judgement:
ivil Appeal No. 4381 of 1990.
From the Judgment and Order dated 23.8.1989 of the Bombay High Court in W.P. No. 494 of 1982.
Ashok H. Desai, Solicitor General, Shishir Sharma and P.H. Parekh for the Appellant.
Vinod Bobde, S.V. Deshpande and P.S. Sadavartey for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Special leave granted.
The appeal is set down for hearing by consent of both the parties.
This appeal involves a question of interpretation of paragraphs 521(5)(e) and 521(10)(c) of the Award of the All India Industrial Tribunal (Bank Disputes) which is popularly known as the Shastri Award, (hereinafter referred to as the Award) and is important for the entire banking industry in the country covered by the Award.
In order to appreciate the significance of the ques tion, it is necessary to narrate the facts leading to this appeal.
The employee concerned was working as a clerk in the Gadchiroli branch of the appellant State Bank of India at the relevant time.
A departmental inquiry was held against him for four acts of misconduct and the 16 inquiry officer came to the conclusion that two of the charges were fully proved while one charge was proved to a limited extent and the fourth charge was not established.
On the basis of the report of the inquiry officer, the compe tent authority tentatively decided to dismiss the employee from service, and issued a notice to him under paragraph 52 1(10)(a) of the Award, to show cause as to why the said punishment should not be imposed on him.
The competent authority also gave him a hearing as required by the said provision, and thereafter passed an order, the operative and relevant part of which is as follows: "Looking at the entire case I find that the established charges, viz., uttering indecent word, threatening the Agent and failure to do the work allotted are quite serious charges and would warrant dismissal.
However, the employee has had the benefit of a very tenacious defence from the date of the issue of the show cause notice for dismissal and various arguments have been raised with a view to evade the punishment which would normally follow out of the serious ness of the offences.
Taking note of them, even though I do not quite find them tenable, as indicated in my detailed observations thereon, and of the extenuating circumstances (most important of which is the comparatively young age of the employee) I have decided not to impose the punishment of dismissal.
At the same time I am of the opinion that it would not be desirable to retain Shri Sadavarte in the Bank 's service and accordingly I order that he be discharged on payment of one month 's pay and allowances in lieu of notice.
In terms of para 521(10)(c) of the Sastry Award, this would not amount to disciplinary action.
An industrial dispute was raised by the first respondent Union, and in due course it was referred to the Central Govt.
Labour Court, Bombay for adjudication.
By its award of March 2, 1981, the Labour Court held that the order of dismissal of the petitioner was proper.
Against the said decision, the respondent Union preferred a writ petition before the High Court raising several contentions.
The High Court confined its decision only to one point, viz., whether the termination of the service was retrenchment, and if so, whether it was made in accordance with the provisions of Section 25F of the (hereinaf ter referred to as the Act).
The Court held that the termi nation of the services was retrenchment and was made in breach of the said provisions in as much as no retrenchment 17 compensation was paid to the employee.
The termination of the services was, therefore, set aside.
It is not possible to sustain the view taken by the High Court since it proceeds on too literal an interpreta tion of the provisions of paragraphs 521(5)(e) and 52 1(10)(c) of the Award and ignoring their context.
We may first refer to the provisions with regard to retrenchment under the Act.
Section 2(00) of the Act defines retrenchment as follows: "Retrenchment" means the termination by the em ployer of the service of a workman for any reason whatsoev er, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or "Compensation in cases of retrenchment".
As pointed out above, paragraph 521 is in Section 111 which contains the only other paragraph, namely, paragraph 520.
That paragraph is a prologue to Section III and to paragraph 521, which both deal with procedure for taking disciplinary action.
Para 520 reads as follows: "Under the subject of disciplinary action we deal with dismissal, suspension, warning or censure, fine, the making of adverse remarks and the stoppage of an increment.
" It is, therefore, clear both from the heading of Section 111 as well as from the contents of para 520 that the provisions of para 521 deal with nothing but disciplinary action and tile procedure for taking such action.
Paragraph 521 which is a self contained code of disciplinary action and of the procedure for taking it, begins with the following statement: "A person against whom disciplinary action is proposed or likely to be taken should, in the first in stance, be informed of the particulars of the charge against him; he should have a proper opportunity to give his expla nation as to such particulars.
Final orders should be passed after due 18 consideration of all the relevant facts and circumstances.
With this object in view we give the following directions: . .
It classifies delinquencies into three categories, namely, (i) offences (ii) gross misconduct and (iii) minor miscon duct and prescribes procedure to deal with each of them.
Sub paragraph (1) to (3) deal with the cases of of fences.
Sub para (1) defines offence to mean any act involv ing moral turpitude and for which an employee is liable to conviction and sentence under the provisions of law.
Sub para 2(a) states that when in the opinion of the management, the employee has committed an offence and he is not prose cuted by the prosecuting agency, the bank may take steps to prosecute him or get him prosecuted.
The bank is also empow ered to suspend the employee in such circumstances.
Sub paragraph 2(b) states that if the employee is convicted in such prosecution, he may either be dismissed or "be given any lesser form of punishment as mentioned in sub para 5 below".
However, if he is acquitted with or without the benefit of doubt, sub para 2(c) lays down two different procedures to meet the two situations.
It states that even if an employee is given a clean acquittal, it is open to the management to proceed against him under the provisions set out in sub paras (9) and (10) "relating to discharges".
It may be mentioned here that the provisions with regard to the discharges in sub paras (9) and (10) referred to here, are contained only in sub para 10(c) and they come into play only when the management decides under sub para (9) to take a disciplinary action and the action is taken after the procedure for the same as laid down in sub para (10) is followed.
But with that, we may deal with a little later.
In cases of clean acquittal and a departmental inquiry held thereafter, the management is given yet another option.
Instead of the discharge as provided under sub para 10(c), the management may only terminate the services of the em ployee with three months ' pay and allowances in lieu of notice, if it comes to the decision not to continue the employee in service.
In such cases, he shall be deemed to have been on duty during the entire period of suspension, if any, and therefore shall be entitled to the full pay and allowances minus the subsistence allowances he had drawn and also to all other privileges for the period of suspension.
Such simple termination of service is not provided for either in sub para (5) or in sub para (10).
Thus it is obvious from sub paragraph 2(c) that when a departmental inquiry is held or 19 when disciplinary action is taken in case of a clean acquit tal.
two options are given to the management, namely.
(i) to discharge the employee under sub paragraph 10(c) with or without notice or on payment of only a month 's pay and allowances, in lieu of notice but without the benefit of the suspension being converted into a period of duty or (ii) to terminate the services with three months ' pay and allow ances, in lieu of notice and also with the further benefit of converting the period of suspension into a period of duty.
