judgement:
Appeal No. 12 of 1968.
732 Appeal from the judgment and order dated April 12, 1967 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 812 of 1966.
M. N. Phadke and Mohinder Narain, for the appellant.
The Judgment of the Court was delivered by Mitter, J.
In this appeal by certificate the question involved is, whether the Labour Court at Nagpur could exercise jurisdiction under section 78(1)D of the Bombay Industrial Relations Act in a case where the employee of an industry governed by the Act had not complied with the provisions of section 42(4) of the said statute read with the proviso to the said sub section.
The Bombay High Court has held that it was not necessary for an employee first to approach the employer or to follow the procedure laid down in section 42(4) including the proviso before he could apply to the Labour Court for relief under section 7 8 (1) D.
The facts are as follows.
One Nathu, respondent No. 3 herein, was employed as a munshi in the appellant 's Bidi factor at Bhandara.
The appellant had framed a charge sheet against him in respect of certain acts of misconduct, gross negligence of duty, insubordination etc.
on May 13, 1965.
An enquiry in respect thereof was held on May 15th after receipt of written statement from Nathu.
Holding that the charges leveled against him were proved, the employer dismissed the third respondent with effect from August 1, 1965.
The said respondent filed an application challenging the order of dismissal before the Labour Court under section 78 of the Bombay Industrial Relations Act, 1946, hereinafter referred to as the 'Act ', on the 5th August.
His complaint was that the charge sheet was not proper, that the Head Office of the appellant had no authority to deal with his case tinder the Standing Orders, that no evidence was allowed or filed on behalf of the employer and that the finding was based only on his statement and in particular his cross examination.
He had been forced to append his signature to a certain paper without the same having been read over to him.
The Labour Court after holding an enquiry took the view that the findings of the enquiry officer were perverse, that the order of dismissal was passed by a person not authorised to exercise the power and consequently the Labour Court directed the reinstatement of the third respondent with all back wages.
The appellant preferred an appeal to the State Industrial Court contending, inter alia, that the third respondent had failed to comply with the provisions of law in that he did not make an application under section 42(4) of the Act which was a condition precedent to approaching the Labour Court and prayed that the order of the Labour Court should be set aside on that ground alone.
The Industrial Court confirmed the order of the Labour Court.
The appellant then filed a peti 733 tion under article 227 of the Constitution before the Bombay High Court.
The High Court field against the appellant.
Unfortunately, there is no appearance for the respondent before us.
In order to appreciate the scope of the Labour Court 's jurisdiction under the Act and in particular the attractability of section 78(1)D it is necessary to examine the scheme of the Act as a whole including the provisions relevant for this appeal.
The Act when first passed in 1946 known as the Bombay Industrial Relations Act was applicable to a limited area within the State.
In the Vidarbha region of the State, there was another similar Act in operation.
The Act suffered numerous amendments from time to time until 1965 when Maharashtra Act 22 of 1965 was passed The new, Act was described as an Act "to extend the Bombay Industrial Relations Act, 1946 throughout the State of Maharashtra and for that and for certain other purposes further lo amend that Act, and to repeal corresponding laws in force in any part of the State".
Under section 2 of that Act the Bombay Industrial Relations Act of 1946 as in force immediately before the commencement of the 1965 Act in the Bombay area of the State of Maharashtra was extended to the rest of the State.
The C.P. and Berar Act was repealed.
As a result, the Act now extends to the whole of the State.
Chapter I contains only three sections : section 2 deals with the extent, commencement and application of the Act and section 3 is the definition section.
Chapter 11 sets out the authorities to be constituted or appointed under the Act.
section 9 provides for the constitution of Labour Courts and section 10 of Indus trial Courts.
Chapter III containing sections 11 to 22 deals with registration of Unions and Chapter IV with approved Unions.
Chapter V deals with representatives of employers and employees and appearance in proceedings on their behalf.
Chapter VI deals with Powers and duties of labour officer and Chapter VIII deals with standing, Orders.
Chapter VIII containing sections 42 to 47 deals with "changes".
Chapter IX deals with Joint Committees, Chapter X with Conciliation Proceedings, Chapter XI with Arbitration and Chapter XII with Labour Courts, their territorial jurisdiction, heir powers, commencement of proceedings before the Labour etc.
It is not necessary to take note of other Chapters excepting section 123 in Chapter XIII which deals with the rule making power. 'the relevant definitive clauses in section 3 are "(8) "change" means an alteration in an industrial matter; (13) "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes (a) a person employed by a contractor to do any ,work for him in the execution of a contract with an 734 employer within the meaning of sub clause (e) of clause (14) (b) a person who has been dismissed, discharged or retrenched or Whose services have been terminated from employment on account of any dispute relating to change in respect of which a notice is given or an application made, under section 42 whether before or after his dismissal.
discharge, retrenchment or, as the case may be, termination from employment; but does not include (i) a per. ,on employed primarily in a managerial administrative, supervisory or technical capacity drawing basic pay (excluding allowances) exceeding five hundred and fifty rupees per month; (ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such person which the State Government may, by noti fication in the Official Gazette, specify in this behalf.
(17) "Industrial dispute" means any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter; (18) "industrial matter ' means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees.
or the mode. terms and conditions of employment, and includes (a) all matters pertaining to the relationship between, employers and employees, or to, the dismissal or non employment of any person; (b) all matters pertaining to the demarcation of functions of any employees or class of employees; .
(c) all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act; (d) all questions of what is fair and right in relation to any industrial matter having regard to the person immediately concerned and of the community as a whole;" 735 Under section 3 1 (1) every employer must submit for approval to the Commissioner, of Labour in the prescribed manner standing Orders regulating the relations between him and his employees.
with regard to the industrial matters mentioned in Schedule within six weeks from the date of the application of the Act to the industry.
Under sub section
(5) of the section : "Until standing orders in respect of an undertaking come into operation under the provisions of sub section (4), model standing orders, if any, notified in the Official Gazette by the State Government in respect of the industry shall apply to such undertaking." Schedule 1 to the Act contains among other matters items 10 and 11 relating to termination of employment including notice to be given by the employer and employee and punishment including warning, censure, fine, suspension or dismissal for misconduct, suspension pending enquiry into alleged misconduct and the acts or omissions which constitute misconduct.
Normally, therefore, standing orders must deal with miscon duct which can lead to dismissal or other punishment.
Under section 41 the provisions of the are not to apply to any industry to which the provisions of Chapter VII of the Act apply.
As 'industrial matter ' as defined in section 3(18) includes all matters pertaining to the dismissal or non employment of any person, an industrial dispute within the meaning of section 3(17) must necessarily arise when there is any difference between an employer and an employee about such dismissal.
