
Not a word is said that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a compelling necessity to pass the detention order.
Therefore, the subjective satisfaction arrived at clearly discloses a non application of mind to the relevant facts and the order is vitiated.
The next contention urged by Mr. Mukhoty was that the detaining authority has not filed an affidavit in opposition but the same has been filed by one Sub Inspector of Police and it speaks about the subjective satisfaction of the detaining authority viz., the District Magistrate and this would show that the District Magistrate had completely abdicated his functions in favour of the Sub Inspector of Police.
The affidavit in opposition on behalf of respondents 1 to 3 who are the State of Andhra Pradesh, the District Magistrate, Adilabad and the Jailor, Central Prison, Hyderabad, has been filed by M. Venkatanarasayya who has described himself as Sub Inspector of Police.
The same Sub Inspector has filed affidavit in opposition in both the cases.
In para 1 of the affidavit in opposition it is stated that the deponent as a Sub Inspector of police is well acquainted with all the facts of the case.
In para 7 of the affidavit in opposition in writ petition 1166/82 he has stated that: 'Only after deriving the subjective satisfaction, the detaining authority passed order of detention against the detenu, as his being at large, will prejudice the maintenance of public order.
We are completely at a loss to under stand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the .
If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police, we would not be far from a Police State.
Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases, if the conditions set out in sub section (3) of section 3 are satisfied and the notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police.
In this case the District Magistrate, the detaining authority has not chosen to file his affidavit.
The affidavit in opposition is filed by a Sub Inspector of Police.
Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the 645 decision of the District Magistrate for making the detention order ? From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police, we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police.
The file was not made available to the Court at the time of hearing of the petitions.
But number of inferences are permissible from the fact that the District Magistrate though a party did not file his affidavit justifying the order and left it to the Sub Inspector of police to fill in the bill.
And the Sub Inspector of Police does not say how he came to know about the subjective satisfaction of the District Magistrate.
He does not say that he had access to the file or he is making the affidavit on the basis of the record maintained by the District Magistrate.
Therefore, the inference is irresistible that at the behest of the Sub Inspector of Police who appears to be the investigating officer in some criminal case in which each of the detenu is implicated, the District Magistrate completely abdicating his responsibilities, made the detention order.
This Court in A.K. Roy vs Union of India & Ors.(1), while upholding the validity of the , repelled the contention that it is wholly unreasonable to confer upon the District Magistrate or Commissioner of Police the power to issue orders of detention for reasons mentioned in sub section
(2) of section 3, observing that the District Magistrate or the Commissioner of Police can take the action under sub section
(2) of section 3 during the periods specified in the order of the State Government only.
This Court also noticed another safeguard, namely, that the order of the State Government under sub section
(3) of section 3 can remain in force for a period of three months only and it is during this period that the District Magistrate or the Commissioner of Police, as the case may be, can exercise power under sub section
(2) of section 3.
The further safeguard noticed by this Court is that both these officers have to forthwith intimate the fact of detention to the State Government and no such order of detention can remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government.
The Court observed that in view of these in built safeguards it can not be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub section
(2) (see para 72).
646 If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a Sub Inspector of Police, the safeguards noticed by this Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy.
We only hope that in future the District Magistrate would act with responsibility, circumspection and wisdom expected of him by this Court as set out earlier.
However, the conclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority.
We refuse to take any notice of an affidavit in opposition filed by a Sub Inspector of Police in the facts and circumstances of this case.
The last contention canvassed by Mr. Mukhoty is that even though assurances were given on the floor of Parliament as well as while hearing the case of A.K. Roy wherein constitutional validity of the was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents, in flagrant violation thereof the affidavit in opposition would show that the power of preventive detention was exercised on extraneous and irrelevant consideration, the detenu in each case being a member and organiser of CPI (ML) (People 's War Group), a political party operating in this country.
In the affidavit in opposition in writ petition 1166/82, the relevant averments on this point read as under : "In reply to para 7 of the petition these answering respondents submit that it is not correct to say that the grounds of detention failed to disclose any proximity with the order of detention and underlying purpose and object of the inasmuch as the detenu is one of the active organisers of CPI (ML) (People 's War Group) believing in violent activities with the main object to overthrow the lawfully established Government by creating chaotic conditions in rural and urban areas by annihilating the class enemies, went underground to preach the party ideology and to build up the cadres by indoctrinating them for armed struggle".
