judgement:
VIL Appeal No. 3717 of 1986.
From the Judgment and Order dated 12.9.1986 of the Gauhati High Court in Civil Rule No. 428 of 1986.
Ms. Lira Goswami and D.N. Mishra for the Appellant.
Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the Respondent.
The Judgment of the Court was delivered by PG NO 510 RAY, J.
The respondent, Rev. Fr.
Paul Petta was appointed as Principal of St. Anthony 's ' College by Salesian Provincial on April 16, 1982 and on the recommendation of the Governing Body of the College, the Director of Public Instruction, Meghalaya, Shillong accorded approval to his appointment with effect from 1st May, 1982.
St. Anthony 's College was established by Salesian Congregation, a Catholic religious Society of imparting general education.
It is a religious minority institution under Article 30 of the Constitution of India and it is receiving Government grants in aid since the scheme of deficit grant in aid colleges was intoduce by the government of Assam in 1959.
After creation of Meghalaya it has been grants in aid under the same system as adopted by th Government of Meghalaya.
By Memo No. EDN.
75/74/280 dated 4th November, 1976 the Government of Meghalaya, Education Department conveyed to the Director of Public Instucion, the sanction of the Government of Meghalaya to the implementation of the Instruction.
scales of pay, as indicated thereunder to all the deficit college teachers including the Principals, Professors in the State with effect from 1st April, 1975.
By Memo No. EDN> 75/74/51 dated December 7, 1979 the Government of Meghalaya laid down the procedure for appointment of Principals, Vice Principals and Lectuers and other staff in Religious Minority Colleges in the State with refernce to Article 30 of the Constitution.
Paragraph 1 which is relevant is quoted below: "In the matter of appointment of Principals and Vice Principals in the colleges belonging to th religious minorities, the governing Body of the College concerned shall select a Principal and Vice Principal from a panel of names submitted by th sponsoring Church Organisation concerned subjects to th condition that the educational qualifications of the persons selected shall be in accordance with the conditions laid down in the Government 's letter No. EDN/75/74/280 dated 4.11.76.
Other conditions in respect of age of super annuation etc.
shall be as prescribed by the State Government from time to time.
" The respondent after his appointment had been working as Principal of the College.
While working as such, differences arose between him and the church authorities more particularly the appellant Nos. 2,3 and 4 i.e. the President and the members of the Government Body of the College regarding certain matters relating to the management of the college.
PG NO 511 On December 14, 1985, Fr.
John Kalapura, SDB, the Appellant No. 2, President, Governing Body of St. Anthony 's College and Salesian Provincial sent a letter to the respondent intimating him of his transfer from the power of Principal of the College.
The letter states : "After due consultation with the Provincial Council I am transferring you from the post of Principal of St. Anthony 's College, Shillong and am appointing Rev. Fr. J. Kenny as Acting Principal of the same college with effect from 2 f. 12. 85.
Kindly hand over the charge to Rev. Fr. J. Kenny by 21st Dec. 1985.
" On receiving the said letter the respondent on that very day sent a letter to the appellant No. 2 stating that he had no authority to appoint or dismiss or transfer the Principal of the College as the Principal and Vice Principal in the College belonging to the minorities are to be selected by the Governing Body and to be approved by the Director of Public Institution in accordance with Government instructions mentioned in its letter dated December 7, 1979.
The respondent sent a letter to the Director of Public Instruction (in short D.P.l.) intimating that he had been removed from the Principalship of St. Anthony 's College by the appellant No. 2, the Salesian Provincial of Cauhati Province and Rev. Fr.
Kenny had been appointed as the Acting Principal and requested him to intimate if the Government has given any power to Sponsoring Authority for St. Anthony 's College in contravention of the Memo dated December 7, 1976.
The D.P.I. has informed the respondent by his letter dated 23rd December, L985 that "this office is not aware of any such power given to the Church Authority concerned".
The Salesian Provincial by its letter dated March 7, 1986, proposed the name of Fr. Stiphen Mavely as Principal of the said College.
The Governing Body at its meeting held on 17th March, 1986 resolved that Fr.
Stephen Mavely be appointed Principal cum Secretary of St. Anthony 's College with effect from March 10, 1986.
The said appointment was approved by D.P.l., Meghalaya with effect from 10th March, 1986.
The respondent filed a suit being T.S. No. l (T) of L986 in the Court of the Assistant District Commissioner with a prayer for temporary injunction.
An interim order of maintaining status quo was obtained.
But as in the meantime the office of the Principal was and taken possession of, the suit was withdrawn and a writ petition being Civil Rule No. PG NO 512 428 of 1986 was filed challenging that Salesian Provincial has no power to transfer the respondent, viz. the Principal of the College to Don Bosco Technical School, Maligaon, Gauhati.
The respondent was appointed as Principal of the said College by the Governing Body of the College with the approval of D.P.I. and so the Governing Body with the approval of D.P.I. can transfer him under the statutory rules.
It was also contended that the respondent acquired a satutory right to hold the post of Principal till his attaining the age of super annuation.
The purported order of transfer is illegal and without jurisdiction It has also been contended that the purported order of transfer tantamounts to removal of the respondent from the post of Principal and the said order being issued without recording any reason and without giving any opportunity to show cause to him is arbitrary, illegal and mala fide.
The purported order of transfer is thus violative of principles of natural justice and as such it is liable to be quashed.
An affidavit in opposition was filed on behalf of appellant Nos. 2, 3 and 4 denying that the administration and management of the said college including the appointment, discipline etc.
are governed by the Assam Aided College Management Rules.
1965, Assam Aided College Employees ' Rules, 1960 for appointment of Principals and Vice Principals and conditions of grants in aid aided colleges in 1956.
It has been stated that St. Anthony 's College is a minority institution and the Salesians Provincial is the only Competent Authority to make any appointment to the rank of Principal in the said College and no advertisement before making any appointment is necessary.
This relaxation of restriction in regard to Minority College availing of deficit grants in aid has been made by Memo dated December 7, 1979.
The petitioner is a member of the Salesian of Don Bosco and his appointment to the said post of Principal could never have been permanent.
As a priest he is transferable from time to time different institutions of the Society.
The Constitution of the Salesians of Don Bosco provides that such transfer is binding on the petitioner as a priest and a member of the Salesian Don Bosco.
The transfer of the petitioner and other priests are matters of normal routine as members of Salesian Society.
It has also been stated that any money drawn by a priest has to be given to the order of Salesian of Don bosco and no priest maintains any private fund.
It is the responsibility of the Salesian Society to look after the needs and requirements of any member of the community and is responsible for the upkeep of such members.
The petitioner has taken a vow of obedience when he was ordained as a priest and was admitted as a member of Don bosco.
The petition is liable to be dismissed as no statutory right of the petitioner has been violated.
PG NO 513 After hearing the learned counsels for the parties as well as considering the facts and circumstances the High Court held that the Governing Body of the College was not a Statutory Body.
The Court further held that: "To our mind there is violation of the principles of natural justice in dislodging the petitioner from his post of Principal without hearing him." The High Court further held that: "So long as the members of the Salesian Body obeyed the rules and regulation of the Body, accepted transfers in good spirit this Court would have nothing to do.
But if the petitioner having been appointed as Principal feels aggrieved that his transfer is not in accordance with the rules of the body and comes to the Court, this Court has to look and listen to him.
By appointing the petitioner as Principal of the College, the organisation has exposed the petitioner to the judicial gaze of the Court and if the petitioner makes grievances, it is for the Court to redress it." ". .
The petitioner was appointed by the Governing Body and that was subject to the approval of the D.P.I. There is no reason as to why his removal from the post of the Principal should not have been made by the Governing Body and subject to the approval of the D.P.l.
However, the College Governing Body has got no control over the School whereto the petitioner has been transferred.
" The High Court therefore made the rule absolute to the extent indicated in the directions quoted below: "We accordingly keep the impugned order in abeyance forthwith and direct the Governing Body of the College to give the petitioner an opportunity to show cause as to why he should not be transferred as stated in the impugned transfer order dated 14.12. 1985 (Annexure 10) and after hearing the petitioner on the cause shown, shall decide the matter of transfer within one month from receipt of this order, and act according to the decision so taken and in PG NO 514 conformity with the Government instructions (Annexure 8).
If the impugned order is revoked, the petitioner shall automatically be reinstated in his post of principal of the College, and shall be given all the emoluments and benefits thereof.