The solution to the question before us turns on the interpretation of the relevant provisions in Chapter VIII headed "changes". 'Change ' as already noticed means any alteration in an industrial matter.
Under section 42(1) any employer intending to effect any change in respect of an industrial matter specified in Schedule 11 of which item 3 reads "Dismissal of any employee except as provided for in the standing orders applicable under this Act".
must give notice of such intention in the prescribed form to the representative of the employees.
He must also send a copy of such notice to the , Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed.
He has also to affix a copy of such notice at a conspicuous place of the premises where the employees affected by the change are employed.
Under sub section
(2) of section 42 an employee desiring a change in respect of an indus 736 trial matter not specified in Schedule I or Schedule III has to give notice in the, prescribed form to the employer with similar intimation to others.
Under sub section
(4) any employee desiring a chance in respect inter alia, of any industrial matter specified in Schedule III of which item 6 reads "Employment including (i) reinstatement and recruitment" must make an application to the Labour Court. 'This subsection has a proviso which runs : "Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached, the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period.
" section 44 envisages an agreement between the parties regarding "change" and registration of the memorandum thereof by the Registrar.
Under section 44 A a memorandum of agreement arrived at is to be forwarded by either party to the Registrar by registered post and an agreement which is registered under section 44 is to come into operation as laid down in section 45.
The territorial jurisdiction of Labour Courts extends to local areas for which they are constituted under section 77 in Part XII.
section 78 runs as follows : "78.
(1) A Labour Court shall have power to A. decide (a) disputes regarding (i) the propriety or legality of an.
order passed by an employer acting or purporting to act under the standing orders; (ii)the application and interpretation of standing order; (iii) any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule III except item (5) thereof and matters arising out of such change; (b) industrial disputes (i) referred to it under section 71 or 72; (ii) in respect of which it is appointed as an arbitrator by a submission; 737 .lm15 (c)whether a strike, lock out, closure, stoppage or any change is illegal under this Act; B. try offenses punishable under this Act where the payment of compensation on conviction for an offence is provided for, determine the compensation and order it, ; payment; C. require any employer to (a) withdraw any change which is held by it to be illegal, or withdraw temporarily any change the legality of which is a matter of issue in any proceeding pending final decision, or (b) carry out any change provided such change is a matter in issue in any proceeding before it under this Act.
D.require an employer, where it finds that the order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee made; by the employer, (i) was for fault or misconduct committed by the employee which came to the notice of the employer more than six months prior to the date of such order;, or (ii) was in contravention of any of the provisions of ' any law, or of any standing order in force applicable to such employee, or (iii) was otherwise improper or illegal, (a) reinstate the employee forthwith or by a date specified by it in this behalf and pay him wages for the period beginning can the date of such order of dismissal, discharge, removal, retrenchment, termination of ' service or suspension, as the case may be, and ending on the date on which the Labour Court orders his reinstatement or on the date of his reinstatement, whichever is later, or (b) to pay to the employee in addition to wages (being wages for the period commencing on the date of his dismissal, discharge, removal, retrenchment or termination of service and ending on the date on which the Labour Court orders such payment), such sum not exceeding four thousand rupees by way of compensation, regard being had to loss of employment and possibility of getting suitable employment thereafter.
738 (2) Every offence punishable under this Act shall he tried by the Labour Court within the local limits of whose jurisdiction it was committed.
Explanations dispute falling under clause (a) of paragraph A of sub section (1) shall be deemed to have arisen if within the period prescribed under the proviso to sub section (4) of section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso.
" Clause D of section 78(1) was introduced in the Act of Maharashtra Act 22 of 1965.
section 31 of the Act of 1965 not only introduced cl.
D but also made changes in paragraphs A and C thereof.
The forerunner of Act 22 of 1965 i.e. Bill No. LXVI of 1964, the object of which was to make numerous changes in the Act shows in its Statement of Objects and Reasons that clause 31 of the Bill was meant to "enlarge the powers of the Labour Court under s.78".
According to this clause "The Labour Court is empowered (by paragraph D) to direct temporary withdrawal of any change the legality of which is a matter of issue in any proceedings before it, pending its final decision.
" The Labour Court was also thereby further empowered "to require an employer to reinstate an employee with full back wages or pay him wages and compensation not exceeding Rs. 2,500/. if the employee Was dismissed, discharged" etc.
The Statement of Objects and Reasons amply demonstrates that by introducing paragraph D in section 78(1) the legislature was 'Only seeking to arm the Labour Court with further and more effective powers to grant relief.
Under section 79(1) proceedings before a Labour Court in respect of disputes falling under clause (a) of paragraph A of sub section (1) of section 78 must be commenced on an application made by any of the parties to the dispute etc.
and under sub section
(2) every application under sub s.(1) has to be made in the prescribed from and manner.
Under section 84 an appeal lies to the Industrial Court against the decision of a Labour Court in respect _ of a matter falling under clause (a) or cl.
(c) of paragraph A of sub section
(1) ,of section 78 except in the case of lock out etc.
or a decision of such .court under paragraph C of sub section
(1) of the said section.
Reading section 78 as a whole, there is no doubt left in our minds 'that the legislature wanted the provision to be a comprehensive one.
It contains all the powers of the Labour Court in the matter of all disputes mentioned and gives it jurisdiction to punish 739 certain offenses under the Act.
It does not lay down the procedure for the attraction of such jurisdiction.
So far as disputes are concerned, the procedure is as laid down in section 79.
It will be noted that no mention is made in section 84 of paragraph D of section 78(1) but inasmuch as orders of dismissal, discharge, removal ,retrenchment, termination of service or suspension of an employee would come under section 78(1) paragraph A, the legislature felt it unnecessary to make any mention of an order under paragraph D in section 84.
Paragraph D, so far as we can see, is not referred to anywhere, else in the Act.
The question therefore narrows down to this i.e. whether the legislature by inserting paragraph D in section 78(1) intended to chalk out a wholly different course of action to that prescribed in Chapter VIII dealing with changes.
In our view, there is nothing in the Act which warrants such a conclusion.
The scheme of Chapter VIII seems to be that in regard to any "change" in an matter there must be compliance with the provisions of that Chapter.
In other words, effort must first be made by the employer intending to effect any change in respect of matters covered by section 42(1) or an employee desiring a change in respect of any order passed by the employer under standing orders which would of necessity include an order of dismissal, to see whether it was possible to come to any agreement and an application to the labour court could only be resorted to after efforts had been made to settle the dispute and no agreement had been arrived at.
The scheme of section 7 8 (1) seems to be that a Labour Court is to have power to decide, all the disputes covered by paragraph A. Paragraph B thereof gives the Labour Court the power to try offenses punishable under the Act and cognizance of such offenses .;an only be taken under section 82.
