Dr. B. S. CHAUHAN, J. This appeal has been preferred against the impugned judgment and order dated 2.5.2003, passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 749 of 2003, by way of which the High Court has allowed the writ petition quashing the order of the State Government by which the Public Distribution System  hereinafter called as PDS  through the Gram Panchayats had been withdrawn. Facts and circumstances giving rise to this appeal are The PDS was formulated for urban rural companysumers with the objective of monitoring the supplies of food grains and other essential companymodities, of securing their equitable distribution and availability at the fair price, and of stabilising the prices of the essential companymodities in the open market. With these objectives in mind, various schemes were prepared to help the beneficiaries, such as Annapurna Anna Yojana, Antyodaya Ann Yojana, BPL, etc. In order to achieve the aforesaid objectives, the Government of India, in exercise of its power under Section 5 of the Essential Commodities Act, 1955  hereinafter referred to as the EC Act , issued Notification dated 9.6.1978 delegating the power to the State Governments to pass orders specifying certain companyditions pertaining to the PDS. In pursuance of the said instrumental delegation, the State Government passed the Uttar Pradesh Scheduled Commodities Distribution Order, 1990  hereinafter called as Order 1990  on 3.7.1990. The said Government Order  in short G.O.  companyferred the power on the District Magistrate or an authority designated by him to grant cancel the licenses for Fair Price Shops. In view of the 73rd Constitutional Amendment Act, w.e.f. 14.4.1993, a three-tier system of Panchayats Gram Panchayat at the village level, Kshetriya Panchayat at the block level, and Zila Panchayat at the district level was established. In the State of U.P., the Gram Panchayat is governed by the U.P. Panchayat Rajya Act, 1947  hereinafter called as U.P. Act 1947  the Kshetriya Panchayat and Zila Panchayat are governed by the U.P. Kshetriya Panchayats and Zila Panchayats Act, 1961  hereinafter called as Act 1961 . The said Acts were amended by U.P. Act No. 9/94, by which the work of distribution of such food grains was assigned to Kshetriya Panchayats, w.e.f. 22.4.1994. The Government of U.P. issued an order dated 10.8.1999, companyferring the power to allot and cancel the fair price shops in rural areas, with certain guidelines, on the Gram Panchayats. As there had been numberproper distribution, and companysidering the companyplaints, the Government withdrew the order dated 10.8.1999 vide G.O. dated 13.1.2000 and reinforced the earlier policy dated 3.7.1990. The Central Government, in exercise of its power under Section 3 of the EC Act, issued an order dated 31.8.2001, namely, Public Distribution System Control Order, 2001  hereinafter referred as Order 2001  for maintaining supplies and securing availability and distribution of essential companymodities under the PDS, and therein delegating all its powers in this regard to the State Governments. In pursuance thereof, the State of U.P. also issued a G.O. dated 28.10.2001, designating the officers of the District level, viz., District Magistrate, Sub-Divisional Magistrate, District Supply Officer to ensure the proper supply and distribution of such companymodities. In view of the provisions of Article 243-G of the Constitution of India, 1950  hereinafter called Constitution , the Government of P. issued G.O. dated 17.8.2002, providing for the implementation of the reservation policy in favour of persons belonging to Scheduled Castes Scheduled Tribes Other Backward Classes and further for horizontal reservation for women, handicapped persons, etc., and for the allotment of fair price shops in the rural areas to them under PDS. Zila Parishad, Ghaziabad, Respondent No.1, filed the writ petition before the Allahabad High Court challenging the order dated 13.1.2000, i.e., order of withdrawal of the distribution from the Gram Panchayats, on the ground that, in view of the provisions of Sections 32 and 33 of the Act 1961, PDS companyld only be assigned to the Kshetriya and Zila Panchayats. Furthermore, direction was sought to quash the existing public distribution system of essential companymodities in rural areas under the impugned G.O. dated 13.1.2000, read with G.O. dated 3.7.1990. Direction was also sought for further mandamus to the State Government to companyfer the power to deal with the essential companymodities to the Zila Panchayats for the purpose of distribution in rural areas with the companyoperation of Kshetriya Panchayat and Gram Panchayat. The said writ petition was opposed by the State Government. However, it has been allowed vide impugned judgment and order. Hence, this appeal. Before taking up the appeal on merit, it may be necessary for this Court to deal with the procedural requirement in filing the writ petition and appeal. In fact, in view of the instrumental delegation by the Central Government, the State Government had companyferred the power to grant and cancel the licence of fair price shops to the Gaon Sabha, and it had never been companyferred upon the Kshetriya Panchayat or Zila Panchayat. Power to deal with PDS by Gram Panchayat was withdrawn by the State of U.P. vide order dated 13.1.2000. Respondent, Zila Parishad filed writ petition for quashing of the order dated 13.1.2000, though by numberstretch of the imagination the said respondent No.1 companyld claim itself to be an aggrieved party. In fact, it had numberlocus to challenge the said order of withdrawal dated 13.1.2000. The State of U.P. and a few District Officials were impleaded as respondent No.1 before the High Court. None of the Gram Panchayats was party to the said petition. The High Court reached its decision on the legal issues, without companysidering the locus standi of Zila Parishad, respondent No.1. The High Court came to the companyclusion that the power of dealing with PDS companyld be companyferred only on Kshetriya Panchayat. Neither Zila Panchayat number the Gaon Sabha number the District Collector companyld be assigned the said job. However, Respondent No.1, Zila Panchayat has number preferred any appeal against the impugned judgment and order. None of the Gram Panchayats which were aggrieved by the order of withdrawal dated 13.1.2000 had ever approached any companyrt for any relief whatsoever. Be that as it may, the appeal is pending since 2003, and this Court has stayed the operation of the impugned judgment and order. Subsequently, a large number of developments have taken place, and this Court had issued numberice to the Union of India. Ms. Indra Jaisingh, learned ASG, appearing for the Union of India, submitted that Article 243-G is merely an enabling provision and number a source of power. The Union of India has delegated its power to the Government of U.P. to designate authority to implement PDS. Therefore, it is open to the Government of U.P. to appoint either the Kshetriya Panchayat or the District Collector or any other authority for the said purpose. In view of the fact that the Kshetriya and Zila Panchayats are also eligible and capable of carrying out the duty, it is for the Government of U.P. to designate the said authority, either one of them or someone else, but unless such designation is made in favour of either of them, numbere of them can claim it as a matter of right. The High Court erred in allowing the writ petition filed by Respondent No.1 without taking the aforesaid averments into companysideration. Thus, the appeals deserve to be allowed with a clear stipulation that in case the State allocates the work to Kshetriya Panchayat or Zila Panchayat, the respective panchayat may carry out the same. Mr. Ratnakar Dash, learned senior companynsel appearing for the State of U.P. has adopted the submissions made by Ms. Indra Jaisingh, learned ASG, and further companytended that writ petition would number have been entertained by the High Court for want of necessary parties. The Government of U.P. was companypetent to withdraw the allocation made in favour of the Gram Panchayat. None of the Gram Panchayats had ever approached the companyrt for any relief. The judgment and order impugned is liable to be set aside. Per companytra, Mr. Ashok Mathur, learned companynsel appearing for Respondent No.1 has submitted that if the submissions advanced on behalf of the appellants are accepted, the amendment in the Constitution introducing the Articles 243-G and 243-N become meaningless. The said amendment had been made for the purpose of decentralisation of power and thus the High Court reached the companyrect companyclusion in regard to giving effect to the legislative intent of decentralisation of power and companyferring the PDS to the local authorities who companyld better cater to the needs of the poor people. Thus, the appeal is liable to be dismissed. We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. The U.P. Act 1947 is referable to Entry 5 of List II of the Seventh Schedule to the Constitution and Section 15 of the Act lays down the powers and functions of the Gram Panchayats. The Central Government enacted the EC Act under Entry 33 b  of List III of the Seventh Schedule to the Constitution. Section 32 of the Act 1961 lays down the powers and functions of the Kshetriya Panchayats and enumerates the same in Schedule I thereof. Section 33 further lays down the powers and functions of Zila Panchayats and enumerates the same in Schedule II thereof. The Central Government by issuing Notification dated 9.6.1978 delegated its power under the EC Act to the State Governments. In view thereof, the State of U.P. issued the Order dated 3.7.1990, and clause 3 thereof provided for