judgement:
No. 1232 of 1986.
(Under Article 32 of the Constitution of India).
C.S. Vaidayanathan and S.R. Sethia for the Petitioner.
A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by 977 SEN, J.
The short point involved in this petition under article 32 of the Constitution is whether linguistic minority educational institutions like the Andhra Education Society are governed by sub section
(4) of section 8 of the Delhi School Education Act, 1973.
The petitioner Smt.
Y. Theclamma, Vice Principal, Andhra Education Society Secondary School, Prasad Nagar, New Delhi challenges the legality of an order passed by the managing committee of the Andhra Education Society, New Delhi dated April 23, 1986 placing her under suspension pending a departmental inquiry against her.
The facts lie within a narrow compass.
The Andhra Educa tion Society is a society formed under the Societies Regis tration Act, 1860 with a view to imparting education to the children belonging to the Andhra community and others in Delhi.
It runs as many as four schools a senior secondary school at Deen Dayal Upadhyaya Marg, a secondary school at Prasad Nagar, a middle school at Janak Puri and another at East of Kailash.
The first three of these are recognised by the Director of Education, Delhi Administration and are aided by the Government to the extent of 95%.
The petitioner is thus employed in a government aided school.
By the im pugned order dated April 23.
1986, the management instituted a departmental inquiry against the petitioner on certain charges and placed her under suspension in exercise of r. 115 of the Delhi School Education Rules, 1973 pending the inquiry.
A copy of the impugned order of suspension was forwarded on the same day to the Director of Education.
On the next day i.e. on April 24, 1986, the management ad dressed a letter to Deputy Director of Education, District West, New Delhi formally intimating that the petitioner had been placed under suspension pending inquiry on a charge of misconduct as specified for the reasons mentioned in the statements of charges and of allegations forwarded.
On that day, the petitioner brought a suit for perpetual injunction against the management being Civil Suit No. 213/86 in the Court of the Subordinate Judge, First Class, Delhi.
She also made an application for grant of temporary injunction under Order XXXIX, r. 1 of the Civil Procedure Code, 1908 for restraining the managing committee from proceeding with the departmental inquiry.
The temporary injunction was sought on the ground that the managing committee was not duly consti tuted and besides, the impugned order of suspension was violative of sub section
(4) of section 8 of the Act.
On the same day.
the learned Subordinate Judge passed an order for maintain ing the status quo.
However, the management entered appear ance and applied for vacating the injunction on the ground 'that the petitioner had already been suspended on April 23, 1986.
It also pleaded that the school was being established and 978 administered by the Andhra Education Society which being a linguistic minority educational institution was protected under article 30(1) of the Constitution and therefore the provisions of the Act and in particular of sub section
(4) of section 8 were not applicable.
The learned Subordinate Judge by his order dated August 20, 1986 following the decision of the Delhi High Court in S.S. Jain Sabha (of Rawalpindi) Delhi vs Union of India & Ors., ILR (1976) 2 Del. 61 held that the Andhra Education Society was protected under article 30(1) and was therefore not governed by sub section
(4) of section 8 of the Act and accordingly dismissed the application for grant of temporary injunction.
Instead of moving the High Court, the petitioner straightaway filed a Special Leave Petition under article 136 of the Constitution in this Court which was obvi ously not maintainable.
On September 10, 1986 learned coun sel for the petitioner finding that it was difficult to support the petition for grant of special leave, sought an adjournment to take further instructions, and the matter was accordingly adjourned to September 22, 1986.
In the mean while, the petitioner moved this petition under article 32 of the Constitution and thereafter withdrew the suit.
On the adjourned date, the learned counsel also withdrew the Spe cial Leave Petition.
The Special Leave Petition was accord ingly dismissed as withdrawn.
Ordinarily, the Court would have directed the petitioner to avail of her alternative remedy under article 226 of the Constitution before the High Court but we were constrained to issue notice inasmuch as the High Court had in the year 1979 by its judgment in Andhra Education Society vs Union of India & Anr., followed its earlier decision in S.S. Jain Sabha 's case, (supra), and allowed a batch of Writ Petitions filed by the Andhra Education Society and other linguistic minority educational institutions holding that in view of the protection of article 30(1) these linguistic minority educational institutions were not governed by sections 3, 5, sub section
(4) of section 8, sections 16 and 25 of the Act and the rele vant rules framed thereunder and therefore no prior approval of the Director of Education was necessary before passing an order of suspension against a teacher pending a departmental inquiry.
We were also constrained to entertain the petition because a similar question was raised by the Frank Anthony Public School Employees ' Association by a petition under article 32 of the Constitution.
Since then the Court has in Frank Anthony Public School Employees ' Association vs Union of India & Ors., ; struck down section 12 of the Act as being violative of article 14 of the Constitution inso laf as it excludes the teachers and other employees of unaided minority schools from the beneficial provisions of sections 8 to 11 [except section 8 (2)]i.e.
except to the 979 extent that it makes section 8(2) inapplicable to unaided minori ty educational institutions.
The Court following the long line of decisions starting from In re.
the Kerala Education Bill, 1957, [1959] SCR 995 down to All Saints High School vs Government of Andhra Pradesh. ; held.
that the provisions con tained in Chapter IV of the Act (except section 8(2)) were regu latory measures and did not offend against article 30(1) of the Constitution, enacted with the purpose of ensuring proper conditions of service of the teachers and other employees of unaided minority educational institutions and for securing a fair procedure in the matter of disciplinary action as against them.
These provisions, according to the Court, were permissible restrictions and were intended and meant to prevent maladministration.
The view proceeds upon the basis that the right to administer cannot obviously include the right to maladminister.
A regulation which is designed to prevent maladministration of an educational institution cannot be said to infringe article 30(1).
The Court accordingly granted a declaration to the effect that section 12 of the Act was void and unconstitutional except to the extent that it makes section 8(2) inapplicable to unaided minority educational institutions, and directed the Union of India, Delhi Admin istration and its officers to enforce the provisions of Chapter IV [except section 8(2)] against the Frank Anthony Public School, an unaided minority school.
It has further directed the management of the school not to give effect to the impugned orders of suspension passed against the members of the staff.
Such being the law declared by the Court in Frank Anthony Public School 's case with regard to unaided minority educational institutions, it stands to reason that the aided minority schools run by the Andhra Education Society and other linguistic minority educational institutions in Delhi will also be governed by the provisions of Chapter IV [except section 8(2)], that is to say, the exercise of the power of the management of such schools to suspend a teacher would necessarily be subject to the requirement of prior approval of the Director of Education under sub section
(4) of section 8 of the Act.