Paragraphs C and D set out what relief the Labour Courts are empowered to give including directions as may be found necessary in that behalf.
As already noted, the Statement of Objects and Reasons (A clause 31 of the Bill which later resulted in Act 22 of 1965, shows that the underlying dea was to enlarge the powers of the Labour Court.
The Legislature nowhere intended to make a complete departure from the procedure to be adopted when powers under section 78(1)D were to be exercised.
Rule 5 5 of the Bombay Industrial Relations Rules, 1947 shows how an application is to be made and the period within which it is to be made.
It must be held that a person who is dismissed would be an employee within the meaning of section 3(13) of the Act and we can 740 see no valid reason for differentiating the case of a dismissed employee from one who complains of some other change.
As the scheme of the Act is that disputes should be settled as far as possible and primarily through conciliation and agreement, it does not stand to reason that an employee should be able to side step all this by a direct reference to the Labour Court.
A Labour Court is a creature of the statute and it can only exercise such jurisdiction as the statute confers on it : if there are certain pre conditions to the exercise of its jurisdiction, it must refuse to entertain any such application unless such pre conditions are first complied with.
In the result we set aside the order of the High Court, allow the appeal and quash the orders of the Labour Court and the Industrial Court but do not make any order for consequential relief, in view of the solemn assurance given to this Court by Mr. Phadke, learned counsel for the appellant that his client does not desire to give effect to the order of termination of service passed on the third respondent.
In the circumstances of the case, we make no order as to costs.
K.B.N. Appeal allowed L1031 Sup.
Cl/72 2500 25 8 73 GIPF.

summary/full:
Against the order of the appellant company dismissing him, an employer filed an application before the Labour Court under section 78 of the Bombay Industrial Relations Act, 1946.
The Labour Court set aside the order.
The Industrial Court and the High Court confirmed the order of the Labour Court rejecting the appellant 's contention that the order of the Labour Court was liable to be set aside on the ground that the employee did not make an application under section 42(4) in Chapter VIII of the Act ' which was a condition precedent to approaching the Labour Court.
On the question whether the Labour Court could exercise jurisdiction under section 78(1) D of the Act in a case where the employee of an industry governed by the Act had not complied with the provisions of sub section (4) of section 42 of the Act read with the proviso to the sub section, HELD:Allowing the appeal.
(i) The scheme of Chapter VIII of the Act is that in regard to any "Change" in an industrial matter there must be compliance with the provisions of that chapter.
There is nothing in the Act which warrants the conclusion that the legislature by inserting paragraph D in section 78(i) intended to chalk out a wholly different course of action to that prescribed in Chapter VIII dealing with changes.
The ,scheme of section 78 (1) is that Labour Court is to have power to decide all the disputes covered by paragraph A.
In other words, efforts must first be made by the employer intending to effect any change in respect of matters covered by section 42(1), or an employee desiring a change in respect of any order passed by the employer under standing order which would of necessity include an order of dismissal, to see whether it was possible to come to any agreement and an application to the Labour Court could only be resorted to after efforts had been made to settle the dispute and no agreement had been arrived at.
[739C G] (ii) A person who is dismissed would, be an employee within the meaning of section 3(13) of the Act and there is no valid reason for differentiating the case of a dismissed employee from one who complains of some other change.
[739H]


judgement:
minal Appeal No. 3 of 1972.
Appeal by special leave from the judgment and order dated January 25, 1971 of the Madhya Pradesh High Court, Indore Bench in Criminal Appeal No. 391 of 1969.
section K. Gambhir, for the appellant.
M. N. Shroff, for the respondent.
The, Judgment of the Court was delivered by Beg, J. Shiv Govind, the appellant , has obtained Special.
Leave to appeal against only that part of the Judgment and order of the High Court of Madhya Pradesh by which his sentence of one, year 's Rigorous Imprisonment, passed by the Additional Sessions ' Judge, Indore, upon a conviction under Section 366 Indian Penal Code, was enhanced to seven years ' Rigorous Imprisonment 836 and a fine of Rs. 100/ , and, in.
default of payment of fine, to three months ' further rigorous imprisonment.
The appellant, aged about 20 years at the time of the alleged offence of 9th of August, 1969, was the youngest of three persons who were jointly charged and tried for offences punishable under Section 366 and 354 I.P.C. The prosecution case was : Kumari Seema, a girl below 18 years of age, was offered a lift on his bicycle by the accused, Kamal Singh, aged 30 years, while she was returning to her homefrom her School on 9th August, 1969.
The girl hesitated.
But, as she reposed confidence in Kamal Singh, whom she looked upon as her uncle, she accepted the offer.
Kamal Singh took Kumari Seema on his bicycle to the Regal Cinema where she part took of some.
refreshment ordered by Kamal Singh.
Meanwhile, the appellant Shiv Govind and the accused Punani, aged 26, arrived in a car.
Kamal Singh asked Kumari Seema to go with the two younger men in their car.
Seema refused.
Then, Kamal Singh asked her to go on his bicycle to Yashwant Talkies.
She complied with this request.
At this Cinema, Kanial Singh deposited his Cycle at the Cycle stand.
The appellant Shiv Govind and his companion Punam had followed in their car.
The three men succeeded in persuading Seema, despite her initial refusal, to sit in the car and to go for a short pleasure trip in it on the, definite assurance that she will soon be reached home.
After the girl had sat in the car she was driven to a place called Mandow, a number of miles away from Indore, and was made to alight at a tourist 's bungalow.
There two rooms were engaged by the accused.
, Kamal Singh occupied one of the two rooms and the girl was closeted in the other room with the appellant and his companion Punam, who were both drunk.
One of the two youngmen caught hold of the hands of the girl while the other tried to undress her with the object of raping her.
Kumari Seema, at this point, feigned sudden indisposition so that the two youngmen had to bring her out into the gallery for fresh air.
She managed to escape while the accused went inside to fetch some water for her, She rushed into the house of one Babulal Kamdar and complained to him about the incident.
This led to a communication of information of the offences to the Police which went to the tourist 's bungalow.
and arrested the three accused who were brought to Police Station Nalcha where a First Information Report was lodged.
The Trial Court had examined the evidence given in support of the case stated above.
This included medical evidence on the question of the age of the girl, because, while the prosecution alleged that she was below 16 years of age, the accused pleaded that she was above 18 years of age.
Evidently, the case of the accused 837 Was that Kumari Seema was a consenting party to whatever took place.
Although the girl was attending a School, the entry of her age in the School Register was not disclosed.
Despite some discrepancies in the evidence relating to the age of the girl, the trial court came to the conclusion that it was between 16 to 19 years.