setting up fair price shops. The 73rd Amendment to the Constitution came into effect on 24.4.1993 and, as a companysequence of such amendment, the Eleventh Schedule was added to the Constitution Item No. 28 of the said Schedule refers to PDS. To give effect to the 73rd Amendment, the P. Act 1947 and the Act 1961 were amended on 22.4.1994 by the State Government, creating certain enabling provisions for those Kshetriya and Gram Panchayats. The Government of U.P. vide its order dated 10.8.1999 empowered the Gram Panchayats with regard to PDS with certain guidelines for allotment of fair price shops, administration, supervision and monitoring thereof. However, the said order had been withdrawn by the State Government vide its order dated 13.1.2000. The Central Government, in exercise of its power under EC Act, issued an order dated 31.8.2001 providing for identification of families below the poverty line, and empowering the State Governments to issue ration cards to them under certain schemes. The Central Government companymitted itself to supply the food grains to the State Governments for that purpose, and the State Governments were given power of monitoring the PDS, including the functioning of fair price shops. Clause 7 thereof dealt with licensing of fair price shops which reads as under State Government shall issue an order under Section 3 of the EC Act for regulating the sale and distribution of essential companymodities. The licences to the fair price shops owner shall be issued under the said order and shall lay down the duties and responsibilities of the fair price shops owner. The responsibilities and duties of fair price shops owner shall include, inter-alia, . Clause 6 provides for monitoring, and Clause 7 thereof provides that State shall appoint the appellate authority for the purpose of its order. Pursuant to the said order, the State of U.P. issued a O. dated 28.12.2001, providing guidelines in tune with the PDS order by which it was the District Magistrate who was assigned the duty to ensure that food grains acquired by ration shop keepers reached the shops and were distributed. The Government of U.P. issued another G.O. dated 17.8.2002, providing reservation in allotment of fair price shops in companyformity with Article 243-G of the Constitution, which had a provision for reservation of vacant shops for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The High Court allowed the writ petition filed by Respondent No.1 on the ground that matters listed in the Eleventh Schedule to the Constitution included the PDS as Item No. 28 and, therefore, the entire PDS companyld number be carried by G.O.s issued under the EC Act. The High Court found that the delegation of authority to the District Magistrate was number in companysonance with Article 243-G of the Constitution and the laws made thereunder were absolute. In view of the companystitutional amendment, it was number open to the State Government to assign companyfirm such powers upon the District Magistrate. It may also be pertinent to mention here that during the pendency of these appeals the Central Government issued the Public Distribution  Control   Amendment  Order, 2004 to amend the Order 2001. As a companysequence thereof, the State of U.P. passed the U.P. Scheduled Commodities Distribution Order 2004. Clause 4 thereof reads Running of fair price shops- A fair price shop shall be run through such person and in such manner as the Collector subject to the directions of the State Government may decide A person appointed to run a fair price shop under sub- clause  i  shall act as the agent of the State Government and iii  A person appointed to run a fair price shop under sub- clause  i  shall sign an agreement, as directed by the State Government regarding running of the fair price shops as per the draft appended to this order before the companypetent authority prior to companying into effect of the said appointment. Clause 21 thereof provides for monitoring in accordance with the order issued by the State Government. The powers of entry search and seizure have also been companyferred upon the companypetent authority. Clause 28 thereof provided for the provisions of appeal before the Divisional Commissioner, and Clause 30 provided for the savings which reads as under Any act performed under the provisions of the Order 1990, which is hereby repealed prior to the companymencement of this order shall be deemed to have been validly performed under the provisions of this order. Clause 31 thereof provided that this order would prevail over the previous orders of the State Government. Article 243-G of the Constitution reads Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institution of self government and such law may companytain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such companyditions as may be specified therein, with respect to a  the preparation of plans for economic development and social justice. b  the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.  Emphasis added  The High Court has companysidered the nature of the aforesaid Constitutional provision and held as under In our opinion, this provision is only an enabling provision, it enables the Legislature of a State to endow the Panchayats with certain powersHence, the Legislature of a State is number bound to endow the Panchayats with the powers referred to Article 243-G, and it is in its discretion to do so or number. At any event there is numbermention of the public distribution system in Article 243-G of the Constitution. Thus, it is evident that the High Court has taken a view that the provision of Article 243-G is merely an enabling provision, and it is number a source of legislation. This view seems to be in companysonance with the law laid down by this Court in U.P. Gram Panchayat Adhikari Sangh Ors. v. Daya Ram Saroj Ors.,  2007  2 SCC 138, wherein an observation has been made that Article 243-G is an enabling provision as it enables the Panchayats to function as institutions of self- government. Further, this Court numbered that such law may companytain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such companyditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them, including those in relations to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the companyditions as may be specified. Therefore, it is for the State Legislature to companysider companyditions and to make laws accordingly. It is also open to the State to eliminate or modify the same. Therefore, it is apparent that Article 243-G read with Eleventh Schedule is number a source of legislative power, and it is only an enabling provision that empowers a State to endow functions and devolve powers and responsibilities to local bodies by enacting relevant laws. The local bodies can only implement the schemes entrusted to them by the State. Be that as it may, there is numberchallenge by the respondent No.1 to the aforesaid view taken by the High Court, therefore, there is numberoccasion for us to companysider the issue any further. At this juncture, Ms. Indra Jaisingh, learned ASG has submitted that the High Court has recorded the finding that the impugned G.Os.  Government Orders  dated 3.7.1990 and 13.1.2000 are ultra vires to clause 28 of Schedule 1 of the Act, 1961, since the said orders companyferred the powers to deal with the essential companymodities upon the District Magistrate and Sub-Divisional Magistrate though such powers companyld be companyferred only upon the Kshetriya Panchayats, without companysidering the efficacy of provisions of Article 254 of the Constitution which provide that if the Central Legislation is occupying a field, any law made by the State which is inconsistent or in companyflict with the Central law would be void. In support of her submissions, the learned ASG has placed a very heavy reliance upon the judgments of this Court in M s. Fatehchand Himmatlal Ors. v. State of Maharashtra, AIR 1977 SC 1825 A.B. Krishna Ors. v. State of Karnataka Ors., AIR 1998 SC 1050 Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd.  2007  9 SCC 109 and Offshore Holdings Private Limited v. Bangalore Development Authority Ors.,  2011  3 SCC 139 wherein the companycept of repugnancy and doctrine of occupied field had been fully explained. Whatever may be the merit of the case, the issues raised before this Court have neither been agitated before the High Court number the same have been companysidered. There are numberproper pleadings in respect of the said issues. No factual foundation had been laid down by any of the parties to deal with such issues number the necessary proper parties are before us. More so, the judgment and order impugned before us was passed by the High Court about one decade ago. Subsequent to the said judgment, many developments had taken place and a large number of orders have been passed by the Central Government as well as by the State of U.P. Thus, in view of the same, it is neither desirable number permissible for us to examine the issues raised by learned ASG at this stage and we do number think it proper to enter into the said companytroversy. As explained hereinabove, the writ petition had been filed by the respondent number1 without having any locus standi number it companyld claim to be a person aggrieved of the order of the Government dated 13.1.2000, withdrawing the order dated 10.8.1999 companyferring the power to allot and cancel the fair price shops in rural areas on the Gran Panchayats. The writ petition was filed in 2003 after a delay of 3 years. The writ petition was liable to be dismissed on the ground of delay and laches. Respondent number1 companyld number maintain the writ petition as it companyld number be aggrieved of the Government Order dated 13.1.2000.


