judgement:
Appeal No. 548 of 1967.
Appeal by special leave from the award dated October 5, 1966 ,of the Industrial Tribunal, Alleppey in Industrial Dispute No. 9 ,of 1965.
H. R. Gokhale and D. N. Gupta, for the appellant.
M. K. Ramamurthi, Shyamala Pappu, Vineet Kumar and R. Nagaratnam, for the respondents.
The Judgment of the Court was delivered by Mitter, J.
This appeal by the Remington Rand of India Ltd. :against their workmen arises out of an award dated 5th October, 1965 made by the Industrial Tribunal, Alleppey published in the Kerala Gazette dated 15th November, 1966.
The first point taken against this award is that it cannot be given effect to as it was published beyond the period fixed in the Act.
The notification accompanying the gazette publication stated that Government had received the award on 14th October, 1966.
It was argued by Mr. Gokbale that in terms of section 17(1) of the Industrial Disputes Act the award bad to be published " within a period of thirty days from the date of its receipt by the appropriate Government".
According to learned counsel, the award having reached Government on 14th October, 1966 it should have been published at the latest on 12th November, 1966 as section 17 of the Act was mandatory.
Our attention was also drawn to 165 sub section
(2) of section 17 according to which it is only the award published under sub section
(1) of section 17 that is final and cannot be called in question by any court in any manner.
We were also referred to section 17 A and section 19.
Under sub section
(1) of section 17 A an award becomes enforceable on the expiry of thirty days from the date of its publication under section 17 and under sub section
(3) of section 19 an award is to remain in operation for a period of one year from the date on which the award becomes enforceable under section 17 A. From all these provisions it was argued that the limits of time mentioned in the sections were mandatory and not directory and if an award was published beyond the period of thirty days, in contravention of section 17(1) it could not be given effect to.
To fortify his argument, learned counsel relied on certain observations of this Court in The Sirsilk Ltd. vs Government of Andhra Pradesh.(1) In that case, there was an order referring certain disputes between the appellant and its workmen to the Industrial Tribunal, Andhra Pradesh.
The Tribunal sent its award to Government in September 1957.
Before the Government could publish the award, the parties to the dispute came to a, settlement and on 1st October, 1957 a letter was written to the Government jointly on behalf of the employer and the employees intimating that the dispute which had been pending before the Tribunal had been settled and a, request was made to Government not to publish the award.
Government expressed its inability to withhold the publication taking the view that section 17 of the Act was mandatory.
The appellants filed writ petitions before the High Court of Andhra Pradesh under article 226 of the Constitution praying that Government might be directed not to publish the award sent to it by the Industrial Tribunal.
The High Court held that section 17 was mandatory and it was not open to Government to withhold publication.
The contention on behalf of the appellants was that section 17 providing for the publication of the award was directory and not mandatory.
Mr. Gokhale relied on the passage at page 452 of the judgment reading: "It is clear therefore, reading section 17 and section 17 A together, that the intention behind section 17(1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory".
Ultimately, however, on a conspectus of sections 17, 17 A, 18 and 19, it was observed that "though section 17(1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires a reconciliation between section 18(1) and section 18(3), and in such a situation, the only way to reconcile the two provisions is to withhold the publication of the award, as a binding settlement has.
already come into force. . " (1) ; , 452 166 Reference was also made to the case of Erumeli Estate vs Industrial Tribunal (1).
There the question directly arose as to whether non publication of the period mentioned in section 17 (1)invalidated the award and the learned Judge observed that he was not inclined to accept that contention although it was highly desirable that the award should be published within the time mentioned.
He said: "Exceptioning that a slight delay in publishing the award under section 17(1) results in postponing its finality under section 17 (2) or its becoming enforceable under section 17 A, no other consequence flows from the delay and therefore, in my view the provisions of sub s (1) of s 17 should be considered only to be merely directory. . ." Mr. Gokhale also referred us to the case of the State of Uttar Pradesh & Others vs Babu Ram Upadhya(2) where there is an elaborate discussion as to whether the use of the word "shall" in A Statute made the provision mandatory.
It was observed by Subba Rao, J. (as he then was) speaking for the majority of the Court that: "For ascertaining the real intention of the Legislature the Court may consider inter alia, the nature and the design of the statute, and the consequences which would follow from construing it One way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non compliance with the provisions, the fact that the noncompliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
" Keeping the above principles in mind, we cannot but hold that a provision as to time in section 17(1) is merely directory and not mandatory.
Section 17(1) makes it obligatory on the Government to publish the award.
The limit of time has been fixed as showing that the publication of the award ought not to be held up.
But the fixation of the period of 30 days mentioned therein does not mean that the publication beyond that time will render the award invalid.
It is not difficult to think of circumstances when the publication of the award within thirty days may not be possible.
For instance, there may be a strike in the press or there may be any other good and sufficient cause by reason of which the publication could not be made within thirty days.
If we were to hold that the award would therefore be rendered invalid, it would be attaching undue importance to a provision not in the mind of the legislature.
It is well (1) [1962] IT L.L.J. 144.
(2 ) [1961]2 S.C.R 679, 710 167 known that it very often takes a, long Period of time for the reference to be concluded and the award to be made.
If the award becomes invalid merely on the ground of publication after thirty days, it might entail a fresh reference with needless the parties.
The non publication of the award within the period of thirty days does not entail any penalty and this is another consideration which has to be kept in mind.
What was said in the earlier passage from the judgment in The Sirsilk Ltd. vs Government of Andhra Pradesh(1) merely shows that it was not open to Government to withhold publication but this Court never meant to lay down that the period of time fixed for publication was mandatory.
Coming to the merits of the case, Mr. Gokhale argued that the Tribunal.
had gone wrong in revising the wage scales as it had done.
The head of dispute referred to the Tribunal was "revision of wages as per award of the Madras Labour Tribunal in 38 of 1960.
" The arguments advanced in this case were the same as in the Bangalore case (just now disposed of) and the Tribunal after noting the phenomenal progress of the Company and the enormous profits it was making, came to the conclusion that there was no reason why there should be any disparity in wages between the employees of a branch and the regional office when they were doing the same or similar work.
In this case also, there was no evidence of comparable concerns.
In our view, what we have said on this point of the dispute with regard to the Bangalore branch applies equally with regard to the Kerala branch and the matter will have to go back to the Tribunal for fixing the wages and the adjustment of the workers in the revised scale in the light of the observations made in that case bearing in mind Mr. Gokhale 's offer on behalf of the Company to increase the wages as in the other appeal.
With regard to dearness allowance again, what was said in the Bangalore appeal applies equally to this appeal.
Here again the Tribunal said: "It is also an accepted fact that the cost of living both at Trivandrum and at Ernakulam is higher than the cost of living at Madras.
Therefore, there is no justification in perpetuating the disparity in the payment of D.A. to the workmen working at Madras and those working in the Trivandrum Branch.
" In the result, the Tribunal directed that the workmen of Ernakulam branch should get dearness allowance "at the rate at which and in the manner in which" the pay and dearness allowance was being paid to the employees of Madras Regional Office.
In our view, dearness allowance should be the same as decided in the case of the workers of the Bangalore branch.
(1) ; 168 The scheme for gratuity is the same as in the case of the Bangalore branch with the only difference that the maximum fixed was 20 months ' wages after 20 years service.
In our view, there is no reason why the scheme for gratuity should not be the same in the Ernakulam branch as in the Bangalore branch in case of termination of service for misconduct and the qualifying period should be 15 years ' service.
Again, on principles already formulated, we hold that leave facilities at Ernakulam should be the same as those prevailing at Madras.
Next comes the dispute with regard to the working hours.
The working hours of the employees of Trivandrum and Ernakulam as prevalent were from 9 a. m. to 1.
p. m. and from 2 p. m. to 5 30 p. m. on week days and from 9 a. m. to 1 p. m. on Saturdays.
At Madras the Company 's workers work only for five days in a week from 9 a. m. to 1 p. m. and 1 45 p. m. to 5 30 p.m.
The total working hours were therefore somewhat less than those at Trivandrum and Ernakulam.
The complaint of the union before the Tribunal was that although by circular dated 24th March 1963 the Company had fixed the working hours from 9.30 a.m. for clerks and 9 a.m. for mechanics and peons, it was extracting half an hour 's work per day extra contrary to their own orders.