It relied mainly on expert evidence of Doctors who had used the ossification test.
The Trial Court had also noticed the discrepancies between the prosecution version, as set out above by Kumari Seema in her evidence in Court.
and the story given out by her in the First lnformation Report where she had stated that she had joined the party of the accused at the crossing of Bijasan Road.
The earlier version suggested that the girl had herself gone to meet the party of the accused by appointment.
The consent of the girl was, however, immaterial in view of the finding of the Trial Court about the age of the girl.
The fact that she was taken to Mandow, where something happened at the tourist 's bungalow which she disapproved of, was corroborated by the evidence of Babulal Kamdar, and Kailash Sharma, in addition to the two police constables of Mandow out post.
The Trial Court which had the advantage, of watching the demeanour of the girl, had come to the conclusion that, although the girl may have tried to improve her version and pretend that she was unwilling to accompany Kamal Singh, who had come in a car for her according to the first version, yet, the charge under Sec.
366 I.P.C., was established against each of the three accused and the charge under Sec.
354 I.P.C. was established against Shiv Govind, appellant, and his companion Punam.
The three accused were, therefore, convicted under Sec. 366, and each was sentenced to one year 's rigorous imprisonment.
The two accused Shiv Govind and Punam were also convicted under Sec.
354 I.P.C., and sentenced to four months rigorous imprisonment, but the two sentences were ordered to run concurrently.
When the case came up in appeal to the High Court, a notice: of enhancement of the sentence under Sec.
366 I.P.C. was issued to each of the three appellants, and their sentences were enhanced, as indicated above, after the appellants had been heard.
It is only Shiv Govind who has appealed to this Court.
Shiv Govind had also applied under Sec.
561A. Criminal Procedure Code to the High Court, after the dismissal of his appeal and enhancement of the sentence, by the High Court, claiming the benefit of Sec. 6 and 11 of the Probation of Offender 's Act.
But this application was rejected by the learned Judge who had enhanced the sentence passed upon the appellant, although he 838 round that the report of the Probation Officer about the conduct of the accused while undergoing the sentence, which was sent far, was favourable to the appellant.
It appears from the two Judg ments given by the learned Judge who enhanced the sentence of the appellant and who subsequently dismissed the application Linder Sec.
561A Criminal Procedure Code also, that the view taken by him was that, having regard to the facts and circumstances and of the case and the offence committed by the appellant, the enhanced sentence was deserved by him.
We have, therefore, examined the Judgment of the High Court Linder appeal before us in order to discover the special reasons Which induced the learned High Court Judge to differ from the ( )pinion of the Trial Court about the appropriate sentence to be imposed upon the appellant.
The only reason given by the learned Judge for enhancing the sentence was that Kumari Seema had reposed confidence in Kamal Singh, whom she regarded as an Uncle, so that she could not expect foul play from him.
The learned Judge thought the girl 's trust and confidence in Kamal Singh explained why she did not protest when she was taken in the car and then made to get down at the tourist 's bungalow.
It seems, however, from the account of the occurrence given in the Judgment under appeal, that the learned Judge was shocked by the plight of Kumari Seema, due to the perfidy of Kamal Singh, and by.
a contemplation of the possible consequences to her if she had not behaved in a particularly.
brave and intelligent manner so as to escape from her predicament.
The learned Judge mentioned that the girl had risked her life to escape.
We, however, find that there was no suggestion in the evidence anywhere that any threat to the life of Kumari Seema was held out.
There was no evidence that the girl had seriously struggled to escape or had raised shouts for help which would have brought people around to her aid.
Nor was there any evidence that the accused tried to obstruct her or to chase her when she escaped from the tourist 's bungalow allegedly by resorting to a ruse.
The High Court was so impressed by the girl 's uncorroborated version of her own heroism, which did not tally with her first version in the First Information Report, that it overlooked the infirmities in the girl 's evidence discussed by the trial court.
We find the trial court 's view of the whole case to be, quite balanced and objective.
We do not think that the severer view of the High Court could be reasonably justified.
It seems clear to us that the High Court had overlooked the principles, laid down by this Court repeatedly, which should 839 govern the exercise of powers of the High Court to enhance sen tences Imposed by trial courts.
In Bed Raj vs The State of Uttar Pradesh.
this Court observed at page 588 589 "A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; See for example the observations in Dalip Singh vs State of Punjab , 156) and Nar Singh vs State of Uttar Pradesh [1955](1) S.C.R. 238, 2411.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In our opinion, the lese principles have not been observed.
It is impossible to hold in the circumstances described that the Sessions Judge did not impose a subs tantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.
In the circumstances.
bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored".
We think that what was laid down by this Court.
in Bed Raj 's case (Supra) is fully applicable to the case before us.
We may also mention the similar views expressed by this Court in.
Alamgir & A nr., vs The State of Bihar (2).
We may observe that decision of this Court in Nabi Bux and Ors.
vs The State of Madhya Pradesh(: '), is distinguishable from the case before us.
In that case the High Court had enhanced a sentence having regard to all the facts and circumstances justifying the enhancement.
In the case before us we find that the High Court had not noticed a number of facts duly considered by the trial Court so that the exercise of power of enhancement of the sentence under Sec.
366 I.P.C. could not be reasonably justified here.
Consequently, we allow this appeal by setting aside the order of enhancement of sentence by the High Court of Madhya Pradesh and restore the sentence of one year 's rigorous imprisonment (1) [1955] (2) S.C.R. p. 583.
(2) [1959] Supp.
(1) S.C.R. 464.
(3) ; 840 passed upon the appellant by the learned Sessions Judge for the offence under Sec.
366 I.P.C. of which the appellant was convict ed.
The concurrent sentence of four months rigorous imprisonment under Sec.
354 I.P.C., which was not interfered with by the High Court, is maintained.
We understand that the appellant has already undergone more than one year 's imprisonment awarded to him and that he is in jail as his application for bail was rejected.
If this is so, the appellant will be released forthwith unless wanted in some other case.
K.B.N. Appeal allowed.

dataset_name: IN-Abs

summary/full:
A question of sentence is a matter of discretion.
It is well settled that when discretion has been properly exercised along accepted judicial lines.
an appellate Court should not interfere to the detriment of an accused person.
Such interference will be justified only by strong reasons Which must be disclosed on the fact of the, judgment.
In a matter of enhancement there should not be interference when the sentence , passed imposes substantial punishment.
lnterference is only called for when it is manifestly inadequate.
[839 B] Where the trial court after taking into account all the circumstances end also the discrepancies in the prosecution version convicted the appellant to one years, imprisonment under section 366, Penal Code, and the High Court in appeal, enhanced the sentence to seven years ' imprisonment.
