judgement:
Civil Appeal No. 481 of 1971.
From the Judgment and Decree dated the 22nd December, 1969 of the Allahabad High Court in Writ Petition .
No. 210 of 1967.
S.T. Desai and H.S. Parihar for the Appellant.
Harbans Lal, Miss A. Subhashini and V.B. Saharya for the Respondent.
Mrs. Shobha Dikshit for Respondent.
No. 3.
The Judgment of the Court was delivered by 532 AMARENDRA NATH SEN, J.
Whether the order of the Central Government taking over the management of the Sugar Mill of the Appellant under Rule 125A of the Defence of India Rules and appointing an authorised Controller of the said Mill thereunder is valid, is the principal question which falls for determination in this appeal by certificate.
The main contention of Mr. section T. Deasi, learned Counsel for the appellant, is that on a proper construction of Rule 125A of the Defence of India Rules (hereinafter referred to as the Rules) the order taking over the management of the Sugar Mill under this rule is invalid, as on the date of the order the Sugar Mili was closed and the appellant had no intention of re opening the same.
It has not been disputed that if the order of the take over of the management is held to be valid the appellant will not be entitled to any relief and the appeal must fail.
We may observe that the question whether the Mill was closed or not on the date the order taking over the management and appointing an authorised Controller under Rule 125 was passed, is in serious dispute.
However, for the purpose of deciding the question raised in this appeal it does not become necessary to go into any dispute with regard to the facts.
We propose to proceed on the basis that the Mill had remained closed and the appellant had shut it down permanently on the date the order came to be passed, as, in our opinion, the order in question, even if the same be held to have been passed at the time when the Mill was lying so closed, must be held to be perfectly valid on a proper interpretation of Rule 125A.
As in our opinion, on a proper interpretation of Rule 125A, the order in question is lawful and justified even if we accept the submission of Mr. Desai that the Mill was factually so closed, it does not become necessary for us to advert to the facts of this particular case.
The real question is one of interpretation of Rule 125A. Rule 125A was introduced by an amendment and inserted by G. section R. 1813 dated 28th December, 1962.
The provisions of this Rule relevant for the purpose of this appeal are contained in subrules (1) and (2) which provide as follows: "125A (1).
In this rule unless the context otherwise requires, 'undertaking ' means (a) any undertaking (including an undertaking vested in.
533 or controlled or managed by, a local authority) which is engaged in the production, generation, supply, distribution or provision of water, transport, fuel, light electricity or other power, or any other thing or service which is notified by the Government as essential to the life of the community; (b) any system of public conservancy and sanitation and any hospital or dispensary; and also includes any part or property of an undertaking.
(2) If it appears to the Central Government or the State Government that for maintaining supplies and services essential to the life of the community, it is necessary to take over the management of any undertaking, that Government may, by notified order, authorise any person or body of persons to take over the management of any undertaking specified in the order and thereupon such undertaking shall be managed in accordance with the provisions of that order; Provided that powers under this sub rule shall be exercised by the State Government in respect of a company to which the applies.
Mr. Desai referring to sub rule (1) (a) of Rule 125A of the Rules has argued that the Mill of the Appellant was not an undertaking within the meaning of this Rule, as the Mill on the date of the order was not engaged in production, generation, supply, distribution, or provision of water, transport, fuel, light, electricity or other power or any other thing or service which is notified by the Government as essential to the life of the community because the Mill had been lying closed.
It is his argument that an order under Rule 125A can only be validly passed in respect of an undertaking within the meaning of the Rule and in terms of the definition of 'undertaking ' in the rule, an undertaking to which this rule may apply, must be one which is engaged in the production, generation, supply, distribution or provision of water, transport, fuel, light, electricity or other power or any other thing or service 534 which is notified by the Government as essential to the life of the community.
He contends that the Mill had been closed and had not been functioning and therefore, the Mill was not engaged in the production, generation, supply or distribution of any sugar or any other thing or service essential to the life of the community.
It is his contention that as the appellant had long before the passing of the order and even before sugar was declared to be an essential commodity completely stopped the running of the Mill with no intention to start it again, the Mill had ceased to be engaged in the manufacture or production of sugar and there was therefore, no undertaking within the meaning of Rule 125A and the order passed under Rule 125A which was not attracted must be held to be bad and invalid.
He has submitted that an order under Rule 125A can only be passed in respect of an undertaking which is actually engaged in the activity of production at the time the order is passed.
In support of the submissions made, Mr. Desai has referred to the decision of this Court in R. C. Cooper vs Union of India( ') and also to the decision of the Delhi High Court in the case of National Projects Construction Corporation Ltd. vs Commissioner of Wealth Tax.
Delhi(2).
On behalf of the Union of India, it has been submitted that stoppage of production and non functioning of the Mill even with an intent to close it down permanently does not, in any way, affect the power to take over the management under Rule 125A and the jurisdiction and authority to pass an order even in respect of an undertaking closed and intended to be permanently shut down, can validly be exercised under rule 125A.
The submission is that merely because an undertaking has been shut down with no intention of being reopened it will not on that ground only cease to be an undertaking within the meaning of the rule.
The learned counsel argues that for a proper appreciation of the true import and meaning of the word 'undertaking ' and for understanding the true scope and effect of rule 125A, it is necessary to refer to rule 125.
It is his argument that in the light of the provision contained in rule 125, rule 125A which was introduced by way of amendment to confer further power of take over of the management of an undertaking will have to be understood and construed; and on proper interpretation it is clear that in the larger public interest.
535 the power and authority conferred under rule 125A can undoubtedly be exercised in respect of an undertaking which may not be functioning and may have even been closed with intent of not reopening the same.
The relevant provisions of rule 125 read: "125.
General control of industry, etc. (1) In this rule, unless the context otherwise requires, (a) any reference to any article or thing shall be construed as including a reference to electrical energy; (b) the expression 'undertaking ' means any undertaking by way of any industry, trade or business and includes the occupation of handling, loading or unloading of goods in the course of transport.
(2) If the Central Government or the State Government is of opinion that it is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution, use and consumption of articles or thing and trade and commerce therein or for preventing any corrupt practice or abuse of authority in respect of any such matter.
(3) Without prejudice to the generality of the powers conferred by sub rule (2), an order made thereunder may provide (a) for regulating by licences, permits or otherwise the production, manufacture, treatment, keeping storage, movement, transport, distribution, disposal, acquisition, use or consumption of articles or things of any description whatsoever; 536 (aa) for regulating or prohibiting any class of commercial or financial transactions in respect of any article or thing which in the opinion of the Government are, or, if not regulated or prohibited, are likely to be, detrimental to any of the purposes specified in subrule(2) (b) for prohibiting the with holding from sale, either generally or to specified persons or classes of persons, of articles or things ordinarily kept for sale and for requiring articles or things ordinarily kept for sale to a be sold either generally or to specified persons or class or classes of persons or in specified circumstances; (c) for requiring any person holding in stock any article or thing to sell the whole or a specified part of the stock to the Government or to an officer or agent of the Government or to such other person or class or classes of persons and in such circumstances as may be specified in the order and if the order relates to food grains, at such prices as may be specified in the order having regard to; (i) the maximum price, if any, fixed by order under clause (e) or by or under any other law for the time being in force, for the grade or variety of food grains to which the order this clause applies; and (ii) the price for that grade or variety of food grains prevailing or likely to prevail during the post harvest period in the area to which the order applies; (d) for securing the production or manufacture of specified articles or things in specified quantities and for effecting modification in the pattern of production or manufacture of such articles or things; (dd) for securing the production, manufacture supply or sale according to the prescribed standards and specifications, of any article or thing appearing to the Government essential to any of the purposes specified in sub rule (2); 537 (ddd) for the minimum and maximum stock of any article or thing appearing to the Government essential to any the purposes specified in sub rule (2), to be held by any consumer or by any producer, manufacturer, distributor, dealer or other person; (e) for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired or for relaxing any maximum or minimum limits otherwise imposed on such prices or rates; (f) for controlling the rates at which any vessel registered in India may be hired and the rates at which persons or goods may be carried in or on any such vessel; (g) for requiring any employers or class or classes of employers to supply to all or any class of their employees or to any class of dependants of such employees such articles or things in such quantities and at such price as may be specified in the order and to provide such accommodation and other facilities for taking meals at or near the place of employment as may be so specified; (h) for controlling the recruitment and employment of labour in such areas as may be specified in the order with a view to securing that efficient workers are available for undertakings which, in the opinion of the Government, are essential undertakings; (i) for regulating the carrying on of any undertaking engaged in or capable of doing, work appearing to the Government essential to any of the above mentioned purposes, and, in particular: (i) for requiring work to be done by an under taking; (ii) for determining the order of priority in which, and the period or periods within which work shall be done by an undertaking; (iii) for controlling or fixing the charges which may be made by undertaking in respect of the doing of any work by it; 538 (iv) for requiring, regulating or prohibiting the engagement in the undertaking of any employees or class or classes of employees; (v) for requiring the undertaking to provide adequate safeguards against sabotage; (j) for requiring persons engaged in the production, manufacture, supply or distribution of or trade and commerce in any article or thing, to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto and to employ such accounting and auditing staff as may be specified in the order; (k) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters; (i) for requiring persons carrying on any industry, trade or business or employed in connection with any undertaking to produce to such authority as may be specified in the order, any books, account or other documents relating thereto; and for requiring such persons to furnish such authority as may be specified in the order such estimates returns or other information relating to any industry.
trade or business or any undertaking as may be specified in the order or demanded thereunder; (m) for the grant or issue of licences, permits or other documents, the charging of fees therefor, the deposit of such sum, if any as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum to deposited for any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority.
