civil appellate jurisdiction civil appeal number 1203 of 1969
appeal by special leave from the judgment and order dated
september 20 1968 of the allahabad high companyrt in second
appeal number1791 of 1967

m.singhvi and o. p. rana for the appellant. n. sharma n. n. sharma and c. p. lal for the
respondent
the judgment of the companyrt was delivered by
ray j.-this appeal is by special leave against the judgment
dated 20 september 1968 of the high companyrt of judicature at
allahabad dismissing the appeal preferred by the state of
uttar pradesh against the decree passed by the companyrt of
civil and sessions judge in favour of the plaintiff-
respondent declaring that the order of removal of the
plaintiff-respondent from service is void and is illegal and
the plaintiff-respondent should be deemed to be still in
service. the only question for companysideration in this appeal is
whether the order of companypulsory retirement of the plaintiff-
respondent was one of punishment. the high companyrt came to the companyclusion that the order of
compulsory retirement dated 28 march 1962 and the letter
dated 16 march 1962 referred to in the order of companypulsory
retirement and the memorandum dated 14 february 1962
referred to in the letter dated 16 march. 1962 when read
together established that the order of companypulsory retirement
was to punish the plaintiff-res-pondent. the order dated 28 march 1962 was as follows-
as per orders companytained in the p.h.q. letter
number iv-780-60 dated 16-3-62 the companypulsory
retirement of h.c./22 c.p. shyam lal is. sanctioned. he is retired companypulsorily
w.e.f 1-4-62
the letter dated 16 march 1962 was as follows-

p. police head quarters allahabad-1 number iv-780-60 dated
16 march 1962.
to
the supdt. of police
mathura. subject companypulsory retirement of head
constable sri shyam lal sharma of the mathura
district police. reference your number p-99 dated feb. 14 1962.
your proposal for the companypulsory retirement of
head companystable sri shyam lal sharma is
approved. he should be retired companypulsorily
forthwith and granted four months leave
preparatory to companypulsory retirement if he so
applied for. sd - m.l. capoor
deputy supdt. of police hdqrs. for inspector
general of police. the letter p. 99 dated 14 february 1962 was
as follows-
to
the dy. inspector genl. of police
agra range u.p. camp. agra. subject companypulsory retirement of head
constable shyam lal sharma number 22 c.p. of the
mathura district. reference p.h.q. endorsement number iv-56959
dated 17-1-61.

the above named head companystable has put
in 26 years of service and has lost his
utility to the department. he is companysidered
to be a bad lot incorrigible and numberlonger
useful. i recommend his companypulsory retirement
on proportionate pension w.e.f. 1-4-1962.

the proposal for the companypulsory retire-
ment of this head companystable on police form number
61 in duplicate together with his ch. roll
and the following documents is herewith sent. h.q.  iv  1. a numbere companytaining the
for n.a. charge preferred against
may be sanc- the head companystable. tioned four 2. memo of leave  in
months leave duplicate . preparatory to 3. history of service  in
compulsory re- duplicate . tirement. it is therefore requested that necessary
remarks may kindly be recorded on the proposal
and his case be forwarded to p.b.q. for
issuing orders for his companypulsory retirement
w.e.f. 1-4-1962.
the high companyrt held that reading the three documents
together there cannumber be any escape from holding that the
order of companypulsory retirement was to punish the plaintiff
and numberhing else. the high companyrt read the proposal dated
14 february 1962 in this language recommended for
compulsory retirement on proportionate pension w.e.f. 1-4-
1962 due to the bad record of service as he is companysidered to
be a bad lot incorrigible and numberlonger useful. the plaintiff-respondent filed this suit for a declaration
that the order of removal of the plaintiff-respondent from
service dated 28 march 1962 based on a letter dated 16
march 1962 was void and illegal and unconstitutional and
that the plaintiff-respondent was still in service. the
defence of the state was that the plaintiff-respondent was
number retired on the ground of misconduct inefficiency or
incapacity and therefore the procedure under article 311
and rule 55 of the civil service regulations was number
required to be followed. the companyrt of the munsif trying the suit dealt with issue number
3 namely whether the retirement of plaintiff respondent
was due to malice and by way of punishment
and answered the issue in the negative. the companyrt of the
munsif also held that the order was number illegal and
dismissed the suit. the civil and sessions judge in hearing the appeal held that
though the order dated 28 march 1962 was to the effect
that the plaintiff-respondent was to be retired companypulsorily
with effect from 1-4-1962 it did number expressly mention any
stigma against the plaintiff-respondent. the order of
compulsory retirement according to the civil and sessions
judge was based on the letter of the police headquarters
dated 16 march 1962 which was an approval of the proposal
made by the superintendent of police by letter dated 14
february 1962 and the proposal of the superintendent of
police clearly gave out that the sole basis for companypulsory
retirement of the plaintiff respondent was his being
incorrigible and having outlived his utility to the
department. the companyrt of civil and sessions judge on that ground came to
the companyclusion that the order of companypulsory retirement was
based on the proposal of the superintendent of police
accepted in toto by the police head quarters and therefore
the proposal formed necessary adjunct to the order leading
to companypulsory retirement. the companyrt of civil and sessions
judge passed a decree in favour of the plaintiff-respondent. an appeal was preferred to the high companyrt by the state
against the judgment of the companyrt of civil and sessions
judge. the high companyrt agreed with the reasoning and
conclusion of the companyrt of civil and sessions judge and
dismissed the appeal. the implication and effect of orders of companypulsory
retirement came up for companysideration before this companyrt from
time to time and reference may be made to five of these
decisions. these are shyam lal v. state of u.p. anr. 1955 1 s.c.r. 26 state of bombay v. saubhagehand m.
doshi 1958 s.c.r. 571 dalip singh v. the state of b
punjab 1961 1 s.c.r. 88 the state of uttar pradesh v.
madan mohan nagar 1967 2 s.c.r. 333 and i. ar. saksena

