judgement:
Civil Appeal No. 4090 of 1991.
From the Order dated 7.2.1991 of the Central Administrative Tribunal, Bangalore in Original Application No. 11 of 1991.
K.K. Venugopal, B.R.L. Iyengar, E.C. Vidyasagar, D.N. Nanjunda Reddy, L.R. Singh and Shahid Rizvi for the Appellant.
G. Ramaswamy, Attorney General, P.P. Muthanna (for the State of Karnataka), Subramanian, M. Verrappa, Kh.
Nobin Singh and section Walia for the Respondents.
The Judgment of the Court was delivered by G.N. RAY, J.
This appeal is directed against the decision of the Central Administrative Tribunal, Bangalore, dated February 7, 1991 passed in Original Application No. 11 of 1991.
The appellant, Shri M. Sankaranarayanan, made an application before the Central Administrative Tribunal, Bangalore, for quashing the order dated January 4, 1991 transferring and posting him as Secretary High Power Committee for development of Hyderabad, Karnataka area, Bangalore (hereinafter referred to as High Power Committee) as contained in Annexure A 4 to the application made before the Central Administrative Tribunal, and for a direction to allow the applicant, Shri Sankaranarayanan, to continue as the (Chief Secretary, Government of Karnataka.
The aforesaid order of transferring and posting the appellant as Secretary, High Power Committee was challenged mainly on two grounds, namely, that such order was not passed bona fide for the exigencies of the administration but the same was passed mala fide by the Chief Minister of Karnataka who became displeased with the appellant on account of his unfavourable attitude and resistance to some of the proposals of the Chief Minister in the matter of posting of senior officers of the State to different key posts.
It was also contended that his transfer order is vitiated because of the non compliance of the procedural formalities for a valid transfer of the appellant to the said post of Secretary, High Power Committee inasmuch as there was no declaration under Rule 9 (1) of IAS (Pay) Rules, 1954 that the post of Secretary, High Power Committee, was equivalent to the post of Chief Secretary and in the absence of such declaration the transfer of the appellant from the post of Chief Secretary to the Secretary, High Power Committee, was illegal and void.
To appreciate the relevant contentions made by the appellant and the respondents before the Central Administrative Tribunal and also before this Court at the hearing of the appeal, the backdrop of the events resulting in the impugned order of transfer and posting of the appellant and consequential challenge of such order by the appellant, requires to be indicated in short.
The appellant, Shri Sankaranarayanan, was appointed to the Indian Administrative Service (Karnataka Cadre) in 1957 and on May 5,1990 he was holding the post of Additional Chief Secretary to the Government of Karnataka.
By Notification dated May 5, 1990, he was appointed as Chief Secretary to the Karnataka Government until further orders.
In the State of Karnataka, there was originally one post of Chief Secretary to the Government.
By an Order dated October 17, 1980, and ex cadre post of Additional Chief Secretary was created with a declaration under Rule 9(1) of IAS (Pay) Rules that the status and responsibilities of the said post were equivalent to the cadre post of Chief Secretary.
The post of Additional Chief Secretary was thereafter en cadred by Notification dated January A(), 1987 with the same pay as of the post of Chief Secretary.
The post of Secretary, High Power Committee, was created by the State Government of Karnataka in 1989 with the designation Chairman, Hyderabad, Karnataka Development Board by order dated September 27, 1989.
The said post was declared equivalent to the status and responsibilities to the cadre post of Additional Chief Secretary under Rule 9 of IAS (Pay) Rules.
The posts of Chief Secretary, Secretary, High Power Committee and Additional Chief Secretary carry equal pay.
On January 3, 1991, the Cabinet Government of Karnataka took a decision to the effect that a change of the Chief Secretary should be effected.
Pursuant to such cabinet decision, the Chief Minister, on January 4, 1991, had taken the following three decisions and passed consequential orders namely (i) declaring that the post of Secretary, High Power Committee, was equivalent in status and responsibilities to the post of Chief Secretary of the Government, (ii) transferring the appellant, Shri Sankaranarayanan, to the post of Secretary, High Power Committee with immediate effect and (iii) appointing the 4th respondent, Shri N.K. Prabhakar Rao, who was holding the post of Chief Secretary to the Government.
It may be noted in this connection that Shri Prabhakar Rao is senior to Shri Sankaranarayanan as a member of the Indian Administrative Service.
The Notification giving effect to the above orders of transfer was issued on January 4, 1991 but the authenticated Government order declaring the equivalent of two posts under Rule 9 of IAS (Pay) Rules, was issued on the next day, namely, January 5, 1991.
The appellant, Shri Sankaranarayanan, contended in his application before the Central Administrative Tribunal that the appellant was in the office of Chief Secretary when Shri Veerendra Patil was the Chief Minister of Karnataka.
There was an intensive anti corruption drive against the senior bureaucrats including the 4th respondent through the instrumentality of Lok Ayukta.
One such Officer was Shri J. Alexender, IAS, who was suspended while he was holding the post of the Chairman and Managing Director of the Mangalore Chemicals and Fertilisers Ltd. but when Shri Alexender obtained a stay order from the Central Administrative Tribunal, the appellant, in the best interest of administration suggested that Shri Alexender should not be given the post of Secretary of the Department of Industry and Commerce but he should be given a posting in a Less sensitive post hut such suggestion of the appellant was not accepted by the third respondent, namely, the present Chief Minister of Government of Karnataka, Shri section Bangarappa.
Similarly, when a proposal to replace Shri Sangameswar, IAS, from the post of Managing Director of the Mysore Sales International Ltd. and post one Shri Madhu in Place of Shri Sangameswar came up for consideration, the appellant pointed out to the Chief Minister about the propriety in making such a change particularly when Shri Sangameswar was keen in defending the cases filed against the Government in the Supreme Court and his other actions were also appreciated by his superiors and Shri Madhu had indicated his reluctance to accept the post in his letter to the Government in view of the fact some of his relatives happened to be excise contractors.
But the third respondent did not like his suggestion and directed the posting of Shri Madhu as Managing Director, Mysore Sales International Ltd. The third respondent also did not like to pass orders on the files containing the irregularities committed by the fourth respondent while holding high offices in the State during the period between 1983 and 1989.
These files contained 41st report of the Public Undertaking Committee recommending enquiry into tile imprudent decisions taken by the 4th respondent as Chairman and Managing Director of the New Government Electric Factory, Bangalore.
Accordingly, at the instance of the then Minister of Industries and Commerce an enquiry had been undertaken through Lok Ayukta.
The Report submitted after the enquiry indicated prima facie case against the 4th respondent warranting further departmental actions.
The former Chief Minister made enquiries about these matters and the appellant also furnished further necessary information to the then Chief Minister who referred the matter to the Personnel Department of Administrative Reforms.
The Secretary, Department of Personnel and Administrative Reforms suggested for initiation of departmental action against the fourth respondent.
The fourth respondent made a suggestion to the Government seeking permission for voluntary retirement.
But after the Ministry headed by the then Chief Minister, Shri Veerendra Patil, was dismissed and the President 's rule was imposed in the State, the fourth respondent withdrew his letter seeking voluntary retirement.
The appellant put up all the files before the third respondent for appropriate orders in view of the fact that the previous Chief Minister did not take any final decision regarding the proposal to initiate disciplinary action against the fourth respondent.
But the third respondent keep the files without passing any orders.
It was contended by the appellant that since the appellant was not prepared to lies and to compromise with the desires of the Chief Minister, the Chief Minister, namely, the respondent No. 3, became displeased with him and opposed some of his suggestions relating to the posting of senior bureaucratic officers.
The appellant has contended that he was sought to be transferred with undue haste from the post of Chief Secretary to the post of Secretary, High Power Committee, although such post was inferior to the post of Chief Secretary and no declaration under Rule 9 (1) of IAS (Pay) Rules for the equivalence of the said post had been made.
The respondents, namely, the State of Karnataka and the Chief Minister of Karnataka and also the said respondent No. 4 denied the allegations relating to the malice of facts and contended that the allegations relating to the malice of facts were mischievous, malicious, scandalous and vexatious and such allegations were deliberately made to malign the respondents.
The respondents also contended that the post of Secretary, High Power Committee, was equivalent to the post of Additional Chief Secretary and such declaration had been made long back and the post of Additional Chief Secretary and the post of Chief Secretary were also equivalent and inter changeable.
In any event, before giving effect to the order of transfer of the appellant, further declaration was made by the Chief Minister that the post of Secretary, High Power Committee was equivalent to the post of Chief Secretary so that in any event the appellant had no occasion to feel stifled.
Accordingly, there was no occasion to contend that the declaration, required as under Rule 9 (1) of IAS (Pay) Rules, had not been made and the order of transfer was accordingly vitiated for non compliance with the statutory rules.
The Central Administrative Tribunal, after considering the facts and circumstances of the case and hearing the submissions made on behalf of the respective parties, inter alia came to the finding that the freedom to choose a person as the Chief Secretary to the liking of the Chief Minister and the Cabinet on whom there is absolute confidence, is undisputed prerogative and such decision becomes unassailable when it is made in bona fide manner following the statutory formalities applicable to such selection and appointment.
