judgement:
rl.) Petition No. 96 of 1989.
(Under Article 32 of the Constitution of India).
Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the Petitioner.
V.C. Mahajan Mrs. Indra Sawhney, Ms. A. Subhashini, Aruneshwar Gupta, Surya Kant and I. Makwana for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Liberty is the life line of every human being.
Life without liberty is `lasting ' but not `living '.
Liberty is, therefore, considered one of the most precious and cherished possessions of a human being.
Any attempt to take liberties with the liberty of a human being is visited with resistance.
Since no human being can tolerate fetters on his personal liberty it is not surprising that the petitioner Ashok Kumar alias Golu continues to struggle for his liberty, premature release, not fully content with the enunciation of the law in this behalf 864 by this Court in Maru Ram vs Union of India, {1981] 1 SCR 1196.
The questions of law which are raised in this petition brought under Article 32 of the Constitution arise upon facts of which we give an abridged statement.
On the basis of a FIR lodged on October 21, 1977, the petitioner was arrested on the next day and he along with others was chargesheeted for the murder of one Prem Nagpal.
The petitioner was tried and convicted for murder on December 20, 1978 in Sessions Case No. 32 of 1978 by the learned Sessions Judge, Ganganagar, and was ordered to suffer imprisonment for life.
His appeal, Criminal Appeal No. 40 of 1979, was dismissed by the High Court of Rajasthan.
Since then he is serving time.
It appears that he filed a Habeas Corpus Writ Petition No. 2963 of 1987 in the High Court of Rajasthan at Jodhpur for premature release on the plea that he was entitled to be considered for such release under the relevant rules of Rajasthan Prisons (Shortening of Sentences) Rules, 1958, (hereinafter alluded to as `the 1958 Rules ') notwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973 (hereinafter called `the Code ') with effect from December 18, 1978, just two days before his conviction.
His grievance was that he was being denied the benefit of early release under the 1958 Rules under the garb of the newly added Section 433A, on the ground that it places a statutory embargo against the release of such a convict `unless he has served atleast 14 years of imprisonment '.
He contended that the said provision could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice could be based on a variety of considerations including the provisions of the 1958 Rules.
The writ petition was, however, dismissed by the High Court on October 31, 1988, on the ground that it was premature inasmuch as the petitioner 's two representations, one to the Governor and another to the State Home Minister, were pending consideration.
The High Court directed that they should be disposed of within one month.
In this view of the matter the High Court did not deem it necessary to consider the various questions of law raised in the petition on merits.
After the rejection of his writ petition by the High Court, the petitioner through his counsel addressed a letter dated November 28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision thereon within a month as observed by the High Court.
Failing to secure his early release notwithstanding the above efforts, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution. 865 The petitioner 's case in a nutshell is that under the provisions of the 1958 Rules, a `lifer ' who has served an actual sentence of about 9 years and 3 months is entitled to be considered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour.
However, the petitioner contends, his case for premature release is not considered by the concerned authorities in view of the newly added section 433A of the Code on the interpretation that by virtue of the said provision the case of a `lifer ' cannot be considered for early release unless he has completed 14 years of actual incarceration, the provisions of sections 432 and 433 of the Code as well as the 1958 Rules notwithstanding.
According to him, even if the provisions of sections 432 and 433 of the Code do not come into play unless a convict sentenced to life imprisonment has completed actual incarceration for 14 years as required by section 433A, the authorities have failed to realise that section 433A cannot override the constitutional power conferred by Articles 72 and 161 of the Constitutional on the President and the Governor, respectively, and the State Government i.e., the Council of Ministers, could advise the Governor to exercise power under Article 161 treating the 1958 Rules as guidelines.
Since the petitioner had already moved the Governor under Article 161 of the Constitution it was incumbent on the State Government to consider his request for early release, notwithstanding section 433A, and failure to do so entitled the petitioner to immediate release as his continued detention was, wholly illegal and invalid.
In support of this contention the petitioner has placed reliance on the ratio of Maru Ram 's decision.
The petitioner brands section 433A of the Code to be a `legislative fraud ' inasmuch as the said provision was got approved by the Parliament on the assurance that the said provision is complementary to the various amendments proposed in the Indian Penal Code.
In the alternative it is contended that in any case this Court should by a process of interpretation limit the scope of section 433A of the Code to those cases only to which it would have been limited had the legislation proposing amendments in the Indian Penal Code gone through.
In any case after the decision of this Court in Maru Ram 's case, the efficacy of section 433A is considerably reduced and the petitioner is entitled to early release by virtue of the power contained in ARticle 161 read with the 1958 Rules even if guidelines are not formulated notwithstanding the subsequent decision of this Court in Kehar Singh vs Union of India, ; Counsel submitted that after the decision of this Court in Bhagirath vs Delhi Administration, ; whereunder this Court extended the benefit of section 428 of the Code even 866 to life convicts, the ratio in Gopal Godse vs State of Maharashtra, ; had undergone a change.
On this broad approach, counsel for the petitioner, formulated questions of law which may be stated as under: 1.
Whether the insertion of section 433A in the Code was a legislative fraud inasmuch as the connected legislation, namely, the Indian Penal Code (Amendment) Bill XLII of 1972 did not become law although passed by the Rajya Sabha as the IPC (Amendment) Act, 1978, on November 23, 1978? 2.
Whether on the ration of Maru Ram 's decision, in the absence of any guidelines formulated by the State under Article 72 of 161 of the Constitution, section 433A of the Code would not apply to life convicts and the 1958 Rules will prevail for the purpose of exercise of power under Article 72 of 161 of the Constitution? Inter connected with this question, the following .l questions were raised: a) Whether Maru Ram 's decision is in conflict with Kehar Singh 's Judgment on the question of necessity or otherwise of guidelines for the exercise of power under Article 7 and 161 of the constitution? b) Whether the use of two expressions "remission" and "remit" in Articles 72 and 161 convey two different meanings and if yes, whether the content f power in the two expressions is different? c) Whether the persons sentenced to death by Court, whose death sentence has been commuted to life imprisonment by executive clemency, form a distinct and separate class for the purpose of application of section 433A of the Code as well as for the purpose of necessity (or not) of guidelines for premature release in exercise of power under Articles 72 and 161, from the persons who at the initial stage itself were sentenced to life imprisonment by court verdict? And whether in the latter case guidelines are mandatory under Article 72 and 161 and a well designed scheme of remission must be formulated if the constitutional guarantee under Articles 14 and 21 is to be preserved? d) Whether the whole law of remission needs to be reviewed after Bhagirath 's case wherein this Court held that imprisonment 867 for life is also an imprisonment for a term and that a life convict is entitled to set off under section 428 Cr.
P.C.? e) Whether it is permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment notwithstanding section 433A of the Code? If yes, whether the grant of such conditional release will be treated as the prisoner actually serving time for the purpose of section 433A of the Code? First the legislative history.
The Law Commission had in its 42nd Report submitted in June, 1971 suggested numerous changes in the Indian Penal Code (IPC).
Pursuant thereto an Amendment Bill No. XLII of 1972 was introduced in the Rajya Sabha on December 11, 1972 proposed wide ranging changes in the IPC.
One change proposed was to bifurcate section 302, IPC into two parts, the first part providing that except in cases specified in the second part, the punishment for murder will be imprisonment for life whereas for the more heinous crimes enumerated in clauses (a) to (c), of sub section (2) the punishment may be death or imprisonment for life.
A motion for reference of the Bill to the Joint Committee of both the Houses was moved in the Rajya Sabha on December 14, 1972 by the then Minister of State in the Ministry of Home Affairs and was adopted on the same day.
The Lok Sabha concurred in the motion of the Rajya Sabha on December 21, 1972.
The Joint Parliamentary Committee presented its report to the Rajya Sabha on January 29, 1976 recommending changes in several clauses of the Bill.