In support of the petition Sri Vaidyanathan, learned counsel for the petitioner naturally contends that the matter is concluded by the recent decision of this Court in Frank Anthony Public School 's case and according to the view expressed by the Court in that case the impugned order of suspension passed by the management being without the prior approval of the Director as required by sub section
(4) of section 8 of the Act was vitiated.
On the other hand Sri Subba Rao, learned counsel appearing for respondents Nos. 3, 4 and 5 submits that the 980 view expressed by this Court in the recent decision in Frank Anthony Public School 's case based upon the earlier decision in All Saints High School 's case runs counter to the deci sion of the Constitution Bench in Lilly Kurian vs Sr.
Lewina & Ors., ; and therefore requires reconsidera tion.
Alternatively, he contends that the Court failed to appreciate that sub section
(4) of section 8 of the Act requiring the prior approval of the Director for the suspension of a teacher was a flagrant encroachment upon the right of the minorities under article 30(1) of the Constitution to adminis ter educational institutions established by them.
It is argued that if no prior approval of the Director is needed under section 8(2) for the dismissal, removal or reduction in rank of a teacher as held by this Court in Frank Anthony Public School 's case, there is no reason why the exercise of power of suspension being an integral part of the power to take disciplinary action could not be made subject to any such restriction as imposed by sub section
(4) of section 8 of the Act.
In order to appreciate the rival contentions, it is necessary to set out the relevant provisions.
Sub section
(2) of section 8 interdicts that subject to any rule that may be made, no employee of a recognised private school shall be dis missed, removed or reduced in rank, nor shall his service be otherwise terminated except with the prior approval of the Director.
section 8(3) confers upon such an employee the right of an appeal to the Tribunal constituted under section 11 against his dismissal, removal or reduction in rank.
Sub section
(4) relates to the power of suspension and it is in these terms: "(4).
Where the managing committee of a recog nised private school intends to suspend any of its employees, such intention shall be commu nicated to the Director and no such suspension shall be made except with the prior approval of the Director: Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspen sion is necessary by reason of the gross misconduct, within the meaning of the Code of Conduct prescribed under section 9, of the employee: Provided further that no such immedi ate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communi 981 cated to the Director and approved by him before the expiry of the said period.
" Sub s.(5) of section 8 provides that where intention to suspend, or the immediate suspension of an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension.
In Frank Anthony Public School 's case, Chinnappa Reddy, J. speaking for himself and G.L. Oza, J. while repelling the contention that sub section
(4) of section 8 of the Act was an en croachment upon the fundamental right of the minorities enshrined in article 30(1) to administer the educational insti tutions established by them inasmuch as it conferred a blanket power on the Director to grant or withhold his prior approval where the management intended to place an employee under suspension pending a departmental inquiry, observed that the question was directly covered by the majority decision in All Saints High School 's case and that, in his view, the provision was eminently reasonable and just de signed to afford some measure of protection to the employ ees, without interfering with the management 's right to take disciplinary action.
He then stated: "Section 8(4) would be inapplicable to minori ty institutions if it had conferred blanket power on the Director to grant or withhold prior approval in every case where a manage ment proposed to suspend an employee but we see that it is not so.
The management has the right to order immediate suspension of an employee in case of gross misconduct but in order to prevent an abuse of power by the management a safeguard is provided to the employee that approval should be obtained within 15 days.
The Director is also bound to accord his approval if there are adequate and reasonable grounds for such suspension.
The provision appears to be eminently reasonable and sound and the answer to the question in regard to this provision is directly covered by the decision in All Saints High School, where Chandrachud, CJ.
and Kailasam, J. upheld Section 3(3)(a) of the Act impugned therein.
" (Emphasis supplied) It is not necessary to go through all the cases relied upon by the 982 Court in Frank Anthony Public School 's case for the view taken that the provisions of Chapter IV of the Act were of a regulatory nature and therefore did not have the effect of abridging the fundamental right guaranteed to the minorities under article 30(1).
It is enough to say that although there is no reference in the judgment to Lilly Kurian 's case, the observations made by the Court with regard to the applica bility of sub s.(4) of section 8 of the Act which relates to the exercise of the power of suspension by the management, fall in line with the view expressed by the majority in All Saints High School 's case where such power was held to be on consideration of all the decisions starting from In re.
the Kerala Education Bill, 1957, permissible restriction being regulatory in character.
Presumably the Court in Frank Anthony Public School 's case felt that it was not necessary to refer to Lilly Kurian 's case as the extent of the regula tory power of the State had been dealt with by the Court In re.
the Kerala Education Bill, 1957 and reaffirmed in the subsequent decisions, including that in All Saints High School 's case.
In Lilly Kurian 's case, one of us (Sen, J.) speaking for a Constitution Bench had occasion to observe: .lm "Protection of the minorities is an article of faith in the Constitution of India.
The right to the administration of institutions of minority 's choice enshrined in Article 30(1) means 'management of the affairs ' of the institution.
This right is, however, subject to the regulatory power of the State.
Article 30(1) is not a charter for mal administra tion; however regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible;" (Emphasis supplied) In that case, the question was whether the conferment of a right of appeal to an external authority like the Vice Chancellor of the University under Ordinance 33(4) framed by the Syndicate of the University of Kerala under section 19(j) of the Kerala University Act, 1957 against any order passed by the management of a minority educational institution in respect of penalties including that of suspension was an abridgement of the right of administration conferred on the minorities under article 30(1).
The question was answered in the affirmative and it was held that the conferral of the power of appeal to the ViceChancellor under Ordinance 33(4) was not only a grave encroachment on such institution 's right to enforce and ensure discipline in its administrative affairs but it was uncanalised and unguided in the sense that no restrictions were placed on the exercise of the power.
It was further said that in the absence of any guide lines it could not be held 983 that the power entrusted to the Vice Chancellor under Ordi nance 33(4) was merely a check on maladministration.
In Frank Anthony Public School 's case, the Court held that subss.
(1), (3) and (4) of section 8, and sections 9, 10 and 11 of the Act do not encroach upon the right of administration conferred on the minorities under article 30(1) to administer educational institutions of their choice, but that section 8(2), in view of the authorities referred to, must be held to interfere with such right and therefore inapplicable to minority institutions.
It would therefore appear that the decision in Frank Anthony Public School 's case proceeds upon the view that the right guaranteed to religious and linguis tic minorities by article 30(1) which is two fold i.e. to establish and to administer educational institutions of their choice, is subject to the regulatory power of the State.