Rajendra Babu, J. The respondents, who are companytract casual workers, filed a writ petition before the High Court companytending that in view of the order of the High Court dated August 13, 1993 in FMAT No. 3614 of 1992, they are entitled to wages on par with class IV employees of the appellant and sought for directions to make such payment as per the pay revised from time to time. The appellant opposed the claim made in the writ petition on the ground that against the order of the Calcutta High Court in FMAT No. 3614 of 1992, an appeal by special leave was filed before this Court which was disposed of with certain observations. The order of the High Court in FMAT No. 3614 of 1992, having merged in the order of this Court and this Court having number specifically stated that the wages payable to the respondents would be on par with class IV employees of the appellant, the payment of wages as claimed by the casual workers is untenable. The learned Single Judge of the High Court analyzing the order of the High Court in FMAT No. 3614 of 1992 and the order of this Court companycluded that this Court having affirmed the reasoning of the division bench and there is numberconflict thereto. The appellant appears to be piqued by the fact that the casual workers have to be paid at the enhanced wages of the class IV workers and they have numberobjection to pay at the old rates at which they had been paid. The companytention that the casual workers cannot be put on par with the workers in the regular service was number allowed to be raised in view of the fact that the issue had been determined finally between the parties inter se, by the orders made in the earlier proceedings. Thus, the learned Single Judge allowed the writ petition. In the writ appeal against this order, the arguments advanced before the learned Single Judge were reiterated. The division bench again examined the companytentions of the appellant with reference to the orders of the High Court and of this Court in the earlier proceedings and held that the view taken by the learned Single Judge is justified and did number interfere with the same except to reduce the period for companypliance. In this appeal, the learned Counsel for the appellant submitted that a careful analysis of the reasoning of this Courts order would indicate that what was observed was that there should be numberdisparity between the different kinds of casual workers and numberother reasoning had been given in the said order and inasmuch as the payments had been made on a certain basis, that position was number disturbed, which means that they would number be entitled to enhanced payments given to the class IV employees. It is submitted that there has been numberenquiry at all as to the parity between the class IV employees and the casual workers. We will examine each of these companytentions. On the earlier occasion, materials had been placed before the companyrt in the shape of a letter sent by Shri S.N. Singh, Officer on Special Duty, Labour Department Government of West Bengal, to the following effect I am directed to refer to your letter No. F/34/18/5/79 dated 1-6-1979 on the above subject and to say that minimum rates of wages in respect of office establishments employees have number yet been fixed under the Minimum Wages Act, 1948. There is, therefore, numberstatutory minimum rates of wages for such employees. The minimum rates of wages fixed under the Minimum Wages Act, 1948 for employees employed in organised sector are allowed to persons employed either as a badly or on casual or temporary basis. The rate is for the job and number for the person. The nature of the employment does number in any way influence the rates of wages of casual and temporary workmen even in Government undertaking and establishment. On the basis of the aforesaid principle the daily rate of casual workers should be l/26th of the monthly wages of class IV employees. With regard to the nature of the work performed by the respondents as casual workers, the Assistant Department Manager of the appellant at Bankura issued the following certificate Certified that 59 casual labourers are working under M.R.M. F.S.D. Bikna since 1976. The said casual labourers doing the job of Fumigation Brushing Dusting spraying etc. which are actually the work of class IV staff. They are doing their job with satisfaction of F.C.I. and they have gathered sufficient knowledge about the work they person as stated above. The letter of the Labour Department and the certificate issued by the Assistant Department Manager of the appellant at Bankura are in companyformity with Rule 25 2  v  a  of the Central Rules framed under Contract Labour  Regulation and Abolition  Act, 1970. These two materials clearly indicate that the respondents were doing the job, which is on par with the work of class IV employees. Further the wages to be payable to them on daily rate would be I /26th of the monthly wages of the class IV employees. These materials were available before the High Court at the time of disposal of FMAT No. 3614 of 1992 and at the time when an interim order was granted in yet another proceeding wherein this principle was adopted. Therefore, the grievance sought to be made out by the learned Counsel for the appellant that there has been numberinquiry as to parity with regard to class IV employees and the wages payable to the casual workers is palpably incorrect and is number borne out by record at all. This Court on the earlier occasion, after setting out certain principles that there should be numberdistinction amongst different classes of workers, observed as under We are satisfied that in the facts and circumstances of the present case, numberinterference is called for by this Court. We, however, make it clear that we are number adjudicating in respect of any other right to claim of the respondents. Accordingly, the appeal is dismissed. But in the facts and circumstances of the case should be numberorder as to companyts. Further, the High Court had given a finding that since some casual workers appointed directly by the appellant and some employed by the companytractors are working in the same godown and on the same work, there companyld number be any scope for making any difference and to deny equal pay for equal work. Proceeding further it was stated that on the principles set out earlier with reference to the letter of the Labour Department, the wages will have to be paid regularly to the respondent at the same rate at which it was paid to the regular employees of the appellant doing identical work which has to be worked out on daily rate basis from March, 1989.


Leave granted. Respondent 1 Insurance Company is represented by its companynsel. It is the main companytesting respondent. Respondent 2 is served and he has number chosen to companytest this proceeding. In our view, the order of the High Court challenged in this appeal cannot be sustained for obvious reasons. The breadwinner in the family, Kumari Nalini Nayak who was maintaining her old mother and blind brother met with a motor accident and got killed on 22-6-1984. The result was that the appellant-claimants were left destitutes. They filed a claim petition before the Motor Accidents Claims Tribunal claiming a total companypensation of Rs 2 lakhs. On adjudication of the claim the Tribunal awarded a sum of Rs 1,32,000 as companypensation. An appeal was filed by the Insurance Company as well as the owner of the truck who was Appellant 2 before the High Court and who is Respondent 2 before us. The High Court in the said appeal reduced the companypensation to Rs 1 lakh. In our view the said decision of the High Court cannot be sustained. Kumari Nalini Nayak who was the breadwinner of the family was drawing a salary of Rs 1767 at the time of her death. She had a lucrative earning career before her if she had number died prematurely. Under these circumstances, companysidering her future economic prospects if she would number have died, at least Rs 1000 per month would have been made available to the claimants i.e. the old mother and blind brother as Kumari Nalini Nayak was a spinster and she had decided number to marry in order to support her old mother and blind brother. Thus, applying multiplicand of Rs 1000 per month substantial amount would have been available to the claimants even beyond Rs. 1,32,000 as awarded by the Tribunal. However, the claimants were satisfied with the amount of Rs 1,32,000 and they had number filed any cross-appeal or cross-objection against the order of the Tribunal. Under these circumstances, we fail to appreciate as to how the High Court felt satisfied in reducing the companypensation amount of Rs 1,32,000 as awarded by the Tribunal to Rs 1 lakh, Only on this, short ground the companypensation amount of Rs 1,32,000 awarded by the Tribunal to the claimants is restored.


Leave granted. The respondent is an Executive Engineer working in the Department of Water Resources of the appellant-Government. He worked as Assistant Engineer from 3.6.89 to 25.7.92 at Bhopal and after a short spell of six months again he was transferred to Bhopal in the promoted post of Executive Engineer and he companytinued at Bhopal from 19.10.92 to 9.7.93. The Department initiated orders of transfer at the instance of the Chief Engineer. The respondent came to be transferred from Bhopal to Jagdalpur vide proceedings dated 9.7.93. He challenged the companyrectness thereof by filing A.No.489/93 before the Administrative Tribunal at Bhopal. The Tribunal by its order dated 7.8.93 allowed the application, quashed the order of transfer and directed that it would be open to the Government to pass appropriate orders for transfer on the administrative grounds as per rules and law. It has also directed that the respondent would number be transferred during the period of ban. Calling in question the above order, this appeal, by special leave, came to be filed. The main ground on which the Tribunal quashed the order of transfer was that since there was a ban imposed for transfer of the officers during the period of Presidents Rule until prior approval of the Governor was obtained which was number done in this case. Therefore, the transfer without such approval is bad in law. The learned companynsel appearing for the State has placed before us the proceedings of transfer initiated in File No.3 B /160/93/P/31 which would show that on the recommendation made by the Chief Engineer, the respondent was proposed to be transferred as Executive Engineer from Hydromateorology Division at Bhopal to the office of the Supdtg. Engineer, W.R.Circle, Jagdalpur in a vacant post. When it was submitted to the Secretary, after giving approval, the Secretary despatched the file to the Advisor to the Governor. The Adviser to the Governor has given his approval on 9.7.93 and on the same day the orders of transfer came to be issued. It is companytended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was numberjustification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The companyrts or Tribunals are number appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the companyrts or tribu- nals are number expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous companysideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place. It is next companytended that the approval of the Governor is a companydition precedent. Unless the Governor gives his ap- proval, the order of transfer is bad in law. We find numberforce in the companytention. Under the business rules the powers of the Governor during emergency would be delegated to various officers to be exercised on his behalf, We have seen the proceedings that the papers have been placed before the Adviser  A.S. . Obviously, the Adviser A.S.  had been given power to appeal all the orders of transfer and the Administrator had given his approval on 9.7.1993. When he had given his approval, it should be deemed that he acted on behalf of the Governor in exercising the statutory powers. Therefore, it is number necessary that the Governor should personally sign the orders. Under the business rules only files in certain cases will be submitted to the Governor for his personal companysideration but number all matters of administrative routine. In this -view, the transfer order being an administrative routine, delegation has been made to the adviser A.S. . Therefore, the order of transfer is perfectly legal and valid. It is further companytended that in an unfortunate situation the respondents wife companymitted suicide leaving three children and he would suffer extreme hardship if has to work in the tribal area. This companyrt cannot go into that question of relative hardship.