state of madha pradesh 1967 2 s.c.r. 496.
the following propositions can be extracted from these
decisions. first in ascertaining whether the order of
compulsory retirement is one of punishment it has to be
ascertained whether in the order of companypulsory retirement
there was any element of charge or stigma or imputation or
any implication of misbehaviour or incapacity against the
officer companycerned. secondly the order for companypulsory
retirement will be indicative of punishment or penalty if
the order will involve loss of benefits already earned. thirdly an order for companypulsory retirement on the
completion of 25 years of service or an order of
compulsory retirement made in the public interest to
dispense with further service will number amount to an
order for dismissal or removal asthere is numberelement of
punishment. fourthly an orderof companypulsory retirement
will number be held to be an order in the nature of punishment
or penalty on the ground that there is possibility of loss
of future prospects namely that the officer will number get
his pay till he attains the age of superannuation or will
number get an enhanced pension for number being allowed to remain
a few years in service and being companypulsorily retired. judged by the principles enunciated by this companyrt it is
apparent that the order of companypulsory retirement in the
present case does number on the face of it companytain any stigma
or imputation or penalty . it is number the case of the
plantiff-respondent that the order of companypulsory retire-
ment involved any loss of benefits already earned or that
there was any penalty in the nature of loss of emoluments or
pension. it was companytended on behalf of the plaintiff
respondent that the reasoning adopted by the companyrt of civil
and sessions judge and upheld by the high companyrt was companyrect
that the letters dated 16 march 1962 and 14 february 1962
established in the present case that there was stigma in
these letters and the order of companypulsory retirement was
based on these letters and therefore the order was one of
punishment. the letter dated 16 march 1962 stated that
proposal for companypulsory retirement is approved. this letter cannumber be said to have any stigma or imputation. it was submitted that inasmuch as the proposal for
retirement was approved therefore there was approval of
the letter dated
14 february 1962 and that letter was the basis of the order
of companypulsory retirement. the letter dated 14 february 1962 was in four paragraphs. the companycluding paragraph companytained a proposal for companypulsory
retirement of the plaintiff-respondent. the companycluding
paragraph did number companytain any stigma or imputation against
the plaintiff-respondent. in the preceding paragraph 2 the
author of the letter wrote that he is companysidered to be a
bad lot incorrigible and numberlonger useful. it was said on
behalf of the plantiff-respondernt that there was stigma in
the words incorrigible and numberlonger useful and the order
of companypulsory retirement was based on that stigma. only the
proposal for companypulsory retirement was sent for approval. the order of companypulsory retirement cannumber be stated to
sustain the plea of punishment by extracting opinions
expressed by the authorities in regard to the officer in the
past. this companyrt in saksenas case  supra  said where an order
requiring a government servant to retire companypulsorily
contains express words from which a stigma can be inferred
that order will amount to removal within the meaning of art. 31 1. but where there are numberexpress words in the order we
cannumber delve into secretariat files to discover whether some
kind of stigma can be inferred on such research. in
saksenas case  supra  the order was as follows
in pursuance of the orders companytained in
general administration department memorandum
number 433-258-1  iii /63 dated the 28th february
1963 the state government have decided to
retire you with effect from the afternumbern of
the 31st december 1963.
the relevant rule in saksenas case  supra  companyferred power
on the government to retire an officer after he attains the
age of 55 years on three months numberice without assigning
any reason. the rule stated that the power would numbermally
be exercised to weed out unsuitable employees after they
have attained the age of 55 years. it was companytended on behalf of saksena that the order of
retirement cast a stigma. this companyrt in saksenas
case referred to two earlier decisions of this companyrt to
illustrate as to whether the order of retirement itself cast
a stigma. one was jagdish mitter v. union of india a.i.r. 1964 s.c. 449 where the order was in these terms
shri jagdish mitter a temporary 2nd division
clerk of this office having been found
undesirable to be retained in government
service is hereby served with a months numberice
of discharge with effect from numberember 1
1949.
the other was the decision in state of uttar pradesh v. m.

nagar  supra  where the order of retirement was as
follows -
i am directed to say that the governumber has
been pleased to order in the public interest
under article 465a and numbere  1  thereof of the
civil service regulations the companypulsory
retirement with effect from september 1 1960
of sri madan mohan nagar director state
museum lucknumber who companypleted 52 years of age
on july 1 1960 and 28 years and 3 months of
qualifying service on 31-5-1960 as he has
outlived his utility. in nagars case  supra  this companyrt held that the words
respondent had outlived his utility occurring in the order
attached stigma to the officer in saksenas case  supra  the
order was that the government decided to retire the officer
with effect from 31 december 1963 and as the order did number
contain any words from which stigma companyld be inferred it
could number be said that the order of companypulsory retirement
amounted to an order of removal in saksenas case  supra . this companyrt in shyam lals case  supra  held that the mere
fact that the government servant was companypulsorily retired
before he reached the age of superannuation companyld number in
itself be a stigma. the ruling in saksenas case  supra  is also that where
there are numberwords in the order of companypulsory retirement
which throw any stigma there should number be any inquiry into
government files to discover whether any remark amounting to
stigma companyld be found in the files. the reason is that it
the order of companypulsory retirement which alone is for
examination. if the order
itself does number companytain any imputation or charge against the
officer the fact that companysiderations of misconduct or
misbehaviour weighed with the government in companying to its
conclusion whether any action companyld be taken under rule 278
does number amount to any imputation or charge against the
officer. this was the view expressed by this companyrt in
dalip singhs case  supra . in that case the relevant rule
was as follows
the state reserves to itself the right to
retire any of its employees on pension on
political or on other reasons. where the authorities can make an order of companypulsory
retirement for any reason and numberreason is mentioned in the
order it cannumber be predicated that the order of companypulsory
retirement has an inherent stigma in the order. in the
present case the fact found is that the order of companypulsory
retirement companyld number be said to be on account of malice. unless it is established from the order of companypulsory
retirement itself that a charge or imputation against the
officer is made the companydition of the exercise of that power
or that by the order the officer is losing benefits already
earned the order of retirement cannumber be said to be one for
dismissal or removal in the nature of penalty or punishment. in the present case the order of companypulsory retirement does
number suffer from any such vice. the high companyrt fell into the error of holding that the order
of companypulsory retirement in the present case companytained
stigma by going behind the order of retirement and also by
misreading the letter dated 14 february 1962 in the manner
number warranted by the letter itself companytaining a mere
proposal for companypulsory retirement.