The Respondent No. 11 shall correspondingly cease to be Principal of the College, but shall not be disentitled to the pay and allowances for the services already rendered by him to the College prior to this date.
In case the Governing Body decides to give effect to the impugned transfer order it shall revive and the petitioner shall be free to pursue his remedies under the law.
In the interest of fair hearing and reasonable opportunity, we direct the Governing Body to make available to the petitioner all the records which he may need for the purpose of his defence; the petitioner shall, not, however function as Principal during the period of one month pending decision.
The decision shall be taken within a month from today.
" Aggrieved by the said order made in Civil Rule No. 428 of 1986, a special leave petition has been filed by the Governing Body and some of the members of the Governing Body of the College.
After hearing the learned counsel for the parties special leave was granted.
The St. Anthony 's College is admittedly a minority institution within the meaning of Article 30 of the Constitution and as such the Salesian Don Bosco Society is competent to administer the said college.
This College is getting deficit grants in aid from the Government of Meghalaya and the instructions contained in Memo No. EDN.
75/74/S1 issued by the Government of Meghalaya on 7th December, 1979 laying down the procedure of appointment of Principal, Vice Principal, Lecturers and other staff in religious minority colleges in the State will apply to this Institution.
The respondent who was a lecturer of St. Anthony 's College was sponsored by Salesian Provincial, the appellant No. 2 for appointment of Principal of the College and the Governing Body of the College recommended the same to the Director of Public Instruction, Meghalaya for approval as required under the above instructions.
The D.P.I. duly approved the appointment of the respondent, Rev. Fr. Paul Petta as Principal of the College with effect from May 1, 1982.
The appellant worked as Principal of St. Anthony 's College since the date of his appointment till the impugned order of transfer made by the appellant No. 2 Rev. Fr. John Kalapura as Salesian Provincial from the post of Principal of the said College to the post of Teacher, Don Bosco Technical School, Maligaon, Gauhati on December 21, PG NO 515 1985 without asking him to show cause against the order of transfer and without giving him any opportunity of hearing.
It has been urged that the respondent being ordained as a priest of the society has taken vow of servie to any post where he will be asked by the Society to work.
As a priest he was sponsored by the Church Authority for appointment as Principal and the Governing Body of the College also recommended his appointment as made by Salesian Provincial for approval.
The petitioner cannot have any grievance against the order of transfer as he has no statutory right to remain as Principal of the College.
It has also been contended by refering to certain Articles of Constitution of the Society of St. Francis de Sales that the respondent being ordained as priest of the Society took the vow of service and the Salesian Provincial can transfer him to serve in any of institutions of the Society as his service is transferable.
It has also been submitted that as a priest the respondent cannot keep any money with him and whatever salary he gets will have to be given to the Society which will look after him and meet his needs.
The respondent question the order of transfer.
The respondent so long as he to the order of transfer and complies with it, the court has nothing to do.
But if he does not comply with it and questions it before the Court, the Court will have to consider his grievances and to decide if the impugned order of transfer is legal and valid.
The respondent was appointed as Principal of St. Anthony 's College by the Governing Body of the College and the same was duly approved by the Director of Public Instruction, Meghalaya in accordance with the procedure laid down in the Government 's letter dated December 7, 1979.
The impugned order of transfer purports to transfer the respondent from the post of Principal of the College to the post Teacher in the Don Bosco Technical School at Maligaon within the State of Gauhati over which the Governing Body of St. Anthony College has no control.
This order of transfer has prejudicially affected the status of the respondent as Principal of St. Anthony 's College.
The main question that arises for consideration in this appeal is whether the Salesian Provincial, the appellant No. 2, is competent to transfer the petitioner who has been appointed as Principal of the College by the Governing Body of the College and approved by the D.P.I. as per Government instructions applicable to minority college.
There is no dispute that the respondent is a member of Salesian Don Bosco Society as a priest.
It is also not in dispute that as a priest of the society h was sponsored by the Church Authorities for the post of Principal of th College and the Governing Body of the College recommended to the D.P.I. for approval of his appointment as Principal of the College.
In such PG NO 516 circumstances it is required to be considered whether the Salesian Provincial has power to transfer him from the post of Principal of the College to the post of Teacher in a Technical School of the Society.
It is apparent from the aforesaid Government instructions that the Principal whose appointment has been duly approved by the D.P.I. can work as Principal in the minority college till he attains the age of super annuation as determined by the Government.
The impugned order of transfer in substance amounts to removal of the respondent from the post of Principal of the College.
It has been held by the High Court that the respondent has been condemned unheard as he was not given any opportunity to show cause for the purported order of transfer whih seriously prejudiced him.
The principles of natural justice and fair play mandate that in administrative actions the audi alterum partem rule is applicable and the person affected by the order to be given an opportunity of hearing against the purported order apart from the question whether the Assam Aided College Management Rules, l965 and Assam Aided College Employees ' Rules.
1965 are applicable to minority institutions.
We do not consider it necessary for the purposes of this appeal to make any observations on the question whether the Assam Aided College Management Rules, 1965 and Assam Aided College Employees ' Rules, 1960 are applicable to minority institutions or to consider the question whether the rules concerning the terms and conditions of appointment as well as prescribing qualification for appointment the post of lecturers and principals as well as prescribing condition for service are regulatory in nature and they do not contravene the fundamental right guaranteed under Article 31 of the Constitution to the minority institutions at has been observed in the case of Frank Anthony Public School Employees Association vs Union of India & Ors., [1987] I SCR 238.
It has been contended on behalf of the learned counsel for the appellants that the appellant No. 2, Salesian Provincial is the appointing authority of the respondent and as such he has the right to make the impugned order of transfer though there is nc, express provision conferring such power.
The case of Kutoor Vengayil Rayarappan Nayanar vs Kutoor Vengayil Valia Madhavi Amma and Ors., AIR 1950 (Federal Court) 140 has been cited at the bar for the proposition that the power to terminate flows naturally and as a necessary sequence from the power to create.
This proposition is a well established proposition but the question is whether the Salesian Provincial is the appointing authority of the respondent or the Governing 8body of the said College appointed the respondent and recommended his appointment for approval to the D.P.I. As stated earlier D.P.I. pursuant to the recommendation of the Governing Body approved the appointment of the respondent as PG NO 517 Principal of the said College.
So this question has to be gone into and determined by the Governing Body as has been directed by the order of the High Court.
It has been contended that the impugned order of transfer has seriously affected the status of the respondent as Principal of the College and this has been made by the appellant No. 2, Salesian Provincial without giving him any opportunity of hearing.
Now in so far as the Respondent is transferred in his capacity as priest from one division of the religious order to another the matter pertains to the internal management of the religious order and it is not justiciable.
However, in so far as the order of transfer has been made by the Governing Body of the St. Anthony 's College transferring the respondent from the post of Principal of the College to the post of Teacher of Don Bosco Technical School which is in another State the respondent can complain against it.
Since the respondent has not been given any opportunity of hearing against the purported order of transfer outside the State which seriously affected his status, the High Court, in the facts and circumstances of the case has directed the Governing Body of the College to give the respondent an opportunity to show cause against the impugned order of transfer dated 14.
1985 and to give him a hearing and decide the transfer matter in accordance with law.
The judgment and order passed by the High Court in the circumstances of the case cannot be faulted.
We therefore, uphold the order passed by the High Court and the appeal is dismissed with costs quantified at Ks.
5,000.
S.L. Appeal dismissed.

summary/full:
The respondent had been appointed Principal of St. Anthony 's College by Salesian Provincial and his appointment had been approved by the Director of Public Instruction (D.P.I.) on the recommendation of the governing body of the College.
Due to differences between the Principal and the Church authorities, and particularly, the appellants Nos 2, 3 and 4, i.e. the President and the members of the governing body of the College, the appellant No. 2, the President of the governing body and the Salesian Provincial intimated to the respondent of his transfer from the post of Principal of the College.
The respondent contended that the appellant No. 2 had no authority to appoint or dismiss or transfer the Principal, as the Principal of the College belonging to minorities was to be selected by the governing body and to be approved by the D.P.I. in accordance with the government instructions contained in its Memo dated December 7, 1979.
But the Salesian Provincial proposed another person as Principal, to which the governing body agreed and his appointment was approved by the D.P.I.
The respondent filed a writ petition in the High Court, contending that the Salesian Provincial had no power to transfer him, as he had been appointed Principal by the governing body of the College with the approval of the D.P.I., and so the Governing Body with the approval1 of the D.P.I. could transfer him under the statutory rules.
and that the order of transfer, having been passed without giving him any opportunity to show cause, was arbitrary, illegal and mala fide and violative of the principle of natural justice.