While retaining the amendment proposed in section 302, IPC, it recommended inclusion of one more clause (d) after clause (c) in sub section (2) thereof and at the same time recommended deletion of section 303, IPC.
It also recommended substitution of the existing section 57, IPC, by a totally new section, the proviso whereto has relevance.
The proposed proviso was as under: "Provided that where a sentence of imprisonment for life is imposed on conviction of a person for a capital offence, or where a sentence of death imposed on a person has been commuted into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
" The reason which impelled the Committee to introduce the above proviso was "That sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end 868 of 5 to 6 years.
" The Committee, therefore, felt that such a convict should not be released unless he has served atleast 14 years of imprisonment.
It is evident from the scheme of the aforesaid recommendations that the proviso was intended to apply to only those convicts who were convicted for a capital offence (this expression was defined by clause 15 of the Bill recommending substitution of section 40, IPC, as `an offence for which death is one of the punishments provided by law ') or whose sentence of death was commuted into one of imprisonment for life and not to those who were governed by the first part of the proposed section 302, IPC.
It was pointed out by counsel that similar benefit would have accrued to offenders convicted for offences covered under section 305, 307 or 396 if the proposed sections 305, 307(b) and 396(b) had come into being.
That, contends the petitioner 's counsel, would have considerably narrowed down the scope of the proposed proviso to section 57, IPC, and consequently the rigour of the said provision would have fallen on a tiny minority of offenders guilty of a capital offence.
Pursuant to the recommendations made by the Committee, two bills, namely, the IPC (Amendment) Bill, 1978, came to be introduced, the former was passed with changes by the Rajya Sabha on November 23, 1978 while the latter was introduced in the Lok Sabha on November 8, 1978, and in the Rajya Sabha on December 5, 1978.
The proposal to add a proviso to the proposed section 57, IPC did not find favour as it was thought that the said subject matter appropriately related to Chapter XXXII of the Code and accordingly the said provision was introduced as section 433A in the Code.
While the amendments to the Code became law with effect from December 18, 1978, the IPC amendments, though passed by the Rajya Sabha could not be got through the Lok Sabha and lapsed.
It may here be mentioned that the IPC Bill as approved by the Rajya Sabha contained the proposal to divide section 302 into two parts, in fact an additional clause was sought to be introduced in the second part thereof and sections 305, 307 and 396 were also sought to be amended as proposed by the Committee.
This in brief is the legislative history.
In the backdrop of the said legislative history, counsel for the petitioner argued that a legislative fraud was practised by enacting section 433A of the Code and failing to carry out the corresponding changes in sections 302, 305, 307, 396, etc., assured by the passing of the Indian Penal Code (Amendment) Act, 1978, by the Rajya Sabha on November 23, 1978.
According to him it is evident from the scheme of the twin Amendment Bills that the legislative intent was to apply the rigour of section 433A of the Code to a small number of heinous 869 crimes which fell within the meaning of the expression capital offence.
It was to achieve this objective that section 302, IPC was proposed to be bifurcated so that a large number of murders would fall within the first part of the proposed provision which prescribed the punishment of life imprisonment only and thus fell beyond the mischief of section 433A of the Code.
To buttress his submission our attention was invited to Annexure II to the petition which is a copy of the letter dated July 10, 1979, written by the Joint Secretary in the Ministry of Home Affairs to Home Secretaries of all the concerned State Governments explaining the purport of the newly added section 433A. After explaining that section 57, IPC, had a limited scope, namely, calculating fractions of terms of imprisonment only, he proceeds to state in paragraph 3 of the letter as under: "The restrictions imposed by section 433A applies only to those life convicts who are convicted for offences for which death is one of the punishments prescribed by law.
In the Indian Penal Code (Amendment) Bill, 1978 as passed by the Rajya Sabha and now pending in the Lok Sabha, section 302 is proposed to be amended so as to provide that the normal punishment for murder shall be imprisonment for life and that only in certain cases of aggravating circumstances will the court have discretion to award death sentences.
" Then in paragraph 4 he proceeds to clarify as under: "Even regarding these convicts the restriction imposed by section 433A is not absolute for, the Constitutional power of the Governor under Article 161 to commute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is considered suitable.
" Then in paragraph 4 he proceeds to clarify as under: "Even regarding these convicts the restriction imposed by section 433A is not absolute for, the Constitutional power of the Governor under Article 161 to commute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is considered suitable.
" In paragraph 6 of the detailed note appended to the said letter, the legal position was explained thus: "It may be pointed out that the restriction introduced by section 433A does not apply to all life convicts.
It applies only to those prisoners who are convicted of a capital offence i.e. an offence for which death is one of the punishments prescribed by law.
Once the Indian Penal Code (Amendment) Bill becomes the law, offenders sentenced 870 under proposed section 302(i) will not be covered by this provision as the offence will not be a capital offence.
Thus in future the restriction introduced by section 433A will not be applicable to them and will, in effect, cover only a very small number of cases.
Even in this small number of cases the restriction will not in any way curb the Constitutional power to grant remission and commutation vested in the President or the Governor by virtue of Articles 72 and 161.
" There can be no doubt that by this letter it was clarified that section 433A of the Code will apply to only those convicted of a capital offence and not to all life convicts.
It is equally clear that the said provision was expected to apply to exceptionally heinous offences falling within the definition of `capital offence ' once the Indian Penal Code (Amendment) Bill became law.
Section 433A was, therefore, expected to deny premature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence, i.e., an exceptionally heinous crime specified in the second part of the proposed section 302, IPC.
Lastly it clarifies that section 433A cannot and does not in any way affect the constitutional power conferred on the President/Governor under ARticle 72/161 of the Constitution.
It cannot, therefore, be denied that this letter and the accompanying note does give an impression that certain provisions of the Indian Penal Code (Amendment) Boll were interlinked with section 433A of the Code.
Assuming the Criminal Procedure Code (Amendment) Bill and the Indian Penal Code (Amendment) Bill were intended to provide an integrated scheme of legislation, can it be said that the failure on the part of the Lok Sabha to pass the letter renders the enactment of the former by which section 433A was introduced in the Code, `a legislative fraud ' as counsel had liked to call it or to use a more familiar expression `colourable exercise of legislative power '? Counsel submitted that section 433A was got introduced on the statute book by deception, in that, when the former Bill was made law an impression was given that the twin legislation which had already been cleared by the Rajya Sabha on November 23, 1978 would in due course be cleared by the Lok Sabha also so that the application of section 433A would be limited to capital offences only and would have no application to a large number of `lifers '.
It must be conceded that such would have been the impact if the Indian Penal Code (Amendment) Bill was passed by the Lok Sabha in the form in which the Rajya and approved it.
871 This is not a case of legislative incompetence to enact section 433A.
No such submission was made.
Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Ram 's case.
This Court repelled all the thrusts aimed at challenging the constitutional validity of section 433A.
But counsel submitted that the question was not examined from the historical perspective of the twin legislations.
Counsel for the State submitted that it was not permissible for us to reopen the challenge closed by the Constitution Bench on the specious plea that a particular argument or plea was not canvassed or made before that Bench.
The objection raised by counsel for the State Government is perhaps not without substance but we do not propose to deal with it because even otherwise we see no merit in the submission of the petitioner 's counsel.
It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation.
In K.C. Gajapati Narayan Deo vs State of Orissa, ; the Orissa Agricultural Income tax (Amendment) Act, 1950, was challenged on the ground of colourable legislation or a fraud on the Constitution as its real purpose was to effect a drastic reduction in the amount of compensation payable under the Orissa Estates Abolition Act, 1952.
The facts were that a Bill relating to the Orissa Abolition Act, 1952 was published in the Gazette on January 3, 1950.