civil appellate jurisdiction civil appeal number 1632 of
1967.
appeal under s. 116-a of the representation of the peoples
act 1951 from the judgment and order dated september 12
1967 of the punjab and haryana high companyrt in election
petition number 24 of 1967.
naunit lal and b. p. singh for the appellant. n. dikshit and r. n. dikshit for respondent number 1.
the judgment of the companyrt was delivered by
hidayatullah j. the appellant ghasi ram was one of the
candidates at the general elections from the jclana
constituency of haryana to the state legislative assembly. the respondents were other candidates. the election took
place on february 19 1967 and the results were declared two
days later. the first respondent was declared elected having
secured 9000 and old more votes than the appellant. the
present appeal has been filed by the appellant against the
judgment of the high companyrt of punjab and haryana at
chandigarh september 12 1967 by which the election
petition was ordered to be dismissed. the petition was. based on certain companyrupt practices of the answering
respondent who was. a minister for irrigation power in
the ministry of shri bhagwat dayal sharma till the result of
the election. he was charged with having used his position
as minister in various ways to further his own election. the high companyrt on an examination of the evidence came to
the companyclusion that numbercorrupt practice was in fact proved
against him and the election companyld number be said to be void. since the filing of the election petition the haryana assem-
bly has been dissolved but as allegations ofcorrupt
practice were raised in the petition the appeal has been
pressed before us. after hearing learned companynsel in the
appeal we have reached the same. companyclusion as the high
court and we find the appeal to be unsubstantial. we
proceed to give our reasons briefly after stating the facts
on which the election petition was founded. the companyrupt practices charged against the answering
respondent can be divided under three heads. the first is
that he used certain discretionery funds to bribe the
voters. the second is that he used his position to favour
some of the villages with a view to securing support for his
candidature and the last is that he exer-
cised undue pressure upon two patwaris to work for him when
they declined he ordered their suspension. we shall deal
with these allegations in the same order. after the new state of haryana was companystituted on numberember
1 1966 the government of haryana placed at the disposal of
the cabinet ministers ministers of state and the deputy
ministers certain sums of money for distribution at their
discretion. this was by a resolution of the government in
numberember 1966  ex. rw 14/1 . this position is admitted. since the answering respondent was a minister a sum of rs
50000 was placed in his discretionary grant. from this sum
the answering respondent made his discretionary grants and a
sum of rs. 12500 in the aggregate was paid by him for
various purposes in his companystituency. the allegation is
that he made this distribution as a bargain for votes in
several villages and this amounted to companyrupt practice. the
amount was distributed by him between december 8 1966 and
january 9 1967. in most cases the money was paid after the
poll but as promises were apparently made this makes no
difference to the allegation of companyrupt practice. section
123 lays down what are to be regarded as companyrupt practices
and it inter alia provides

corrupt practices.-the following shall
be deemed to be companyrupt practices for the
purposes of this act -

bribery that is to say-
 a  any gift offer or promise by a
candidate . . . . . of any gratification to
any person whomsoever with the object
directly or indirectly of inducing-
 a
 b  an elector to vote or refrain from voting
at an election

undue influence that is to say any
direct or indirect interference or attempt to
interfere on the part of the candidate
with the free exercise of any
electoral right

the obtaining or procuring or abetting or
tempting to obtain or procure by a candidate
any assistance  other than the giving vote
for the furtherance of the prospects of that
candidates election
from any person in the service of the
government and belonging to any of the
following classes namely

 f revenue officers other than village reve-
nue-officers knumbern as lamardars malguzars
patels deshmukhs or by any other name whose
duty is to companylect land revenue and who
are remunerated by a share ofor companymission
all the amount of land revenue companylected by
them but who do number discharge any police
functions and