However, when the acquittal is with the benefit of doubt and the management does not proceed to discharge the employee under sub para 10(c) but wants to resort to the second option of the termination of service with three months ' pay and allowances in lieu of notice, it is left to the discretion of the management to pay the employee such portion of the pay and allowances for the period of suspen sion as the management may deem proper, and unless the management so directs, the period of suspension is not to be treated as the period spent on duty.
It should, however.
be remembered that the course of action open to the management under sub paragraph 2(c) is in the alternative to and not in negation of the other modes of punishment, namely, to dis miss etc.
the employee.
What is, however, necessary to note is the distinction between an action of discharge following the disciplinary proceedings under sub paras (9) and (10) and that of simple termination of service under sub para 2(c).
The same distinction is also maintained in sub para 2(d).
Sub para (3) throws yet more light on the subject.
It states that where an employee is guilty of an offence but he is not put on trial within a year of the commission of the offence, the management may deal with him as if he had committed an act of "gross misconduct", or "minor miscon duct" as the case may be.
The employee may not be put on trial within an year, either because the prosecuting author ity refuses to do so, or because it comes to the conclusion that there is no case for prosecution.
Hence although the management is empowered to proceed against the employee under the provisions set out in sub paras (9) and (lO) relating to discharge, he has to be given the benefit of being treated on duty for the period he was under suspension, if any, and he is entitled to all the further benefits accruing on that account.
In the departmental inquiry following such non prosecution, the management may also come to the decision not to continue the employee in service.
In that case instead of proceeding against him.
under the provisions relating to discharge in sub paras (9) and (10), the management is empowered to terminate his services with three months ' pay and allowances in lieu of notice as provided in sub para 20 (2).
Thus sub paragraph (3) like sub para (2) also makes a distinction between discharge under sub paragraph (10)(c) and a mere termination of service with three months ' pay and allowances, in lieu of notice.
It is the latter action which amounts to the simple discharge and for it, a separate provision is made in paragraph 522 in Section IV.
We will refer to that provision at a later stage.
What is necessary, to bear in mind at this stage is the distinction made be tween the discharge under sub paragraph (10) and simple termination of service in sub paras 2(c), 2(d) and (3).
Sub para (4) of paragraph 52 1 defines "gross miscon duct" and sub para (5) prescribes punishment for "gross misconduct".
Sub para (6) defines "Minor misconduct" and sub para (7) prescribes punishment for such misconduct.
Sub para (8) then states the manner in which the record is to be kept when action is taken under sub paras (3), (5) or (7) which deal with the punishment for "gross misconduct" or "minor misconduct" as the case may be.
Sub para (5) as stated above, follows on the heels of the enumeration of gross misconducts in sub para (4), and reads as follows: "(5) An employee found guilty of gross misconduct may: (a) be dismissed without notice, or (b) be warned or censured, or have an adverse remark entered against him, or (c) be fined, or (d) have his increment stopped, or (e) have his misconduct condoned and be merely discharged".
It should be clear from the context in which sub clause (e) of subparagraph (5) occurs that the entire expression, namely, "have his misconduct condoned and be merely dis charged" has nothing but penal implications, and the measure mentioned therein is a sequel to the disciplinary action taken for one of the gross misconducts mentioned in sub para (4).
It is not possible to arrive at any other conclusion on a reading of the sub paragraph as a whole.
The discharge spoken of there is nothing but a punishment for a gross miscon 21 duct.
This is so not only because it is enumerated as one of the punishments along with others but also because firstly there is a provision of simple discharge elsewhere in para graph 522 of the Award, as pointed earlier, and when the Award intended to provide for it, it has done so in sub paras (2)(c), (2)(d) and (3).
If it was intended to provide for a discharge simpliciter there, which was not meant to be penal, there was no need to enumerate it in sub para (5) which specifically enumerates punishments for acts of gross misconduct.
Secondly, nothing prevented the authors of the Award in stating in the said sub clause (e) that the discharge simpliciter was in terms of paragraph 522.
We have pointed out earlier the distinction made by the Award in sub paragraphs (2)(c), (2)(d) and (3) between the discharge following proceedings under paras (9) and (10) and the simple termination of service or discharge simpliciter as contemplated by paragraph 522.
Sub paragraphs (9) and (10) of paragraphs 521 lay down the procedure for taking disciplinary action as well as for awarding punishment following such action.
Sub para (9) says that when it is decided to take a disciplinary action against an employee, such decision shall be communicated to him within three days thereof.
Sub Para (10)(a) then lays down the procedure to be followed while conducting the disciplinary proceedings.
It also enjoins upon the manage ment to give the employee a hearing with regard to the nature of the proposed punishment.
The latter provision has also bearing on the construction of sub clause (c) thereof.
We will advert to it instantly.
Sub clause (b) of sub para (10) gives power to the management to suspend the employee pending inquiry.
Its other provisions also throw light on the construction of sub clause (c) thereof.
These provisions state that although the employee is suspended during the inquiry, if on the conclusion of the inquiry it is decided to take no action whatsoever against him, he shall be deemed to have been on duty throughout the period of suspension and would accord ingly, be entitled to the full wages and allowances and all other privileges for the said period.
On the other hand "if some punishment other than dismissal" is inflicted, it is left to the discretion of the management to treat either the whole or a part of the period of suspension as on duty with the right to corresponding portion of the wages, allowances, etc.
These provisions would indicate that discharge under sub paras (2)(c), (3), (5) and (10)(c) is also a punishment, for when the employee is discharged under the said provi sions after inquiry, under the provisions of sub paras (9) and (10), there is no provision made for treating either the whole or part of the period of suspension during the in quiry, as on duty.
22 Then follows the provision of sub clause (c) which is crucial for our purpose.
The said sub clause reads as fol lows: "In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating cir cumstances that may exist.
Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the "gross" type he may be merely discharged, with or without notice or on payment of a month 's pay and allowances, in lieu of notice.
Such dis charge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service.
Discharge in such cases shall not be deemed to amount to disciplinary action.
" In view of the fact that sub clause (a) requires that a hearing should be given to the employee against the proposed punishment, the authority is enjoined under sub clause (c) to take into account the gravity of the mis conduct, the previous record of the employee and any other aggravating or extenuating circumstances that may exist and may be brought on record "while awarding punishment by way of disciplinary action".
The sub clause then provides for discharge with or without notice or on payment of a month 's pay and allow ances, in lieu of notice.
The punishment of discharge is to be awarded in two circumstances.
The first circumstance is when there are sufficiently extenuating circumstances but the misconduct is of a "gross" type.
In other words, where the misconduct is not of a "gross" type and there are exten uating circumstances, the misconduct may merely be condoned without the authority proceeding to inflict the punishment of discharge.
That is made clear by stating thus "and in case such misconduct is of the gross type he may be merely discharged" etc.