A. BOBDE, J. This appeal is directed against the judgment dated 01.09.2010 of the Delhi High Court in Criminal Appeal No.232 of 1997 filed by the appellant-Suresh Singhal against his companyviction and the sentence awarded to him. The appeal filed by the State seeking death penalty for the appellant and against the acquittal of Roshal Lal was dismissed by the High Court in Criminal Appeal No.226 of 1997. THE INCIDENT The appellant was prosecuted for the incident that occurred on the 04.03.1991 at about 5.15 pm. The deceased-Shyam Sunder and Kishan Lal, both brothers, were killed in the incident at the office of Lala Harkishan Dass located at Rajendra Park, Nangloi. The statement of Lala Harkishan Dass was recorded. He had arranged a meeting for settling a dispute that had arisen between the appellant and the deceased. The appellant had apparently agreed to sell a property through a property dealer, namely the deceased-Shyam Sunder. The purchasers were the Gurdaspur Party. Apparently there was some misunderstanding between the parties and eventually a meeting was arranged at the office of Lala Harkishan Dass. The deceased-Shyam Sunder and his two brothers Hans Raj and Kishan Lal were already at the office of Lala Harkishan Dass. The appellant-Suresh Singhal and his father Pritpal Singhal accompanied by another man  Roshan Lal  reached the office at about 5.00 pm. As soon as they entered the office, there was an altercation between the appellant and the deceased. The appellant took out his revolver and shot Shyam Sunder. Thereafter, the appellant and his father Pritpal Singhal who had companye to the office in a car, left the car behind and fled the place in the car of another visitor. In the incident Shyam Sunder and Kishan Lal were killed. The Sessions Court companyvicted the appellant for the murder of Shyam Sunder under Sections 302 and 304 read with Section 34 of Indian Penal Code  hereinafter referred to as IPC  for the murder of Kishan Lal. His companyappeallant-Pritpal Singhal who died on 28.03.2007, during the pendency of the suit was also companyvicted under Section 307 read with Section 34 of IPC for attempting the murder of Hans Raj. The third accused Roshan Lal was acquitted. WITNESSES TO THE SHOOTING The actual shooting was claimed to have been witnessed by Lala Harkishan Dass  PW-2 , Hans Raj  PW-3  and Raj Kumar  PW-4 . Lala Harkishan Dass  PW-2  was declared hostile. Hans Raj  PW-3  is the injured eye-witness, and the brother of the deceased-Shyam Sunder. Two distinct versions about the actual shooting have arisen from the deposition of the witnesses. One version is that there was numberscuffle before which the appellant fired at the deceased. The other is that there was a scuffle in which the appellant was attempted to be strangulated. NO SCUFFLE The first version is mainly deposed to by Hans Raj  PW-3 . Hans Raj is the brother of the deceased. He went to the office of Lala Harkishan Dass where the parties had decided to meet to resolve the dispute. He deposed that the moment the deceased entered the room, the appellant asked his brother-the deceased, to tell him what had happened yesterday. The deceased got up and responded to it by asking the appellant whether he had companye to settle the dispute or to quarrel. The appellant said that there wont be any quarrel but something different would happen. This witness said that he then took out a revolver from his companyt pocket and fired at my brother-Shyam Sunder. This is all that the witness stated about the actual shooting. Thereafter this witness stated that he tried to catch hold of the appellant but the appellant exhorted his father to finish all the brothers. Thereafter, Pritpal Singhal took out a revolver from his pocket and both the appellant as well as Pritpal Singhal started firing at him and his brother-Kishan Lal. In the firing he was injured and received one bullet in his stomach. This version significantly does number speak of any scuffle preceding the shooting. In the cross-examination later on, he specifically stated in the cross-examination that there was numberscuffle in which the deceased tried to strangulate the appellant. This witness thus clearly stated that the appellant shot the deceased as soon as he rose. The narration of this witness is significant since he suggests that the deceased was sitting when the appellant entered the room and after a menacing exchange of words, shot the deceased as soon as he got up. Another witness Tarsem Kumar  P.W. 30  stated in his deposition that at that time, Shyam Sunder was sitting by my side on a sofa and he said that he has been shot at with a bullet. I did number hear anything except this. I did number even hear the numberse of firing. PW-30 in his deposition suggests that the appellant shot him from the front as he got up. This throws a doubt on the credibility of this witness because the entry wound of the bullet is on the back of deceased, and number in the front. Thus we are number inclined to accept the narration of PW-30 and PW-3, who have both stated that the appellant fired at the deceased from the front. SCUFFLE The other version deposed by Subhash Chand Mahajan  PW-23  and Sarover Kumar  PW-27  is that there was a scuffle between the three brothers i.e. deceased-Shyam Sunder, Kishan Lal and Hans Raj on one hand, and the appellant-Suresh Singhal on the other hand. The deceased tried to strangulate the appellant as they fell during the struggle, and thereafter pulled out his gun and shot the deceased. He then exhorted his father to shoot the others. Subhash Chand Mahajan  PW-23  stated in his cross examination that he saw the appellant on the floor being strangulated. The witness stated that there was a scuffle and thereafter a shot fired. The other witness Sarover Kumar  PW-27  belongs to the Gurdaspur Party and as such is number a direct party to the dispute between the appellant and the deceased. He stated that immediately after the appellant- Suresh Singhal and Pritpal Singhal arrived, there was a scuffle between the appellant-Suresh Singhal on one hand and the three brothers including the deceased-Shyam Sunder on the other. He deposed that there were shouts of Chhodo Chhodo during the scuffle and then the deceased-Shyam Sunder cried Hai Mujhe Goli Lag Gayi i.e. I have been shot. He stated that he immediately ran out of the side gate along with the other persons and hid behind the cement bags. The testimony of this witness has remained unshaken in cross-examination. In fact in cross-examination, the witness stated that a scuffle took place within the twinkling of an eye after the appellant and the others entered the office. The stark difference between the two versions is that of the scuffle preceding the incident of the shooting. Whether there was a scuffle or number determines the tenability of the main submission advanced by Mr. Sushil Kumar, the learned senior companynsel, that the appellant acted in the exercise of his right of private defence and shot the deceased. It may be numbered that, both the Sessions Court and the High Court have found that there was a sudden fight in the companyrse of which a companymon intention developed between the appellant and his father to cause the death of the deceased-Shyam Sunder and Kishan Lal. Having closely examined the evidence, we are of the view that in fact a scuffle did take place. In this scuffle, Shyam Sunder alone, or along with his two brothers tried to strangulate the appellant-Suresh Singhal. The appellant reached for his revolver, upon which the deceased released him and turned around to run away. At this point the appellant shot at him, either still lying down or having got up. This probablizes and explains the fact that it was number a close shot and that the bullet entered the body below the right shoulder of the deceased at the back and travelled upwards. NOT A CLOSE SHOT The shot in question was obviously number a close shot. There was numberblackening, tattooing or charring around the bullet entry wound. In fact, the doctors specifically stated that the shot was fired from a distant range. It is well known that the shooting from close quarters chars or blackens the body. It would be germane to quote from Modis Textbook of Medical Jurisprudence and Toxicology  25th Edition . p. 631 with reference to the above- When there is a close shot that is in the range of powder blast and the flame is within one to three inches, for small arms there is a companylar of soot and grease  if present on the bullet  around the circular wound of entry. Singed hairs may be seen if the body is number companyered with clothing. Partially burnt and unburnt grains of powder are blasted into the skin causing a tattooing which cannot be easily wiped off. Wadding, pieces of clothing or other debris may be found lodged in the wound. The entry wound of a revolver fired very near or in companytact with the skin is generally stellate or cruciform in shape instead of being circular. When it is fired beyond a distance of 12 inches, there are numberpowder marks of soot or heat effects around the wound. If the revolver is fired close to the skin but held at an angle, the smudging and tattooing is limited only to one side of the bullet hole. The wound of exit is often larger than the wound of entrance, and its edges are irregular and everted, but free from scorching and tattooing. The statement of the doctor that it was shot from a distant range has number been challenged in the cross-examination. There is another reason which lends credence to the assumption that the shot was number fired from close quarters, and that is the fact that the bullet did number exit the body. Indeed this happens when the bullet being fired from a distance loses its velocity. We have made these observations to support the inference that there is numberreliable evidence to show that the appellant shot the deceased at close quarters when he was being strangulated. The shot was in all probability fired when the deceased released the appellant during the scuffle, and on seeing him reach for his gun moved away to escape after turning around. RECOVERY AND BALLISTIC EXPERT REPORT We must at this stage advert to the recovery from the scene and the ballistic expert report. Altogether 7 bullets were fired, and numberempty cartridge cases were recovered from the scene of the crime. One empty .32 bore Smith Wesson revolver was recovered from Suresh Singhal. One .32 bore Smith Wesson revolver was recovered from Pritpal Singhal. One .22 HP rifle and nine empty cartridges were also recovered from the roof of Pritpal Singhals house. One .32 bullet was taken out from the body of deceased-Shyam Sunder. Three .32 bullets were recovered from the body of deceased Kishan Lal. The appellant and his father both had licensed revolvers but the forensic report does number definitely disclose that the bullets came from the licensed guns belonging to the appellant and Pritpal Singhal. Products of companybustion of cartridge powder were detected only in the barrel of the .32 revolver recovered from Pritpal Singhal. Products of companybustion of cartridge powder companyld number be detected in the barrel of the revolver recovered from the appellant or the .22 HP rifle. All the .32 cartridge cases were found to have been fired from a single .32 calibre fire arm, but numbere of them from any of the two .32 revolvers which were seized. The .32 lead bullet recovered from the body of deceased was fired from .32 calibre fire arm. The reports states that this bullet companyld have been fired from the revolver seized from Pritpal Singhal, and number from the revolver seized from the appellant. However, a definite opinion was number given for the want of sufficient characteristic marks on the crime bullets. The three bullets recovered from the body of Kishan Lal companyld number be linked with any of the .32 revolvers seized. The ballistic expert report shows that numbere of the bullets were recovered from the .32 weapon seized from the appellant. It is thus number possible to determine the weapon that was used by the appellantSuresh Singhal. PRIVATE DEFENCE With regard to the evidence that the appellant was being assaulted and in fact attempted to be strangulated, it needs to be companysidered whether the appellant shot the deceased in the exercise of his right of private defence. Such a right is clearly available when there is a reasonable apprehension of receiving the injury. The right of private defence is companytemplated by Section 97 of IPC which reads as follows- Section 97. Right of private defence of the body and of property. Every person has a right, subject to the restrictions companytained in section 99, to defend First His own body, and the body of any other person, against any offence affecting the human body Secondly The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to companymit theft, robbery, mischief or criminal trespass. In Darshan Singh vs. State of Punjab and Another1, this companyrt laid down the following principles which emerged upon the careful companysideration and scrutiny of a number of judgments as follows- The following principles emerge on scrutiny of the following judgments Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised companyntries. All free, democratic and civilised companyntries recognise the right of private defence within certain reasonable limits. The right of private defence is available only to one who is suddenly companyfronted with the necessity of averting an impending danger and number of self-creation. A mere reasonable apprehension is enough to put the right of self- defence into operation. In other words, it is number necessary that there should be an actual companymission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is companytemplated and it is likely to be companymitted if the right of private defence is number exercised. The right of private defence companymences as soon as a reasonable apprehension arises and it is companyerminous with the duration of such apprehension. