judgement:
vil Appeal No. 1386 of 1972.
From the Judgment and order dated the 26th October, 1971 of the Jammu and Kashmir High Court at Srinagar in Writ Petition No. 36 of 1970.
F. section Nariman, Additional Solicitor General of India, 0.
C. Mathur and P. C. Bhartari, for the appellant.
T. R. Bhasin, R. L. Kohli and Ramesh Kohli, for respondent No. 1 The Judgment of the Court was delivered by KRISHNA IYER, J.
The University of Kashmir, the appellant, with a blurred sense of legality, issued a ukase by resolution of its Council, terminating the services of its Professor, the appellee, insufficiently aware of the kaleidoscopic legislative changes and crucial statutory consequences on the one hand and curiously indifferent to its own embarrassingly ambivalent dealings seemingly legitimising the permanent status of the Professor.
This decision virtually dismissing the appellee was successfully challenged as void in the High, Court, but the appellant University has come up in appeal, with a certificate of fitness, seeking to sustain the validity of its action.
At the first blush, the law of master and servant may apply to the present fact situation bum the statutory status of the employer substantially transforms tile character of the master, the consequences of its ultra vires acts as well as amenability to types of relief like reinstatement and the applicability or writ remedies, alien to the legal chemistry of breaches of contract.
However, in the light of the factual cum legal conclusions which appeal to us these thorny jurisprudential issues of deeper import in a socio economic and cultural context where the State undertakes dynamic activities affecting citizens ' rights and operates through 171 corporate and other effective instrumentalities may not fall for direct, decision.
Enough unto the day is the evil thereof.
A chronological narration of the principal facts and events and legislative shifts and their implications must precede consideration of the legal contentions put forward by either side.
The Jammu and Kashmir University Act, 2005 (Samvat Year) created the University of Jammu and Kashmir.
Several years later, the present respondent joined the University as a lecturer on contract basis, the law that governed his services being the provisions of that Act and the statutes framed thereunder.
Subsequently, the Jammu and Kashmir University Act, 1965, was passed which, while repealing the previous Act, preserved and continued for the transitional period the rules and regulations and services of teachers and officers of the University (section 52).
Primarily, the 1965 Act imparted embryonic shape to the Jammu University and the Kashmir University by the creation of two Divisions.
(1) Jammu Division, and (2) Kashmir Division Anyway, the respondent who had joined in 1963 was appointed as Reader in September 1965, a few months after the 1965 Act came into force.
A couple of years later the respondent registered an advance in hiscareer and became Professor in the Post Graduate Departmentof the University in the Kashmir Division on terms and conditionscontained in letter dated January 8, 1968.
While he was put on probation for one year he was informed that immediately after his appointment he would have to enter into an agreement with the University in the form forwarded to him.
This agreemcnt bound the respondent to the statutes and regulations from time to time in force in the University.
It is significant to note, as the High Court has pointed out in its judgment, that "the case of both the parties, however, is that the appointment of the petitioner as Professor was on contract basis".
The one year period of probation expired on December 14.
1968, but the Vice Chancellor extended it .for one more year by order dated November 11, 1968.
This extension was confirmed by the meeting of the Central Council of the Unversity at its meeting dated June 26, 1969.
But at the same meeting it was resolved by the Central Council that the respondent be charge sheeted for certain alleged misconduct.
An enquiry was held by an enquiry officer appointed in this behalf, Shri J. N. Bhan, who submitted his report on September 5, 1969 holding the respondent guilty substantially.
By accident it happens that on the same date, namely, September 5, 1969, the Jammu and Kashmir University Ordiinance, 1969, was promulgated by the Governor establishing two separate universities, one for Jammu and the other for Kashmir.
How ever, by section 52 thereof, the rules an regulations and services of employees were continued.
And then followed a significant provision which laid down that within 60 days from the commencement of the Ordinance the services of teachers employed on contract basis were to cease unless otherwise ordered by the Chancellor.
No such order was issued by the Chancellor extending the respondent 's employment.
However, oblivious or heedless of the statutory cessation of the respondent 's services he was allowed to function as Professor and his probation was again extended for a year by the Vice Chancellor under 172 section 13(4) of the Ordinance (which had already been replaced on November 10, 1969 by the Jammu and Kashmir Universities Act, 1969).
More incongruous with the appellant 's present stand is the direction by the Vice Ciiancellor to release the salary of the respondent and the request to him to serve on the Academic Council as an ex officio member, being Professor and Head of the Department of History.
While, thus, on the one side quiet flowed the stream of service as professor, on the other turbid eddies of threat to terminate surfaced up.
For, based on the enquiry report the Vice Chancellor issued a show cause ' notice on December 22, 1969, which elicited the respondent 's explanation on January 31, 1970.
Together, all the materials were considered by the University Council at its meeting dated.
July 7, 1970, where the decision was taken to remove him paying one month 's salary.
Thereafter, of course, the present litigation started.
The principal questions canvassed before us turn on the correctness of the views taken by the High Court on (a) the respondent 's right to continue in service even after the statutory explanation thereof, and (b) the validity of the reliance on the enquiry report in the termination order and the breach of statutory conditions subject to which alone the power of terminating the relationship could be exercised by the University Council.
In the opinion of the High Court, the facts and circumstances of the case clearly enabled the spelling out of a fresh appointment of the respondent as, Professor and Head of the Department of History of the new University of Kashmir by an implied contract.
Once this position is reached it follows logically that the termination has to be in terms of the statutory regulations.
On the aspect of the case the Court took the view that the enquiry directed under the 1965 Act lapsed when the 1969 Ordinance and the Act came into force, and could not furnish the basis for punitive action against the respondent.
The irresistible conclusion the Court therefore reached was that the order of dismissal passed by the University Council being based on the report of the Enquiry Officer was bad in law.
The Court directed reinstatement by a writ of mandamus.
The learned Additional Solicitor General, appearing for the appellant University, built an argument the corner stone of which was that there was a statutory cessation of the contractual service of the respondent by operation of section 52(4) of the Ordinance and the Act of 1969.
The statutes under the Act of 1965 contained a provision which ran thus : "Procedure conditions for appointment of University Teachers.
STATUTES 1. 2.
Every salaried teacher of the University shall have to execute a written contract with the University.
The conditions of service of teachers appointed by the University shall be those embodied in the Agreement of service an nexed hereto or, on Agreement substantially to like effect, and every teacher shall execute the Agreement before he enters upon his duties or as soon as possible, thereafter.
" 173 It is also common case that respondent 's employment was on a contractual basis.
By section 51 of the 1969 Ordinance "all the statutes and regulations made under the Jammu and Kashmir University Act of 1965 and in force immediately before the commencement of this Ordinance shall so far as, may be consistent with the provisions of this Ordinance continue to be in force in each University after the commencement of this Ordinance.
" Thus we reach the position that, on a combined reading of Statute 2 framed under the 1965 Act (already extracted above) and section 51 of the Ordinance of 1969, which is in identical terms with section 59 of the Act which replaced the Ordinance, the respondent was an employee of the University serving under a contract.
In fact neither party disputes this position.
Our attention must now turn to a crucial provision in the 1969 Ordinance which is also reproduced in the ensuing Act.
Section 52 thereof runs thus : "52.