The Court has referred to the three decisions in Ahmedabad St. Xavier 's College Society vs State of Gujarat, ; ; State of Kerala vs Very Rev. Mother Pro vincial; , and All Saints High School vs Govt.
of A.P. (supra) in coming to the conclusion that section 12 of the Act insofar as it made inapplicable the beneficent provisions of Chapter IV to unaided minority institution was discriminatory and offended against article 14, i.e. except to the extent that it made section 8(2) inapplicable to such insti tutions.
The view taken in Frank Anthony Public School 's case is in consonance with the decision of the majority in All Saints High School 's case.
In that case, the applicabil ity of several sections of the A.P. Recognised Private Educational Institutions (Control) Act, 1975 was questioned as being violative of article 30(1).
Chandrachud, CJ.
while delivering the majority judgment held after referring to all the earlier decisions, that it must be regarded as wellset tled especially after the 9 Judge Bench decision in St. Xavier 's case and the subsequent decision in Lilly Kurian that the State was competent to enact regulatory measures for the purpose of ensuring educational standards and main taining the excellence thereof and such regulations which were permissible did not impinge upon the minorities ' funda mental right to administer educational institutions of their choice under article 30(1).
The reason for this conclusion can best be stated in the words of Chandrachud, CJ.: "These decisions show that while the right of the religious and linguistic minorities to establish and administer educational institu tions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining the excellence thereof can be validly prescribed.
For maintaining educa 984 tional standards of an institution, it is necessary to ensure.
that it is competently staffed.
Conditions of service which prescribe minimum qualifications for the staff, their pay scales, their entitlement to other bene fits of service and the laying down of safe guards which must be observed before they are removed or dismissed from service or their services are terminated are all permissible measures of a regulatory character." Chandrachud, CJ.
and Fazal Ali, J. held that sections 3(1) and 3(2) which made the prior approval of the competent authori ty a prerequisite for the dismissal, removal or reduction in rank of a teacher, conferred on the competent authority an appellate power of great magnitude and therefore sections 3(1) and 3(2) read together were, in their opinion, unconstitu tional insofar as they were made applicable to minority institutions inasmuch as they were found to interfere sub stantially with their right to administer institutions of their choice.
In coming to that conclusion, the learned Chief Justice relied upon the decisions in State of Kerala vs Very Rev. Mother Provincial, ; ; D.A.V. College vs State of Punjab, and Lilly Kurian and accordingly agreed with Fazal Ali, J. that sections 3(1) and 3(2) of the impugned Act could not be applied to minority institutions since to do so would offend against article 30(1).
We may extract the relevant portion of the judgment: "Any doubt as to the width of the area in which Section 3(1) operates and is intended to operate, is removed by.the provision contained in Section 3(2), by virtue of which the compe tent authority "shall" approve the proposal, "if it is satisfied that there are adequate and reasonable grounds" for the proposal.
This provision, under the guise of conferring the power of approval, confers upon the competent authority an appellate power of great magni tude.
The competent authority is made by that provision the sole judge of the propriety of the proposed order since it is for that au thority to see whether there are reasonable grounds for the proposal.
The authority is indeed made a judge both of facts and law by the conferment upon it of a power to test the validity of the proposal on the vastly subjec tive touchstone of adequacy and reasonable ness.
Section 3(2), in my opinion, leaves no scope for reading down the provisions of Section 3(1).
The two sub sections together confer upon the competent authority, in the absence of proper rules, a 985 wide and untrammelled discretion to interfere with the proposed order, whenever, in its opinion, the order is based on grounds which do not appear to it either adequate or reason able." "The form in which Section 3(2) is couched is apt to mislead by creating an impression that its real object is to cast an obligation on the competent authority to approve a proposal under certain conditions.
Though the section provides that the competent authority "shall" approve the proposed order if it is satisfied that it is based on adequate and reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is so satisfied.
The conferment of such a power on an outside authority, the exercise of which is made to depend on purely subjective considerations arising out of the twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by Article 30(1).
" It is also necessary to mention that all the three Judges (Chandrachud, CJ.
Fazal Ali & Kailasam, JJ.) agreed that section 4 of the Act which provided for an appeal, and section 5 which was consequential to section 4, were invalid as violative of article 30(1).
However, there was a difference of opinion as to the applicability of sections 3(3)(a), 3(3)(b), 6 and 7.
We need only notice sections 3(3)(a) and 3(3)(b) which pertained to the power of suspension.
section 3(3)(a) provided that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into the gross misconduct of such teacher is contemplated.
section 3(3)(b) provided that no such suspension shall remain in force for more than a period of two months and if the inquiry was not completed within that period, the teacher shall be deemed to be reinstated.
Proviso thereto however conferred power on the competent authority, for reasons to be recorded in writing, to extend the period for a further period not exceeding two months.
Chandrachud, CJ.
found it difficult to agree with Fazal Ali, J. that these provisions were violative of article 30(1), thereby agreeing with Kailasam, J. that they were indeed regulatory.
section 3(3)(a), in his own words, contained but an elementary guarantee of freedom from arbitrariness to the teachers.
The provision was regulatory in character since it neither denied to the management the right to proceed against an erring teacher nor indeed did it place an unrea son 986 able restraint on its power to do so.
It assumed the right of the management to suspend a teacher but regulated that right by directing that a teacher should not be suspended for more than a period of two months unless the inquiry was in respect of a charge of gross misconduct.
In dealing with section 3(3)(a), the learned Chief Justice observed: "Fortunately, suspension of teachers is not the order of the day, for which reason I do not think that these restraints which bear a reasonable nexus with the attainment of educa tional excellence can be considered to be violative of the right given by article 30(1)." He then stated: "The limitation of the period of suspension initially to two months, which can in appro priate cases be extended by another two months, partakes of the same character as the provision contained in section 3(3)(a).
In the generality of cases, a domestic inquiry against a teacher ought to be completed within a period of two months or say, within another two months.
A provision founded so patently on plain reason is difficult to construe as an invasion of the fight to administer an insti tution, unless that right carried with it the right to maladminister." He accordingly agreed with Kailasam, J. that sections 3(3)(a) and 3(3)(b) which put restraints on the arbitrary power of suspension of teachers were regulatory in character and did not offend against the fundamental right of minorities under article 30(1).
It would be seen that the decision of the Court in Frank Anthony Public School 's case with regard to the applicabili ty of sub section
(4) of section 8 of the Act to the unaided minority educational institutions is based on the view taken by the majority in All Saints High School 's case which, on its turn, was based on several decisions right from In re.
the Kerala Education Bill, 1957 down to St. Xavier, including that in Lilly Kurian.