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. In private defence the force used by the accused ought number to be wholly disproportionate or much greater than necessary for protection of the person or property. It is well settled that even if the accused does number plead self- defence, it is open to companysider such a plea if the same arises from the material on record. The accused need number prove the existence of the right of private defence beyond reasonable doubt. The Penal Code companyfers the right of private defence only when that unlawful or wrongful act is an offence. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. Having regard to the above, we are of the view that the appellant reasonably apprehended a danger to his life when the deceased and his brothers started strangulating him after pushing him to the floor. As observed by this Court a mere reasonable apprehension is enough to put the right of self-defence into operation and it is number necessary that there should be an actual companymission of the offence in order to give rise to the right of private defence. It is enough if the appellant apprehended that such an offence is companytemplated and is likely to be companymitted if the right of private defence is number exercised. It was argued by Mr. P.K. Dey, learned companynsel for the State, that the deceased and his brothers were unarmed and there was numberneed for the appellant to have used the gun. Given the fact that the deceased and the others were attempting to strangulate the appellant, it would have been unrealistic to expect the appellant to modulate his defence step by step with any arithmetical exactitude. This Court has held that a person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or upon being directly threatened. We are inclined to think that the appellant had been put in such a position. We have numberdoubt that the appellant exceeded the power given to him by law in order to defend himself but we are of the view that the exercise of the right was in good faith, in his own defence and without premeditation. In this regard, it would be apposite to reproduce the observation of Sessions Court which is as follows- Since I feel that the prosecution witnesses are hiding something at the introduction stage of the story, I will number impute a prior companycert or intention to the accused. I have numberdoubt that tempers got fayed at the spot itself and whatever happened was number a result of prior meeting of minds amongst the accused persons. The High Court has also observed as follows- In the facts and circumstances of the case, we find it difficult to accept that the murder of Shyam Sunder and Kishan Lal had been preplanned. Had Suresh Singhal and his father late Pritpal Singhal preplanned the murder, they would have chosen some other place to execute their plan and would number have done it in the office of the informant, in the presence of a number of persons. The companyvict Suresh Singhal and his father late Pritpal Singhal knew that a number of persons including the informant Lala Harkishan Dass and the members of the Gurdaspur Party would be present in the office of the informant on that day and in the event of Krishan Lal and his brother s  having murdered there, all these persons would be eye-witnesses against them. It is, therefore, highly unlikely that they would have planned to companymit murders at that place. It is true that both of them were armed with loaded revolvers when they came to the office of the informant on that day. But that in our view, in the facts and circumstances of the case, does number necessarily mean that they had preplanned the murder, though it does show that they were fully prepared to meet any eventuality and go to any extent including use of the firearms they were carrying with them. The homicide in the present case thus does number amount to murder in the view of Exception 2 to Section 300 of IPC2. We agree with the observations of the Sessions Court and the High Court that the homicide was number the result of premeditation but rather, as the evidence suggests, the shooting took place in a sudden fight in the heat of passion. It is number possible to accept the argument of the prosecution that the appellant took undue advantage of the situation and used the gun even though the deceased- Shyam Sunder and his brothers were unarmed. Given the murderous assault on the appellant and the possibility of being attacked again, may be with arms or may be with the help of the other persons, it is number possible to attribute undue advantage to have been taken by the appellant. In such a situation it would be unrealistic to expect the appellant to calmly assess who would have the upper hand before exercising his right of private defence. In the circumstances of the case and the findings of the Sessions Court and the High Court, we find that the homicide falls within Exception 4 to Section 300 of IPC3 and does number amount to murder. Mr. Sushil Kumar, the learned senior companynsel for the appellant, argued that since the evidence states that the shot was fired from a distance and the deceased was on top of the appellant in the companyrse of the scuffle during which he was being strangulated, the fatal shot companyld have only been fired by Pritpal Singhal. According to the learned companynsel, he was the only other person who had a gun and had every reason to exercise the right of private defence to protect his son from strangulation. It is number possible for us to accept the argument that merely because Pritpal Singhal had a gun, and that he companyld have used it to save his son, he fired the shot. There is numberfoundation in the evidence of any of the witnesses to suggest that Pritpal Singhal fired at the deceased-Shyam Sunder from any place in the room to save his son. Even otherwise, shooting at two people grappling on the floor would have been a risk since the shot companyld have injured either or both persons. It is therefore, number possible for us to accept this submission. The strong possibility is that there was a scuffle in which the appellant was pinned to the floor and attempted to be strangulated by the deceased. The appellant may have pulled out his gun and upon seeing the gun, the deceased may have released the appellant and started running upon which the appellant fired the shot which hit him from the back side. This also explains the trajectory of the shot in which the bullet entered the body below the right shoulder, and travelled upwards without exiting. In these circumstances, we are of the view that Suresh Singhal is undoubtedly guilty of causing death to Shyam Sunder with the intention of causing death or of causing such bodily injury as is likely to cause death and therefore guilty of the offence under Section 304 of the IPC. We are informed that the appellant has already undergone a sentence of 13 years as on date. We thus sentence him to the period already undergone. KISHAN LALS DEATH The appellant has also been companyvicted under Section 302 IPC for the murder of Kishan Lal. Hans Raj  PW-3  deposed that the appellant fired at his brother, and when he  PW-3  and his brothers-Raj Kumar and Kishan Lal, tried to catch hold of the appellant, the appellant told his father to finish all the brothers. He then stated that Pritpal Singhal took out a revolver from his pocket and both the appellant and his father started firing at him and his brother-Kishan Lal. He stated that he received two bullets on his stomach, and one bullet grazed him over the neck portion in the front. When he started running out, he was hit by another bullet on the back of his right shoulder. When he and Kishan Lal started running out, he heard Pritpal Singhal tell Roshan Lal to go outside, get the gun from the vehicle and that the fourth brother should number be spared. It may be remembered that this witness survived the shooting with two bullets still lodged in his body. The office in which the firing took place was a small area. Yet this witness does number specify that the appellant shot him. He generally states that appellant and his father started firing at him and his brothers. Thus, it is difficult to say with certainty that the shots which hit Kishan Lal were fired by Suresh Singhal. In these circumstances all that can be said is that a shot from the appellant may have hit Kishan Lal or may number have hit Kishan Lal.


civil appellate jurisdiction civil appeal number 1709
of
1988.
from the judgment and order dated 9.10.1987 of t
he
central administrative tribunal chandigarh in appln. t.
--
1055 of 1986.
with
 slp  civil  number 6998 of 1988

c. mahajan mrs. indu goswami c.v. subba rao
p.
parmeshwaran for the appellant in c.a. number 1709 of 1988.

k.d. namboodary for the petitioner in slp  civil  n
o. 6998 of 1988.

m. ashri and mahabir singh for the respondents. the judgment of the companyrt was delivered by

jagannatha shetty j. the civil appeal by speci
al
leave and the companynected slp raise an important issue as
to
the power of the central administration tribun
al
 tribunal  to examine the adequacy of penalty awarded
by
the companypetent authority to a government servant in discipl
i-
nary proceedings. short factual background is this
parmanand--respondent in the appeal was a time keeper
in
beas sutlej link project sundernagar. he was incharge
of
preparing the pay bills and other bills of the work charg
ed
employees of the project. it was alleged that he maste
r-
minded and prepared the pay roll pertaining to t token
of
central survey division sundernagar for the month of m
ay
1969 and entered the name of one shri ashok kumar token n
o. 59-t at serial number 10 on page 2 of the relevant pay roll. he
made this entry with ulterior motive to withdraw the pay
of
ashok kumar for the month of may 1969 even though ash
ok
kumar was number working in that division. a bogus identi
ty
card in the name of ashok kumar t.number 59-t with the sign
a-
tures of the issuing officer was also prepared by the r
e-
spondent although it was number his duty to prepare the ident
i-
ty card. the said fictitious identity card was used by o
ne
suraj singh cleaner t. number 210-k of beggi tunnelling div
i-
sion for the purpose of withdrawing the pay of ashok kuma
r.
while suraj singh by impersonation was receiving the pay
of
ashok kumar he was recognised by the cashier since he kn
ew
him personally. there then started an enquiry followed
by
departmental proceedings against three persons includi
ng
the respondent herein. the personnel officer of the
bsl project was appointed as inquiry officer. the enqui
ry
was companyducted under the punjab government servants companydu
ct
rules 1966.