The Tribunal held that the circular should be given effect to and that the clerical staff should work from 9.30 a.m. to 1 p.m. and from 2 p.m. to 5.30 p.m. on working days and from 9.30 a.m. to 1 p.m. on Saturdays.
We see no reason to disturb this portion of the award.
Another head of dispute related to work load.
The complaint of the union was that the workload was too heavy and that the method of calculation of workload was arbitrary.
According to them, the workload fixed by agreement between the Company and its employees in Delhi and Lucknow was seven machines per day or 150 machines per month, while the workload at Trivandrum was 10 machines per day.
According to the Management the workload fixed i.e., 10 machines per day, was not too much and there was no reason for disturbing the prevailing arrangement.
But the Management did not deny that during the course of negotiations they had agreed to reduce the workload to seven machines per day or 150 machines per month and the Tribunal adopted this in the award with a rider that "all the machines attended to, whether new or old, whether under the service contract or not, will be counted for the sake of workload".
No satisfactory reason has been adduced as to why we should disturb the award.
The last head of dispute was with regard to "moving staff allowance".
The union demanded that workmen who were deputed on tour on Company 's work should be given a day off if they had to travel two nights consecutively.
Demand was also made that, 169 travelling staff should be paid overtime for the work done on holidays while on tour at double the normal wages for the day.
The Management disputed this claim on the ground that it was not possible to calculate the number of hours worked by the employee at the out station while on tour.
The Tribunal found on examining a mechanic that the jurisdiction of the branch was limited to the districts Trivandrum, Quilon, Alleppey and Kottayam and even if he was forced to work on holidays he was given over time wages.
The Tribunal held that it was only just and reasonable that tour in mechanics should be given a day off if they travelled on two consecutive days for reaching a place of work and also over time wages at double the wages for the work done on holidays.
It appears to us that with the limitation as to jurisdiction noted above, the occasion for a mechanic spending two consecutive nights for reaching a place of work will arise very seldom, but if it does, there is no reason why he should not get overtime wages as awarded by the Tribunal and we see no reason to interfere with this portion of the award.
In the result, the matter will go back to the Tribunal for disposal of the issue as to the revision of wage scales and adjustment of workers in the revised scales.
The scheme for gratuity will stand modified as indicated in our judgment in Civil Appeal No. 2105 of 1966 delivered today.
The rest of the award will stand.
The appellant will pay the respondent the costs of this appeal.
A ward modified.

summary/full:
Section 17(1) of the , makes it obligatory on the appropriate Government to publish the award received by it from the Industrial Tribunal; but, the provision in the section as to time, that the Government shall publish it within a period of thirty days from the date of its receipt, is merely directory and not mandatory.
Therefore, where the Government received the award on 14th October 1966 and published it in the Gazette on the 15th November 1966, the award did not cease to be enforceable.
[166F G] Observations in The Sirsilk Ltd. vs Government of Andhra Pradesh, ; , 452, explained.
The State of Uttar Pradesh & Others vs Babu Ram Upadhya, ; , 710, followed.
Erumeli Estate V. Industrial Tribunal, [1962] II L.L.J. 144, referred to.


judgement:
No. 182 of 1966.
Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
N.C. Chatterjee, K. B. Roastagi, L. M. Singhvi and section Balakrishnan, for the petitioner.
C.B. Agarwala, G. C. Kasliwal, Advocate General, Rajasthan, Indu Soni and K. Baldev Mehta, for respondent No. 1.
N.S. Bindra, A. section Nambiar and R. N. Sachthey, for respondent No. 2.
K.Baldev Mehta and Indu Soni, for respondents Nos. 3 and 4.
The Judgment of the Court was delivered by Ramaswami, J.
The petitioner, Sri Sant Ram Sharma has obtained a rule from this Court calling upon the respondents to show cause why a writ under article 32 of the Constitution should not be granted for quashing two orders of the State of Rajasthan, one dated March 22, 1966 whereby Sri Hanuman Sharma, respondent No. 3 was promoted as Inspector General of Police, Rajasthan superseding the petitioner, and the other dated April 28, 1966 promoting Sri Sultan Singh, respondent No. 4 as Additional Inspector General of Police superseding the petitioner.
The petitioner has also prayed for a writ in the nature of mandamus commanding respondents 1 & 2 to consider the petitioner 's claim as the senior most officer in Rajasthan to be promoted to the post of Inspector General of Police.
Cause has been shown by Mr. C. B. Agarwala on behalf of the State of Rajasthan and the other respondents to whom notice of the rule was ordered to be given.
113 The petitioner, Sri Sant Ram Sharma was appointed to the Indian Police Service on June 10, 1952.
On September 8, 1954 by a notification of the Ministry of Home Affairs, Government of India, the Indian Police Service (Regulation of Seniority) Rules, 1954 came into force.
Rule 6 of the said Rules required that a Gradation List of all Police Officers in the State should be maintained to ascertain their respective seniority.
Accordingly, a Gradation List was prepared by the State of Rajasthan in August, 1955.
In this Gradation List, the position of the petitioner was 5th.
Sri Hanuman Sharma was shown as occupying the 7th position, Sri Sultan Singh stood 14th and the position of Sri Ganesh Singh was 17th.
Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 required that every officer shall be assigned a year the allotment in accordance with the provisions contained in that rule.
According to this rule the year of allotment of the petitioner was 1942, that of.
respondent No. 3, Sri Hanuman Sharma 1943, and that of respondent No. 4, Sri Sultan Singh 1945.
In April 1955 the question of confirmation of the petitioner and of the three other officers, namely, Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh to the rank of Deputy Inspector General of Police was taken up.
It was decided by the State of Rajasthan that the petitioner should be superseded and the three officers, Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh should be confirmed in the rank of Deputy Inspector General of Police.
The case of the petitioner is that in June, 1959 Sri Hanuman Sharma was promoted as Special Inspector General of Police and on June 2, 1961 the post was encadred and Sri Hanuman Sharma was confirmed in that post.
It appears that, on March 22, 1966, Sri Hanuman Sharma was promoted as Inspector General of Police, Rajasthan and on April 28, 1966 Sri Sultan Singh was promoted as Additional Inspector General of Police superseding the petitioner.
The notifications of the State of Rajasthan dated March 22, 1966 and April 28.
1966 are annexures 'G ' and 'H ' to the writ petition.
The contention of the petitioner is that he was entitled, as a matter of right, to be appointed as Deputy Inspector General of Police in 1955 and as Inspector General of Police in 1966 as he was shown as the senior most officer in the Gradation List and the orders of the State of Rajasthan in annexures 'G ' and 'H ' are in violation of the provisions of Rule 6 of the Indian Police Service (Regulation of Seniority) Rules, 1954.
It was also contended for the petitioner that his claim was not considered in 1955 at the time of confirmation of respondents 3 and 4 as Deputy Inspector General of Police or in 1966 at the time of promotion of respondents 3 and 4 to the posts of Inspector General of Police and Additional Inspector General of Police respectively.
It was therefore said that the fundamental rights of the petitioner under articles 14 and 16 have been violated and the orders of the State of Rajasthan dated March 22, 1966 and April 28, 1966 should be quashed by the grant of a writ in the nature of certiorari with a direction to the 1st respondent to consider the petitioner 's claim N1sC1 9 114 afresh for being promoted to the post of Inspector General of Police.
The allegations of the petitioner have been controverted by the State of Rajasthan in its counter affidavit.
It was said that the posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police are selection posts which carry pay above the time scale of pay and for appointment to these selection posts an officer is chosen not merely on the basis of his rank in the Gradation List but on the record of his merit and past experience in the Police Department.
The petitioner was appointed to the Indian Police Service on June 10, 1952 but even before that date Sri Hanuman Sharma, Sri Sultan Singh and Sri Ganesh Singh were appointed to the Indian Police Service in 1951 and they were already officiating as Deputy Inspector General of Police.
Sri Hanuman Sharma and Sri Sultan Singh were officiating since April 22, 1952 and Sri Ganesh Singh since May 17, 1952.
The petitioner was confirmed in the Senior Scale of Indian Police Service on June 10, 1954 but the other three officers were confirmed in the Senior Scale of the Indian Police Service on March 24, 1953, i.e., more than a year before the confirmation of the petitioner.
When the question of confirmation of the officers to the post of Deputy Inspector General of Police arose in 1955, the State of Rajasthan considered the comparative merit of all the officers concerned including that of the petitioner and it was decided to confirm respondents 3 & 4 and Sri Ganesh Singh as Deputy Inspector General of Police in preference to the petitioner in view of their outstanding record and merit and experience in the Police Department.
