judgement:
ivil Appeal Nos.
1639 40 of 1987.
From the Judgment and order dated 20.12.1984 of the Madras High Court in W.P. No. 349 of 1979.
A.K. Sen and A.V. Rangam for the Appellants.
section Rangarajan, Ms. Asha Rani, Sanjay Parikh and Sanjiv Madan for the Respondents.
The Judgment of the Court was delivered by SEN, J.
These appeals by special leave are directed against a judgment of a Division Bench of the Madras High Court dated December 20, 1984 reversing the judgment and order of a learned Single Judge dated March 27, 1979 and allowing the writ petition filed by respondent No. 1 herein Thiru Chaturvedi Badrinath, a senior member of the Indian Administrative Service, and directing the issuance of a writ of mandamus ordaining the State Government of Tamil Nadu from granting the requisite permission of the Government under r. 17 of the All India Services (Conduct) Rules, 1968 for the institution of a suit for damages for defamation by him against respondent No. 2 Thiru V. Karthikeyan, the then Chief Secretary to the State Government of Tamil Nadu by a defamatory statement that he.
493 allegedly, made to a correspondent of the Indian Express against him.
A The facts.
At the relevant time, respondent No. 1 Thiru Badrinath was the Commissioner of Archives & Historical Research, Tamil Nadu.
On September 7,1973 he delivered a speech at a function held by the History Association of the Presidency College, Madras criticising the time capsule buried in the precincts of the Red Fort at Delhi and said that it was full of distortions of historical facts describing it as 'neither history nor fiction '.
This led to a furore both in Parliament as well as in the national press.
The Government feeling greatly embarrassed by the controversy created about the authenticity of the time capsule, started disciplinary inquiry against respondent No. 1 under rr. 6 and 7 of the All India Services (Conduct) Rules on the view that being a civil servant it was not desirable that he should have participated in a public discussion on the time capsule.
However, the State Government by a G.O. dated August 25, 1977 dropped the disciplinary proceedings.
Just a day before i.e. On August 24, 1977 a signed news item appeared in all the editions of the Indian Express about the controversy regarding the time capsule stating that a Government spokesman charged respondent No. 1 as trying to 'sabotage the civil services from within '.
Taking umbrage at the offending utterance, respondent No. 1 addressed a letter dated August 25, 1977 expressing his anguish that such a statement was made by a Government spokesman, and desired to know as to who that Government spokesman was; and whether he indeed uttered the words and if so, whether that reflected the views of the Government.
On the same day, respondent No. 2 in his capacity as the Chief Secretary replied that he had no information to communicate to him on the subject.
On December 5, 1977 respondent No. 1 addressed another letter to respondent No. 2 in the form of a representation complaining of the defamatory attack on him, demanding that the Government should issue a contradiction through the press.
The Government did not accede to the demand.
In the meanwhile, respondent No. 1 apparently addressed a letter to a certain Shastri Ramachandran, the press correspondent of the Indian Express, asking him to disclose the name of the Government spokesman.
The correspondent by his letter dated December 14, 1977 informed that the Government spokesman was respondent No. 2 who during a telephonic conversation with him had made the offending utterance.
There were certain other utterances attributed to respondent No. 2 with which we are not concerned.
Upon this, respondent No. 1 by his letter dated December 19, 1977 sought permission to meet the Chief Minister and personally place before him his grievance set out in his aforesaid representation.
The grievance of 494 respondent No. 1 is that the letter was never replied to.
Eventually, on December 28, 1977 respondent No. 1 applied for sanction of the Government under r. 17 of the Rules seeking permission to institute a suit against respondent No. 2 for damages for defamation.
This was sought on the ground that in an interview with Thiru Shastri Ramachandran, the corresondent of the Indian Express, respondent No. 2 had charged him with trying to sabotage the civil services from within and that the charge was per se defamatory and was made with intent to bring disrepute to his career as a scholar and historian and caused irreparable damage to his reputation as a civil servant.
By the impugned G.O. dated February 7, 1978 the Government refused to grant the permission applied for to respondent No. 1.
Against the refusal respondent No. 1 moved the High Court under article 226 of the Constitution for the issuance of a writ of mandamus and other appropriate writs, directions and orders.
A learned Single Judge (V. Ramaswami, J.) by his judgment and order dated January 23, 1979 dismissed the writ petition on the ground that respondent No. 1 was not entitled to grant of the requisite permission under r. 17 of the Rules as a matter of course and it could not be said that the refusal of the Government to grant such permission was arbitrary, capricious or on irrelevant consideration.
On the contrary, he held that the Government refusal was based on proper grounds inasmuch as the Government had taken into account all the relevant considerations including public interest and the interest of maintenance of discipline in the civil service.
The learned Single Judge further observed that public interest was certainly a proper ground on which the Government could refuse the permission, if they were of the view that grant of such permission would expose another officer to unnecessary harassment through vexatious proceedings or encourage feud among civil servants and that had to be prevented.
Aggrieved, respondent No. 2 preferred an appeal under cl. 15 of the Letters Patent.
A Division Bench (M.M. Chandurkar, CJ and Sathiadev, J.) by its judgment and order dated December 20, 1984 allowed the appeal holding that the refusal of the State Government to grant the requisite permission under r. 17 of the Rules could not be justified on the ground of public interest.
The entire judgment of the Division Bench proceeds on the wrongful hypothesis that the obtaining of prior permission of the Government under r. 17 was a condition precedent for the maintainability of a suit for damages.
It also manifestly erred in its view that the speech delivered by respondent No. 1 at the function was in his official capacity as the Commissioner of Archives & Historical Research and therefore the intended suit fell within the ambit of r. 17 of the Rules in 495 asmuch as it was a suit for the vindication of an official act.
We are afraid, it is difficult to sustain the judgment of the Division Bench.
In exercise of the powers conferred by sub section
(1) of section 3 of the All India Services Act, 1951, the Central Government after consultation with the Government of the States concerned framed the All India Services (Conduct) Rules.
The Rules are a complete code in itself, obviously designed to frame a Code of Conduct for the members of the Service to ensure absolute integrity and devotion to duty and responsibility, in order that there is a fearless and impartial civil service in existence in the country.
They form the bullwork of the executive power of the Union and the States and also form the instrumentality through which such powers have to be exercised.
The key provision is the one contained in r. 3 which is spinal importance and reads: "3.
General (1) Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service.
(2) Every member of the Service shall take all possible steps to ensure integrity of, and devotion to duty by, all Government servants for the time being under his control and authority.
(3) (i) No member of the Service shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in writing.
Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter.
(iii) A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible and in such case,it shall be the duty of the official superior to confirm the direction in writing.
496 Explanation: Nothing in clause (i) of sub rule (3) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities." After laying down a rigorous code by framing r. 3 to ensure that members of such.
service discharge their duties and functions with absolute integrity and do nothing which is unbecoming of a member of the Service, the Central Government has provided by rr. 4 to 20 the various constraints under which the members of the Service must function.
These rules necessarily form part of their conditions of service under sub section
(1) of section 3 of the All India Services Act.
Rule 4 places a restraint on the use of position or influence to secure directly or indirectly employment of near relations in a private organisation, r. 5 on taking part in politics and contesting elections, r. 6 on having connection with the mass media, the press or the radio, r. 7 on engaging in criticism of Government, r. 8 on giving evidence before any committee, person or other authority except with the previous sanction of the Government, and where such sanction has been accorded, on giving evidence criticising the policy or any action of the Government, r. 9 on unauthorised communication of information, r. 10 on asking for or accepting contributions to or raising of public subscription, r. 11 on accepting gifts, r. 11A on giving or taking of dowry, r. 12 on taking part in public demonstration, r. 13 on private trade or employment, r. 14 on investment, lending and borrowing, r. 15 on insolvency and habitual indebtedness, r. 16 on acquisition of property, movable or immovable, r. 17 on having recourse to any Court or the press for the vindication of an official act or character, r. 18 on convassing for others, r. 19 on taking a second spouse and r. 20 on consumption of intoxicating drinks and drugs.