Referring to the decision of this Court made in the case of E.P. Royappa vs State of Tamil Nadu, ; and referring to various observations made in the said decision at length, the Central Administrative Tribunal came to the finding that the appellant had no subsisting right to remain as Chief Secretary and it was the prerogative of the Chief Minister and the Cabinet to take a decision to appoint a person to the post of Chief A Secretary in place of the appellant to whom the Cabinet and the Chief Minister had confidence.
It was held by the Central Administrative Tribunal that the appellant had failed to establish that he had been transferred with the ulterior motive of placing the appellant in a lower post and thereby permanently preventing him from continuing in the position and status of Chief Secretary.
The Administrative Tribunal inter alia held that it is an admitted position that there was a difference of opinion between the appellant and the Chief Minister and such difference had been developing ever since the new Chief Minister had assumed Office.
The Tribunal had also noted that the appellant was also not promoted and posted as Chief Secretary permanently but he was appointed to the post of Chief Secretary until further orders and he continued in that capacity only for eight months without being regularised or confirmed in that post.
The Central Administrative Tribunal also held that there had been only casual collateral challenge by the appellant against the appointment of fourth respondent as the Chief Secretary raising some allegations which could at best be grouped in the category of vague and indefinite allegations.
The Central Administrative Tribunal held inter alia that the applicant had not laid down any firm foundation to hold that the appointment of the 4th respondent as Chief Secretary was bad and unsustainable.
It has been held by the Central Administrative Tribunal that the fourth respondent had already assumed the office of the Chief Secretary and except in making some vague allegations, his appointment as Chief Secretary was not challenged on the score of violation of rules governing the matter.
As such, the Central Administrative Tribunal held that there was no occasion to go into the legality of the posting of fourth respondent as the Chief Secretary of the State.
So far as the other contention made by the appellant, namely, that the transfer order is vitiated in view of the fact that the appellant was sought to be reverted to a lower post in violation of the procedure in Rule 9 (l) of IAS (Pay) Rules and Rule 4 of IAS (Cadre) Rules in concerned, it has been contended by the appellant that a Notification issued on January 5, 1991 declaring the post of Secretary, High Power Committee, as equivalent to the post of Chief Secretary, was of no consequence and could not cure the initial defect inasmuch as prior to such Notification issued on January 5, 1991 declaring equivalence of the said posts, the impugned order of transfer was sought to be effected and the respondent No. 4 was allowed to join the post of Chief Secretary pursuant to the order of transfer of the appellant.
The Central Administrative Tribunal referred to four documents being Annexures 7, 8, 9 & 10 to the application made by the appellant and also the affidavits filed by the parties and accepted the contention of the respondents that the post of the Secretary was declared equivalent to the post of Additional Chief Secretary and the post of Additional Chief Secretary was also declared equivalent to the post of (Chief Secretary, and such declarations had been made ever since 1980 and the appellant was fully aware of the said position.
The Central Administrative Tribunal also accepted the contention of the respondents that in order to avoid any embarrassment and complication, the State Government had also made a declaration on January 4, 1991 prior to the transfer of the appellant that the post of the Secretary, High Power Committee, was equivalent to the post of Chief Secretary but the formal authenticated order declaring the said equivalence was issued next day i.e. January 5, 1991.
There was no delay in issuing the declaration and even assuming that there was a delay of one day in making the formal declaration of equivalence, such delay had not nullified and invalidated the decision of the Government.
Referring to the various decisions of this Court including the decision made in the case of Babulal vs M/s Hazari Lal Kishori Lal and others, [19821 2 SCC p.525, the Central Administrative Tribunal indicated that a deviation from the strict procedure prescribed by law would not vitiate an action taken by the Government or public authority in the interest of public unless it could be shown that such an act had resulted in gross injustice to the affected party.
The Central Administrative Tribunal held that the appellant could not establish that impugned order had caused any serious injury to him.
The Central Administrative Tribunal further held that the appellant had submitted that because of the delay in issuing the declaration strictly in accordance with the Rule 9(1) of IAS (Pay) Rules, the appellant was in dark as to the nature and duties of the post of Secretary, High Power Committee, to which he had been transferred under the impugned order.
The Central Administrative Tribunal held that the form and procedure in Rule 9(1) of IAS (Pay) Rules do not make it obligatory to approach the issue in a judicial or quasi judicial manner and the violation, if any, of Rule 9(1) was only a mere technicality and it did not cause any legal injury or injustice to the appellant.
Such violation, even if any, was not so serious that it required a judicial scrutiny by the Central Administrative Tribunal in the facts and circumstances of the case.
The Central Administrative Tribunal also held that after going through the files leading to the declaration under Rule 9(1) since placed before the Tribunal, the Tribunal was satisfied that the Government had considered the question in detail and sufficiently in advance and had taken a decision to issue the declaration of equivalence on January 4, 1991 and it was a valid decision satisfying the requirement of Rule 9 (1) of IAS (Pay) Rules, 1954.
Referring to the allegations of mala fides, the Central Administrative Tribunal came to the finding that the facts were narrated in paragraphs (1) to (w) of paragraph 6 of the application of the appellant.
The Tribunal categorically came to the finding that there was no firm foundation to find on facts that the impugned order was vitiated by any mala fide.
In that view of the matter, the Central Administrative Tribunal dismissed the application made by the appellant.
As aforesaid, the said decision is under challenge in this appeal.
Mr. Venugopal the learned counsel for the appellant has strenuously contended that declaration of equivalence under Rule 9 (1) of IAS (Pay) Rules, 1954 is an essential statutory requirement and without such declaration of equivalence no member in the cadre of IAS can be transferred to a non cadre post.
He has contended that the declaration of equivalence of the posts of Chief Secretary and Additional Chief Secretary made in 1980 has been highlighted beyond proportion before the Central Administrative Tribunal by the respondents and the Administrative Tribunal was also influenced because of such declaration of equivalence made in 1980.
But such declaration of equivalence is of no consequence and the legal requirement of declaration of equivalence was still there and noncompliance with the requirement of declaration of equivalence has rendered the impugned order of transfer illegal and void.
Mr. Venugopal has contended that previously there was only one post of Chief Secretary in the administrative hierarchy in the State of Karnataka.
It was felt necessary that a post of Additional Chief Secretary should be created and the recommendation to that effect was made when the post of Additional Chief Secretary was not encadred.
A declaration of equivalence was also made by the State Government so that a cadre officer belonging to the Indian Administrative Service may be transferred to the non cadred post of Additional Chief Secretary but later on, the post of Additional Chief Secretary was encadred on the basis of triennial review.
After such encadrement of the post of Additional Chief Secretary, the declaration of equivalence which was made earlier lost its force.
Mr. Venugopal has submitted that the question of equivalence comes in when one post is outside the cadre post of Indian Administrative Service.
Mr. Venugopal has contended that equivalence is referable only to an ex cadre post and ex hypothesi dedaration of equivalence cannot come inter se posts within the cadre.
Accordingly, all the previous exercises made in declaration of equivalence when the post of Additional Chief Secretary was not a cadre post are of little consequence.
Mr. Venugopal has also contended that the posts of Additional Chief Secretary and Chief Secretary are not equivalent in reality.
The post of Chief Secretary is the highest post in the administrative set up in the State.
Mr. Venugopal has referred to the Office Memorandum dated September 2, 1988 at page No. 127 of Volume Il A of the Paper Book of this appeal, for the purpose of showing that the post of Chief Secretary is superior post because Additional Chief Secretary is to report to the Chief Secretary.
He also made reference to the Karnataka Government (Transfer of Business) Rules, 1977 and contended that reference to various provisions of the Rules would indicate that the post of Chief Secretary is the highest post and the reports of different Secretaries including Additional Chief Secretary are required to be routed through Chief Secretary but no Report of the Chief Secretary is ever required to be routed through Additional Chief Secretary or any other Officer.
He has submitted that a mere dedaration that the post of Additional Chief Secretary is equivalent to the post of Chief Secretary will not make both the said posts equivalent.
Mr. Venugopal has also contended that as a matter of fact, the respondents felt difficulty in transferring the appellant lo the post of Secretary, High Power Committee, because the said post was declared equivalent to the post of Additional Chief Secretary and not to the post of Chief Secretary.
Precisely for the said reason, after the impugned order of transfer, an attempt was made to publish a declaration on January 5, 1991 to the effect that the post of Chief Secretary is equivalent to the post of Secretary, High Power Committee.
Mr. Venugopal has contended that the post of Secretary, High Power Committee, cannot be equivalent to the post of Chief Secretary of the State which is highest post and in any event the post facto declaration of equivalence on January 5, 1991 cannot cure the initial defect of not declaring equivalence of the post in question prior to the order of transfer made on January 4, 1991.
Mr. Venugopal has submitted that the appellant may not have an absolute right to remain in the post of Chief Secretary and for good administrative reasons the Cabinet and the Chief Minister may have a prerogative to select a person of their confidence to the post of Chief Secretary but the appellant having been appointed as Chief Secretary can only be removed from the said post for good administrative reasons but not for any oblique purpose.