The second circumstance in which the au thority is given power to inflict such discharge is when the charge is such that the Bank does not for some reason or other think it expedient to retain the employee any longer in service but the evidence is insufficient to prove the charge.
Read in the context, therefore, the discharge given under sub clause (c) can hardly be doubted as being a pun ishment.
However, as was sought to be contended on behalf of the respondent Union and certainly with some force, the last sentence of the said clause is couched in 23 a language which is calculated to create considerable doubt and confusion with regard to the true nature of the action of discharge spoken of there.
The said sentence states in so many words that the discharge effected under both the cir cumstances shall not be "deemed" to amount to "disciplinary action".
Read in isolation, the said sentence does purport to convey that the discharge is not by way of a punishment and on that score we may not find any fault with the reason ing of the High Court.
But as stated at the very outset, we have to read this sentence also in its proper context and in the light of the other provisions of the Award.
As pointed out earlier, one of the two circumstances in which such discharge is to be effected is when the miscon duct is of a "gross" type and even if there are extenuating circumstances.
It is to provide a punishment precisely for misconducts of gross type that a provision for such dis charge is made in sub clause (e) of sub para (5) to which we have already made a reference.
Read with the said sub para (5)(e), the provision of the present sub clause (c) of sub para (10) becomes more clear.
If a misconduct is not of a "gross" type, it may be merely condoned without any further action.
But when it is of "gross" type, the authority has no option but to condone and to proceed to discharge the em ployee.
The expressions used both in sub para 5(e) and sub para 10(c) in that respect are identical.
Similar is the action contemplated for the second circumstances referred to in sub para 10(c), namely, when the charge though unsustain able for want of evidence is such that it is considered inexpedient to retain the employee in service.
If our reading of the provisions is correct, then it needs no elaborate explanation as to why the punishment of discharge both in sub para 5(e) and 10(c) has been worded as it is and why further it became necessary to add the last sentence to sub para 10(c).
Since in the context, such a discharge is by way of punishment, the relevant provisions give a discretionary power to the authority to convert, what would otherwise be a dismissal into a mere discharge.
This is for the benefit of the employee.
It protects him from the baneful consequences of dismissal.
At the same time, it relieves the management of the burden of retaining him in service when it has become inexpedient to do so.
Thus the provision of such discharge works to the advantage of both.
At the same time, it cannot be gainsaid that the said dis charge is as a result of the disciplinary proceeding.
Al though in form it may not, and for the reasons stated above in the peculiar circumstances, it is intended that it should not look like a disciplinary action, it cannot be denied that it flows from and is a result of the disciplinary proceed 24 ings.
To make clear.
however, that the action, though spawned by the disciplinary proceedings should not prejudice the employee, the last sentence in question has been added by way of an abundant precaution.
That this is not a discharge simpliciter or a simple termination of service becomes clear when it is compared both with the provisions of paragraph 522(1), and with those of sub paras (2)(c), (2)(d) and (3) of paragraph 521 itself.
Paragraph 522 as stated earlier is in section IV and is entitled "procedure for termination of employment" as dis tinct from the title of section III, namely, "procedure for taking disciplinary action" in which paragraph 521 occurs.
Paragraph 522 begins by saying "We now proceed to the sub ject of termination of employment.
We give the following directions: . . "Thereafter in sub paragraph (1) thereof, it speaks of a simple termination of service of a permanent employee and in sub paragraph (4), talks of simi lar discharge simpliciter of employees other than permanent employees.
But what is important to note is that the dis charge simpliciter or simple termination of service which is provided for here, has two distinguishing features.
Firstly, it is effected in cases not involving disciplinary action for mis conduct and secondly, it is to be effected by giving three months ' notice or of payment of three months ' pay and allowances in lieu of notice, in the case of permanent employees and by giving one month 's notice or on payment of one month 's pay and allowances, in lieu of notice in case of probationers.
There is some apparent conflict in the provi sions of sub clause (1) and sub clause (4) with regard to the period of notice in case of an employee other than a permanent employee.
It is, however, immaterial for our purpose.
There are yet other conditions imposed by sub para (6) of paragraph 522 when the termination of the service of the employees is on account of the closing down of the establishment or when retrenchment of more than 5 employees is to be effected.
But those conditions again do not oblit erate the distinction between discharge simpliciter or simple termination of service other than as a result of a disciplinary proceeding, and discharge effected under sub paras 5(e) and 10(c) as a result of such proceedings.
As stated earlier, the termination of employment other than discharge provided for in sub paras 2(c), 2(d) and 3 of paragraph 521 also requires three months ' pay and allow ances, in lieu of notice as do the provisions of paragraph 522(1).
But unlike the provisions of paragraph 522(1) which require three months ' notice or payment of three months ' pay and allowances only in case of permanent employees and one month 's notice or one month 's pay and allowances, in lieu of notice in case of employees other than per 25 manent employees, the relevant provisions of paragraphs 521(2)(c) and 521(3) require, a notice of three months ' or pay and allowances for three months ' in lieu of notice, in respect of all employees.
Further, what is equally important to note is that whereas para 522(1) and 521(2)(c) and (3) relating to simple termination of service, require the requisite notice to be given or the payment of salary allow ances in lieu thereof.
the provisions of discharge contained in the sub paras (2)(c) and (3) and (10)(c) of para 521 do not in all cases require notice or pay and allowances, in lieu of notice.
The discharge may also be affected under the said provisions without any notice or pay and allowances in lieu of it.
Thus the distinction between the discharge contemplated under paragraph 521(10)(c) and discharge sim pliciter or simple termination of employment under the other provisions is clear enough.
This will also show that the two belong to different categories and are not the same.
While the former is intended to be punitive.
the latter is not.
As is further clear from the provisions of paragraphs 521(2)(c).
(2)(d) and (3).
the discharge contemplated there.
as against simple termination.
is in proceedings under "sub paragraphs (9) and (10) infra relating to discharge".
In other words.
it is as a result of a disciplinary proceed ing. 12.
Apart from it, we find that to construe the dis charge under 521(5)(e) and 521(10)(c) as a simple discharge not flowing from disciplinary proceedings will deprive an employee of a valuable advantage.
viz. that of challenging the legality and propriety of the disciplinary action taken against him.
whatever the form of the order, by showing that he was either not guilty of any misconduct or that the misconduct was not of a "gross" type or that the punishment meted out to him by way of discharge was not warranted in the circumstances etc.
It is not.
therefore.
in the inter ests of the employees to construe the provisions as the High Court has done.
The predominant object of the Award is to protect the interests of the employees.
It is for all these reasons that we are unable to accept the very able arguments advanced by Mr. Bobde on behalf of the respondent Union to support the reasoning of the High Court.
The result to our aforesaid discussion is that the termination of service of the employee in the present case under paragraph 521(10)(c) of the Award is as a result of the disciplinary proceedings and is punitive.