It is therefore difficult to sustain the argument of learned counsel for the respondents that the decision in Frank Anthony Public School 's case holding that sub section
(4) of section 8 of the Act was applicable to such insti tutions was in conflict with the decision of the Constitu tion Bench in Lilly Kurian 's case and therefore required reconsideration.
The contention of learned counsel for the respondents that sub section
(4) of section 8 of the Act requiting the prior approval of the Director for the suspen 987 sion of a teacher was a flagrant encroachment upon the right of the minorities under article 30(1) of the Constitution to administer educational institutions established by them is answered in all the earlier decisions of this Court right from In re.
the Kerala Education Bill, 1957 down to that in All Saints High School 's case which have been referred to by the Court in Frank Anthony Public School 's case.
These decisions unequivocally lay down that while the right of the minorities, religious or linguistic, to establish and admin ister educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed.
It cannot be doubted that although disciplinary control over the teachers of a minority educational institution is with the management, regulations can be made for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action.
As the Court laid down in Frank Anthony Public School 's case, the provision contained in sub section
(4) of section 8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the managements ' right to take disciplinary action.
Although the Court in that case had no occasion to deal with the different ramifications arising out of sub section
(4) of section 8 of the Act, it struck a note of caution that in a case where the management charged the employee with gross miscon duct, the Director is bound to accord his approval to the suspension.
It would be seen that the endeavour of the Court in all the cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under article 30(1) with the social necessity to protect the members of the staff against arbitrariness and victimisation.
One should have thought that in a case like the present where the management charged the petitioner with diversion of funds and communicated the impugned order of suspension pending departmental inquiry to the Director, there would be some response from him.
The management did not formally apply for his prior approval in terms of sub section
(4) of section 8 of the Act in view of the declaration by the High Court that it being a linguistic minority educational institution, it was protected under article 30(1) and no prior approval of the Director was required.
Nevertheless, it took the precaution of communicating the impugned order of suspension to the Director.
Presumably, the Director refrained from passing any order according or refusing approval having regard to the judgment of the High Court.
In view of the recent deci sion in Frank Anthony Public School 's case, it must be 988 held that the institution was governed by sub s, (4) of section 8 of the Act and therefore there was a duty cast on the Direc tor to come to a decision whether such immediate suspension was necessary by reason of the gross misconduct of the petitioner as required by sub=s (5) of s.8.
We refrain from expressing any opinion as to the seriousness otherwise of the charge as that is a matter to be enquired into by de partmental proceeding.
The fact however remains that there was no response from the Director within the period of 15 days as envisaged by the second proviso to section 8(4).
As a result of this, the impugned order of suspension has lapsed and it is so declared.
Although the impugned order of sus pension has lapsed, the management may yet move the Director for his prior approval under sub s (4) of section 8 of the Delhi School Education Act, 1973, and the Director shall deal with such application, if made, in accordance with the principles laid down in Frank Anthony Public School 's case, Subject to this observation, the writ petition fails and is dismissed.
There shall be no order as to costs, P.S.S. Petition dismissed.

summary/full:
Sub section (4) of section 8 of the Delhi School Education Act, 1973 interdicts the management of a recognised private school from suspending any of its employees except with the prior approval of the Director of Education.
However, in cases of gross misconduct the first proviso to that sub section provides for suspension of the employee with immedi ate effect, while the second proviso limits the period of such suspension to fifteen days, unless it has been communi cated to the Director and approved of by him before the expiry of the said period.
The petitioner, a teacher in a recognised private school run by a linguistic minority educational society, was placed under suspension by the management by its order dated April 23, 1986 on charges of diversion of funds, pending depart mental inquiry and the fact intimated to the Director of Education, without formally seeking his approval under section 8(4) of the Act.
She filed a suit assailing the order as violative of section 8(4) of the Act and also an application for the grant of a temporary injunction which was dismissed by the trial court following the decision of the High Court in S.S. Jain Sabha vs Union of India, [ILR (1976) 2 Del. 61] taking the view that the educational institution having been established and administered by a linguistic minority, it was protected under article 30(1) of the Constitution, and therefore, the provisions of the Act and in particular, section 8(4) were not applicable.
Her special leave petition having been dismissed as withdrawn by this Court, she filed the present writ petition in this Court and thereafter withdrew the suit.
975 Relying upon the decision in Frank Anthony Public School Employees Association vs Union of India, ; it was contended for the petitioner that the impugned order of suspension being without prior approval of the Director, as required under section 8(4) of the Act, was vitiated.
For the respondents it was contended that the decision of the Court in Frank Anthony Public School 's case being contrary to the decision of the Constitution Bench in Lilly Kurian vs Sr.
Lewina & Ors., ; required reconsideration and that section 8(4) of the Act was violative of Article 30(1).
Disposing of the writ petition, the Court, HELD: 1.
The exercise of the power of management of the aided schools run by the linguistic minority educational institutions in Delhi to suspend a teacher is subject tO the requirement of prior approval of the Director of Education under sub section
(4) of section 8 of the Delhi School Education Act, 1973.
[979EF] 2.1 While the right of the minorities, religious or linguistic, to establish and administer educational institu tions of their choice cannot be interfered with, restric tions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validly be prescribed.
[987B] 2.2 Sub section (4) of section 8 of the Act requiring the prior approval of the Director of Education for the suspen sion of a teacher was regulatory in character and did not, therefore, offend against the fundamental right of the minorities under article 30(1) of the Constitution to adminis ter educational institutions established by them.
[986H 987A] Frank Anthony Public School Employees ' Association vs Union of India & Ors., ; ; All Saints High School vs Government of Andhra Pradesh, ; ; In re.
the Kerala Education Bill, 1957, [1959] SCR 995; Ahmeda bad St. Xavier 's College Society vs State of Gujarat, ; and Lilly Kurian vs Sr.
Lewina & Ors., ; ; applied.
State of Kerala vs Very Rev. Mother Provincial, ; and D.A.V. College vs State of Punjab, [1971] Suppl.
SCR 688, referred to.
3.1 The decision in Frank Anthony Public School 's case holding that sub section
(4) of section 8 of the Act was applicable to the unaided minority 976 educational institutions proceeds upon the view taken by the majority in All Saints High School 's case that the right guaranteed to religious and linguistic minorities by article 30(1) to establish and to administer educational institu tions of their choice was subject to the regulatory power of the State, which in its turn was based on several decisions right from In re.
the Kerala Education Bill, 1957 down to St. Xavier 's case including that in Lilly Kurian 's case.