The appellant could have been transferred from the post of Chief Secretary to a suitable post which was equivalent to the post of Chief Secretary only in accordance with law and a declaration of equivalence under Rule 9 (1) of IAS (Pay) Rules was an essential sine qua non for transferring an incumbent holding the post of chief Secretary to any other ex cadre post.
Mr. Venugopal has contended that declaration of equivalence of a cadre post with a non cadre post is a statutory requirement under Rule 9(1) of IAS (Pay) Rules.
Such statutory requirement must be strictly complied with.
So long the declaration of equivalence made by the competent authority is not published in accordance with the procedure under Rule 9(1), no equivalence takes place and in the absence of equivalence, no cadre officer can be posted to a non cadre post.
Admittedly, the impugned order of transfer of the appellant was made on January 4, 1991 and the respondent No. 4 purported to assume the office of the Chief Secretary on January 4, 1991.
But the declaration of equivalence was made on 5.1.1991 i.e. after the impugned order of transfer.
Hence, the impugned order of transfer of the appellant is illegal on the face of it and subsequent declaration of equivalence cannot cure the invalidity of the order of transfer.
On this score alone the impugned order is liable to be quashed.
Mr. Venugopal has further contended that the Central Administrative Tribunal failed to appreciate that in reality the posts of Chief Secretary and Additional Chief Secretary were not inter changeable and declaration of equivalence made earlier had lost its force after the encadrement of the post of Additional Chief Secretary.
Mr. Venugopal has also submitted that it is not always possible and practicable to precisely establish mala fide in fact but the Court should draw reasonable inference from the pleadings whether there was any foundation of mala fide action.
Mr. Venugopal has contended that the appellant has given instances how he gradually incurred displeasure of the present Chief Minister when his suggestions for posting senior bureaucratic officers of the State G in key and sensitive positions, contrary to the desire of the Chief Minister, were not liked by the Chief Minister.
Mr. Venugopal has contended that the respondent No. 4 was found prima facie guilty of various administrative lapses of serious nature over the years.
During the regime of the previous Chief Minister of the State, Shri Veerendra Patil, enquiries had been conducted at a high level and recommendations were made for initiating departmental proceedings.
Unfortunately, before any formal order could be passed by the then Chief Minister, Shri Veerendra Patil, the Ministry was dissolved and the President 's rule was imposed.
Thereafter, the present Chief Minister came to head the Cabinet of the State.
The appellant as a Chief Secretary of the State was duty bound to place all the relevant files for appropriate directions of the Chief Minister so far as the respondent No. 4 is concerned.
When the appellant placed all the relevant files, it was only reasonably expected that the present Chief Minister would pass formal orders for initiating departmental proceedings against the respondent No. 4 but for inexplicable reasons, the present Chief Minister held back the files without passing any order.
Even in the matter of posting of Shri Alexander, Sri Sangmeswar and Sri Madhu, the appellant indicated cogent reasons relating to the posting; desired by the Chief Minister and normally reasonings indicated by the appellant were not expected to be over ruled by the Chief Minister in the interest of purity in administration.
But, unfortunately, such suggestions had been overruled by the Chief Minister.
Mr. Venugopal has contended that in the backdrop of the events disclosed in various subparagraphs, namely, paragraphs 6(1) to 6(q) of the petition made before the Tribunal it should have come to the finding that a case of malice in fact had been established prima facie and the respondents were under an obligation to dispel the reasonable inferences to be drawn by the Tribunal about the existence of malice in facts.
Unfortunately, the Tribunal has not considered the question in the proper perspective.
Mr. Venugopal has submitted that since the posting of respondent No. 4 as Chief Secretary was not directly challenged by the appellant and infraction of any statutory provisions could not be established by the appellant so far as the posting of respondent No. 4 is concerned, the Tribunal has proceeded on the footing that such posting, therefore, is not required to be interfered with and consequently the challenge to the transfer and posting of the appellant cannot also be sustained.
Mr. Venugopal has contended that such approach, to say the least, is unsatisfactory and requires a re thinking.
Mr. Venugopal has contended that when the former Chief Secretary went on leave prior to his retirement, the appellant 's case was considered and in view of his excellent track record over the past 33 years as a member of the Indian Administrative Service in the Karnataka cadre, the appellant was found to be most suitable candidate to hold the post of Chief Secretary and he was made the Chief Secretary.
Simply because the appellant was appointed as the Chief Secretary until further orders, such appointment and posting do not necessarily mean that he was holding the said post only as a stop gap measure.
Mr. Venugopal has contended that it is nobody 's case that the Government of Karnataka did not intend to appoint and post the appellant as Chief Secretary of the State and such posting was made only by way of a stop gap measure until suitable person could be selected and later on the respondent No. 4 was posted as Chief Secretary on appropriate consideration of the cases of all the eligible officers of the State.
Mr. Venugopal has contended that the order of transfer of the appellant and also the order of posting of respondent No. 4 had taken place simultaneously in undue haste even without making declaration of equivalence.
It only indicates that there had not been any bona fide and proper exercise to find out the most suitable person for the post of Chief Secretary in the normal way.
He has submitted that although no specific pleading was made by the appellant before the Tribunal that in order to find a berth for the respondent No. 4, the appellant was moved out against the interest of the administration and the respondent No. 4 was appointed as Chief Secretary of the State, there is sufficient material to indicate that the Chief Minister was bent upon to move out the appellant from the post of Chief Secretary who had always resisted improper suggestions of the Chief Minister in the better interest of the administration and to give effect to such improper decision not on the score of administrative exigencies or for public interest, the impugned order of transfer was made.
On the face of the adverse materials on record and the recommendations made by the appropriate Committee to initiate disciplinary proceedings against the respondent No. 4, there could not have been any administrative exigency to place the respondent No. 4 incharge of the highest Administrative office in the State.
Mr. Venugopal has submitted that mala fide in fact needs to be considered from the totality of the facts and circumstances by drawing reasonable inferences.
There cannot be a straight jacket formula to which every case of malice of fact can fit in.
Mr. Attorney General appearing with the Advocate General of the State of Karnataka for the respondents Nos. 1 and 3, namely, the State of Karnataka and the Chief Minister of Karnataka, has submitted that the post of Chairman, Karnataka Hyderabad Development Board was created on September 1, 1989 and the respondent No. 4 who was holding a very high and responsible office at the relevant time.
The respondent No. 4 is a very senior member of the Indian Administrative Service in the Karnataka cadre and admittedly senior to the appellant as a member of the Indian Administrative Service.
The said respondent No. 4 was appointed to the post of Chairman, Karnataka Hyderabad Development Board.
The said post was declared as equivalent to the post of Additional Chief Secretary on September 27,1989 when the said post was created.
Later on, on October 11, 1989, the said post of Chairman was re designated as Secretary, High Power Committee and ex officio Additional Chief Secretary to the Government of Karnataka.
Mr. Attorney General has contended that simply because adverse comments were made on the functioning of the respondent No. 4 when he was holding the post of Chairman of some other organisation or the Secretary, High Power Committee, there was no compelling necessity of by passing a very senior officer in the Indian Administrative Service cadre in the State.
Since the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary, there had been a necessity to find out a competent senior officer in the Indian Administrative Service Cadre in the State.
As no departmental proceedings had been pending against him, the Cabinet and the Chief Minister had taken a decision that Mr. Rao, respondent No. 4, being the senior most person in the Indian Administrative Service cadre in the State, having a long experience in different administrative set up and conversant with the problems of the State should be posted as Chief Secretary.
Such decision is not ex facie perverse and unjustified.
He has contended that even if it is assumed that instead of respondent No. 4, some other officer would have been selected for the post of Chief Secretary, such selection being a prerogative of the Cabinet and the Chief Minister, the appellant cannot question the correctness and propriety of the same.
The Central Administrative Tribunal is justified in its finding that there has not been any direct challenge to the appointment of the respondent No. 4 to the post of Chief Secretary and the appellant could not establish that any statutory rule has been violated in giving appointment to the respondent No.4 to the post of Chief Secretary.
Mr. Attorney General has also contended that the law is well settled after the decision of this Court in E.P. Royappa (supra) that it is the prerogative of the State Cabinet and the Chief Minister to select a person of their confidence to man the key post G of Chief Secretary in the State.
The only exercise which is required to be made by Court of law or a Tribunal is to find out whether in removing the holder of the post of Chief Secretary, any mala fide action has been taken.
The Tribunal, according to the learned Attorney General, is justified in holding that except making some vague allegations, no firm foundation has been laid by the appellant to warrant a finding that the impugned order of transfer Or the appellant is actuated by a malice in fact or malice in law.
A Mr. Attorney General has submitted that the Tribunal has indicated that the Chief Secretary had not been pulling on well with the Chief Minister of the State, and there had been differences of opinion on a number of matters from before.
If on such account, the Government and the Chief Minister felt that a man of their confidence should be posted as the Chief Secretary of the State so that there was a good rapport between the Chief Secretary and the Chief Minister and the Cabinet, no exception can be made and such decision being squarely within the prerogative of the Chief Minister and the Cabinet as indicated by this Court in no uncertain terms in Royappa 's decision, the Central Administrative Tribunal was justified in declining to interfere against the impugned orders.