539 as may be specified in the order; * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * (4) If it appears to the Central Government or the State Government that in the interests of the defence of India and Civil defence, or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, it is necessary to exercise control over the whole or any part of an existing undertaking, that Government may by order authorise any person (hereinafter referred to as an authorized controller) to exercise, with respect to the undertaking or any part thereof specified in the order, such functions of control as may be provided by the order; and so long as an order made under this sub rule is in force with respect to any undertaking or part of an undertaking (a) the authorised controller shall exercise his functions in accordance with any instructions given to him by the Central Government or the State Government, so, however, that he shall not have power to give any directions inconsistent with the provisions of any Act or other instrument determining the functioning of the undertakers except in so far as may be specifically provided by the order; and (b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller in accordance with the provisions of the order, and any person having any function of management in relation to the undertaking or part shall comply with any such directions; (5) The Central Government, so far as it appears to it to be necessary or expedient for securing the defence of India and civil defence or the efficient conduct of military 540 operations, or for maintaining supplies and services essential to the life of the community, may direct the employment of persons subject to the or the , or the (a) in any public utility service as defined in section 2 of the , or (b) in any undertaking or part thereof, (i) which is being carried on by the Central or a State Government, or (ii) which in the opinion of the Central Government is engaged in any trade or business essential to the life of the community, or (iii) with respect to which an order made under subrule (4) is in force.
and thereupon it shall be the duty of every person so subject to obey any command given by any superior officer in relation to such employment and every such command shall be deemed to be a lawful command within the meaning and for the purpose of the , or , or the , as the case may be.
(6) A direction under sub rule (5) may be made with or without the consent of the person carrying on the undertaking or part thereof to which the direction relates but if made without his consent shall be communicated to such person who shall thereupon be deemed to have contravened an order made under this rule if he obstructs or fails to facilitate the employment of persons subject to the , or the or the , in pursuance of the direction.
" Sub rule (2) of rule 125 makes it clear that for securing the defence of India and civil defence, efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for seeking equitable distribution and availability of any article or thing at fair prices very wide powers which are indicated in sub section(3) without prejudice to the generality of the powers conferred by this sub section have 541 provided for regulating or prohibiting production, manufacture, supply and distribution, use and consumption of articles or things and trade and commerce and for preventing any corrupt practice or abuse of authority in respect of any such matter.
Rule 125(1)(b) which defines an undertaking makes it clear that the expression 'undertaking ' means any undertaking by way of any industry, trade or business and includes the occupation of handling, loading or unloading of goods in the course of transport.
Sub rule 3(i) of rule 125 makes provision for regulating the carrying on of an undertaking engaged in, or capable of doing work appearing to the Government essential to any of the purposes mentioned above in sub rule (3) and in particular (i) for requiring work to be done by an undertaking and (ii) for determining the order of priority in which, and the period or periods within which the work shall be done by an undertaking.
It has to be noted that the expression undertaking has been given a very wide meaning in rule 125(1)(b) and is not limited to any undertaking which is functioning, or is a going concern.
Sub rule 3(i) confers powers and jurisdiction for regulating the carrying on of any undertaking not only engaged in but also capable of doing, work appearing to the Government essential and this provision makes this position abundantly clear.
In the larger interest of the country and particularly for the purpose specifically mentioned in rule 125, power of general control of very wide amplitude is conferred under rule 125 and there is nothing to indicate in the said rule that the powers conferred under rule 125 cannot be exercised over any undertaking which has stopped functioning.
Indeed, such a construction is clearly unwarranted on a plain reading of the section which clearly provides that such powers can be exercised not only in respect of an undertaking engaged but also capable of doing the kind of activity contemplated in the rule.
Such a narrow construction is likely to defeat the very purpose for which the rule has been enacted.
Although rule 125 confers very wide powers for general control of an undertaking, there is no provision in the said rule to take over the management of any undertaking.
Orders and directions under rule 125 to exercise general control over an undertaking were not considered to be sufficient and the authority felt that further power to take over the management of an undertaking in appropriate cases was necessary, when such general control may not prove effective particularly in respect of certain undertakings.
Rule 125A by way of amendment was, therefore, inserted to confer 542 further power of taking over the management of particular undertakings and of appointing authorised controllers for running such undertakings.
The meaning of the word 'undertaking ' in rule 125A has to be understood in this background and context.
Rule 125A makes it clear that the rule 125A is not intended to apply to each and every undertaking within the meaning of rule 125.
Special provision is made in rule 125A in respect of particular undertakings.
Only Rule 125A describes and particularises the undertakings to which this rule will be applicable.
The provision in this rule that "in this rule unless the context otherwise requires an 'undertaking ' means any undertaking (including an undertaking vested in or controlled or managed by, a local authority) which is engaged in the production, generation, supply, distribution or provision of water, transfer, fuel, light, electricity or other power or any other thing or service which is notified by the Government as essential to the life of the community", is merely descriptive of the undertaking to which this rule is applicable.
The words "which is engaged in the production * * *" merely describes the kind of undertaking by referring to the nature of the activity of the undertaking for bringing it within the purview of rule 125A and they have no bearing on the question whether the activities are in the process of being carried on or have been stopped.
The expression any undertaking which is 'engaged in ' has been used to describe the nature of business of the undertaking and is merely descriptive of the undertaking to which this rule will apply.
The take over of the management of an undertaking to which rule 125A is applicable may become all the more necessary in larger public interest and for effectively serving the purposes for which this rule has been incorporated, particularly when an undertaking engaged in any kind of activity coming within the purview of this rule stops functioning, to enable tee undertaking to function for achieving the purposes for which these provisions have been made.
The construction contended for by Mr. Desai will be inconsistent with the provisions of the rule and will defeat the purposes which this rule seeks to serve.
The decisions relied on by Mr. Desai are of no assistance as the expressions 'undertaking ' and 'engaged ' which came to be considered in these cases, were used in different status and in entirely different context.
We must, therefore, hold that the taking over of the management of the sugar mill of the appellant and the appointment of 543 the authorised controller were perfectly valid and lawful and the act done by the authorised controller in the course of management by virtue of the provisions of these rules must be held to be binding on the appellant.
The appeal, therefore, fails and is dismissed with no order as to costs.
N.V.K. Appeal dismissed.

summary/full:
The management of the Sugar Mill of the Appellant was taken over under Rule 125 of the Defence of India Rules 1962 and an Authorised Controller was appointed.
In the appeal by certificate to this Court, it was contended on behalf of the Appellant that long before passing of the order and even before sugar was declared to be an essential commodity, the appellant had completely stopped the running of the Mill with no intention to start it again, there was, therefore, no undertaking within the meaning of Rule 125A and the order passed under Rule 125A which was not attracted must be held to be bad and invalid.
On behalf of the Union of India, it was contended that Rule 125A confers jurisdiction and authority to pass an order even in respect of an undertaking closed and intended to be permanently shut down.
Dismissing the appeal, ^ HELD : The taking over of the management of the sugar mill of the appellant and the appointment of the authorised controller were perfectly valid and lawful and the act done by the authorised controller in the course of management is binding on the appellant.
[553A] 531 2.
Although Rule 125 confers very wide powers for general control of an undertaking, there is no provision in the said rule to take over the management of any undertaking.
Rule 125A by way of amendment was, therefore, inserted to confer further power of taking over the management of particular undertakings and of appointing authorised controllers for running such undertakings.
[541G, 542A] 3.
Rule 125A makes it clear that the rule was not intended to apply to each and every undertaking within the meaning of Rule 125.
Special provision is made in Rule 125A in respect of particular undertakings only.
Rule 125A describes and particularizes the undertakings to which this rule will be applicable.
[542B] 4.
The provision in Rule 125A that "in this rule unless the context otherwise requires, an 'undertaking ' means any undertaking (including an undertaking vested in or controlled or managed by, a local authority) which is engaged in ", is merely descriptive of the undertaking to which this rule is applicable.