A close analysis of these Rules clearly brings out that the provision contained in r. 17 is nothing but a restraint on a member of the Service.
Rule 17 of the Rules read with the Explanation thereto provides as follows; " 17.
Vindication of acts and character of members of the Service No member of the Service shall, except with the previous sanction of the Government have recourse to any court or to the press for the vindication of official act which has been the subject matter of adverse criticism or attack of a defamatory character.
497 Explanation Nothing in this rule shall be deemed to A prohibit a member of the Service from vindicating his private character or any act done by him in his private capacity.
Provided that he shall submit a report to the Government regarding such action.
" According to its plain terms, r. 17 is in the nature of a restraint on a member of the All India Services from bringing a suit for damages for defamation for an act done in the exercise of his official duties as a public servant or from going to the press in vindication of his official act or character.
explanation to r. 17 seeks to restrict the scope and effect of the restraint placed by r. 17.
No member of the Service is prohibited from vindicating his private character for any act done by him in his private capacity.
Proviso thereto however casts on him a duty to report to the Government regarding such action.
Analysing the provision of r. 17 Sri Asoke Sen, learned counsel for the appellants contends that to attract r. 17 three conditions must be fulfilled, namely: (1) The intending plaintiff must be a member of the Service.
(2) The suit must be for the vindication of his official act or character.
(3) The official act must be the subject of a defamatory statement.
According to the learned counsel, though two of the conditions are fulfilled, namely: (1) that respondent No. 1 was a member of the Service and (2) the subject matter viz. the statement made by respondent No. 2 and alleged to be of a defamatory character was made by him in his official capacity as the Chief Secretary, there was non fulfilment of the third condition.
He rightly urges that the speech delivered by respondent No. 1 criticising the authenticity of the time capsule was merely an expression of opinion on his private capacity.
In substance, the contention is that r. 17 read with the Explanation thereto clearly places such private acts outside the purview of the restraint placed by r. 17.
The contention to the contrary by respondent No. 1 Thiru Badrinath was that it was not open to the appellants to say that r. 17 was not attracted and he drew our attention to the concession made by the learned Advocate General as reflected in the judgment of the learned Single Judge: "The learned Advocate General also stated that the act complained of was an official act and, therefore, the intended suit was to vindicate an official act which was the subject matter of a defamatory criticism.
Therefore, we H 498 have to proceed on the basis that the criticism which is A complained of as defamatory related to an official act of the petitioner.
In view of this concession, he contends that it is now not open to the t appellants to say that r. 17 was not attracted.
In dealing with these contentions, it is.
rather pertinent to observe that the learned Single Judge did not record a finding that r. 17 of the Rules was not attracted in the facts and circumstances of the case.
After setting out the provision contained in r. 17, he observes that the requirement of r. 17 are that (i) the act which has been the subject matter of adverse criticism should be an official act and (ii) the criticism of the attack must be defamatory in character.
We are entirely in agreement with the view expressed by the learned Single Judge.
No construction other than the one reached by him is possible.
During the course of his judgment, the learned Single Judge adverts to paragraph 17 of the writ petition where respondent No. l has averred that his intended suit was to vindicate his private character and not to vindicate any official act.
The case of respondent No. 1 therefore throughout has been that r. 17 of the Rules was not attracted to the suit and indeed he goes on to aver that he was entitled to file a suit even without the permission of the Government under r. 17.
However, he goes on to say that if a suit were to be filed it might land him into trouble in that disciplinary proceedings might be taken against him for having instituted a suit without previous permission of the Government.
On the assumption that such sanction was necessary under r. 17, he moved the High Court for grant of an appropriate writ under article 226 of the Constitution, apparently by way of ex abundanti cautela.
The learned Single Judge did not deal with the scope and ambit of r. 17 in view of the concession made by the learned Advocate General.
We have no manner of doubt that the appellants are not bound by the concession made by the learned Advocate General before the learned Single Judge.
It is unfortunate that the State Government was not properly advised at the earlier stages of the proceedings in insisting upon the view that such permission was required under r. 17 and that it was justified in refusing to grant the permission prayed for.
The concession made by the learned Advocate General being on a matter of law is not binding.
That apart, Sri Ashoke Sen, learned counsel for the appellants has very fairly accepted the point of view put forth by respondent No. 1 in the writ petition that no such permission was required.
499 In the premises, the decision of the Division Bench appealed from suffers from a serious infirmity.
In the instant case, respondent No. 1 Thiru Badrinath made a speech incidentally at a time when he was holding the post of the Commissioner of Archives & Historical Research, at a function organised by the History Association of the Presidency College, Madras.
He was invited to make a speech on the occasion presumably for his attainments in the field.
But the speech delivered by him on the occasion could not be treated to be an official act of his and therefore the suit brought by him against respondent No. 2 Thiru V. Karthikeyan, the then Chief Secretary of Tamil Nadu could not be treated to be a suit for the vindication of his official act.
It is common knowledge that persons of erudition and eminence are often times asked to grace such occasions or make a speech and when they do so, undoubtedly they give expression to their personal views on various subjects.
By no stretch of imagination can it be said that while doing so they act in the discharge of their official duties merely because they happen to hold public office.
At the end of the day, we wish to mention that Thiru Badrinath stated before us that he had filed the suit in the High Court for damages for defamation against respondent No. 2 Thiru V. Karthikeyan without waiting for the prior permission of the State Government under r. 17 of the Rules and that the suit was filed before the expiry of the period of limitation of one year as provided for by article 75 of the .
He further stated that the Registry of the High Court however returned the plaint with the endorsement that the same be presented after the decision in the writ petition.
He drew our attention to the averment in paragraph 22 of his affidavit in reply to the effect: "I respectfully submit that, at the time I had filed W.P. No. 979/1978 against Go dated the 7th February, 1978, 1 had formally presented to the Registry of the Madras High Court a civil suit for defamation against the Chief Secretary.
I was advised to do this in order to prevent the time limit for such suits from expiring, should the decision in the writ petition be that, the defamatory attack on me by Shri Karthikeyan being of a personal kind I was covered by the proviso in Rule 17 and would not, therefore, require government sanction under Rule 17.
Quite correctly, after a note being made of the date on which the suit was presented, it was returned to me, saying that it would have to wait for a decision in the writ petition.
Following the judg 500 ment in the writ appeal, setting aside the decision in W.P.979/1978, I have been waiting for government sanction.
It also transpires that the suit was filed by respondent No. 1 without serving a notice as required under section 80 of the Code of Civil Procedure, 1908.
We refrain from expressing any opinion as to whether the return of the plaint for representation after the decision of the writ petition would save the running of the time.
The questions whether the suit is barred by limitation or not, or whether the same was competent without a notice under section 80 of the Code, are question to be determined by the High Court in the suit.
Accordingly, the appeals must succeed and are allowed.
The judgment and order passed by the Division Bench of the High Court are set aside and that of the learned Single Judge dismissing the writ petition restored.
The High Court will now proceed with the suit brought by respondent No. 1 in accordance with law.
The rights and n contentions of the parties are left open.
There shall be no order as to costs.
H.L.C. Appeals allowed.

summary/full:
Respondent No. 1 who was functioning at the relevant time as the commissioner of Archives and Historical Research, Tamil Nadu, delivered a speech at a function held by the History Association of the Presidency College, Madras criticising the time capsule buried in the precincts of the Red Fort at Delhi which led to a furore both in Parliament as well as in the national press.
The Government, feeling greatly embarrassed by the controversy, started a disciplinary inquiry against him on the view that being a civil servant it was not desirable that he should have participated in a public discussion on the time capsule but later on dropped the same.
However, just a day before that, a signed news item appeared in a newspaper about the controversy regarding the time capsule stating that a Government spokesman had charged respondent No. 1 as trying to 'sabotage the civil services from within '.
Having failed in his efforts to ascertain from the Government the identity of its spokesman who had made this offending utterance against him or to induce it to issue a contradiction through the Press, respondent No. 1 addressed a letter to the correspondent of the newspaper asking him to disclose the name of the Government spokesman.