It is, there fore.
not "retrenchment" within the meaning of Section 2(00) of the Act.
Hence, there was no question of complying with the provisions of Section 25F of the Act.
The decision 26 of the High Court has.
therefore to be set aside.
In view of the interpretation placed by us on the provisions of paragraph 521(5)(e) and 521(10)(c), there is a queer situation in which both the appellant Bank and the respondent Union would find themselves.
The Bank has been supporting the interpretation which we have placed and the respondent Union has been opposing it.
but both not looking beyond their immediate interest involved in the present case, which is qua an individual employee.
We are happy that the Bank has canvassed the view that it has done in this case.
For that view is calculated to benefit the employees at large and in the long run though, it may be to its advan tage and to the disadvantage of the individual employee in this case.
The respondent Union, however, by pressing the proposition to the contrary, was supporting a view which was not in the interests of the employee at all.
Though, there fore, it may be a loser in the present case, it should thank itself that the interpretation is not in accordance with the submissions made on its behalf.
This leaves us with the question of the relief to be granted in the present case.
Shri Bobde.
submitted that if we are not to accept the interpretation placed by the High Court on the provisions in question, we should remand the matter to the High Court for deciding the other contentions raised in the writ petition, since the court had not gone into the same and had allowed the petition only on the basis of its interpretation of the said provisions.
We find that this course is not advisable in the present case for various reasons.
The mis conducts complained of against the employee are of 1966.
He was chargesheeted in January 1968 and re moved from service on April 9, 1970.
The Court proceedings have been pending since then till today, i.e., for more than about 23 years now.
In the meanwhile, we are informed that the appellant who was a clerk on the date he was charge sheeted, has become a lawyer and has been practicing as such.
We, further, find that the mis conducts which are held proved by the Labour Court are of "gross" type within the meaning of paragraph 521(4) of the Award.
The Labour Court is the final fact finding forum.
Further.
while setting aside the order of the Labour Court, the High Court has granted re instatement in service and back wages as follows: (i) 50 per cent of the back wages from 9.4.70 to 24.11.75, (which is the date of the reference for adjudication to the Labour Court) on the ground that the damages for the delay in making should be shared by both the parties equally, and (ii) full back wages 27 from 25.11.75 till 31.5.79 on the ground that though the employee started his practice as a lawyer in June 1978, he was not well settled in practice for the first year, and (iii) no back wages for the period from 1.6.79 till the date of his re instatement which is the date of the High Court 's judgment.
i.e., August 23, 1989.
Shri Desai.
the learned Solicitor General appearing for the Bank wanted to produce before us a letter from the Maharashtra State Electricity Board to show that in fact the employee was in gainful employment with the said Board for about six years.
Although we have not taken the said letter on record, there is no denial of such employment from the side of the employee.
We are further informed that pursuant to the order of the High Court, the employee has already received an amount of Rs.93,000.
The effect of our decision would be to set aside not only the order of re instatement but also of the back wages which would require the employee to refund the said amount of Rs.93,000.
Of course, Shri Bobde stated that the employee was prepared to refund the said amount and to contest the petition on other grounds.
At present.
the employee is in his fifties.
Taking into consid eration all the facts, we are of the view that it would serve the interests of justice if we set aside the order of the High Court and restore that of the Labour Court without requiring the employee to refund the amount which he has already received.
The appeal is allowed.
accordingly.
There will be no order as to costs.
N. V. K. Appeal allowed.

summary/full:
The appellant Bank instituted a departmental inquiry against one of its employees, a clerk in one of its branch es.
The departmental inquiry was held for four acts of misconduct and the inquiry officer came to the conclusion that two of the charges were fully proved, while one charge was proved to a limited extent, and the fourth charge was not established.
On the basis of the report of the inquiry officer, the competent authority decided to dismiss the employee from service, and issued a notice to him under paragraph 521(10)(a) of the Award of the All India Industri al Tribunal popularly known as the Shastri Award, requiring him to show cause as to why the said punishment should not be imposed on him.
He was also given a hearing as required by the said provision, and thereafter an order was passed to the effect: that the established charges viz. uttering indecent words, threatening the agent, and failure to do the work allotted are quite serious and would warrant dismissal, though he may not be dismissed, in view of the extenuating circumstances, but that at the same time it would not be desirable to retain him in the Bank 's service, and that as such, "he be discharged on payment of one month 's pay and allowances in lieu of notice.
In terms of para 521(10)(c) of the Shastri Award this would not amount to disciplinary action." An industrial dispute was raised by the first respond ent Uuion, and it was referred to the Central Government Labour Court, for adjudication and by its award the Labour Court upheld the order of dismissal.
12 The first respondent Union preferred a writ petition to the High Court and raised several contentions, but the High Court confined its decision only to one point, viz. whether the termination of the service was retrenchment, and whether it was made in accordance with the provisions of Section 25F of the ; held that the termina tion of the service of the second respondent was retrench ment within the meaning of section 2(00), and was made in breach of the statutory provision contained in Section 25F in as much as no retrenchment compensation was paid to the employee, and set aside, the order of termination of serv ice.
In the appeal by the Bank to this Court, the question for consideration was: whether the order of termination of service served on the employee, amounts to punishment or not.
Allowing the appeal, this Court, HELD: 1.
It is not possible to sustain the view taken by the High Court since it proceeds on too literal an interpre tation of the provisions of paragraphs 521(5)(e) and 521(10)(c) of the Award and ignoring their context.
[17B] 2.
The termination of service of the employee in the instant case under paragraph 521(10)(c) of the Award is as a result of the disciplinary proceedings, and is punitive.
It is, therefore, not "retrenchment" within the meaning of Section 2(00) of the .
Hence, there was no question of complying with the provisions of Section 25F of the Act.
The decision of the High Court has, therefore, to be set aside.
[25G H; 26A] 3.
It is clear from the context in which sub clause (e) of sub para (5) occurs that the entire expression, namely, "have his misconduct condoned and he merely discharged" has nothing but penal implications, and the measure mentioned therein is a sequal to the disciplinary action taken for one of the gross misconducts mentioned in sub para (4).
It is not possible to arrive at any other conclusion on a reading of the sub paragraph as a whole.
The discharge spoken of there is nothing but a punishment for a gross misconduct.
This is so not only because it is enumerated as one of the punishments along with others but also because firstly there is a provision of simple discharge elsewhere in paragraph 522 of the Award.
and when the Award intended to provide for it, it has done so in sub paras (2)(c), (2)(d) and (3).
[20G H; 21A B] 13 4.
Sub paras (9) and (10) of paragraph 521 lay down the procedure for taking disciplinary action as well as for awarding punishment following such action.