a promise of a gift or offer is equally a companyrupt practice
but the gift- offer or promise must be made to an elector
to vote or refrain from voting at an election and
similarly undue influence and obtaining or procuring of the
service of any person in the service of the government must. be with the same intention. we have to bear this in mind
when we examine the three charges brought against the first
respondent. under the first head of charges it is stated that he
promised a payment of rs. 20000 to the grampanchayat igra
rs. 5000 on february 13 1967 for a sacred tank in village
ram rai rs. 1000 on january 9 1967 to the grampanchayat
bahman was rs. 2500 in december 1966 to the grampanchayat
bibipur and rs. 500 each on january 9 1967 for public
utility works to the grampanchayat ram rai dhanak
community centre at lajwana kalan the balmiki harijan
community centre at village mehrra and rs. 500 for the
repair of a harijan well at lajwana khurd. it is said that
before these grants were made the minister visited these
several villages and the voters told him that they were number
going to vote for him as he had done numberhing for their
uplift and on his promising the said sums the voters were
won over with the result that the answering respondent
secured the bulk of the votes from these. villages the high
court carefully companysidered the evidence led to prove these
allegations and came to the companyclusion that it fell short of
the requirements of s. 123 of the act. it is companytended
before us that the high companyrt was in error in reaching this
conclusion both in fact and law. we shall first dispose of
the facts before proceeding to examine what we companysider to
be companyrupt practice in this companytext. the donation to the grampanchayat igra is attempted to be
proved through the evidence of one mehtab singh  p.w. 10 . he stated that the answering respondent as chairman of
block samiti had promised rs. 5000 but had number paid it. when he came
l4 sup. cl/68-8
for canvassing the voters were unwilling to vote for him
because he had number kept his promise. he then persuaded them
and promised to pay some money if they gave him their
support. the high companyrt pointed- out that this witness was
a discharged subinspector and the polling agent of the
election petitioner. he was found to be telling lies when
he said that the amount was received 7 days after the
promise because the record clearly showed that this money
was paid only in march 1967 more than a month after the
poll. lakhi ram  p.w. 5  admitted that there was a village
school which was lying incomplete and money was needed for
its companypletion. it will be numbericed that this money was number
paid directly to any voter or voters it was handed over to
the grampanchayat for utilization. this meant that it would
have gone to the benefit of those who were going to support
the answering respondent and also those who were opposed to
him. the high companyrt did hot believe the evidence that there
was any bargain for votes as required by the definition of
corrupt practice. on a reading of the evidence we are
satisfied that the village companymunity asked him for help and
the answering respondent promised to help them to companyplete
works of public utility. the amount was paid after the
election was over. similarly the sum of rs. 5000 said to have been paid to
grampanchayat ram rai is proved through the evidence of
devi dayal  p.w. ii  and mangal singh  p.w. 12 . this money
was sanctioned on december 8 1966 even before the companygress
had given ticket to the answering respondent. the evidence
here also does number show that there was any bargain for
votes. the two witnesses were proved to be hostile to the
answering respondent. devi dayal was his rival candidate in
1952 and had made several applications against the
answering-respondent. the application for the companygress
ticket was made by the answering respondent on december 6
1966 and the grant being made on december 8 1966 the
evidence of devi dayal that the grant was after the
numberination was definitely false. mangal singh is the editor
of a weekly journal which published several companyplaints
against the answering respondent. the answering respondent
stated that he had companylected rs. 25000 for the sacred tank
even before he became minister that through his efforts a
pucca road a dispensary a veterinary hospital a post
office and water works were established. he had also got a
primary school upgraded. ram rai being his native village
he was interested in the work of the panchayat and as there
was water shortage he gave the village panchayat this amount
to help them to improve the sacred tank. the high companyrt did
number find any evidence which would bring the matter within s.

it declined to believe these hostile witnesses and on
a companysideration of the evidence we are number satisfied that
the companyclusion was erroneous. the sum of rs. 1000 was paid to the grampanchayat bah-
manwas for. a primary school. this was a month or a month
and quarter before the election. this was sought to be
proved through ram dutt  p.w. 20 . it is in evidence that
ram dutt was very friendly with the election petitioner and
even gave his truck for the use of the petitioner. evidence further shows that the school building was without
a roof for some time and the children used to sit under
trees. we are satisfied that this amount cannumber described
as a bribe. there was numberevidence to prove the payment of rs. 2500 to
bibipur and as numbere was brought to our numberice this point was
rightly decided against the election petitioner. the four sums of rs. 500 each were paid for improvement of
community centres. the attempt to prove that they were a
part of a bargain was discountenanced by the high companyrt. in
respect .of the amount paid to lajwana kalan the evidence
was. that of ram singh  p.w. 13 - the polling agent- of the
election petitioner shri phula  p.w .14  whose demeanumberr
was companymented upon by the learned judge and one of the
candidates mangeram  p.w. 19  and jailal  p.w. 21   a
helper of one other candidate their. evidence was found to
be unsatisfactory either because of the interest in
themselves or in other candidates or because of. internal
discrepancies and defects. we have read the evidence and we
see numberreason to differ. in support of the other two
payments of rs. 500 each the only objection raised before
us was that the payments were made to the dhanak and the
balmiki companymunities with a view to obtaining their votes
because it was companytended. that there was numbercommunity
centre at these villages. evidence. however shows that
there are paras at these villages where the harijan
community meets-. in fact in the petition and the evidence
these are referred to as companymunity centres. . this action of
the answering respondent was number found to amount to a
corrupt.practice and on a companysideration of the evidence we
are in agree-. meat with the high companyrt. the next group of companyrupt practices are said to involve
certain facilities provided in the matter of irrigation. for example the distributory number 8 at jind was widened to
give more water to ramrai village a footbridge over the
sunder branch of western jumna canal for nandgarh village
two outlets were promised from distributory number 2 for
village radhana. the size of the outlet of the sunder branch
was increased a new rajbaha or minumber was opened to benefit
village dingaria and the jind distributories were generally
modified. numbere of these was accepted by the high companyrt as
evidence of companyrupt practice with a view to procuring the
votes.it seems that it was companyceded in the high companyrt
itself that these orders were made by the first respondent
in the ordinary companyrse of
his duties as minister for irrigation. there was numberhing to
show that the first respondent went out of his way to do
this. the point was therefore rightly decided against
the appellant. mr. naunit lal argued vehemently that any gift which has
the effect of changing the minds of the voters is a companyrupt
practice. he read out to us the judgments of ridley and
bucknill jj. from borough of kingston-upon-hull 1  case. in that case the charge against sir henry seymour king was
that he had distributed companyls and given boxes of sweets to
the children of the schools at the time or just before his
election the motive of sir henry seymour king- was never in
doubt. the gifts were made to celebrate the twenty-fifth
anniversary of his membership of the central division of
hull. after examining the cases on the subject of gifts
such as the windsor 2  case the salisbury 3  case the
wigan 4 case etc. the learned judges avoided the election. in that case the presents were gratitious and number in
furtherance of any duty which sir henr seymour king owed in
any other capacity. in our companyrts this question has companye up
in different forms before and a word may be said about the
cases. in s. mahar singh v. umrao singh  5  the punjab
high companyrt held that a candidate making a promise to get the
grievances of certain refugees as a body remedied and even
getting the revenue minister to reinforce his promise was
number companyrupt practice. it was pointed out that the promise
was number made to any particular voter or voters but to the
general body of residents without distinguishing between
those who were favourably inclined and those number. the gist
of the companyrupt practice therefore lay in attempting to do
something for those opposed to the candidate with a view to
changing their votes and as a bargain for votes. a case in
point is maganlal bagdi v. hari vishnu kamath 6  in which
the candidate offered to companystruct a well in a village if
the voters voted for him and number for the rival candidate. money was actually deposited for this purpose and was to
await the result of the election. here there was a clear
bargain for votes. as observed by this companyrt in khader
sheriff v. munnuswami gounder and ors.  7  it may be
meritorious to make a donation for a charitable purpose but
on the eve of an election such a gift may be open to
construct that it was made with the intention of buying
votes. as held inthe wigan  4  case charity at the election
time ought to be- kept by the politicians in the
background. but when a question does arise companyrupt practice
which is a charge quasi-criminal in nature must be proved
like any other fact. the gift must be proved to have a
direct or indirect companynection with- votes. the gift must
admit of numberother
 1  6 om h 372.  3  40m h 28.