The correspondent, in his reply, stated that the Government spokesman was respondent No. 2, the Chief Secretary to the Government, who, during a telephonic conversation with him, had made the offending utterance.
Respondent No. 1 made a representation to the Government with regard to his grievance in this behalf but, finding that there was no response, applied for sanction of the Government under r. 17 of the All India Services (Conduct) Rules, 1968 seeking permission to institute a suit against respondent No. 2 for damages for defamation.
The Government refused to grant the permission and respondent No. 1 moved the High Court under article 226 of the Constitution against the order of refusal.
The writ petition was dismissed by a Single Judge, who inter alia in his judgment referred to a concession made by the Advocate 491 General appearing for the appellants that the act complained of was an official act and, therefore, the intended suit was to vindicate an official act which was the subject matter of a defamatory criticism.
Respondent No. 1 preferred an appeal under cl.
15 of the Letters Patent and a Division Bench allowed the appeal holding that the refusal of the State Government to grant the requisite permission under r. 17 could not be justified on the ground of public interest.
B Allowing the appeals, ^ HELD: According to its plain terms, r. 17 of the All India Services (Conduct) Rules, 1968 is in the nature of a restraint on a member of the All India Services from bringing a suit for damages for defamation for an act done in the exercise of his official duties as a public servant or from going to the press in vindication of his official act or character.
Explanation to r. 17 seeks to restrict the scope and effect of the restraint placed by r. 17.
No member of the Service is prohibited from vindicating his private character or any act done by him in his private capacity.
Proviso thereto however casts on him a duty to report to the Government regarding such action.
[497B c l In the instant case, respondent No. 1 made a speech incidentally at a time when he was holding the post of the commissioner of Archives & Historical Research, at a function organised by the History Association of the Presidency College, Madras.
He was invited to make a speech on the occasion presumably for his attainments, in the field.
But the speech delivered by him on the occasion could not be treated to be an official act of his and therefore the suit brought by him against respondent No. 2, the then Chief Secretary of Tamil Nadu could not be treated to be a suit for the vindication of his official act.
It is common knowledge that persons of erudition and eminence are often times asked to grace such occasions or make a speech and when they do so, undoubtedly they give expression to their personal views on various subjects.
By no stretch of imagination can it be said that while doing so they act in the discharge of their official duties merely because they happen to hold public office.
[499A D] During the course of his judgment, the learned Single Judge adverts to paragraph 17 of the writ petition where respondent No. 1 has averred that his intended suit was to vindicate his private character and not to vindicate any official act.
The case of respondent No. 1 therefore throughout has been that r. 17 of the Rules was not attracted to the suit and indeed he specifically aver that he was entitled to file a suit even 492 without the permission of the Government under r. 17.
However, he goes on to say that if a suit were to be filed it might land him into trouble in that disciplinary proceedings might be taken against him for having instituted a suit without previous permission of the Government.
On the assumption that such sanction was necessary under r. 17, he moved the High Court for grant of an appropriate writ under article 226 of the Constitution, apparently by way of ex abundanti cautela.
The learned Single Judge did not deal with the scope and ambit of r. 17 in view of the concession made by the learned Advocate General.
We have no manner of doubt that the appellants are not bound by the concession made by the learned Advocate General before the learned Single Judge that the act complained of was an official act.
It is unfortunate that the State Government was not properly advised at the earlier stages of the proceedings in insisting upon the view that such permission was required under r. 17 and that it was justified in refusing to grant the permission prayed for.
The concession made by the learned Advocate General being on a matter of law is not binding.
[498D G]


judgement:
Civil Appeal No. 443 of 1985.
503 From the Judgment and order dated 6.5.1985 of the Allahabad High Court in C.M.W.P. No. 2822 of 1983.
Dr. Y.S. Chitale, Mrs. Rekha Pandey, S.P. Pandey, Atul Tiwari, Pinaki Misra, Mrs. Mamta Kachawala and Miss Bina Gupta for the Appellant.
M.K. Banerjee, Solicitor General, A.K. Ganguli, Gopala Subramaniam, K.J. John, M.M. John, Harish N. Salve and Miss Nisha Srivastava for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This is an appeal by special leave.
The appellant was employed on the production side of the Uttar Pradesh State Handloom Corporation, a public sector undertaking (hereinafter referred to as 'Corporation ' for short) on temporary basis.
Having been appointed on 30th of October, 1976 as Bunker Sewa he obtained two promotions while still working in temporary status and by 1983 was working as Deputy Production Manager.
The appellant 's letter of appointment, as far as material, stated: "With effect from the date of taking over charge Shri Rabindra Kumar Mishra . is hereby appointed as Bunker Sewa . on the following terms and conditions: (1) That his appointment is temporary and his services are liable for termination with one month 's notice or one month 's pay in lieu of notice from either side On November 22, 1982 the appellant was placed under suspension and that order read as follows: "As a result of preliminary enquiries made by the Central Manager on 13.11.1982 of the Production Center, Kunda and other Centres under the same, it has come to notice that Sri R.K. Misra, former Dy.
Production Manager, Kunda, is responsible for misconduct, dereliction of duty, mismanagement and showing fictitious production of terrycot cloth.
He is, therefore, placed under suspension with immediate effect . . . " (Underlinings are ours) 504 On the 1st of February, 1983 the order of suspension was A revoked and on 10th of February, 1983 the impugned order terminating his services being to the following effect was passed: "The undersigned hereby gives notice to Shri R.K. Misra, Deputy Production Manager, Production Center, Kunda, Prataapgarh, Salon Rai Bareilly that his services are no more required and his service will be deemed to be terminated from receipt of this notice by him.
It is directed that he will be entitled to receive one month 's salary in lieu of notice period on the same rate on which he was receiving salary before termination of his service.
" The appellant challenged the order of termination of his service before the Allahabad High Court but the High Court declined to interfere by holding that the termination was not punitive and the question of breach of principles of natural justice did not arise.
It is not disputed that the employer Corporation is 'State ' within the meaning of Article 12; yet it has not been contended and rightly that the protection of Article 311(2) of the Constitution is avilable to the employees of the Corporation.
The appellant has however, claimed that he is entitled to the protection of Article 14 and 16 of the Constitution; though his order of termination is innocuous the setting in which it has been made clearly makes it an order of dismissal and the High Court has gone wrong in holding that the order of termination was not punitive; as service was determined by the order of termination attaching stigma the appellant was entitled to a hearing commensurate with rules of natural justice and in the absence of that opportunity of being heard the order is liable to be quashed.
It cannot be disputed that temporary service can be terminated by notice.
The order of appointment in the appellant 's case made it abundantly clear that with a month 's notice or payment of salary m lieu of notice such termination could be effected by either side Rule 63 of the Corporation Rules made in exercise of Article 127 of the Articles of Association of the Uttar Pradesh State Handloom Corporation Limited recognised such a power.
That Rule provides: " 1.
The appointing authority may, at any time, during the pendency of the temporary tenure terminate the services of a temporary employee by giving him one month 's notice or emoluments for such lesser period by H 505 which the notice falls short of one month.
The temporary employee, on his part, shall have the option of quitting service by giving one month 's notice to the appointing authority or paying to the Corporation an amount equal to his one month 's pay . " The order of termination of service in this case is indeed innocuous.
The appellant is not entitled to the protection of Article 311(2) of the Constitution not being a member of a civil service of the Union or a State nor holder of a civil post under the State but his own Service Rules provide under Rule 68 that if the punishment of discharge or dismissal is imposed, an enquiry commensurate with requirements of natural justice is a condition precedent.
Admittedly no such enquiry has been held.
The question that crops up here for determination, therefore, is whether the impugned order was an order of termination simpliciter or really amounted to an order of dismissal.
In Purshotam Lal Dhingra vs Union of India, [ ; a Constitution Bench of this Court stated: "This use of expression 'terminate ' or 'discharge ' is not conclusive.
In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely.