HELD : that the High Court had not noticed a number of facts duly considered by the trial court and, therefore, the exercise of the power of enhancement could not be justified.
[839 G] Bed Rai vs The State of Uttar Pradesh, ; , and Alamgir & Anr.
vs The State of Bihar, [1959] Supp.
I S.C.R. 464, referred to.
Nabi Bux and ors.
vs The State of Madhya Pradesh, A. 1.
R. , distinguished.


judgement:
Appeal No. 118 of 1953.
Appeal from the Judgment and Decree dated the 28th July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No. 365 of 1946 arising out of the Decree dated the 31st day of October 1946 of the Court of the SubJudge, 1st Class, Pathankot in Suit No. 110 of 1945.
Rajinder Narain, for the appellant.
K. L. Gosain (R. section Narula and Naunit Lal, with him), for the respondent.
January 21.
The Judgment of the Court was delivered by DAS J.
This is an appeal by the plaintiff in a suit for a declaration of his title as collateral within ' four degrees of Gurdial, who was a Sarswat Brahmin, resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit.
Gurdial died many years ago leaving certain lands in villages Bhadroya, Kingarian and Pathankot, Tehsil Pathankot in the district of Gurdaspur, and leaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi, the respondent before us.
Some time in the year 1926, a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1,539 7 0 was awarded to Musammat Melo.
On ail objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge, Gurdaspur, with a direction to pay the interest on this amount to Musammat Melo.
On the 28th September 1944 Musammat Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial.
On the 10th March 1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of 1194 Rs. 1 539 7 0 in preference to the respondent under the custom governing the parties *hereunder the collaterals of the last male holder excluded the daughter.
The respondent contested the suit mainly on the grounds (i) that the suit for a mere declaration was not maintainable (ii)that the parties were governed by Hindu Law and not by custom, (iii)that the appellant was not a collateral of Gurdial at all, (iv)that the properties in suit were not ancestral, and (v) that there was no custom whereunder the collaterals of the father who was the last male holder excluded the daughter from succession to the selfacquired property of her father.
The Subordinate Judge in his judgment pronounced on the 31st October 1946 held (i) that the lands in suit being in possession of tenants, the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs. 1,539 7 0 was not maintainable in view of the provisions of the Indian Succession Act relating to succession certificates, (ii)that the parties were governed by custom and not by Hindu Law, (iii)that the appellant was a collateral of Gurdial within four degrees, (iv)that the land in Khata No. 2 of village Kingarian was ancestral while the rest of the lands in suit were non ancestral, and (v) that there was a custom according to which daughter was excluded from inheritance by the collaterals up to the fourth degree with respect to ancestral as well as self acquired property of the last male holder as laid down in the case of Buta Singh vs Mt. Harnamon(1).
In the result, the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own costs.
(1) A.I.R. 1946 Lah.
306. 1195 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court.
The appellant preferred cross objections against the order as to costs and against the finding that the lands in the three villages except the land in Khata No. 2 of village Kingarian were non ancestral.
After the partition of India the appeal was transferred to the High Court of East Punjab.
By its judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the cross objections on the following findings: (i) that the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants,, (ii) that the lands in suit except the land in Khata No. 2 of village Kingarian were non ancestral, and (iii) that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non ancestral property in preference to collaterals even though they were within the fourth degree.
The High Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellant 's favour was made to relate only to the land in Khata No. 2 of village Kingarian which was held to be ancestral.
On an application made by the appellant on the 26th August 1949 the High Court, by its order dated the 5th June 1950, granted him a certificate of fitness to appeal to the Federal Court.
After the commencement of the Con stitution of India the appeal has come before this Court for final disposal.
The first question raised before us but not very seriously pressed is as to whether the lands in suit other than those in Khata No. 2 in village Kingarian were ancestral or self acquired.
Our attention has not been drawn to any material on the record which induces us to take a view different from the view concurrently taken by the Courts below.
We, therefore, see no force or substance in this contention, 153 1196 The main fight before us has been on the question as to whether there is a custom in the Gurdaspur district governing the parties under which a collateral within the fourth degree excludes the daughter of the last male holder from succession to the self acquired property of her father.
The customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 of Rattigan 's Digest of Customary Law.
It is categorically stated in subparagraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree.
Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab".
Indeed,the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singh(1).
The general custom of the Punjab being that a daughter excludes the collaterals from succession to the selfacquired property of her father the initial onus, there fore, must, on principle, be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties.
Indeed, it has been so held by the Judicial Committee in Mst.
Subhani vs Nawab(2) and the matter is now well settled.
The appellant claims to have discharged this initial onus in two ways, namely (1) by producing the Riwaj i am of the Gurdaspur district prepared by Mr. Kennaway in 1913 and (2) by adducing evidence showing that the collaterals of one Harnam Singh, who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in preference to his daughter.
It is pointed out that no instance has been proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the self acquired property of the father.
The trial Court (1) ; (2) I.L.R. 1197 as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy, that it did not appear whether the properties left by Harnam Singh were ancestral or self acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime.
Further, the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh, even if they were self acquired, might well have been the result, as held by the High Court, of some family arrangement.
We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigan 's Digest of Customary Law.
The appellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj i am recording the custom of the district of Gurdaspur which was compiled by Mr. Kennaway in 1913.
Reference is also made to the earlier Riwaj i ams of the Gurdaspur District prepared in 1865 and 1893.
Answer to question 16 as recorded in the Riwaj i am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the daughters are excluded by the widow and male kindred of the deceased., however remote.
This answer goes much beyond the answers to the same question as recorded in the Riwaj i ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees.
The answer to question 17 of the 1913 Riwai i am like those to question 17 of the 1865 and 1893 Riwaj i ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or 1198 ancestral and (ii) the movable or self acquired property of their respective fathers.
It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj i ams by citing instances of succession contrary to these answers.
In support of this contention reference is made to the observations of the Privy Council in Beg vs Allah Ditta(1) that the statements contained in a Riwaj i am form a strong piece of evidence in support of the custom therein entered subject to rebuttal.
Reliance is also placed on the observations of the Privy Council in Mt. Vaishno Ditti vs Mt. Rameshri(2) to the effect that the statements in the Riwaj i am might be accepted even if unsupported by instances.
The contention is that on production by the appellant of the Riwaj i am of the Gurdaspur district the onus shifted to the respondent to prove instances rebutting the statements contained therein.
This, it is urged, the respondent has failed to do.
" There is no doubt or dispute as to the value of the entries in the Riwaj i am.
It is well_settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and.
circumstances of each case.
Where, for instance, the Riwaj i am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened.
Likewise, where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it.