Mr. Attorney General has contended that allegations of mala fide action on the part of the Chief Minister or the Cabinet must be substantiated by cogent materials and not by vague insinuations.
In the pleadings, the appellant has only indicated several instances showing how he assessed the facts in giving suggestions in the matter of posting of different top bureaucratic officers including respondent No. 4 and how his suggestions had not been ultimately accepted by the Chief Minister.
Such facts by no stretch of imagination establish a case of mala fide action of the State Government in transferring the appellant from the post of Chief Secretary.
Mr. Attorney General has contended that in order to overcome the decision of the Tribunal, on the pleadings made before the Tribunals, the appellant has attempted to introduce a new case in paragraph 20 of the special leave petition by setting up the appointment of respondent No. 4 as both proof and result of the 4 Chief Minister 's mala fides.
To make it a triable issue, ground 'k ' has been taken in the special leave petition.
But introduction of a new case for the first time before this Court by way of embellishment cannot be permitted.
He has contended that the said new case is far from truth and is an after thought deserving outright rejection.
Mr. Attorney General has also contended that by virtue of holding a particular administrative position, an incumbent of the post may have the privilege to have the reports of other senior bureaucratic officers routed through him under the prevalent rules of business.
Such facts alone do not establish that such post is superior to other post.
If there has been a declaration of equivalence under Rule 9(1) of IAS (Pay) Rules, the post must be held to be equivalent irrespective of the fact that because of the rules of business one of the two equivalent posts enjoys some advantage or privilege.
Mr. Attorney General has contended that the declaration in 1980 was made under Rule 9(1) of IAS (Pay) Rules to the effect that the post of Additional Chief Secretary which was then an ex cadre post was equivalent to the post of Chief Secretary.
Although, subsequently the post of Additional Chief Secretary was encadred, the declaration of equivalence has not lost its force as sought to be contended by Mr. Venugopal.
Mr. Attorney General has contended that even assuming that after the encadrement there was no further scope of declaring equivalence, the fact remains that there had been appreciation and understanding of the State Government about the importance of the two posts and factual assessment of equivalence of the two posts.
He has contended that in any event, such question has become academic in the instant case because pursuant to the Cabinet decision, an exercise was made on January 4, 1991 to declare the post of Secretary, High Power Committee, as equivalent to the post of Chief Secretary itself so that there may not be any occasion for the appellant to feel stifled.
Such decision had taken place prior to the impugned order of transfer but the publication could not be made on the same day, namely, January 4, 1991 but such publication of equivalence under Rule 9 (1) was made on the very next day, namely, on January 5, 1991.
Mr. Attorney General has contended that publication on the next day docs not invalidate the factum of declaration made on January 4, 1991.
Such publication being a requirement of statute has been complied with and the publication has been made in order to give effect to the decision of declaring equivalence already taken.
Mr. Attorney General has contended that it has been specifically stated by the Chief Minister in his affidavit in opposition that declaration of equivalence was made on January 4, 1991 prior to the impugned order.
Mr. Attorney General, has also submitted that even if it is assumed that the publication of declaration of equivalence was made on January 5, 1991 but the impugned order of transfer was made on January 4, 1991, and by that process there has been violation of Rule 9(1) of IAS (Pay) Rules, such violation is a mere technical violation for which no interference by this Court is called for.
He has submitted that Central Administrative Tribunal was justified in coming to the finding that no real injury was caused to the appellant for such technical violation, even if any, and as such no interference was called for by the Tribunal against the impugned order of transfer.
Mr. Attorney General has contended that interference under Article 136 of the Constitution is not a matter of course.
Such interference is required to be made if it conforms both to equity and law.
In the facts and circumstances of the case, the appellant has not been able to make out any case for such interference within the discretionary remedy of this Court and the appeal should, therefore, be dismissed.
Mr. Attorney General has also submitted that the appellant is guilty of suppression of material facts.
After the impugned order of transfer, in view of some statements made by the appellant to the Press against Chief Minister, a decision was taken to initiate disciplinary proceeding against the appellant and he was placed under suspension.
Such suspension was challenged by the appellant before the Central Administrative Tribunal, Bangalore, in Application No. 78 of 1991 and an interim order of stay of the order of suspension was passed in the said proceeding, but subsequent to the filing of the instant special leave petition before this Court, the interim order of stay was vacated by the Administrative Tribunal.
In the aforesaid facts, the factum of suspension was required to be disclosed by the appellant.
Mr. Attorney General has contended that for suppression of material facts, this Court should refuse to interfere in this appeal and should dismiss the same.
He has also contended that in view of order of suspension, the appellant, in any event, cannot be permitted to hold or continue to hold the post of Chief Secretary.
After considering the respective contentions of the learned counsels appearing for the parties, it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order Of transfer was passed mala fide and/or for an oblique purpose in order to punish the appellant and/or to humiliate him.
The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State.
Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him.
It may not always be possible to demonstrate malice in fact with full and G elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established.
But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.
In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn.
It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters.
If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority.
The position in this regard has been well explained in Royappa 's case by this Court.
So far as the other contention of the appellant, namely, invalidity of the impugned order of transfer for want of declaration of equivalence under Rule 9(1) of IAS (Pay) Rules is concerned, it may be indicated that there had already been a declaration when the re designated post of Secretary, High Power Committee, was established that the said post was equivalent to the post of Additional Chief Secretary.
It is the positive stand of the State Government that the posts of Chief Secretary and the Additional Chief Secretary are equivalent.
But in the instant case, it is also not necessary to decide the question in detail as to whether in reality both the said posts are not equivalent as sought to be contended by Mr. Venugopal.
It appears to us that prior to the impugned orders, a decision to declare the post of Secretary, High Power Committee, equivalent to the post of Chief Secretary of the State had been taken.
Since the impugned order of transfer was implemented with immediate effect, the formal publication could not be made on the very same day but was made on January 5, 1991, namely, on the very next day.
It appears from the records that the decision to declare equivalence was taken prior to the impugned order of transfer and the formal publication by way of statutory requirement was made in order to give effect to the decision to declare equivalence already taken.
In such circumstances, we do not think that the formal declaration made on January S, 1991 invalidates the impugned order of transfer.
The Tribunal is justified in holding that infraction, even if any, in making publication formally on January S, 1991, is only a technical violation for which no interference is called for.
In the result, we do not find any reason to interfere with the impugned decision of the Central Administrative Tribunal and the appeal, therefore, fails and is dismissed but without any order as to costs.

summary/full:
The appellant was appointed to the Indian Administrative Service (KARNATAKA Cadre) in 1957, and on May 5, 1990 he was holding the post of Additional Chief Secretary to the Government of KARNATAKA, and by a Notification dated May 5, 1990 was appointed a Chief Secretary to the KARNATAKA Government until further orders.
In the State of KARNATAKA there was originally one post of Chief Secretary to the Government.
An ex cadre post of Additional Chief Secretary was created with a declaration under Rule 9(1) of IAS (Pay) Rules that the status and responsibilities of the said post were equivalent to the cadre post of Chief Secretary, and this post was thereafter encadred by Notification dated January 30, 1987 with the same pay as of the post of Chief Secretary.
The post of Secretary, High Power Committee, was created by the State Government of Karnataka in 1989 with the designation Chairman, Hyderabad, Karnataka Development Board by order dated September 27, 1989, and was declared equivalent to the status and responsibilities to the cadre post of Additional Chief Secretary under Rule 9 of IAS (Pay) Rules.
The posts of Chief Secretary, Secretary, High Power Committee and Additional Chief Secretary thus carried equal pay.
On January 3, 1991, the Cabinet Government of Karnataka took a decision to the effect that a change of the Chief Secretary should be effected, and pursuant thereto, the Chief Minister on January 4,1991 took the following three decisions, and passed consequential orders viz; (i) declaring that the post of Secretary, High Power Committee, was equivalent in status and responsibilities to the post of Chief Secretary to the Government, (ii) transferring the appellant, to the post of Secretary, High Power Committee with immediate effect, and (iii) appointing the 4th respondent, who was senior to the appellant to the post of Chief Secretary to the Government.
The Notification giving effect to the above orders of transfer was issued on January 4, 1991 but the authenticated Government order declaring the equivalent of the two posts under Rule 9 of lAS (Pay) Rules, was issued on the next day, viz; January 5, 1991.
The appellant made an application before the Central Administrative Tribunal, Bangalore for quashing the order dated January 4, 1991 transferring and posting him as Secretary, High Power Committee for Development of Hyderabad, Karnataka area, Bangalore, and for a direction to allow him to continue as the Chief Secretary.
The order was challenged mainly on two grounds: (1) that such order was not passed bona fide for the exigencies of the administration but the same was passed mala fide by the Chief Minister of Karnataka who became displeased with the appellant on account of his unfavourable attitude and resistance to some of the proposals of the Chief Minister in the matter of posting of senior officers of the State to different posts, and (2) that the transfer order was vitiated because of non compliance of the procedural formalities for a valid transfer of the appellant as there was no declaration under Rule 9(1) of IAS (Pay) Rules, 1954 that the post of Secretary, High Power Committee was equivalent to the post of Chief Secretary.