It provided that any sum payable for agricultural income tax for the previous year should be deducted from the gross asset of an estate for working out the net income on the basis whereof compensation payable to the estate owner could be determined.
Thereafter on January 8, 1950, a Bill to amend the Orissa Agricultural Income tax, 1947, was introduced to enhance the highest rate of tax from 3 annas to 4 annas in a rupee and to reduce the highest slab from Rs. 30,000 to Rs. 20,000.
The next Chief Minister, however, dropped this Bill and introduced a fresh Bill enhancing the highest rate to 12 annas 6 pies in a rupee and reducing the highest slab to rs.
15,000 only.
On the same becoming law it was challenged on the ground that the real purpose of the legislation was to drastically reduce the compensation payable to the estate owners.
Mukherjea, J., who spoke for the Court observed as under: "It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature.
The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law.
If 872 the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant.
On the other hand, if the legislature lacks competency, the question of motive does not arise at all.
Whether a statute is constitutional or not is thus always a question of power.
" Thus the whole doctrine resolves itself into a question of competency of the concerned legislature to enact the impugned legislation.
If the legislature has transgressed the limits of its powers and if such transgression is indirect, covert or disguised, such a legislation is described as colourable in legal parlance.
The idea conveyed by the use of the said expression is that although apparently a legislature in passing the statute purported to act within the limits of its powers, it had in substance and reality transgressed its powers, the transgression being veiled by what appears on close scrutiny to be a mere pretence or disguise.
In other words if in pith and substance the legislation does not belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will not be determinate of the legislative competence.
In Sonapur Tea Co. Ltd. vs Must.
Mazirunnessa; , it was reiterated relying on Gajapati 's case that the doctrine of colourable legislation really postulates that legislation attempts to do indirectly what it cannot do directly.
Such is not the case before us.
It is no body 's contention that Parliament was not competent to amend the Criminal Procedure Code by which section 433A was inserted.
Whether or not the connecting Indian Penal Code (Amendment) Bill ought to have been cleared or not was a matter left to the wisdom of the Lok Sabha.
Merely because the Criminal Procedure Bill was made law and the Indian Penal Code (Amendment) Bill was passed by the Rajya Sabha did not obligate the Lok Sabha to clear it.
The Lok Sabha to clear it.
The Lok Sabha could have its own views on the proposed Indian Penal Code amendments.
It may agree with the executive 's policy reflected in the Bill, with or without modifications, or not at all.
Merely because in the subsequent instructions issued by the letter of July 10, 1979 and the accompanying note (Annex.
II) the Joint Secretary had interlinked the two Bills, the Lok Sabha was under no obligation to adopt the measure as such representation could not operate as estoppel against it.
Even the indirect attempt on the part of the High Court of Himachal Pradesh in the ragging case to force the State Government to legislate, State of Himachal Pradesh vs A Parent of a student of Medical College, Simla, [1985] 3 SCC 169 was disapproved by this Court as a matter falling, outside the functions and duties of the judiciary.
It is, therefore, obvious that no question of mala fides on the part of the legislature was involved in the enactment of one legislation and failure to 873 enact another.
There is no question of `legislative fraud ' or `colourable legislation ' involved in the backdrop of the legislative history of section 433A of the Code as argued on behalf of the petitioner.
Counsel for the Petitioner, However, tried to seek support form the Privy Council decision in W.R. Moram vs Deputy Commissioner of Taxation for N.S.W., Wherein the question to be considered was whether the legislative scheme was a colourable one forbidden by section 5(ii) of the Australian Constitution.
There was no attempt to disguise the scheme as it was fully disclosed.
The Privy Council, while holding that the scheme was not a colourable legislation, observed that `where there is admittedly a scheme of proposed legislation, it seems to be necessary when the `pith and substance ' or `scope and effect ' of any one of the Acts is under consideration, to treat them together and to see how they interact '.
But that was a case where the scheme was carried out through enactments passed by the concerned legislatures.
It is in that context that the above observations must be read and understood.
In the present case also if both the Bills had become law, counsel would perhaps have been justified in demanding that in understanding or construing one legislation or the other, the scheme common to both must be kept in view and be permitted to interact.
But where the linkage does not exist on account of the Indian Penal Code (Amendment) Bill not having become law we are unable to appreciate how section 433A can be read down to apply to only those classes of capital offences to which it would have applied had the said Bill been passed by the Lok Sabha in the terms in which it was approved by the Rajya Sabha.
The language of section 433A is clear and unambiguous and does not call for extrinsic aid for its interpretation.
To accept the counsel 's submission to read down or interpret section 433A of the Code with the aid of the change proposed by the Indian Penal Code (Amendment) Bill would tantamount to treating the provisions of the said Bill as forming part of the Indian Penal Code which is clearly impermissible.
To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code.
We are, therefore, unable to accept even this second limb of the contention.
The law governing suspension, remission and commutation of sentence is both statutory and constitutional.
The stage for the exercise of this power generally speaking is post judicial, i.e., after the judicial process has come to an end.
The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law.
After 874 the judicial function thus ends the executive function of giving effect to the judicial verdict commences.
We first refer to the statutory provisions.
Chapter III of IPC deals with punishments.
The punishments to which the offenders can be liable are enumerated in section 53, namely, (i) death (ii) imprisonment for life (iii) imprisonment of either description, namely, rigorous or simple (iv) forfeiture of property and (v) fine.
Section 54 empowers the appropriate government to commute the punishment of death for any other punishment.
Similarly section 55 empowers the appropriate government to commute the sentence of imprisonment for life for imprisonment of either description for a term not exceeding 14 years.
Chapter XXXII of the Code, to which section 433A was added, entitled `Execution, Suspension, Remission and Commutation of sentences ' contains sections 432 and 433 which have relevance; the former confers power on the appropriate government to suspend the execution of an offender 's sentence or to remit the whole or any part of the punishment to which he has been sentenced while the latter confers power on such Government to commute (a) a sentence of death for any other punishment (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years of for fine (c) a sentence of rigorus imprisonment for simple imprisonment or for fine and (d) a sentence of simple imprisonment for fine.
It is in the context of the aforesaid provisions that we must read section 433A which runs as under: "433A. Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commutted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
" The section begins with a non obstante clause notwithstanding anything contained in section 432 and proceeds to say that where a person is convicted for an offence for which death is one of the punishments and has been visited with the lesser sentence of imprisonment for life or where the punishment of an offender sentenced to death has been commuted under section 433 into one of imprisonment for life, such offender will not be released unless he has served at least 14 years of imprisonment.
The reason which impelled the legislature to insert this provision has been stated earlier.
Therefore, one who could have been 875 visited with the extreme punishment of death but on account of the sentencing court 's generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to death but on account of executive generosity his sentence was commutted under section 433(a) for imprisonment for life have been treated under section 433A as belonging to that class of prisoners who do not deserve to be released unless they have completed 14 years of actual incarceration.
Thus the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in section 433A to freedom before they have completed 14 years of actual imprisonment.
This is the legislative policy which is clearly discernible from the plain language of section 433A of the Code.
Such prisoners constitute a single class and have, therefore, been subjected to the uniform requirement of suffering atleast 14 years of internment.
Counsel for the petitioner next submitted that after this court 's decision in Bhagirath 's case permitting the benefit of set off under section 428 in respect of the detention period as an undertrial, the ratio of the decision in Godse 's case must be taken as impliedly disapproved.
We see no basis for this submission.
In Godse 's case the convict who was sentenced to transportation for life had earned remission for 2963 days during his internment.
He claimed that in view of section 57 read with section 53A, IPC, the total period of his incarceration could not exceed 20 years which he had completed, inclusive of remission, and, therefore, his continued detention was illegal.
Section 57, IPC reads as follows: "57.
Fractions of terms of punishment In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.
" The expression `imprisonment for life ' must be read in the context of section 45, IPC.