[See Khan Beg vs Mt. (1) [1916] L.R. 44 I.A. 89.
(2) Lah.
186; L.R. 55 I.A. 407 1199 Fateh Khatun (1), Jagat Singh vs Mst.
Jiwan The principles laid down in these cases were approved of by the Judicial Committee in Mst.
Subhani 's case supra.
Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj i am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj i am of 1913 and, consequently, the appellant must succeed.
This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigan 's work and to shift the onus to the respondent the appellant must produce a Riwaj i am which is a reliable and trustworthy document.
It has been held in Qamar ud Din vs Mt. Fateh Bano(3) that if the Riwaj i am produced is a reliable and a trustworthy document, has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom ,set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals.
If, on the other hand, it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence.
This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil vs Mohammad Bakhsh (4).
This being the position in law, we have to scrutinise and ascertain whether the Riwaj i ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents.
(1) , Lah.
276, 296, 297.
(2) A.I.R. 1935 Lah.
(3) Lah.
(4) A.I.R. 1949 E.P. 252.
1200 Twenty two tribes including Brahmins were consulted by Mr. Kennaway who prepared the Riwaj i am of 1913.
In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was.
In Appendix 'C ' are collected 56 instances of mutuations in which the daughter inherited.
In these there are four instances relating to Brahmins.
Answer to question 16, as recorded in this Riwaj i am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh vs Mt. Malan(1), Kesar Singh vs Achhar Singh(1) and Buta Singh vs Mt. Harnamon(3).
The answer to question 16 as recorded in the 1913 Riwaj i am, it was pointed out, went much beyond the answer given to the same question in the Riwaj i ams of 1865 and 1893.
The answer to question 17 of the 1913 Riwaj i am that no distinction is to be made between ancestral and self acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh vs Mt. Partap(4), Jagat Singh vs Mt. Jiwan(5), Kesar Singh vs Gurnam Singh(1), Najju vs Mt. Aimna Bibi (7) Gurdit Singh vs Mt. Man Kaur(8), and Labh vs Mt. Fateh Bibi(9).
The statements in a Riwaj i am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix 'C ' of the same Riwaj i am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan 's book so as to shift the onus to the daughter who is the res pondent.
The appellant relies on the cases of Ramzan Shah vs Sohna Shah("), Nanak Chand vs Basheshar Nath(11), Mt. Massan vs Sawan Mal(" ') and Kesar Singh vs (1) Lah.
364.(2) A.I.R. 1936 Lah. 68. (3) A.I.R. 1946 Lah. 306.(4) A.I.R. 1935 Lah.
(5) Ibid, 617.
(6) Ibid, 696.
(7) A.I.R. 1936 Lah.
493.(8) A.I.R. 1937 Lah.
(9) A.I.R. 1940 Lah.
436.(10) [1889] 24 P.R, 191.
(11) [19O8]43 P.R. 15.
(12) A.I.R. 1935 Lah.
453, 1201 Achhar Singh(1).
The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute ' in those cases were ancestral and the respondent does not now dispute the appellant 's right to succeed to her father 's ancestral propertie 'section These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to selfacquired property.
Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed.
It is also to be noted that the earlier decisions werenot cited or considered in that case.
In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances.
In these circumstances, the general custom recorded in Rattigan 's book must prevail and the decision of the High Court must be upheld.
We accordingly dismiss this appeal with costs.
Applal dismissed.

summary/full:
It is now well settled that the general custom of the Punjab being that a daughter excludes the collaterals from succession to the self acquired property of her father the initial onus, therefore, must, on principle, be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties.
It is also well settled that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case.
Where, for instance, the Riwaj iam lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened, Likewise, 1192 where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it.
If the Riwaj i am produced is a reliable and a trustworthy document, has been carefully prepared, and does not contain within its four corners contradictory statements of custom, and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom setup, which if left unrebutted by the daughters would lead to a result favourable to the collaterals.
If, on the other hand, it is not a document of the kind indicated above, then such a Riwaj i am will have no value at all as a presumptive piece of evidence.
The Riwaj i ams of the Gurdaspur district prepared by Mr. Kennaway in 1913 in so far as they purport to record the local custom as to the right of the daughter to succeed to the self acquired property of her father are not reliable and trustworthy documents.
The answer to question 16 and the answer to question 17 re corded therein do not contain the correct record of custom.
Held, that the appellants collateral within fourth degreea Saraswat Brahmin of Pathankot in the district of Gurdaspur had failed to discharge the onus that initially rested on him that the respondent (the daughter) was excluded by him in respect of the nonancestral property of her father and that therefore no burden was cast on her of adducing evidence of particular instances.
The general custom laid down in para 23 of Rattigan 's Digest of Customary Law that "a daughter is preferred to collaterals in regard to the self acquired property of tier father" was approved by the Supreme Court.
Butta Singh vs Mt. Harnamon (A.I.R. 1946 Lab. 306), Gopal Singh vs Ujagar Singh ( ; , Mst.
Subhani vs Nawab (I.L.R. [1940] Lab.
154), Beg vs Allah Ditta ( [1916] L.R. 44 I.A. 89), Mt. Vaishno Ditti vs Mt. Rameshri ( Lab. 186; L.R. 55 I.A. 407), Khan Beg vs Mt. Fateh Khatun ( Lab.
276), Jagat Singh vs Mst.
Jiwan (A.I.R. 1935 Lab.
617), Qamar ud din vs Mt. Fateh Bano ([1943] I.L.R. 26 Lab. 110), Mohammad Khalil vs Mohammad Bakhsh (A.I.R. 1949 E.P. 252), Gurdit Singh vs Mt. Malan ([1924] I.L.R. 5 Lab.
364), Kesar Singh vs Achhar Singh (A.I.R. 1936 Lab.
68), Bawa Singh vs Mt. Partap (A.I.R. 1935 Lab. 288), Kesar Singh vs Gurnam Singh (A.I.R. 1935 Lab.
696), Najju vs Mt. Aimna Bibi (A.I.R. 1936 Lab. 493), Gurdit Singh vs Mt. Man Kaur (A.I.R. 1937 Lab. 90), Labh vs Mt. Fateh Bibi (A.I.R. 1910 Lab. 436), Ramzan Shah vs Sohna Shah ([1889] 24 P.R. 191), Nanak Chand vs Basheshar Nath ( [1908] 43 P.R. 15) and Mt. Massan vs Sawan Mal (A I R. 1935 Lab. 453), referred to, 1193


judgement:
Appeal No. 243 of 1971.
Appeal by special leave from the judgment and order dated September 3, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 256 of 1970.