The respondents viz; State of Karnataka, the Chief Minister as also respondent No. 4 denied the allegations relating to the malice of facts and contended that they were mischievous, malicious, scandalous and vexatious and such allegations were deliberately made to malign the respondents, and contended that the post of Secretary, High Power Committee, was equivalent to the post of Additional Chief Secretary and such declaration had been made long back, and the post of Additional Chief Secretary and the post of Chief Secretary were also equivalent and interchangeable, and that the appellant can have no grievance against the said orders of transfer, and that there is also no occasion to contend that the declaration, required as under Rule 9(1) of IAS (Pay) Rules had not been made.
The Central Administrative Tribunal after considering the facts and circumstances came to the finding that the freedom to choose a person as the Chief Secretary to the liking of the Chief Minister and the Cabinet on whom there is absolute confidence, is undisputed prerogative, and such decision becomes unassailable when it is made in bona fide manner following the statutory formalities applicable to such selection and appointment, and that the appellant had no subsisting right to remain as Chief Secretary and it was the prerogative of the Chief Minister and the Cabinet to take a decision to appoint a person to the post of Chief Secretary.
The Tribunal also held that the appellant had failed to establish that he had been transferred with the ulterior motive of placing him in a lower post and thereby permanently preventing him from continuing in the position and status of Chief Secretary.
The application was accordingly dismissed.
Aggrieved by the aforesaid order of dismissal the appellant appealed to this Court by Special leave and contended that the declaration of equivalence under Rule 9(1) of IAS (Pay) Rules, 1954 is an essential statutory requirement and without such declaration of equivalence no member in the cadre of IAS can be transferred to a non cadre post, and after encadrement of the post of Additional Chief Secretary the declaration of equivalence which was made earlier lost its force, and that equivalence is referable only to an ex cadre post and ex hypothesi declaration of equivalence cannot come in inter se posts within the cadre.
It was also submitted that the order of transfer of the appellant and also the order of posting of respondent No. 4 had taken place simultaneously in undue haste even without making a declaration of equivalence and this only indicates that there had not been any bona fide and proper exercise to find out the most suitable person for the post of Chief Secretary in the normal way.
The Attorney General appearing with the Advocate General of the State of Karnataka for respondent Nos. 1 and 3, namely, the State of Karnataka and the Chief Minister of Karnataka, opposed the appeal and submitted that the post of Chairman, Karnataka Hyderabad Development Board was created on September 1, 1989 and respondent No. 4 was holding a very high and responsible office at the relevant time, and senior to the appellant as a member of the Indian Administrative Service, and that since the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary, there had been a necessity to find out a competent senior officer in the Indian Administrative Service Cadre in the State, that as no departmental proceedings had been pending against him the Cabinet and the Chief Minister had taken a decision to appoint Respondent No. 4 being the seniormost person in the Indian Administrative Service cadre in the State, having a long experience in different administrative set up and conversant with the problems of the State as Chief Secretary, and such decision is not ex facie perverse and unjustified.
Dismissing the appeal, this Court, HELD: 1.
The appellant has not been able to lay any firm foundation warranting a finding that the impugned order of transfer was passed mala fide and/or an oblique purpose in order to punish the appellant and/or to humiliate him.
[387 E] In the instant case, the pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State.
Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him.[387 F] 2.
It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters.
If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the administrative authority.
[388 B] 3.
It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established.
But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.
[387 G] 4.
So far invalidity of the impugned order of transfer for want of declaration or equivalence under Rule 9(1) of IAS (Pay) Rules is concerned, it is indicated that here had already been a declaration when the re designated post of Secretary, High Power Committee, was established that the said post was equivalent to the post of Additional Chief Secretary.
It is the positive stand of the State Government that the post of Chief Secretary and the Additional Chief Secretary are equivalent.
[388 C D] 5.
Prior to the impugned orders, a decision to declare the post of Secretary, High Power Committee equivalent to the post of Chief Secretary of the State had been taken.
Since the impugned order of transfer was implemented with immediate effect, the formal publication could not be made on the very same day but was made on January 5,1991, viz., on the very next day.
In such circumstances the formal declaration made on January 5,1991 does not invalidate the impugned order of transfer.
[388 E Fl E.P. Royappa vs State of Tamil Nadu, AIR 1974 S.C. 555, relied on.


judgement:
ion would meet the re quirement and at the end of such period the scheme is ex pected to become effectively operative.
The Tamil Nadu Board may undertake the supervision from January 1992, and it is directed that the State Government and the said Board to coordinate the implementation.
The Secretary of the Tamil Nadu Board who would be mainly in charge of the field job shall be paid by the State Government a sum of Rs.1,500 per month from January 1992, as an allowance to meet out of pocket expenses for the period he does the work as Secretary of the Board.
[362 G, H, 363 A] & ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1262 of 1987 WITH Writ Petition (Civil) No. 13064 of 1983.
(Under Article 32 of the Constitution of India).
Har Dev Singh and R.K. Agnihotri for the Petitioners.
Raju Ramachandran, R.Mohan, Ms Shanta Vasudeva, P.K.Manohar, K.Swamy, Ms.
A.Subhashini and R.C.Kohli for the respondents.
360 The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
A letter petition received from the District Beedi Worker 's Union, Tirunelveli in the State of Tamil Nadu was treated as an application under Article 32 of the Constitution and notice was ordered intially to three factories referred to in the said letter and later to other beedi manufacturing units within the State.
In the letter, complaint was made about manipulation of records regarding employees, non payment of appropriate dues for work taken, failure to implement the provisions of the labour laws, prevalence of contract labour system etc.
There is a connected petition also relating to the same subject matter with different ancillary reliefs covering employment of child labour and the non implementation of the Beedi and Cigar Workers (Conditions of Employment) Act, 1956.
We have considered it appropriate to deal with both the applications together.
This Court by an Order dated 24th October, 1989 appointed a social organisation by name 'Society for Community Organisa tion Trust (SOCCO) ganisation for making appropriate investigation and circuated the State to the court.
After the Report was received an were given time to file their respones Tamil Nadu and the manu facturers were given time to file their response by way of affidavits.
This Court then directed that a scheme should be formulated for for consideration of the Court.
This court made an Order on 24th July, 1991 to the following effect.
"We gather from the submissions made at the bar that in the meantime some exercise has been undertaken for the purpose of finalising the Scheme.
Initially the state of Tamil Nadu has taken the lead but later Union of India has also go interested and meeting on a bigger ,scale for the purpose of finalising the Scheme is being arranged.
The attorney General is present in Court today.
We have also suggested to him that he may par ticipate in the proceedings to help the schem to be finalised as quickly as possible.
" Then came two Schemes, one by the petitioners and the other by the State of r Thamil Nadu.
By order dated October 8, 1991, the Court directedon the basis of consent of counsel that at a conference the terms should be settled for one Scheme to be adopted by the Court.
On 10 th October, 1991, on the representation of the parties, the Court made the following Order: "Pursuant to our earlier direction, the em ployers, employees and the State Government through their representatives met 361 and have sorted out, some of the differences.
Matters which are agreed to by all.
and as pects which are not agred to by the employers have been seperately shown.
A copy of this may be served on counsel for the Union of India present in the court today and he is given three weeks ' time to indicate the responses.
The appropriate Ministry of the Government of india to respond to the relevant aspects.
" Pursuant to this Order, the Under Secretary in the Minis try of Labour of the Union Government has filed an affidavit which we have examined.
The objection which have.
been especially refered to in the affidavit of the Central Government do not really surive after the matter is heard inasmuch as these are questions with which the union Government in not concerned and Under the constitutional scheme they relate to the power of the State Government.
w,e would like ' to dispose of these petitions with the following directions taken from the scheme as formulated by the petitioners and the State Government, 1.
The Beedi and Cigar Workers (Conditions of Employment) Rules 1969 should be strictly implemented ,and once that is done the evil of not furnishing the books to the home workers would be eradicated.
An establishment of the Regional Provident Fund Commissioner with full 'equipment for the purpopose of implementation of the Statute should be located within the area and the Regional Provident Fund commissioner should have directionS to enforce the Act in all aspects.
This establishment should start functioning within three months from now.
The labour laws as also the Beedi and Cigar Workers (Conditions of Employment) Act should be strictly enforced so that the workers get their legitimate dues and the conditions of employment improve.
Tobacco manufacturing has indeed health hazards.
Child labour in this grade should theirfore be prohibited as far as possible and employment of child labour should be stopped either immediately or in a phased manner to be decided by the State GovernmeAts Out within a perioed not exceeding three years from now.
The provisions of Child Labour Abolition Act, 1986 should be strictly imple mented.
362 5.
Contract labour system, it is alleged, is indispensable this trade.
The Union Government is directed look into this aspect of the matter and take its final decision one way or the other within six months from now.
Beedi trade is a flourishmg one.
Exploi tation of labour is rampant in this trade.
A governmental labour establishment should be located in the area with full complement to answer the requirements of the matter.