The High Court held that there was no reason why the respondent 's removal from the post of Principal should not PG NO 507 PG NO 508 have been by the governing Body and subject to the approval of the D.P.I., and directed inter alia that the impugned order of transfer be kept in abeyance and that the governing body would give the respondent an opportunity to show cause why he should not be transferred as stated in the impugned transfer order, and decide the matter of transfer after hearing him.
Aggrieved by the order of the High Court, the governing body and others moved this Court by special leave.
It was contended by the appellants inter alia that the respondent could not have any grievance against the order of transfer as he had no statutory right to remain as Principal and that he, being ordained as priest according to the Articles of the constitution of the Society of St. Francis de Sales, the Salesian Provincial could transfer him to serve in any of the institutions of the Society as his service was transferable, and he could not question the transfer.
Dismissing the appeal, the Court, HElD: The St. Anthony 's College was a minority institution within the meaning of Article 30 of the Constitution, and the instructions contained in the Government Memo dated 7th December, 1979, laying down the procedure of appointment of Principal, vice Principal, etc, in religious minority Colleges in the State would apply to this Institution.
[514E F] The impugned order of transfer was passed without asking the respondent to show cause against the transfer and giving him an opportunity of hearing.
The impugned order purported to transfer the respondent from the post of Principal of the College to the post of Teacher in a school.
This order of transfer prejudicially affected the status of the respondent.
[5I5E F] The main question for consideration was whether the Salesian Provincial, appellant No. 2 was competent to transfer the respondent who had been appointed by the governing body of the college and approved by the D.P.I. as per the Government instructions applicable to a minority college.
[515G] According to the Government instructions aforesaid, the Principal whose appointment had been approved by the D.P.I., could work as Principal in the minority college till the age of superannuation as determined by the Government.
The impugned order of transfer amounted to removal of the respondent from the post of Principal.
The principles of natural justice and fair play mandate that in administrative actions the audi alteram partem rule is applicable; the person affected by the order had to be given an opportunity PG NO 509 of hearing against the purported order apart from the question whether the Assam Aided College Management Rules and Assam Aided College Employees, Rules are applicable to minority institutions.
[516B D] The appellants contended that Salesian Provincial, appellant No. 2, was the appointing authority of the respondent and as such he had the right to make the impugned order of transfer though there was no express provision conferring such a power.
[5l6F] The question was whether the Salesian Provincial was the appointing authority of the respondent, or the governing body of the College appointed the respondent and recommended his appointment for approval to the D.P.I.
The D.P.I. had approved the appointment of the respondent pursuant to the recommendation of the governing body.
So this question had to be gone into and determined by the governing body, as had been directed by the order of the High Court.
In so far as the respondent was transferred in his capacity as a priest from one division of the religious order to another, the matter pertained to the internal management of the religious order and it was not justiciable, but in so far as the order of transfer had been made, transferring the respondent from the post of Principal of the College to the post of Teacher of a school in another State, the respondent could complain against it.
Since the respondent had not been given an opportunity of hearing against the purported transfer which seriously affected his status, judgment of the High Court which directed the governing body to give the respondent an opportunity to show cause against the impugned order of transfer and to give him a hearing and decide the transfer matter in accordance with law, could not be faulted.
[516G H; 517A D]


judgement:
N: Criminal Appeal No. 16 of 1950.
Appeal by special leave from the judgment and order dated 8th May, 1947, of the High Court of Judicature at Allahabad (Sankar Saran and Akbar Hussain JJ.) in Crimi nal Appeal No. 80 of 1946.
S.P. Sinha (G.C. Mathur, with him), for the appellant.
K.B. Asthana, for the respondent.
December 20.
The Judgment of the Court was deliv ered by FAZL ALl J.
This is an appeal against a judgment of the High Court of Judicature at Allahabad reversing the decision of the Sessions Judge of Aligarh in a criminal case.
The appellants were tried by the Sessions Judge on charges under section 302 read with section 149, section 148, sections 325 and 326 read with section 149, and section 201 of the Indian Penal Code, but were acquitted.
On appeal by the State Government, the High Court reversed the Sessions Judge 's decision, and convicted the appellants and sentenced them to transportation for life under section 302 read with section 149, to five years ' rigorous imprisonment under sections 325 and 326 read with section 149, and to two years ' rigorous imprisonment under section 147 of the Indian Penal Code, all the sentences being made to run concurrently.
The appellants thereafter applied to the Privy Council for special leave, which was granted on the 28th October, 1947.
The facts which were put before the court on behalf of the prosecution may be briefly stated as follows.
There is a plot No. 518 in Nagaria Patti Chaharum, village Shahgarh in the district of Aligarh which is about 30 bighas in area and is known as the "teesa" field.
This plot was the "sir" land of several landlords including Mst.
Bhagwati Kuer and Ratan Singh and had been let out to certain tenants.
In 1944, Mst.
Bhagwati Kuer, Ratan Singh and their co sharers filed a suit for the ejectment of the tenants, and the 195 suit was decreed.
On the 7th June, 1945, possession over the plot was delivered by the Amin to Surajpal Singh, the first appellant, who was the mukhtar i Am of Mst.
Bhagwati Kuer.
It was contended on behalf of Surajpal Singh that he took possession on behalf of all the co sharers, but certain statements made by Ratan Singh in his evidence do not sup port this contention.
However that may be, it appears that on the 17th June, 1945, Ratan Singh reported to the police that he had sent his labourers to irrigate the "teesa" field, and while they were irrigating it Surajpal Singh and certain other persons came and tried to stop the irrigation and damaged the ploughs of Ratan Singh.
On the 18th June, at about 7 A.M., the occurrence which is the subject matter of the present trial took place.
The prosecution version of the occurrence was that while Ratan Singh 's labourers were working in the field under the supervision of one Behari Singh, the appellants with many other persons came armed with guns, spears and lathis, and some of the members of the appellants ' party entered the field, cut off the nosestrings of the bullocks and abused and assaulted the labourers, most of whom ran away.
Thereupon, Deva Sukh, who was there to supply water to the labourers, protested and was beaten with lathis.
At that point of time, Behari Singh and 10 to 15 persons came and fight took place between the parties.
During the fight, one of the accused persons, Rajendra Singh, a young lad, fired his gun twice in the air, and thereafter Surajpal Singh took the gun from him and fired two shots hitting Nawab Mewati, who died instantaneously, and Behari Singh, who died later in the day.
Three other persons, Zorawar, Rajpal and Lakhan also received gun shot injuries.
Sometime later, Surajpal Singh along with the other three appellants came to the spot and removed the dead body of Nawab in a cart.
The body was thrown into a river and was recovered on the 20th June, 1945.
After investiga tion 25 persons including the appellants were sent up for trial.
After hearing the evidence in the case, the Ses sions Judge delivered judgment on the 20th February, 1946.
196 He held that the "teesa" field was in the possession of Surajpal Singh, that Behari Singh and Ratan Singh 's men were aggressors and wished to take forcible possession of the field, that when resisted they had attacked the appellants ' party, that the person who fired the gun had done so in self defence and not with a view to killing Behari Singh and Nawab Mewati, and that the evidence adduced by the prosecu tion was so unsatisfactory that it was unsafe to convict the accused upon it.
As to the charge of concealing evidence of the offence of murder by the removal of the dead body of Nawab, the Sessions Judge expressed the opinion that in order to convict a person on that charge it must be proved that the offence, the evidence of which the accused is alleged to have caused to disappear had actually been com mitted, but since in the present case the charge of murder was not proved the accused could not be convicted for having caused disappearance of evidence connected with it.
The Judge also held that the evidence being unreliable the charge under section 201 of the Indian Penal Code had not been established beyond reasonable doubt.
The High Court delivered its judgment on the 8th May, 1947, allowing the appeal of the State Government.
Shortly stated, the conclusion arrived at by the High Court was that Ratan Singh had as much right to the possession of the field as Bhagwati Kuer, that both parties were trying to take exclusive possession of the field, that both parties were prepared for all contingencies to vindicate and enforce their rights, and hence the question of possession was wholly immaterial and no right of private defence could be successfully pleaded by the appellants.
A perusal of the two judgments before us shows that while the Sessions Judge took great pains to discuss all the important aspects of the case and to record his opinion on every material point, the learned Judges of the High Court have reversed his decision without displacing the very substantial reasons given by him in support of his conclu sion.