Sub paras (9), 10(a), 10(b) would indicate that discharge under sub paras (2)(c), (3), (5) and (10)(c) is also a punishment, for when the employee is discharged under the said provisions after the inquiry, under the provisions of sub paras (9) and (10), there is no provision made for treating either the whole or part of the period of suspension during the inquiry, as on duty.
[21D & G H] 5.
In view of the fact that sub clause (a) requires that a hearing should be given to the employee against the pro posed punishment, the authority is enjoined under sub clause (c) to take into account the gravity of the mis conduct, the previous record of the employee and any other aggravating or extenuating circumstances that may exist and may be brought on record "while awarding punishment by way of disciplinary action".
The sub clause then provides for discharge with or without notice or on payment of a month 's pay and allow ances, in lieu of notice.
The punishment of discharge is to be awarded in two circumstances.
The first circumstance is when there are sufficiently extenuating circumstances but the mis conduct is of a "gross" type.
The second circum stance is when the charge is such that the Bank does not for some reason or other think it expedient to retain the em ployee any longer in service but the evidence is insuffi cient to prove the charge.
[22D E] 6.
Read with sub para (5)(e), the provisions of sub clause (c) of sub para (10) become more clear that if a mis conduct is not of a "gross" type, it may be merely condoned without any further action.
But when it is of "gross" type, the authority has no option but to condone and to proceed to discharge the employee.
The expressions used both in sub para (5)(e) and sub para 10(c) in that respect are identical.
Similar is the action contemplated for the second circumstance referred to in sub para 10(c), namely when the charge though unsustainable for want of evidence is such that it is considered inexpedient to retain the employ ee in service.
[23D E] 7.
Since in the context, such a discharge is by way of punishment, the relevant provisions give a discretionary power to the authority to convert, what would otherwise be a dismissal into a mere discharge.
This is for the benefit of the employee.
It protects him from the banefull consequences of dismissal.
At the same time, it relieves the management of the burden of retaining him in service when it has become inexpedient to do so.
Thus the provision of such discharge works to the advantage of both.
At the same time, it cannot be gainsaid that the said 14 discharge is as a result of the disciplinary proceeding.
Although in form it may not, and in the peculiar circum stances, it is intended that it should not look like a disciplinary action, it cannot be denied that it flows from and is a result of the disciplinary proceedings.
To make clear, however, that the action, though spawned by the disciplinary proceedings should not prejudice the employee, the last sentence viz: "Discharge in such cases shall not be deemed to amount to disciplinary action", has been added by way of abundant precaution.
[23F H; 24A] 8.
That this is not a discharge simpliciter or a simple termination of service becomes clear when it is compared both with the provisions of para 522(1), and with those of sub paras (2)(c), (2)(d) and (3) of paragraph 521 itself.
The distinction between discharge contemplated under para graph 521(10)(c) and discharge simpliciter or simple termi nation of employment under the other provisions is clear enough.
This will also show that the two belong to different categories and are not the same.
While the former is intend ed to be punitive, the latter is not.
As is further clear from the provisions of paragraphs 521(2)(c), (2)(d) and (3), the discharge contemplated there, as against simple termina tion, is in proceedings under "sub paragraphs (9) and (10) infra relating to discharge".
In other words, it is as a result of a disciplinary proceeding.
[24B; 25C D] 9.
To construe the discharge under paragraphs 521(5)(e) and 521(10)(c) as a simple discharge not flowing from disci plinary proceedings will deprive an employee of a valuable advantage, viz. that of challenging the legality and propri ety of the disciplinary action taken against him, whatever the form of the order, by showing that he was either not guilty of any misconduct or that the misconduct was not of a "gross" type or that the punishment meted out to him by way of discharge was not warranted in the circumstances etc.
It is not, therefore, in the interests of the employees to construe the provisions as the High Court has done.
The predominant object of the Award is to protect the interests of the employees.
[25E F] 10.
Remanding the matter to the High Court for deciding the other contentions raised in the writ petition, is not advisable for various reasons.
The misconducts complained of against the employee are of 1966.
He was charge sheeted in January 1968 and removed from service on April 9, 1970.
The Court proceedings have been pending for more than about 23 years.
In the meanwhile, the respondent No. 2 who was a clerk on the date he was charge sheeted, has become a lawyer and has been practicing as such.
Further, the mis conducts, which are held 15 proved by the Labour Court are of "gross" type within the meaning of paragraph 521(4) of the Award.
The Labour Court is the final fact finding forum.
The High Court while setting aside the order of the Labour Court has granted reinstatement in service and back wages and pursuant to the said order, the employee has already received an amount of Rs.93,000.
The effect of decision would be to set aside not only the order of reinstatement but also of the back wages which would require the employee to refund the said amount.
Even though the employee was prepared to refund the amount and to contest the petition on other grounds, at present, the employee is in his fifties.
Taking into consideration all these facts the interests of justice would be served if the order of the High Court is set aside and the order of the Labour Court is restored without requiring the employee to refund the amount he has already received.
[26E G; 27C E]


judgement:
Civil Appeal No. 5653 1983.
From the Judgment and Order dated 31.8.1979 of the Allahabad High Court in Misc.
Writ Petition No. 4994 of 1975 E.C. Agarwal for the Appellant.
Manoj Swarup and Ashok K. Srivastava for the Respondent.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This appeal by special leave is direct ed against the judgment of the High Court of Judicature at Allahabad dated August 31, 1979 in Civil Misc.
Writ Petition No. 4994 of 1975 filed by the appellant.
The said writ petition related to proceedings for determination of surplus land under the U.P. Imposition of Ceiling on Land Holdings Act.
1960 (hereinafter referred to as 'the Act ').
The Act has been enacted by the U.P. State legislature to provide for the imposition of ceiling on land holdings in Uttar pradesh and certain other matters connected therewith.
In Section 4 of the Act provision is made for calculation of ceiling area.
Section 5 provides for imposition of ceiling on existing holdings.
Sections 6 to 8 provide for exemption of certain lands from the imposition of ceiling.
Section 9 provides for issue of a general notice by the Prescribed Authority calling upon every tenure holder holding land in excess of the ceiling area to submit to him a statement in respect of all his holdings.
Section 10 days down that in every case where a tenure holder fails to submit a statement or submits an incorrect statement the Prescribed Authority shall.
after making such enquiry as he may consider neces sary cause to be prepared a statement indicating the plot or plots proposed to be declared as surplus land and thereupon cause to be served on every such tenure holder a notice together with a copy of the statement thus prepared calling upon him to show cause.
within a period specified in the notice.
why the statement be not taken as correct.
Section 11 provides for determination of surplus land by the Pre scribed Authority in cases where no objection is filed within the period specified in the notice.
issued under Section 10.
Section 12 provides for determination of surplus land by the Prescribed Authority in cases where an objection has been filed.