Continuance of service of the existing employees and their allocation : Notwithstanding anything contained in this Ordinance or any Statute or Regulation made thereunder or in any other law for the time being in force : (1) all employees of the University of Jammu and Kashmir constituted under the Jammu & Kashmir University Act, 1965 (other than those serving on contract or on deputation in the University or those serving in the Publication Bureau of the University) who, immediately before the commencement of this Ordinance, were holding or discharging the duties of any post or office in connection with the affairs of the said University shall, subject to the provisions of sub section (2), continue in service on the same terms and conditions as regulated their service before such commencement; (2) the Chancellor may in consultation with the Pro Chancellor by order allocate the employees of the University of Jammu and Kashmir (other than those serving on contract or deputation in the University or those serving in the Publication Division of the University) between the University of Kashmir and the University of Jammu constituted under this Ordinance in such manner as he may consider necessary and every such allocation shall be deemed to be an appointment, transfer as the case may be to the post or office by the competent authority under this Ordinance : Provided that in making such allocations the conditions of service of employment of such employees shall not be varied to their disadvantage (3). (4) all persons who immediately before the commencement of this Ordinance were holding or discharging 174 the duties of any post or office in connection with the affairs of the University of Jammu and Kashmir on contract basis or by virtue of their occupation to such posts or offices from other services in the State, unless otherwise ordered by the Chancellor after consulting the Pro Chancellor, shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance and all such contracts with or deputations to the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days.
If we may condense the effect of this provision to the extent relevant to the present case, it means that teachers employed on contract basis "unless otherwise ordered by the Chancellor after consulting the Pro Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance" or the Act, as the case may be.
To add emphasis, as it were, to the cessation of such tenure the further part of the section reiterates that "all such contracts with . the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days.
" Thus, by the inexorable operation of the calendar, on November 5, 1969, the respondent made a statutory exit from the employment of the Kashmir University.
This much even the respondent has reconciled himself to, and the High Court has accepted.
To retrieve the situation thereafter, the respondent had recourse to a plea which found favour with the learned Judges, that the actings and dealings of the higher functionaries of the University vis a vis the respondent eloquently testified to the claim of implied employment of the respondent subsequent to the statutory cessation.
It is true that de facto the respondent functioned as Professor.
drew salary as such, became a member of the Academic Council in that capacity and was treated as on extended probation by the Vice Chancellor.
In view of these habiliments of professorate the High Court assumed the premise that the respondent was "admittedly in the employment of the University of Kashmir on the relevant date", and proceeded to essay the next problem which it posed in these words "The main question in this cause is whether the employment of the petitioner was validly terminated under the impugned resolution.
" We are dealing with a statutory body, the University, and its powers and duties and the canalisation thereof.
The functionaries under it and the contours of their authority are delineated by the Act.
if any body created by a statute went beyond the area of its powers, the act was ultra vires and of no effect.
Ordinance 10 of 1969 and the subsequent Act which replaced it have vested in the 175 University Council certain powers regarding the appointment of the teaching staff.
Section 22 reads : "22.
Powers and functions of the University Council The University Council of a University shall be the supreme authority of the University and shall have the following powers, namely (f) save as otherwise provided in this Ordinance, to appoint officers of the status of Joint Registrar, Deputy Librarian and above and teachers of the status of Readers and above and to define their duties.
Provided that no officer or teacher shall be appointed by a University Council until provision has been made for his salary in the approved budget of the University conc erned : Provided further that all appointments (Permanent or temporary) to the posts of Officers or teachers referred to in this section shall be made by the University Council on the recommendation of the Selection Committee constituted for, the purpose in accordance with the provisions of Section 36 of this Ordinance, and on such terms and conditions as may be prescribed by the Statutes : Provided also that the Vice Chancellor may make appointments of teachers referred to in this Section as a temporary measure for a period not exceeding six months to carry on the work and if the recommendations of the Selection Committee are not received within a period of six months, the Vice Chancellor may extend the appointment, if any made by him, for the duration of the academic session with the approval of the University Council; Thus, the only body competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make.
such appointments only on the recommendation of the Selection Committee created by section 36.
There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor.
It follows that the only statutory authority empowered in this behalf has not appointed the.
respondent to the post claimed by him.
There is an interim power vested in the Vice Chancellor hedged in with limitations, as is contained in the third proviso to section 22(f).
lie may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committee 's recommendation is not received within the time he may extend the appointment for the duration of the academic session with the approval of the University Council.
There has been no exercise of the narrow power of the Vice Chancellor under this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months ' period cannot be legitimated by law.
Of course, he remained to teach and was paid for 176 his work.
He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of the Vice Chancellor.
May be, he, the Vice Chancellor and others in the University were perhaps not keeping themselves abreast of the law.
But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated by section 52(4), and this failure finishes the plea of continuance in office of the professor.
We are not concerned with the administrative fall out from this finding although the salary of the teacher appears to have been sanctioned by the Vice Chancellor a piece of conduct which may be understandable on equitable grounds.
The, circumstance that the respondent functioned in the University does not vest in him the legal status of a validly appointed employee with all the protection that the Act and the relevant statutes give to such a person.
In this view of the fact situation, without more, the respondent 's work on the University campus can be brought to a close.
No case of statutory termination of service is called for, the basis of statutory employment being absent.
The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because the Vice Chancellor went through the irregular exercises of extending his probation, etc.
We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out.
The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained.
When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court.
Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated.
Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute.
If a Vice Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet.
We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law.
In short, the respondent has no presentable case against the direction to quit.
Even so, there are certain disquieting features in this case.
The Additional Solicitor General fairly concedes that there was no provision in the 1969 Act which would continue or validate the enquiry ,commenced against the respondent by, Jammu and Kashmir University created by the 1965 Act.
If so, the enquiry report falls to the ground vis a vis the respondent.
The fact that he responded to a show cause notice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination.
The reliance on the enquiry report by the University.
to take a hostile decision on July 7, 1970 is illegal.
The University Council could not act to his Prejudice on the strength of a damaging report which had no force.
We are therefore clear in our minds that the termination of the services of the respondent was stricken by the vice of statutory violation.
The respondent is per 177 fectly right in contending that he has been considerably damnified in his standing and reputation by this order of the University.
We are, therefore, inclined to the view that while the respondent has no right to continue in the University, the termination of his services, as per annexure A, is invalid.
It is no use the University contending that its order is innocuous.
It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the . charges have been established against him" and the termination itself is founded on the guilt so made out.
We, therefore declare that Annexure A is void but further hold that the respondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post Graduate History Department is good.
The High Court 's order of reinstatement is quashed.
There is much in the circumstances of the case to show that both sides have, been indifferent to the provisions of the law which changed from time to time and both sides have acted under misapprehensions, which warrant our direction that parties will bear their own costs throughout.
The appeal is allowed subject to the above order as to costs.
K.B.N. Appeal allowed.

summary/full:
The respondent joined the Jammu and Kashmir University in 1963 as lecturer on contract basis.
He was later promoted as professor.
His appointment as professor was also on contract basis and by agreement he was bound by the statutes and regulations from time to time in force in the University.
While extending his period of probation as Professor the Central Council of the University resolved that the respondent be charge sheeted for certain alleged misconduct.
An Enquiry was held under the Jammu and Kashmir University Act, 1965 and at report was submitted holding the respondent guilty.
On the day the enquiry officer submitted the report, the Jammu and Kashmir University Ordinance 1969 was promulgated.
Section 52 of the Ordinance provided that teachers employed on contract basis "unless otherwise ordered by the Chancellor after consulting the Pro Chancellor shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance or the Act, as the case may be." No such order was issued by the Chancellor extending the respondents employment on the expiration of the period.
Or, the other hand.
the Vice Chancellor.
allowed him to function as Professor and his probation was again extended for a year by the Vice Chancellor under section 13(4) of the Ordinance (which had already been replaced on November 16, 1969 by the Jammu and Kashmir University Act, 1969).
The Vice Chancellor also directed the release of the salary of the respondent and requested him to serve on the academic council as an ex official member.
Based on the enquiry report the Vice Chancellor issued a show cause notice to which the respondent submitted his explanation.
The University Council decided to terminate the services of the respondent.
In a writ petition filed by the respondent the High Court directed reinstatement.