It could not, therefore, be said to be in conflict with the decision of the Constitution Bench in Lilly Kurian 's case and required reconsideration.
[983BC 986FG] 3.2 The endeavour of the Court in all the above cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under article 30(1) with the social necessity to protect the members of the staff against arbitrariness and victimisa tion.
The provision contained in sub s.(4) of section 8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the managements ' right to take disciplinary action.
[987E, D] 4.1 In a case like the present one where the management of an educational institution governed by sub section
(4) of section 8 of the Act charged the petitioner with diversion of funds and communicated the impugned order of suspension pending departmental inquiry to the Director, a duty was cast on him to come to a decision whether such immediate suspension was necessary by reason of the gross misconduct of the petition er as required by sub section
(5) ors.
8 of the Act.
[987F, 988A] 4.2 Since there was no response from the Director within the period of 15 days, as envisaged by the second proviso to a. 8(4), the impugned order of suspension had lapsed.
Howev er, the management could yet move the Director for his prior approval under sub section
(4) of section 8 of the Act, who would then deal with such an application, if made, in accordance with the principle laid down in the Frank Anthony Public School 's case.
[988BC]


judgement:
ivil Appeal No. 943 Of 1986.
From the Judgment and Order dated 4th July, 1985 of the Appellate Tribunal in Appeal No. 244 of 1985 D. L.M. Singhvi and K.K. Bhaduri for the appellant.
A Subba Rao and Ms. section Relan for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
This appeal is directed against a judgment of the Customs, Excise and Gold Control Appellate Tribunal in regard to the manner and sequence in which certain notifications under Rule 8 Sub rule (1) of the Central Excise Rules granting exemptions from duty have to be worked out.
By a notification dated August 1974 the Central Government, in exercise of its powers under subrule(1) of Rule 8 of the Central Excise Rules exempted.
"Tyres for motor vehicles failing under sub item(1) of Item No. 16 of the First Schedule to the Central Excise and Salt Act, 1944(1 of 1944) from so much of the duty of excise leviable thereon as is in excess of fifty five per cent Ad valorem".
200 Thereafter on June 16, 1977 another notification was issued in the following terms: "In exercise of the powers conferred by sub rule (1) of Rule 8 of the Central Excise Rules, 1944 the Central Government hereby exempts all excisable goods (hereinafter referred to as the "said goods") on which the duty of excise is leviable and in the manufac ture of which any goods falling under Item No. 68 of the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944) (hereinafter referred to as the inputs) have been used, from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs.
Notification No. 205/77 dated 28.9.77, subject to the condi tions that the manufacturer furnishes to the proper Officer a statement showing the quanti ty of the inputs used in the manufacture of every unit of the said goods.
Provided that where the duty of excise levi able on the said goods is less than the amount of duty of excise paid on the inputs the extent of exemption shall be restricted to the duty of excise on the said goods." A Further notification was issued on July 14, 1978 and this was in the following terms: "In exercise of the powers conferred by sub rule(1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts tyres and tubes excluding flaps failing under Item No. 16(1) and 18(3) of the First Schedule to the (1 of 1944) (hereinafter referred to as the specified goods) from so much of the duty of excise leviable thereon (read with any rele vant notification issued under the said sub rule(1) of rule 8 and in force for the time being) as is in excess of (a) eighty seven and a half per cent, of such duty, if produced in any factory which com menced production of the specified goods for the first time earlier than the 1st day of April 1976: and (b) Seventy five per cent of such duty, if produced in any factory which commenced pro duction of the specified 201 goods for the first time on or after the 1st day of April, 1976, subject to the conditions that: There is no controversy regarding evaluation According to the assessee as well as the department effect has first to be given to the notification dated August 1, 1974 and the duty calculated in terms of that notification.
There is also no controversy at this stage.
The controversy begining thereafter.
According to the dapartment, thereafter, effect has to be given first to the notification dated June 16, 1977 and then to the notification dated July 14, 1978 where as according to the assessee effect has to be given, in the first instance, to the notification dated July 14, 1978 and then to the notification dated 16, 1977.
The Department 's contention was accepted by the Tribunal.
In this appeal, Dr. L.M. Singhvi, learned counsel for the appellant argued that on principle the effective duty has to be first determina tion by applying the notification dated July 14, 1978 first and the duty paid on the inputs should be set off under the notification dated June 16, 1977 against the duty determined as payable after applying the notification dated July 14, 1978.
In support of his argument, the learned counsel relied upon a recent judgment of this court in Assistant Collector of Central Excise v, Madras Rubber Factory limited, Civil Appeal No. 3195 of 1979 etc.
We are afraid that in the face of the language of the notifications, it is not possible to agree with the submission of Dr. Singhvi.
We have already extracted the notification dated June 16, 1977 and July 14, 1978.
The notification dated July 14, 1978, it is to be noticed, has super added the words "read with any relevant notification issued under the said sub rule(1) of Rule 8 and in force for the time being." These super added words show conclusively that the notification dealing with exemption to the extent of the duty paid on the inputs, which was already in force, had to be given effect before giving effect to the notification dated July 14, 1978.
This was the submission of Shri A. Subba Rao, learned counsel for the department and it is difficult to see any escape from it.
The case upon which reliance was placed by Dr. Singhvi does not appear to have any relevance to the question at issue.
There, the court was concerned with the determination of the assessable value and not with the present question relating to the order of priority in which the notifications granting 202 exemption from duty had to be applied.
There, what the court decided was that Excise Duty cannot be computed without proper determination of the assessable value namely assessa ble value exclusive of permissible deductions.
That princi ple cannot come in aid of the question involved in this appeal.
The learned counsel also argued that to give effect first to the notification dealing with exemption to the extent of the duty paid on inputs and thereafter to the notification dated July 14, 1978 would mean that the asses see would not be getting full credit for the entire duty paid on the inputs but only to a percentage of it and that there would, therefore, be double taxation atleast to that extent.
There is no general principle that there can be no 'double taxation ' in the levy of Excise Duty.
The court may lean in favour of a construction which will avoid double taxation but in the present case there does not appear to be any lean question of construction at all.
On the language of the notification dated July 14, 1978 only one result can follow.
That is the view taken by the Tribunal in the order under appeal.
We agree with that view of the matter.
The appeal is dismissed with costs.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
By a notification dated August 1, 1974 the Central Government in exercise of its powers under sub rule(1) of Rule 8 of the Central Excise Rules, exempted automobile tyres from excise duty leviable thereon as was in excess of fifty five per cent ad valorem.
Another notification issued on June 16, 1977 exempted all excisable goods from duty to the extent of the duty already paid on the inputs.