Section 13 makes provision for appeal against the order passed by the Prescribed Authority under Section 11 or Section 12. 121 In 1972 it was decided to lower the ceiling limit and to make further provisions with regard to transfers in antici pation of the imposition of ceiling.
The U.P. State legisla ture enacted the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972.
U.P. Act 18 of 1973 (hereinafter referred to as 'the 1973 Act ') which came into force on June 8, 1973.
By the 1973 Act Sections 3 to 8 were substituted and other amendments were made in the Act.
Certain further amendments were made in the Act by the U.P. Act 2 of 1975.
Among the amendments introduced by the Amendment Act of 1975 was insertion of Explanation I and Explanation II after sub section (1) of Section 5 as substituted by the 1973 Act.
U.P. Act 2 of 1975 was brought into force with effect from June 8, 1973.
A notice under Section 10(2) of the Act was issued to the appellant and he filed objections wherein it was submit ted that Chhiddu Singh.
the father of the appellant, had executed a registered gift deed dated October 13, 1971 in respect of Plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur in favour of his wife, Smt.
Roshan Kumari, Smt.
Premwati, wife of the appellant, and Virendera Bahadur Singh and Tej Vir Singh, sons of the appellant.
It was also stated that Chhiddu Singh died on April 28, 1973.
The submission of the appellant was that the said land which was gifted by his father Chhiddu Singh was not inherited by the appellant and it could not be treated as part of the holding of the appel lant for the purpose of imposition of ceiling.
The Pre scribed Authority overruled the said objection of the appel lant and ignoring the gift made by Chhiddu Singh, included the said land as part of the holding of the appellant and declared the surplus land of the appellant to the extent of 49 Bighas and 17 Biswas.
The appellant filed an appeal which was partly allowed by the First Additional Civil Judge.
Aligarh, by his judgment dated January 31.
1975, whereby the area of surplus land was reduced to 42 Bighas, 13 Biswas and 6 Dhur.
The appellant filed a writ petition in the High Court which was dismissed by the High Court by judgment dated August 31, 1979.
Feeling aggrieved by the said judg ment of the High Court the appellant has filed this appeal after obtaining special leave to appeal.
The expression 'holding ' is defined in clause (9) of Section 3 as under: "(9) 'holding ' means the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant 122 under the UP.
Tenancy Act, 1939, other than a sub tenant, or as a Government lessee or as a sub lessee of a Government lessee, where the period of sub lease is co extensive with the period of the lease;" The expression 'tenure holder ' is defined in clause (17) of Section 3 as under: "(17) 'tenure holder ' means a person who is the holder of a holding, but does not include (a) a woman whose husband is a tenure holder; (b) a minor child whose father or mother is a tenure holder.
" The relevant provisions of Section 5 are: "5 Imposition of ceiling (1) On and from the commencement of the Uttar Pradesh Imposition of Ceiling of Land Holdings (Amendment) Act, 1972, no tenure holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him.
Explanation I In determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensible in the name of any other person, shall be taken into account.
Explanation II (If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date) either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to held the land and that it is so held by him ostensibly in the name of the second mentioned person.
" "(6) In determining the ceiling area applicable to a tenure 123 holder, any transfer of land made after the twenty fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account; Provided that nothing in this sub section shall apply (a) a transfer in favour of any person (including Govern ment) referred to in sub section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for the immediate or deferred benefit of the tenure holder or other members of his family.
Explanation The burden of proving that a case falls within clause (b) of the proviso shall rest with the part.x, ' claiming its benefit.
" Shri Agarwal has urged that the amendments that were introduced in the Act by U.P. Act 18 of 1973 are not retro spective in nature and that the said amendments are opera tive with effect from June 1973, and that surplus land has to be determined with reference to June 8, 1973, the date of coming into force of the 1973 Act.
The submission of Shri Agarwal is that on June 8.
1973 the land covered by Plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur could not be included in the holding of the appellant and the appellant was not the tenure holder in respect of the said land.
Shri Agarwal has contended that in view of the gift deed dated October 13, 1971, executed by Chhiddu Singh, the father of the appellant, the land covered by the gift deed had vested in the donees and the appellant did not inherit the said land on the death of Chhiddu Singh on 28th April, 1973.
Laying stress on the definition of expression holding ' contained in clause (9) of Section 3 and the expression 'tenure holder ' contained in clause 117) of Section 3, Shri Agarwal has submitted that on June 8, 1973 the land that was gifted by Chhiddu Singh was not held by the appellant and it was not part of appellant 's holding and the appellant was not the tenure holder in respect of the same.
find no merit in this contention.
The Act postulates that the ceiling area of a tenure holder has to be deter mined in accordance with the provisions contained in Section 5.
Alongwith such determina 124 tion of ceiling area there has to Be determination of the surplus land held in excess of the ceiling area which is to be acquired by the Stale.
For the purpose of determination of the ceiling area provision has been made in sub section (6) of Section 5 that any transfer of land, which but for the transfer would have been declared surplus land under the Act.
if made after January 24, 1971, shall be ignored and not taken into account.
Transfers falling within the ambit of clauses (a) and (b) of the proviso to sub section (6) are.
however, excluded and such transfers even though made after January 24, 1971 have to be taken into account.
The gift made under the gift deed dated October 13, 1971 executed by Chhiddu Singh was a transfer of land.
It was made after January 24, 1971.
It was in respect of land which but for the transfer would have been declared surplus land under the Act.
The said transfer did not fall within the ambit of clauses (a) and (b) of the proviso to sub section (6) of Section 5.
In view of sub section (6) of Section 5 the said gift was, therefore, liable to be ignored for the purpose of determining the ceiling area applicable to the appellant.
Shri Agarwal has urged that sub section (6) of Section 5 cannot be applied to the present case inasmuch as it postu lates a transfer by the tenure holder whose ceiling area is to be determined under the Act and that in the present case the gift was not made by the appellant but by his father and.
therefore.
the said gift cannot be ignored on the basis of the provisions of Sub section (6) of Section 5.
We are unable to agree.
Sub section (6) of Section 5 does not speak of a transfer by the tenure holder.
It speaks of any trans fer of land made after January 24, 1971 which but for the transfer would have been declared surplus land under the Act.
It is not the requirement of sub section (6) of Section 5 that the transfer should be by the tenure holder whose ceiling area is to be determined.
We cannot read this re quirement in it.
While construing sub section (6) of Section 5 it has to be borne in mind that this provision has been made with the object of preventing evasion of the ceiling law by owners of large holdings making transfers in antici pation of the imposition of the lower limit on the ceiling area, Such a provision must be so interpreted as to curb the mischief find advance the remedy.
A construction which will cut down the scope of this provision cannot be adopted.