As regards the promotion of respondent No. 3 to the post of Inspector General of Police and of respondent No. 4 to the post of Additional Inspector General of Police, it was stated that the petitioner had no right to the selection posts carrying pay above the time scale of pay and that the appointment to those posts was at the discretion of the State of Rajasthan which decided the question after taking into consideration the merit of all the officers concerned.
It was further stated that the power of appointment was not exercised arbitrarily but was exercised in the interest of efficiency and good administration and that the promotion to selection posts was on the basis of merit alone and it was only in a case where the merit of the two officers was equal that the seniority of one officer in the Gradation List might tilt the case in his favour.
It was denied by the respondent that there was any violation of the Indian Police Service (Regulation of Seniority) Rules, 1954.
The question for determination in this case is whether the petitioner was entitled, as of right, to be promoted as Deputy Inspector General of Police in 1955 or as Inspector General of Police in 1966 merely on the ground that his name stood first in the Gradation List prepared under Rule 6 of the Indian Police Service (Regulation of Seniority) Rules, 1954.
115 Sub section (1) of section 3 of the All India Services Act, 1951 (LXI of 1951) empowers the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service.
In exercise of this power the Central Government framed the Indian Police Service (Regulation of Seniority) Rules, 1954.
Rule 2 (a) provides that "Cadre" means "an Indian Police Service Cadre constituted in accordance with rule 3 of the Indian Police Service (Cadre) Rules, 1954".
Rule 2 (d) defines "gradation list" to mean "a gradation list prepared under rule 6".
Rule 2(g) defines a "senior post" to mean "a post Included under item 1 of each Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 or any post declared equivalent thereto by the State Government concerned".
Rule 3 deals with the assignment of year of allotment and reads as follows: "(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule.
(2)The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules: (3)The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be (a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held; (b) where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the Service in accordance with rule 7 of those Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former: Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned; 116 Rule 4 relates to seniority of officers and reads as follows: "4.
(2) The seniority of officers in service at the commencement of these rules shall be as has been determined or may be determined by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules: Provided that where the seniority of an officer appointed in accordance with rule 9 of the Recruitment Rules has not been determined before the commencement of these rules, his seniority shall be determined in accordance with the provision in sub rule (3).
Rule 5 deals with seniority of officers placed in List II and List III by the Special Recruitment Board and Rule 5 A deals with seniority of officers appointed under the Indian Police Service (Special Recruitment) Regulations.
Rule 6 states: "6.
Gradation List.
There shall be prepared every year for each State Cadre and Joint Cadre a gradation list consisting of the names of all officers borne on that Cadre arranged in order of seniority in accordance with the provisions of rules 4, 5, 5 A and 7".
On behalf of the petitioner Mr. N. C. Chatterjee put forward the argument that Rule 6 required that a gradation list should be prepared strictly in order of seniority in accordance with the provisions of Rules 4, 5, 5 A and 7 and it is not open to the State of Rajasthan to disregard the claim of the petitioner who stood first in the Gradation List and to promote respondents 3 & 4 to the rank of Deputy Inspector General of Police.
We are unable to accept the argument put forward on behalf of the petitioner as correct.
it is apparent from a perusal of Rules 3 and 8 of the Indian Police Service (Pay) Rules, 1954 read with Part B of Sch.
III of those Rules that the posts of Deputy Inspector General of Police, Additional Inspector General of Police and Inspector General of Police in Rajasthan State are selection posts and outside the junior and senior time scales of pay.
Rule 2(a) provides that 'Cadre ' and 'Cadre post ' shall have the meanings respectively assigned to them in the Indian Police Service (Cadre) Rules, 1954.
Rule 3 prescribes the time scales of pay admissible to members of the Service and reads as follows: "3.
Time scales of pay The time scales of pay admissible to a member of the Service shall be as follows: Junior Scale Rs.
350 350 380 380 30 590 E.B. 30 770 40 850 (19 years).
Senior Scale.
600 (6th year under) 40 1.0001,000 1,050 1,050 1,100 1,100 1.150 (22) years.
Selection Grade Rs. 1,250. 117 Provided that a member of the Service holding a post in the senior time scale may be appointed to a post in the selection grade and where he is so appointed, he shall be entitled to draw pay of the post in the selection grade; Provided further that a member of the Service to whom any other time scale of pay was admissible under any order in force immediately before the commencement of these rules shall continue to draw pay in that scale".
The rule prescribes two scales of pay Junior Scale and Senior Scale in addition to the Selection Grade which is Rs. 1,250.
Rule 8 deals with pay of officers holding posts enumerated in Schedule III and states as follows: "Any member of the Service appointed to hold a post specified in Schedule 111, shall, for so long as he holds that post, be entitled to draw the pay indicated for that post in the said Schedule: Provided that no member of the Service shall at any time draw pay less than that which he is entitled to draw tinder rule 4 and rule 5; Provided further that a member of the Service to whom :any other special pay or pay above the time scale was .admissible under any order in force immediately before the commencement of these rules for holding posts specified in Schedule III shall, for so long as he holds the post, continue to draw the same pay".
The posts in the Schedule are (a) posts carrying pay above the timescale pay of the Indian Police Service under the State Governments, specified in Section A, (b) posts carrying pay in the senior time scale of the Indian Police Service under the State Governments including posts carrying special pay (in addition to pay in the time scale) specified in Section B and (c) posts carrying pay above the timescale or special pay in addition to pay in the time scale, under the Central Government held by members of the Service, specified in Section C.
In category (a) so far as the State of Rajasthan is concerned the posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police are shown as Selection Grade posts carrying pay above the time scales of pay.
It is manifest therefore, on a perusal of Rules 3 and 8 read with Part B of Sch.
III, that the three posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan are Selection posts and outside the junior and senior time scales of pay mentioned in Rule 3.
This conclusion is also supported by para 1 of Part B of Sch.
III which states that "the number of posts in the selection grade in a State Cadre shall be equal to twenty per centum of the total number of senior posts borne on that cadre reduced by the number of posts carrying pay above the time scale".
In support of his contention 118 Mr. N. C. Chatterjee referred to the decision of this Court in P. C. Wadhwa vs Union of India.(1) But the ratio of that case has no bearing on the question presented for determination in the present case.
The question involved in that case was whether under the relevant rules governing the Indian Police Service, a member thereof was entitled as of right to be promoted to a post in the senior scale as and when a vacancy (except a vacancy in the promotion quota) arose therein and no one senior to him was available for that post.
It was held by the majority of the learned Judges that a consideration of the various rules would make it clear beyond doubt that a person in the junior time scale of the service is as much a cadre officer as one holding a post in the senior time scale or a post above the timescale and the whole scheme of the rules indicated that a person in the junior scale of pay had a right to hold a post on the senior scale of pay subject to the availability of a post in the senior scale of pay and his seniority in the junior scale of pay.
At page 627 of the Report Mudholkar, J. in the course of his judgment expressly observed "we should not be understood as saying that this right extends to the appointment to a post carrying pay above time scale of pay or a post carrying a special pay, and the rules governing appointment to such posts were not placed before us".
The decision of this Court in P. C. Wadhwa vs Union of India(1) is therefore of no assistance to the petitioner and for the reasons we have already given, we are of the opinion that the three posts of Inspector General of Police, Additional Inspector General of Police and Deputy Inspector General of Police in Rajasthan State are selection posts and outside the junior or senior time scales of pay.
If these three posts are selection posts it is manifest that the State of Rajasthan is not bound to promote the petitioner merely because he stood first in the Gradation List.
The circumstance that these posts are classed as 'Selection Grade Posts ' itself suggests that promotion to theme posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts.
In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection posts and that it is a well established rule that promotion to :selection grades or selection posts is to be based primarily on merit and not on seniority alone.
The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is therefore available.
The administrative practice with regard to selection posts is laid down in a letter of the Government of India dated July 31 ,August, 3, 1954 as follows: .lm15 "If a person, though senior in the gradation list, is appointed to the selection post later than his junior, this is presumably because he is superseded as a matter of selection.
(1) 119 If this is so, it would certainly not be unjustified to regard the officer so selected earlier, though junior in the gradation list, as senior to the other officer, as far as the selection posts are concerned".