A further notification dated July 14, 1978 exempted tyres and tubes from so much of the duty leviable thereon (read with any relevant notification issued under the said subrule(1) of Rule 8 in force for the time being) as was in excess of eightyseven and a half per cent of such duty if produced in any factory which commenced production for the first time earlier than the 1st day of April 1976, and seventy five per cent of such duty if produced in any factory which commenced production for the first time on or after the 1st day of April, 1976.
A dispute arosse in respect of the latter two notifica tion as to which of them was first to be given effect to.
The Tribunal accepted the Department 's contention that effect had to be given in the first instance to the notifi cation dated June 16, 1977, and then to the notification dated July 14, 1978.
In this appeal, it was contended for the appellant that to give effect to the second notification and thereafter to the third notification would mean that the assessee would not be getting full credit for the entire duty paid on the inputs but only a percentage of it and that there would, therefore, be double taxation at least to that extent.
Dismissing the appeal, the Court, 199 HELD: 1.
The Tribunal was right in taking the view that effect had to be given first to the notification dated June 16, 1977 and then to the notification dated July 14, 1978.
The words "read with any relevant notification issued under the said sub rule (1) of Rule 8 in force for the time being" super added by the latter notification show conclusively that the earlier notification dealing with exemption to the extent of the duty paid on the inputs which was already in force had first to be given effect to.
[201E G] Assistant Collector of Central Excise vs Madras Rubber Factory Limited, Civil Appeal No. 3195 of 1979, distin guished.
There is no general principle that there can be no 'double taxation ' in the levy of excise duty.
The Court may lean in favour of a construction which will avoid double taxation, but in the instant case there does not appear to be any lean question of construction at all.
[202B C]


judgement:
ON: Criminal Appeal No. 165 of 1957.
Appeal by special leave from the judgment and order dated the 4th August, 1955, of the Patna High Court in Criminal Appeal No. 699 of 1953 with Criminal Revision No. 205 of 1954, arising out of the judgment and order dated the 12th December, 1953, 769 of the Court of the Assistant Sessions Judge, Second Court Chapra in Trial No. 70 of 1953.
G. C. Mathur., for the appellants.
section P. Varma, for the respondent.
October 28.
The following judgment of the Court was delivered by SINHA J.
The only question for determination in this appeal is whether the High Court in its revisional jurisdiction, has the power to enhance the sentence, as it has done in the instant case, beyond the limit of the maximum sentence that could have been imposed by the trial court, on the accused persons.
The appellants, along with others, were placed on their trial before the Assistant Sessions Judge of Chapra in the district of Saran, for the offence of dacoity under section 395, Indian Penal Code.
They, along with two others, were convicted under section 395, Indian Penal Code, and sentenced to rigorous imprisonment for 5 years, by the Assistant Sessions Judge, by his Judgment and order dated December 12, 1953.
The other accused were acquitted.
The convicted persons preferred an appeal to the High Court at Patna.
The High Court, in its revisional jurisdiction, while admitting the appeal, called upon the appellants to show cause why, in the event of their convictions being maintained, their sentence should not be enhanced.
The appeal and the rule for enhancement of sentence were heard together by a Division Bench of that Court.
The High Court, by its judgment and order dated August 4, 1955, allowed the appeal of two of the appellants and acquitted them but maintained the conviction as against the remaining six appellants.
On the question of sentence, the High Court observed that the " offence of dacoity has increased tremendously.
It is a very heinous offence as innocent persons, while sleeping in their houses, are attacked and their belongings are taken by force.
" The High Court, therefore, was of the opinion that a sentence of five years ' rigorous imprisonment was "extremely inadequate".
It, therefore, enhanced the sentence to 10 years ' rigorous imprisonment in each 770 and obtained special leave to appeal limited to the question of sentence only, the question being whether the High Court had the jurisdiction to enhance the sentence beyond the limits of the power of the trial court itself The occurrence of dacoity which is the subjectmatter of the charge against the appellants, along with others, took place on the night between July 1 and 2, 1952, in the house of Ranjit Bahadur, a minor.
After midnight, 16 or 17 dacoits, fully armed with various deadly weapons, broke open the main entrance door of the house with an axe.
After going into the house, they broke open boxes and tampered with the iron safe, and removed articles worth twenty thousand rupees.
The inmates of the house were over powered.
Some of them, slipping out of the house, raised a big fire which is the customary form of alarm raised against the invading crowd of dacoits.
On that alarm, a number of people of the village turned up but had not the courage to face the dacoits for fear of being shot.
They contented themselves with using brickbats against the dacoits who made good their escape with their booty.
It would, thus, appear that it was a serious occurrence involving the lives and fortunes of the inmates of the house, and naturally, the High Court took a very serious view of the offence.
In this Court, the learned counsel for the appellants, who appeared amicus curiae, contended, in the first place, that the High Court had exceeded its powers in enhancing the sentence from 5 to 10 years inasmuch as the trial court itself could not have inflicted a sentence of imprisonment for more that 7 years.
Alternatively, he contended that the High Court had not kept in view the dictum of this Court in the case of Bed Raj vs The State of Uttar Pradesh (1), while enhancing the sentence against the appellants before it.
And lastly, it was contended that in any view of the matter, in the circumstances of this case, the sentence of 10 years rigorous imprisonment is too severe.
In our opinion, there is no substance in any one of these contentions.
(1) ; 771 The main point on which the special leave was granted is the question of the competence of the High: Court to impose a higher sentence than that which could have been imposed by the learned Assistant Sessions Judge under section 31(3) of the Code of Criminal Procedure.
The learned trial judge could not have imposed a term of imprisonment exceeding 7 years.
The argument is that the High Court could enhance the sentence from 5 to 7 years and no more.
This argument is sought to be enforced by the consideration that it must be presumed that the learned Assistant Sessions Judge had been entrusted with the trial of the accused persons with the full knowledge that, on conviction, the accused persons could be punished with a term of imprisonment not exceeding 7 years.
In its revisional jurisdiction, the High Court could exercise its powers only to correct any mistakes made by the learned trial judge.
The High Court could, therefore, at the most, say that the trial judge should have inflicted the highest punishment, it had been empowered by the Code, to impose.
The High Court could not, at the revisional stage, it was further argued, insist upon a higher punishment being awarded by the trial court than 7 years ' rigorous imprisonment.
The power of the High Court to enhance a sentence, is contained in sub section
(1) of section 439 of the Code, which clothes the High Court with the powers of a Court of Appeal under the Code, as also the power to enhance the sentence.