The High Court took the view that the facts and circumstances of the, case clearly enabled the spelling out of a fresh appointment of the respondent as Professor by an emplied contract.
The High Court was also of the opinion that the enquiry directed under the 1965 Act lapsed when the 1969 Ordinance came into force and could not furnish the basis for punitive action against the respondent and therefore the order of dismissal based on the report of the Enquiry Officer was bad in law.
HELD : that the High Court 's order of reinstatement.
had to be quashed.
While the respondent had no right to continue in the University the termination of his services was invalid.
(i)Under the 1969 Ordinance and the subsequent Act which replaced it the only body competent to appoint a professor, like the respondent, is the University Council and even the Council shall make such appointments only on the recommendation of the Selection Committee created by section 36.
There is no case that.
the Selection Committee even considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor.
it follows that the only statutory body 170 empowered in this behalf has not appointed the respondent to the post claimed by him.
Therefore the continuance of the respondent on the expiration of the statutory two months ' period cannot be legitimated by law.
The circumstance that the respondent functioned in the University does not vest in him the legal status of a validly appointed employee with all the protection that the, Act and the relevant statutes give to such a person.
Thus no case of statutory ter mination is called for, the basis of statutory employment being absent.
[175F] When a statute creates a body and vests it with authority and circumscribes the powers by specifying limitation.
the doctrine of implied engagement le hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointment of officers and cannot be countenanced by the Court.
If a Vice Chancellor by administrative drift allows such employment it cannot be validated by any theory of factum valet.
[176E] (ii)When there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by the Jammu and Kashmir University created by the 1965 Act.
the Enquiry report falls to the ground vis a vis the respondent.
The fact that he responded to a show cause notice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination.
The respondent would be considerably damnified in his standing and reputation by the order of the University.
The termination of his service therefore has to be declared illegal.
[176G]


judgement:
Appeal No. 1898 of 1967.
Appeal by Special Leave from the Judgment and Order dated the 4th November, 1965 of the Allahabad High Court in Civil Miscellaneous Petition No. 2491 of 1965.
Bishan Narain and D. N. Mishra, for the appellant.
section N. Prasad and section P. Nayar, for respondents Nos. 1 & 2.
The Judgment of the Court were delivered by SARKARIA J.
This appeal by special leave is directed against the order dated November 4, 1965, of the High Court of Judicature at Allahabad dismissing the appellant 's writ petition under Article 226 and 227 of the Constitution in limine.
The appellant was a Guard 'C ' Grade in Northern Railway.
He was confirmed in that post in 1952.
On April 3, 1955, an incident took place at Railway Station, Kalka, as a result of which, he was prosecuted for an offence under section 509, Penal Code.
The Additional 180 District Magistrate, Ambala convicted and sentenced him on December 29, 1955 to three months simple imprisonment.
His appeal was dismissed by the Court of Session.
In Revision, the High Court of Punjab, on March 5, 1956, maintained his conviction but reduced the sentence.
On April 2, 1956, the appellant received a communication from the Divisional Personnel Officer, Northern Railway that he had been dismissed by the Divisional Superintendent from service w.e.f. March 31, 1956.
In Appeal by special leave, this Court, set aside the conviction ,of the appellant and acquitted him by its judgment dated March 7, 1957.
Thereafter, the appellant filed a writ petition in the High Court of Punjab under Article 226 of the Constitution impugning the order The High Court by its judgment, dated of his dismissal.
September 2, 1958, issued the, writ directing the respondents to treat the dismissal of the appellant wholly void and ineffective.
Pursuant to that direction, on December 26, 1958 the appellant received a letter from the Divisional Personnel Officer that he had been reinstated to the post of Guard 'C ' Grade and that the matter of his back wages for the period between the date of his.
dismissal and the date of reinstatement would be decided later on.
By another letter of February 13, 1959, the same officer informed the appellant that the period from the date, of his dismissal to the date of his reinstatement would be treated as leave due.
The appellant, on March 11, 1959, was paid Rs. 81.51 as his entire wages for the period ending March 7, 1959.
On August 13, 1959, the appellant made an application under section 15(2) of the (Act 4 of 1936) (here inafter referred to a$ the Act) before the prescribed authority claim in , a sum of Rs. 9015.60 plus 10 times of, the said amount as compensation from the respondents.
In addition, Traveling Allowance was claimed.
Later, an attempt was made to amend the application and replace 'Traveling Allowance ' by 'Running Allowance '.
The Authority did not permit the appellant to do so as he had failed to amend in time despite the order of the Court.
The respondents resisted the appellant 's claim on various grounds including that of limitation.
By an order dated August 7, 1963, the Authority directed respondent No. 1 (Union of India), in its capacity as employer, to refund the sum of Rs. 4863.20, (plus Rs. 100/ as costs) to the appellant holding that the same had been illegally deducted from his wages.
The Authority disallowed the remaining claim including that of the Running Allowance.
Against the order of the Authority, two appeals were carried to the Appellate Authority (Additional District Judge) One by the appellant and the other by the respondents.
The Appellate Authority held that the appellant 's claim was barred by time as limitation had commenced from the date of dismissal from service and not from the date of reinstatement or the date on which it was decided to treat the period of dismissal as leave due.
It upheld the dismissal of the appellant 's claim to the Running Allowance, inter alia for the reason that he had, despite the order of the 181 Authority, failed to amend the petition within the period indicated in 0.6, R.18 of the Code of Civil Procedure.
The Appellate Authority further found that the Railway Administration was competent to treat the period of appellant 's inactive service from April 1, 1956 to February 17, 1959, as leave due and to deduct his wages for that period in accordance with rule 2044 of the Railway Establishment Code; and in view of section 7 (2) (h) of the Act, no refund of the deducted wages could be allowed.
It further held that in the case of Railway Administration, the Divisional Superintendent named as Pay Master was res ponsible for the payment of wages of the Railway employees, and consequently, the direction of the Authority requiring the Union of India to make payment to the claimant was illegal.
In the result, the Appellate Authority allowed the respondent 's appeal and dismissed the appellant 's claim.
The appellant 's writ petition impugning this order of the Appellate Authority was, as already stated, dismissed by the High Court.
Hence this appeal.
The first question that falls to be considered is, whether the claim application filed by the appellant under section 15(2) of the Act was time barred? Mr. Bishan Narain, learned Counsel for the appellant contends that the case falls under the first part of the proviso (1) to section 15(2) which relates to deduction of wages and limitation would start from March 11, 1959 when the wages for the period of the appellant 's inactive service were actually deducted and he was paid Rs. 81.51 only for the entire period ending March 7, 1959.
, Even on a stricter view, according to the learned Counsel, limitation would not start earlier than the date, February 13, 1959, when constructive deduction took place and it was decided to treat the period of his inactive service as leave due (which meant leave without pay).
Since the appellant 's claim application had been presented within six months of either of these dates, it was well within time.
Learned Counsel for the respondents does not dispute that this is a case of deduction of wages.
His argument, however, is that irrespective of whether the case was one of deduction or of non payment of wages, the starting point of limitation would be the same viz., the date on which the wages fell due or accrued.
The argument is that the concepts of 'deducted wages ' and . 'delayed wages ' are so integrated with each other that the events relatable to them always synchronise furnishing the same cause of action and the same start of limitation.
It is pointed out that the wages of a Railway employee fall due every month; wages of one month being payable by the 10th of the succeeding month.
Since the dismissal of the Appellant was declared void and non est by the Punjab High Court it is urged his right to claim wages continued to accrue every month even during the period of Ills dismissal.
In the view propounded by the learned Counsel, limitation for making the application under section 1 5 (2) started from January 3, 1956, the date of the dismissal and the application made by the appellant 182 more than three years thereafter, was clearly time barred.
Reference has been made to this Court 's decision in Jai Chand Sawhney vs Union of India(1).