The difference in the treatment of the case by the two courts below 197 is particularly noticeable in the manner in which they have dealt with the prosecution evidence.
We find that while the Sessions Judge took up the evidence of each witness and recorded his finding with regard to his credibility after discussing the minutest details of the evidence, all that the learned Judges of the High Court have to say about the prosecution evidence as a whole is as follows : "In Prag Dat 's case their Lordships observed: usual in cases of this kind the police have found it difficult to secure independent testimony of what did take place.
Those of the villagers who were present and looking on would probably by sympathy and bias be so attached to one or other of the disputing parties that it would be hopeless to get disinterested and reliable evidence from them. ' This difficulty the police find in most riot cases and this case is not free from it.
But as in Prag Dat 's case, in this case there are four witnesses, viz., Deo Sukh, Rori Singh, Ram Singh, and Ratan Singh, who could be characte rised as independent witnesses and they support the case for the prosecution, in the main.
In our judgment their testimo ny is on the whole worthy of credence and sufficient to justify the conviction of the respondents.
" In view of the summary treatment of the evidence by the High Court, we had to read the evidence adduced in the case with great care, and what we find is that the four witness es, whose evidence has been accepted by the High Court, are just the persons against whom very serious criticism was offered by the Sessions Judge.
Of these witnesses, Ratan Singh not being an eye witness may be ruled out.
As to the remaining witnesses, we are on the whole inclined to agree with the view expressed by the Sessions Judge.
According to the Sessions Judge, the manner in which Deva Sukh was brought into the picture and the circumstances attendant on his evidence, furnish strong reasons.
for rejecting the prosecution version.
What has been held is that the whole case of the prosecution 26 198 that Deva Sukh had received injuries in the course of the alleged occurrence was false and his injuries "were made up so as to create evidence of private defence" to be utilized by the prosecution to meet the charge of having caused injuries to the members of the appellants ' party.
It has been established that at least four persons on the side of the accused had received injuries.
Mahindarpal had received no less than 16 injuries, and his condition was serious for some time.
Karan Singh had 12 injuries, one of which was grievous.
Hari Singh had received 7 injuries including a grievous injury, and Nikka Singh also was injured, his injury having been noticed by the investigating sub inspec tor.
In the prosecution evidence, it was stated that many of the accused persons were armed with lathis and had used them, and it would be strange if it was not proved that any of the persons on their side had any injuries attributable to lathis.
It has been established that the four injured persons of Ratan Singh 's party, viz., Rajpal Singh, Lakhan Singh, Behari Singh and Zorawar Singh, had only gun shot wounds.
A serious question which arises in this case is at what stage the gun was used, and whether it was used in self defence after the members of the appellants ' party were assaulted with lathis or it was used before they were as saulted.
The prosecution witnesses had to admit that at first a gun was fired twice in the air and then the actual firing took place.
This version of the firing lends support to the defence story that the gun was fired in self defence when Ratan Singh 's men attacked members of the accused 's party.
The Sessions Judge has expressed the view that in order to meet the defence case the prosecution introduced the story of Deva Sukh having been assaulted with a lathi in the first instance so as to make the appellants ' party the aggressors, it being the prosecution case that Behari Singh and his men had used lathis in order to defend themselves.
In order to resolve the conflict in the cases of the parties and to get at the true picture, the 199 Sessions Judge went very minutely into the question as to whether there was trustworthy evidence about Deva Sukh having received any injury at all in the occurrence.
It seems to us that there is a formidable array of circum stances to support the conclusion ultimately reached by the Sessions Judge.
It appears that in the first information report there is no reference to Deva Sukh or to the injuries said to have been received by him.
The Sessions Judge has pointed out that there was a considerable interval of time between the occurrence and the lodging of the first informa tion report, and therefore it is surprising that the most important incident of the occurrence and the name of the most important witness was omitted in the report.
Again, no reference was made to Deva Sukh or to his injuries in the dying declaration of Behari Singh which was recorded by one Dr. Shankar Deo, and also in that of Lakhan Singh.
The Sessions Judge has further pointed out that the prosecution witnesses, Chokha, Prempal, Cheta and Gangola Singh, who were examined by the investigating officer on the 18th June, did not also refer to Deva Sukh.
The investigating sub inspector was informed of the injuries on Deva Sukh and his presence at the time of the occurrence for the first time on the 19th June, 1945, and Deva Sukh 's explanation for not appearing before him at the earliest opportunity was that he was frightened and had concealed himself in his house for about two days and had directed his relations not to inform the police of his presence.
He also stated that on his arrival in his house after the occurrence he did not inform his relations of what had happened.
Some of these matters might have been overlooked if there had been convincing evidence about his having actually received injuries, but we are satisfied that such evidence as is before us is extreme ly unsatisfactory and suspicious and we entertain grave doubts as to whether Deva Sukh received any injuries at all.
Dr. Shanker Deo, who examined Deva Sukh, is a retired Sub Assistant Surgeon practising in Kauiraganj, which is not far from village Shahgarh.
200 He admits that he had known Ratan Singh since his childhood, and when he was a child he used to be taught at the house of Ratan Singh by a teacher employed by Ratan Singh 's uncle.
He has stated that Deva Sukh had two bruises across the back of the middle of the left forearm, and one of them was grievous since the left ulna was fractured.
He further says that at the time of examination he did charge fees from Deva Sukh, that he was brought to him three days after the other injured persons, that when the latter group of persons came to him none of them told him that there was one more injured person to be examined, and that Deva Sukh was brought to him by Ratan Singh 's servant.
There are unsatisfactory fea tures in the evidence of this doctor relating to other matters which need not be referred to, but what is somewhat remarkable is that though there is a District Board Hospital at Jalali about four miles from Kauirganj, Deva Sukh did not obtain an injury certificate from the doctor in charge of that hospital.
Deva Sukh says that he did go to that hospi tal to have his injuries attended to, but there is no evi dence to corroborate this.
These facts as well as a number of other facts relied upon by the Sessions Judge do go to support his theory, and once it is held that the prosecution has to rely on fabricated evidence, it throws doubts on the entire case.
From the record, it appears that Surajpal Singh was the person who had been taking an active interest in the eject ment suit, and he was admittedly spending money.
Ratan Singh says that he had also paid money to Surajpal Singh towards the expenditure, but this is not probable because he and Surajpal had been on bad terms.
It is admitted that Suraj pal is the person to whom the Amin gave possession of the land, but in spite of this fact, Ratan Singh 's men started operations on the land ignoring Bhagwati Kuer, which Ratan Singh had no right to do, even assuming that the land was joint property.
If Behari Singh and the other men sent by Ratan Singh were trying to take exclusive possession of the land and had started 201 operations thereon, Surajpal Singh had every right to pro test, and if his men were beaten first, of which there are strong indications in the case, he was entitled ' to repel the attack in exercise of the right of private defence.
That Ratan Singh had made ample preparations through Behari Singh is quite clear.
Admittedly, there were a number of persons armed with lathis present at the scene on his behalf including outsiders like Nawab Mewati, who is said to have been a well known fighter, Zorawar and others.
As regards the remaining two witnesses, to whom the High Court has made reference, viz., Rori Singh and Pransukh, it seems to us that the High Court has overlooked the comments made by the Sessions Judge upon their evidence, some of which are of considerable force.
What has impressed us is that they were not independent witnesses and were not mentioned in the first information report as witnesses to the occurrence, and they were examined by the sub inspector as late as the 20th and 21st June, 1945.
After reading the two judgments, we see no reason why the opinion of the Sessions Judge regarding these witnesses should not receive the weight which should normally be attached to that of the trial court.
It is well established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquit tal was founded, but it is equally well settled that the presumption of innocence of the accused is further rein forced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.
On the whole, we are inclined to hold that the Sessions Judge had taken a reasonable view of the facts of the case, and in our opinion there were no good reasons for reversing that view.
The assessors with whose aid the trial was held, were unanimously of the opinion that the accused were not guilty, and 202 though 25 persons were placed on trial on identical evi dence, the State Government preferred an appeal only against 5 of them on the sole ground that the acquittal was against the weight of evidence on the record.
In the result, we allow the appeal, set aside the con viction and sentences of the appellants and acquit them of all the charges.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
It is well settled that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded.
But it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very sub stantial and compelling reasons.


judgement:
Appeal No. 39 of 1955.