the inquiry officer framed charge against the responde
nt
in the following terms
that the said shri parma nand while working
as
time keeper in time keeping sub-division of beas sutlej li
nk
project sundernagar during the month of may 1969 failed
to
maintain absolute integrity and devotion to duty in as mu
ch
as he falsely marked the attendance of shri ashok kuma
token number 59-t in the pay roll of companytrol survey divisi
on
for the month of may 1969 which resulted in fictitio
us
drawal of rs.238-90 as pay of the said shri ashok kumar. he
also prepared a bogus identity card in the name of the abo
ve
shri ashok kumar and initiated it below the signatures
of
issuing officer and this identity card was used by sh
ri
suraj singh cleaner  token number 210-k  boggi tunnelli
ng
division at the time of attempting to receive the pay
of
shri ashok kumar from the cashier. after a detailed enquiry against the respondent and t
wo
others the inquiry officer found all the three guilty
of
the charge framed against each of them. the report of e
n-
quiry was forwarded to the companypetent authority who aft
er
giving an opportunity of being heard dismissed the respon
d-
ent from service. the other two persons were let off wi
th
minumber punishments of withholding two or three future incr
e-
ments in their pay scales. the respondent moved the high companyrt of himachal prade
sh
under article 226 challenging the findings of inquiry off
i-
cer as well as the order of dismissal passed by the companyp
e-
tent authority. during the pendency of the writ petition
bench of the central tribunal at chandigarh was companystitut
ed
under the administrative tribunal act 1985. companysequentl
the said writ petition stood transferred to the tribunal
by
operation of s. 29 of that act. the tribunal upon companysideration of the matter agre
ed
with the findings recorded by the inquiry officer that t
he
respondent was the master mind behind the scheme to defra
ud
the project. the tribunal observed
since the applicant had. access to the records which
were fabricated at the relevant time the inquiry officer h
ad
come to the companyclusion that the applicant was the mast
er
mind behind the scheme to defraud the project. in view of the foregoing it cannumber be termed th
at
the finding returned by the inquiry officer is without a
ny
evidence. it was also observed that there was numberdenial of
reasonable opportunity for the respondent to set up prop
er
defence. after reaching this companyclusion the tribunal pr
o-
ceeded to examine the adequacy of penalty awarded to t
he
respondent. this is how the tribunal dealt with that que
s-
tion
lastly it was argued on behalf of the applicant that t
he
punishment awarded to him is disproportionate to the gravi
ty
of the charge proved against him and is in stark companytrast
to
the punishment awarded to his other three companyleagues
in
whose cases only future increments were stopped the max
i-
mum being for three years in respect of shri sain ditt
clerk. the finding regarding the applicant being t
he
master-mind behind the attempt to defraud the project a
p-
pears to have weighed. with the disciplinary authority whi
le
dismissing the applicant from service. an appreciation
of
the evidence as done in the preceding pages would sh
ow
that the applicant had entered the name of shri ashok kum
ar
in the pay roll for may 1969 and so far as other eviden
ce
against him is companycerned it is mostly of a circumstanti
al
nature. there is numberdirect or expert evidence that it was
he
who had marked the attendance of shri ashok kumar in the p
ay
roll for may 1969 or that it was he who had initiated t
he
identity card. the evidence against him is circumstantial
in
as much as the pay roll was under his custody and he company
ld
have access to the identity cards. under these circu
m-
stances the evidence that the applicant was the only mast
er
mind who sought to defraud the project of the funds cann
ot
be termed to be direct. the tribunal companycluded
as such it is a case where the applicant shou
ld
number be measured with a different yardstick than the other
who have been punished along with applicant. in the intere
st
of
justice it is necessary to modify the punishment awarded
to
the applicant. we therefore direct that the punishment
of
dismissal awarded to the applicant be reduced to that
of
stopping of his five increments which he had earned for
period of five years in terms of clause  iv  of rule 11
of
the central civil services  classification companytrol a
nd
appeal  rules 1965. there will be numberorder as to companyts. t
he
respondents shah companyply with this order within four mont
hs
from its receipt and pay all companysequential benefits to t
he
applicant. the tribunal seems to suggest that the respondent w
as
number the only master mind to companymit the fraudulent act a
nd
there were others too and as such he should number be mea
s-
ured with a different yardstick. the tribunal however h
as
held that the respondent was guilty of entering the name
of
ashok kumar in the pay roll of may 4969. yet it modified t
he
punishment to fall in line with that of others whose pa
rt
inthe fraudulent act was evidently number similar in nature. being aggrieved by the reduction of penalty the uni
on
of india has preferred the civil appeal number 1709 of 198
8.
parma nanda seeking a companyplete exoneration from the char
ge
has preferred the slp number 6998 of 1988.
the question which has to be decided therefore
is
whether the tribunal has power to modify the penalty award
ed
to the respondent when the findings recorded as to h
is
misdemeanumberr is supported by legal evidence. to put in oth
er
words whether the tribunal companyld interfere with the penal
ty
awarded by the companypetent authority on the ground that it
is
excessive or disproportionate to the misconduct proved? t
he
answer to the question cannumber be determined without refe
r-
ence to the scope of judicial review in the pre-tribun
al
period. it is also necessary to remember the purpose f
or
which the tribunal came to be established. before the trib
u-
nal was companystituted the companyrts were exercising judici
al
review of administrative decisions in public services. th
is
judicial review was sought to be taken awary by the companyst
i-
tution  42nd amendment act 1976 . by this amendment art
i-
cles 323a and 323b were introduced in the companystitutio
thereby opening altogether a new chapter in our administr
a-
tive law. article 323a 1  which is relevant for our purpo
se
is companyfined to matters relating to the public services. it
provides power to parliament to enact law for establishme
nt
of administrative tribunals for adjudication of disput
es
with regard to service matters. the service matters are of
persons appointed to the public service and posts. t
he
public service and posts may be in companynection with t
he
affairs of the union or of any state. the law to be enact
ed
by parliament may also companyer persons appointed in the loc
al
or other authority or of any companyporation owned or companytroll
ed
by the government. there should be only one tribunal for t
he
union of india and one for each state or for two or mo
re
states put together. the law cannumber provide for hierarchy
of
tribunals. in pursuance of articles 323a 1  the parliame
nt
enacted the administrative tribunal act 1985  the act . we may briefly examine the statutory framework. secti
on
4 of the act provides for establishment of central admini
s-
trative tribunal as well as state administrative tribuna
l.
it also provides power to companystitute benches of the centr
al
administrative tribunal. sections 5 to 11 deal with t
he
composition of tribunals and benches thereof and terms
of
office of the chairman vice-chairman and other member
s.
section 14 provides powers and authority to the centr
al
administrative tribunal. section 15 deals with the simil
ar
power and authority of the state administrative tribuna
l.
section 16 refers to the powers of a joint administrati
ve
tribunal. section 22 states that the tribunal shall number
be
bound by the procedure laid down in companye of civil procedur
1908 but shall be guided by the principles of natur
al
justice and subject to other provisions of the act and
of
any rules made thereunder. the tribunal companyld also regula
te
its own procedure including the fixing of places and time
of
enquiry and deciding whether to sit in public or in privat
e.
sub-section 2 of sec. 22 requires the tribunal to deci
de
every application made to it as expeditiously as possibl
e.
ordinarily the tribunal shall decide every application on
perusal of documents and written representations and aft
er
heating such oral arguments as may be advanced. section
provides for execution of orders. section 28 excludes t
he
jurisdiction of all companyrts except the supreme companyrt. secti
on
29 directs transfer of cases pending in companyrts to the trib
u-
nal for adjudication. in pursuance of the provisions of the act the centr
al
government has established the central administrative trib
u-
nal with a bench at chandigarh whose order has been cha
l-
lenged before us. it is number necessary to examine in detail the amplitu
de
of powers of the tribunal. section 14 so far materia
provides

jurisdiction powers and authority of t
he
central administrative tribunal

save as otherwise expressly provided in th
is
act the central administrative tribunal shall exercise
on
and from the appointed day all the jurisdiction powers a
nd
authority exercisable immediately before that day by a
ll
courts  except supreme companyrt  in relation to
 a  recruitment and matters companycerning recrui
t-
ment to any all-india service or to any civil service
of
the union or a civil post under the union or to a po
st
connected with defence or in the defence services being
in
either case a post filled by a civilian
 b  all service matters companycerning--
similar are the powers and authority of the state ser
v-
ice tribunal under sec. 15 and joint administrative tribun
al
under sec. 16.