Another communication dated June 1, 1955 states: "All super time scale posts are selection posts and appoint ment thereto need not follow the order of seniority".
In another letter No. 7/6/56 AIS(1) dated October 5, 1956 the Government of India has reiterated the principle of promotion to selection grade posts as follows: "I am directed to say that the Government of India have recently had.
occasion to consider the question of the principles to be followed in the matter of promotion of I.P.S. Officers to the selection Grade when some of the officers junior in service were approved and given officiating chances in such selection grades earlier than their seniors.
It is, of course, a well established principle that promotions to the Selection Grade or a selection post is to be based primarily on merit and not seniority in the service . . . . . " We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed.
We are unable to accept this argument as correct.
It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts.
But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts.
It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
In B. N. Nagaraja 'n vs State of Mysore,(1) it was pointed out by this Court that it is not obligatory under the proviso to article 309 of the Constitution to make rules of recruitment, etc., before a service can be constituted or a post created or filled, and, secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws.
It follows from this that the State Government will have executive power in respect of Sch. 7, List II.
Entry 41, State Public Services, and there is nothing in the terms of article 309 of the Constitution which abridges the power of the executive to act under article 162 of the Constitution without a law.
A similar view (1) 120 was taken by this Court in T. Cajee vs U. Jormanik Siem(1) where Wanchoo, J., as he then was, who delivered judgment on behalf of the majority, observed as follows at pp.
762 764 of the Report: "The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned.
In this connection, the High Court relied on para.
3(1)(g) of the Schedule, which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen.
The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either.
With respect, it seems to us that the High Court has read far more into para.
3(1)(g) than is justified by its language.
Paragraph 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws.
Under para.
3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them.
But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect.
Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary.
The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para.
19(1)(b) or till the District Council passed laws under para.
3(1)(g).
The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration.
Doubtless when regulations are made under para.
19(1)(b) or laws are passed under para.
3(1) with respect to the appointment or removal of the personnel of the administra tion, the administrative authorities would be bound to follow the regulations so made or the laws so passed.
121 But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration.
In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule.
The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para.
3(1)(g) cannot be sustained.
" We pass on to consider the next contention of Mr. N.C. Chatterjee that if the executive Government is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to article 309, there will be a violation of articles 14 and 16 because the appointments would be arbitrary and capricious.
In our view, there is no substance in this contention of the petitioner.
If the State of Rajasthan had considered the case of the petitioner along with the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of articles 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts was actually made.
It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record sheets dealing with the competence, efficiency and experience of the officers concerned.
In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered along with respondents 3 & 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966.
There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that "the State Government could not have possibly considered my case, as they considered and even in this counter affidavit consider Shri Hanuman Sharma and Sri Sultan Singh senior to me by the new type of seniority they have invented for their benefit".
Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter affidavit that at the time of promotion of respondents 3 & 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered.
We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 & 4 to the selection posts.
We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and 122 taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 & 4 to the selection grade posts.
It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under articles 14 and 16 of the Constitution in the present case.
Mr. N. C. Chatterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation, and that personal evaluation open is the door to the abuses of nepotism and favouritism, and so, there was a. violation of the constitutional guarantee under articles 14 and 16 of the Constitution.
We are unable to accept this argument as well founded.
The question of a proper promotion policy depends on various conflicting factors.
It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority.
That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below.
But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit.
As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him.
But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business.
The problem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion policy.
In this connection Leonard D. White has stated as follows: "The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole Organisation.
The main interest to be served is the public interest, not the personal interest of members of the official group concerned.
The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the Promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit.
For the merit system ought to apply as specifically in making promotions as in original recruitment.
Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion.
Within limits, seniority is entitled to consideration as one criterion of selection.
It tends to eliminate favouritism or the suspicion thereof; and experience is 123 certainly a factor in the making of a successful employee.
Seniority is given most weight in promotions from the lowest to other subordinate positions.
As employees move up the ladder of responsibility, it is entitled to less and less weight.
When seniority is made the sole determining factor, at any level.
it is a dangerous guide.
It does not follow that the employee longest in service in a particular trade is best suited for promotion to a higher grade; the very opposite may be true".
(Introduction to the Study of Public Administration, 4th Edn., pp. 380, 383).
As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under articles 14 and 16 of the Constitution.
For the reasons expressed we hold that the petitioner has been unable to make out a case for the grant of a writ under article 32 of the Constitution.
The petition accordingly fails and is dismissed.
There will be no order as to costs in the Circumstances of this case.
Petition dismissed.

dataset_name: IN-Abs

summary/full:
The All India Services Act, 1951, empowers the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service.
In exercise of this power the Central Government framed the Indian Police Service (Regulation of Seniority) Rules, 1954.
Rule 6 of the said Rules requires that a Gradation List of all Police Officers in a State should be maintained to ascertain their respective seniority.
Accordingly, a Gradation List wag prepared by the respondent State in which the petitioner was shown as senior to respondents 3 and 4.
In 1955, the petitioner was superseded by respondents 3 and 4 who were confirmed in the rank of Deputy Inspector General of Police, and in 1966, the third respondent was promoted as Inspector General of Police and respondent 4 was appointed as Additional Inspector General of Police, superseding the petitioner.
The petitioner filed a writ petition in this Court under article 32, contending that: (1) he was entitled as a matter of right to big appointed as Deputy Inspector General of Police in 1955 and as Inspector General of Police, in 1966, as he was shown as the senior most officer in the Gradation List; (2) in the absence of, any statutory rules governing promotions to selection grade posts the Government could not issue administrative instructions imposing restrict ions not found in the Rules already framed such as that merit and not seniority should be considered; (3) the introduction of the idea of merit into the procedure of promotion is violative of articles 14 and 16, because, it brings in an element of per sonal evaluation with the consequent abuses of nepotism and favouritism; and (4) if the Government is held to have the power to make appointments without making rules in that behalf under the proviso to Art, 309, then the appointments of respondents 3 and 4 would be arbitrary, capricious and in violation of articles 14 and 16 of the Constitution, because, the claims of the petitioner were not considered either in 1955 or in 1966.
HELD:(1) A perusal of rr. 3 and 8 of the Indian Police Service (Pay) Rules, 1954, read with Part B of Schedule III of those Rules shows that the three posts of Deputy Inspector General of Police.
Additional Inspector General of Police and Inspector General of Po ' lice in the respondent State, are selection posts outside the junior ' and senior time scales of Pay.
Promotion to selection grade or selection posts is to be based primarily on merit and not on seniority alone and therefore, the respondent State was not bound to promote the petitioner merely because he was senior in the Gradation List.
[118D F].
(2)While Government cannot amend or supersede statutory rules by administrative instructions, if rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
112 The State Government has executive power in respect of State Public Services mentioned in Entry 41, List II of Schedule VII of the Constitution, and, there is nothing in the terms of article 309 which abridges the power of the executive to act under article 162 without a law.
[119 F G, H].
T. Cajee vs U. Jormanik Siem, ; and B. N. Na. garajanv.
State of Mysore, , followed.
(3) To ensure a reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men, it is necessary to evolve a proper promotion policy in which is found a correct balance between seniority and merit.
As a matter of long administrative practice promotion to selection grade or selection posts in the Indian Police Ser vice had been based on merit, and seniority was taken into consideration only when merit of the candidates is otherwise equal and no other criterion is available.
Such a procedure does not, in any way, violate the guarantee under articles 14 and 16 of the Constitution [112E; 123C D].
(4)The respondent State had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner and of every other officer entitled to be considered at the time of the promotion before promotion of respondents 3 and 4 to selection posts was made, and therefore, there was no breach of the provisions of articles 14 and 16.
[121D E].


judgement:
Appeals Nos.
150 154 of 1967.
Appeals from the judgment and order dated February 26, 1965 of the Madras High Court in Writ Petitions Nos.
1321, 1495, 1496 and 1553 of 1964.
S.V. Gupta, Silicitor General, V. Ramaswamy and A. Rangam, for the appellant (in C.As.
Nos. 150, 153 of 1967).
K. N. Mudaliyar, Advocate General, Madras, V. Raniaswaln and A. V. Rangajn, for the appellant (in C.A. No. 154 of 1967).
N.C. Chatterjee and R. Ganapathy Iyer, for the respondents (in C.As.
150, 151 and 154 of 1967).
A. G. Pudissery, for the intervener.
The Judgment of the Court was delivered by Wanchoo, C. J.