The words "which is engaged in the production" merely describes the kind of undertaking by referring to the nature of the activity of the undertaking for bringing it within the purview of Rule 125A and they have no bearing on the question whether the activities are in the process of being carried on or have been stopped.
The expression any undertaking which is 'engaged in ' has been used to describe the nature of business of the undertaking and is merely descriptive of the undertaking to which this rule will apply.
[542C E]


judgement:
Civil Appeal No. 209 of 1973.
(Appeal by Special leave from the Judgment and Order dated the 27th July 1972 of the Madhya Pradesh High Court in Misc.
Petition No. 129 of 1970) AND Civil Appeal No. 1140 of 1974 (From the Judgment and order dated the 27th July, 1972 of the Madhya Pradesh High Court in Misc.
Case No. 365 of 1970.) 363 F.N. Kaku and D.N. Misra for the Appellants in CA.
No. 209 of 1973 & For the Respondent No.2 in CA.
1140/74.
M.K. Ramamurthy, Vineet Kumar and Naresh K. Sharma, for the Respondent Nos.2 & 4 in CA.209/73 & for the Appellant in CA.
No.1140 of 1974.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The principal question raised for our determination in these appeals is: Whether on its proper construction the certified Standing Order 17 provides for second opportunity being given to a workman after conclusion of the inquiry into his misconduct and before inflicting on him the punishment of dismissal and if so whether the enquiry gets vitiated by not affording him such opportunity? Facts giving rise to the question may be stated.
The Associated Cement Companies Limited (hereinafter called 'the Appellant ') has quarries worked by its department called Kymore & Bamangaon Lime stone Mines at Kymore, District Jabalpur, M.P. Workers employed in the said quarries have a union called Kymore Quarry Karamchari Sangh and the four concerned workmen Rama Shanker, Barmapradhan, Emmanual and Mohd. Rauf (hereinafter called the Respondents ') were at the material time the office bearers in the union.
In connection with the implementation of the Recommendations of Second Central Wage Board for the cement industry, after serving a strike notice on the management of the Appellant on 13th September, 1968, the Karamchari Sangh and all its Members went on a strike for 24 hours commencing from the mid night of 19th September, 1968 which was accompanied by acts of intimidation, threats, ghearoes and unlawful obstruction.
According to the management before the commencement of the strike two meetings were organized by the Respondents, one at 4 P.M. and the other at 11 P.M. on 19th September at which fiery speeches were made by them wherein they not only instigated the quarry workers to resort to strike but intimidated and prevented the willing workers from 364 going to their work and threatened the supervisory staff and officers with dire consequences if they tried to work the quarries and what is more from the mid night of 19th September till 4.30 A.M. on 20th September the quarry Manager and the supervisory staff were ghearoed and at 4.30 A.M. the Agent 's car stopped at the gate and he was unlawfully obstructed from visiting the querry premises.
Since resorting to a strike without giving 14 days ' prior notice as also the aforesaid acts on the part of the Respondents amounted to serious mis conduct under the certified Standing Orders applicable to the quarries the Management served Charge sheets dated 3rd of October.
1968 on the Respondents in which four common charges were levelled against all of them; in addition a fifth charge was levelled against two of them Emmanual and Mohd. Rauf; and yet another 6th charge was levelled against Mohd. Rauf.
The common charges were (a) themselves going on strike without 14 days ' prior notice, (b) inciting and instigating other workers to go on strike, (c) gheraoing the Quarry Manager and other supervisory staff between mid night and 4.30 A.M. on 20th September and inciting others to gherao the said staff and (d) forcibly and unauthorisedly occupying the area near the quarry canteen between 4 P.M. on 19th Sept. and 1 A.M. on 20th Sept. and installing and using loud speakers for inciting the workers.
Shri Emmanual and Shri Rauf were further charged with threatening the gheraoed staff with dire consequences, if they moved out; and Mohd. Rauf was charged in addition for having restrained the Quarry Agent from entering the quarry premises.
The respondents were called upon to submit their explanation in respect of the charges to the General Manager which they did; in their Explanations they by and large denied the charges levelled against them.
A departmental enquiry was held against them by Shri H.S. Mathur during the course of which at one stage the Respondents withdrew from the enquiry on 24th October, 1968 on the plea that the Quarry Agent should be examined first which was not being done, whereafter the enquiry proceeded ex parte and on a consideration of the entire evidence led before him the Enquiry Officer came to the conclusion that the first three charges were fully proved and the fourth charge was partly proved against all the respondents while the additional charges against Emmanual and Mohd. Rauf were also proved.
The Enquiry Report was forwarded to the General Manager who after considering the same and after taking into account the previous service record of the Respondents by his order dated 31st December, 1968 dismissed the Respondents from service.
That order was served on the Respondents on 30th January, 1969.
365 A dispute having been raised with regard to their dismissal, by common consent, the same was referred to the arbitration of Shri T.C. Shrivastava, a retired Judge of M.P. High Court, under sec.
10 A of the on 14th 'April, 1969.
The Arbitrator gave his Award on 9th February, 1970 whereby he came to the conclusion that the enquiry which was otherwise fair and valid was vitiated because no second opportunity was given to the Respondents of showing cause against the proposed punishment before the issuance of their dismissal order as required by the Standing Order No. 17; he further held that though before him the Management had by leading evidence proved their mis conduct by establishing the first three charges against all, the fifth charge against Emmanual and Mohd. Rauf (fourth charge being held not to have been proved) the punishment of dismissal in respect of Emmanual and Mohd. Rauf could be confirmed but set aside the dismissal in respect of Rama Shanker and Barmapradhan on the ground that while fomenting the strike the conduct of Emmanual and Mohd. Rauf was graver than that of Rama Shanker and Barmapradhan and instead ordered their reinstatement but without back wages.
The Appellant challenged the Award in the High Court by means of a Writ Petition (Misc.
Petition No. 129 of 1970) contending that the Arbitrator had misconstrued Standing Order No. 17 and that no second opportunity was required to be given to the Respondents and that in the alternative the interference with the punishment of dismissal in respect of Rama Shanker and Barmapradhan was erroneous while another writ petition (Misc.
Petition No. 365 of 1970) was filed by the Respondents against the punishments that were awarded to each one of them the High Court by its judgment dated 27th July, 1972 confirmed the Award of the Arbitrator by dismissing both the writ petitions.
The Appellant has come up in appeal (being Civil Appeal No. 209/73) by special leave challenging the interference with the dismissal of Rama Shanker and Burma Pradhan while the Respondents have preferred their appeal (being Civil Appeal No. 1140 of 1974) on a Certificate granted by the High Court challenging the punishments operating against each one of them.
At this stage it may be stated that as regards Emmanual and Mohd. Rauf the matter has been compromised between the parties which has already been recorded by this Court with the result that Civil Appeal No. 1140 of 1974 in so far as their dismissal is concerned no longer survives and the same needs to be dealt with by us only as regards back wages that have been denied to Rama Shanker and Burmapradhan.
366 In support of civil Appeal No. 209 of 1973 Counsel for the Appellant raised three contentions before us.
In the first place, he contended that the learned Arbitrator as well as the High Court have erroneously construed the certified Standing order No. 17 as requiring a second opportunity being given to a workman at the conclusion of the enquiry into his mis conduct and before inflicting upon him the punishment of dismissal; he urged that the concept of second opportunity being given to a delinquent which obtained under sec.
240(3) of the Government of India Act, 1935 or article 311 of the Constitution prior to the insertion of the Proviso to Article 311 (2) could not be invoked or applied to the instant case nor was such second opportunity any requirement of the ordinary law of the land or of Industrial law and in this behalf reliance was placed on two decisions of this Court in Hamdard Dawakhana case and in Saharanpur Light Rly, case.
Counsel urged that on proper construction of the Standing order it should have been held that no second opportunity was contemplated thereunder and therefore the finding that the enquiry was vitiated deserved to be set aside and according to him if the enquiry was valid and was not vitiated the punishment of dismissal imposed on Rama Shanker and Barmapradhan could not be interfered with.
In the alternative counsel contended that assuming that the enquiry was vitiated for the reason mentioned by the Arbitrator even than once serious mis conduct was proved by leading evidence before the learned Arbitrator it was not open to him to interfere with the punishment of dismissal unless the punishment was so harsh as to smack of victimisation.