Since beedi manufacturing process is carried more outside the factory than within, the system of maintaining the registers as a regulating practice has become necessary.
Great care should, therefore, be taken to ensure the maintenance of the register system as the bulk of the employees outside the factories can be regulated only through the record maintained in the registers.
The and the which contain beneficial provisions should be implemented in the true spirit and since they are legislations of the Central Government, the machinery of the Central Government should be made operational in the area.
Grievance has been made that the pass books are not maintained in the names of actual workers.
This should be ensured.
The Welfare Fund should be properly administered after and in the case of death of a workman appropriate assistance should be extended out of the Fund quickly.
In view of the health hazard involved in the manufacturing process, every worker in cluding children, if employed, should be insured for a minimum amount of Rs.50,000 and the premium should be paid by the employer and the incidence should not be passed on to the workman.
We are of the view that the implementation of the scheme within the state in an effective manner would require to be supervised by an independent external agency.
The Tamil Nadu State Legal Aid & Advice Board can be entrusted with this responsibility.
A three year period of such supervision, in our opinion, would meet the requirement and at the end of such period the scheme is expected to become effectively operative.
We, therefore, require the Tamil Nadu Board to undertake the super. 363 vision from January, 1992 and we direct the Tamil Nadu Government and the said Board to coordinate the implementa tion.
The Secretary of the Tamil Nadu Board Mr. Raja, who would be mainly in charge of the field job shall be paid a sum of Rs. 1,500 (fifteen) per month from January 1992, as an allowance to meet out of pocket expenses by the State Government for the period he does the work as Secretary of the Board.
We dispose of these cases with the directions indicated above and hope and trust that the authorities as also the employers and the employees would try to implement the directions in true spirit.
Liberty to apply.
G.N. Petitions disposed of.

dataset_name: IN-Abs

summary/full:
These petitions relate to child employment, prevalence of contract labour system and the non implementation of .
This Court considered the petitions and appointed a Trust viz., Society for Community Organisation Trust for conducting appropriate investigation and to submit a report.
The Trust submitted its report, which was then circulated to the Respondent State Government and the beedi manufacturers.
On the direction of this Court for formulating a scheme, two Schemes cameto be formulated, one by the State Govern ment and the other by the petitioners.
This Court directed that the terms should be settled for one Scheme to be accept ed by the Court, and given time to the Union of India to respond to the same.
Union of India filed certain objec tions.
Rejecting the objections and disposing of the petitions, this Court, 358 HELD: 1.1 The Beedi and Cigar Workers (Condition of Employment) Rules, 1968 should be strictly implemented and once that is done the evil of not furnishing the books to the home workers would be eradicated.
[361 D, E] 2.
An establishment of the Regional Provident Fund Commissioner with full equipment for the purpose of imple mentation of the Statute should be located within the area and the Regional provident Fund Commissioner should have directions to enforce the Act in all aspects.
This estab lishment should start functioning within three months from now.
[361 E, F] 3.
The labour laws as also the should be strictly enforced so that the workers get their legitimate dues and the conditions of employment improve.
[361 F G] 4.
Tobacco manufacturing has indeed health hazards.
Child labour in this trade should therefore be prohibited as far as possible and employment of child labour should be stopped either immediately or in a phased manner to be decided by the State Government but within a period not exceeding three years from now.
The provisions of Child Labour Abolition Act, 1986 should be strictly implemented.
[361 G, 11] 5.
The Union Government is directed to look into the aspect whether contract labour system is indispensable in this trade and take its final decision one way or the other within six months from now.
[362 A] 6.
Beedi trade is a flourishing one and exploitation of labour is rampant in this trade.
A governmental labour establishment should he located in the area with full com plement to answer the requiretenants of the matter.
[362 F] 7.
Sincc Beedi manufacturing process is carried more out side the factory than within, the system of maintaining the registers as a regulating practice has become necessary.
Great care should, there fore be taken to ensure the maintenance of the register system as the bulk of the employees outside the factories can be regulated through the record maintained in the registers.
[362 C] 8.
The and the Beedi 359 Workers Welfare Fund Act, 1976 which contain beneficial provision should be implemented in the true spirit and since they are legislations of the Central Government, the machin ery of the Central Government should be made operational in the area.
[362 D] 9.
It should be ensured that pass hooks are maintained in the names of actual workers.
[362 E] 10.
The Welfare Fund should be properly administered and in the case of death of workman appropriate assistance should be extended out of the Fund quickly.
[362 E, F] 11.
In view of the health hazard involved in the manu facturing process, every worker including children, if employed should be insured for a minimum amount of Rs.50,000 and the premium should be paid by the employer and the incidence should not be passed on to the workman.
[362 F] 12.
The implementation of the scheme within the State in an effective manner would require to be supervised by an independent external agency.
The Tamil Nadu State Legal Aid


judgement:
Civil Appeal No. 8244 of 1983.
From the Judgment and Order dated 22.7.1980 of the Kerala High Court in Second Appeal No. 171 of 1976.
E.M.S. Anam of the Appellants N. Sudhakaran for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Whether a junior member of the Tarwad, in Kerala, who redeems the mortgage and is in possession for more than 50 years is a `mortgagee holding the land comprised in a mortgage ' so as to acquire rights of tenant of tenant under Section 4(A) of the Kerala Land Reforms Act, is the legal issue that arises for consideration in this appeal, by successors of other members of the Tarwad who suit for partition was dismissed in second appeal by the High Court.
In the year 1045 (1870) a mortgage was executed by the Karnavan (akin to Manager) of the Tarwad, (somewhat like a joint family).
Two junior members, of the Tarwad, paid the amount in the year 1061 (1886), got the property released, obtained possession and they or their descendants continued in possession as such.
In 1967 a suit for partition was filed by sucessors, of other member of the Tarwad, in whose favour equity of redemption, of the land in suit, was transferred in a family partition in 1962.
The suit was resisted amongst others on acquisition of right of tenant under Section 4(1)(a) of the Land Reforms Act.
Since there was no dispute on basic facts, namely, redemption of mortgage by two junior members and their continuance in possession for more than fifty years on the date Section 4(1)(a) was added to the Land Reforms Act the rights of parties were decided, more, as a matter of law.
According to the trial court and first appellate court the junior members, as a result of getting the property released, were holder of special right under Marumakkathayam Law.
They could not be held to be mortgagee, therefore, they did not acquire any right under the Land Reforms Act.
But the High Court held otherwise, mainly because in 1962 when the Tarwad was partitioned the property was treated as under mortgage since equity of redemption for the same was given to the plaintiff appellant.
It was found that, even, in the plaint it was averred that in consequence of release the mortgagee right vested in the predecessor of defendants who were junior members of the Tarwad.
The High Court, therefore, held that the defendants being assignee of mortgage in possession for fifty years, on the date the Land Reforms Act was amended and Section 4(1)(a) was added by Act XXXV of 1969, were entitled to rights as tenants.
The High Court, thus, accepted the claim of defendants because the member of the Tarwad treated the mortgage to be continuing on the date the suit was filed.
This, apart, it was held that junior member of the Tarwad paying off the debt of Tarwad becomes a mortgagee of the excess share in his own right.
But this enunciation, of law, was not accepted, as correct by a division bench of the Kerala High Court itself in Raghavan Nair vs Anandavally Amma, The question, therefore, is if a junior member of the Tarwad who redeems the properly, and gets release, is holder of special right only or he steps into the shoes of mortgagee.
Nature of right of a junior member in the Tarwad, a family corporation, in which every member male or female possesses equal right has been explained by this Court in Kochuni vs States of Madras & Kerala, ; at 1099, thus: " The incidents of a tarwad are so well settled that it is not necessary to consider the case law, but it would be enough if the relevant passages from the book "Malabar and Aliyasanthana Law" by Sundara Aiyar are cited.
The learned author says at p.7 thus: "The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on.
The issue of the male children do not belong to their tarwad but to the tarwad of their consorts.
The property belonging to the tarwad is the property of all the males and females that compose it.
Its affairs are administered by one of those persons, usually the eldest male, called the karnavan.
The individual members are not entitled to enforce partition, but a partition may be effected by common consent.
The rights of the junior members are stated to be (1) if males, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved, (5) to bar an adoption, and (6) to get a share at any partition that may take place.
These are what may be called effective rights.
Otherwise everyone is a proprietor and has equal rights.
" One of the rights according to this decision which vests in the junior member is to see that the property is duly conserved.
Such a right, obviously, includes a right to redeem the property by paying the debts outstanding against the Tarwad.
It is an incidence of co ownership or co proprietorship which flows from the nature of Tarwad.
But whether the person who thus conserves the property steps into shoes of mortgagee and holds the same rights and interests or he is a surety holding the property on behalf of the Tarwad subject to right of contribution has to be decided on general principles of mortgage as the customary law of Tarwad does not throw any light on it.
Mortgage has been defined in Section 58 of the as transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced.
The definition brings out clearly the nature of mortgage.
It was understood and followed in same sense, even, before the Act came into force.
In Gopal vs Parsotam 1883 5 All. 121.
137 F.B. it was observed : "Mortgage as understood in this country cannot be defined better than by the definition adopted by the Legislature in section 58 of the (IV of 1882).