Under that provision the word `life ' denotes the life of a human being unless the contrary appears from the context.
We have seen that the punishments are set out in section 53, imprisonment for life being one of them.
Read in the light of section 45 it would ordinarily mean imprisonment for the full or complete span of life.
Does section 57 convey to the contrary? Dealing with this contention based on the language of section 57, this Court observed in Godse 's case at pages 444 45 as under: 876 "Section 57 of the Indian Penal Code has no real bearing on the question raised before us.
For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years.
It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words "imprisonment for life" for "transportation for life" enable the drawing of any such all embracing fiction.
A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person 's natural life.
" This interpretation of section 57 gets strengthened if we refer to sections 65, 116, 120 and 511, of the Indian Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence.
It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years.
If such a provision had not been made it would have been impossible to work out the fraction of an in definite term.
In order to work out the fraction of terms of punishment provided in sections such as those enumerated above, it was imperative to lay down the equivalent term for life imprisonment.
The second contention urged before the Court in Godse 's case was based on the Bombay Rules governing the remission system framed in virtue of the provisions contained in the .
This Court pointed out that the did not confer on any authority a power to commute or remit sentences.
The Remission Rules made thereunder had, therefore, to be confined to the scope and ambit of that statute and could not be extended to other statutes.
Under the Bombay Rules three types of remissions for good conduct were allowed and for working them out transportation for life was equated to 15 years of actual imprisonment.
Dealing with Godse 's plea for premature release on the strength of these rules this Court observed at page 447 as under: "The rules framed under the enable such a person to remission ordinary, special and State and the said remissions will be given credit towards his term of imprisonment.
For the purpose of working out the remis 877 sions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose.
As the sentence of transportation for life or its prison equivalent the life imprisonment is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death.
That is why the rules provide for a procedure to enable an appropriate Government to remit the sentence under section 401 (now section 432) of the Code of Criminal Procedure on a consideration of the relevant factors including the period of remissions earned.
The question of remission is exclusively within province of the appropriate Government; and in this case it is admitted that though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence.
" On this line of reasoning the submission of counsel that if the Court were to take the view that transportation for life or imprisonment for life enures till the last breath of the convict passes out, the entire scheme of remissions framed under the or any like statute and the whole exercise of crediting remissions to the account of the convict would collapse, was spurned.
This Court came to the conclusion that the Remission Rules have a limited scope and in the case of a convict undergoing sentence of transportation for life or imprisonment for life it acquires significance only if the sentence is commuted or remitted, subject to section 433A of the Code or in exercise of constitutional power under Articles 72/161.
In Maru Ram 's case the Constitution Bench reaffirmed the ratio of Godse 's case and held that the nature of a life sentence is incarceration until death; judicial sentence for imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions.
Release would follow only upon an order under section 401 of the Criminal Procedure Code, 1898 by the appropriate Government or on a clemency order in exercise of power under Articles 72/161 of the Constitution.
At page 1220 the Constitution Bench expressed itself thus: "Ordinary where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at that point where the substraction result is zero.
878 Here, we are concerned with life imprisonment and so we come upon another concept bearing on the nature of sentence which has been highlighted in Godse 's case.
Where the sentence is indeterminate or of uncertain duration, the result of substraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration.
" Referring to the facts of Godse 's case and affirming the view that the sentence of imprisonment for life enures upto the last breath of the convict, this Court proceeded to estate as under: "Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused.
The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of the long accumulation of remissions.
" It is, therefore, clear from the aforesaid observations that unless the sentence for life imprisonment is commuted or remitted as stated earlier by the appropriate authority under the provisions of the relevant law, a convict is bound in law to serve the entire life term in prison; the rules framed under the or like statute may enable such a convict to earn remissions but such remissions will not entitle him to release before he has completed 14 years of incarceration in view of section 433A of the Code unless of course power has been exercised under Article 7/161 of the Constitution.
It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under section 432, in which case the remission would be subject to limitation of section 433A of the Code, or constitutional power has been exercised under Article 72/161 of the Constitution.
In Bhagirath 's case the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of section 428 of the Code which, inter alia provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of 879 imprisonment ultimately awarded to him.
Referring to section 57, IPC, the Constitution Bench reiterated the legal position as under: "The provision contained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms in punishment.
We cannot press that provision into service for a wider purpose.
" These observations are consistent with the ratio laid down in Godse and Maru Ram 's cases.
Coming next to the question of set off under section 428 of the Code, this Court held: "The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under section 432 of section 433 of the Code.
In the absence or such order, passed generally or specially, and apart from the provisions, if any of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life.
" We fail to see any departure from the ratio of Godse 's case; on the contrary the afore quoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal/writ petition.
The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in section 433A and, `provided that orders have been passed by the appropriate authority under section 433 of the Code of Criminal Procedure '.
These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order under sections 432/433 of the Code.
The ratio of Bhagirath 's case, therefore, does not run counter to the ratio of this Court in the case of Godse or Maru Ram.
Under the Constitutional Scheme the President is the Chief Executive of the Union of India in whom the executive power of the Union vests.
Similarly, the Governor is the Chief Executive of the 880 concerned State and in him vests the executive power of that State.
Articles 72 and 161 confer the clemency power of pardon, etc., on the President and the State Governors, respectively.
Needless to say that this constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power conferred by sections 54 and 55, IPC.
No doubt, this power has to be exercised by the President/Governor on the advice of his Council of Ministers.
How this power can be exercised consistently with Article 14 of the Constitution was one of the Questions which this Court was invited to decide in Maru Ram 's case.
In order that there may not be allegations of arbitrary exercise of this power this Court observed at pages 1243 44 as under: "The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, ofcourse, a large residuary power to meet special situations or sudden developments.
This will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, color or political loyalty.
" Till such rules are framed this Court thought that extant remission rules framed under the or under any other similar legislation by the State Governments may provide effective guidelines of a recommendatory nature helpful to the Government to release the prisoner by remitting the remaining term.
It was, therefore, suggested that the said rules and remission schemes be continued and benefit thereof be extended to all those who come within their purview.
At the same time the Court was aware that special cases may require different considerations and `the wide power of executive clemency cannot be bound down even by self created rules '.
Summing up its findings in paragraph 10 at page 1249, this Court observed: "We regard it as fair that until fresh rules are made in keeping with the experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remissions and release schemes may usefully be taken as guidelines under ARticles 72/161 and orders for release passed.
We cannot fault the Government, if in some intractably savage delinquents, section 881 433A is itself treated as a guideline for exercise of Articles 72/161.
These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.
" It will be obvious from the above that the observations were purely recommendatory in nature.
In Kehar Singh 's case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in paragraph 16 as under: "It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out.
Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kind of and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time.
And it is of great significance that the function itself enjoys high status in the constitutional scheme.
" These observations do indicate that the Constitution Bench which decided Kehar Singh 's case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myraid kinds and categories of cases which may come up for the exercise of such power.
No doubt in Maru Ram 's case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution.
But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh 's case.
Therefore, the observation made by the Constitution Bench in Kehar Singh 's case does not upturn any ratio laid down in Maru Ram 's case.
Nor has the Bench in Kehar Singh 's case said anything with regard to using the 882 provisions of extent Remission Rules as guidelines for the exercise of the clemency powers.
It is true that Articles 72/161 make use of two expressions `remissions ' with regard to punishment and `remit ' in relation to sentence but we do not think it proper to express any opinion as to the content and amplitude of these two expressions in the abstract in the absence of a fact situation.
We, therefore, express no opinion on this question formulated by the learned counsel for the petitioner.
Lastly the learned counsel for the petitioner raised a hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of section 433A of the Code? It is difficult and indeed not advisable to answer such a hypothetical question without being fully aware of the nature of conditions imposed for release.