We shall presently see that while the contentions of the learned Counsel for the respondents cannot, those canvassed by the learned Counsel for the appellant must prevail.
The material part of section 15 of the Act reads "15(1) 15(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub section (1) may apply to such authority for a direction under sub section (3) Provided that every such application shall be presented within (twelve months) from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be: Provided further that any application may be admitted after the said period of twelve months when die applicant satisfies the authority that he had sufficient cause for not making the application within such period.
15(3) When any application under sub section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry ' (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding twenty five rupees in the latter, and even if the amount deducted or the delayed wages are paid before the disposal of the application direct the payment of such compensation, as the authority, may think fit, not exceeding twenty five rupees :.
The question of limitation turns on an interpretation of the first proviso to sub section
(2) of section 15.
This proviso ex facie indicates two 1.
183 alternative termini a quo for limitation, namely : (i) the date on which deduction from wages was made, or, (ii) the date, on which the payment of the wages was due to be made.
From a reading of section 15, it is clear that the legislature has deliberately used, first, in sub section
(2), and then in sub section
(3) the expressions "deduction of wages" and "delay in payment of wages" as two distinct concepts.
Terminus a quo (i) in the proviso expressly relates to the deduction of wages, while (ii) is referable to the delayed wages.
if both these terminii were always relatable to the same point of time, then there would be no point in mentioning terminus a quo (i), and the, Legislature could have simply said that limitation for a claim under section 15(2) would always start from the date on which the wages "fall due" or "accrue" as has been done under article 102 of the Limitation Act which applies only to suits for recovery of wages.
The very fact that two distinct starting points of limitation referable to two distinct concepts, have been stated in the proviso, shows that the Legislature had visualised that the date of deduction of wages and the due date of delayed wages, may not always coincide.
Conjunction "or", which in the context means "either", and the phrase "as the case may be" at the end of the Proviso are clinching indicia of this interpretation.
They are not mere suplusages and must be given their full effect.
The Legislature is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative, each maybe presumed to convey a separate and distinct meaning, the choice of either of which may involve the rejection of the other.
To hold that the two expressions "wages deducted", and "wages delayed", though used in the alternative, carry the same meaning, and in the Proviso are always referable to one and the same ' point of time, would be contrary to this primary canon of interpretation "Deduction from wages" has not been defined in the Act.
Some illustrations of such deductions are, however, to be found in sections 7 and 13.
One of them in section 7 (2) (b) is "deductions for absence from duty" which indicates that such deduction can be a total deduction, also.
That is to say "deduction from wages" may be 'the same thing as "deduction of wages".
The deduction in the instant case is akin to this category covering the entire deficiency for the period of absence, the only difference being that here, the appellant absence from duty was involuntary.
Such absence in official parlance is euphemistically called "in active service ', if the employee is later on reinstated.
The point to be considered further is when did such deduction ofwages take place ? Ordinarily in a case like the present where the employee was dismissed on one date and reinstated on a later date, the deduction of wages may synchronise with the act of reinstatement.
But on the peculiar and admitted facts of this case, the deduction did not take place on the date of reinstatement (26 12 1958) because the order of reinstatement expressly stated that "decision with regard to his wages to be paid for that period will be taken later on".
In the case in hand, therefore, the "deduction ' will coincide with the decision impliedly or expressly deducting the wages.
Such a decision was taken 184 and put in the course of a communication to the appellant on February 18, 1959 whereby he was informed that the period from 3 1 1956 to 17 3 1959, would be treated as 'leave due ' Which, it is conceded, meant leave without pay.
Thus, deduction from his wages for the entire period of his 'inactive service ' took place on February 18, 1959.
and limitation under the first part of the Proviso commenced from that date.
The application was made on August 13, 1959, within six months of that date and was thus within time.
in Jai Chand Sawhney 's case (supra), the, interpretation of the first Proviso to section 15(2) never came up for consideration.
Therein, the Court was concerned only with the construction of the expression "accrue/due" in article 102 of the Limitation Act, 1908 which does not govern applications under section 15(2) of the Act.
That case, therefore, is of no assistance in determining the precise issue before us.
It may be observed in passing that the, rule in Sheo Prasad vs Additional District Judge,(1) relied on by the Additional District Judge, was not followed by the same High Court in Ram Kishore Sharma vs Additional District Judge Saharanpur(2), as is had ceased to be good law in view _of the decision of this Court in Divisional Superintendent, Northern Railway vs Pushkar Dutt Sharma(3).
In Pushkar Dutt 's case (supra), the application under section 15 (2) of the Act was filed within six months of the date on which the dismissal of the employee was set aside by the court in second appeal.
The employee 's application would have been within time irrespective of whether his case was treated as one of "wages deducted" or "wages delayed".
Therefore, the necessity of examining the comparative mean ing and distinction between "deduction from wages" or "delay in payment of wages due" and the two alternative starting points of limitation relatable to these expressions, did not arise in that case.
In the light of the above discussion, we reverse the finding of the Additional District Judge and hold that the application filed by the appellant under section 15(2) of the Act having been made within six months of the date of deduction from his wages, was within time.
The second ground on which the order of the, Additional District Judge proceeds, is that since the deduction of the wages for the period of his inactive service from April 1, 1956 to February 17, 1959, had been made under the order of a co mpetent authority passed in accordance with rule 2044 of the Railway Establishment Code, in view of section 7 (2) (h) of the Act no order could be made for the refund of the deducted amount.
Both the learned Counsel before us are agreed that in view of the pronouncement of this Court in Devendra Pratap Narain 'Rai; Sharma vs State of U.P.(4), this ground is not sustainable.
In Sharma 's case (supra), this Court was construing rule 54 of the U.P. Government Fundamental Rules, the language of which is substantially the same as that of rule 2044 of the Railway Establishment Code.
It (1) A.I.R. 1962 All. 144.
(2) [1959] All Law Journal p. 225.
(3) (4) [1962] Supp.
S.C.R. 315.
185 was held therein, that r. 54 enables the State Government to fix the pay of a public servant when his dismissal is set aside in departmental appeal.
But that rule has no application to cases in which dismissal is declared invalid by a decree of civil court and he is, in consequence, reinstated.
Mr. Bishan Narain next contends that the prescribed Authority had wrongly disallowed the claim of the appellant to "Running Allowance ' which he had mis described as "Traveling Allowance" in his claim application.
The point pressed into argument is, that once the Authority had allowed the appellant to amend his application for converting the claim of "Traveling Allowance" into "Running Allowance", it had no discretion left thereafter to prevent him from carrying out the amendment, on the technical ground that the period indicated by Order 6, Rule 18, Code of Civil Procedure, for this purpose, has expired.
The Code of Civil Procedure, it is urged, does not govern amendment of applications under section 15(2) of the Act.
The contention is untenable.
While it is true that Rule s 17 and 18 of Order 6 of the Code do not, in terms, apply to amendment of an application under section 15(2), the Authority is competent to devise, consistently with the provisions of the Act and the Rules made thereunder, its own procedure based on general principles of justice, equity and good conscience.
One of such principles is that delay defeats equity.
The Authority found that the applicant was guilty of gross negligence.
He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application.
In the circumstances, the Authority rightly refused to put a premium on this delay and laxity on the part of the appellant.
In the view we take on the claim to running allowance we need not pronounce finally on whether an amendment to the relief once granted requires to be formally carried out in the petition, as in a pleading in court, less rigidity being permissible in quasi judicial proceedings.
Mr. Bishan Narain further contends that Running Allowance was a part of the pay or substantive wages.
In support of this argument he has invited our attention to rule 2003 of the Railway Establishment Code, clause 2 of which defines 'average pay '.