In the further alternative counsel contended that assuming that the Arbitrator had power to interfere with the punishment in the instant case having to the facts and circumstances he was not justified in setting aside the dismissal of Rama Shanker and Barmapradhan especially on the ground on which he did so namely, that the conduct of Shri Emmanual and Mohd. Rauf was more grave than that of Rama Shanker and Barmapradhan while fomenting the strike; counsel urged that passively taking part in the strike was distinguishable from the more serious mis conduct of fomenting or inciting the strike and all the respondents were found guilty by the learned Arbitrator of such serious mis conduct and as such no distinction on the distinction on the basis indicated between the two sets of workmen should have been made in the matter of punishment, on the other hand coun 367 sel for the Respondents urged that Standing order No. 17 had been properly construed by the Arbitrator and the High Court and that construction should be upheld and in any case if two constructions were reasonably possible no interference by this Court was called for and counsel in that behalf relied upon the decision Agani (W.M.) vs Badri Das and ors.
Counsel further urged that once the enquiry got vitiated the entire field of determining the mis conduct as also the punishment therefor became open and the Arbitrator had jurisdiction and power to consider both the aspects and that the Arbitrator in the facts and circumstances of the case had justifiably interfered with the dismissal of Rama Shanker and Barmapradhan and had directed their reinstatement.
From the rival contentions summarised above it will appear clear that the real question that arises in these appeals is, does the certified Standing order No. 17 provide for second opportunity being given to a workman to show cause against the proposed punishment of dismissal, for, it was not disputed before us that if no such second opportunity is contemplated by it then the only ground on which the inquiry has been held to be invalid by the learned Arbitrator and the High Court would disappear and the Arbitrator could not have entered into merits of the case or interfered with the punishment of dismissal inflicted upon Rama Shanker and Barmapradhan.
The question obviously depends upon the proper construction to be placed on said S.O. 17.
It may be stated that the certified S.O. 16 enlists several acts or omissions that constitute 'mis conduct ' and striking work either singly or with other workers without giving 14 days previous notice, inciting whilst on the premises and worker to strike work and indulging in a Gherao, which would amount to an 'act subversive of discipline or efficiency ' are obviously included therein.
S.O. 17 which deals with punishments and procedure therefor runs thus: "17.
A worker may be suspended for a period not exceeding 4 days or fined in accordance with the Payment of Wages Act or dismissed without notice or any compensation in lieu of notice it found guilty of misconduct defined in Standing order No. 16.
368 All orders of suspension and fines shall be in writing setting out the misconduct for which the punishment is awarded.
No officer below the rank of the Head of Department shall award the above punishment All dismissal order shall be passed by the Manager or Acting , 'Manager who shall do so after giving accuse an opportunity to offer any explanation.
Due consideration to the gravity of the misconduct and the previous record of the worker shall be given in awarding the maximum punishment.
In the event of a discharge of dismissal, the worker shall be paid off within the second working day following the discharge or dismissal.
" The question is whether when paragraph 3 of the S.O. says: "all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation", it contemplates giving of a second opportunity to the delinquent to show cause against the proposed punishment of dismissal after he has been found guilty or the opportunity spoken of is the opportunity to meet the charges in the domestic inquiry ? At the outset the legal position as has been clarified by this Court in the Saharanpur Light Railway Co. 's case (supra) may be stated.
In the context of certain modification sought to be introduced in a Standing order requiring a second show cause notice this Court has observed thus: ' "As regards the modification requiring a second show cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice.
In none of the decisions given by the Courts or the Tribunals , such a second show cause notice in the case of removal has ever been demand or considered necessary.
The only class of cases where such a notice has been held to be necessary are those arising under article 311.
Even that has now been removed by the recent amendment of that Article.
To import such a retirement from article 311 in industrial matters does not appear to be either necessary or proper and. would be equating industrial employees with civil servants.
In our view, there is no justification or any principle for such equation.
369 Besides, such a requirement would unnecessarily prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in short time as possible.
In our view it is not possible to consider this modification as justifiable either on the ground of reasonableness of fairness and should therefore be set aside.
" It is thus clear neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary.
This, of course, does not mean that a Standing order may not provide for it but unless the Standing order provides for it.
either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non affording of such second opportunity.
The question is whether para 3 of the Standing order No. 17 provides for such second opportunity being given to the delinquent ? The relevant words are " all dismissal order shall be passed by the Manager alter giving the accused an opportunity to offer any explanation".
The underlined words are wholly inappropriate to convey the idea of a second hearing on opportunity on the question of punishment but appropriate in the context of seeking an explanation in regard to the alleged misconduct charged against him.
An explanation ' is to be called from the 'accused ' which suggests that the same is to be called for prior to the recording of finding that the delinquent is guilty of misconduct: it is the alleged misconduct that is to be explained by him and not the proposed punishment.
On a plain reading of the relevant words no second opportunity of showing cause against the proposed punishment is contemplated either expressly or by necessary implication.
In other words, it is clear to us that the opportunity spoken of by para 3 OE S.O. 17 is the opportunity to be given to the delinquent to meet the charge framed against him.
In this connection it will be pertinent to mention that the concerned S.O. was framed and came into force on March 1, 1946 and was duly certified on October 16, 1954 under the Industrial employment (Standing orders) Act, 1946 i.e. prior to the enunciation of the law by Courts regarding the observance of the principles of natural justice such as issuance of a charge sheet, holding of an inquiry, opportunity to lead evidence, etc.
and it is well known that after the enunciation of these principles model standing orders have been framed to provide for the detailed steps required to be undertaken during a domestic inquiry.
Since the Instant Standing order was certified prior to the formulation of the above principles it merely 370 contains a bald provision for `giving the accused an opportunity to offer any explanation '.
In other words, different stages in domestic inquiry were never in the contemplation of the framers of the S.O.
That being the position it would be difficult to attribute any intention to the framers thereof to provide for a second opportunity being given to the delinquent of showing cause against the proposed punishment.
The latter part of para 3 merely casts a unilateral obligation on concerned authority or the officer to give due consideration to the gravity of the misconduct and the previous record of the delinquent in awarding the maximum punishment.
It is true that the Arbitrator has undoubtedly taken the view that the opportunity spoken of by para 3 does not refer to the opportunity to meet the charges but refers to the further opportunity being given to the delinquent to show cause against the graver punishment of dismissal that may be proposed to be inflicted on him.
But for reaching such a conclusion he has resorted to some involved reasoning which is not warranted by the Standing order if read as a whole.
According to him in the earlier paragraph which speaks of awarding lighter punishment there is no reference to any opportunity being given to meet the charges but no punishment not even lighter punishment can be inflicted without inquiry being held according to the principles of natural justice and if such an inquiry as implicit in cases of lighter punishments it would be so in cases of graver punishment like dismissal and since specific mention of opportunity as made in cases of graver punishment in the relevant sentence para 3 it must have a meaning and the words cannot be considered a surpulsage and, therefore, the opportunity mentioned in the relevant sentence of para 3 refers to the second opportunity being given to the delinquent at the stage of inflicting the punishment of dismissal.
The High Court has confirmed the view of the basis that the first part of the Standing order deals with several punishments and requires finding of guilt in respect of each one of them and this procedure is, therefore, different from that which has been contemplated in the last part of the Standing order and that last part deals only with the punishment of dismissal and for that punishment alone makes a special provision that no order awarding that punishment will be passed unless the Manager gives an opportunity to a workman to offer his explanation.
In our opinion, the view of the Arbitrator as also the view of the High Court proceed on an assumption that the Standing Order No. 17 deals with two different stages concerning disciplinary proceedings against a delinquent, first holding of a 371 departmental inquiry into the charges where principles of natural justice must be implied and second the infliction of graver punishment before awarding which opportunity to show cause has been provided for; but the plain reading of the Standing Order read as a whole does not warrant any such assumption and, therefore, we do not feel that the construction placed on Standing Order No. 17 by the Arbitrator or the High Court is possible much less reasonably possible.
The ratio of this Court 's decision in Agnani (W.M.) vs Badri Das & Ors.
(supra) is, therefore, not attracted.
In view of the construction which we are placing on S.O. No. 17, it will be clear that the only ground on which inquiry was held to be invalid by the Arbitrator and by the High Court must disappear.
Admittedly, opportunity to offer explanation in regard to the alleged misconduct was not only afforded but was availed of by the concerned four workers (including Rama Shankar and Burma) Pradhan) by submitting their written explanations to the Manager whereafter the departmental inquiry was held by H.S. Mathur.
In other words S.O. 17 was fully complied with and what is more the Arbitrator has held that the inquiry was otherwise fair and valid.
The solitary ground on which the inquiry was held to be invalid having disappeared it must follow that the Arbitrator had no Jurisdiction to enter into the merits of the case or interfere with the punishment of dismissal inflicted upon Rama Shankar and Burma Pradhan.
That part of the Arbitrator 's award which has been confirmed by the High Court is, therefore, set aside.
The alternative contentions raised by counsel for the Management in these appeals do not survive.
C.A. No. 209 of 1973 (filed by the Management) is allowed and C.A. No. 1140 of 1974 (filed by the two workmen Rama Shankar and Burma pradhan) is dismissed.