We can do no better than quote the following observations made at page 1247 in Maru Ram 's case: ". . the expression `prison ' and `imprisonment ' must receive a wider connotation and include any place notified as such for detention purposes.
`Stone walls and iron bars do not a prison make ': nor are `stone walls and iron bars ' a sine qua non to make a jail.
Open jails are capital instances.
any life under the control of the State whether within high walled or not may be a prison if the law regards it as such.
House detentions, for example, Palaces, where Gandhiji was detained were prisons.
Restraint on freedom under the prison law is the test.
Licencsed where instant re capture is sanctioned by the law and likewise parole, where the parole is not free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment.
This point is necessary to be cleared even for computation of 14 years under section 433A.
Therefore, in each case, the question whether the grant of conditional premature release answers the test laid down by this Court in the afore quoted passage, would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is to be executed.
No general observation can be made and we make none.
883 In paragraph 10 of the memorandum of the Writ petition.
, three reasons have been assigned for invoking this Court 's jurisdiction under Article 32 of the Constitution, viz., (i) the questions involved in this petition will affect the right of a large body of life convicts seeking premature release; (ii) this Court 's judgment in Bhagirath 's case deviated from the ratio laid down in Godse 's case and, therefore, the entire law of remissions needed a review; and (iii) the High Court of Rajasthan had refused to examine the merits of the various important questions of law raised before it.
It is on account of the fact that this petition was in the nature of a representative petition touching the rights of a large number of convicts of the categories referred to in section 433A of the Code, that we have dealt with the various questions of law in extenso.
Otherwise the petition could have been disposed of on the narrow ground that even though in view of sections 433A of the Code, premature release could not be ordered under sections 432/433 of the Code read with the 1958 Rules until the petitioner had completed 14 years of actual imprisonment, his release could be considered in exercise of powers under Articles 72/161 of the Constitution treating the 1958 Rules guidelines, if necessary.
The relief claimed in the petition is two fold, namely, (a) to grant a mandamus to the appropriate Government for the premature release of the petitioner by exercising constitutional power with the aid of 1958 Rules and (b) to declare the petitioner 's continued detention as illegal and void.
The petitioner has not completed 14 years of actual incarceration and as such he cannot invoke sections 432 and 433 of the Code.
His continued detention is consistent with section 433A of the Code and there is nothing on record to show that it is otherwise illegal and void.
The outcome of his clemency application under the constitution is not put in issue in the present proceedings if it has been rejected and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the compliance of its order.
Under the circumstance no mandamus can issue.
The writ petition must, therefore, fail.
It is hereby dismissed.
Rule discharged.
G.N. Petition dismissed.

summary/full:
The petitioner was convicted for murder and sentenced to life imprisonment, which was confirmed by the High Court.
Later he filed a Writ Petition before the High Court for premature release on the plea that he was entitled to be considered for release under the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 notwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973 with effect from 18.12.1978, just two days before his conviction.
It was contended that Section 433A Cr. P.C. which places an embargo of 14 years imprisonment before premature release could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the Constitution.
The High Court, dismissed the Writ Petition on the ground that the petitioner 's representations to the Government and State Home Minister were pending consideration.
However, the High Court directed that the two representations of the petitioner should be disposed of within one month.
Unable to secure his release from the High Court as also from the State Government, the petitioner filed the present Write Petition before this Court, contending that the insertion of Section 433A in the Code of Criminal Procedure was invalid; that in the absence of guidelines under articles 72/161 of Constitution, Section 433A Cr.
P.C. could not apply to life convicts; that the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 would prevail over Section 433A Cr.
P.C., and that the constitutional guarantee under Articles 14 and 21 was violated.
Dismissing the Writ Petition, this Court HELD: 1.1.
It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation.
If in pith and substance the legislation does not belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will not be determinate of the legislative competence.
[871C; 872C] 1.2.
It is not a case of legislative incompetence to enact section 433A.
No such contention was raised.
Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Ram 's case.
This Court Repelled all the thrusts aimed at challenging the constitutional validity of section 433A. [871A] 860 1.3.
It is no body 's contention that Parliament was not competent to amend the Criminal Procedure Code by which section 433A was inserted.
Whether or not the connecting Indian Penal Code (Amendment) Bill ought to have cleared or not was matter left to the wisdom of the Lok Sabha.
Merely because the Criminal Procedure Bill was made law and the Indian Penal Code (Amendment) Bill was passed by the Rajya Sabha did not obligate the Lok Sabha to clear it.
The Lok Sabha could have its own views on the proposed Indian Penal Code amendments.
It may agree with the executive 's policy reflected in the Bill, with or without modifications, or not at all.
Merely because in the subsequent instructions issued by the letter of July 10, 1979 and the accompanying note, the Joint Secretary had interlinked the two Bills, the Lok Sabha was under no obligation to adopt the measure as such representation could not operate as estoppel against it.
It is obvious that no question of mala fides on the part of the legislature was involved in the enactment of one legislation and failure to enact another.
There is no question of `legislative fraud ' or `colourbale legislation ' involved in the backdrop of the legislative history of section 433A of the Code of Criminal Procedure.
[872D H; 873A] 1.4.
In the present case if both the Bills had become law, then in understanding or construing one legislation or the other, the scheme common to both would be kept in view and be permitted to interact.
But where the linkage does not exist on account of the Indian Penal Code (Amendment) Bill not having become law, section 433A cannot be read down to apply to only those classes of capital offences to which it would have applied had the said Bill been passed by the Lok Sabha in the terms in which it was approved by the Rajya Sabha.
The language of section 433A is clear and unambiguous and does not call for extrinsic aid for its interpretation.
To read down or interpret section 433A of the Code with the aid of the changes proposed by the Indian Penal Code (Amendment) Bill would tantamount to treating the said Bills forming part of the Indian Penal Code, which is clearly impermissible.
To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code.
[873D F] Maru Ram vs Union of India, ; , followed.
K.C. Gajapati Narayan Deo vs State of Orissa, ; and Sonapur Tea Co. Ltd. vs Must Mariruznessa, ; , relied on.
861 State of Himachal Pradesh vs A Parent of a student of Medical College, Simla, [1985] 3 SCC 169 and W.R. Moram vs Deputy Commissioner of Taxation for N.S.W., , referred to.
The law governing suspension, remission and commutation of sentence is both statutory and constitutional.
The stage for the exercise of this power generally speaking is post judicial, i.e., after the judicial process has come to an end.
The duty to judge and to award appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law.
After the judicial function thus ends the executive function of giving effect to the judicial verdict commences.
[873G H; 874A] 2.2.
One who could have been visited with the extreme punishment of death but on account of the sentencing court 's generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to death but on account of executive generosity his sentence was commuted under section 433(a) for imprisonment for life have been treated under section 433A as belonging to that class of prisoners who do not deserve to be released unless they have completed 14 Years of actual incarceration.
Thus, the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in section 433A to freedom before they have completed 14 years of actual imprisonment.
This is the legislative policy which is clearly discernible from the plain language of section 433A of the Code.
Such prisoners constitute a single class and have, therefore, been subjected to the uniform requirement of suffering atleast 14 years of internment.
[874G H; 875A C] 3.
The expression `life imprisonment ' must be read in the context of section 45 IPC.
Read so, it would ordinarily mean imprisonment for the full or complete span of life.
Section 65, 116, 120 and 511 of the Indian Penal Code fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence.
It is for the purpose of working out this fraction that it became necessary to provide under section 57 that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years.
If such a provision had not been made it would have been impossible to work out the fraction of an indefinite term.
In order to work out the fraction of terms of punishment provided in the above sections it was imperative to lay down the equivalent term for life imprisonment.
[875G; 876C E] 862 Gopal Goads vs State of Maharashtra, ; ; affirmed.