According to the second proviso to this clause in the case, of staff entitled to running allowance, average pay for the purpose of leave salary shall include the average running allowance earned during the 12 months immediately preceding the month in which a Railway servant proceeds on leave subject to a maximum of 75 per cent of average pay for the said period, the average running allowance once determined remaining In operation during the remaining part of the financial year 1 cases of leave not exceeding one month.
The crucial words, which have been underlined.
show that such Running Allowance is counted towards 'average pay ' in those cases only where the leave, does not exceed one month.
It cannot, therefore, be said that Running Allowance was due to the appellant as part of his wages for the entire period of his inactive ser 186 vice.
Traveling allowance or running allowance is eligible if the officer has traveled or run, not otherwise.
We therefore negative this contention.
For the foregoing reasons, we allow this appeal, set aside the order of the Appellate Authority and restore that of the Prescribed Authority.
The appellant shall have his costs throughout.
KRISHNA IYER, J.
The judgment just delivered has my full concurrence but I feel impelled to make a few observations not on the merits but on governmental disposition to litigation, the present case being symptomatic of a serious deficiency.
In this country the State is the largest litigant to day and the huge expenditure involved makes a big draft on the public exchequer.
In the context of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy, the absence of which, in the present case, he led the Railway callously and cantankerously to resist an action by its own employee, a small man, by urging a mere technical plea which has been pursued right up to the summit court here and has been negatived in the judgment just pronounced ? Instances of this type are legion as is evidenced by the fact that then Law Commission of India in a recent report(1) on amendments to the Civil Procedure Code has suggested the deletion of section 80, finding that wholesome provision hardly ever utilised by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is a party.
It is not right for a welfare ' State like ours to be Janus faced, and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees under it pleading limitation and the like.
That the tendency is chronic flows from certain observations I had made in the Kerala High Court decision(2) which I may usefully excerpt here "The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals.
But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State 's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.
The State is.
a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move, private parties to fight (1) Law Commission of India, .54th
Report Civil Procedure Code.
(2) P.P. Abu backer vs The Union of India : A.I.R. 1972 Ker.
103 : 107 para 5. 187 in court.
The lay out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf.
I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.
This second appeal strikes me as an instance of disregard of that policy.
" All these words from the Bench, hopefully addressed to a responsive Government, may, if seasonable reactions follow, go a long way to avoidance of governmental litigiousness and affirmance of the image of the State as deeply concerned only in Justic Social Justice.
The phyrric victory of the poor appellant in this case is a sad justification, for the above observations.

dataset_name: IN-Abs

summary/full:
The appellant, a Railway Guard, was convicted and sentenced for an offence under section 509, I.P.C.
The High Court uphold his conviction.
On appeal this Court set aside.the conviction and acquitted him.
In the meanwhile the appel lant, was dismissed from service with effect from 31st March, 1956.
The appellant impugned the order of dismissal in the High Court which held that his dismissal was wholly void and ineffective.
Thereupon the appellant was reinstated and was informed that the matter of his back wages for the period between the date of his dismissal and the date of reinstatement would be decided later.
By another letter he was informed that this period was treated as leave due.
He was paid Rs. 81.51 as his wages for the entire period ending on March 7, 1959.
The appellant made an application under section 15(2) of the claiming Rs. 9,016.60 plus ten times the said amount as compensation.
In addition, he first claimed 'traveling allowance ' but later sought to amend the application by replacing 'traveling allowance by 'running allowance This was rejected by the Prescribed Authority.
The Authority allowed a part of the claim but the appellant preferred an appeal to the Appellate Authority under the Act.
The Appellate Authority held that the claim was barred by time as limitation had commenced from the date of dismissal from service and not from the date of reinstatement Or the date on which it was decided to treat the period of dismissal as leave due.
On the question (i) whether the.
claim application filed by the appellant tinder s 15(2) was time barred and (ii) whether he was entitled to running allowance.
Allowing the appeal, HELD : (i) the first proviso to sub sections
(2) of section 15 indicates two alternative starting points for limitation, namely, (i) the date on which deduction from wages was made or (ii) the date on which the payment of the wages was due to be made.
[183 A] From a reading of section 15 it is clear that the legislature has deliberately used, first.
in sub section
(2) and then in sub section
the expressions "deduction of wages" c and "delay in payment of wages ' as two distinct concepts.
Terminus a quo (i) in the proviso expressly relates to the deduction of wages, while (ii) is referable to the delayed wages.
If both these terminii were always relatable to the same Point of time, then there would be nor point in mentioning terminus a quo (i) and the legislature could have simply said that limitation for a claim under section 15(2) would always start from the date on which the wages "fall due" or "accrue" as has been done under Article 102 of the Limitation Act which applies only to suits for recovery of wages.
The very fact that two distinct starting points of limitation referable to two distinct concepts have been stated in the proviso.
shows that the legislature had visualised that the date of deduction of wages and the due date of delayed wages.
may not always coincide.
Conjunction "or" which in the context means "either" and the phrase "as the 179 case may be" at the end of the proviso are clinching indicate of this interpretation.
They are not mere surpluses and must be given their full effect.
The legislature is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative, each may be presumed to convey a separate and distinct meaning.
the choice of either of which may involve the rejection of the other.
To hold that the two expressions "wages deducted" and "wages delayed" though used in the alternative.
carry the same meaning, and in the proviso are always referable to one and the same point of time, would be contrary to this primary canon of interpretation.
(183B E] Ordinarily where an employee was dismissed on one date and reinstated on another, the deduction of wages may synchronize with the act of reinstatement.
In the instant case the deduction did not take place on the date of reinstatement because the order of reinstatement expressly stated that decision with regard to his wages for the period would be taken later.
Therefore the deduction would coincide with the decision deducting the wages.
Such a decision was taken on February, 18, 1959 and limitation under the first part of the proviso commenced from that date.
[183G H] Jai Chand Sawhney vs Union of India ; ; Divisional Superintendent.
Northern Railway vs Pushkar Dutt Sharma (1967] ; held inapplicable.
(ii) Running allowance was counted towards average pay in those cases only where the leave did not exceed one month.
Travelling allowance or running allowance was eligible if the officer had travelled or run, not otherwise.
it could not be said that running allowance was due to the appellant as part of his wages for the entire period of his inactive service.
[185H; 186A] Per Krishra Iyer J. (Concurring) In this country the State is the largest litigant today and the huge expenditure involved makes a big draft on the public exchequer, In the context of expanding dimensions of State activity and responsibility, it is not unfair to expect finer sense and sensibility in its litigation policy, the absence of which in the present case had led the Railways callously and cantankerously to resist an action by its own employee.
a small man, by urging a mere technical plea which had been pursued right up to the highest court and had been negatived, It was not right for a welfare State like ours to be Janus faced and while formulating the humanist project of legal aid to the poor contest the claims of poor employees under it pleading limitation and the like, [186 E]


judgement:
Appeal No. 1555 of 1973.
From the judgment and Order dated the 1st October 1973 of the Madhya Pradesh High Court Bench at Indore in Miscellaneous Petition No. 206 of 1973.
B. Sen. R. C. Garg, Fazal Hussain and section K. Gambhir, for the appellant.
M. C. Setalvad, J. B. Dadachanji, Ram Panjwani, U. N. Bachawat and T. T. Kunhikannan for Respondent No. 1.
Sobhagmal Jain for Respondent No. 4.
I. N. Shroff for Respondent No. 8.
F. section Nariman Additional Solicitor General for India, and section P. Nayar for Respondent No. 9.
The Judgment of the Court was delivered by KHANNA, J.
Whether a person sitting and acting as a judge of the High Court under article 224A of the Constitution can exercise the jurisdiction to try an election petition under section 80A of the Representation of the People Act, 1951 (Act 43 of 1951) (hereinafter refer.
red to as the Act) and whether the Chief Justice of the High Court can after entrusting an election petition to one judge allocate it at his request to another judge, are the two main questions which arise for determination in this appeal filed on certificate against the judgment of the Madhya Pradesh High Court.