These five appeals on certificates granted by the Madras High Court raise common questions of law and will be dealt with to ether.
We shall give brief facts in one of the appeals (No. 150 of 1967) arising out of writ petition No. 1321 of 1964 in order to understand the questions that fall to be decided in the present appeals.
On August 19, 1964, at about 5.00 p.m, the officers of the Commercial Tax Department (hereinafter referred to as the Department) raided the premises of Zenith Lamps and Electricals Ltd., (hereinafter referred to as the Company).
It is said that the premises were searched and a Suit case was seized and forcibly removed by the officers who made the raid, in spite of the fact that they were informed that the box did not contain any papers or documents belonging to the Company and its contents consisted merely of personal effects of one of the Managing Directors, namely, Shri Ramkishan Srikishan.
Jhaver.
The raid and search were made by the authorities concerned on information that Shri Geonka, one of the Directors of the Company, had removed a box containing secret accounts relating to it.
The main contention of the petitioner in support of his prayer that the articles seized should be returned to him was under three heads.
It was first contended that on a proper construction of section 41 of the Madras General Sales Tax Act, No. 1. of 1959 (hereinafter 151 referred to as the Act), the officers of the Department had no authority to search the premises and seize either the account books or the goods found therein.
Secondly, it was contended that if section 41(4) authorised seizure and confiscation of goods, it was beyond the legislative competence of the State Legislature, for it could not be covered by item 54 of list II of the Seventh Schedule to the Constitution relating to "taxes on the sale or purchase of goods.
" Lastly, it was contended that if various provisions in s.41 were capable of being construed as authorising search and seizure.
the provisions contained therein were unconstitutional in view of article 19(1) (f) and (g) of the Constitution.
It is not necessary to refer to the facts in the other petitions which have resulted in the other appeals before this Court because in those cases also there was search and seizure by the officers of the Department and their action is being attacked on the same grounds.
All the petitions were opposed on behalf of the State Government and its case was firstly.
that s.41 authorised search and seizure; secondly, that the State Legislature was competent to enact s.41(4) under item 54 of list 11 of the Seventh Schedule to the Constitution; and thirdly, that the provisions in question did not offend article 19(1) (f) and (g) of the Constitution and were in any case protected by article 19(5) and (6).
The High Court held that section 41(2) did not allow search being made thereunder, as it only provided for inspection, and that search was a different thing altogether from inspection.
The High Court further held that if s.41 (2) provided for search it would be within the legislative competence of the State Legslature.
The High Court took the view that the power of seizure and confiscation of goods contained in sub section (4) could not be said to be ancillary and incidental to the power to tax sale or purchase of goods and therefore this provision was beyond the legislative competence of the State Legislature.
Finally, the High Court held that sub sections (2), (3) and (4) of ' section 41 were unconstitutional as they were unreasonable restrictions on the fundamental rights guaranteed under article 19(1) (f) and (g) of the Constitution.
Besides the above.
the High Court also found with respect to one of the petitions that the search warrant issued for the search of the residential house by the magistrate disclosed that the magistrate had not applied his mind at all to the necessity of the search of he residential house, for columns in the printed search warrant which should have been struck out were not so struck out.
Further the gaps in the printed form which should have been filled in before the warrant was issued had not been filled in.
From these two circumstances the High Court concluded that the search warrant for the residential house had been issued without the application of mind by the magistrate to the necessity of the search of the residential house.
The High Court further found that s.41(4) was not complied with strictly before confiscation was ordered and no pro 152 per opportunity was given to the dealer to show that the goods seized and confiscated were not accounted for in his accounts.
In the result therefore the High Court allowed all the petitions and directed that the documents, things and goods covered by the petitions should be returned to the petitioners along with photographs, negatives, translations and notes made by the Department from the accounts etc.
The State of Madras then applied for and obtained certificates from the High Court to appeal to this Court and that is how the matter has come before us.
The same three questions which were raised, before the High Court have been raised before us on behalf of the appellant.
Before, however, we deal with them we would briefly refer to the provisions of the Act which are material for our purposes.
Section 3 is the main charging section which provides that "every dealer whose total turnover for a year is not less than Rs. 10,000. . shall pay a tax for each year at the rate of 2 per cent of his taxable turnover.
" The point at which tax has to be paid on single point taxable goods is indicated in the First Schedule to the Act and that will show that in a large majority of cases the tax has to be paid at the point of first sale in the State, though in some cases it has to be paid at the point of first purchase or of last purchase in the State.
Section 4 is another charging section in respect of declared goods and the Second Schedule to the Act deals with the point at which tax has to be paid in respect of such goods.
That Schedule also shows that in a majority of cases the tax had to be paid at the point of first sale in the State, though in some cases it has to be paid at the point of first purchase in the State or the last purchase in the State.
Certain goods are exempt from the tax under the Act as provided in the Third Schedule and do not thus form part of the taxable turnover, though they will be a part of the turnover for purposes of calculating the total turnover per year.
The Act provides for registration of firms and of dealers, for appointment of officers, for collection of tax, for the levy of penalty, and for appeals and revisions.
It also casts a duty on dealers to maintain a true and correct account.
Then comes section 41 with which we are particularly concerned.
It is in these terms: "(1) Any officer empowered by the Government in this behalf may, for the purpose of this Act.
require any dealer to produce before him the accounts, registers, records and other documents and tot furnish any other in formation relating to his business.
(2)All accounts, registers, records and other documents maintained by a dealer in the course of his business.
the goods in his possession and his offices, shops, godowns, vessels or vehicles shall be open to inspection at all reasonable times by such officer: Provided that no residential accommodation (not being a place of business cum residence) shall be entered 153 into and searched by such officer except on the authority of a search warrant issued by a Magistrate having jurisdiction over the area, and all searches under this sub section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure.
1898 (Central Act V of 1898).
(3)If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax, fee or other amount due from him under this Act he may, for reasons to be recorded in writing, seize such accounts. registers, records or other documents of the dealer as he may consider necessary, and shall give the dealer a receipt for the same.
The accounts, registers, records and documents.
so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceeding under this Act.
Provided that such accounts, registers and documents shall not be retained for more than thirty days at a time except with the permission of the next higher authority.
(4)Any such officer shall have power to seize and confiscate any goods which are found in any office.
shop, godown, vessel, vehicle, or any other place of business or any building or place of the dealer, but not accounted for by tile dealer in his accounts registers records and other documents maintained in the course of his business.
Provided that before ordering the confiscation of goods under this Sub section the officer shall give the person affected an opportunity of being heard and make an inquiry in the prescribed manner: Provided further that the officer ordering the confiscation shall give the person affected option to pay in lieu of confiscation (a)in cases where the goods are taxable under this Act, in addition to the tax recoverable a sum of money not exceeding one thousand rupees or double the amount of tax recoverable, whichever is greater; and (b)in other cases.
a sum of money not exceeding one thousand rupees.
Explanation It shall be open to the Government to empower different classes of officers for the purpose of asking action under sub sections (1).
(2) and (3)".
154 It will be seen from the above brief review of the provisions of the Act that it mainly deals with sales tax to be levied at the point of first sale in the State.
though there is also provision for purchase tax in certain cases.
It is in this background that we have to consider the construction of s.41 of the Act.
So far as sub s(1) is concerned, there is no difficulty.
It empowers any officer, empowered by the Government in this behalf, to require any dealer to produce before him the accounts registers, records and other documents and to furnish any other information relating to his business.
It may be mentioned here that the Government has empowered all officers of the Department not lower in rank than the Assistant Commercial Tax Officer, all officers of the Revenue Department not lower in rank than an Inspector and all officers of the Police Department not lower in rank than a Sub Inspector.
to act under s.41.
sub sections (2) to (4).
Presumably.
so far as sub section
(1) is concerned.
only officers of the Department can act under the provision.
However, there is no dispute with respect to that sub section as the power has to he exercised for the purpose of the Act i.e., with reference to assessment proceedings at all stages including recovery of tax and prosecution for offences.
It is not disputed that the power under sub section
(1) can only be exercised to require a dealer to produce accounts etc.
relating to his business and not that of any body else.
The main dispute centres round the interpretation of sub s.(2) of s.41.
The contention on behalf of the respondents is that that provision did not authorise search of premises but merely provided for inspection thereof it all reasonable times by the empowered officer.
We shall first deal with, the main part of sub section
(2) to see what it provides without reference to the proviso.