4.1 Unless the sentence for life imprisonment is commuted or remitted by the appropriate authority under the provisions of the relevant law, a convict is bound in law to serve the entire life term in prison; the rules framed under the Prisons Act or life statute may enable such a convict to earn remissions but such remissions will not entitle him to release before he has completed 14 years of incarceration in view of section 433A of the Code unless of course power has been exercised under Article 72/161 of the Constitution.
Where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under section 432, in which case the remission would be subject to limitation of section 433A of the Code, or constitutional power has been exercised under Articles 72/161 of the Constitution.
[878D E] 4.2.
Articles 72 and 161 confer the clemency power of pardon, etc., on the President and the State Governors, respectively.
This constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power conferred by sections 54 and 55 IPC.
No doubt, this power has to be exercised by the President/Governor on the advice of his Council of Ministers.
[880A B] 4.3.
Though in Maru Ram 's case, this Court recommended the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution of India, it had no binding effect on the Constitution Bench which decided Kehar Singh 's case.
Nor has this Court said anything in Kehar Singh 's case with regard to using the provisions of extent Remission Rules as guidelines for the exercise of clemency powers.
[881H; 882A] Maru Ram vs Union of India, ; ; Kehar Singh vs Union of India, ; ; Bhagirath vs Delhi Administration; , and Gopal Godse vs State of Maharashtra; , , affirmed.
It is true that Articles 72/161 make use of two expressions `remissions ' with regard to punishment and `remit ' in relation to sentence but it is not proper to express any opinion as to the content and amplitude of these two expressions in the abstract, in the absence of a fact situation.
[882B] 863 6.1 The hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of section 433A Cr.
P.C., need not be answered without being fully aware of the conditions imposed for release.
In each case, the question whether the grant of conditional premature release answers the test laid down by this Court in Maru Ram 's case, would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is to be executed.
No general observation can be made.
[882C H] Maru Ram vs Union of India, ; ; referred to.
In the instant case, petitioner has not completed 14 years of actual incarceration and as such he cannot invoke sections 43 and 433 of the Code of Criminal Procedure.
His continued detention is consistent with section 433A of the Code and there is nothing on record to show that it is otherwise illegal and void.
The outcome of his clemency application under the Constitution is not put in issue in the present proceedings if it has been rejected, and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the compliance of its order.
[883E F]


judgement:
ISDICTION: Civil Appeal No. 855 (n) of 1979.
From the Judgment and Order dated 22nd October, 1975 of the Bombay High Court in Special Civil Application No. 985 of 1969.
WITH Civil Appeal No. 2665 of 1991.
M. Chander Sekhar, Additional Solicitor General (NP), A. Subba Rao and C.V. Subba Rao for the Appellants.
R.K. Garg, R.P. Singh, Rakesh Khanna, P.C. Kapur and Raj Kumar Gupta for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
In the field of mines and minerals, the Government of India has two departments, (i) Exploration Wing of the Indian Bureau of Mines (IBM) and (ii) Geological Survey of India (GSI).
The GSI is responsible for geological mapping and exploratory drilling calculated to delineate mineralised zones in the country.
The IBM conducts detailed probing operations in selected blocks of mineralised areas.
The functions of these two departments were found to be overlapping.
The Government of India, therefore, decided to merge the Exploratory Wing of IBM with the GSI to eliminate overlapping works and rationalise the functions of the two departments.
To accomplish this purpose, different cadres of the Exploration Wing of IBM were merged with the GSI from different dates.
There is no dispute that the posts concerned in these cases also came to be merged with the GSI.
The question, however, for consideration is about the date of that merger: whether it was from 1 January, 1966 or from any subsequent date.
The Government of India contends that the merger took place on 4/6 February 1969 while the contesting respondents claim that it was with effect from 1 January 1966.
The dispute as to the date of merger has arisen because of the 896 following circumstances.
That between the period from 1 January 1966 to 4 February 1969, thirty nine persons in the cadre of Lower Division Clerks belonging to GSI were promoted as Upper Division Clerks against the vacancies that arose in the GSI.
They were apparently juniors to their counterparts in the IBM.
Being aggrieved by the said promotions, the Association of the Officers who originally belonged to the IBM preferred Special Civil Application No. 985/69 at Nagpur Bench of the Bombay of the Bombay High Court for setting aside the seniority list and for a direction to consider their cases of promotion with effect from 1 January 1966.
It was contended before the High Court that the merger of the two departments took place with effect from 1 January 1966 and not from 4 February 1969 and therefore, there cannot be two separate channels of promotions from 1 January 1966 one for the employees of the Exploration Wing of IBM and another for the employees of GSI.
The Government of India sought to justify the promotions exclusively given to the Officers of GSI between the period from 1 January 1966 to 4 February 1969 on the ground that the actual merger took place not on 1 January 1966 but on 4 February 1969.
the High Court, however, did not accept the submission of the Government of India.
The High Court summarised its conclusion thus: ``It is also to be noted that after 1.1.1966 the petitions did not get any promotion or were not considered for promotion by the Indian Bureau of Mines because they were treated under the administrative control of Geological Survey of India.
If the contention of the respondents is accepted then it will have to be held that for three years the cases of the petitioners cannot be considered by the Geological Survey of India and they were not considered by the Indian Bureau of Mines because they were not under the administrative control of Indian Bureau of Mines.
This will result into absurdity and, therefore, such a contention cannot be accepted.
We are, therefore, inclined to hold on consideration of the annexures produced along with this petition that the merger in the two wings has taken place on 1.1.1966.
Therefore, the seniority of Upper Division Clerks will have to be considered and made in this light after taking into consideration the fact that the petitioners merged and became the part of Geological Survey of India on 1.1.1966 and, therefore, for the purpose of counting their seniority, their past service rendered with the Indian Bureau of Mines will have to be treated as service rendered with the Geological Survey of India.
This 897 is the correct effect of the letter R 2 relied upon by the respondents.
We, therefore, direct the respondent Nos. 1, 2, & 4 to prepare a fresh seniority list in the light of the observations made above as if the merger has taken place on 1.1.1966 and after determining inter seniority give an appropriate relief to the petitioners. ' ' Civil Appeal No. 855(N) of 1979 has been preferred against the above decision of the Bombay High Court.
A Senior Technological Assitant (Geology) of the erstwhile IBM moved the Karnataka High Court for similar relief contending inter alia that his case ought to have been considered for promotion in the merged cadre with effect from 1 January 1966.
The Karnataka High Court also allowed his claim with a direction to consider him for promotion with effect from 1 January 196 in the merged cadre.
That decision was not implemented by the GSI, perhaps on the ground that the dispute as to the date of merger is already pending consideration before this Court.
In the contempt proceedings taken for disobedience of the judgment, the High Court however, did not accept that excuse put forward by the GSI and Government of India, but allowed six weeks time for compliance.
SLP(C) No. 4906 of 1991 has been preferred against that direction issued by the Karnataka High Court.
Since the issue raised in both the matters is common, we grant special leave in this case also.
The issue as to the date of merger of the Exploration Wing IBM with GSI turns on the contents of some of the letters written by the Government of India to the Director General of GSI.
Both the parties depend upon the same letters but with different contentions and constructions.
We will now draw attention to the letters one by one.
(i) ``LETTER DATED 10 DECEMBER 1965 GOVERNMENT OF INDIA MINISTRY OF STEEL AND MINES, DEPARTMENT OF MINES AND METALS.
To The Director, Indian Bureau of Mines, Nagpur.
(For the attention of Sh.
K.N. Murthy, Deputy Director, IBM) 898 Sub: Reorganisation of the IBM and GSI.
Sir, xxxxx xxxxx xxxxx After careful consideration of all these matters and in consultation with Director General, GSI and IBM, the Government have decided to transfer the following from the IBM to the administrative control of the GSI w.e.f.