(1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herinbefore referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.
This view has been approved by another Constitution Bench of this Court in Champaklal Chimanlal Shah vs The Union of India, [ 19641 5 SCR 190.
After indicating approval, Wanchoo, J. as he then was, spoke for the Constitution Bench thus: "It is well known that Government does not terminate 506 nate the services of a public servant, be he even a temporary servant without reason; nor is it usual for Government to reduce a public servant in rank without reason even though he may be holding the higher rank only tempoarily.
One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end.
In that case, there is nothing further to be said and his services terminate when the post comes to an end.
Similarly a Government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end.
But besides the above, the Government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work.
The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure.
This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him.
In such cases two courses are open to Government.
It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct.
Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary, he will have the protection of Article 311(2).
But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work.
ln this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered.
It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him.
An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and his enquiry is held in accordance with the principles of natural 507 justice.
This is what is known as a formal departmental enquiry into the conduct of a public servant . . "Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the Two should not be confused.
Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually is held to satisfy Government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already, Government does not usually take action of this kind without any reason.
Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a Government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which generally follows such a preliminary enquiry) when the Government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant.
Therefore, so far as the preliminary enquiry is concerned, there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right.
In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of Government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
" Both Pershotam Lal Dhingra 's case (supra) and Champaklal 's case 508 (supra) were referred to and relied upon in Shamsher Singh & Anr.
vs State of Punjab, ; This is a case which was heard by a 7 Judge Bench.
Ray, CJ., who spoke for the majority of five considered all the cases rendered by this Court till then touching on the point and at page 841 of the Reports stated as follows: "The form of the order is not decisive as to whether the order is by way of punishment.
Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311.
In such a case the simplicity of the form of the order will not give any sanctity.
" In Sharnsher Singh 's case (supra) the ratio of the two earlier Constitution Bench judgment was approved.
On facts it was found that the order of termination though innocuous in form was really an order by way of punishment removing the appellant from service on the basis of charges of gross misconduct found to have been established by an exparte enquiry conducted by the S.P. Vigilance Department with the only object of ascertaining truth of the alleged misconduct and for the purpose of dismissing or removing the appellant, if charges were found established.
It was ultimately on the basis of specific findings recorded by the S.P. Vigilance that the appellant 's services were terminated.
The Court found that the enquiry by the S.P. Vigilance was essentially and in character and object different from the informal enquiry into the and in object different from the informal enquiry into the suitability of the appellant.
Ray, CJ.
in Shamsber Singh 's case (supra) further pointed out: "The fact of holding an enquiry is not always conclusive.
What is decisive is whether the order is really by way of punishment . .
A probationer whose terms of services provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2).
An order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract Article 311.
Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted 509 unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. " In Regional Manager & Anr.
vs Pawan Kumar Dubey, ; it was observed by this Court thus: 1 "We think that the principles involved in applying Article 311(2) having been substantially explained in Shamsher Singh 's case (supra) it should not no longer be possible to urge that Sughar Singh 's case could give rise to some misapprehension of the law.
Indeed we do not think that the principles of law declared and applied so often have really changed.
But the application of the same law to the differing circumstances and facts of various cases which have come up to this court could create the impression some times that there is some conflict between decisions of this Court.
Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood.
It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar.
One additional or different fact can make a word of difference between conclusions in two cases even when the same principles are applied in each case to similar facts . ".
As we have already observed, though the provisions of Article 311(2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal.
In several authoritative pronouncements of this Court, the concept of 'motive ' and 'foundation ' has been brought in for finding out the effect of the order of termination.
If the delinquency of the officer in temporary service is taken as the operative motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action.
This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated.
It may also be necessary to find out whether the officer should be tried for some more time on temporary basis.
Since both in regard to a temporary employee or an officiating employee in a higher post such H 510 an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character.
In a large democracy as ours, administration is bound to be impersonal and in regard to public officers whether in Government or public Corporations, assessments have got to be in writing for purposes of record.
We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character.
There may be cases where an enquiry is undertaken and prima facie material for serious charges are found; by disclosing the result of such preliminary enquiry, the officer concerned is put under suspension in contemplation of disciplinary action.
After such steps have been taken, the employer/appropriate authority decides not to continue the departmental proceedings but makes an order terminating the service, as has been done in this case.
Counsel for the respondents pointed that that in the matter of ordering termination of service of a temporary employee, the order follows a review of his working.
Unless the termination is ordered because there is no need for the post, in the absence of reasons for termination, the action is open to challenge as arbitrary, particulary when other similarly situated employees are continued in service.
When reasons are given, they are bound to disclose adverse features of the employee and disclosure of such features become the ground of challenge of the order on the plea that termination is not innocuous.
To meet this position, the distinction between 'motive ' and 'foundation ' has been adopted by the courts.
As long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order of termination it is unexceptionable.
No straight jacket test can be laid down to distinguish the two and whether 'motive ' has become the foundation has to be decided by the court with reference to the facts of a given case.
The two are certainly two points of one line ordinarily apart but when they come together 'motive ' does get transformed and merges into foundation.
As has been held by a three Judge Bench in State of U.P. vs Ram C 'handra Trivedi, ; the position in regard to cases of the present nature is clear and the examination of the decisions of this court shows that there is no real conflict in their ratio decidendi.
On facts as established in different cases, courts have applied the known 511 tests and in order that complete justice may be done on the facts found, there have been punishable deviations.
We may point out that this Court in a Consitution Bench judgment in the case of State of Orissa & Anr.
vs Ram Narayan Dass, [ ; , indicated: "The fact of the holding of an enquiry is not decisive of the question.
What is decisive is whether the order in the light of the decisions laid down in Parshotam Lal Dhingra 's case.
Keeping in view the principles indicated above, it is difficult to accept the claim of the appellant.
He was a temporary servant and had no right to the post.
It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month 's notice.
The order to which exception is taken is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences.
It is also not founded on misconduct.
In the circumstances, the order is not open to challenge .
We may point out that the learned Solicitor General appearing for the Corporation had at the commencement of the arguments suggested that the appellant could be given some compensation for termination.
Ordinarily, under the law he would not be entitled to compensation in a case of this type, but since he has been put out of employment at an advanced age and it may be difficult for him to get an alternate employment, while dismissing his appeal we think it reasonable to call upon the Corporation to pay a consolidated amount of Rs.25000 (Rupees Twenty five Thousand only).
Accordingly the appeal is dismissed.
The amount of Rs.25,000 as indicated above may be paid to the appellant within one month from today.
There would be no order for costs.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Rule 63 of the U.P. State Handloom Corporation Rules stipulates termination of temporary service on one month 's notice on either side.
Rule 68 provides that if the punishment of discharge or dismissal is imposed, an enquiry commensurate with requirements of natural justice is a condition precedent.
The appellant was employed in the aforesaid Corporation on temporary basis.
The order of appointment stated that his services were liable for termination with one month 's notice or one month 's pay in lieu of notice on either side.
He was placed under suspension in November 1982 on charges of misconduct, dereliction of duty, mismanagement and showing fictitious production entries.
That order, however, was revoked in November 1983 and his services terminated forthwith by notice entitling him to one month 's salary.
The High Court held that the termination was not punitive and the question of breach of principles of natural justice did not arise.
In this appeal by special leave it was contended that the appellant was entitled to the protection of Articles 14 and 16 of the Constitution, that though his order of termination was innocuous, the setting in which it has been made clearly makes it an order of dismissal punitive in character and that as his service was determined by the order attaching stigma the appellant was entitled to a hearing commensurate with rules of natural justice and in the absence of the opportunity of being heard the order was liable to be quashed.
Dismissing the appeal, ^ HELD: As long as the adverse feature of the employee remains the motive and does not become transferred as the foundation of the order of termination, it is unexceptionable.
Whether 'motive ' has be 502 come the foundation has to be decided by the Court with reference to the facts of a given case.
[510 G] It is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated.
It may also be necessary to find out whether the officer should be tried for some more time on temporary basis.
Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary, merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character.
[509G H; 510A B] There may be cases where an enquiry is undertaken and prima facie material for serious charges are found; by disclosing the result of such preliminary enquiry, the officer concerned is put under suspension in contemplation of disciplinary action.
After such steps have been taken, the employer/appropriate authority decides not to continue the departmental proceedings but makes an order terminating the service.
[510C D] In the instant case the appellant was a temporary servant and had no right to the post.
Both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month 's notice.
The order of termination was in innocuous terms.
It did not cast any stigma on him nor did it visit him with any evil consequences.
The order was, therefore, not open to challenge.
[S11C D] The appellant is not entitled to compensation under the law.
But since he has been put out of employment at an advanced age and it may be difficult for him to get an alternate employment, the Corporation to pay him a consolidated amount of Rs.25,000.
[511F] Purshotam Lal Dhingra vs Union of India, ; ; Champaklal Chimanlal Shah vs The Union of India, ; Shamsher Singh & Anr.
vs State of Punjab, ; ; Regional Manager & Anr.
vs Pawan Kumar Dubey; ; ; State of U.P. vs Ram Chandra Trivedi, and State of Orissa & Anr.
vs Ram Narayan Dass, [19611 I SCR 606, referred to.


judgement:
ition No. 7993 of 1982.
(Under Article 32 of the Constitution of India).
R.K. Jain and R.P. Singh for the Petitioner.
Prithiviraj and Mrs. Shobha Dikshit for Respondent Nos. 1 and 3 to 5.
Kuldip Singh, Additional Solicitor General, Mr. C.V. Subba Rao and B. Parthasarthy for Respondent No. 2.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This is a petition under Article 32 of the Constitution.
The petitioner is engaged in the manufacture of Khandsari sugar.
The petitioner challenges the validity of the U.P. Khandsari Sugar (Levy) order, 1981 ("Levy order").
It was issued in exercise of powers under Section 3 of the by virtue of delegation of power by the Central Government under Section 5 of the said Act.
The levy order requires Khandsari manufacturing units to surrender levy of 50% of the production by sulphitation units in the first process.
The balance 50% of that process with the total production by subsequent processes was left free to be sold in the open market by the manufacturing units.
The price fixed for the levy Khandsari sugar was Rs. 320 per quintal .
The petitioner challenges the price fixation on the ground that the State Government has not taken into consideration the guidelines in built in sub section 3C of section 3 of the .
The petitioner alleges that the levy order is unreasonable or excessive restriction on the fundamental rights guaranteed under Articles 19(1)(g) and 14 of the Constitution.
lt is also the case of the petitioner that the State Government sold the levy sugar by public auction realising large profit and the levy therefore, was a colourable exercise of the power.
Before considering these contentions, we may start with recent observation of o. Chinnappa Reddy, J. in Union of India vs Cynamide India Ltd. AIR 1987 Sept. SC 1802 at 1805: .
"Price fixation is neither the function nor the forte of the Court.
We concern ourselves neither with the policy nor with the rates.
But we do not totally deny ourselves the jurisdiction to inquire into the question, in appropriate 580 proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price.
For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price, we wilt, if necessary, inquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price.
But our examination will stop there.
We will go no further.
We will not deluge ourselves with more facts and figures.
The assembling of the raw materials and the mechanics of the price fixation are the concern of the executive and we leave it to them.
And, we will not revaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers.
The Court will, of course, examine if there is any hostile discrimination.
That is a different 'cup of tea ' altogether.
" This will be the parametre and the limitation of inquiry by Courts whenever the price fixation of any essential commodity is called into question.
The Court does not act like a Chartered accountant nor acts like an Income Tax officer.
The Court is not concerned with any individual case or any particular problem.
The Court only examines whether the price determined was with due regard to considerations provided by the statute.
And whether extraneous matters have been excluded from determination.
In the present case even this limited inquiry appears to be unnecessary.
The validity of the same levy order was the subject matter of decision of this Court in New India Sugar Works vs State of Uttar Pradesh & Ors.
l ; There Fazal Ali, J. who spoke for the Bench observed: "It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost.
We are, however, unable to agree with this argument.
The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers.
It is manifest that individual interest, however, precious they may be must yield to the larger interest of the 581 community viz., in the instant case, the large body of the consumers of sugar.
In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable.
In Shree Meenakshi Mills Ltd. vs U.O.I. this Court observed as follows.
"If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringment of fundamental right to carry on business by imposing reasonable restrictions.
In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable." (Emphasis supplied).
Similar view was taken by this Court in the case of Prag Ice and oil Mills & Anr.
vs Union of India [ ; where the Court speaking through Beg, C.J. Observed as follows: "It has also to be remembered that the object is to secure equitable distribution and availability at fair price so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time.
" In this view of the matter, the primary consideration in the fixation of price would be the interest of consumers rather than that of the producers.
Moreover, we think that since the petitioners are allowed to sell freely at any rate they like the remaining 50% of the sugar (after excluding the 50% which they have to give for levy) as also the produce by the second and third process, the loss if any caused to the petitioners would be minimal.
Mr. R.K. Jain learned counsel for the petitioner however, urged that the above case did not lay down the correct law.
He said that the primary consideration in the fixation of price would not be the interest of consumers, but to ensure a reasonable return to producers.
That H 582 according to him the law laid down by this Court in (i) The Panipat Co operative Sugar Mills vs Union of India [19731 2 SCR 860 and Anakapalle Coop.
& Industrial Society Ltd. vs Union of India & Ors.
, [ ; Since these two decisions have not been referred to in the New India Sugar Works case we should refer this case to a larger bench for decision.
We do not think that the counsel is justified in his submission.
We do not find any diversity of views taken in the aforesaid cases.
All those cases concerned with the price fixation of the essential commodity under the essential Commodities Act.
The primary object of the Act was to control the production supply and distribution of essential commodities and to make such commodities available at a reasonable price.
The Preamble of the Act makes it clear.
It reads: "An Act to provide in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities.
" The exercise provided under the Act was intended ultimately to serve the interest of consumers.
It is fundamental in the entire scheme of the Act.
But then, the interest of the industry as a whole cannot be left out.
It is also required to be borne in mind.
The levy price of sugar should ensure reasonable return to the industry.
That is one of the guidelines provided under sub section 3C of Section 3 of the .
But that does not mean that the interest of producers should outweigh the interest of consumers.
It would be tilting the balance too much.
Such a contention in our opinion, also runs afoul of our earlier analysis.
It is true that there is no express reference to Panipat and Anakapalle in the judgment in New India Sugar Works.
But the judgment need not be a digest of cases.
It need not be written like a thesis.
The decision in New India Sugar Works may be brief, but not less predictable on the principles of Panipat and Anakapalle.
There this Court found the levy price reasonable even from the point of view of the industry.
This Court took into consideration the liberty reserved to manufacturers to sell freely 50% of the Sugar manufactured and also 100% of the produce by 2nd and 3rd processes.
This Court was of opinion that by such a free sale the industry could get reasonable return.
We agree with this conclusion and see no reason for reconsideration.
As to the grievance of the petitioner that the State has made 583 profit by the sale of Khandsari sugar at public auction, we perused the counter affidavit of the State.
We do not find any colourable exercise of the power.
There was every justification for the sale by public auction.
It has been stated that the petitioner and some other producers delivered inferior quality of Khandsari.
That was found to be unacceptable to consumers at Fair Price Shops.
The State officers accordingly reported to the Government.
The Government issued instructions to distribute the levy sugar liberally through permits for marriages and religious functions.
The consumers, however, could not come forward.
The Government then directed the disposal of levy sugar by public auction.
It was not with a view to earn profit although incidentally the Government made some profit.
The levy sugar was brought to public sale only to prevent deterioration when the consumers refused to accept it.
We have no reason to doubt the explanation given by the State Government.
In the result, the Writ Petition fails and is dismissed with costs.
N.P.V. Petition dismissed.