Clearly Sub s(2) provides for three things, namely (1) all accounts.
registers, records and other documents maintained by a dealer in the course of his business ',,hall be open to inspection at all reasonable times, (ii) the goods in the possession of the dealer shall also be open to inspection, and (iii) the dealer 's offices, shops, godowns, vessels or vehicles shall also be open to inspection.
There is no doubt that there are no specific words in sub section
(2) giving power of search.
But if we read the three powers conferred by sub s.(2) it should not be difficult to hold that search is included therein.
In sub s.(1) the dealer is required to produce his accounts etc.
and to furnish other information relating to his business and it is left to the dealer to produce what accounts he may say he has.
The legislature was however cognizant of the fact that a dealer may not produce all accounts or furnish ill information even though required to do so, under sub s.(1).
Therefore.
sub s.(2) provides that ,ill accounts etc.
of the dealer shall be open to inspection.
It also provides that the dealer 's offices.
shops, godowns, vessels or vehicles shall be open to inspection.
It is true that generally speaking a power to inspect does not necessarily give power to search.
But 155 where, as in this case, the power has been given to inspect not merely accounts, registers, records and other documents maintained by a dealer but also to inspect his offices, shops, godowns, vessels or vehicles, it follows that the empowered officer would have the right to enter the offices etc.
for purposes of inspection.
Naturally his inspection will be for purposes of the Act i.e., for the purpose of seeing that there is no evasion of tax.
If therefore during his inspection of offices etc.
the empowered officer finds any accounts, registers, records or other documents in the shop, those accounts etc.
will also be open to inspection.
Reading therefore these two provisions together, it is clear that the empowered officer has the right to; enter the offices etc.
and to inspect them, and if on such inspection he finds accounts etc.
he has also the power to inspect them.
Lind to see if they relate to the business.
These two powers taken together in our opinion mean that the em powered officer has the power to search the office etc.
and inspect accounts etc found therein.
Though therefore the word "search" has not been used in sub s.(2) these two powers of entering the offices etc.
for inspection and of inspecting every kind of account maintained by a dealer with respect to his business together amount to giving the officer concerned the power to enter and search the offices etc.
and if he finds any account in the offices, shops etc.
to inspect them.
Otherwise we can see no sense in the legislature giving power to the empowered officer to enter the offices etc.
for the purpose of inspection as the officer concerned would only do so for the purpose of finding out all accounts etc.
maintained by the dealer and if necessary to inspect them for the purposes of the Act.
We cannot therefore agree with the High Court that there is no power of search whatsoever in sub s(2) because the subsection in terms does not provide for search.
goods in the possession of the dealer.
He has also the power to enter the dealer 's offices etc.
for the purpose of such inspection, Combining these two powers together it follows on the same reasoning that the officer has the power to search for the goods also and to inspect them if found in the offices etc.
of the dealer.
We have therefore no hesitation in coming to the conclusion that the power of search is implicit in sub s.(2) with reference accounts etc.
maintained by the dealer and the goods in the ')possession of the dealer.
It also seems to us that this power in Sub section (2) is confined to offices, shops,godowns.
vessels and vehicles of the dealer and does not go beyond them.
It is urged on behalf of the appellant that as the officer is entitled to inspect all accounts etc.
maintained by the dealer he can search for them even in the dealer 's residential premises.
But we do not agree with this conten tion.
for we have found the power of search by reading the power of inspection of offices etc.
with the power of inspection of accounts etc.
and the power of inspection of goods.
Sub section
(2) does not give any power of inspecting the residential, accommodation 156 of the dealer and therefore it cannot be read as giving the power of search of the residential house for purposes of the Act.
But whether it is a case of business cum residence, the power of search will be there, for under sub s.(2) all offices, shops, godowns, vessels or vehicles of the dealer are open to inspection.
Let us now see what light is thrown on the interpretation of sub s.(2) by the proviso and whether the interpretation we have put on the main part of sub s.(2) is supported by the proviso.
The proviso lays down that (i) no purely residential accommodation shall be entered into and searched by such officer except on the authority of a search warrant issued by a Magistrate having jurisdiction over the area and (ii) that all searches under this sub section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure, 1898.
The latter part of the proviso clearly shows that the main part of sub s.(2) con templates searches, for it refers to all searches made under this sub section.
If the reference in the second part of the proviso was confined only to searches made under the first part of the proviso, the words would have been "all searches under this proviso shall be made in accordance with the provisions of the Code of Criminal Procedure.
" The proviso therefore bears out the construction that we have put on the main part of sub s.(2).
But it is urged that a proviso carves out something which is already contained in the main provision and the main provision at any rate does not provide for search of a purely residential accommodation.
Therefore the proviso is otiose.
That is what the High Court also seems to have held.
Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself.
We may in this connection refer to Bhonda Urban District Council vs Taff Vale Railway Co.(1), where s.51 of the Act there under consideration was framed as a proviso to preceding sections.
The Lord Chancellor however pointed out that "though s.51 was framed as a proviso upon preceding sections, but it is true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before.
Again in Commissioner of Income Tax vs Nandlal Bhandari & Sons(2) it was observed that 'though ordinarily a proviso restricts rather than enlarges the meaning of the provisional to which it is appended, at times the legislature embodies a substantive provision in a proviso.
The question whether a proviso is by way of an exception or a condition to the substantive provision, or whether it is in itself a substantive provision, must be determined on the substance of the proviso and not its form.".
(1) L. R. (2) [1963]47 157 Finally in State of Rajasthan vs Leela Jain(1) the question arose whether the proviso in the Act under consideration there was a limiting provision to the main provision or was a substantive provision in itself.
This Court observed that "so far as general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part.
" But it was further observed that the proviso in that particular case was really not a proviso in the accepted sense but an independent legislative provision by which to a remedy which was prohibited by the main part of the section, an alternative was provided.
These three cases show that in exceptional circumstances a proviso may not be really a proviso in the accepted sense but may be a substantive provision itself.
It seems to us that the proviso under consideration now is of this exceptional nature.
As we have already held, there is no provision in the main part of the sub section for searching purely residential premises.
Therefore when the proviso provides for such search it is providing for something in dependent of the main part of the sub section.
Further the second part of the proviso which talks of searches made under this sub section shows that the power of inspection provided in the main part of the sub section is tantamount to a power of search.
We have already come to that conclusion independent of the proviso.
All that we need say here is that the proviso also shows that that interpretation is correct.
We may add that we are not precluded from looking at the proviso in interpreting the main part of the sub section.
We may in this connection refer to the following passage in Maxwell on Interpretation of Statutes, Eleventh Edition, at p.155 where it is observed "There is no rule that the first or enacting part is to, be construed without reference to the proviso. 'The proper course is to apply the broad general rule of construction, which is that a section or enactment must be 'construed as a whole, each portion throwing light, if need be, on the rest '.
"The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together is to prevail.
" But as we have said already even without looking at the proviso, our conclusion is that the main part of sub s.(2) provides for searches and the proviso merely enforces that conclusion.
We therefore cannot agree with the High Court that subsection(2) does not provide for search of the business premises of a dealer, in the shape of offices etc.
(1) 158 Then we come to sub section(3).
That provides for the seizure of accounts etc.
, if the empowered officer has reason to suspect that any dealer is attempting to evade the payment of any tax.
fee or other amount due from him under the Act.
If he has such reason he may for reasons to be recorded in writing seize such accounts etc.
Now if sub s.(2) gives power of search, sub s.(3) merely provides further power to seize the accounts etc.
found on such search.
We have already held that sub s.(2) gives the power of search and in that case sub s.(3) is merely complementary to sub s.(2) and gives the ,empowered officer the power to seize the accounts found in certain circumstances.
If anything, sub s.(3) also bears out that sub s.(2) must include the power of search for a seizure under sub s.(3) is not possible unless there is a search.
Reading therefore sub s (2), its proviso and sub s.(3) together we are of opinion that they provide for search and seizure without warrant except that if the place searched is a purely residential accomodation it cannot be searched without a search warrant from a Magistrate.
It naturally follows that if it cannot be searched without a search warrant it is not open to the empowered officer to seize anything from a residential accommodation for he cannot enter and search it unless he has a warrant from a Magistrate to do so.
The next question relates to the legislative competence of the State, legislature to enact sub s.(4).
This subsection provides for seizure and confiscation of any goods found in any office etc. including purely residential accommodation after search if they are not accounted for in the accounts maintained in the course of the dealer 's business.