In our opinion, therefore, sub section (6) of Section 5 is applicable to a transfer made by the predecssor ininterest of the tenure holder whose ceiling area is to be determined in cases where such predecessor died before June 8, 1973 and the tenure holder whose ceiling area is to be determined inherited the lands of 125 such predecessor prior to June 8, 1973.
In the instant case the land which was transferred by Chhiddu Singh under gift deed dated October 13, 1971 was land which but for the said transfer would have been declared surplus under the Act.
Once the gift made by Chhiddu Singh is ignored the land so gifted should be treated to have continued to vest in Chhiddu Singh at the time of his death on April 28, 1973 and on the death of Chhiddu Singh the appellant inherited the same.
The said land has to be treated as part of the holding of the appellant on June 8, 1973 and he was the tenure holder in respect of the same on that date.
The said land was required to be taken into consideration for determining the surplus land held by him.
Shri Agarwal has relied upon the decision of this Court in Arjan Singh and Another vs The State of Punjab and Oth ers; , This case turns on the interpreta tion of the expression 'this Act ' in Section 7 of the Pepsu Tenancy and Agricultural Lands (Amendment and Validation) Act, 1962 whereby Section 32KK was introduced in the Pepsu Tenancy and Agricultural Lands Act, 1955 with effect from October 30, 1956.
By Section 32KK it was provided that land owned by a Hindu undivided family would be deemed to be land of one land owner and partition of land owned by such a family shall be deemed to be a disposition of land for the purposes of Section 32FF and the question was whether a partition effected by a registered partition deed dated September 6, 1956 was covered by the said provision.
It would have been so covered if the expression 'this Act ' was construed to mean the principal Act of 1955.
This Court, however, held that in view of the various provisions con tained in the Amendment Act of 1962 the expression 'this Act ' meant the Amendment Act of 1962 and not the principal Act.
This decision, therefore, turns on the interpretation of the particular provision of the Amendment Act of 1962 and it has no bearing on the present case.
therefore, find no merit in the appeal and it is accordingly dismissed.
No order as to costs.
S.Bali Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The 1960 Act makes provision for imposition of Ceiling on Land holdings and for determination of surplus land.
It was amended by U.P. Act 18 of 1973 to lower the ceiling limit and to make provisions with regard to transfers of land in anticipation of the imposition of ceiling.
This Act came into force on June 8, 1973.
Further amendments were made in the Act by U.P. Act 2 of 1975 inserting Explanation I & Explanation II after sub section (1) of section 5 as substituted by 1973 Act and given effect retrospectively i.e. from June 8, 1973.
A notice under section10(2) of Act was issued to the appellant and he filed objections submitting that Chhiddu Singh, his father, had executed a registered gift deed dated October 13, 1971 in respect of plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur in favour of appellant 's mother.
appellant 's wife and two sons of the appellant.
Chhiddu Singh died on April 28, 1973.
Accordingly the said gifted land was not inherited by the appellant and it could not be treated as part of his holding for the purpose of imposition of ceiling.
The prescribed authority overruled the objections, included the said land as part of the hold ing of the appellant and declared the surplus land of the appellant to the extent of 49 Bighas and 17 Biswas.
The appellant filed an appeal to the First Additional Civil Judge.
It was allowed partly and the surplus land was reduced to 42 Bighas 13 Biswas and 6 Dhur.
The appellant thereafter filed a writ petition in the High Court which was dismissed.
Feeling aggrieved the appellant filed this appeal after obtaining special leave to appeal.
The appellant urged before this Court that amendments introduced by the 1973 Act are not retrospective in nature and are operative only from June 8, 1973, that the surplus land has to be determined as on June 8, 1973, the date of coming into force of 1973 Act, and that the 119 land gifted by the appellant 's father on October 13, 1971 could not be included in the holding of the appellant as he was not the tenure holder of the said land on the death of his father on April 28, 1973.
Dismissing the appeal, the Court, HELD: The 1973 Act postulates that ceiling area of a tenure holder has to be determined in accordance with the provisions contained in sec.
5 of the Act.
While determining the ceiling area, the surplus land held in excess of ceiling area, which is to be acquired by the State, has also to be determined.
[123H; 124A] For determining ceiling area sub section (6) of section 5 provides that any transfer of land, which but for the transfer would have been declared surplus land under the Act if made after January 24, 1971 shall be ignored and not taken into account but transfers falling within the ambit of clauses (a) and (b) of the proviso to sub sec.
(6) are, excluded, and such transfers even though made after January 24, 1971, have to be taken into account.
[124B] In the instant case, the gift was made and executed on October 13, 1971 and it was a transfer of land and as it was made after January 24, 1971 the transfer of land was in respect of land which would have been declared surplus land under the Act.
This transfer did not fall within the ambit of clauses (a) and (b) of the proviso to sub section (6) of section 5.
Thus such gift was liable to be ignored for the purpose of determining the ceiling area applicable to the appellant.
Sub section (6) of section 5 does not speak of a transfer by the tenure holder but it speaks of any transfer of land made after January 24, 1971.
So the contention of the appellant that gift was made by his father and not by him as tenure holder and he did not inherit the same on the death of his father is untenable, since sub section (6) of section 5 is applicable to a transfer even made by the predecessors in interest of the tenure holder whose ceiling area is to be determined and who inherited the land prior to June 8, 1973.
The land which was transferred vide gift deed dated October 13, 1971 was land which but for the said transfer would have been declared surplus land under the Act.
[124C H; 125A] Thus, once the gift is ignored it is to be treated to have continued to vest in the appellant 's father and after his death the appellant inherited the same and as such was part of the holdings of the appellant on June 8, 1973 and has to be taken into consideration for determining the surplus land held by the appellant.
[125B] 120


judgement:
terlocutory Application No. 1 of 1990.
IN Civil Appeal No. 4444 of 1991).
From the Judgment and Order dated 25.5.1991 of the Allahabad High Court in C.W.P. No. 5267 of 1990.
D.K. Garg and Pradip Misra for the Appellants.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Leave is granted to the petitioners who were not parties before the High Court in Writ Petition No. 5267 of 1990 to file the special leave petition.
The Registry shall.
therefore.
consequently register this spe cial leave petition.
Special leave is granted.
On 25.5.1990.
a learned Single Judge of the Allahabad High Court is said to have made an order in Writ Petition No. 5267 of 1990.
That brief order for convenience is ex tracted below: has been brought to the notice of the Court that the opp.
parties have violated the time schedule framed by Hon 'ble Supreme Court in the case of Dr. Dinesh Kumar vs 132 M.L.N. Medical College, Allahabad; , in organising the competition to be held on 27.5.90 by Lucknow University for admissions in Post Graduate Medical Courses in the State Medical Colleges.
The Hon 'ble Supreme Court has recently warned in the case of State of Bihar vs Dr. Sanjay Kumar Sinha, AIR 1990) SC 749 that "Everyone including the States.
the Union territories and other authorities running Medical colleges with Post Graduate Courses are bound by our order and must strictly follow the same schedule".