797 C. K. Daphtary, L. M. Singhvi, section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appellant.
B. Sen and I. N. Shroff, for respondents Nos. 1, 3 and 4.
section section Khanduja, section K. Dhingra and Promod Swaroop for res pondent No. 2.
It may at the outset be mentioned that the appointment of the Vice Chancollor of the Saugar University is made by the Chancellor of that University under section 13 of the University of Saugar Act, 1946 (hereinafter referred to as "the Act") from 1 panel of not less than three persons recommended by the Committee constituted under sub section (2) of that section.
The Committee to be constituted under sub section (2) was to consist of three persons, two of whom shall be elected by the Executive Council by single transferable vote from amongst persons not connected with the University or a College and the third shall be.
nominated 'by the 'Chancellor who was, also empowered to appoint one of them as Chairman of the Committee.
It is unnecessary to refer to other provisions of this section because these are not relevant for the purpose of this appeal.
It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice Chancellor for the University was duly constituted consisting of two persons elected by the executive Committee of the University, namely, G. K. Shinde, Retired Chief Justice and Justice T. P. Naik of the Madhya Pradesh High Court while the third member Shri C. B. Agarwal Retired Judge of the, Allahabad High Court was nominated by tfie Chancellor, Rajmata Vijaya Raje Scindia who also appointed G. K. Shinde as the Chairman of the Committee.
The Chairman thereafter appears to have carried on a correspondence to fix, a convenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of April 1970.
Justice Naik was, however, unable to attend the meeting and in, his absence the other two persons, Shri Shinde panel of and Shri Agrawal met; as a Committee and submitteds names from which the Chancellor appointed the appellant on 7th April 1970 as a vice Chancellor with effect from 22nd June 1970 for, a period of five years.
The appellant at the time of the appointment, it seems, was acting as Vice Chancellor.
1061SupCI/72 798 On the 9th of April 1970, the Governor of Madhya Pradesh, Shri K. C., Reddy promulgated Ordinance No. I of 1970 by section 2 of which sub section (1) of section II was substituted by a new sub section (1) where under the Governor of Madhya Pradesh was made an ex officio Chancellor of that University.
By section 3, it was provided that as from the date of the coming into force of that Ordinance, the Chancellor in office immediately, before the date aforesaid shall cease to hold office of the Chancellor and the Governor of Madhya Pradesh shall assume the said office.
By virtue of this Ordinance Rajmata Vijaya Raje Scindia ceased to be.
the Chancellor.
On the 23rd April 1970, the Governor again passed another Ordinance by section 2 of which, he substituted section 43 of the Act by a new section 43.
By section 3 a new section 43A was also added.
Section 4 made the amendments made by sections 2 and 3 to operate retrospectively as from the commencement of the original Act.
The amended sections 43 and 43A are as follows "43.
If any question arises whether any person hi,,, been duly appointed, elected, nominated or coopted as, or is entitled to be, a member of any authority or other body of the University or any officer of the University, the matter shall be referred to the Chancellor whose decision thereon shall be final.
43A. The Chancellor may, either on his own motion or on the application of any party interested, review any order passed by himself or his predecessor in office if he is of the opinion that it is not in accordance with the provisions of this Act, the statutes, the Ordinance or the Regulations or is otherwise improper and pass such orders in reference thereto as he may think fit." After the above Ordinances were promulgated, the Secretary to the Governor of Madhya Pradesh wrote on the 20th May 1970 to the appellant as follows : "The question has come up before the Chancellor whether the meeting of the committee constituted by his predecessor under section 1 3 (2) (9 the Act held on 4th April 1970 at Indore at which only two members out of the three were present was legal, and whether the recommendations made by the committee at that meeting were legally valid.
The Chancellor has been advised that the meeting held on the 4th April with only two men present and.
the decisions taken at the meeting .were not legal.
As, a consequence, the orders issued by the University office dated 14th April would have to be rescinded.
799 Before the Chancellor takes action in accordance with legal advice, he has desired that you should be asked if you have anything to state why such action should not be taken.
I am desired to request you to send your reply as early as possible, and at the latest within a week".
To this letter the appellant sent a reply on the 9th June 1970 after having earlier obitained an extension of time.
In that reply he tried to make out a case that the recommendation of the Committee of two members out of three was perfectly valid and in support of it he cited various authorities and also a precedent of the same Governor who as the Chancellor of Indore University seems to have maintained the selection made 'by his predecessor in similar circumstances.
The Governor did not, however, accept the appellant 's plea but passed the following impugned orders on the 15th June 1970 : "WHEREAS, on applications made in that behalf, the Chancellor is of the opinion that order dated the 7th April 1970, passed by his predecessor in office appointing Shri Ishwar Chandra as Vice Chancellor of the University of Saugar with effect from the 22nd June 1970, for a period of five years is not in accordance with provisions of section 13 of the University of Saugar Act, 1946 (XVI of 1946) (hereinafter referred to as the said Act); NOW, THEREFORE, in exercise of the powers conferred by section 43A of the said Act, 1, the Chancellor of the University of Saugar, hereby (i) cancel the aforementioned order dated the 7th April 1970 appointing Shri Ishwar Chandra as ViceChancellor; and (ii) direct that the committee be constituted for submission of panel in accordance with the provisions of section 13 of the said Act".
On the 1st July 1970, a Writ Petition was filed in the High Court of Madhya Pradesh and it appears that on the 3rd July 1970 the Court directed the appellant to produce the correspondence between the Chairman, and the members of the Selection Committee in respect of the meeting to be held to recommend the names for the appointment of a Vice Chancellor.
The appellant, if seems, produced the correspondence with an affidavit on the 25th July 1970 stating that he had obtained the correspondence from the Chairman of the Committee.
the former Chief,Justice Shinde.
On the ' 3rd of September 1970 'rule nisi was refused.
800 On the 19th September 1970 die application for leave to appeal to the Supreme, Court was also rejected.
In the latter order two facts had 'been stated which have been challenged as incorrect.
The first one was that the Chairman had at first fixed Bhopal as the venue of the meeting and secondly.that as the working Vice Chancellor of the University, the petitioner had access to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded on some of them.
Though there is some justification in these contentions what has to be seen is whether the order rejecting the Writ Petition was justified, and if so, now that the order of the Chancellor has been impugned, i.e that order valid.
It is clear from the Governor 's impugned order that the appellant 's appointment was held to be invalid because only two members of the Committee were present at the meeting.
The High Court while holding that in the absence of any provision in the relevant enactment or the rules or regulations made thereunder, a majority of members of a selection committee like the one in the case before them would constitute the quorum, however presumed that the question for consideration of the Chancellor was not merely one relating to the existence of the quorum requisite for a valid meeting but something different.
On that assumption it examined the correspondence which ensued between the Chairman and Justice T. P. Naik to ascertain whether in fact a valid meeting had been called.