Appeal from the judgment and decree dated August 28, 1953, of the Calcutta High Court in Appeal from Original Decree No. 97 of 1950 arising out of the judgment and decree dated April 27, 1950, of the Court of Second Sub Judge of Zillah Hooghly in Rent Suit No. 3 of 1949.
B. Bagchi and P. K. Chosh, for the appellant.
N. C. Chatterjee and D. N. Mukherjee, for the respondents.
March 24.
The following Judgment of the Court Was delivered by SINHA J.
The main controversy in this appeal on a certificate granted by the High Court of Calcutta, against the concurrent decisions of the courts below, centers round the true interpretation and effect of sections 15 and 16 of the Bengal Tenancy Act Act VIII of 1885 (hereinafter referred to as the Act).
The courts below have substantially decreed the plaintiff 's suit for arrears of rent in respect of a se patni tenure.
Hence, the appeal by the defendant.
The plaintiffs ancestor, Nirmal Chandra Benerjee, was a durpatnidar under the patnidar in respect of the tenure in question.
He died leaving him surviving, his three sons Satya Ranjan, Satya Jiban and Satya Kiron who became the durpatindars in respect of the tenure by succession, and there is no dispute that they were so mutated in the superior landlord 's office.
There was a partition suit between them in the court of the 228 subordinate judge at Alipur, being Title Suit No. 128 of 1946.
During the pendency of that suit, Promode Kumar Banerjee was appointed Receiver of the properties under partition.
Satya Jiban died during the pendency of the partition suit.
The exact date of his death does not appear in the record.
His heirs are: his widow Tusharika Debi and his two sons, Uptal Kumar Banerjee who is of unsound mind, and Ujjal Kumar Banerjee, a minor.
The Receiver aforesaid, instituted the suit out of which this appeal arises, for arrears of rent, against the first defendant, now appellant, in respect of the years 1352 to 1355 B. section He put the total claim inclusive of interest, at Rs. 40,000 and odd, which was subsequently reduced to Rs. 27,000 and odd.
It is not necessary to go into the details of the claim, because the amount decreed is no more in controversy.
To the suit for rent, being Rent Suit No. 3 of 1949, in the court of of Second Subordinate Judge, Hooghly, the heirs aforesaid of Satya Jiban were impleaded as proforma defendants Nos. 2, 2(a) and 2(b), and so were Satya Kiran and Satya Ranjan as defendants 3 and 4, respectively.
During the pendency of the rent suit, the partition suit was compromised, with the result that the durpatni tenure in question was allotted to Satya Jiban 's branch of the family.
Hence, the plaint was amended by an order of the court, dated July 25, 1949, by substituting the aforesaid heirs of Satya, Jiban as the plaintiffs in the place of the Receiver aforesaid, who was the original plaintiff and who was discharged from the record.
The suit was contested on a number of grounds, but it is now necessary only to refer to the plea in bar of the suit, namely, that the plaintiffs substituted as aforesaid, and by transposition from the category of proforma defendants to that of plaintiffs, were not entitled to sue for rent on the ground that they had not got themselves mutated in the place of their predecessors in title in the landlord 's records and that, therefore, this suit was barred under section 16 of the Act.
It is no more necessary to set out the facts bearing on the devolution of title to the property in question, 229 because that was not a controversy raised in the High Court, and the arguments in this Court were, therefore, confined to the technical plea aforesaid.
After hearing the parties, the learned trial judge decreed the suit for Rs. 25,000 and odd.
The first defendant preferred an appeal to the Calcutta High Court, and a Divisional Bench of that Court, after hearing the parties, directed a limited remand to the trial court, for taking additional evidence in proof of certain documents filed by the plaintiffs but not properly proved at the original trial.
The trial court was also directed to submit its findings on the question of the right of the plaintiffs to maintain the suit in view of the provisions of sections 15 and 16 of the Act.
After remand, the documents on proof were again, marked as exhibits I and 2, and the finding was returned by the trial court in due course.
After the receipt of the finding, the High Court heard the appeal once again and dismissed it with costs.
The appellant moved the High Court and obtained the necessary certificate.
Hence this appeal.
In this Court, it was argued on behalf of the appellant that the provisions of section 15 are mandatory; that those provisions not having been complied with, the bar imposed by section 16, operates against the plaintiffs, with the result that they are not entitled to recover the arrears of rent by suit.
Sections 15 and 16 are in these terms: " 15.
When a succession to a permanent tenure takes place, the person succeeding shall give notice of the succession to the landlord or his common agent, if any, in the prescribed form within six months from the date of succession, in addition to or substitution of any other mode of service, in the manner referred to in sub section (3) of section 12: Provided that where, at the instance of the person succeeding, mutation is made in the rent roll of the landlord within six months of the succession, the person succeeding shall not be required to give notice under this section." " 16.
A person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit or other proceeding any rent payable to him as 230 the holder of the tenure, until the duties imposed upon him by section 15 have been performed.
" It is common ground that the notice contemplated by section 15, was not given, but it was contended on behalf of the plaintiff respondents that the proviso to that section had been complied with inasmuch as evidence had been adduced by the plaintiffs and accepted by the courts below, that the superior landlords accepted rents from the plaintiffs and granted them rent receipts in respect of the tenure in question, after ordering mutation of their names in the rent ,roll.
In order to bring the case within the proviso to section 15, quoted above, the plaintiffs served a requisition on the landlords (I) Maharajadhiraj of Burdwan, and (2) Sri Ramlal Bandopadhyaya, to produce all papers in respect of mutation of names regarding the tenure in question.
Those documents were not produced, but the plaintiffs examined P. W. 2 an employee of the Burdwan Raj and P. W. 3 their own employee to prove the necessary mutation.
P. W. 2 deposed that the plaintiffs paid Rs. 101 as fee for mutation of their names in the office of the Maharajadhiraj of Burdwan and that they were mutated in respect of the 8 annas ' interest.
P. W. 3, similarly, proves mutation in the office of Ramlal Babu, in respect of the other 8 annas ' share.
In pursuance of the mutation, rent was paid and accepted by the landlords.
The necessary order of mutation and the rent receipt exhibits 2 and respectively were produced and placed on record after being duly proved Nothing has been brought out in the cross examination of these two witnesses to detract from the value of their evidence.
Naturally.
therefore.
the courts below had no difficulty in accepting their evidence corroborated by those pieces of documentary evidence.
But it was contended on behalf of the appellant that section 15 requires proof of mutation in the rent roll of the landlord, and the rent roll or its certified copy, should have been adduced in evidence, and in the absence of the primary evidence of mutation contained in the rent roll the plaintiffs have failed to prove the requisite mutation.
In our opinion, there is no substance in this contention.
The landlords rent roll 231 was not in the custody or control of the plaintiffs.
They served requisition on their landlords to produce those documents.
As those documents were not produced by the parties who would ordinarily be in possession of their rent rolls, the plaintiffs had no option but to adduce secondary evidence of the mutation, namely, the order sanctioning mutation and the payment of rent to the superior landlord, in pursuance of the sanction of mutation.
Like any other disputed fact, the factum of mutation in the landlords rent roll can be proved by the production of the original rent roll or by its certified copy, if available, and failing those, by other secondary proof of mutation.
In the circumstances, we are inclined to hold that in this case, the courts below were justified in coming to the conclusion that there was the necessary mutation of the plaintiffs in the landlords ' rent roll.
It was next contended that there is no proof that the mutation, even if made, had been made " within six months of the succession ".
It is true that the date of the death of Satya Jiban, plaintiffs predecessor in title, is not known, if that is the point of time with reference to which the six months ' period has to be calculated.
If the starting point of time is the date of the allotment of the tenure in question to the plaintiffs ' share as a result of the partition, we know that June 20, 1949, is the date of the compromise, as appears from the list of dates supplied by the counsel for the appellant.
The rent receipt, exhibit 1, is dated January 4, 1950, and the order of mutation passed by the Burdwan Raj, is dated January 20, 1950.
Apparently, therefore, the mutation must have been effected within six months from the date of the compromise, as a result of which the entire tenure was allotted to the plaintiffs ' share.
If was not argued be fore us that this was not a case of succession, as contemplated by section 15, namely, the death of the last holder on the happening of which event, the succession to the tenure opened in favour of the plaintiffs.
Satya Jiban had only one third share in the entire tenure by inheritance from his father.
The other two thirds shares had been inherited by his two brothers aforesaid.
Hence, strictly speaking, succession to only 232 the one third share of Satya Jiban, could open on his death.