The appellant and respondents 1 to 4 were candidates in the election to the Madhya Pradesh Legislative Assembly from Mhow constituency in indore district in March 1972.
Respondent No. 4 , withdrew his candidature and the contest took place between the appellant and res 208 pondents 1 to 3.
The result of the election was declared on March 12, 1972 and respondent No. 1 was declared elected.
On April 25, 1972 the appellant presented an election petition under section 8 1 of the Act to the Madhya Pradesh High Court challenging the election of respondent No. 1 on various grounds.
This election petition, which was numbered Election Petition 11 of 1972, and some other election petitions were entrusted by the then Chief Justice (Binshambhar Dayal CJ.) to Vyas J.
The date of the order of the Chief Justice in this respect is not on the record before us, but it has been stated during the hearing that the order was made sometime in July or August 1972.
Vyas J. in those days was sitting on the Indore Bench of the Madhya Pradesh High Court.
Surajbhan J. of the Madhya Pradesh High Court retired on February 2, 1971.
After obtaining the previous consent of the President, the Chief Justice of Madhya Pradesh High Court requested Surajbhan J. to sit and act as a judge of that court under article 224A of the Constitution.
Surajbhan J. has been thereafter sitting and acting as a judge of that court with effect from April 28, 1971.
His last appointment was by virtue of the consent of the President issued under article 224A of the Constitution as per notification dated November 23, 1972.
The appointment was to last for a period of one year or till the disposal of election petitions entrusted to him, whichever was earlier.
Vyas J. dealt with the election petition filed by the appellant and some other election petitions entrusted to him till June 1973.
On June 2, 1973 the present Chief Justice directed that Vyas J. should sit on the Gwalior Bench of the Madhya Pradesh High Court.
It may be mentioned that apart from Jabalpur where there is the principal seat of the Madhya Pradesh High Court, two Benches of the High Court function, one at Gwalior and the other at Indore.
After Vyas J. was ordered to sit on the Gwalior Bench, he came from Gwalior to Indore for the trial of election petitions assigned to him.
On June 20, 1973 Vyas J. addressed a letter to the Chief Justice setting out the stage at which were the different election petitions entrusted to him.
A letter was thereafter addressed by the Chief Justice to Vyas J. on July 19, 1973.
In reply thereto Vyas J. sent letter dated August 5, 1973 to the Chief Justice.
The material part of that letter reads as under Thakur Virendra Singh, E.P. No. 9 /72 Mannalal that as I have bean posted here it would be better that they are heard by some one at Indore.
This would avoid my visits to Indore and will be in the interest of their early disposal.
I request accordingly.
" On the margin of that letter the Chief Justice made an endorsement "He has to try them".
The Chief Justice thereafter appears to have changed his mind.
On August 20, 1973 the Chief Justice passed the following order: "In exercise of the powers conferred under Section 80 A(2) of the Representation of the People Act, 1951, 1, Chief 2 09 Justice, direct that Election Petition No. 11 of 1972 (Krishna Gopal vs P. C. Sethi shall be tried by the Hon.
Shri Justice Surajbhan Grover at the Indore Bench of the Madhya Pradesh High Court.
In exercise of the said powers it is hereby further ordered that Election Petition No. 5 of 1972 (Rana Natwarsingh vs Haribhau Joshi) and Election Petition No. 12 of 1972 (Satya naryan vs Madhukar Marmat) shall be tried by the Hon 'ble Shri Justice.
Surajbhan Grover at the Indore Bench of the Madhya Pradesh High Court.
This order is in supersession of the earlier order dated 9th July, 1972, Election Petition No. 4 of 1972 (Vimal Kumar vs Thakur Virendra singh) and Election Petition No. 9 of 1972 (Mannalal vs Kanhaiyalal Nagori) shalt continue to be tried by the Hon 'ble Shri Justice.
section R. Vyas at the Indore Bench of the Madhya Pradesh High Court Sd/ P.K. Trare Chief Justice 20 8.73" In the meantime, proceedings in the election petition filed by the appellant continued before Vyas J.
The last date of hearing in the petition before Vyas J. was August 22, 1973 when he made a formal order for filing reply to some interim applications and also issued directions that the record of the case be sent to, the Registry at Jabalpur for being, placed before, the Chief Justice.
It may be stated that issues have, been framed on merit in this election petition but no evidence has so far been recorded on those issues.
On August 27, 1973 the Deputy Registrar of the High Court sent intimation to the appellant 's counsel that the hearing of the election petition filed by the appellant and another election would take place at Indore and that arguments on the two interim applications would be heard on September 10, 1973 instead of on September 17, 1973.
On September 10, 1973 an application was filed on behalf of the appellant stating that as his election petition had been allocated to Vyas J. for trial, the same could not be withdrawn from.
It was stated that Surajbhan J. had no jurisdiction to try the petition and the same should be tried by Vyas J. On September 11, 1973 Surajbhan J. passed an order dismissing the above application.
It was stated in the order that as Vyas J. had released the election petition in question for trial by another judge, the Chief Justice was competent to pass an order for trial of the election petition by, another judge whom he considered proper.
On September 13, 1973 an application was filed by the appellant stating that he had not been heard on his, application about the lack of jurisdiction of Surajbhan J. to decide the, appellant 's election petition.
Fresh arguments were thereupon heard on the above application and the same was dismissed by Surajbhan J. as per order dated October 9, 1973.
Surajbhan J. held that he had jurisdiction to hear the election pe tition and that the order of the Chief Justice directing that it be heard by Surajbhan J. did not suffer from any infirmity.
210 in the meantime on September 27, 1973 the appellant filed a petition under article 226 of the Constitution for the issuance of a writ of mandamus directing Surajbhan J. to forbear from giving effect to the order dated August 20, 1973 of the Chief Justice entrusting the trial of the election petition filed by the appellant to him and to direct Vyas J. to complete the trial of the petition.
This petition came up for preliminary hearing before a Division Bench (Sen and Soni JJ.) of Madhya Pradesh High Court.
Four contentions were advanced on behalf of the appellant at the bearing of the writ petition but we are now concerned with only two of them.
The first contention was that a person sitting and acting as a judge of the High Court under article 224A of the Constitution was not "a judge of the High Court" for the purpose of section 80A(2) of the Act.
The second contention was that once the trial of an election petition had begun, the Chief Justice had no power under section 80A(2) of the Act to reallocate that petition to another judge.
Both these contentions as well as the other two contentions, with which we are not concerned, were repelled by the High Court.
In the result, the writ petition filed by the appellant was dismissed.
On an application filed by the appellant, the High Court granted a certificate of fitness under Article 132 of the Constitution because, in its opinion, the case involved a substantial question of law as to the interpretation of article 224A of the Constitution.
At the hearing of the appeal Mr. Sen has contended on behalf of the appellant, as was done in the High Court, that a person requested to sit and act as a judge of the High Court under article 224A of the Constitution is not a judge of the High Court for the purpose of section 80A of the 'Act and, as such, Surajbhan J, has no jurisdiction to try the election petition.
It is further argued that, even if it may be assumed that Surajbhan J. is a judge of the High Court for the purpose of section 80A of the Act, the election petition filed by the appellant could not, after it had been entrusted to Vyas J., be allocated by the Cliief Justice to Surajbhan J. So far as the latter contention is concerned, we may state that the certificate of fitness which was granted under article 132 of the Constitution by, the High Court related to the interpretation of article, 224A of the Constitution.
We have, however, permitted Mr. Sen under article 132(3) to raise the second contention also.
The contentions of Mr. Sen have been controverted by Mr. Setalvad on behalf of respondent No. 1 as well a$ by learned Additional Solicitor General on behalf of the Union of India and they have canvassed for the correctness of the view taken by the High Court.