1st January 1966: (i) All the posts and personnel in the Prospecting Drilling and Mining Divisions of the Bureau will be transferred to the GSI as detailed in Appendices I & II.
(ii) The workshop and Mineral Technology and Physical Analysis Laboratories will transferred to the GSI along with the posts in these laboratories as detailed in Appendix II.
(iii) The posts in the common cadres in the Administration and Accounting Divisions as have been on the basis of actual work load as detailed in Appendix II.
The personnel holding the posts will be allocated to the GSI and the IBM on the basis of options indicated by them, the principal guideline being exigency of public service.
(iv) The equipment, vehicles and stores, will be transferred by the IBM to the GSI according to the distribution made on the basis of equipment etc.
being required by the organisations as per statement in Appendix III. 2.
The headquarters of the Prospecting, Drilling and Mining Divisions, as also the workshop and the Mineral Technology and Physical Analysis Laboratories, which are being transferred from the Bureau to the GSI, will continue to be at Nagpur.
On transfer of these Divisions, these will work as separate entity of the GSI under the administrative control of the DG, GSI.
Headquarters of the Mineral Technology Laboratory at Delhi will continue to remain at Delhi.
899 3.
The service conditions of the personnel to be transferred to the GSI such as status, emoluments, seniority etc.
will be governed by the existing recruitment rules until further orders.
The IBM will be responsible for the administration of Mines (Control and conservation) collection of statistical data of minerals and Ore Dressing Laboratory as here to before.
With effect from 1.1.1966 the GSI will provide in their budget the expenditure connected with the work transferred to them from the IBM and put up a Supplementary demand.
Correspondingly IBM will surrender the L(equivalent) amount from its budget. ' ' (ii) LETTER DATED 28 JUNE 1967 GOVERNMENT OF INDIA MINISTRY OF STEEL MINES & METALS, DEPARTMENT OF MINES AND METALS.
To The Director General, Geological Survey of India, 27, Chowringhee Road, Calcutta 13 Sub: Merger of Class I and II posts in the Drilling Divisions of the Geological Survey of India (Proper and Exploration Wing) and combined seniority lists.
Sir, In partial modification of the Ministry of Steel and Mines (Department of Mines & Metals) letter No. 20/4/65 MIII dated 10 December 1965, I am convey sanction of the Government to merge class I and II posts in the Drilling Divisions of the Exploration Wing and the Geological Survey of India (Proper) with immediate effect.
Heretofore, the service conditions of the class I and II officers of Drilling category of the merged Drilling Division would be governed in accordance with the revised recruitment rules which are under issue separately.
900 2.
In drawing up the combined seniority lists of the officers in different grades in the amalgamated cadres of Class I and II posts para 3 of the annexure to the Ministry of Home Affairs O.M. No. 9/11/55 RPS dt.
22.12.1958 according to which permanent officers of the grade are senior to temporary officiating officers of that grade, is not applicable.
In such cases, seniority is determined with reference to the date of continuous appointment to that grade on a regular basis in accordance with the other principles prescribed in the Ministry of Home Affairs O.M. No. dt.
23.12.1959 referred to above lists so drawn may please be sent for approval of Government.
Yours faithfully, Sd/ (A. Sethumadhavan) Under Secretary to the Govt.
of India (iii) LETTER DATED 4/6 FEBRUARY GOVERNMENT OF INDIA MINISTRY OF STEEL, MINES AND METALS (DEPARTMENT OF MINES AND METALS) No. 1/16/68 MIII To The Director General, Geological Survey of India, Calcutta.
Sub: Merger of Posts/scales of pay in the GSI (Proper) and the Exploration Wing transferred from the Indian Bureau of Mines to the Geological Survey of India.
Sir, I am directed to invite your attention to this Ministry 's letter No. 3/17/67 MIII, dated 28.6.1967 and to say that the President is pleaded to sanction merger of the posts and to prescribe the scales of pay for the merged cadres as shown in the enclosed statement with immediate effect.
Orders regarding merger of the remaining posts will be issued separately.
901 2.
The inter seniority of the incumbents in the merged cadres will governed in accordance with the principles laid down in para 2 of the Ministry 's letter referred to above.
The merger/revision of the scales of pay does not involve any change in the nature and duties of the respective posts.
The fixation of pay in the revised scales of pay may be done under FR 23, read with audit instruction 1 under FR 22. 4.
The officers concerned should be asked to exercise their option in writing so as to reach the authority concerned within four months of the issue of this letter, provided that: (i) in the case of a Government servant who is on that date out of India on leave, deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the prescribed authority within four months of the date of his taking over charge of his post in the GSI and (ii) Where a Government servant is under suspension the option may be exercised by him within four months of the date of his return to duty, if that date is later than the date prescribed here.
In case the individual concerned fails to exercise the option within the time limit, he will be treated to have accepted the new scale of pay. ' ' In between these correspondence, the Government of India wrote one more letter to the Director General of GSI.
It was dated 29 November, 1966 which will be referred later.
Mr. Garg and Mr. Vaidyanathan, counsel for the contesting respondents rely on the first letter dated 10 December 1965 and also on the subsequent letter dated 29 November 1966 in support of the decision of the High Courts that the merger took place on 1 January 1966.
Mr. Subba Rao, counsel for the Union of India wants to take assistance from the terms of the letter dated 1/6 February 1969 in support of the counter plea.
It may be significant to note that the letter dated 10 December 1965 does not indicate the date of merger.
It is 902 stated therein that after consultation with the Director General of GSI and IBM, the Government has decided to transfer to the administrative control of GSI with effect from 1 January 1966 the posts and personnel in the prospecting drilling and mining divisions of the Bureau with the workshop, mineral technology and physical analysis laboratories.
The letter further states that the posts in the common cadres in the administration and accounting divisions as have been divided on the basis of actual work load (as detailed in Appendix II) with the personnel holding the post will be allocated to GSI and IBM on the basis of options indicated by them.
The equipment, vehicles and stores will be transferred by IBM to GSI according to the distribution made as per requirements of the two organisations.
The most important statements in the letter are these: (i) on transfer of the divisions they will however work as separate entity of the GSI under the administrative control of the Director General, GSI and (ii) the service conditions of the personnel to be transferred to GSI such status, emoluments, seniority etc.
will be governed by the existing recruitment rules until further orders.
It is further directed in the letter that with effect from January 1966, the GSI will provide in their budget the expenditure connected with the work transferred to them from the IBM and put up a supplementary demand.
Correspondingly, IBM will surrender the (equivalent) amount from the budget.
These statements in the letter make it abundantly clear that it was only administrative control of the relevant Wings of IBM that were transferred to GSI with effect from 1 January 1966.
The letter does not refer to the decision of merger of the two departments.
The decision taken on the merger of the posts as rightly submitted by Mr. Subba Rao was communicated by subsequent letters dated 28 June 1967 and 4/6 February 1969.
By letter dated 28 June 1967 the Government communicated the sanction of merger of class I & II posts in the drilling divisions of Exploration Wing of IBM and GSI (Proper) with immediate effect.
The letter also contains certain instructions to department about service conditions and seniority of persons in the amalgamated cadres of class I & II posts.
The decision with regard to merger in respect of other categories of posts is contained in the letter dated 4/6 February 1969.
Thereunder it is expressly stated that ``the President is pleased to sanction merger of the posts and to prescribe the scales of pay for the merged cadres as shown in the enclosed statement accompanying the letter include the posts with which we are concerned in these cases and there is no dispute on this matter.
903 The letter dated 4/6 February 1969 further provides that the inter se seniority of the incumbents in the merged cadres will be governed in accordance with the principles laid down in the earlier letter dated 28 June 1967.
The merger/revision of the scales of pay does not involve any change in the nature of duties of the respective posts.
The officers concerned in the merged cadre will be given options in writing for opting the new scales of pay in the merged cadre.