But as this aspect of the case was not canvassed before us, we need not express any opinion on it.
As already indicated, the date of the death of Satya Jiban not having been brought on record and if the six months ' period has to be counted from that date, it has got to be assumed in favour of the appellant that the mutation even if effected as found by the courts below, was not done within the prescribed time.
It may also be mentioned that it was not argued before us that the rent suit having originally been filed by the Receiver pendente lite, who represented the entire 16 annas interest in the tenure, the suit had been properly instituted, and no question under sections 15 and 16 of the Act, would, therefore, arise if any devolution of interest took place during the pendency of the suit.
For the purpose of determining the present controversy, we proceed on the assumption that the mutation had not been made within six months as prescribed by section 15, and that this defect affected the entire interest in the tenure in spite of the fact that the two thirds interest which originally belonged to Satya Jiban 's brothers, came to the plaintiffs as a result of the compromise in the partition suit.
Section 16 as it stands after the amendment by the Bengal Act IV of 1928, does not impose an absolute bar on the recovery by suit of the arrears of rent.
The bar is there only " until the duties imposed upon him (that is, the plaintiffs) by section 15, have been performed.
" Now, section 16 does not speak of any time limit.
It only speaks of the bar to the recovery of the arrears until the performance by the landlord of the duty of giving notice of the succession or getting mutation made on the succession.
It was argued on behalf of the appellant that the performance of the duty aforesaid is inextricably bound up with the period of six months, and that the performance of the duty beyond that period, is no performance at all in the eye of law.
We are not impressed by this argument, and there are several very good reasons for holding to the contrary.
The provisions of section 15 are meant not only for the benefit of the landlord or of the inferior tenant, but of the intermediate landlords also, that is to say, the 233 provision for notice, or in the alternative, for mutation .of names in the landlord 's rent roll, is meant to protect the interest of the superior landlord in that it ensures payment of his dues by the intermediate landlord before the latter can realise the same from his tenant, in this case, the se pataidar.
Those provisions also ensure that the rightful persons entitled to the durpatni interest, get themselves mutated in the superior landlord 's office, so that the inferior tenants may know who their new landlords are as a result of succession to their old landlords.
The legislature,, by fixing the limit of six months, intended to indicate that the notice of the mutation should be effected within six months, that is to say, within a reasonable time from the date of the devolution of interest, even as there are similar provisions in respect of the mutation of proprietors in the Collectorate for the purpose of regular realization of public demands.
But the legislature did not intend to make it mandatory in the sense that failing to observe the time limit, the landlord completely deprives himself of his right to receive rent from his tenant, even though otherwise due.
That is the reason why, in section 16, there is no indication of time limit.
On the other hand, there is an indication to the contrary in so far as the last clause quoted above, provides that the bar against the recovery by suit of any rent payable to the holder of the tenure, operates only until he performs the duties imposed upon him by section 15.
Section 16, being in the nature of a penal provision, has to be strictly limited to the words contained in the penal clause, and the penalty should not be extended by implication.
If the legislature had intended that the penalty should operate for all times if the duty were not performed within the time specified in section l5, the legislature would have used the words " within the prescribed time "; or some such words.
Instead of laying down such a time limit, the legislature has, by the amendment aforesaid by Act IV of 1928, made it clear that the bar operates only so long as the duty has not been performed.
No authority has been cited before us in support of the extreme proposition that 30 234 the failure on the part of the landlord to serve the requisite notice or to get the necessary mutation effected within six months, has . he effect of wiping out the landlord 's right to receive rent.
There may be rulings to the contrary, but this Court has to resolve the controversy on the language of the relevant sections of the statute, quoted above.
That language does not clearly indicate that the result contended for on behalf of the appellant, must necessarily ensue on his making a default to take those necessary steps within the time specified.
The language of the statute is not so peremptory in express terms or by necessary implication.
On the other hand, as already indicated the language easily lends itself to the construction that the prescribed time is not in the nature of a statutory bar to the exercise of the landlord 's right to recover rent.
in this connection, it has to be remembered that patni tenure and all other subordinate tenures under the patnidar, are permanent tenures.
Hence, the relationship of landlord and tenant, continues from generation to generation without there being any necessity of fresh attornment on the death of a durpatnidar or other grades of tenants in the process of sub infeudation.
The relationship is all the time there, only the landlord 's record has to be kept up to date by making the necessary substitution in the rent roll or by giving notice of the change in the succession to the landlord 's interest.
The legislature had to indicate a time by way of laying down the ordinary procedure for taking the steps indicated in section 15.
Six months ' period was deemed by the legislature to be a sufficiently long period to enable those steps being taken in the ordinary course of business.
But it is not difficult to imagine cases where such steps may not be feasible within the prescribed time.
For example, where the landlord dies leaving him surviving only an infant heir without a proper guardian to protect the infant 's interest, it may take a considerably longer period than six months to have a proper guardian appointed, if necessary, through court.
It may well be that the succession itself is disputed, and the controversy may take some years to get determined finally.
It cannot be reasonably 235 suggested that because the requisite notice or the mutation has not been given or effected within the prescribed period of six months, the landlord 's right to recovery` of rent, disappears.
That could not have been the intention of the legislature.
Again, it may easily be supposed that an honest tenant goes to his new landlord and pays him rent hand to hand, even though there has been no such step taken within the time as contemplated by section 15.
It cannot be said that such a payment of rent out of court, will not be recog nized by a court, if and when a controversy about such a payment were to arise.
In this way instances maybe multiplied where the provisions of section 15 of the Act, have not been strictly complied with, but still the receipt and payment of rent as between the patnidar and his tenant, have continued for a sufficiently long period, to prove what was required to be done under that section.
In our opinion, the inference is clear that the provision as regards the time limit, is not mandatory but only directory, and that transgression of that directory provision has the effect of only delaying the landlord 's remedy of recovery of arrears of rent by suit so long as the landlord has not done what he is required by law to do.
But that provision has not the effect of absolutely depriving the landlord of his remedy by suit for all times; he may recover through court, of course, subject to the law of limitation.
In our opinion, therefore, acceptance of the appellant 's arguments would be nothing more than " piling unreason upon technicality", which no, court of justice can countenance.
In view of these considerations, it must be held that there is no merit in this appeal which is, accordingly dismissed with costs.
Appeal dismissed.

summary/full:
The time limit of six months provided by section 5 of the Bengal Tenancy Act within which a tenure holder has to give notice of his succession to the landlord or have his name mutated in his rent roll is not mandatory but directory in character and the only effect which non observance of that time limit can have under section 16 of the Act, is to postpone his remedy to recover arrears of rent by way of suit till such time when he performs the duty cast upon him by section 5 Of the Act, but it cannot, by itself, bar the remedy for all time to come.
Section 16 is a penal provision and must be subjected to its statutory limitation and the penalty it imposes cannot be extended by implication.
Consequently, in a case where the sepatnidar resisted the durpatnidars ' suit for recovery of arrears of rent on the ground, inter alia, that they had not got themselves mutated in the landlord 's records under section 15 of the Bengal Tenancy Act and as such 227 the suit was barred under section 16 of the Act and the courts below found on the evidence adduced by the durpatnidars that the landlord had accepted rents from them and granted receipts after ordering mutation of their names in the rent roll: Held, that the courts below were right in holding in favour of the durpatnidars that there was the necessary mutation in the landlord 's rent roll.
The factum of mutation in the landlord 's rent roll can be proved not only by the production of original rent roll or its certified copy but,failing these, also by other secondary proof of mutation.


judgement:
Miscellaneous Petition No. 18044 of 1980.
IN Writ Petition No. 16093 of 1984.
(Under Article 32 of the Constitution of India ).
Tapash Ray.
Ms. Pratibha Jain and section K. Jain for the Petitioner .
K. Parasaran, Solicitor General, Kuldip Singh.
Additional Solicitor Genera1 and Ms. A. Subhashini for the Respondent.
The following Order of the Court was delivered: O R D E R This is an application by Shri M.L. Jain, retired Judge of the Delhi Court questioning the constitutional propriety and legality of the order issued by the Pay & Accounts PG NO 498 Officer, Delhi Administrative (High Court & Miscellaneous), New Delhi dated July 12) 1938 purporting to fix his pension at Rs.26,000 per annum and for an appropriate direction for re determination of his pension and other pensionary benefits in view of the change in law brought about by High Court Judges (Conditions of Service) Amendment Acts, 1996 and 1988 (Act Nos. 38 of 1986 and 20 Of 1986).