summary/full:
% In a writ petition, the petitioner challenged the price fixation on the ground; that the State Government had not taken into consideration the guidelines in built in sub section 3C of section 3 of the , that the levy order was unreasonable or excessive restriction on the fundamental rights guaranteed under Articles 19(1)(g) and 14 of the Constitution, and that the levy was a colourable exercise of the power as the State Government sold the levy sugar by public auction realising large profit.
Dismissing the Writ Petition, ^ HELD: 1.1 The Court does not act like a Chartered Accountant nor acts like an Income Tax officer.
The Court is not concerned with any individual case of any particular problem.
The Court only examines whether the price determined was with due regard to considerations provided by the statute, and whether extraneous matters have been excluded from determination.
[580D E] Union of India vs Cynamide India Ltd. AIR 1987 Sept. SC 180 ' at 1805.
followed.
1.2 The primary consideration in the fixation of price would be 578 the interest of consumers rather than that of producers.
[581F] Since the petitioners in the instant case, are allowed to sell freely at any rate they like, the remaining 50% of the Sugar (after excluding the 50% which they have to give for levy) as also the produce by the second and third process, the loss if any caused to the petitioners would be minimal.
[581Gl New India Sugar Works vs State of Uttar Pradesh & Ors., ; , relied.
1.3 It is clear from the Preamble, that the primary object of the was to control production, supply, and distribution of essential commodities, and to make such commodities available at a reasonable price.
The exercise provided under the Act was intended ultimately to serve the interest of consumers.
It is fundamental in the entire scheme of the Act.
But then, the interest of the industry as a whole cannot be left out.
It is also required to be borne in mind.
The levy price of sugar should ensure reasonable return to the industry.
That is one of the guidelines provided under sub section 3C of section 3 of the Act.
But that does not mean that the interest of producers should outweigh the interest of consumers.
It would be tilting the balance too much.
[582C F] 1.4 There is no colourable exercise of power.
There was every justification for the sale by public auction.
The petitioner and some other producers delivered inferior quality of Khandsari, which was found to be unacceptable to consumers at Fair Price Shops.
The State officers accordingly reported to the Government, which issued instructions to distribute the levy sugar liberally through permits for marriages and religious functions.
The consumers, however, could not come forward.
The Government then directed the disposal of levy sugar by public auction.
It was not with a view to earn profit, although incidentally the Government made some profit.
The levy sugar was brought to public sale only to prevent deterioration when the consumers refused to accept it.
[583A C] The Panipat Co operative Sugar mills vs Union of India [197312 SCR 860 and Anakapalle Coop.
& Industrial Society Ltd. vs Union of India & Ors.
, ; , referred to.


judgement:
Petition No. 1 of 1987.
Election Petition under Section 16, 17, 18, 19 and 20 of Part III of the Petitioner in person (Mithilesh Kumar).
K. Parasaran, Attorney General T.S. Krishnamurthy Iyer, Krishnamurthy Swami and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The above petition is filed by the petitioner, Shri Mithilesh Kumar under the provisions of the (Act No. 31 of 1952) (hereinafter referred to as 'the Act ') calling in question the validity of the election of Shri R. Venkataraman, the 1st respondent herein as the 528 President of India at the election held in July, 1987 for electing the President of India and praying for a declaration that he is the successful candidate at that election.
There were three candidates at the election, namely, Shri R. Venkataraman respondent No. 1, Shri V.R. Krishna Iyer respondent No. 2 and Shri Mithilcsh Kumar the petitioner.
The result of the election was declared on 16.7.1987 by the Returning officer for Presidential Election 1987 respondent No. 4, declaring Shri R. Venkataraman respondent No. 1 as the President of India.
The Act was passed in the year 1952 for the purpose of regulating certain matters relating to or connected with the elections to the offices of the President and the Vice President of India.
Part II of the Act contains the provisions relating to the conduct of Presidential and Vice Presidential elections and Part III of the Act sets out the provisions relating to the settlement of disputes regarding elections to the offices of the President and the Vice President of India.
Section 14 of the Act provides that no election should be called in question except by presenting an election petition to the authority specified in subsection (2) and the authority having jurisdiction to try an election petition under the Act is specified as the Supreme Court of India by sub section (2).
Sub section (3) of section 14 of the Act requires that an election petition should be presented to the Supreme Court of India in accordance with the provisions of Part III of the Act and of the rules made by the Supreme Court of India under Article 145 of the Constitution of India.
Order XXXIX of the Supreme Court Rules, 1966 (hereinafter referred to as 'the Rules ') made under Article 145 of the Constitution of India and all other powers enabling it in this behalf by the Supreme Court of India contains the provisions relating to the election petitions filed under Part III of the Act.
Section 14 A of the Act provides that an election petition calling in question an election may be presented on one or more of the grounds specified in Sub/section (1) of section 18 and section 19 to the Supreme Court by any f candidate at such election or in the case of Presidential election, by twenty or more electors joined together as petitioners and in the case of Vice Presidential election, by ten or more electors joined as petitioners.
Such petition may be presented at any time after the date of the publication of the declaration containing the name of the elected candidate at the election under section 12 of the Act but not later than thirty days from the date of such publication.
Section is of the Act provides that subject to the provisions of Part III of the Act rules made by the Supreme Court of India under Article 145 of the Constitution of India may regulate the form of election petitions, the manner in which 529 they are to be presented, the persons who are to be made parties thereto, the procedure to be adopted in connection therewith and the circumstances in which petitions are to abate and to be withdrawn and in which new petitioners may be substituted and may require security to be given for costs.
Rule 3 of order XXXIX of the Rules prescribes that a court fee stamp of the value of rupees two hundred and fifty shall be paid on the election petition and the election petition will be signed by the petitioner or petitioners, if they are more than one, or a duly authorised advocate on record on his or their behalf.
Rule 4 of order XXXIX of the Rules provides that the petition shall be divided into paragraphs, numbered consecutively, each paragraph being confined to a distinct portion of the subject, and shall be printed or typed legibly on one side of standard petition paper, demy foolscap size or of the size of 29.7 cm.
x 21 cm.
Or on paper of equally superior quality.
Rule 5 of order XXXIX of the Rules requires that the petition shall state the right of the petitioner under the Act to petition the Court and briefly set forth the facts and grounds relied on by him to sustain the reliefs claimed by him.
The allegations of fact contained in the petition shall be verified by an affidavit to be made personally by the petitioner or by one of the petitioners, if there are more than one as provided under rule 6 of order XXXIX of the Rules.
The grounds on which the election of the returned candidate at the Presidential or the Vice Presidential election can be declared void are set out in section 18 of the Act Section 18 of the Act reads thus: " 18(1).
If the Supreme Court is of opinion, (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the consent of the returned candidate; or (b) that the result of the election has been materially affected (ii) by the improper reception or refusal of a vote; or (ii) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act; or (iii) by reason of the fact that the nomination of any 530 candidate (other than the successful candidate), who has not withdrawn his candidature, has been wrongly accepted; or (c) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void.
(2) For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IXA of the Indian Penal Code.
" Section 19 of the Act sets out the grounds for which a candidate other than the returned candidate may be declared to have been elected.
Section 19 of the Act reads thus.
Grounds for which a candidate other than the re turned candidate may be declared to have been elected.
If any person who has lodged an election petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Supreme Court is of opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Supreme Court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected: Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
" Section 18 of the Act is exhaustive of the grounds on which the election of the President or the Vice President can be declared void.
Under section 18(1)(a) an election of the President or of the Vice President may be set aside if it is established that the offence of bribery or undue influence, as explained in Chapter IXA of the Indian Penal 531 Code had been committed by the returned candidate or by any person with the consent of the returned candidate.
In order to succeed on the grounds mentioned in section 18(1)(a) of the Act it has to be established that the offence of bribery or undue influence had been committed at the election by the returned candidate himself; or by any person with his consent.
Originally when the Act was enacted section 18(1)(a) of the Act read thus: " 18(1).