There will be no order as to costs.
H.S.K. C.A. 209/72 allowed and CA.
1140/74 dismissed.

dataset_name: IN-Abs

summary/full:
Four workmen of the appellant company in Civil Appeal No. 209/73 were charged for mis conduct as defined in Standing order No. 16.
The enquiry officer found them guilty of the charges.
On the basis of the Enquiry officer 's report and after looking into the previous record of the workmen, the General Manager dismissed them.
On a dispute having been raised it was referred to the arbitrator, first respondent, under section 10A of the .
The arbitrator held that the enquiry which was otherwise fair and valid was vitiated because no second opportunity was given to the workmen before dismissing them as required by the Standing order No. 17.
The Arbitrator set aside the dismissal of two workmen and confirmed that of the other two.
The management and the workman challenged the award in the High Court by two writ petitions.
The High Court confirmed the award and dismissed both the writ petitions.
Hence these appeals by management and the workmen.
Allowing the appeal of the management and dismissing that of the workmen.
^ HELD: Under Standing order No. 17 no second opportunity of showing cause on the question of punishment is contemplated.
[367D] Neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary.
This of course, does not mean that the standing order may not provide for it but unless the Standing order provide for it either expressly or by necessary implication, no enquiry which is otherwise fair and valid will be vitiated by non affording of such opportunity.
[369B D] Standing Order No. 17 provides that a worker may be suspended, fined or dismissed if found guilty of mis conduct as defined in Standing Order No. 16.
Para 3 of Standing Order No. 17 says that "all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation.
" The question is whether para 3 provides for such second opportunity being given to the delinquent ? The words "all dis 362 missal orders shall be passed by the Manager after giving, the accused an opportunity to any offer explanation" in para 3 of Standing Order No. 17 are wholly inappropriate to convey the idea of a second hearing or opportunity on the question of punishment but appropriate in the context of seeking an explanation ' in regard to the alleged mis conduct charged against him.
An 'explanation ' is to be called from the 'accused ' which suggests that the same is to be called for prior to the recording of a finding that the delinquent is guilty of mis conduct; it is the alleged mis conduct that is to be explained by him and not the proposed punishment.
On a plain reading of the relevant words no second opportunity of showing cause against the proposed punishment is contemplated either expressly or by necessary implication.
In other word, it is clear that the opportunity spoken of by para 3 of Standing Order No. 17 is the opportunity to be given to the delinquent to meet the charges framed against him.
Further, since the instant Standing Order was certified prior to the enunciation of the law by Courts regarding the observance of the principles of natural justice such as issuance of a charge sheet, holding of an inquiry, opportunity to lead evidence, etc.
It merely contains a bald provision for 'giving the accrued an opportunity to offer any explanation '.
In other words.
different stages in domestic inquiry were never in the contemplation of the framers of the Standing Order.
That being the position it would be difficult to attribute any intention to the framers thereof to provide for a second opportunity being given to the delinquent of showing cause against the proposed punishment.
[368A E; 369C H; 370A B] The view of the Arbitrator as also the view of the High Court proceed on an assumption the Standing Order No. 17 deals with two different stages concerning disciplinary proceedings against a delinquent, first holding of a departmental inquiry into the charges where principles of natural justice must be implied and second the infliction of graver punishment before awarding which opportunity to show cause has been provided for; but the plain reading of the Standing Order read as a whole does not warrant any such assumption and, therefore, the construction placed on Standing order No. 17 by the Arbitrator or the High Court is not possible much less reasonably possible.
[373H; 371A B] In the instant case, admittedly, opportunity to offer explanation in regard to the alleged mis conduct was not only afforded but was availed of by the concerned foul workers by submitting their written explanations to the Manager whereafter the departmental inquiry was held.
In other words Standing Order No. 17 was fully complied with and what is more the Arbitrator has held that the inquiry was otherwise fair and valid.
[371D]


judgement:
Civil Appeal No. 571 of 1975 Appeal by Special leave from the judgment and Order dated the 14th March, 1973 of the Allahabad High Court in Special Appeal No. 1 of 1973.
R.K. Garg and D.K. Garg for the Appellant.
section Rangaran and N.N. Sharma for Respondent.
section Markandeya for Respondent.
Gopal Subramaniam and Mrs. Shobha Dikshit for Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant was appointed on probation as the Principal of the Model Inter College, Thora, District Bulandshahr (hereinafter referred to as 'the College ') on August 28, 1967 in accordance with the procedure prescribed by the Intermediate Education ACT, 1921 (U.P. Act No. II of 1921) (hereinafter referred to as 'the Act ') and the Regulations made thereunder.
The period of probation prescribed was one year.
Shortly before the expiry of the period of probation on August 25, 1968, the Managing Committee of the Collage passed a resolution extending the period of probation of the appellant by one year.
Thereafter on April 27, 754 1969, the Managing Committee met to consider the question of confirmation of the appellant in the post of the principal.
As the Managing Committee was not satisfied with the services of the appellant, it resolved to terminate his services and after obtaining the approval of the District Inspector of Schools wrote a letter dated June 30, 1969 to the appellant communicating its decision to terminate the services of the appellant enclosing therewith a copy of its resolution dated April 27, 1969.
The letter dated June 30, 1969 reads thus: "From To The Manager Shri I.P. Gupta Model Inter College Chilkana House, Thora (Bulandshahr) Kumaran, Bridge, Saharanpur.
No. Dated the 30th June, 1969 Sub: Termination of your service as Principal.
Dear Sir, With reference to the above, I have to mention that in view of the resolution No. 2 of the Managing Committee dated 27.4.1969 (copy enclosed) and subsequent approval by the D.I.O.S. Bulandshahr you are hereby informed that your service as Principal of this Institution is terminated with immediate effect.
You will however be entitled to your dues In lieu of notice.
Please hand over complete charge to Sri D.D. Gupta, who is being instructed accordingly, without delay.
Please note that you cease to function as Principal of this Institution forthwith.
You are neither authorised to operate any account nor will you perform any other act in the capacity of the Principal of this Institution henceforth.
Of course the civil suit filed by Shri S.P. Jain of Meerut for the recovery of his dues is your sole responsibility, Please see that the matter is reasonably settled failing which you shall be liable to any loss caused to the institution in that respect.
While handing over charge please do not forget to return all papers or documents relating to the college, 755 or any other college property in your possession.
All accounts also may kindly be cleared.
Since despite several assurances you have failed to return during the complete summer vacation, this intimation is being conveyed to you at your Saharanpur address, in this state of uncertainty under registered cover to ensure safe delivery.
Recently you are reported to have been to Bulandshahr for a few days.
Please come immediately and do the needful in the matter.
Sri D.D. Gupta is to assume office of the Principal of this institution with immediate effect in officiating capacity till further instruction.
He may take over charge from Sri I.P. Gupta when he returns.
Yours faithfully, sd/ Manager Model Inter College, Tohra (Bulandshahr)" The copy of the resolution of the Managing Committee sent alongwith the above letter reads thus: "Resolution passed by the Managing Committee in its meeting held on 27.4.69 terminating the probationary period of the Petitioner.
The report of the Manager was read.
Sri I.P. Gupta, who was present in the meeting also heard it.
He was asked by the Committee to have his say in respect of the report.
At first he refused to say anything but when the Committee requested him to consider it seriously.
and let the Committee have the benefit of his views, he said that he had nothing to say in that respect since he wanted to quit himself due to circumstances.
on this the Committee again requested him to put some such suggestion in consultation with the manager as may be helpful for the Committee to arrive at some conclusion.
In the absence of any satisfactory sugges 756 tion the Committee took the decision.
At this stage the Principal retired out of courtesy.
On the basis of the Service Book of the Principal, the manager told that last year his confirmation was due on 28.8.
1968 but in the meeting of the Committee held on 25.8 68 in which the Principal was also present, the report of the Manager, dated 4.7.68 was put as desired by the President.
Resolution 3 dated 25.8.68 under the head "Consideration on confirmation of Shri I.P. Gupta, Principal" incorporates the decision of the Committee as "According to the Manager 's report the period of probation of the Principal extended by one year.
" The proceedings book contains signatures of Sri I.P. Gupta for receiving a copy of the said resolution At the end of the proceedings the minute book contains signatures of Sri I.P. Gupta alongwith other members of the Committee present.
The facts contained in the report of the Manager being serious and not in the interests of the institution, this Committee unanimously resolves that the period of probation of Sri I.P. Gupta, Principal, be terminated without waiting for the period to end and the manager is empowered to take necessary steps in this respect.
Any thing done by him in this respect shall be considered to have been done by this Committee.
The manager is also authorised to hand over charge to Sri D.D. Gupta when necessary.