According to the learned Judges, Justice Naik had written to the Chairman to say that he, the Chairman, was determined to hold the meeting presumably in his absence, and, therefore, the High Court thought that if the Chancellor, acting under section 43A of the Act formed the opinion that the meeting held on that date was not legal, it cannot be said that there was no prima facie material for the formation of that opinion, reached by him after giving to the, petitioner an oppor tunity to state why the action proposed should not be taken.
The assumption in this order rejecting the Writ Petition is not warranted, firstly, because the correspondence does not show that there was any deliberate attempt made by the Chairman to exclude one of the members in this case, Justice T. P. Naik, and secondly, that the Chancellor had because of this exclusion, declared the meeting held on the 4th April 1970 as not being valid.
We have already pointed out that the Chancellor was merely concerned with the legality of the recommendation made by two out of three members and not that,any attempt was made by the ' Chairman, to, exclude one of the members, Neither the showcase notice, nor the reply given by the appellant to that notice, nor even: the order of the Chancellor indicates any such ground as that assumed by the High Court to form the basis of the,Chancellor 's order.
The correspondence shows that the Chairman 801 had written a letter on the 12th February 1970 in which , he inquired of Justice Naik whether the 7th and 8th March 1970 would suit him to meet at Bhopal to consider the names for the panel.
Later on the 20th February 1970, he wrote another letter saying that the other member was abroad, and therefore, the meeting which was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed.
In fact, Justice Naik replied on the 27th February 1970 acknow ledging these letters and asking him to let him know the date of the meeting as and when fixed.
On the 8th March 1970 Mr. Shinde again wrote to Justice Naik fixing the meeting on the 12th March 1970 at 10.30 a.m. at Indore and also suggested that if necessary they may meet the next day, the 22nd March 1970.
On the 16th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitable at Indore.
On the 18th March 1970, he again sent a telegram to him saying : "Doctors Forbid travel stop wire whether 4th & 11th April suitable for Indore".
Justice Naik sent two telegrams, one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and lath suitable at Saugar or Bhopal.
He also wrote two letters on the 26th and 27th to Shinde.
Shinde had earlier written on the, 24th March 1970 to Justice Naik in which he said as follows "The contents of your telegram, were conveyed to me on the phone today.
It appears that 4th and 11th.
April both are suitable to you at Saugar and Bhopal.
As I told you before, I am recovering from the attack of virus fever and am, therefore, not, ' strong enough to undertake a car journey of 120 miles to, Bhopal.
There is no @ convenient plan ,to come: to Bbopal either.
If I come by plane I shall have to stay over the night at the Circuit House and as I am still on diet, the Circuit House food will not suit me.
As you can come up to Bhopal you can easily come to Indore either by Car or 'by Plane.
The plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 am.
After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non vegetarian, I can arrange to give you lunch at my place.
If it is impossible for You to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice Chancellor of the Saugar University by the 3rd of April.
I would, however, request you to make it colonyient to attend the meeting at Indofe.
I have already sent you a tele gram to the effect that the meeting is fixed on the 4th 802 of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m." Hoping to hear from you by the return of post and with kind regards".
Before this letter reached to the telegram received by him, Justice Naik wrote a letter to Shinde as follows : "I am in receipt of your telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University.
I regret my inability to be present at Indore on the date and time specified, though I may be able to attend the meeting if 'the venue is changed to Bhopal.
It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there on that date.
Anyway, knowing full well that it would not be pos sible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence.
I can only regret your decision.
If you are still interested in having my presence for the meeting, you may fix it either on the 4th or the, 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personality.
I hope you have recovered from the effects of your illness by now".
This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there, presumably in his absence.
On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Side did not take up the attitude that the meeting was being held presumably to keep him away from attending it.
Justice Naik, however, tried to explain his difficulty.
He said : "I am in receipt of your letter dated 24th March 1970.
1 am sorry to note that you have not yet recovered from the effects of your illness.
I do hope you shall soon get well.
803 As for my coming to Indore, I had considered the possibility of my going there by.
air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy.
I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University.
As for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act.
With kind regards".
This letter clearly negatives the assumption in the High Court 's order that Shinde was trying to keep out Justice Naik from the meeting.
On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting.
There is also nothing in the materials on the record to show that the correspondence cited above was persued by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order.
It cannot, therefore, be assumed that the Governor was influenced by the above correspondence.
It is rather unfortunate that the appellant 's Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts.
There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended.
The High Court delivered into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified.
It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members.
If for one reason or the other one of them could not attend, that does not make the meeting of others illegal.
In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid.
804 This proposition is well recognised and is also so stated in Halsbury 's Laws of England, Third Edition (Vol.
IX, page 48, Para 95).
It is, therefore, unnecessary to refer to any decisions on the subject.
In the view we have taken, the appeal is allowed with costs against respondent 3, the order of the Chancellor revoking the appointment of the appellant is set aside and the appellant is declared to have been validly appointed as Vice Chancellor Of the Saugar University as from the 22nd June 1970.
G.C. Appeal allowed.

summary/full:
From a panel of names recommended by a Selection Committee constituted under section 13(2) of the University of Saugar Act, 1946 the then Chancellor of the University appointed the appellant as Vice Chancellor.
Under Ordinance No. 1 of 1970 the Governor of Madhya Pradesh became, the Chancellor of the University.
Exercising his powers of review under section 43A of the Act the Governor, as Chancellor, after notice to the appellant, set aside his appointment as Vice Chancellor on 'the ground that only two out of the three members of the Selection Committee were present when his name was included in the panel.
The appellant filed a writ petition in the.
High Court.
The High Court called for the correspondence between the Chairman of the Committee and the member who was absent at the meeting.
On the basis of a letter written by the absent member to the Chairman, the High Court can to the conclusion that the member had been deliberately kept out of the meeting and held that the Chancellor was justified in the opinion formed by him under section 43 (A).
Allowing the appeal, this Court, HELD : (i) The High Court sustained the order of the Chancellor on grounds other than those relied upon by him in that order, for dismissing the writ petition in limine].
The order made by the Chancellor was based entirely an the legality of the meeting where only two of the three members were present.
Then was nothing to show that the corres pondence was persued by the Chancellor.
Further, the correspondence did not support the assumption in the High Court 's order that the Chairman was trying to keep out any member from the meeting.
[803 D G] (ii) If for one reason or the other one of the members of the Committee, after due notice, could not attend, it did not make the meeting of the others illegal.
in such circumstances where there was no rule or regulation or any other provision for fixing quorum in the presence of the majority of the members would constitute a valid meeting and matters considered thereat could not be held to be invalid.
[803 H]