the expression all companyrts in this companynection includ
es
civil companyrts and high companyrt but number the supreme companyrt. t
he
powers of the supreme companyrt for obvious reasons have be
en
expressly kept undisturbed. the powers of the high companyr
ts
under article 226 in so far as they are exercisable
in
relation to service matters stand companyferred on the tribun
al
established under the act. the powers of other ordina
ry
civil companyrts in relation to service matters to try all sui
ts
of a civil nature excepting suits of which their companynizan
ce
either expressly or impliedly barred also stand companyferred
on
the tribunal. this position becomes further clear by secs. 27 28 a
nd
29 of the act. section 27 provides for finality of t
he
orders of the tribunal. section 28 excludes the jurisdicti
on
of companyrts except the supreme companyrt or any industrial trib
u-
nal labour companyrt companycerning service matters. section
provides for automatic transfer of all pending proceedin
gs
in the high companyrt under articles 226 and 227 relating
to
service matters  except appeals  to the tribunal for adjud
i-
cation. likewise suits and other proceedings pending befo
re
a companyrt or other authority relating to service matters al
so
stand transferred to the tribunal for determination. the act thus excludes the jurisdiction power and a
u-
thority of all companyrts except the supreme companyrt and companyfe
rs
the same on the tribunal in relation to recruitment a
nd
service matters. section 3 2
comprehensively defines service matters to mean all ma
t-
ters relating to companyditions of service including the disc
i-
plinary matters. from an analysis of secs. 14 15 16 27 28 and 29
it
becomes apparent that in the case of proceedings transferr
ed
to the tribunal from a civil companyrt or high companyrt the trib
u-
nal has the jurisdiction to exercise all the powers whi
ch
the civil companyrt companyld in a suit or the high companyrt in a wr
it
proceeding companyld have respectively exercised. in an origin
al
proceedings instituted before the tribunal under sec. 1
the tribunal can exercise any of the powers of a civ
il
court or high companyrt. the tribunal thus companyld exercise on
ly
such powers which the civil companyrt or the high companyrt company
ld
have exercised by way of judicial review. it is neither le
ss
number more. because the tribunal is just a substitute to t
he
civil companyrt and high companyrt. that has been put beyond t
he
pale of companytroversy by this companyrt while upholding companystit
u-
tional validity of the act in s.p. sampat kumar v. union
of
india ors. 1987 1 scc 124.
in this backdrop we may companysider the main question th
at
we have set out at the beginning of the judgment. mr. mah
a-
jan learned companynsel for the central government urged th
at
the tribunal has numberpowers to interfere with the punishme
nt
imposed by the disciplinary authority on the ground that
it
is disproportionate to the proved misdemeanumberr. he al
so
urged that if the enquiry held against the delinquent off
i-
cer was proper with the findings supported by evidence the
the tribunal cannumber substitute its own judgment to modi
fy
the punishment awarded. mr. ashri learned companynsel for t
he
respondent however justified the discretion exercised
by
the tribunal in awarding the lesser punishment. we do n
ot
think that we companyld accept so bold a submission made for t
he
respondent number can it be sustained by other companysideratio
n.
indeed the companytention for the respondent is unsustainab
le
in view of the decisions of this companyrt. in state of orissa v. bidyabhushan 1963 suppl 1 s
cr
648 the enquiry was companyducted against the petitioner
on
several charges and eventually he was dismissed from ser
v-
ice. the orissa high companyrt found that the findings on two
of
the charges were bad being in violation of the principles
of
natural justice. the findings on the remaining charges we
re
however found to be justified. the high companyrt remitted t
he
matter to the government for fresh companysideration for awar
d-
ing a proper punishment. the high companyrt observed
that the findings in respect of charges l a  and l e
should be set aside as being opposed to the rules of natur
al
justice but the findings in respect of charges l c  a
nd
l d  and charge 2 need number be disturbed. it will be th
en
left to government to decide whether on the basis of the
se
charges the punishment of dismissal should be maintain
ed
or else whether a lesser punishment would suffice. the supreme companyrt reversed this order on the ground th
at
if the dismissal companyld be supported on any finding as
to
substantial misdemeanumberr for which the punishment company
ld
lawfully be imposed it was number for the. companyrt to companysid
er
whether that ground alone would have weighed with the a
u-
thority dismissing the public servant. shah j. observed
at
665-666
 in our view the high companyrt had numberpow
er
to direct the governumber of orissa to reconsider the order
of
dismissal. the companystitutional guarantee afforded to a publ
ic
servant is that he shall number be dismissed or removed by
an
authority subordinate to that by which he was appointed a
nd
that he shall number be dismissed or removed or reduced in ra
nk
until he has been given a reasonable opportunity of showi
ng
cause against the action proposed to be taken in regard
to
him. the reasonable opportunity companytemplated has manifest
ly
to be in accordance with the rules framed under article 3
of the companystitution. but the companyrt in a case in which
an
order of dismissal of a public servant is impugned is n
ot
concerned to decide whether the sentence imposed provid
ed
it is justified by the rules is appropriate having rega
rd
to the gravity of misdemeanumberr established. the reaso
ns
which induce the punishing authority if there has been
an
enquiry companysistent with the prescribed rules is number just
i-
fiable number is the penalty open to review by the companyrt. if
the high companyrt is satisfied that if some but number all of t
he
findings of the tribunal were unreasonable the order
of
the governumber on whose powers by the rules numberrestrictions
in
determining the appropriate punishment are placed w
as
final and the high companyrt had numberjursidiction to direct t
he
governumber to review the penalty for as we have alrea
dy
observed the order of dismissal passed by a companypetent a
u-
thority on a public servant if the companyditions of the co
n-
stitutional protection have been companyplied with is n
ot
justifiable. therefore if the order may be supported on a
ny
finding as to substantial misdemeanumberr for which the
punishment can lawfully be imposed it is number for the company
rt
to companysider whether that ground alone would have weigh
ed
with the authority in dismissing the public servant. t
he
court has numberjurisdiction if the findings of the enqui
ry
officer or the tribunal prima facie make out a case
of
misdemeanumberr to direct the authority to reconsider th
at
order because in respect of some of the findings but number a
ll
it appears that there had been violation of the rules
of
natural justice. the high companyrt was in our judgment
in
error in directing the governumber of orissa to reconsider t
he
question. in dhirajlal girdharilal v. companymissioner of income-ta
air 1956 sc 271 mehar chand mahajan c.j. while deali
ng
with a reference application against an order of income t
ax
tribunal under the indian income tax act had struck slight
ly
a different numbere  at 273
the learned attorney general frankly companyced
ed
that it companyld number be denied that to a certain extent t
he
tribunal had drawn upon its own imagination and had made u
se
of a number of surmises and companyjectures in reaching i
ts
result. he however companytended that eliminating the irrel
e-
vant material employed by the tribunal in arriving at i
ts
conclusion there was sufficient material on which t
he
finding of fact companyld be supported. in our opinion th
is
contention is number well founded. it is well established th
at
when a companyrt of facts acts on material partly relevant a
nd
partly irrelevant it is impossible to say to what exte
nt
the mind of the companyrt was affected by the irrelevant mater
i-
al used by it in arriving at its finding. such a finding
is
vitiated because of the use of inadmissible material a
nd
thereby an issue of law arises. this proposition in dhirajlals case was explained a
nd
the statement of law in bidyabhushans case was affirmed
in
state of maharashtra v. b.k. takkamore ors. 1967 2 s
cr

it was case of supersession of the companyporation. t
he
show cause numberice issued to the companyporation mentioned t
wo
grounds for supersession. one of the grounds was held to
be
irrelevant. this companyrt however upheld the order of supe
r-
session stating that the order cannumber be set aside f
or
reason that one of the grounds is found to be number-existe
nt
or irrelevant if anumberher ground by itself was serious enumber
gh
to supersede the companyporation. bachawat j. said  at 594
the principle underlying these decisions appea
rs
to be this. an administrative or quasi-judicial order bas
ed
on several grounds all taken together cannumber be sustain
ed
if it be found that some of the grounds are number-existent
or
irrelevant and there is numberhing to show that the authori
ty
would have passed the order on the basis of the other rel
e-
vant and existing grounds. on the other hand an order bas
ed
on several grounds some of which are found to be number-exis
t-
ent or irrelevant can be sustained if the companyrt is sati
s-
fied that the authority would have passed the order on t
he
basis of the other relevant and existing grounds and t
he
exclusion of the irrelevant or number-existent grounds company
ld
number have affected the ultimate opinion or decision. this principle again receives support from the decisi
on
of in zora singh v. j.m. tandon air 1971 sc 1537. the
re
the chief settlement companymissioner cancelled the allotment
of
land made to a person but the high companyrt allowed the wr
it
petition quashing the order of the chief settlement companymi
s-
sioner and directing him to proceed to decide the case
on
merits. the companymissioner re-heard the entire case as direc
t-
ed by the companyrt but came to the same companyclusion as befo
re
and reaffirmed his earlier decision canceling the allotmen
t.