Sri I.P. Gupta also came in 'With a Vote of thanks to the Chair the meeting ended.
" The English translation of the relevant part of the report of the Manager on the basis of which the above resolution was passed which is incorporated in the counter affidavit filed on behalf of the Managing committee reads thus: "It will be evident from the above that the Principal 's stay will not be in the interest of the institution.
It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all 757 this botheration.
As such my suggestion is that our purpose will be served by termination of his services.
Why, then, we should enter into any botheration.
For this, i.e. for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary.
Accordingly any delay in this matter may also be harmful to our interests.
Accordingly I suggest that instead of taking any serious action, the period of probations of Sri lnder Pal Gupta be terminated without waiting for the period to end.
" Aggrieved by the order of termination of his services referred to above, the appellant filed a petition under article 226 of the Constitution in Writ Petition No. 4823 of 1970 on the file of the High Court of Allahabad challenging its correctness and praying for appropriate reliefs.
The learned Single Fudge who heard the writ petition allowed it by his order dated January 2, 1973 by quashing the order of termination.
The Managing Committee of the College preferred an appeal against that decision to the Division Bench of High Court in Special Appeal No. 31 of 1973.
The Division Bench allowed the appeal and dismissed the Writ Petition filed by the appellant by its order dated March 14, 1973.
This appeal is filed by the appellant against the Judgment of the Division Bench after obtaining the special leave of this Court under Article 136 of the Constitution.
The College is an institution recognised under the Act and is governed by the provisions of the Act.
Section 16 G of the Act provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the procedure for the imposition of punishment.
The Board of High School and Intermediate Education is authorised to make Regulations in respect of all matters which by the Act are to be provided for by Regulations with the previous sanction of the State Government.
Under the Regulations so made under the Act, the period of probation prescribed is one year whether a person is a direct recruit or has been promoted from a lower grade in service of the institution to a higher grade.
The period of probation of a Principal or Head Master may be extended by a maximum period of twelve months.
At least six weeks before the date of which the 758 confirmation of a Principal or a Head Master is due, the Manager of the institution is required to prepare his confirmation papers and place them before the Committee of Management and the decision of the Committee of Management in each case is required to be recorded in the form of a resolution.
Regulation 10 provides that a person placed on probation shall be confirmed if he fulfils the requirements of regulation 9, has worked with diligence and other wise proved himself fit for the post for which he was recruited and his integrity is certified.
Whenever the punishment of dismissal, removal or discharge, reduction in rank or diminution in emoluments is imposed, prior approval of the Inspector should have to be obtained.
Regulations 35 to 38 of the Regulations made under the Act which prescribe the procedure for termination of the services of an employee by way of punishment read thus: "35.
On receipt of a complaint or an adverse report of facts of a serious nature of the Committee may in the cases of teachers appoint the Headmaster or Principal or Manager as the Inquiry officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under rules) and in the case of the Head master or Principal, a small sub committee, with instructions to submit the report as expeditiously as possible.
(1) The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him.
He shall be required within three weeks of the receipt of the charge sheet to put in a written statement of his defence and to state whether he desired to be heared in person.
If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted.
At that enquiry such oral evidence will be heared as the inquiring authority considers necessary.
This person charged shall be entitled to cross examine the witness, to give evidence in person, and to have such witnesses called as he may wish, provided that the inquiring authority conducting the enquiry may, for sufficient reasons to be recorded in writing, refuse to call a witness.
The proceedings shall contain a sufficient 759 record of the evidence and statement of the findings and the grounds thereof.
The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee.
(2) Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him.
(3) All or any of the provisions of clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to the person charged.
Soon after the report of the proceedings and recommendation from the inquiring authority arc received, the Committee of Management shall meet to consider the report of the proceedings and recommendation made and take decision on the case.
The employee shall, however, be allowed, if he so desires, to appear before the Committee in person to state his case and answer any question that may be put to him by any member present at the meeting.
The Committee shall then send a complete report together with all connected papers to the Inspector or Regional Inspectress as the case may be, for approval of action proposed by it.
If it is felt at any stage that the matter can be more properly dealt with by action to terminate service with notice, this may be done with the approval of the Inspector or Regional Inspectress, as the case may be.
" It is seen from the foregoing that the above provisions relating to the procedure to be followed before imposing the punishment of dismissal or removal from service are virtually the same as provided by Article 311 (2) of the Constitution and the principles which should govern this case should, therefore, be the same as those underlying Article 311 (2).
The decisions in Parshotam Lal Dhingra vs Union of India, Shamsher Singh & Anr.
vs State of 760 Punjab and Anoop Jaiswal vs Government of India & Anr explain the true legal position governing the termination of the services of a probationer.
In Parshotam Lal Dhingra 's case (supra), this Court observed at page 862 thus: "In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with.
" The above rule applies to probationers too.
Admittedly no enquiry was held in this case as provided in Regulations 35 and 36 of the Regulations made under the Act.
Apparently in the light of the principles enunciated in Parshotam Lal Dhingra 's case (supra) the learned Single Judge who decided the Writ Petition at the first instance in the High Court observed in the course of his order thus: "In this petition under Article 226 of the Constitution the petitioner questions the validity of the so called termination of his service by the resolution passed by the Managing Committee on 27.4.1969.
His case is that the termination in the circumstances in which it has been made by the Managing Committee amounts to punishment of removal or dismissal from service and the punishment having been imposed upon him without following the procedure prescribed under sec.
16 G of the Intermediate Education Act and the regulations framed thereunder becomes vitiated.
Indeed it has not been denied or controverted in the counter affidavit that the action against the petitioner was taken by 761 the Managing Committee on serious charges of mismanagement brought against the Principal by the Manager.
But it has submitted by the learned counsel for the opposite parties that a reasonable opportunity was afforded to the petitioner by the Managing Committee when he was faced with the charges and asked to explain on 27.4.69, at the meeting of the Managing Committee.
But the learned counsel for opposite parties when faced with the relevant regulations and Sec.
16 G of the Intermediate Education Act found it difficult to justify that what was done at the meeting of the Managing Committee on 27.4.1969 complies with those provisions.
The attack made by the petitioner based on non compliance of the relevant regulations and the provisions of Sec.
16 G of the Act on the validity of the action taken, appear to be sound and sustainable.
No matter the petitioner was not a permanent Principal yet he was entitled to a regular show cause notice against the charges brought and an opportunity to be heard as required by the regulations.
The impugned order of termination thus was a mere camouflage and cannot be regarded in the.
circumstances as having been passed by the Managing Committee in the normal course.
The District Inspector of Schools was in error in approving the termination in those circumstances.
" But the Division Bench of the High Court took a contrary view.
The first error in the judgment of the Division Bench lies in its observation: 'Firstly the order of termination is innocuous.
It does not refer to any allegations or even to the report of the Manager. ' It is seen from the letter dated June 30, 1969 by which the services of the appellant were terminated that the resolution of the Managing Committee dated April 27, 1969 is made a part of it by treating it as an enclosure to that letter.
The resolution actually begins with a reference to the report of the Manager, and slates that the facts contained in the report were 'serious ' and 'not in the interests of the institution '.
It further refers to the fact that the appellant was asked to give his explanation to the allegations made in the said report.
That report stated: 762 "It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take that botheration.
" The above report was the real foundation on which the decision of the Managing Committee was based.
This is a case where the order of termination issued is merely a camouflage for an order imposing the penalty of termination of service on the ground of misconduct.
Secondly, the Division Bench has tried to justify the action of the Management by observing that since the management had to secure the approval of the District Inspector to its action, it was necessary for it to give its assessment of the work of the appellant as Principal and, therefore.
in the.
context of the statutory requirements, it cannot be said that merely because the Manager 's report or the resolution of the Managing Committee refers to the various aspects of the assessment of the performance of the Principal in terms unfavourable to him, it would in law, amount to casting a stigma upon the Principal '.
It is difficult to engraft an exception of the above type to the well settled rule that if the order of termination carries a stigma, it has to fall to the ground unless it is proceeded by an enquiry as contemplated by law.
A reading of the letter of termination of the service and the resolution which forms part of that letter clearly shows that they bear a mark of disgrace or infamy and that the appellant is visited with evil consequences as explained in Parshotam Lal Dhingra 's case (supra).
The Division Bench, therefore, erred in holding that on the facts and in the circumstances of the case, the order of termination was an innocuous one and did not carry any stigma.
The order of the Division Bench is, our opinion, an unsustainable one and is liable to the set aside.
In the result, we allow this appeal, set aside the judgment of the Division Bench of the High Court and restore the judgment of the learned Single Judge.
We hereby declare that the appellant continues to be in the service of the College.
He is entitled to all the benefits flowing from this declaration including the salary and allowances as if there was no break in his service.
The respondent College shall also pay the costs of this appeal to the appellant.