That definition has not in any way altered the law, but, on the contrary, has only formulated in clear language the notions of mortgage as understood by all the writers of text books on Indian mortgages.
Every word of the definition is borne out by the decisions of lndian Courts of Justice.
" It was not different where customary law prevailed.
Even in customary Marumakkathayam Law, governing section of people inhabiting the West Coast, the law of mortgage was understood in no different sense.
Since the transfer in a mortgage is, only, of interest and not of the entire right and title, as takes place in sale, the mortgagor and the mortgagee can transfer or assign their interest.
A mortgagor may assign or transfer the equity of redemption or may even create second mortgage.
Similarly a mortgagee may assign his interest or create another mortgage.
What happens when a mortgagee assigns his interest in favour of another person? Since an assignor can pass interest that he has, the assignee becomes holder of the same interest that a mortgagee has.
In other words, he steps into the shoes of the mortgagee.
Can the same be said where a co mortgagor or anyone on behalf of mortgagor authorised under law, pays the amount and brings to an end the interest the mortgagee had? Mortgage is creation of an interest in the property for payment of debt.
Once the mortgage debt is discharged by a person beneficially interested in equity of redemption the mortgage comes to an end by operation of law.
Consequently the relationship of mortgagor and mortgagee cannot subsist.
What then is the status of a person paying off debt to secure the property either with consent of others or on own volition? In law he becomes the owner, entitled to hold and possess the property.
But in equity the right is to hold the property till he is reimbursed.
In other words, he may hold the property in surety or he may bring the claim for contribution.
In Ganeshi Lal vs Joti Pershad, ; , it was held; ".
Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it and it is well recognised that where there are several joint debtors, the person making the payment is a principal debtor as regards the part of the liability he is to discharge and a surety in respect of the shares of the rest of the debtors. " Similarly the co mortgagor whose share has been got redeemed is entitled, in equity, to get possession over his share of property on payment of the amount of his share.
In Valliamma Champaka Pillay vs Sivathanu Pillay & Ors., [1980] I SCR 354 the principle was explained thus: "From what has been said above it was clear that where the is not in force and a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct rights: Firstly, to be subrogated to the rights of the mortgagee discharged, vis a vis the non redeeming co mortgagor, including the right to get into possession of the latters portion or share of the hypotheca.
Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca, which belonged not to him but to the other co mortgagor.
It follows that where one co mortgagor gets the right to contribution against the other co mortgagor by paying off the entire mortgage debt, a co related right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former.
This corresponding right of the ' non redeeming ' co mortgagor, to pay his share of the liability and get possession of his property from the redeeming co mortgagor, subsists as long as the latter 's right to contribution subsists " But these rights in equity, either in favour of the person 2who discharges the debt or the person whose debt has been discharged, do not result in resumption of relationship of mortgagor and mortgagee.
Even under subrogation, a legal concept, meaning substitution, applied, on English Law principle, even earlier, inserted now as Section 92 in since 1929, the rights that are created in favour of a co mortgagor as a result of discharge of debt are 'so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems '.
What is the meaning of expression 'right as mortgagee '? Does a person who, in equity, gets subrogated becomes mortgagee? Or his rights are confined to foreclosure or sale? A plain reading of the section does not warrant a construction that the substitutee becomes a mortgagee.
The expression is, 'right as the mortgagee ' and not right of mortgagee.
The legislative purpose was statutory recognition of the equitable right to hold the property till the co mortgagor was reimbursed.
And not to create relationship of mortgagor and mortgagee.
The section confers certain rights on co mortgagor and provides for the manner of its exercise as well.
The rights are of redemption, foreclosure and sale.
And the manner of exercise is as mortgagee.
The word, 'as ' according to Black 's Legal Dictionary means, 'in the manner prescribed '.
Thus a co mortgagor in possession, of excess share redeemed by him, can enforce his claim against non redeeming mortgagor by exercising rights of foreclosure or sale as is exercised by mortgagee under section 67 of the .
But that does not make him mortgagee.
Therefore, a co mortgagor or a Junior member of the Tarwad who continued in possession over the excess share, got redeemed by him, could not be deemed to be mortgagee so as to acquire right under Section 4A(1)(a) of the Kerala Land Reforms Act.
Legal position explained above does not alter either because during partition equity of redemption in respect of property redeemed by junior members was transferred or because in the plaint it was claimed that mortgage subsisted.
None of these actions could effect the operation of law.
In the result this appeal succeeds and is allowed.
The judgment and order of the High Court is set aside and the order of the trial court decreeing the suit for partition is restored.
Parties shall bear their own costs.
N.P.V. Appeals allowed.
STATE bank of india and anr.
vs V. PARTHASARATHY ETC.
NOVEMBER 9, 1992 [KULDIP SINGH AND P.B. SAWANT, JJ.] Civil Services: State Bank of India Promotion to the post of Head Clerk Circular No. 42 Clause Three options Outside the city within city and within the same office Debarment on refusal of third and final offer Local Head Office and five other offfices to be considered as one Unit Final offer made in one such office Whether valid and debars the optees permanently on refusal to accept.
The appellant Bank issued Circular No. 42 containing an understanding reached with the Staff union laying down the policy for promotion of clerks to the post of Head Clerks.
As per clause 1(d) of the Circular the employees who decline to accept Head Clerk s post at a branch office outside the city in which they work, will have a further option when a vacancy arises at any one of the Bank 's offices within that city.
However, this was subject to the condition that at the material time there was no other senior employee who had similarly declined the post outside his branch office, in which case the senior most would have the first choice.
It was further provided that if an employee declines to accept the post of Head Clerk at an office within the same city, his case would be considered only when a vacancy arises at his office.
This was also subject to the condition that there was no senior employee similarly situated at the material time.
If the third and final offer is declined, there would be a permanent debarment of promotion.
Since there were six offices at the Madras Local Head Office, a common seniority was maintained and all the six offices were considered as one office, viz. local Head Office of which the other five offices were only parts.
The Respondents declined their first, second and final offers, though indisputably the final offer was made to them for being posted in an office forming part of the local Head Office.
Both the Respondents moved the High Court by way of Writ Petitions and the High Court took the view that the final offer made was not in the same office and so they were entitled to be posted as Head Clerks in the same office.
Being aggrieved by the said two decisions of the High Court, the appellant Bank preferred the present appeals.
On the question of interpretation of clause 1(d) of the circular in question: Allowing the appeals, this Court, HELD :1.
The High Court 's interpretation of cl. 1(d) of the Circular that the third offer made was not in the office where the Respondents were working and therefore their refusal to accept the post did not exhaust the third option and they were entitled to be posted as Head Clerks in the Office where they were working is incorrect in view of the fact that the local Head Office was split into six different offices which together constituted one unit.
By refusing to accept the third and final offer, the Respondents had clearly exhausted all the three options and had become permanently debarred from seeking promotion to the post of Head Clerk.
[366 E G] 2.
This Court does not intend to interfere with the appointment of the respondents to the post of Head Clerk in the Regional Office in the facts and circumstances of these matters which show that in one case a fortuitous appointment had arisen due to death of an employee within almost a month of the Respondent 's refusal to accept the offer, and in the other case, the Respondent has already been accommodated in the post of Head Clerk in the Regional Office itself.
However, this would not be treated as a precedent and this would not affect the interpretation of clause 1(d) of the Circular, placed by this Court.
[366 H; 367 A] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4799 4800 of 1992.
From the Judgments dated 4.3.1992 and 8.4.1992 in Madras High Court in W.P. No. 246/92 and W.A. No. 349 of 1992.
G. Ramaswamy Attorney General, K. Sankaran, A. Rangananthan and A.V. Rangam for the Appellants.
M.K. Ramamurthi, M.A. Krishnmoorthy, M.A. Chinnaswamy, H. Subramaniam and Ms. C. Ramamurthi for the Respondents.
Rajendra Sachhar, Ambrish Kumar and M.D. Pandey for the Inter vener.
The Order of the Court was delivered: Intervention application is allowed.
Leave granted.
Civil Appeal No. 4799 of 1992.
The controversy in this case is in a narrow compass.
The appellant Bank issued Staff Circular No. 42 containing an understanding reached with the Bank staff union laying down the policy for promotion of clerks to the post of Head Clerks.
Clause 1(d) of the said circular states as follows: Employees who decline to accept Head Clerk 's post at a Branch Office outside their place of service, i.e., outside their city, will again be offered the appointment only when a vacancy arises at any one of the offices within that city, provided that at the material time there is no other senior employees at that office who had earlier declined a posting outside his Branch, as a Head Clerk in which case the senior most employee will first be offered the appointment.
Also, if an employee declines to accept the post of a Head Clerk at an office within the same city, his case for appointment as Head Clerk will be considered only when a vacancy arises at his office, in the order of his seniority.
His case cannot be considered for a vacancy at any of the other offices in the city.
It will be apparent from the above provision of the said clause that those employees who decline to accept the Head Clerk 's post at a branch office which is outside the city in which they work will have a further option.
Such employees would be offered the post of Head Clerk again but only when a vacancy arises at any one of the Bank 's offices within that city.