Sub section
(1) itself, does not contain any words of limitation on the power to enhance the sentence.
Hence, the High Court could impose any sentence up to the maximum limit prescribed by the Indian Penal Code, for a particular offence.
In this case, therefore, the High Court could impose the maximum sentence of imprisonment for life under section 395, Indian Penal Code.
Is there anything in the Code of Criminal Procedure, which limits that power ? The fact that the trial of the case was entrusted to a court with a limited jurisdiction in the matter of sentence, could not be used to impose a limit on the power of a High Court to impose a proper and 98 772 adequate sentence.
That the Legislature did not intend to impose a limit on the power of the High Court to inflict an adequate sentence in a trial held by a Court of Session, is made clear by the provisions of sub section
(3) of section 439, Criminal Procedure Code, which is in these terms: " (3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence, which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.
" Section 32 of the Code lays down the sentence which magistrates may, ordinarily, impose, which is a term of imprisonment not exceeding two years, in the case of Presidency Magistrates and Magistrates of the first class (omitting all reference to fine).
But in certain specified areas, section 30 empowers the Government to invest a District Magistrate or a Magistrate, first class, with the power to try, as a magistrate, all offences not punishable with death.
A magistrate so empowered under section 30, may pass a sentence of imprisonment for a term of 7 years or less.
Thus, the powers of an Assistant Sessions Judge, under section 31(3) and of a magistrate specially empowered under section 30 to impose a sentence of imprisonment, are the same, the terms of section 31 (3) and section 34 being almost identical.
From the terms of section 439(3), it is clear that the only limitation on the power of a High Court to impose punishment is in respect of cases tried by magistrates other than those specially empowered under section 30, and thus, vested with higher powers of punishment under section 34.
Sub section (3) aforesaid, does not impose any limits on the powers of the High Court in cases dealt with by a magistrate specially empowered under section 30.
Hence, in such a case, the High Court has the power to impose a sentence higher than that which could have been imposed by such a magistrate.
That sub section has no reference to a trial held by a Court of Session.
If the High Court can enhance the sentence beyond 773 the maximum sentence which could be awarded by a magistrate specially empowered under section 30, and acting under section 34, there is no reason to hold that the High Court 's power in respect of enhancing the sentence in a trial held by an Assistant Sessions Judge, should be limited in the way suggested on behalf of the appellants.
Sub section (3) of section 439, thus, makes it clear that there is no limitation on the power of the High Court to enhance a sentence to the maximum prescribed by the Indian Penal Code, except in cases tried by magistrates other than those especially empowered under section 30, Criminal Procedure Code.
The learned counsel for the appellants very properly informed us that there are some reported decisions of some of the High Courts which have gone against his contention, and that there is no decision which has taken a view; in support of his contention.
In our opinion, there is no provision in the Code of Criminal Procedure, which limits the power of the High Court in the way suggested on behalf of the appellants, and there are no reasons which militate against the decision of the High Courts taking that view.
The case relied upon on behalf of the appellants in support of their second contention (Bed Raj vs The State of Uttar Pradesh (1)), also seems to point to the same conclusion as will appear from the following observations at p. 584: " Now, though no limitation has been, placed on the High Court 's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along wellknown judicial lines.
" On the second contention, there is no doubt that the question of sentence is a matter of discretion which has to be exercised in a judicial way, that is to say, the sentence imposed by the trial court should not be lightly interfered with and should not be enhanced.
unless the appellate court comes to the conclusion, on a consideration of the entire circumstances disclosed in the evidence, that the sentence imposed is inadequate.
In the instant case, the High Court has (1) ; 774 pointed out that the incidence of the offence of dacoity has gone up to such an extent that in proved cases of serious dacoity, like the one in hand, deterrent punishment is called for.
The High Court was, therefore, justified in imposing the sentence of 10 years ' rigorous imprisonment.
In view of the circumstances disclosed in the case, as indicated above, it cannot be asserted that the sentence as enhanced by the High Court is excessive.
The appeal is, accordingly, dismissed.
Appeal dismissed.

summary/full:
The appellants were tried before an Assistant Sessions judge for the offence of dacoity under section 395 Indian Penal Code.
Under 3.
31(3) Code of Criminal Procedure, (as it then stood) the Assistant Sessions judge could award a maximum sentence of seven years rigorous imprisonment.
He convicted the appellants and sentenced them to five years rigorous imprisonment each.
The appellants appealed to the High Court, and the High Court, in its revisional jurisdiction, issued a notice to the appellants for enhancement of sentence.
The High Court dismissed the appeal and enhanced the sentence to ten years rigorous imprisonment.
Held, that the High Court had, in its revisional jurisdiction under section 439 Code of Criminal Procedure, the power to enhance the sentence beyond the limit of the maximum sentence that could have been imposed by the trial Court.
Bed Raj vs The State of Uttar Pradesh, ; , referred to.


judgement:
ivil Appeal No. 103 of 1975.
From the Judgment and Order dated 19.4.1974 of the Patna High Court in Taxation Case No. 21 of 1970.
S.K. Dhingra and K.B. Rohtagi for the Appellants.
D .N. Goburdhan and D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave.
Challenge herein is to the decision of the Patna High Court rendered on a reference under Section 33(1) of the Bihar Sales Tax Act, 1959.
The following question was referred to the High Court for its opinion, by the Commercial Taxes Tribunal of Bihar: 1049 "Whether in the facts and circumstances of the case, the direction of the Tribunal to ascer tain the price of the containers (gunny bags) of wheat products sold for an all inclusive price under the provisions of the Roller Mills Wheat Products (Price Control) Order, 1964, for taxing the same at a higher rate of 4 1/2 % is legally valid? For the year 1964 65, the assessee, a registered dealer, under the Bihar Sales Tax Act returned a gross turnover of Rs.53,39,981 which was accepted by the assessing officer.
He determined the taxable turnover at Rs.52,79,962 representing sale of wheat products taxable at 2 per cent.
He found that the dealer had sold gunny bags in which wheat products had been packed and determined its turnover at Rs. 1,37,150 and assessed the same at 4 1/2 %.
The First Appellate Authority on assessee 's appeal held: "The learned Assessing Officer was not justi fied in adding back the price of container in the gross turnover.
What he should have done is to tax a portion of the taxable turnover at a different rate or in other words out of the turnover taxable under the Bihar Sales Tax Act, the price of bags calculated @ Rs.
O.70 paise per hundred kilogram should have been deducted and taxed @ 1/2%.
The remaining was to be taxed @2% The dealer filed a Revision before the Tribunal and contended that the demand of sales tax payable at different rates on the calculated turnover of gunny bags was not at all warranted as no price had been charged for the contain ers.