S.R. Appeal allowed.

summary/full:
The appellant was appointed on probation as the Principal of the Model Inter College, Thora on August, 28, 1967.
His period of probation was extended by one year and thereafter by a letter dated June 30, 1969 addressed to him with a copy of a resolution dated 27th April, 1969 passed by the Managing Committee wherein various allegations were made regarding his conduct, his services were terminated by the respondent.
Aggrieved by the said orders of termination of his services, the appellant filed a writ petition No. 4823 of 1970 on the file of the High Court of Allahabad.
The said writ petition was allowed on January 23, 1973 and the order of termination was quashed.
However, the special Appeal No. 31 of 1973 filed by Respondent was accepted and allowed by the Division Bench.
Hence the appeal by special leave of the Court.
Allowing the appeal, the Court, ^ HELD: 1.
Section 16 of the Uttar Pradesh Intermediate Education Act, (Act II of 1921) provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the procedure for the imposition of punishment Regulations 35 to 38 relate to the procedure to be followed before imposing the punishment of dismissal or removal from service and they being virtually the same as provided by Article 311(2) of the Constitution, the principles which should govern this instant case should therefore be the same as those underlying Article 311(2).
Admittedly here no enquiry was held as provided for in Regulation 35 and 36.
Therefore the non compliance with the 753 provisions of Section 16 of the Act and Regulations 35 to 38 vitiates the termination order.
[747F G; 759G; 760E] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828; Shamsher Singh and Anr vs State of Punjab. ; ; Anoop Jaiswal vs Government of India and Anr. ; ; referred to.
If the order of termination carried a stigma it has to fall to the ground unless it is preceded by an enquiry as contemplated by law.
A reading of the letter of termination of the service and the resolution which forms part of that letter clearly shows that they bear a mark of disgrace and infamy and the appellant is visited with evil consequences.
The order of the Division Bench is therefore unsustainable.
[762D E].
[The Court declared that the appellant continues to be in the service of the College with entitlement to all consequential benefits including the salary and allowances as if there was no break in his service.] [762G]


judgement:
Civil Appeal No 485 of 1971.
From the Judgment and order dated the 29th January, 1970 of the Delhi High Court in Letters Patent Appeal No. 8/70.
D.D. Thakur, E.C. Agarwala and V.K. Panditta for the Appellant.
Chaman Lal Itrora for the Respondent.
The Judgment of the Court was delivered by MISRA J.
The present appeal by certificate is directed against the judgment of the High Court of Delhi dated 29th January, 1970 in letters patent appeal confirming the judgment and order of the learned Single judge of the High Court dated 7th January, 1970, 765 Nanak Chand, father of the appellant was a displaced person from West Pakistan where he held left agricultural lands in village Chhota Bhukh Autar, tehsil Bahawal Nagar, district Bahawalpur.
After the partition of the country his claim bearing Index No. B/BP 3/259 was verified in his name for 26 standard acres 12.5 units.
Nanak Chand disappeared sometime in December, 1954 and a report about his disappearance was lodged by the appellant 's brother Dewan Chand, arrayed in this appeal as respondent No. 2, on 25th December, 1954 with the local police, Malhout, district Ferozepur, Punjab.
An enquiry was made by the police in the matter and ultimately the police gave out that Nanak Chand could not be traced.
In the year 1956 a notice was issued in suo moto revision in regard to the verified claim referred to above, by the Additional Settlement Commissioner, Delhi to Nanak Chand, claimant.
As Nanak Chand could not and did not appear in compliance with the notice, the eldest brother of the appellant, namely, Dewan Chand, appeared before the Additional Settlement Commissioner, Delhi on October 25, 1956 and alleged that Nanak Chand had died leaving behind three sons namely, Dewan Chand, Prabhu Dayal and Ashok Kumar (minor) as the only legal heirs of the deceased.
The learned Additional Settlement Commissioner by his order dated 27th October, 1956 allowed the application for substitution and directed Dewan Chand, Prabhu Dayal and Ashok Kumar alone to be brought on the record as legal representatives of the deceased Nanak Chand, although Nanak Chand had left behind the aforesaid three sons, three daughters, namely, Satnam Devi, Lajwanti and Smt.
Raj Rani, and his widow Smt.
Chandan Bai.
Prabhu Dayal, one of the three sons of Nanak Chand died in 1961 leaving behind his daughter Santosh Kumari.
His widow Smt.
Lajwanti applied for being substituted as an their of the deceased alongwith her minor daughter Santosh Kumari.
In 1964 the mother of the appellant also applied to the Settlement officer that she and her three daughters may also be Constituted as heirs and legal representatives of Nanak Chand deceased regarding payment of compensation in respect of the verified claim.
They also prayed for condonation of delay in filing the application for substitution and for initiating proceedings under section 9 of the .
The Settlement 766 Officer concerned recommended for condonation of delay in his report dated 24th March, 1964 to the Regional Settlement Commissioner, Rajasthan with the delegated powers of Chief Settlement Commissioner, Rajasthan, who by his order dated 6th April, 1964 condoned the delay and directed that the case may be processed and finalised according to rules.
When the relevant.
record was received by the M.O./S.O. Rajasthan, the appellants mother alleged that the previous order of substitution of heirs of Nanak Chand, deceased, had been obtained by fraud and mis representation practised by her sons inasmuch as they did not disclose in their application for substitution the existence of the appellant, her mother and sisters.
The M.O cum S.O. by his order dated November 16, 1964, dismissed the application of the mother of the appellant on the ground that the previous order dated 27th October, 1956 passed by the Additional Settlement Commissioner declaring only three sons of Nanak Chand deceased as his heirs, to the exclusion of deceased 's widow and daughter was never challenged by way of an appeal or revision, so the said order had assumed finality.
He, therefore, declined to interfere and refused to grant redress.
The mother of the appellant on her own behalf and on behalf of her three daughters, including the appellant, filed an appeal in the Court of the Regional Settlement Commissioner which came up before Shri S.S. Govilla, S.O. with delegated powers of Regional Settlement Commissioner (Rajasthan) and he by his order dated 22nd December, 1964 dismissed the same.
The mother of the appellant undaunted by the failures, filed a revision petition before the Chief Settlement Commissioner, which came up for hearing before Shri D.N. Vohra, Settlement Commissioner with delegated powers of Chief Settlement Commissioner, and he also took the view that the order dated 18th December, 1954 passed by the Additional Settlement Commissioner had become final and he had no jurisdiction to revise or amend the said order, and accordingly he dismissed the revision.
Thereafter the mother moved the Central Government under section 33 of the on her own behalf as well as on behalf of the appellant but the application was dismissed by the Central Government, Ministry of Rehabilitation.
On 30th August, 1965 the appellant also filed a revision against the order of the Additional Settlement Commissioner before the Chief Settlement Commissioner under section 5 of the Displaced Persons (Supplementary) 767 Verification of Claims Act, 1954, but this also met with the same fate on 25th September, 1965 without affording an opportunity of being heared to the appellant.
The appellant eventually filed a writ petition before the High Court of Delhi giving rise to the present appeal against the orders dated 25th September, 1965, passed by the Chief Settlement Commissioner, Delhi whereby he confirmed the order dated 27th October, 1956 passed by the Additional Settlement Commissioner, refusing to substitute the appoint as legal heir of Nanak Chand, deceased.
The writ petition was dismissed by an order dated 7th January, 1970.
The appellant unsuccessfully filed a letters patent appeal which was dismissed on 29th January, 1970 Feeling aggrieved the appellant applied for a certificate under article 133 of the Constitution, which was granted.
This is how the appellant has come to this Court.
It is contended for the appellant that on 27th October, 1956 she was a minor when the order was obtained by fraud and misrepresentation by Dewan Chand, without disclosing the names of other heirs viz the appellant and her brother and two sisters.
The appellant filed revision petition under section 5 of Claims (Supplementary) Act (12 of 1954) on 27th of November, 1964 before the learned Chief Settlement Commissioner, who without hearing the appellant and without affording her any opportunity to substantiate her pleas, dismissed the revision petition on 25th September, 1965.
This was in Violation of the principles of natural justice.
The High Court chose to rely on the deposition of Dewan Chand, respondent No. 2, to the effect that his father had been murdered and he produced a certificate of death before the Chief Settlement Commissioner certifying that Nanak Chand died one year ten months prior to 25th October, 1956 and this certificate is alleged to have been given on the application filed by Dewan Chand before the President of the Municipal Committee, Abohar.
The learned Single Judge of the High Court observed that the Additional Settlement Commissioner acted rightly in relying upon the certificate and substituting the sons of Nanak Chand as heirs of the deceased to his verified claim, on the ground that as Nanak Chand had died prior to the enforcement of the Hindu Succession Act his daughters would not be heirs and could not succeed to the property of their father.