There is a similar averment in the affidavit in opposition in the connected petition also.
We would have gone into this contention 647 but for the fact that having found the detention order invalid for more than one reason, it is unnecessary to examine this contention on merits.
Non examination of the contention need not lead to the inference that the contention is rejected.
We keep it open to be examined in an appropriate case.
These were the reasons for which we quashed and set aside the order of detention in each case.
S.R. Petitions allowed.

summary/full:
In both the Writ Petitions, when the petitioners were already in judicial custody and thus have been deprived of their liberty, the District Magistrate Adilabad passed the detention orders in exercise of the power conferred under Section 3(2) read with Section 3(3) of the .
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court and both the petitions were rejected.
In the present petitions, it was contended as follows: (i) that in both the cases, the detenus being in judicial custody were already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order and, therefore, no order of detention could be passed against each of them; (ii) that the affidavit in opposition was filed by a sub inspector of police and not by the detaining authority, i.e. the District Magistrate had completely abdicated his powers; and (iii)that in flagrant violation of the assurances given at the hearing of A.K. Roy 's case, that the drastic and draconian power of preventive detention will not be exercised against political opponents, the affidavit in opposition would show that the power of preventive detention was exercised against political opponents because the detenu in each case was a member and organizer of C.P.I. (M.L.) (Peoples War Group), a political party operating in this country.
Allowing the petition, the Court 636 ^ HELD: 1:1.
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order.
In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated.
That this is the postulate, indisputably transpires from the language employed in sub section (2) of Section 3, which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order.
If it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub section (2) of Section 3, if exercised, would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section, and would appear tautologous.
[640 F H, 641 A] 1.2 The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order.
If the man is already detained a detaining authority cannot be said to have subjectively satisfied himself that a preventive detention order can be made.
[641 A C] Ujagar Singh vs State of Punjab, Jagir Singh vs State of Punjab ; and Rameshwar Shaw vs District Magistrate, Burdwan and Anr.
[1964]4 S.C.R. 921 referred to.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained in jail is under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But, it will depend on the facts and circumstances of each case.
[642 D F] Vijay Kumar vs State of J & K and Ors.
A.I.R. 1982 S.C. 1023, applied.
The awareness of the detaining authority must be of the fact that the person against whom the detention order is being made is already under detention.
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order.
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would 637 unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequences resulting in deprivation of liberty, if mechanically passed without the application of mind is liable to be set aside as invalid.
[643 D G] 3:1.
A sub inspector of police cannot arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power of detention is conferred by the .
If the power of preventive detention is to be conferred on an officer of the level and standing of a sub inspector of police, we would not be far from a police state.
[644 E F] 3:2.
Parliament has conferred power primarily on the Central Government and in specific cases, if the conditions set out in sub section (3) of section 3 of the Act are satisfied and the Notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police.
[644 F G] 3:3.
In this case, (a) the District Magistrate, the detaining authority has not chosen to file his affidavit, (b) the affidavit in opposition filed by the sub inspector would imply either he had access to the file of the District Magistrate or he had influenced the decision of the Magistrate for making the detention order and in any case the District Magistrate completely abdicated his functions in favour of the sub inspector of Police because (i) the sub inspector does not say in the affidavit how he came to know about the subjective satisfaction of the District Magistrate or that he had access to the file, and (ii) the file was not made available to the Court.
If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a sub inspector of Police, the safe guards noticed by the Supreme Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy.
Hence the affidavit in opposition cannot be taken notice of, here.
[644 G H, 646 A C] A.K. Roy vs Union of India & Ors. ; , referred to.
The affidavit in opposition filed in the present case would show that the power conferred for ordering preventive detention was exercised on extraneous and irrelevant consideration in respect of each detenu he being a member of and organiser of C.P.I. (M.L.) (People War Group), a political party operating in this country which fact motivated the order and, therefore, a flagrant violation of the assurances given on the floor of Parliament and while hearing the case of A.K. Roy wherein the constitutional validity of the Act was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents.
But it is unnecessary to examine this aspect on merits, in view of the fact that the detention orders have been found to be invalid for more than one reason.
Non examination of the contention need not lead to the inference that the contention is rejected but kept open to be examined in an appropriate case.
[646 D E, 647 A B]