This order must be read in continuation of the earlier order delivered by this Court in M. L. Jain & Anr; vs Union of lndia, [19t3 5] 2 SCC 355 by which this Court made a direction for payment of pension to the petitioner at Rs.21,5000 per annum in view of the two ceilings then operating against him, viz (a) a ceiling under the Rajasthan Rules providing that the maximum amount of pension should not exceed Rs. 1,500 per annum and (b) that under cl.
(b) of Paragraph 2 of Part 111 of the First Schedule of the .
According to the petitioner, in view of the change in law, the amount of pension payable to him has to be re calculated and re determined at Rs.41,600 per annum w.e.f. January, 1. 1986 which amount has to be further increased to Rs.46,100 per annum w.e.f. November 1, 1986 in place of the pension of Rs. 21,500 as earlier directed.
he question hat falls of determination in this order is whether consequent upon the improvement of the service conditions including pension and other benefits by the High Court Judges (Conditions of Service) Amendment Acts, 1986 and 1988 and pursuant to the office Memoranda issued by the Government of India, Ministry of Personal, Public Grievances & Pensions, Department of Pensions & Pensioners welfare dated April 14, 1987 and April 16, 1987 the pension of the petitioner Shri M.L. Jain has o be re calculated and e determined at section 41,600 per annum w.e.f.
January 1, 1986 which amount has to be further inceases to Rs. 46,100 pew annum w.e.f.
November 1,1986 in place of the pension section 21,500 as ealiear directed In view of the impoance of the question involved, we requested Sri K Parasaran, learned Attorney General to assist the Court.
We are greatly be holden to the Leaned Attorney General of the assistance that he has rendered.
The facts are uncontroverted.
The petitioner has had a long and distinguished career in judicial service extending over a period of 38 years and 9 months.
including 9 years and 21 days as a Judge of the High Court.
When the PG NO 499 petitioner was appointed as a Judge of the High Court of Rajasthan on July 1, 1975, he was a member of the Rajasthan Higher Judicial Service having been a District & Sessions Judge for the period from November 9, 1970 to July 1, 1975.
On his appointment as a Judge of the Rajasthan High Court, the petitioner opted, for the purpose of his pension, for of the First Schedule to the .
On July 23, 1978 the petitioner was transferred as a Judge of the High Court of Delhi under article 222 (1) of the Constitution.
On July 24, 1978 the petitioner was sworn in as a Judge of the Delhi High Court and continued to hold that office till the date of his retirement on July 21, 1984.
" In order to appreciate the point in its true perspective, it is necessary to set out the relevant constitutional and other statutory provisions as well as the changes brought about by the High Court Judges (Conditions of Service) Amendment Acts, 1986 and 1988, as also the Office Memoranda issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare dated April 14, 1987 and April 16, 1987 for upward revision of pension and rationalisation of the same.
article 221 of the Constitution enacts: "221.
Salaries etc.
of Judges (1) There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule: Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his advantage after his appointment. " Under cl.
(i) every Judge of a Nigh Court is thus entitled to such salaries as may be determined by Parliament PG NO 500 by law.
By cl.
(2) such a Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament.
Until such a law is made, every such Judge shall be entitled to such salaries, allowances and rights as are specified in the Second Schedule.
The relevant provision relating to the petitioner Shri M.L. Jain is the one contained in section 15 (1) (b)of the which is a law made by Parliament regulating his right to pension and it reads: "15.
Every Judge (a) ***** ****** (b) who is not a member of the Indian Civil Service but has held any other pensionable civil post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in of the First Schedule"; It is unquestionable that while the salary of Judges of the High Court charged on the Consolidated Fund of the State, the pension of such High Court Judges is charged on the Consolidated Fund of lndia.
Paragraph 2 of of the First Schedule as amended by Act 35 of 1976, which was in force on July 1, 1975 when the petitioner was first appointed as a Judge or the Rajasthan High Court, was in these terms: "2.
The pension payable to such a Judge shall be (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a judge being treated as service therein for the purpose of calculating that pension ; and (b) a special additional pension of Rs. 700 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service; shall exceed Rs.3,500 per annum.
" PG NO 501 By Act 36 of 1986 in cl.
(b) of Paragraph 7 of Part III of the First Schedule of the Act, the special additional pension of Rs.700 has been raised to Rs. 1,600 and the ceiling of Rs.3,500 to Rs. 8,000 respectively w.e.f. November 1, 1986.
There is however a proviso beneath cl.
(b) which reads: "Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed Rs. 54,000 per annum in the case of a Chief Justice and Rs. 48,000 per annum in the case of any other Judge.
" Rule 2 of the High Court Judges Rules, l956 as amended till March 18,1987 which governs all Service Judges, provides: "2.
Conditions of service in certain cases The Conditions of service of a Judge of a High Court for which no express provision has been made in the shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated: Provided that, in the case of a a Judge of the High Court of Delhi, the condition of service shall be determined by the rules for the time being applicable to a member of the Indian Administrative service on deputation to th Government of India and holding the rank of Joint Secretary to the Government of India stationed at New Delhi.
" It would be convenient at this stage to refer to the decisions taken by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners Welfare.
On March 18, 1987 the Government of India by Resolution No. 2/13/87 PIC accepted the recommendations of the Fourth Central Pay Commission for upward revision of pension and pensionary benefits.
It was applicable to all pension to all pensioners family pensioners who were drawing pension family pension under the C.C.S. (Pension) Rules, 1972.
C.C.S. (Extraordinary Pension) Rules and the corresponding rules applicable to Railway Pensioners and pensioners of All India Service.
PG NO 502 In pursuance of the aforesaid Resolution, the Government of lndia, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners Welfare issued an Office Memorandum No. 2/1 87 PIC II dated April 14, 1987 bringing about modifications in the rules regulating Pension, Death cum Retirement Gratuity and Family Pension under the C.C.S. (Pension) Rules, 1972, Rule 3.1 of the Rules as modified made the revised provisions applicable to Government servants who retired or died in harness on or after January 1, 1986.
Rule 5.2 provided that pension shall be calculated at 50% of average emoluments in all cases instead of under the slab formula given in cl.
(a) of sub r.
(2) of r. 49 of the Pension Rules.
By a subsequent Office Memorandum dated April 16, 1987 the MInistry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare issued a scheme for rationalisation of pension structure for pre January 1, l986 pensioners.
It applied to all pensioners belonging to the classes enumerated above, including officers of the Indian Civil Service who retired from service on or after January 1 1973.
Paragraph 2.2.
of the Office Memorandum provides that separate orders would be issued by the Ministry of Defence in regard to Armed Forces Pensioners/Family Pensioners.
Paragraph 2.3 is a provision with regard to retired Judges of the Supreme Court and the High Courts and it provides: "These orders do not also apply to retired High Court and Supreme Court Judges and other constitutional/statutory authorities whose pension etc.
is governed by separate orders.
Necessary orders in their case will be issued by the respective administrative authorities.
" Paragraph 5 of the aforesaid Office Memorandum provides for payment of additional benefit equal to the difference between half of the emoluments and the basic pension in view of re calculation of pension at 50% of average monthly emoluments in place of the slab system.
It further provides that there would be no upper ceiling on the amount of pension now so worked out.
On December 18, 1987 the Government of India, Ministry of Law & Justice, Department of Justice purported to issue a letter addressed to (1) Accountants General, All States, (2) The Pay & Accounts Officer, Supreme Court of India, New Delhi and (3) The Pay & Accounts Officer No. XIV, Delhi Administration, New Delhi giving direction as to the manner in which the basic pension of the Supreme Court Judges and PG NO 503 High Court Judges governed by the provisions of Part III of the First Schedule to the High Court/Supreme Court Judges (Conditions of Service) Act, 1954/1958 is to be determined, the relevant portion whereof reads : "The ordinary pension admissible to High Court/Supreme Court Judges under para 2(a) of Part III of the First Schedule/Schedule to the High Court/Supreme Court Judges (Conditions of Service) Act, 1954/1958, respectively, may be revised with effect from 1. 1. 1986 as in the case of the employees of Central Government or from some other date, the respectively State Governments may decide to adopt these orders or an independent order issued by them, if any to grant the benefit of increased pension on similar lines to their employees including members of Higher Judicial Service.