The sub section thus completes the process which starts with sub section (1) and gives authority to the empowered officer to seize and confiscate goods of the nature indicated therein.
The contention on behalf of the respondents is that the power of confiscation provided by sub s.(4) was not within the competence of the State Legislature under item 54, List II.
of the Seventh Schedule relating to tax on sales and purchase of goods.
On the other hand.
the appellant justifies the power to seize and confiscate goods on the round that it is ancillary and incidental to the power to tax, for it is necessary to have such power in order to check evasion of tax and make it unprofitable.
The High Court held that the Act was not a law on goods and that a provision for confiscation of goods found on search was neither incidental nor ancillary to the power to tax contained in item 54.
List II of the Seventh Schedule.
Now it has not been and cannot be disputed that the entries in the various Lists of the Seventh Schedule must be given the widest possible interpretation.
It is also not in doubt that while making a law under any entry in the Schedule it is competent to the legislature to make all such incidental and ancillary provisions as may be necessary to effectuate the law; particularly it cannot be disputed that in the case of a taxing statute it is open to the legislature to enact provisions which 159 would check evasion of tax.
It is under this power to check evasion that provision for search and seizure is made in many taxing statutes.
It must therefore be held that the legislature has power to provide for search and seizure in connection with taxation laws in order that evasion may be checked.
It is further urged on behalf of the appellant that confiscation of goods which are not entered in accounts is merely a provision of ancillary nature to check evasion of tax by making it unprofitable for dealers to secrete goods in which they are dealing.
Reliance in this connec tion is placed on K. section Papantna and another vs Deputy Commercial Tax Officer, Guntakal,(1) where the Andhra Pradesh High Court upheld an analogous provision in the Andhra Pradesh General Sales Tax Act, (No. 6 of 1957).
in s.28 (6).
We do not propose in the present case to decide the general question whether a power to confiscate goods which are found on search and which are not entered in account books of the dealer is an ancillary power necessary for the purpose of stopping evasion of tax.
Assuming that is so, we have still to see whether sub s.(4) of the Act can be upheld read along with the second proviso thereof.
It may be added that there is no such provision as the second proviso in s.28 of the Andhra Pradesh General Sales Tax Act.
We do not therefore propose to express any opinion as to the correctness of the above decision of the Andhra Pradesh High Court.
Sub s(4) of s.41, before it was amended by the Madras General Sales Tax (Second Amendment) Act.
from April 1, 1961, had only the first proviso with respect to giving an opportunity of being heard and making an enquiry in the matter before ordering confiscation.
By the amendment of 1961, the second proviso was added.
That provides that the officer ordering the confiscation shall give the person affected option to pay in lieu of confiscation.
in cases where the goods are taxable under the Act.
in addition to the tax recoverable, a sum of money not exceeding one thousand rupees or double the amount of tax recoverable.
whichever is greater.
This provision clearly requires the officer ordering confiscation to do two things(i) to order the person concerned to pay the tax recoverable.
and (ii) to pay a sum of money not exceeding one thousand rupees or double the amount of tax recoverable.
whichever is greater.
We have already indicated that in a large majority of cases covered by the Act the tax is payable at the point of first sale in the State.
But under cl.(a) of the second proviso the tax is ordered to be recovered even before the sale, in addition to the penalty not exceeding Rs. 1,000 or double the amount of tax recoverable whichever is greater.
Therefore cl.(a) of the second proviso is clearly repugnant to the general scheme of the Act which in the majority of the cases provides for recovery of tax at the point of first sale in the State.
In view of this repugnancy one or other of these two provisions must fall.
Clearly it (1967) XIX S.T.C. 506.
160 is cl.
(a) in the proviso which under the circumstances must fall, for we cannot hold that the entire Act must fall because of this inconsistency with respect to recovery of tax under cl.(a) of the ,second proviso even before the taxable event occurs in the large majority of cases which would be covered by the Act.
We are ,therefore of opinion that cl.(a) of the second proviso being repugnant to the entire scheme of the Act, in so far as it provides for recovery of tax even before the first sale in the State which is the point of time in a large majority of cases for recovery of tax, must ,fall, on the ground of repugnancy.
It is next urged that in any case the second provisio is severable and therefore only this proviso would fall and not the main part of sub s.(4).
We are however of opinion that cl.
(a) of second proviso is not severable.
We have already indicated that originally the second proviso was not there in the Act.
It was brought in by the amendment of 1961 and it compels the officer to give the 'Option, and thus compels recovery of tax even in those cases where the tax is recoverable only at the first point of sale in the State which naturally has not occurred in cases of goods seized 'from the dealer himself.
Considering the fact that the legislature added this compulsory proviso later, it is clear that the legislature intended that the main part of the section and the second proviso should go together.
It is difficult to hold therefore that after the introduction of the second proviso in 1961, the legislature could have intended that the main part of sub s.(4) should stand by itself.
We are therefore of opinion that sub s.(4) with the two provisos must fall on this narrow ground.
We therefore agree with the High Court and strike down sub s.(4) but for reasons different from those which commended themselves to the High Court.
Then we come to the question whether sub ss.(2) and (3) of s.41 of the Act which have been struck down by the High Court on the ground that they are unreasonable restrictions on the right to hold property and to carry on trade have been correctly struck down.
The main reason which impelled the High Court to strike ,down sub s.(2) was that there was no safeguard provided for search made thereunder.
The High Court held that section 165 of the Code of Criminal Procedure did not apply to searches made under sub s(2).
It also held that the State Government was given the power to empower any officer to make a search under sub s.(2) and this meant that even an officer of low status could be empowered.
Consequently the High Court struck down sub s.(2) on the ground that it gave arbitrary power of search which could be made even by an officer of low status.
It is true that search under this sub section can be made by any officer empowered by Government in this behalf, but we have no reason to think that Government will not empower officers of proper status to make searches.
In this very case, we find that the Government empowered an Assistant Commercial Tax Officer, a Revenue Inspector and a Sub Inspector of Police to make searches.
Considering the 161 large number of dealers who are covered by the Act, it cannot be said that these officers are of such low status that they cannot be depended upon to make a search with due care and caution.
We cannot also forget that in a case of this kind the Government cannot find sufficient number of officers of what may be called high status to make searches, for dealers who may be covered by the Act may be legion throughout the State, and if such searches could only be made by high officers there would not be enough officers available to do so.
The fact that the Act gives power to Government to, empower any officer is therefore no reason to strike.
it down for, as we have said, the Government will see that officers of proper status are empowered.
Nor do we think that an Assistant Commercial Tax Officer or an Inspector of Revenue Department or a Sub Inspector of Police Department is not an officer of proper status to make searches under this provision.
We are also of opinion that though sub s.(2) itself provides no safeguards and might have been open to objection on that ground, there is a provision in the proviso to, sub s.(2) which lays down that all searches under this subsection shall, so far as may be.
be made in accordance with the provisions of the Code of Criminal Procedure.
Therefore, the provisions of the Code of Criminal Procedure, so far as may be, apply to all searches made under sub section
It appears that in the High Court, the parties as well as the Court assumed that s.165 of the Code of Criminal Procedure would not apply to searches under sub s.(2) We cannot see any warrant for this assumption.
The proviso clearly lays down that all searches made under this sub section, so far as may be, shall be made in accordance with the provisions of the Code of Criminal Procedure.
Thus all provisions contained in the Code of Criminal Procedure relating to searches would be applicable to searches under sub s.(2), so far as may be.
Some of these provisions are contained in Chapter VII but one such provision is contained in s.165.
It is true that that section specifically refers to an officer in charge of a police station or a police officer making an investigation.
But when the proviso applies the provisions of the Code of Criminal Procedure to all searches made under this sub section, as far as may be possible, we see no reason why s.165 should not apply, mutatis mutandis, to searches made under sub s.(2).
We are therefore of opinion that safeguards provided in section 165 also apply to searches made under sub section
These safeguards are (i) the em powered officer must have reasonable grounds for believing that anything necessary for the purpose of recovery of tax may be found in any place within his jurisdiction, (ii) he must be of the opinion that such thing cannot be otherwise got without undue delay, (iii) be must record in writing the grounds of his belief, and (iv) he must specify in such writing so far as possible the thing for which search is to be made.
After he has done these things, he can make the search.
These safeguards, which in our opinion 162 apply searches under sub s.(2) also clearly show that the power to search under sub section
(2) is not arbitrary.