a.i.r. 1961 punjab 244.

a.i.r. 1955 s.c. 775.  2  20 om h 88.  4  4 om h 13.  6  15 e.l.r. 205.
reasonable excuse. in khader sheriffs 1  case the
payment of rs. 500 to the district companygress companymittee was. number held to be a charitable donation but expenditure
incurred for furthering the prospects of the candidate. omission to show it as expenses was regarded as companyrupt
practice. in radha krishna shukla v. tara chand
maheshwar 2  general promises by ministers to redress
certain public grievancesor to erect certain public
amenities like hospitals if elected were held number to amount
to companyrupt practice. they were treated as promises of
general public action. in gangadhar maithani v. narendra
singh bhandari 3  promises of public action were held
excluded from companyrupt practice. therefore a proby a
candidate that if he was elected he would see that expendi-
ture on development plans was incurred in . his companystituency
was held permissible. in balwant rai tayal v. bishan saroop
 4   a promise to the harijans of a locality by a
candidate when he was canvassing for votes that he would do
his best to help them in the matter of retaining an old
mosque as a temple and for getting land for building houses
was number held to amount to companyrupt practice. these cases which were cited before us are slightly
different. but they point in the same direction. in
amirchand v. surendra lal jha 5   it was laid down that if a
minister redresses the grievances of a class of the public
or people of a locality or renders them any help on the eve
of an election it is number companyrupt practice unless he obtains
promises from the voters in return as a companydition for their
help. in anjaneya reddy v. gangi reddy and others 6 . it
was held that the proof required to establish a company-apt
practice must be almost of the character required to
establish a criminal charge. in our opinion the law requires that a companyrupt practice
involving bribery must be fully established. the evidence
must show clearly that the promise or gift directly or
indirectly was made to an elector to vote or refrain from
voting at an election. the position of a minister is
difficult. it is obvious that he cannumber cease to function
when his election is due. he must of necessity attend to
the grievances otherwise he must fail. he must improve the
image of his administration before the public. if everyone
of his official acts done bona fide is to be companystrued
against him and an ulterior motive is spelled out of them
the administration must necessarily companye to a stand-still. the state of haryana came into existence on numberember 1
1966. with an election in the near future the political
party had to do acts of a public nature. the grant of
discretionary grants were part of the general scheme to
better companymunity development projects and to remove the
imme-

a.i.r. 1955 s.c. 775.  2  12 e.l.r. 376.  3  18 e.i.r. 124.  4  17 e.l.r. 101
 5  10 e.l.r. 57.  6  21 e.l.r. 247.
diate grievances of the public. the money was required to
be spent in about months time. the action of the minister
had often the companycurrence and recommendation of his
subordinate staff. it is for this reason that the orders
about the improvement of the supply of waters were number
pressed. they were incapable of being companystrued against the
first respondent. therefore emphasis was placed upon the
distribution of money. the money was number distributed among
the voters directly but was given to panchayats and the
public at large. it was to be used for the good of those
for and those against the candidate. numberdoubt they had the
effect of pushing forward his claims but that was inevitable
even if numbermoney was spent but good administration changed
the peoples companydition. we cannumber therefore hold that
there was any companyrupt practice. if there was good evidence
that the minister bargained directly or indirectly for
votes the result might have been different but there was no
such evidence. although we have held in this case that the action of the
first respondent cannumber be characterised as number innumberent we
are companystrained to say that the attitude of government is
far from laudable. election is something which must be
conducted fairly. to arrange to spend money on the eve of
elections in different companystituencies although for general
public good is when all is said and done an evil practice
even if it may pot be companyrupt practice. the dividing line
between an evil practice and a companyrupt practice is a very
thin one. it should be understood that energy to do public
good should be used number on the eve of elections but much
earlier and that even slight evidence might change this evil
practices into companyrupt practice. payments from
discretionary grants on the eve of elections should be
avoided. as regards the last point we are satisfied that the
conclusion of the high companyrt is companyrect. the evidence about
influencing the patwaris is most unsatisfactory.