This is of course subject to the condition that at the material time, there is no other senior employee who had similarly declined the post outside his branch office, in which case, the senior most would have the first choice.
The further provision of this rule and with which we are concerned in the present case is as follows.
If an employee declines to accept the post of Head Clerk at an office within the same city his case for appointment as Head Clerk would be considered only when a vacancy arises at his office.
This is also subject to the condition that there is no senior employee similarly situated at the material time.
If the third and the final offer for the post of Head Clerk is declined, there is a permanent debarment of the promotion.
One more thing necessary to be stated before we come to the facts of the present case is that the appellant Bank has a local Head Office at Madras.
In 1972, it was split into two the local Head Office and Madras Main Branch.
In 1976 77, there was a further splitting up of the local Head Office and the Main Branch and ultimately in 1979, the Madras Local Head Office was divided into following six offices as part of the same Head Office: "(i) Local Head Office (ii) Madras Main Branch (iii) Overseas Branch (iv) Regional Office, which is called Zonal Office (v) The Commercial Branch (vi) Siruthozhil Branch" 4.
There is no dispute that as far as the Clerks and the Head Clerks in all the six parts of the same local Head Office are concerned, a common seniority list is maintained.
The effect of the aforesaid arrangements for the purposes of the clause 1(d) is that "the employees" in the said clause means the employees in all the said six parts of the local Head Office.
In other words, if a vacancy for a Head Clerk occurred at any of the said six offices, it was considered to be a vacancy in one office, viz.
,the local Head Office of which the other five offices were only parts.
It appears that respondent Parthasarathy was working as a clerk in the Madras Regional Office (now called Zonal Office) which is, as will be clear from above, a part of the Local Head Office itself.
On 21st August, 1973, he was offered the post of Head Clerk at Deva Kottain which is outside Madras city.
This offer was declined by him.
On 1st July, 1980, he was offered the post of Head Clerk in the Sowkarpet branch office in the same city which was less than 2 kms, from his Regional office where he was working.
He declined the said offer too.
He was then entitled to be considered for posting as Head Clerk only in his office which meant in any of the six parts of the local Head Office, that being the third and the final offer that could be made to him.
The third offer was made to him for the post of Head Clerk at the Overseas branch, and that being part of the same local Head Office, he was bound to accept it.
However, he declined the third and the final offer also, and issued a lawyer 's notice to the Bank contending that the Overseas branch was different from the Regional office where he was working and, therefore, the offer given to him was contrary to the said clause 1(d).
The allegations made in the notice were of course denied by the bank.
On 6th September, 1983, one A. Nizamuddin who was working as Head Clerk in the Regional office passed away and that post became vacant.
On 24th September, 1983, the respondent filed a writ petition before the High Court for quashing the third and the final offer made to him on 4th August 1983, and for a direction for posting him in the Regional office where the vacancy had occurred.
The High Court took the view that the third offer made was not for the post of the Head Clerk in the same office where the respondent was working and, therefore, his refusal to accept the post did not exhaust the third option and he was entitled to the vacancy created by Nizamuddin 's death in the Regional office where the respondent was working.
We are afraid this interpretation is incorrect in view of the position explained above with regard to the local Head Office which was split into six different offices which together constituted one unit.
The respondent, when he was offered the third option in the Overseas branch, was offered the post in the same office where he was working, the Regional office being as much a part of the Head Office as the Overseas branch.
By refusing to accept the said third and the final offer, the respondent had clearly exhausted all his three options and had become permanently debarred from seeking promotion to the post of Head Clerk.
We, however, do not interfere with the appointment of the respondent to the post of Head Clerk in the Regional office in the facts and circumstances of the case which show that a fortuitous appointment had arisen within almost a month of his refusal to accept the offer.
This, however, will not be treated as a precedent nor does it affect the interpretation that we have placed on the clause 1(d) as above.
Civil Appeal No. 4800 of 1992 In this case also, the respondent Sampath was working as a Clerk in Madras Regional Office.
The first offer of the post of Head Clerk was made to him on 6th August, 1973 at Mudukulathur branch which is in Madras city.
This was declined by him.
On 12th May, 1980, he was given the second offer for the post of Head Clerk at Air Force Station branch, Tambaram which was in Madras city.
The third and final offer was made to him on 4th August, 1983 to the post of Head Clerk in the Stationery department of the Madras Local Head Office.
There is no dispute that Stationery department of the Local Head Offfice and the Regional Office form part of one unit, viz., Madras Local Head Office.
The respondent declined this offer as well, and on 23rd January, 1984 filed a writ petition in the High Court for quashing the third offer and for posting him in his office, viz., Regional Office as the Head Clerk.
The learned Single Judge of the High Court quashed the order making the third offer and allowed the petition following the earlier decision in Parthasarathy 's case with which we have dealt with earlier.
The Division Bench of the High Court also confirmed the order.
For the reasons we have given in C.A.No. 4799 of 1992, we are unable to accept the interpretation given by the High Court on clause 1(d) of Staff Circular No. 42.
However, if in the present case, the respondent has already been accommodated in the post of Head Clerk in the Regional Office itself, we do not intend to interfere with the same.
It is nonetheless made clear that it is the interpretation that we have placed on the said clause that will prevail and not the interpretation placed by the High Court.
With these observations, the appeals are allowed only to the extent that the interpretation placed by the appellant Bank on clause l(d) of the Staff Circular No. 42 is correct and the decision of the High Court on the point is incorrect.
There will be no order as to costs.

summary/full:
Two junior member of a Tarwad (somewhat like a joint family) redeemed a mortgage executed in 1870 by the Karnavan (akin to Manager) of the Tarwad.
They paid the amount in 1886, got the property released, obtained possession and they or their descendants continued in possession as such.
In 1967 a suit for partition was filed by sucessors, of other members of the Tarwad, in whose favour equity of redemption, of the suit land was transferred in a family partition in 1962.
The suit was resisted amongst others on acquisition of right of tenant under section 4A(1)(a) of the Kerala Land Reforms Act, 1964.
The trial court and first appellate court held that the junior members, as a result of getting the property released, were holders of special right under Marumakkathayam Law and they could not be held to be mortgages and, therefore, they did not acquire any right under the Land Reform Act.
The High Court, however, held that the junior member being assignee of mortgage in possession for fifty years, on the date the Kerala Land Reform Act, 1964, was amended and Section 4(1)(a) was added by Amendment Act of 1969, were entitled to rights as tenants, and thus, accepted the claim of junior members, because the members of the Tarwad treated the mortgage to be continuing on the date the suit was filed.
It also held that a junior member of the Tarwad, paying off the debt of Tarwad, became a mortgagee of the excess share in his own right.
Allowing the appeals of the sucessors of other members of Tarwad, this Court, HELD: 1.
A co mortgagor or a junior member of the Tarwad who continued in possession over the excess share, got redeemed by him, could not be deemed to be mortgagee so as to acquire right under Section 4A(1)(a) of the Kerala Land Reform Act, 1964.
This position does not alter either because during partition equity of redemption in respect of property redeemed by junior members was transferred or because in the plaint it was claimed that mortgages subsisted.
None of these actions could affect the operation of law.
[425 D E] 2.1 Mortgage is creation of an interest in the property for payment of debt.
Once the mortgage debt is discharged by a person beneficially interested in equity of redemption, the mortgage comes to an end by operation of law.
Consequently, the relationship of mortgagor and mortgagee cannot subsist.
[423 E, F] 2.2 In law, the status of a person paying off debt to secure the property either with consent of others or on own volition is that the becomes the owner, entitle to hold and possess the property.
But, in equity the right is to hold the property till he is reimbursed.
In other words, the may hold the property in surety or he may bring the claim for contribution.
Similarly, the co mortgagor whose share has been got redeemed is entitled, in equity, to get possession over his share of property on payment of the amount of his share.
But these rights in equity, either in favour of the person who discharge the debt or the person whose debt has been discharged, do not result in resumption of relationship of mortgagor and mortgagee.
[423 F, G; 424 B] 2.3 A plain reading of Section 92 of the does not warrant a construction that the substitutee become a mortgagee.
The expression is `right as the mortgagee ' and not right of mortgagee.
The legislative purpose was statutory recognition of the equitable right to hold the property till the co mortgagor was reimbursed.
And not to create relationship of mortgagor and mortgagee.
The section confers certain rights on co mortgagor and provides for the manner of its exercise as well.
The rights are of redemption, foreclosure and sale.
And the manner of exercise is as mortgagee.
The word, `as ' means, `in the manner prescribed '.
[425 B C] 2.4 A co mortgagor in possession of excess share redeemed by him can thus enforce his claim against non redeeming mortgagor by exercising rights or foreclosure or sale as is exercised by mortgagee under section 67 of the .
But that does not make him mortgagee.
[426 C D] Raghavan Nair vs Anandavally Amma, , approved.
Kochuni vs State of Madras Kerala, A.I.R. 1960 S.C. 1080; Ganeshi Lal vs Joti Pershad, ; and Valliamma Champaka Pillay vs Sivathanu Pillay & Ors.
, ; , referred to .