In view of these safeguards and other safeguards provided in Chapter VII of the Code apply so far as may be to searsee no reason to hold that the restriction, if any, on the right to hold property and to carry on trade by the search provided in sub s.(2) is not a reasonable restriction keeping in view the object of the search, namely, prevention of evasion of tax.
Next we come to sub s.(3), which as we have already stated, is complementary to sub s.(2).
It provides in addition to the safeguards which have to be complied with when a search is made under sub s.(2), that the officer may seize accounts etc.
if he has reason to suspect that any dealer is attempting to evade the payment of any tax etc.
due from him under the Act.
It also provides that he has to record his reasons in writing and we are of opinion that these reasons have to be recorded before the accounts are seize.
It further provides that the dealer shall be given a receipt, and this means that the receipt must be given as and when the accounts etc.
are seized.
Finally it provides that these accounts etc.
Shall be retained by such officer so long as may be necessary for their examination and for any enquiry or proceeding under the Act.
These in our opinion are sufficient safeguards and the restrictions iS any, on the right to hold property and the right to carry on trade by sub s.(3) must therefore be held to, be a reasonable restriction.
We may add that the proviso to sub s.(3) has fixed the period for which the officer seizing accounts can keep them, namely, ' @o days at a time, and if he wants to keep them for has to 'take the permission of the next additional safeguard entitling the dealer accounts after every 30 days, 'unless 'a higher officer has permitted the retention of accounts for a period longer than 30 days.
We cannot therefore agree with the high High Court that sub sections
(2) and (3) of section 41 of the Act are unreasonable restrictions on the right to hold property or carry on trade for reasons indicated.
We are of opinion that they are reasonable restrictions which are protected by cls.
(5) and (6) of article 19 of the Constitution.
We now proceed to consider what order should be passed in the appeals in the view we have taken about the interpretation and validity of sub sections
(2) and (3) of section 41 of the Act.
We have already indicated that the High Court held that the warrant issued by the Magistrate for search of the residental accommodation was bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filled in.
But this was not done.
163 That conclusion of the High Court has xi(4 @re ,@n challenged before us.
The High Court has further held 'that a r pr6kr and reasonable opportunity was not given to the persons concerned to show that the goods seized Were not prpperly accounted for in their account books, though this findili ' is not material now for 9 we have held that sub s.(4) falls in its entirety.
It follows therefore that anything recovered from the search of the residential accom modation on the basis of this defective warrant must be returned.
It also follows that anything confiscated must also be returned, as we have held that sub s.(4) must fall.
As to the accounts etc.
said tot have been seized, it appears to us that the safeguards provided under section 165 of the Code of Criminal procedure do not appear to have been followed when the search was made for the simple reason that everybody thought that provision was not applicable to a search under sub s.(2).
Therefore, as the safeguards provided in section 165 of the Code of Criminal Procedure were not followed, anything recovered on a defective search of this kind must be returned.
It follows therefor that the final order of the High Court allowing the writ petitions must stand, though we do not agree with the interpretation of the High Court that sub ss.(2) and (3) are unconstitutional on the ground of their being unreasonable restrictons on the right to hold property and to carry on trade.
The appeals therefore fails and are hereby dismissed.
In view of our decision on the main question of law, we order parties to bear their own costs in all the appeals.

summary/full:
On August 19, 1964, officers belonging to the Department of the appellant raided and searched the premises of a company and foreibly removed certain accounts and goods.
The respondents challenged the department 's action by writ petitions filed in the High Court under article 226 of the Constitution praying that the articles seized should be returned.
It was contended by the petitioners that on a proper construction of section 41 of the Madras General Sales Tax Act, No. 1 of 1959, the officers of the Department had no authority to search the premises and seize any account books or goods found there; that if section 41(4) authorised seizure and confiscation of goods, it was beyond the legislative competence of the State Legislature, for it was not covered by item 54 of List II of the Seventh Schedule to the Constitution relating to "taxes on the sale or purchase of goods"; and that if various provisions in section 41 were capable of being construed as authorising search and seizure, they were violative of article 19(1)(f) and (g) of the Constitution.
The High Court allowed the Petitions holding, inter alia, that section 41 (2) did not permit a search being made and only provided for inspection; the power of seizure or confiscation in section 41(4) was beyond the legislative competence of the State Legislature; and that subsections (2), (3) and (4) of section 41 contained unreasonable res trictions and were violative of article 19(1) (f) and (g).
The High Court also found with respect to one of the petitions that the search warrant had been issued without the application of Mind by the magistrate and was bad.
On appeal to this Court; Held: dismissing the appeal, (i)Anything recovered during the search must be returned to the petitioners for the safeguards provided by section 165 of the Code of Criminal Procedure were not followed and in one case the finding of the High Court that the search warrant issued by the magistrate was bad on various grounds was not challenged; furthermore anything confiscated must also be returned as sub section (4) of section 41 must fall.[163 B D].
Clause (a) of the second proviso to sub section (4) gives power to the officer ordering confiscation to give the person affected an option to pay in lieu of confiscation, in cases where the goods are taxable under the Act, the tax recoverable and an additional amount and thus provides for recovery of tax even before the first sale in 149 the State which is the point of time in a large majority of cases for recovery of tax.
As such it was repugnant to the entire scheme of the Act and sub section (4) must therefore be struck down.
As Clause (a) compels the officer to give the option and thus compels recovery of tax before the first point of sale, which cannot have occurred in cases of goods seized from the dealer himself, it is clearly intended by the legislature to go together with the main part of the Section and is not therefore severable.
[159F 16OD].
(ii) Although generally speaking the power to inspect does not give power to search, where, as in the case of section 41 (2) the power has been given to inspect not merely accounts registers, records, goods, etc., but also to inspect the offices, shops etc.
, these two powers together amount to giving the concerned officer the power to enter and search the offices etc.
and if he finds any accounts or goods in the offices, shops, etc., to respect them.
The High Court was therefore wrong in holding that there was no power of search whatsoever under sub section (2).
[154H 155E].
The proviso to sub section (2) in providing that all searches under "this sub section" shall be made in accordance with the provisions of the Code of Criminal Procedure, bears out the construction that the main part of sub section (2) contemplates searches.
Similarly it is clear from sub section (3) which gives power to seize accounts etc., in certain circumstances, that sub section (2) must include the power of search for a seizure under sub section (3) is not possible unless there is a search.
[156D E. 158B C].
The contention that as the main part of sub section (2) does not provide for search of a purely residential accommodation and therefore the proviso is otiose must be rejected.
Although generally a provision is an exception to the main part of the section, it Is recognised that in exceptional cases, as in the present case, the provision may be a substantive provision itself.
[156D F].
Bhonda Urban District Council vs Taff Vale Railway Co., L. R. Commissioner of Income tax vs Nandlal Bhandari & Sons , and State of Rajasthan vs Leela Jain.
; , referred to.
(ii)Sub sections (2) and (3) of section 41 are not violative of article 19 as they are protected by clauses (5) and (6) of article 19 of the Constitution.
[162F G].
The High Court had wrongly assumed that the provisions of the Criminal Procedure Code did not apply to a search under section 41(2).
In view of the safeguards provided in section 165 Cr.
P.C. and in Chapter VII of that Code, it cannot be said that the power to search provided in sub section (2) is not a reasonable restriction keeping in View the object of the search, namely, prevention of evasion of tax.
[161EG].
The mere fact that the Act gives power to Government to em power any officer to conduct the search is no reason to strike down the provision for it cannot be assumed that Government will not empower officers of proper status to make searches.
[160 H], To, exercise the power of seizure under sub section (3) the officer concerned has to record his reasons in writing, has to give a receipt for the accounts seized, and can only retain the items seized beyond a period of 30 days with the permission of the next higher officer.
These are sufficient safeguards and the restriction, if any, on 150 the right to hold property and the right to carry on trade by sub section (3) must therefore be held to be a reasonable restriction.
[162 D G].
While the court held that the Legislature has power to provide for search and seizure in connection with taxation law in order that evasion may be checked, it did not decide the general question whether a power to confiscate goods which are found on search and which are not entered in account books of the dealer is an ancillary power necessary for the purpose of stopping evasion of tax.
[159C D].
K.S. Papanna and another vs Deputy Commercial Tax Officer, Gunkakal, (1967) XIX S.T.C. 506; referred to.