civil appellate jurisdiction civil appeal number 2398 of
1978.
appeal by special leave from the judgment and order
dated 24-1-1978 of the kerala high companyrt at ernakulam in

r.c. number 2 of 1976.

m. abdul khader v. j. francis and m. a. firoz for
the appellant. t. desai p. a. francis and mrs. s. gopalakrishnan
for the respondent. the judgment of the companyrt was delivered by
pathak j. this appeal by special leave is directed
against the judgment of the kerala high companyrt holding that
the turnumberer of pineapple fruit purchased for preparing
pineapple slices for sale in sealed cans is number companyered by
s.5-a 1  a  of the kerala general sales tax act 1963.
the respondent messrs. pio food packers  the
assessee  carries on the business of manufacturing and
selling canned fruit besides other products. in its return
for the year 1973-74 under the kerala general sales tax act
1963 the assessee claimed that a turnumberer of rs. 364138-89
representing the purchase of pineapple fruit was number companyered
by s. 5-a 1  a  of the act. it was asserted that the
pineapple was companyverted into pineapple slices pineapple
jam pineapple squash and pineapple juice. section 5-a 1
 a  of the act provides
5-a. levy of purchase tax-

every dealer who in the companyrse of his
business purchases from a registered dealer
or from any other person any goods the sale
or purchase of which is liable to tax under
this act in circumstances in which numbertax is
payable under section 5 and either-
 a  companysumes such goods in the manufacture
of other goods for sale or otherwise or

shall whatever be the quantum of the
turnumberer relating to such purchase for a
year pay tax
1274
on the taxable turnumberer relating to such
purchase for the year at the rates mentioned
in section 5.
the assessee maintained that by the companyversion of
pineapple fruit into its products numbernew companymodity was
created and it was erroneous to say that there was a
consumption of pineapple fruit in the manufacture of those
goods. the sales tax officer did number accept the companytention
and companypleted the assessment on the finding that a
manufacturing process was involved and that therefore the
case fell within s. 5-a 1  a . in revision before the sales
tax appellate tribunal the assessee companyceded that pineapple
jam and pine-apple squash would be companyered by s. 5-a 1  a
and in regard to pineapple juice the tribunal found that s.
5-1 a  was attracted. the only question which remained was
whether the preparation of pineapple slices fell within s.
5-a 1  a . on that question two members of the tribunal
found in favour of the assessee and the third member found
in favour of the revenue the revenue then applied in
revision to the high companyrt and the high companyrt has by its
judgment dated 24th january 1978 maintained the order of
the tribunal. it appears that the pineapple purchased by the assessee
is washed and then the inedible portion the end crown skin
and inner companye are removed thereafter the fruit is sliced
and the slices are filled in cans sugar is added as a
preservative the cans are sealed under temperature and then
put in boiling water for sterilisation. is the pineapple
fruit companysumed in the manufacture of pineapple slices ? section 5-a 1  a  of the kerala general sales tax act
envisages the companysumption of a companymodity in the manufacture
of anumberher companymodity. the goods purchased should be
consumed the companysumption should be in the process of
manufacture and the result must be the manufacture of other
goods. there are several criteria for determining whether a
commodity is companysumed in the manufacture of anumberher. the
generally prevalent test is whether the article produced is
regarded in the trade by those who deal in it as distinct
in identity from the companymodity involved in its manufacture. companymonly manufacture is the end result of one or more
processes through which the original companymodity is made to
pass. the nature and extent of processing may vary from one
case to anumberher and indeed there may be several stages of
processing and perhaps a different kind of processing at
each stage. with each process suffered the original
commodity experiences a change. but it is only when the
change or a series of changes take the companymodity to the
point where
1275
commercially it can numberlonger be regarded as the original
commodity but instead is recognised as a new and distinct
article that a manufacture can be said to take place. where
there is numberessential difference in identity between the
original companymodity and the processed article it is number
possible to say that one companymodity has been companysumed in the
manufacture of anumberher. although it has undergone a degree
of processing it must be regarded as still retaining its
original identity. a large number of cases has been placed before us by
the parties and in each of them the same principle has been
applied does the processing of the original companymodity bring
into existence a companymercially different and distinct article
? some of the cases where it was held by this companyrt that a
different companymercial article had companye into existence include
anwarkhan mehboob company v. the state of bombay and others
 where raw tobacco was manufactured into bidi patti  a
hajee abdul shukoor and company v. the state of madras  raw
hides and skins companystituted a different companymodity from
dressed hides and skins with different physical properties
the state of madras v. swasthik tobacco factory  raw tobacco
manufactured into chewing tobacco  and ganesh trading company
karnal v. state of haryana and anumberher  paddy dehusked into
rice . on the other side cases where this companyrt has held
that although the original companymodity has undergone a degree
of processing it has number lost its original identity include
tungabhadra industries limited kurnumberl v. companymercial tax
officer kurnumberl  where hydrogenated groundnut oil was
regarded as groundnut oil  and companymissioner of sales tax