" The said letter goes on to say: "This is subject to the condition that the total pension including additional pension admissible to such Judges under para 2(a) and (b) of Part III of the First Schedule/Schedule to the High Court/Supreme Court Judges (C/S) Act, 1954/1958 shall not exceed Rs.48,000 p.a. Rs.54,000 p.a. and Rs. 60,000 p.a.
in the case of Judge, High Court, Chief Justice, High Court/Judge, Supreme Court of India and the Chief Justice of India, respectively.
" We fail to appreciate the propriety of the aforesaid letter of the Ministry of Law & Justice giving liberty to the different State Governments to deny the benefit of the revised pension to the Service Judges consequent upon the enactment of Act 38/86 and 20/88 read along with the aforesaid Office Memoranda issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners Welfare dated April 14, 1987 and April 16, 1987 and r. 2 of the High Court Judges Rules, 1956.
Virtually this means that the State Governments may or may not issue any orders in of Paragraph 2.3 of the Office Memorandum dated April 16, 1987 appointing a date for grant of revised pension, or appoint different dates for the grant of revised pension to the retired High Court Judges who had opted to be governed by Part III of the First Schedule of the Act.
Such a direction, in our view, was constitutionally impermissible as offending Act.
14 of the Constitution.
It is tantamount to denial of equal treatment PG NO 504 to persons belonging to the same class without any national basis.
It was urged on behalf of the petitioner that the Pay & Accounts Officer should not have denied the petitioner the benefit of the higher pension he was entitled to in the light of the changed provisions of law and that paragraph 2.3 of the Memorandum had no relevance to the petitioner 's case because the petitioner, by reason of his transfer from the Rajasthan High Court to the Delhi High Court under Act.
222 of the Constitution became automatically a judge of the Delhi High Court and therefore he was governed by the first proviso to r. 2 of the High Court Judges (Conditions of Service) Rules, 1955 which provides that in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab & Haryana, the conditions of service shall be determined by the Rules for the time being applicable to a Member of Indian Administrative Service on deputation to the Government of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi.
It was urged by reason of this position the petitioner was entitled to the benefits of pension in restructured scale set out in the Memorandum.
It was further stated that Iikewise the action of the Pay & Accounts Officer in reckoning the basic pension of the petitioner at Rs. 1,500 per month as provided in column 1 to the Table appended to the Memorandum, and not at Rs.2,925 merely on the strength of the earlier position noticed in M. L. Jain 's case, despite the changes brought about by Act 38 of 1986, and Act 20 of 1988 and in depriving him of the benefit of additional relief of Rs.250 per month w.e.f.
January 1, 1986 was wholly misconceived and unwarranted.
We not only found the contentions of the petitioner to have force but also to be irrefutable ones.
To bring out more forcefully how the governmental action is patently arbitrary and as to how he had been subjected to discriminatory treatment without there being any justifiable basis for it the petitioner brought to our notice the higher rates of pension the Pay & Accounts Officer had fixed for some other Judges of the Delhi High Court even though their overall period of service and their tenure of office as a Judge of the High Court was lesser than his.
While the Pay & Accounts Officer has fixed the pension of the petitioner at Rs. 26,000 per annum, the very same authority had fixed the pension of Shri J.D. Jain at Rs.46,340 and that of Shri D.R. Khanna at Rs.44,684 per annum who had also retired as Judges of the Delhi High Court.
They had put lesser periods of total service as well as service as High Court Judges.
Shri J.D. Jain had put in judicial service for a period of 35 PG NO 505 years, 7 months and 19 days including 6 years 5 months and 2 days as a Judge of the Delhi High Court.
Shri D.R. Khanna had a total period of judicial service of 34 years, 110 months and 25 days including 5 years, 11 months and 28 days as a Judge of that High Court.
We must confess that it surpasses our comprehension as to on what rational basis the Pay & Accounts Officer deemed it just and proper to accord differential treatment to the petitioner and fixing his pension at the low figure of Rs.26,000 when other Judges of the same High Court who had put in lesser number of years of service were held entitled to pension at much higher rates.
The State Government of Uttar Pradesh by its notification No. 14/1/39/84 CX (1) dated May 31, 1988 has brought about a change in cl.
(b) of Paragraph 2 of Part III of the First Schedule and revised the rates of pension w.e.f. January 1, 1986 in terms of the aforesaid Memorandum.
Accordingly, a Judge of the Allahabad High Court Shri J.P. Chaturvedi who, retired on February 7, 1981 had his pension fixed at Rs.46, 100 per annum.
We are given to understand that he had put in much shorter period of service as compared to the petitioner.
We commend the action of the State Government of Uttar Pradesh in issuing a Notification as abovesaid to clarify the position and to ensure the implementation of the change brought about in cl.(b) of Paragraph 1 of Part III of the First Schedule and would direct all the State Governments to issue orders in similar terms.
The learned Attorney General with his usual fairness frankly conceded that there is patent disparity in the pension fixed for the petitioner at Rs.26,000, Shri Kuldip Singh, learned Additional Solicitor General appearing on behalf of the Union of India assured us that the disparity disparity would be removed as expeditiously as possible and the authorities would endeavour to pay th difference to the petitioner without delay.
The learned Attorney General was kind enough to say that he would advise the Government to bring about party between the pension drawn by the petitioner and the other Judges in India.
We refrain from expressing any opinion as to the effect of lifting of the ceiling on that special additional pension Rs. 8,000 per annum placed by cl.(b) of paragraph 2 of Part III the First Schedule.
The question really does not arise for our consideration at the moment and is left open.
In the result, C.M.P. No. 18044/88 is allowed.
The impugned of the Pay & Accounts Officer dated July 12, 1988 is quashed.
We direct the Union of India as well as the Pay PG NO 506 & Accounts Officer, Delhi Administration (High Court & Miscellaneous), New Delhi to re fix the pension of the petitioner at Rs.4l,600 per annum w.e.f.
January 1, 1986 and at Rs.46, 100 per annum w.e.f.
November 1, 1986.
We further direct that the arrears of the difference in the amount of pension be paid to the petitioner as expeditiously as possible and in any event, not later than two months from today.
The petitioner shall also be entitled to all other consequential benefits.
R.S.S. Petition allowed.

summary/full:
The petitioner, before his appointment as a Judge of the Rajasthan High Court, was a member of the Rajasthan Higher Judicial Service.
He was later transferred and appointed as a Judge of the High Court of Delhi.
He retired on July 21, 1984.
The petitioner had opted.
for the purpose of his pension, for Part 111 of the First Schedule to the High Court Judges Conditions of Service) Act, 1954.
Under this provision, the petitioner was entitled to a basic pension as admissible under the ordinary rules of his Service if he had not been appointed a Judge, and an additional pension for each completed year of service as a Judge of the High Court.
The High Court Judges (Conditions of Service) Amendment Act, 1986 and 1988 brought about improvements in the service conditions.
including pension, of the High Court Judges.
The Government of India subsequently issued a scheme for rationalisation of pension structure for pre January 1, 1984 pensioners.
Pursuant there to the Ministry of Law & Justice, Government of India, issued letter dated December 18, 1987 giving directions to the Accountants General/Pay and Accounts Officers as to the manner in which the basic pension of the High Court Judges governed by the provisions of Part 111 of the First Schedule to the High Court Judges Conditions of Service Act, 1954 may be revised with effect from 1.1.1986, as in the case of the employees of Central Government, or from some other date the respective State Government may decide to adopt these orders or an independent order issued by them.
PG NO 496 PG NO 497 The petitioner has claimed higher pension on the ground that service Judges with lesser service, who belonged to Higher Judicial Service of some other States? have been granted higher pension while he has been subjected to a discriminatory treatment in the matter.
Allowing the Civil Miscellaneous Petition, it was, HELD: (1) This Court fails to appreciate the propriety of the letter dated December 111, 1987 of the Ministry of Law & Justice giving liberty to different State Governments to deny the benefit of the revised pension to the Service Judges consequently upon the enactment of the High Court Judges (Conditions of Service) Amendments Acts.
1986 and 1988 read along with Office Memoranda issued by the Government of Pension & Pensioners Welfare, dated April 14 1987,and April 16, 1987 and rule 2 of the High Court Judges Rules, 1956.
Such a direction is constitutionally impermissible as offending Art.14 of the Constitution.
It is tantamount to denial of equal treatment to persons belonging to the same class without any rational basis.
[503F H; 504A ] (2) While the salary of Judges of the High Court is charged on the Consolidated Fund of the States, the pension of High Court Judges is charged on the Consolidated Fund of India.
[500E]