If the Supreme Court is of opinion (a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate: or . . . . . . . . ." The word 'connivance ' in section 18(1)(a) of the Act was substituted later on by Parliament when the former Part III of the Act was substituted by the present Part III of the Act by the Presidential and the Vice Presidential Elections (Amendment) Act, 1977 to bring it in line with the provisions of section 123(1) and (2) of the Representation of the People Act, 1951, which contain the grounds of bribery and undue influence which would vitiate the election to either House of Parliament or to the Houses or House of the State Legislatures as the case may be.
Clause (b) of section 18(1) of the Act contains three grounds the proof of any of which would result in the election being declared void provided it is established that the result of the election has been materially affected thereby, namely, (i) the improper reception or refusal of a vote; or (ii) any non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act; or (iii) wrongful acceptance of the nomination of any candidate (other than the successful candidate), who has not withdrawn his candidature.
Clause (c) of section 18(1) of the Act provides that if the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted, the election of the returned candidate is to be declared void.
These are the only grounds on which the election of the returned candidate can be declared void under the Act.
Section 19 of the Act as stated already contains grounds for declaring a candidate other than the returned candidate as duly elected.
It should he stated at the outset that the manner in which the 532 present petition has been drafted is not in accordance with the Rules.
Ordinarily the petition should state in a narrative form succinctly and clearly all the facts as may be necessary to enable the respondents and the Court to understand the case of the petitioner.
This is not the case here.
The first part of the petition contains 13 questions and the answers given by the petitioner to those questions.
A reading of all these 13 questions and answers given thereto by the petitioner shows that the only ground on which the petitioner wished to call in question the election of the 1st respondent is that the issue of a whip by the Congress (I) Party to its legislators on the eve of the election asking them to cast their votes in favour of the 1st respondent was in the nature of a threat amounting to undue influence which is one of the two grounds set out in section 18( I)(a) of the Act.
The allegations made in this part of the petition suggest that the specific case of the petitioner is that the said act of undue influence had been committed by the members of the Congress (I) Party.
There is no allegation that any act amounting to undue influence was committed either by respondent No. ] himself, or by any other person with his consent.
Even in the second part of the petition which is entitled 'Notable points ' and the third part of the petition containing grounds to declare the election of the returned candidate as void, there is no averment that either the returned candidate himself had committed any act of undue influence or any other person had committed any act of undue influence with his consent.
The fourth part of the petition contains grounds to declare the petitioner as duly elected.
It is alleged in this part that by reason of the issue of the whip by the Congress (I) Party and/or by other parties the votes which would have been cast in his favour had been grabbed by the other candidates.
The fifth part of the petition contains the reliefs sought by the petitioner and the last part contains the prayer for an interim order directing the staying of the oath ceremony of the returned candidate which had been fixed to take place on the 25th of July, 1987.
There is no reference to any other ground mentioned in section 18 of the Act on the basis of which the election can be set aside.
After the petition was presented to this Court notice was issued to the respondents and also to the Attorney General of India as pro 533 tion is liable to be rejected at this stage itself since it does not disclose any cause of action.
Rule 34 of order XXXIX of the Rules provides that subject to the provisions of order XXXIX of the Rules or any special order or directions of the Court, the procedure on an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction.
Order XXIIl of the rules contains the rules of pleadings in cases filed under the original jurisdiction of this Court.
Rule 6 of order XXIII of the Rules states that the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law.
It is stated in the preliminary objections of the 1st respondent and the preliminary submissions of the Attorney General of lndia that since no where in the election petition the petitioner has stated that the offence of undue influence had been committed by the 1st respondent or by any other person with his consent and since no other ground specified in section 18 of the Act has been pleaded, the petition is liable to be rejected under rule 6 of order XXIII of the rules even assuming that all that the petitioner has stated in his petition is true.
After the preliminary objections of the 1st respondent and the preliminary submissions of the Attorney General of India were filed, the case was taken up for hearing on the said preliminary objections and preliminary submissions.
The petitioner Shri Mithilesh Kumar (in person), Shri T.S. Krishnamurthy Iyer, learned counsel for respondent No. 1 and Shri K. Parasaran, learned Attorney General of India were heard.
The issue which arises for consideration in this case is whether the election petition is liable to be rejected under rule 6 of order XXIII of the Rules on the ground that it does not disclose any cause of action.
The question of law involved in this case is no longer res integra.
In Charan Lal Sahu vs Neelam Sanjeeva Reddy, ; the petitioner in that petition had questioned the election of Shri Neelam Sanjeeva Reddy as the President of India.
In that decision this Court held that it was obligatory upon the Court to reject a petition outright and not to waste any more time upon a plaint or petition if the provisions of law bar or are shown to bar the proceedings.
The Court proceeded to hold that it was not even necessary to issue notice to any opposite party or parties in such a case.
The next decision in Charan Lal Sahu & others vs Giani Zail Singh & Another, [198412 S.C.R. 6 534 deals with facts which are very close to the facts of the present case.
In A the said case two issues arose for consideration: (i) can the election of a candidate to the of fice of the President of India be challenged on the ground that he is not a suitable person for holding that office; and (ii) whether the averments in that election petition, assuming them to be true and correct, disclose any cause of action for setting aside the election of the returned candidate on the ground stated in section 18(1)(a) of the Act.
This Court observed in that case that the rights arising out of elections, including the right to contest or challenge an election, were not common law rights, but they were creatures of the statutes which created, conferred or limited those rights.
Therefore, for deciding the question whether an election can be set aside on any alleged ground, the court has to consult the provisions of law governing the particular election.
The Court has to function within the framework of that law and cannot travel beyond it.
The Court proceeded to observe in the above decision thus at Pages 22 to 24: "Nor is it alleged that the offence of undue influence was committed by the returned candidate himself.
The allegation of the petitioners is that the offence of undue influence was committed by certain supporters and close associates of Respondent 1 with his connivance.
It is patent that this allegation, even if it is true, is not enough to fulfil the requirements of section 18(1)(a).
What that section, to the extent relevant, requires is that the offence of undue influence must be committed by some other person with the 'consent ' of the returned candidate.
There is no plea whatsoever in the petition that undue influence was exercised by those other persons with the consent of Respondent 1.
It is contended by Shri Shujatullah Khan who appears on behalf of the petitioners, that connivance and consent are one and the same thing and that, there is no legal distinction between the two concepts.
In support of this contention, learned counsel relies upon the meaning of the word 'connivance ' as given in Webster 's Dictionary (Third Edition, Volume 1, p 481); Random House (p. 311); Black 's Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8A, p. 173); and Corpus Juris Secundum (Volume 15A, p. 567).
The reliance on these dictionaries and texts cannot carry the point at issue any further.
The relevant question for consideration for the 535 decision of the issue is whether there is any pleading in the petition to the effect that the offence of undue influence was committed with the consent of the returned candidate.
Admittedly, there is no pleading of consent.
It is then no answer to say that the petitioners have pleaded connivance and according to dictionaries, connivance means consent.
The plea of consent is one thing: the fact that connivance means consent (assuming that it does) is quite another.
It is not open to a petitioner in an Election Petition to plead in terms of synonyms.
In these petitions, pleadings have to be precise, specific and unambiguous so as to put the respondent on notice.
The rule of pleadings that facts constituting the cause of action must be specifically pleaded is as fundamental as it is elementary. 'Connivance ' may in certain situations amount to consent which explains why the dictionaries give 'consent ' as one of the meanings of the word 'connivance '.
But it is not true to say that 'connivance ' invariably and necessarily means or amounts to consent, that is to say, irrespective of the context of the given situation.
The two cannot, therefore, be equated.
Consent imply that parties ad idem.
Connivance does not necessarily imply that parties are of one mind.
They may or may not be, depending upon the facts of the situation.
That is why, in the absence of a pleading that the offence of undue influence as committed with the consent of the returned candidate, one of the main ingredients of section 18(1)(a) remains unsatisfied.
The importance of a specific pleading in these matters can be appreciated only if it is realised that the absence of a specific plea puts the respondent at a great disadvantage.
He must know what case he has to meet.