For violating its orders, the Hon 'ble Supreme Court hoped that "there would be no recurrence of it but we would like to administer a warning to everyone that if it is brought to our notice at any time in future that there has been viola tion, a serious view of such default shall be taken.
Keeping in view the above observations the opposite parties are strictly directed not to hold the competitive examina tion scheduled on 27th May, 1990 and admit the petitioners in Post Graduate Medical Courses in the present session on the basis of marks obtained in MBBS Course as has been done for MDS Courses.
The Writ Petition is allowed with no order as to costs" On the basis of that order and relying upon the terms thereof, a learned Single Judge of the Lucknow Bench of the High Court made an order on 4.6.90) directing that steps be taken on the basis of the direction direction made in the order dated 25.5.90 for giving admission to candidates in P.G. Courses.
The net result of these two orders is that the Selection Examination for filling up of the seats in the Post Graduate Medical Courses of the seven medical colleges in U.P. has been cancelled and a direction has been issued to the State Government to grant admission on the basis of M.B.B.S. results.
This Court by order dated 21st August, 1990 directed the Registrar of the Allahabad High Court to transmit the record wherein order dated 25.5.90 is said to have been made.
The Registrar in his letter dated 22nd August, 1990, to this Court in response to the direction has stated that: "there is no such case as writ No. 5267 of 1990 Dr. B. Sheetal Nandwani vs State and Others, and no judgment 133 was delivered by Hon 'ble Mr. Justice Anshuman Singh on 25.5.90 in the said case.
The file is sent to you through special messenger and you are requested to kindly return the file after the Hon 'ble Court 's perusal.
It is further submitted that fake judgment was said to have been produced before different Medical Colleges purporting to have been delivered by Hon 'ble Mr. justice Anshuman Singh, J. on 25.5.1990 in Writ Petition No. 5267 of 1990 directing the opposite parties not to hold competitive examinations scheduled on 27.5.90 and admit the petitioners in Post Graduate Medical Course in the present session on the basis of the marks obtained in M.B.B.S. Course.
In 'Northern India Patrika ' (Allahabad Edition) dated 11.8.90 this matter was published with the heading 'Bogus Judgment aborts entrance Exam ' and only then it came to the notice of the Hon 'ble Court and the Hon 'ble the Chief Justice took up the matter and directed that a CID enquiry be instituted.
On the direction of Hon 'ble the Chief Justice the Government has been moved to get the matter investigated by CID.
" From the report it is manifest that a fake order in a non existent writ petition was produced before the Lucknow Bench of the Allahabad High Court for securing the order dated 4.6.90.
It also transpires that on the basis of al leged order dated 25.5.90 and the subsequent order of 4.6.90 some admissions have been secured in some of the medical colleges.
Those who have taken admission on the basis of such orders.
that is on the basis of the M.B.B.S. result without going through a selection examination cannot be allowed to continue in the Post Graduate Courses.
We are satisfied that there is a deep seated conspiracy which brought about the fake order from Allahabad.
the principal seat of the High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court.
The first order being non existent has to be declared to be a bogus one.
The second order made on the basis of the first order has to be set aside as having been made on the basis of misrepresentation.
We are alive to the situation that the persons who have taken admission on the basis of the M.B.B.S. results are not before us.
The circum stances in which such benefit has been taken by the candi dates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard.
At and rate now that we have at the instance of the U.P. Government ordered 134 the selection examination to be held, admission on the basis of M.B.B.S. results cannot stand.
We accordingly direct that admissions, if any on the basis of M.B.B.S. results granted after the impugned orders of the High Court shall stand vacated and the Principals of the medical colleges of U.P. are directed to implement the direction forthwith.
A copy of this order shall be communicated to each of the Principals of the seven medical colleges in the State of U.P. for compliance.
The report of the Registrar of the High Court of Allaha bad indicates that the Criminal Investigation Department of the State has been asked to investigate into the matter.
We are of the view that appropriate investigation should be done by the Central Bureau of Investigation and persons behind this deep seated fraud should be brought to book without any delay.
Purity of the judicial stream should not be allowed to be polluted by such a clandestine move and citizens should not be misled by actions of the conspira tors.
We, therefore, direct that the Central Bureau of Investigation shall step in forthwith and complete the investigation within two months and provide a copy of the report containing the result of the investigation to this Court.
A copy of the report shall simultaneously be submit ted to the learned Chief Justice of the Allahabad High Court.
The appeal is allowed with costs.
As and when the respondents who are said to be petitioners in writ petition No. 5267 of 1990 are identified shall be made to pay the costs of this appeal which we assess at Rs.10,000.
Out of the costs as and when recovered, the appellants shall be entitled to a sum of Rs.3,000 and the remaining sum of Rs.7,000 shall be paid to the Supreme Court Legal Aid Com mittee.
T.N.A. Appeal allowed.

summary/full:
On the basis of a fake order, in a non existent writ petition, said to have been passed by a Single Judge of the Allahabad High Court on 25.5.1990, some persons obtained an order dated 4.6.1990 from the Lucknow Bench of the High Court which directed cancellation of the scheduled competi tive admission examination to the Post Graduate Medical Courses in the Medical Colleges of the State of Uttar Pra desh and.
granted admission on the basis of the marks ob tained in the M.B.B.S. Exams.
Some admissions were secured in the medical colleges of the State on the basis of the High Court 's orders.
Against the High Court 's orders, the U.P. Junior Doctors ' Action Committee has preferred this appeal by special leave.
Allowing the appeal, this Court, HELD: 1.1 Purity of the judicial stream should not be allowed to be polluted by a clandestine move and citizens should not be misled by actions of the conspirators.
1.2 There is a deep seated conspiracy which brought about the fake order from Allahabad High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court.
The first order being non existent is declared to be a bogus one.
The second order made on the basis of the first order is set aside as having been made on the basis of misrepresentation.
Conse quently, those who have taken admission on the basis of such orders, that is on the basis of the M.B.B.S. result without going through a selection examination, cannot be allowed to continue in the Post Graduate 131 Courses.
Accordingly, admissions, if any, made on the basis of orders of the High Court shall stand vacated.
[133F G; 134A] 2.
Though the persons who have taken admission on the basis of the High Court 's order are not before this Court yet the circumstances in which such benefit has been taken by them do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard.
[133G H] 3.
Appropriate investigation should be done by the Central Bureau of Investigation and the persons behind the deep seated fraud should be brought to book without any delay.
[134C] Dr. Dinesh Kumar vs M.L.N. Medical College, Allahabad, ; ; and State of Bihar vs Dr. Sanjay Kumar Sinha, A.I.R. 1990 SC 749, cited.