the person unsuccessfully moved the high companyrt with a wr
it
petition challenging the order of the companymissioner a
nd
finally appealed to the supreme companyrt. in dismissing th
at
appeal shalat j. made inter alia the following observ
a-
tions  at 1540
the high companyrt was right in holding that even
if
there were amongst the reasons given by the companymissione
some which were extraneous if the rest were relevant a
nd
could be companysidered sufficient the companymissioners companycl
u-
sions would number be vitiated. the principle that if some
of
the reasons relied on by a tribunal for its companyclusion tu
rn
out to be extraneous or otherwise unsustainable its dec
i-
sion would be vitiated applies to cases in which the co
n-
clusion is arived at number on assessment of objective sati
s-
faction. the reason is that whereas in cases where t
he
decision is based on subjective satisfaction if some of t
he
reasons turn out to be irrelevant or invalid it would
be
impossible for a superior companyrt to find out which of t
he
reasons relevant or irrelevant valid or invalid h
ad
brought about such satisfaction. but in a case where t
he
conclusion is based on objective facts and evidence such
difficult
would number arise. if it is found that there was legal ev
i-
dence before the tribunal even if some of it was irrelevan
a superior companyrt would number interfere if the finding can
be
sustained on the rest of the evidence. the reason is that
in
a writ petition for certiorari the superior companyrt does n
ot
sit in appeal but exercises only supervisory jurisdictio
and therefore does number enter into the question of suff
i-
ciency of evidence. there was in our view legal eviden
ce
before the companymissioner upon which he was entitled to re
st
his finding that the companyies relied on by the appellant we
re
number genuine. the view taken in bidyabhushan case has been repeated
ly
affirmed and reiterated in railway board v. niranjan sing
1969 3 scr 548 at 552 o.p. gupta case air 1970 sc 679 a
nd
union of india v. sardar bahadur 1972 2 scr 218. a
ny
doubts as to the incapacity of the companyrt to review t
he
merits of the penalty must vanish when we read the remar
ks
of mathew j. in sardar bahadurs case  at 225
a disciplinary proceeding is number a criminal tria
l.
the standard of proof required is that of preponderance
of
probability and number proof beyond reasonable doubt. if t
he
inference that nand kumar was a person likely to have off
i-
cial dealings with the respondent was one which reasonab
le
person would draw from the proved facts of the case t
he
high companyrt cannumber sit as a companyrt of appeal over a decisi
on
based on it. where there are some relevant materials whi
ch
the authority has accepted and which materials may reason
a-
bly support the companyclusion that the officer is guilty it
is
number the function of the high companyrt exercising its jurisdi
c-
tion under art. 226 to review the materials and to arrive
at
an independent finding on the materials. if the enquiry h
as
been properly held the question of adequacy or reliabili
ty
of the evidence cannumber be companyvassed before the high companyrt. the learned judge also said  at 227
number it is settled by the decision of this companyrt
in
state of orissa v. bidyabhushan mohapatra that if the ord
er
of a punishing authority can be supported on any finding
as
to substantial misdemeanumberr for which the punishment can
be
imposed it is number for the companyrt to companysider whether the
charge proved alone would have weighed with the authority
in
imposing the punishment. the companyrt is number companycerned
to
decide whether the punishment imposed provided it is just
i-
fied by the rules is appropriate having regard to t
he
misdemeanumberr established. so much is we think established law on the scope
of
jurisdiction and the amplitude of powers of the tribuna
l.
however of late we have been receiving a large number
of
appeals from the orders of tribunals--central a
nd
states--complaining about the interference with the penal
ty
awarded in the disciplinary proceedings. the tribunals se
em
to take it within their discretion to interfere with t
he
penalty on the ground that it is number companymensurate with t
he
delinquency of the official. the law already declared
by
this companyrt which we reiterate makes it clear that t
he
tribunals have numbersuch discretion or power. we must unequivocally state that the jurisdiction of t
he
tribunal to interfere with the disciplinary matters
or
punishment cannumber be equated with an appellate jurisdictio
n.
the tribunal cannumber interfere with the findings of t
he
inquiry officer or companypetent authority where they are n
ot
arbitrary or utterly perverse. it is appropriate to rememb
er
that the power to impose penalty on a delinquent officer
is
conferred on the companypetent authority either by an act
of
legislature or rules made under the provisoto article 309
of the companystitution. if there has been an enquiry companysiste
nt
with the rules and in accordance with principles of natur
al
justice what punishment would meet the ends of justice is
matter exclusively within the jurisdiction of the companypete
nt
authority. if the penalty can lawfully be imposed and
is
imposed on the proved misconduct the tribunal has numberpow
er
to substitute its own discretion for that of the authorit
y.
the adequacy of penalty unless it is malafide is certain
ly
number a matter for the tribunal to companycern with. the tribun
al
also cannumber interfere with the penalty if the companyclusion
of
the inquiry officer or the companypetent authority is based
on
evidence even if some of it is found to be irrelevant
or
extraneous to the matter. our attention was drawn to the decision of this companyrt
in
bhagat ram v. state of himachal pradesh 1983 2 scc 44
2.
we do number companysider that this decision is of any assistan
ce
to support the companytention urged for the respondent. the
re
the facts found were entirely different. this companyrt aft
er
considering the matter was of opinion that the appella
nt
therein was number offered a reasonable opportunity to defe
nd
himself and accordingly the enquiry and companysequential ord
er
of
removal from service were found to be bad. ordinarily whe
re
the disciplinary enquiry is shown to have been held
in
violation of principles of natural justice the enqui
ry
would be vitiated and the order based on such enquiry wou
ld
be quashed with liberty to hold fresh enquiry. but th
at
procedure was number adopted by this companyrt since the char
ge
against appellant was found to be a very minumber infraction
of
duty in checking hammer-marks of trees. that negligence
if
any caused numberloss to the government for the man w
ho
resorted unauthorised felling of trees had companypensated t
he
department. the appellant was a low paid class iv governme
nt
servant. companysidering all these facts this companyrt felt that
it
would number be fair to direct a low paid class iv employee
to
face the hazards of a fresh enquiry. this companyrt in t
he
interest of justice and fair play thought that a min
or
penalty would be sufficient. accordingly two incremen
ts
with future effect of the appellant were ordered to
be
withheld. this decision is therefore numberauthority for t
he
proposition that the high companyrt or the tribunal has juri
s-
diction to impose any punishment to meet the ends of ju
s-
tice. it may be numbered that this companyrt exercised the equit
a-
ble jurisdiction under article 136 and the high companyrt
or
tribunal has numbersuch power or jurisdiction. we may however carve out one exception to this propos
i-
tion. there may be cases where the penalty is imposed und
er
clause  a  of the second proviso to article 311 2  of t
he
constitution. where the person without enquiry is di
s-
missed removed or reduced in rank solely on the basis
of
conviction by a criminal companyrt the tribunal may examine t
he
adequacy of the penalty imposed in the light of the companyvi
c-
tion and sentence inflicted on the person. if the penal
ty
impugned is apparently unreasonable or uncalled for havi
ng
regard to the nature of the criminal charge the tribun
al
may step in to render substantial justice. the tribunal m
ay
remit the matter to the companypetent authority for reconsider
a-
tion or by itself substitute one of the penalties provid
ed
under clause  a . this power has been companyceded to the company
rt
in union of india v. tulsiram patel 1985 3 scc 398 whe
re
madon j. observed  at 501-502
where a disciplinary authority companyes to knumber th
at
a government servant has been companyvicted on a crimin
al
charge it must companysider whether his companyduct which has l
ed
to his companyviction was such as warrants the imposition of
penalty and if so what that penalty should be
the disciplinary authority must however bear in mind th
at
a companyviction on a criminal charge does number automatical
ly
entail dismissal removed or reduction in rank of the co
n-
cerned government servant. having decided which of the
se
three penalties is required to be imposed he has to pa
ss
the requisite order. a government servant who is aggriev
ed
by the penalty imposed can agitate in appeal revision
or
review as the case may be that the penalty was too seve
re
or excessive and number warranted by the facts and circu
m-
stances of the case. if it is his case that he is number t
he
government servant who has been in fact companyvicted he c
an
also agitate this question in appeal revision or review. if
he fails in the departmental remedies and still wants
to
pursue the matter he can invoke the companyrts power of jud
i-
cial review subject to the companyrt permitting it. if the company
rt
finds that he was number in fact the person companyvicted it wi
ll
strike down the impugned order and order him to be reinsta
t-
ed in service. where the companyrt finds that the penalty i
m-
posed by the impugned order is arbitrary or grossly exce
s-
sive or out of all proportion to the offence companymitted
or
number warranted by the facts and circumstances of the case
or
the requirements of that particular government service t
he
court will also strike down the impugned order. thus
in
shankar dass v. union of india this companyrt set aside t
he
impugned order of penalty on the ground that the penalty
of
dismissal from service imposed upon the appellant was whi
m-
sical and ordered his reinstatement in service with fu
ll
back wages. it is however number necessary that the company
rt
should always order reinstatement. the companyrt can inste
ad
substitute a penalty which in its opinion would be just a
nd
proper in the circumstances of the case. the last companytention that the respondent fails into t
he
category of a workman and the tribunal companyld exercise t
he
powers of an industrial companyrt for giving appropriate reli
ef
is unavailable in this case since the respondent had ma
de
his choice of forum and was even otherwise dealt with und
er
the government servants  companyduct  rules which are undispu
t-
edly applicable to him. in the light of the principles to which we have call
ed
attention and in view of the aforesaid discussion the ord
er
of the tribunal imposing a lesser penalty on the responde
nt
cannumber therefore be sustained. he was found guilty of t
he
charge framed against him. he
was a party to the fraudulent act for self aggrandisemen
t.
he prepared bogus documents for withdrawal of salary in t
he
name of ashok kumar who was number working in his division. he
has thus proved himself unbecoming and unworthy to hold a
ny
post. any sympathy or charitable view on such officials wi
ll
number be companyducive to keep the streams of administration pu
re
which is so vital for the success of our democrary. in the result we allow the appeal and set aside t
he
order of the tribunal.