In case an individual concerned fails to exercise the option within the time limit, he will be treated to have accepted the new scale of pay.
It will be apparent from the terms of the letter dated 4/6 February 1969 that the posts referred to in the letter were merged with GSI with effect from 4 February 1966, as contended for the respondents, the letter dated 4/6 February 1969 would be unnecessary and uncalled for.
Counsel for the respondents however, placed strong reliance in support of the counter point on the letter dated 29 November 1966 which reads as follows: GOVERNMENT OF INDIA No. 8/39/66 MIII NEW DELHI 29TH NOV.
1966 To The Director General, Geological Survey of India, 27, Chowringhee Lane, Calcutta 13 Sub: Absorption of Shri B.K. Chatterjee, Stenographer (Selection Grade) of the Indian Bureau of Mines, in Geological Survey of India (Exploration Wing).
Sir, I am directed to refer to your letter No. 832/8 (N)/115/65/15 dated 4.11.1966 on the subject mentioned and to say that transfer in question cannot be termed as transfer from one department to the other department, since it place on a result of the reorganisation of the Indian Bureau of Mines and transfer was effected on the recommenda 904 tions of the Merger Committee when there was a vacancy in the GSI.
The transfer was made in the public interest and it is considered not necessary to approve the transfer in question in relaxation of the recruitment Rules as proposed.
The transfer of Shri Chatterjee may be treated as in order.
Further, the inter seniority of Stenographer and other categories of posts transferred from the Bureau to the Geological Survey of India as a result of the reorganisation of the former may be decided taking into account the fact that such transfers have been made in the public interest and such cases may be examined on the basis as if the individual concerned were originally appointed in the Geological Survey of India.
Yours faithfully, Sd/ (A. Sethumadhavan) Under Secy.
to the Govt.
of India We do not find any support from this letter to the submission of the respondents.
The letter concerns with the transfer of one Stenographer called Shri B.K. Chatterjee from IBM to the GSI.
The transfer was made in the public interest.
Consequently.
it was held that the person transferred was entitled to seniority as if he were originally appointed in the GSI.
That is a normal incident of transfer from one department to another and there is nothing strange in it.
But it may be noted that the respondents were not transferred from IBM to GSI with effect from 1 January 1966.
They were neither transferred to GSI, nor their posts were transferred to GSI with effect from 1 January 1966.
They were only brought under the administrative control of the Director General of GSI.
The result is that the posts and personnel remained in their own department and they would continue to be governed by their own service conditions.
This would indeed be the consequence of one department being brought under the control or supervision of another departmental head.
This point has also been made clear in the letter dated 1 January 1966 in which it has been provided ``that the service conditions of the personnel to be transferred to the GSI such as status, emoluments, seniority etc. will be governed by the existing recruitment rules until further orders ' '.
In other words, the service conditions which the respondents were entitled to, in their parent department would continue to be available to them until further orders.
905 The Bombay High Court has however, observed that it will lead to absurdity if the contesting respondents are not considered for promotion in the GSI from 1 January 1966 since they could not get any promotion in or were not considered for promotion by IBM because they were treated under administrative control of GSI.
It is difficult to accept this view.
This conclusion is based more on equitable consideration than on law.
It is the result of failure to focus on the difference between the terms of letters dated 1 January 1966 and 4/6 February 1969.
It may be emphasised that non consideration of the contesting respondents for promotion in the IBM during the period from 1966 to 1969 even assuming it to be true is however no ground for them to seek promotion in GSI.
They must seek their promotion during the interregnum only in their parent department.
Reference is made to the combined provisional seniority list of persons in class III cadres of IBM and GSI prepared as on 1 December 1968.
It is submitted that if the merger took place with effect from 4 February 1969 there were no necessity for GSI to prepare the provisional seniority list of officers of the combined cadre as on 1 December 1968.
Reference is also made to the ``Introduction to the compilation Vol.
100 Part I, Records of the GSI ' ', in which it is mentioned that on 1 January 1966, the Mining Divisions of the IBM have been merged with the GSI.
The said provisional seniority list and the statement of introduction to the compilation, in our opinion, are no evidence of the date of merger and indeed, they do not reflect the decision of the Government of India which we have earlier discussed.
For the foregoing reasons, we accept the appeals and set aside the impugned judgment and order.
In the circumstances of the case, however, there should not be any order as to costs.
V.P.R. Appeals allowed.

dataset_name: IN-Abs

summary/full:
In Civil Appeal No. 855(N) of 1979 and Civil Appeal No. 2665 of 1991 the issue raised was common and relating to the date of merger of the two departments of the Government of India, in the field of mines and minerals, namely (i) Exploration Wing of the Indian Bureau of Mines (IBM) and (ii) Geological Survey of India (GSI).
Between 1.1.1966 to 4.2.1969 thirty nine Lower Division Clerks belonging to GSI were promoted as Upper Division Clerks against the vacancies that arose in the GSI.
They were juniors to their counterparts in the IBM.
Being aggrieved by the said promotions, the respondents who originally belonged to the IBM, preferred Special Civil Application in the Bombay High Court for setting aside the seniority list and for a direction to consider their cases of promotion with effect from 1 January, 1966 and not from 4 February 1969 and therefore, there cannot be two separate channels of promotions from 1 January 1966 one from the employees of the Exploration Wing of IBM and another for the employees of GSI.
The appellants contended that the Officers of GSI were promoted on the ground that the actual merger took place not on 1 January 1966 but on 4 February 1969.
The High Court allowed the petition against which Civil Appeal No. 855(N) of 1979 has been preferred.
A Senior Technological Assistant (Geology) of the erstwhile IBM moved the Karnataka High Court for similar relief contending inter 894 alia that this case ought to have been considered for promotion in the merger cadre with effect from 1 January 1966.
The Karnataka High Court also allowed his claim with a direction to consider him for promotion with effect from 1 January 1966 in the merged cadre.
That decision was not implemented by the GSI.
In the contempt proceedings taken for disobedience of the judgment, the High Court allowed six weeks time for compliance, against which, SLP(C) No. 4906 of 1991 has been preferred.
Respondents relying on the letters dated 10 December 1965 and 29 November 1966 contended in support of the decision of the High Courts that the merger took place on 1 January 1966, whereas the appellants took assistance from terms of the letter dated 4/6 February 1969 in support of the counter plea.
Allowing the appeals, this Court, HELD: 1.
The statements in the letter make it abundantly clear that it was only administrative control of the relevant wings of IBM that were transfered to GSI with effect from 1 January 1966.
The letter does not refer to the decision of merger of the two departments.
[902E] 2.
The decision taken on the merger of the posts was communicated by subsequent letters dated 28 June 1967 and 4/6 February 1969.
By letter dated 28th June 1967 the Government communicated the sanction of merger of class I IBM and GSI (Proper) with immediate effect.
The letter also contains certain instructions to department about service conditions and seniority of persons in the amalgamated cadres of class I & II posts.
The decision with regard to merger in respect of other categories of posts which include are concerned in these cases is contained in the letter dated 4/6 February 1969.
[902F G] 3.
The letter dated 4/6 February 1969 further provides the inter se seniority of the incumbent in the merged cadres will be governed in accordance with the principles laid down in the earlier letter dated 28th June 1967.
The merger/revision of the scales of pay does not involve any change in the nature of duties of the respective posts.
The Officers concerned in the merged cadre will be given options in writing for opting the new scales of pay in the merged.
In case an individual concerned fails to exercise the option within the time limit, he will be treated to have accepted the new scale of pay.
It will be apparent from the terms of the letter dated 4/6 February 1969 that the posts 895 referred to in the letter were merged with GSI with effect from 4 February 1969 would be unnecessary and uncalled for.
[903A C] 4.
Provisional seniority list and the statement of introduction to the compilation are no evidence of the date of merger do not reflect the decision of the Govt.
of India.