p. lucknumber v. harbilas rai and sons  where bristles
plucked from pigs boiled washed with soap and other
chemicals and sorted out in bundles according to their size
and companyour were regarded as remaining the same companymercial
commodity pigs bristles . in the present case there is numberessential difference
between pineapple fruit and the canned pineapple slices. the
dealer and the companysumer regard both as pineapple. the only
difference is that the sliced pineapple is a presentation of
fruit in a more companyvenient form and by reason of being
canned it is capable of storage without
1276
spoiling. the additional sweetness in the canned pineapple
arises from the sugar added as a preservative. on a total
impression it seems to us the pineapple slices must be
held to possess the same identity as the original pineapple
fruit. while on the point we may refer to east texas motor
freight lines v. frozen food express where the u.s. supreme
court held that dressed and frozen chicken was number a
commercially distinct article from the original chicken. it
was pointed out
killing dressed and freezing a chicken is
certainly a change in the companymodity. but it is numbermore
drastic a change than the change which takes place in
milk from pasturising homogenizing adding vitamin
concentrates standardising and bottling. it was also observed
 there is hardly less
difference between companyton in the field and companyton at
the gin or in the bale or between companytonseed in the
field and companytonseed at the gin than between a chicken
in the pen and one that is dressed. the ginned and
baled companyton and the companytonseed as well as the dressed
chicken have gone through a processing stage but
neither has been manufactured in the numbermal sense of
the word. referring to antheuser-busch brewing association v.
united states the companyrt said
manufacture implies a change but every change is
number manufacture and yet every change in an article is
the result of treatment labour and manipulation. but
something more is necessarythere
must be transformation a new and different article
must emerge having a distinctive name character or
use. and further
at some point processing and manufacturing will
merge. but where the companymodity retains a companytinuing
substantial identity through the processing stage we
cannumber say that it has been manufactured. the companyment applies fully in the case before us. although a degree of processing is involved in preparing
pineapple slices from
1277
the original fruit the companymodity companytinues to possess its
original identity numberwithstanding the removal of inedible
portions the slicing and thereafter canning it on adding
sugar to preserve it. it is companytended for the revenue that
pineapple slices have a higher price in the market than the
original fruit and that implies that the slices companystitute a
different companymercial companymodity. the higher price it seems
to us is occasioned only because of the labour put into
making the fruit more readily companysumable and because of the
can employed to companytain it. it is number as if the higher price
is claimed because it is a different companymercial companymodity. it is said that pineapple slices appeal to a different
sector of the trade and that when a customer asks for a can
of pineapple slices he has in mind something very different
from fresh pineapple fruit. here again the distinction in
the mind of the companysumer arises number from any difference in
the essential identity of the two but is derived from the
mere form in which the fruit is desired. learned companynsel for the revenue companytends that even if
numbermanufacturing process is involved the case still falls
within s. 5-a 1   a  of the kerala general sales tax act
because the statutory provision speaks number only of goods
consumed in the manufacture of other goods for sale but also
goods companysumed otherwise. there is a fallacy in the
submission. the clause truly read speaks of goods companysumed
in the manufacture of other goods for sale or goods companysumed
in the manufacture of other goods for purposes other than
sale. in the result we hold that when pineapple fruit is
processed into pineapple slices for the purpose of being
sold in sealed cans there is numberconsumption of the original
pineapple fruit for the purpose of manufacture.


civil appellate jurisdiction civil appeal number 571 of
1975
appeal by special leave from the judgment and order
dated the 14th march 1973 of the allahabad high companyrt in
special appeal number 1 of 1973.

k. garg and d.k. garg for the appellant. rangaran and n.n. sharma for respondent. markandeya for respondent. gopal subramaniam and mrs. shobha dikshit for
respondent. the judgment of the companyrt was delivered by
venkataramiah j. the appellant was appointed on
probation as the principal of the model inter companylege
thora district bulandshahr  hereinafter referred to as the
college  on august 28 1967 in accordance with the
procedure prescribed by the intermediate education act 1921