768 Shri Thakur, learned counsel for the appellant strenuously contended that if he had been given an opportunity by the Chief Settlement Commissioner he would have been able to produce the evidence before him that on the own admission of Dewan Chand, Nanak Chand had disappeared sometime in December, 1954 and a report about his disappearance was lodged by Dewan Chand on 25th December, 1954 with the local police, Malhout, district Ferozepur and as a result of an enquiry the police gave out that Nanak Chand could not be traced.
This evidence could not be produced before the Chief Settlement Commissioner because the appellant was not heard.
The decision of this case hinges on the question whether Nanak Chand had died before or after the enforcement of the Hindu Succession Act.
If he died before the enforcement of the Hindu Succession Act obviously the daughters could not get any share in the property left by Nanak Chand.
If on the other hand he died after the enforcement of the Hindu Succession Act, the daughters would be equally entitled to a share in the property left by Nanak Chand.
In any case the widow of Nanak Chand would be entitled to a share in the property irrespective of the fact whether Nanak Chand died before or after the Hindu Succession Act.
This aspect of the case has been completely lost sight of by the High Court.
If Nanak Chand disappeared in December, 1954 on the report of Dewan Chand himself and has not been heard of for seven years by those who would naturally have heard of him if he has been alive, there could be raised presumption of death when the question arises.
But in the instant case to presumption arises as the question arose just two years after the date of disappearance.
As regards the actual date of death the High Court dealing with the death certificate observed as follows: "As an administrative office doing quasi Judicial work, the Additional Settlement Commissioner was entitled to give credence to the death.
certificate.
He was bound only to make a preliminary enquiry as to who were the heirs of Nanak Chand.
He did not hove to decide that question finally.
For a preliminary enquiry the death certificate signed by the respectable persons of the place where the family resided was sufficient.
Therefore, the Additional Settlement Commissioner was satisfied that the substitution 769 of the sons of Nanak Chand in place of the deceased would not prejudicially affect his daughter.
It was not, therefore, necessary for him to have given an opportunity to the daughter of being heard under sub section (2) of section 5 of the .
" A certificate given by respectable persons of the place where the deceased once resided, to say the least, is not admissible in evidence.
35 of the evidence Act provides that ail entry in any public or other official book, register, or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
In the instant case a certificate by certain respectable person of the place where the family once resided does not satisfy the requirements of section 35 of the evidence Act.
There is no proof that any statutory duty was cast upon the person issuing the certificate to keep a record of birth and death and therefore, the certificate of death has no evidentiary value.
It is very easy for a person to obtain death certificate from the so called respectable persons in order to grab the property.
If according to Dewan Chand, Nanak Chand had died he must also indicate where did he die and it is tho place of his death which will be relevant and not the place of his birth or residence.
The certificate obviously is not of the place where Nanak Chand died.
We are of the view the authorities have gravely erred in relying upon the certificate of death which was inadmissible evidence.
The High Court repelled the contention raised on behalf of the appellant that opportunity should have been given to the appellant under section 5(2) of the displaced Persons (Claim) Supplementary Act, 1954 merely on the assumption that Nanak Chand had died much before the enforcement of the Hindu Succession Act and, therefore, no prejudice has been caused to the daughters as they would not be an heir.
It is simply begging the question.
Whether daughters would be entitled to an interest in the property left by Nanak Chand will depend upon the death of Nanak Chand before or after the enforcement of Hindu Succession Act.
It was an important question, therefore, to decide whether Nanak Chand died before the enforce 770 ment of Hindu Succession Act or not.
For that it was absolutely essential that an opportunity should have been afforded to the appellant in accordance with the principle of natural justice.
As observed earlier, if an opportunity had been given to the appellant she would have produced the admission of Dewan Chand that his father Nanak Chand disappeared sometime in December, 1954 and as a result of an enquiry by the police, no trace of him could be found out.
The finding that Nanak Chand died before the enforcement of the Hindu Succession Act, based on the death certificate, cannot be sustained for a moment as it is based on an inadmissible piece of evidence.
If that finding is set aside, there is no escape from the conclusion that Nanak Chand died not before but after the enforcement of the Hindu Succession Act, that is, after 25th October, 1956.
There is no dispute that Nanak Chand died leaving behind his widow, three sons and three daughters.
Dewan Chand fraudulently obtained on order alleging that Nanak Chand died leaving behind only three soils If Nanak Chand died after the enforcement of the Hindu Succession Act, as round earlier, obviously his widow, three sons and three daughters would succeed to his interest in equal shares, which would work out to 1/7th.
Now the question arises what was the interest of Nanak Chand at the time of his death.
As the property in question was Mitakshara coparcenery property, his interest would be determined in accordance with the provisions of Explanation I of section 6 of the Hindu Succession Act.
It would be appropriate at this stage to read section 6 insofar as it is material for the purpose of this case: "6.
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property, shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary 771 or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I. For the purposes of this section, the interest of a Hindu Mitakshara coparcenery shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not." The interest of Nanak Chand shall be deemed to by the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not.
In view of Explanation I of section 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons.
If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7, that is, 1/35th each.
The claim of these heirs cannot be denied merely because some of them have not advanced the claim.
When the question of determination of share among the heirs crops up before the Court, the Court has to see that every heir gets his due.
Shri Itrora appearing for the respondents could not successfully meet the point raised on behalf of the appellant.
For the foregoing discussion the appeal must succeed and it is accordingly allowed and the judgment of the High Court as well as of the authorities below are set aside and shares of the three sons, three daughters and the widow are determined as follows: Each of the three sons 1/35; each of the three daughters 1/35, the widow 1/35+1/5.
As the widow has inherited the interest of her husband after his death her share would be augmented by 1/5.
Therefore, her share would come to 1/35+1/5=8/35.
In the circumstances of the case we direct the parties to bear their own costs.
H.S.K. Appeal allowed.

summary/full:
Nanak Chand, father of the appellant, a displaced person from West Pakistan and having a verified claim in his name for some land, disappeared some time in December 1954.
A report about his disappearance was lodged by the appellants brother, Dewan Chand, Respondent No. 2, with the local police in Punjab.
The police made an enquiry in the matter and ultimately gave out that Nanak Chand could not be traced.
In response to a notice issued in the year 1956 in suo moto revision in regard to the verified claim, in the absence of Nanak Chand, Dewan Chand appeared and alleged bat Nanak Chand had died leaving behind three sons including him as the only legal heirs.
Dewan Chand produced a certificate to the effect that Nanak Chand had died one year and 10 months prior to 25th October, 1956.
The certificate Was issued on his request by some respectable persons of the place where the family once resided.
The Additional Settlement Commissioner, Delhi, by his order dated 27th October, 1956 allowed the application for substitution and directed the three sons to be brought on record as legal representatives of the deceased Nanak Chand although Nanak Chand had left behind three sons, three daughters including the appellant and his widow.
The appellant, in an attempt to have her name substituted, filed a revision application against the order of the Additional Settlement Commissioner before the Chief Settlement Commissioner under s 5 of the .
By his order dated 25th September 1965, the Chief Settlement Commissioner confirmed the order of the Additional Settlement Commissioner dated 27th October, 1956 and dismissed the revision application of the appellant without affording an opportunity of being heard to the appellant.
The High Court dismissed the appellant 's writ petition and Letters Patent Appeal against the order of the Chief Settlement Commissioner.
The High Court observed that the Additional Settlement Commissioner acted rightly in relying upon the death certificate produced by Dewan Chand and substituting the sons of Nanak Chand as heirs of the deceased of his certified claim.
Hence this appeal, Allowing the appeal, 764 ^ HELD: A certificate given by respectable persons of the place where the deceased once resided, to say the least, is not admissible in evidence, Sec.
35 of the evidence Act provides that an entry in any public or other official book, register, or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty, specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
[769B C] In the instant case a certificate by certain respectable person of the place where the family once resided does not satisfy the requirements of section 35 of the evidence Act.
There is no proof that any statutory duty was cast upon the person issuing the certificate to keep a record of birth and death and therefore, the certificate of death has no evidentiary value.
It is very easy for a person to obtain a death certificate from the so called respectable persons in order to grab the property.
If according to Dewan Chand, Nanak Chand had died he must also indicate where did he die and it is the place of his death which will be relevant and not the place of his birth or residence.
The certificate obviously is not of the place where Nanak Chand died.
The authorities have gravely erred in relying upon the certificate of death which was inadmissible in evidence.
[769D E] To see whether daughters would be entitled to interest in the property left by Nanak Chand will depend upon the death of Nanak Chand before or after the enforcement of Hindu Succession Act and to decide as to when Nanak Chand died it was absolutely essential that an opportunity should have been offered to the appellant in accordance with the principles of natural justice.
[769H; 770A]