The Tribunal found: "(1) The dealer transferred the property in the gunny bags, the packing material, to the purchasers f:or price.
(2) The price of the gunny bags was included in the consolidated rates of price charged by the dealer.
(3) There was an implied agreement for the sale of gunny bags between the dealer and the different purchasers to whom the wheat products were supplied.
(4) The transfer of gunny bags was impliedly covered by the contract of sale with regard to the wheat products.
1050 On these findings the Tribunal held: "We hold that the learned lower courts were justified in levying tax at a different rate on the turnover on account of sale of gunny bags in which the wheat products were sold.
" It further found: "The learned Deputy Commissioner has given a direction for determination of the turnover on account of sale of gunny bags.
On being asked the applicant accepted that the accounts maintained by him would reveal the exact number of gunny bags used in the trans action of sale under consideration as also the price of the same.
Hence we direct in modifi cation of the orders passed by the learned Deputy Commissioner in this behalf that the learned Assessing Officer should ascertain from the accounts, the turnover on account of sale of gunny bags as container of wheat products during the period under consideration and assess tax thereon at the prescribed rate of 4 1/2 %.
The balance turnover shall be assessed at 2%" Reliance was placed on the provisions of clause (3) of the Roller Mills Wheat Products (Price Control) Order, 1964.
That clause provides: "3.
Maximum ex mill prices of wheat products.
"No owner or other person in charge of a roller mill shall sell, or offer for sale, ex mill any of the wheat products specified in column 1 of the Schedule II to this Order ( a ) . . . . . . . . . (b) In the State of Maharashtra (excluding Greater Bombay) and in any other State (not being a State specified sub clause (a), to which this Order applies, at a price exceeding the price specified against the clause 3 thereof.
Explanation : The prices referred to in this clause are: (i) Exclusive of: 1051 ( a ) . . . . . . . . . ( b ) . . . . . . . . . (ii) for net weight (inclusive of the cost of the bag), but where wheat products are sold in cloth bags in quantities of 40 kgs.
net, 20 kgs.
net and 10 kgs.
net, a sum of 70 np.
37 np.
and 19 np.
respectively, towards the cost of the cloth bag may be charged in addition to the said prices.
" In our view, the Tribunal rightly came to the conclusion that there was implied agreement of sale of the gunny bags.
Admittedly gunny bags are a different commodity and sale thereof is assessable to tax at 4 1/2 %.
It is not disputed that appellant bought gunny bags for packing wheat products for the purpose of sale.
The Control Order contemplates a net weight which means that the weight of the bag is includ ed in the price to be charged by the dealer.
Under the explanation when packing is done in cloth bags, a higher rate is admissible.
The scheme clearly suggests that the price of gunny bags is inclusive and where cloth bag is used, a higher price over and above what has been provided for ordinary containers is permitted.
This Court in Commissioner of Taxes vs Prabhat Marketing Company Ltd., 19 STC 84 has held: "In Hyderabad Deccan Cigarette Factor) ' vs The State of Andhra Pradesh, (17 STC 624) it was held by this Court that in a case of this description what the Sales tax Authorities had to do was to ask and answer the question whether the parties, having regard to the circumstances of the case, intended to sell or buy the packing materials or whether the subject matter of the contracts of sale was only an exempted article (here exigible to tax at redical rate), and packing materials did not form part of the bargain at all, but were used by the sellers as a convenient and cheap vehicle of transport.
" In that decision it was further pointed out that the ques tion as to whether there was an agreement to sell packing material was a pure question of fact depending upon the circumstances found in each case.
The Tribunal and the High Court have recorded a clear finding that there was an im plied contract for sale of the gunny bags along with the products contained therein.
1052 In this Court, the assessee filed an affidavit and produced a communication purporting to be of the Regional Director (Food), Eastern Region, Government of India, dated July 23, 1957.
This not being the part of the record and the affidavit having been filed at a belated stage has got to be rejected.
There is no scope to dispute the assessability of sales tax on the turnover of gunny bags.
This appeal fails and is dismissed.
Parties are directed to bear their own costs.
A.P.J. Appeal dismissed.

summary/full:
For the year 1964 65, the assessee, a registered dealer, under the Bihar Sales Tax Act, 1959 returned a gross turn over of Rs.53,39,981 which was accepted by the Assessing Officer.
He determined the taxable turnover at Rs.52,79,962 representing the sale of wheat products taxable at 2%.
He found that the dealer has sold gunny bags in which wheat products had been packed and determined its turnover at Rs.1,37,150 and assessed the same at 4 1/2%.
The First Appellate Authority on assessee 's appeal held that the Assessing Officer was not justified in adding back the price of container in the gross turnover.
What he should have done is to tax a portion of the taxable turnover at a different rate or out of the turnover taxable, the price of bags calculated at the rate of 70 paise per 100 kilogram should have been deducted and taxed at the rate of 4 1/2%.
The remaining was to be taxed at the rate of 2%.
In the revision before the Tribunal the assessee con tended that the demand of sales tax payable at different rates on the calculated turnover of gunny bags was not at all warranted as no price had been charged for the contain ers.
The Tribunal held that the lower Courts were justified in levying tax at a different rate on the turnover on ac count of sale of gunny bags in which the wheat products were sold and directed that the Assessing Officer should ascer tain from the accounts, the turnover on account of sale of gunny bags as container of wheat products during the period under consideration and assess tax thereon at the prescribed rate of 4 1/2%.
The balance turnover shall be assessed at 2%.
In the reference the High Court affirmed this view.
Dismissing the appeal, 1048 HELD: 1.
The Control Order contemplates a net weight which means that the weight of the bag is included in the price to be charged by the dealer.
Under the explanation when packing is done in clothbags, a higher rate is admissi ble.
The scheme clearly suggests that the price of gunny bags is inclusive and where cloth bag is used, a higher price over and above what has been provided for ordinary containers is permitted.
[1051C D] Commissioner of Taxes vs Prabhat Marketing Company Ltd., 19 STC 84, referred to. 2.
The Tribunal rightly came to the conclusion that there was implied agreement of sale of the gunny bags.
Admittedly, gunny bags are a different commodity and sale thereof is assessable to tax at 4V1%.
It is not disputed that appellant bought gunny bags for packing wheat products for the purpose of sale.
[1051C] 3.
The question as to whether there was an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case.
[1051G H] 4.
The Tribunal and the High Court in the instant case, have recorded a clear finding that there was an implied contract for sale of the gunny bags with the products con tained therein.
[1051H]