Before examining the merits of the contentions advanced on behalf of the appellant, it would be apposite to reproduce artic le 224A of the Constitution and section 80A of the Act : "Article 224A.
Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that 211 State, and every such person SO requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do." "Section 80A. High Court to try election petitions.
(1) The Court having jurisdiction to try an election petition shall be the High Court (2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court." An election petition calling in question any election has under section 81 of the Act to be presented to the High Court.
Sub section (1) of section 80A of the Act makes it clear that the Court which has jurisdiction to try an election petition shall be the High Court.
"High Court" has been defined in clause (e) of section 79 of the Act to mean a High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held.
Sub section (2) of section 80A of the Act provides that the jurisdiction which the High Court has to try an election petition shall be exercised ordinarily by a single judge of the High Court and the Chief Justice shall from time to time assign one or more judges for the purpose.
It is plain that subsection (2) does not confer jurisdiction to try an election petition.
Such jurisdiction is conferred by sub section (1) of section 80A upon the High Court.
Sub section (2) merely specifies the instrumentality through which the jurisdiction which is vested in the High Court shall be exercised.
The sub section thus relates to the procedure for the exercise of the jurisdiction and provides that the jurisdiction shall be exercised ordinarily by a single judge of the High Court who has been assigned for the purpose by the Chief Justice.
Perusal of sub section (2) of section 80A makes it manifest that it is only a judge of the High Court assigned for the purpose by the Chief Justice who can exercise the jurisdiction which is vested in the High Court to try an election petition by sub section (1) of that section.
The provisions of Rub section (2) are mandatory and a person who is not a judge of the High Court concerned and who has not been assigned for the purpose by the Chief Justice cannot exercise the jurisdiction which is vested in the High Court by sub section (1) of section 80A of the Act.
The word "ordinarily" does not indicate that the provisions of sub section (2) of section 80A are riot 'mandatory and that relaxation in, com 2 12 pliance with those provisions is permissible.
The word "ordinarily" only qualifies the number of judges who can exercise the jurisdiction which is vested in the High Court try an election petition.
The said word indicates ' that normally it would be single judge of the High Court who can exercise the jurisdiction which is vested in the High Court, but in appropriate cases, such jurisdiction can also be exercised by two or more judges.
It has hot been disputed before us that the learned Chief Justice of the High Court has assigned Surajbhan J. for the purpose of the trial of the election petition filed by the appellant and some other petitions, but what has been contended by Mr. Sen is that Surajbhan J. is not a judge of the Madhya Pradesh High Court.
Surajbhan J., it is urged, was requested by the Chief Justice to sit and act as a judge of the Madhya Pradesh High Court under article 224A of the Constitution and though Surajbhan J. has consented so to do, he does not thereby become a judge of that High Court.
As Surajbhan J., according to Mr. Sen, lacks the requisite attribute of being a judge of the High Court, he cannot exercise under sub section (2) of section 80A of the Act the jurisdiction which is vested by sub section (1) of that section in the High Court.
This contention, in our opinion, is devoid of force.
Article 224A starts with the non obstante clause and provides that notwithstanding anything contained in Chapter V of Part VI of the Constitution, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any per ,on who has, held the office of a judge of that Court or any other High Court to sit and act as a judge of the High Court for that State.
It is further provided that every, such person so requested shall, while so sitting and acting, be entitled to sucks allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed.
to be a judge of that High Court.
According to the proviso to the article, no person would be required to sit and act as a judge of the High Court unless he consents so to do.
It is manifest from a reading of article 224A that the request made by the Chief Justice to the person who has held the office of a judge of that Court or any other High Court is to sit and act as a judge of the High Court for that State.
The article further makes it clear that the person while so sitting and acting shall have all the jurisdiction, powers and privileges of a judge of the High Court but shall not otherwise be deemed to be a judge of that Court.
Analysing article 224A, it would follow that the request which is made by the Chief Justice of the High Court for any State under that article to a person who has held the office of a High Court judge is to ,it and act as a judge of the High Court for that State.
Such a request ha,, to be made by the Chief Justice after obtaining the previous consent of the President.
The person requested while so sitting and acting shall have all the jurisdiction, powers and privileges of a judge of tile High Court.
Such a person shall not otherwise be deemed to be a judge of that Court.
The words "while so sitting, and acting" show that the person requested not merely has the Jurisdiction, powers and privileges of a judge of the, High Court, he also sits and acts as a judge of that 213 Court.
Question then arises as to what is the significance of the concluding words "but shall not otherwise be deemed to be a judge of that Court".
These words, in our opinion, indicate that in matters not relating to jurisdiction, powers and privileges the person so requested shall not be deemed to be a judge of that Court.
The dictionary meaning of the word "otherwise" is "in other ways", "in other circumstances", "in other respects".
The word "otherwise" would, therefore, point to the conclusion that for the purpose of jurisdiction, powers and privileges the person requested shall be a judge of the concerned High Court and for purposes other than those of jurisdiction, powers and privileges, the person requested shall not be deemed to be a judge of that Court.
It would, for example, be not permissible to transfer him under article 222 of the Constitution.
The use of the word "deemed" shows that the person who sits and acts as a judge of the High Court under article 224A is a judge of the said High Court but by a legal fiction be is not to be considered to be a judge of the High Court for purposes other than those relating to jurisdiction, powers and privileges.
The words "but shall not otherwise be deemed to be.
a judge of that High Court", in our opinion, by necessary implication emphasis and high light the fact that for purposes of jurisdiction, powers and privileges the person requested under article 224A is a judge of the High Court concerned.
The words "while so sitting.
and acting" in article 224A do not contemplate that the person requested has the powers, privileges_ and jurisdiction only when be sits in court during court hours.
The effect of those words is that during the period for which a person has been requested to sit and act as a judge of the High Court, he has the juris diction, powers and privileges of a judge of that Court.
The language of article 224A, but for the difference in the marginal note, is similar to that employed in article 128 which relates to the attendance of retired judges at the sittings of the Supreme Court Indeed, article 224A was a part of the Constitution as originally framed.
It was then numbered a, , article 224.
The language of the article was identical but its marginal note at that time read as "Attendance of Retired Judges at Sittings of High Court".
Article 224A was inserted by the Constitution (Fifteenth Amendment) Act.
1962 and the marginal note of the article since then is "Appointment of Retired Judges at Sitting% of the High Court".
Both at modelled on section 8 of the Supreme Court of dating) Act.
1925 which relates to the Supreme Court of Judicature in England.
According to section 8 of the English Act, the Lord Chancellor may at any time, subject to the provisions of this section.
request any person who has held the office of the judge of the Court of Appeal or of a judge of the High Court to sit and act as judge of the Court of Appeal, and every such person so requested shall while so sitting and acting.
have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a judge of the Court of Appeal , Provided that nothing in this section shall be deemed to require any such person as aforesaid to sit and act ' as a judge of the Court of Appeal unless he consents so to do.
214 Mr. Sen has pointed to the difference in the language of articles 224 and 224A.
It is urged that under article 224 a person is appointed by the President as an additional or acting judge of the High Court, while under article 224A the person requested by the Chief Justice is only to sit and act as a judge of the High Court.
In our opinion, the difference in the language of the two articles would not detract from the conclusion that a person requested under article 224A sits and acts as a judge of the High Court for the purpose of exercising jurisdiction, powers and privileges.
Article 224 and 224A deal with different mat ters.
If the language of article.
224A warrants the conclusion that in the matter of jurisdiction, powers and privileges, the person requested is a judge of the High Court, the said conclusion cannot be affected by the fact that in another.
article dealing with a different matter the language employed is not identical but has been couched in different words.
According to article 216 of the Constitution, every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint.