He cannot be kept guessing whether the petitioner means what he says, 'connivance ' here, or whether the petitioner has used expression as meaning 'consent '.
It is remarkable that, in their petition, the petitioners have furnished no particulars of the alleged consent, if what is meant by the use of the word connivance is consent.
They cannot be allowed to keep their options open until the trial and adduce such evidence of consent as seems convenient and comes handy.
That is the importance of precision in pleadings, particularly in election petitions.
Accordingly, it is impermissible to substitute the word 'consent ' for the word 'connivance which 536 occurs in the pleadings of the petitioners.
The legislative history of the statute lends support to our view that for the purposes of section 18(1)(a), connivance is not the same thing as consent.
Originally, when the Act was passed in 1952, section 18(1)(a) provided that the Supreme Court shall declare the election of the re turned candidate void if it is of opinion that the offence of bribery or undue influence has been committed by the re turned candidate or by any person 'with the connivance ' of the returned candidate.
This sub section was amended by section 7 of the Presidential and Vice Presidential Elec tions (Amendment) Act S of 1974, which came into force on March 23, 1974.
The word 'connivance ' was substituted by the word 'consent ' by the Amendment Act.
If connivance carried the same meaning as consent and if one was the same as the other Parliament would not have taken the deliberate step of deleting the word 'connivance ' and sub stituting it by the word 'consent '.
The amendment made by the Amendment Act of 1974 shows that connivance and consent connote distinct concepts for the purpose of section 18(1)(a) of the Act.
Since, admittedly, there is no pleading in the Election Petition that the offence of undue influence was committed with the consent of the returned candidate, the petition must be held to disclose no cause of action for setting aside the election of the returned candidate under section 18(1) (a) of the Act.
" We have given above a fairly long quotation from the above decision because it contains all the reasons necessary to decide this case too.
We do not propose to repeat them.
They are applicable to this case also.
In the petition before us there is not even an allegation that the act of undue influence had been committed by some persons with the connivance of the 1st respondent.
The petition is as bald as it could be.
At the hearing after getting the entire petition read out the Court asked the petitioner to point out whether there was any allegation that the 1st respondent had himself committed any undue influence or any other person with the consent of the 1st respondent had committed such an act or any allegation which required to be tried and the petitioner was not able to point out any part of the petition in which such an allegation had been made.
In view of this infirmity we 537 have not found it necessary to examine whether the issuing of the whip by any political party amounts to undue influence vitiating an election even when such an act is committed by the returned candidate or with his consent by some other persons.
In the circumstances, the Court has no choice except to reject the petition as required under rule 6 of order XXIII of the Rules as it does not disclose any cause of action.
Before concluding we should observe that the petitioner did not appear to be quite serious about his case.
At one stage he contended having himself filed the petition before the Court that this Court had no competence to hear the case and at another stage he wanted 51 Judges to hear his petition when the maximum permissible strength of this Court is about one half of that number and the existing strength of this Court is less than one third of that number.
Rule 20 of order XXXIX of the Rules requires that every petition calling in question an election to the offices of the President and the Vice President shall be posted before and be heard and disposed of by a Bench of this Court consisting of not less than five Judges.
While we expect every conscientious citizen eligible to file an election petition to question an election on the grounds prescribed by the Act, we do not wish that any petitioner should make use of this Court as a forum to file a petition without giving adequate thought to its contents and also to the provisions of law governing the case merely to seek some cheap publicity.
We regret to say that seeing one 's name in newspapers everyday has lately become the worst intoxicant and the number of people who have become victims of it is increasing day by day.
We, however, refrain from referring to some other irrelevant and unwarranted statements made by him before this Court orally and in writing.
Perhaps the petitioner who desired to become the President of India did not understand the effect of what he was saying.
We shall leave it at that.
The petition is, therefore, rejected.
H.L.C. Petition dismissed.

summary/full:
% Part III of the sets out the provisions relating to the settlement of disputes regarding elections to the offices of the President and the Vice President of India.
Section 14(3) thereof requires that an ekction petition should be presented in accordance with the provisions of that Part and of the rules made by this Court under article 145 of the Constitution.
The rules so made are contained in O.XXXIX of the Supreme Court Rules, 1966.
Rule 34 thereof provides that subject to the provisions of that order or any Special order or directions of the Court, the procedure on an election petition shall follow, as nearly as may be, the procedure in proceedings before the Court in the exercise of its original jurisdiction, which procedure is set out in O.XXIII.
Rule 6 of o.
XXIII states inter alia that the plaint shall be rejected where it does not disclose a cause of action.
Respondent No. 1 was declared elected as the President of India at an election held in July, 1987.
The petitioner who had contested in the said election as a candidate filed this petition questioning the validity of the election of respondent No. 1 and praying for a declaration that he was the successful candidate at that election.
Rejecting the petition, ^ HELD: In the circumstances of this case the Court has no choice except to reject the petition as required under r. 6 of O.XXIII of 526 the Supreme Court Rules, 1966 as it does not disclose any cause of A action.
[537B] (i) Section 18 of the Presidential and Vice Presidential Elections Act, 1952 is exhaustive of the grounds on which the election of the President or the Vice President can be declared void.
An election may be set aside under cl.(a) of section 18(1) if it is established that the offence of bribery or undue influence, as explained in Chapter IXA of the Indian Penal Code had been committed by the returned candidate or by any person with the consent of the returned candidate.
In order to succeed on the grounds mentioned in section 18(1)(a) it has to be established that the offence of bribery or undue influence had been committed at the election by the returned candidate himself; or by any person with his consent.
[530G H: 531A R] (ii) The manner in which the present petition has been drafted is not in accordance with the Rules.
Ordinarily the petition should state in a narrative form succinctly and clearly all the facts as may be necessary to enable the respondents and the Court to understand the case of the petitioner.
This is not the case here.
The first part of the petition contains 13 questions and the answers given by the petitioner to those questions.
A reading of all these 13 questions and answers given there to be the petitioner shows that the only ground on which the petitioner wished to call in question the election of the 1st respondent is that the issue of a whip by the Congress (I) Party to its legislators on the eve of the ekction asking them to cast their votes in favour of the 1st respondent was in the nature of a threat amounting to undue influence which is one of the two grounds set out in section 18(1)(a).
The allegations made in this part of the petition suggest that the specific case of the petitioner is that the said act of the influence had been committed by the members of the Congress(I) Party.
There is no allegation that any act amounting to undue influence was committed either by respondent No. 1 himself or by any other person with his consent.
Even in the second part of the petition which is entitled 'Notable points ' and the third part of the petition containing grounds to declare the election of the returned candidate as void there is no averment that either the returned candidate himself had committed any act of undue influence or any other person had committed any act of undue influence with his consent.
[532A E] (iii) At the hearing after getting the entire petition read out the Court asked the petitioner to point out whether there was any allegation that the lst respondent had himself committed any undue influence or 527 any other person with the consent of the 1st respondent had committed such an act or any allegation which required to be tried and the petitioner was not able to point out any part of the petition in which such an allegation had been made.
In view of this infirmity we have not found it necessary to examine whether the issuing of the whip by any political party amounts to undue influence vitiating an election even when such an act is committed by the returned candidate or with his consent by some other person.
[536G H; 537A] (iv) The petitioner did not appear to be quite serious about his case.
At one stage he contended having himself filed the petition before the Court that this Court had no competence to hear the case and at another stage he wanted 51 Judges to hear his petition when the maximum permissible strength of this Court is about one half of tha number and the existing strength of this Court is less than one third of that number.
While we expect every conscientious citizen eligible to file an election petition to question an election on the grounds prescribed by the Act, we do not wish that any petitioner should make use of this Court as a forum to file a petition without giving adequate thought to its contents and also to the provisions of law governing the case merely to seek some cheap publicity.
[537C E] Charan Lal Sahu vs Neelam Sanjeeva Reddy, l1978] 3 S.C.R. 1 and Charan Lal SaJlu & O.R.S. vs Giani Zail Singh & Anr., ; relied on.