It is not necessary for the purpose of the present case to decide whether a person requested under article 224A falls within the category of "such other judges as the President may from time to time deem it necessary to appoint" under article 216 because the provisions of article 224A have an overriding effect.
This is made clear 'by the non obstante clause at the beginning of article 224A.
The effect of that clause is that notwithstanding the other provisions of Chapter V and Part VI of the Constitution, the person requested under article 224A would sit and act as a judge of the High Court and would have the jurisdiction, powers and privileges of a judge of that Court.
Apart from the above, we find that ' if the contention advanced on behalf of the appellant were to be accepted, it would render article 224A to be a dead letter because the jurisdiction of the High Court can under the Letters Patent of the various High Courts as well as the other enactments which have been made in this connection can be exercised only through a judge of that ' High Court.
If a person ap pointed under article 224A cannot be considered to be a judge of the High Court for the purpose of jurisdiction, powers and privileges, the question of appointing such a person would never arise.
No one can obviously be asked to sit and act as a judge of the High Court if after being so requested, he would not be able to hear any cases.
It is inconceivable that the framers of the constitution inserted an article in the Constitution which was in the nature of a dead letter.
Any construction of article 224A which would have the effect of rendering that article to be ineffective and purposeless must, in our opinion, be rejected.
As observed on page 36 of Maxwell on the Interpretation of Statutes, Twelfth Edition, a construction which would leave without effect any part of the language of a statute will normally be rejected.
We are, therefore, of the view that a person requested to sit and act as a judge of the High Court under Article 224A is a judge of that Court for the purpose of sub section (2) of section 80A of the Act.
215 We may now deal with the second contention advanced on behalf of the appellant that after the election petition filed by him had been entrusted to Vyas J., the same could not be, allocated to Surajbhan J.
In this context we find that after Vyas J. had been directed by the Chief Justice to sit on the Gwalior Bench of the High Court, Vyas J himself made a request in letter dated August 5, 1973 to the Chief Justice that the election petition filed by the appellant should be heard by someone at Indore.
It was further mentioned by Vyas J. that this would avoid his visits to Indore and would be in the interest of the early disposal of the petition.
The Chief Justice acceded to this request of Vyas J. and entrusted the election petition filed by the appellant to Surajbhan J.
There was, in our opinion, no legal infirmity in the order made by the Chief Justice in this respect.
There is nothing in the language of section 80A of the Act which stood in the way of the learned Chief Justice relieving Vyas J. at his request from the task of trying the election petition which had been earlier entrusted to him.
We have also not been referred to any other provision which prevented the Chief Justice from making the impugned order dated August 20, 1973.
The case of Zikar vs The State(1), to which reference has been made on behalf of the appellant, can hardly be of any help to him.
What was laid down in that case was that the Chief Justice of a High Court has no power to withdraw and transfer a case of which a division Bench is properly seized to another Bench without the concurrence of the former.
There is nothing in that case to indicate that a Chief Justice is powerless to withdraw a case from a judge of the High Court.
even though a request for that purpose is made by that judge.
The two legal contentions which have been advanced on behalf of the appellant in our opinion, are not well founded, and we have no hesitation to repel them.
All the same, looking to the special facts and circumstances of this case, we are of the opinion that it is fit and proper and in the interest of justice that the election petition filed by the appellant be tried by another learned judge of the High Court who may be assigned for the purpose by the Chief Justice of that Court.
It seems indeed desirable that election petitions should ordinarily, if possible, be.
entrusted for trial to a permanent judge of the High Court, even though we find that additional or acting judges or those requested under article 224A of the Constitution to,, sit and act as judges of the High Court, if assigned for the purpose by the Chief Justice, are legally competent to hear those matters.
'We, therefore, set aside the order dated August 10, 1973.
The election petition filed by the appellant shall now be heard by a permanent judge who may be assigned for the purpose by the learned Chief Justice.
The case may, therefore, J be placed before the learned Chief Justice for necessary orders.
The appeal is accepted accordingly.
The parties in the circumstances shall bear their own costs of this Court and in the High Court.
P.B.R. Appeal allowed.

summary/full:
Article 224A of the Constantine provides that notwithstanding anything contained in Chapter V of Part VI of the constitution the Chief Justice of a High Court for any State at any time, with the previous consent of the President, request any person who has held the office of a judge of *,hat Court or any other High Court to sit and act as a judge of the High Court for that 'State.
It is further provided that every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, "but shall not otherwise be deemed to be a judge of that High Court".
The appellant 's election petition in the Madhya Pradesh High Court was posted, in the 'first instance, before a permanent Judge of that High Court in the meantime a retired Judge of that High Court was appointed as a Judge ,of that Court in accordance with the provisions of article 224A of the Constitu tion and the election petition of the appellant, along with a few.
other election petitions, was transferred to him for disposal.
The writ petition of the appellant questioning the jurisdiction of the Judge to try an election petition was dismissed by the High Court.
Before the Supreme Court it was contended (i) that a person requested to sit and act as a Judge of the High Court under Art 224A was not a Judge of the High Court for the purpose of section 80A of the Representation of the People Act and (ii) that even assuming that he was a Judge for the purpose of section 80A of the Act the election petition could not, after it had been entrusted to a permanent Judge, be allocated to a Judge appointed under article 224A. Disposing of the appeal HELD : It is inconceivable that the framers of the Constitution inserted an article in the Constitution which was in the nature of a dead letter.
Any construction of article 224A which would have the effect of rendering that article to be ineffective and purposeless must be rejected.
A person requested to sit and act as a Judge of the High Court under article 224A is a judge of that Court for the purpose of sub section
(2) of section 80A of the Act.
[214G H] Under article 224A the Chief Justice of a High Court, after obtaining the previous consent of the President, requests a person who has held the office of a High Court Judge to sit and act as a Judge of the High Court for that state.
The person requested, while so sitting and acting, shall have all the jurisdiction, powers aid privileges of a Judge of the High Court,.
Such a person shall not otherwise be deemed to be a Judge of that Court.
[212D & F] The words "while so sitting and acting ' show that the person requested ,not merely has the jurisdiction, powers and privileges of a Judge of the High Court, he also sits and acts as a Judge of that Court.
The words "but shall not otherwise be deemed to be a Judge of that Court" indicate that in matters not relating to jurisdiction, powers and privileges the person so requested shall not be deemed to be a Judge of that Court.
The word "Otherwise" would point to the conclusion that for the purpose of jurisdiction, powers and privileges the person requested shall be a Judge of the concerned High Court and for purposes other than those of jurisdiction, powers and privileges,the person requested shall not be deemed to be a Judge of that Court.
The use of the 20 7 word "deemed ' shows that the person who sits and acts as a Judge of tic High Court under this Article is a Judge of the said High Court hub by a legal fiction he is not to be considered to be a Judge of the High Court for purposes other that those relating to jurisdiction, powers and privileges.
The words "but shall not otherwise be deemed to be a Judge of that High Court" by necessary implication emphasis and highlight the fact that for purposes of jurisdiction, powers and privileges the person requested under article 224A is a Judge of the High Court concerned.
The effect of the non obstante clause at the beginning of article 224A is that notwithstanding the other provisions of Chapter V of Part VI of the Constitution, the person requested under article 224A would sit end act as a Judge, of the High Court are would have the jurisdiction, powers and privileges of a Judge of that Court.
The difference in the language of articles 224 & 224A would not detract from the conclusion that a person requested under article 224A sits and acts as a Judge of the High Court for the purpose of exercising jurisdiction, powers and privileges, Articles 224 & 224A deal with different matters.
[212H; 213A D; 214B] (ii)There is nothing in the language of section 80A of the Representation of People Act which stood in the way of the Chief Justice relieving a Judge from the task of trying the election petition which had been earlier entrusted to him.
[215C] Zikar vs The State I.L.R. held not applicable.