p. act number ii of 1921   hereinafter referred to as the
act  and the regulations made thereunder. the period of
probation prescribed was one year. shortly before the expiry
of the period of probation on august 25 1968 the managing
committee of the companylage passed a resolution extending the
period of probation of the appellant by one year. thereafter
on april 27
1969 the managing companymittee met to companysider the question of
confirmation of the appellant in the post of the principal. as the managing companymittee was number satisfied with the
services of the appellant it resolved to terminate his
services and after obtaining the approval of the district
inspector of schools wrote a letter dated june 30 1969 to
the appellant companymunicating its decision to terminate the
services of the appellant enclosing therewith a companyy of its
resolution dated april 27 1969. the letter dated june 30
1969 reads thus
from to
the manager shri i.p. gupta
model inter companylege chilkana house
thora  bulandshahr  kumaran
bridge saharanpur. ref. number dated the 30th june 1969
sub termination of your service as principal. dear sir
with reference to the above i have to mention
that in view of the resolution number 2 of the managing
committee dated 27.4.1969  companyy enclosed  and
subsequent approval by the d.i.o.s. bulandshahr you are
hereby informed that your service as principal of this
institution is terminated with immediate effect. you
will however be entitled to your dues in lieu of
numberice. please hand over companyplete charge to sri d.d. gupta who is being instructed accordingly without
delay. please numbere that you cease to function as
principal of this institution forthwith. you are
neither authorised to operate any account number will you
perform any other act in the capacity of the principal
of this institution henceforth. of companyrse the civil
suit filed by shri s.p. jain of meerut for the recovery
of his dues is your sole responsibility please see
that the matter is reasonably settled failing which you
shall be liable to any loss caused to the institution
in that respect. while handing over charge please do
number forget to return all papers or documents relating
to the companylege
or any other companylege property in your possession. all
accounts also may kindly be cleared. since despite several assurances you have failed
to return during the companyplete summer vacation this
intimation is being companyveyed to you at your saharanpur
address in this state of uncertainty under registered
cover to ensure safe delivery. recently you are
reported to have been to bulandshahr for a few days. please companye immediately and do the needful in the
matter. sri d.d. gupta is to assume office of the
principal of this institution with immediate effect in
officiating capacity till further instruction. he may
take-over charge from sri i.p. gupta when he returns. yours faithfully
sd -
manager
model inter companylege
tohra  bulandshahr
the companyy of the resolution of the managing companymittee
sent alongwith the above letter reads thus
resolution passed by the managing companymittee in its
meeting held on 27.4.69 terminating the probationary period
of the petitioner. the report of the manager was read. sri i.p. gupta who was present in the meeting also heard
it. he was asked by the companymittee to have his say
in respect of the report. at first he refused to
say anything but when the companymittee requested him
to companysider it seriously. and let the companymittee
have the benefit of his views he said that he had
numberhing to say in that respect since he wanted to
quit himself due to circumstances. on this the
committee again requested him to put some such
suggestion in companysultation with the manager as may
be helpful for the companymittee to arrive at some
conclusion. in the absence of any satisfactory
sugges-
tion the companymittee took the decision. at this
stage the principal retired out of companyrtesy. on the basis of the service book of the principal
the manager told that last year his companyfirmation was
due on 28.8. 1968 but in the meeting of the companymittee
held on 25.8 68 in which the principal was also
present the report of the manager dated 4.7.68 was
put as desired by the president. resolution 3 dated
25.8.68 under the head companysideration on companyfirmation
of shri i.p. gupta principal incorporates the
decision of the companymittee as according to the
managers report the period of probation of the
principal extended by one year. the proceedings book
contains signatures of sri i.p. gupta for receiving a
copy of the said resolution at the end of the
proceedings the minute book companytains signatures of sri

p. gupta alongwith other members of the companymittee
present. the facts companytained in the report of the manager
being serious and number in the interests of the
institution this companymittee unanimously resolves that
the period of probation of sri i.p. gupta principal
be terminated without waiting for the period to end and
the manager is empowered to take necessary steps in
this respect. any thing done by him in this respect
shall be companysidered to have been done by this
committee. the manager is also authorised to hand over
charge to sri d.d. gupta when necessary. sri i.p. gupta also came in with a vote of thanks
to the chair the meeting ended. the english translation of the relevant part of the
report of the manager on the basis of which the above
resolution was passed which is incorporated in the companynter
affidavit filed on behalf of the managing companymittee reads
thus
it will be evident from the above that the
principals stay will number be in the interest of the
institution. it is also evident that the seriousness of
the lapses is enumbergh to justify dismissal but no
educational institution should take all
this botheration. as such my suggestion is that our
purpose will be served by termination of his services. why then we should enter into any botheration. for
this i.e. for termination of his period of probation
too the approval of the d.i.o.s. will be necessary. accordingly any delay in this matter may also be
harmful to our interests. accordingly i suggest that instead of taking any
serious action the period of probations of sri lnder
pal gupta be terminated without waiting for the period
to end. aggrieved by the order of termination of his services
referred to above the appellant filed a petition under
article 226 of the companystitution in writ petition number 4823 of
1970 on the file of the high companyrt of allahabad challenging
its companyrectness and praying for appropriate reliefs. the
learned single fudge who heard the writ petition allowed it
by his order dated january 2 1973 by quashing the order of
termination. the managing companymittee of the companylege preferred
an appeal against that decision to the division bench of
high companyrt in special appeal number 31 of 1973. the division
bench allowed the appeal and dismissed the writ petition
filed by the appellant by its order dated march 14 1973.
this appeal is filed by the appellant against the judgment
of the division bench after obtaining the special leave of
this companyrt under article 136 of the companystitution. the companylege is an institution recognised under the act
and is governed by the provisions of the act. section 16-g
of the act provides that every person employed in a
recognised institution shall be governed by such companyditions
of service as may be prescribed by regulations and that the
regulations inter alia may be made in respect of the period
of probation the companyditions of companyfirmation and the
procedure for the imposition of punishment. the board of
high school and intermediate education is authorised to make
regulations in respect of all matters which by the act are
to be provided for by regulations with the previous sanction
of the state government. under the regulations so made under
the act the period of probation prescribed is one year
whether a person is a direct recruit or has been promoted
from a lower grade in service of the institution to a higher
grade. the period of probation of a principal or head master
may be extended by a maximum period of twelve months. at
least six weeks before the date of which the
confirmation of a principal or a head master is due the
manager of the institution is required to prepare his
confirmation papers and place them before the companymittee of
management and the decision of the companymittee of management
in each case is required to be recorded in the form of a
resolution. regulation 10 provides that a person placed on
probation shall be companyfirmed if he fulfils the requirements
of regulation 9 has worked with diligence and other wise
proved himself fit for the post for which he was recruited
and his integrity is certified. whenever the punishment of
dismissal removal or discharge reduction in rank or
diminution in emoluments is imposed prior approval of the
inspector should have to be obtained. regulations 35 to 38
of the regulations made under the act which prescribe the
procedure for termination of the services of an employee by
way of punishment read thus

on receipt of a companyplaint or an adverse
report of facts of a serious nature of the companymittee
may in the cases of teachers appoint the headmaster or
principal or manager as the inquiry-officer  or the
manager may himself set up the enquiry if such power
has been delegated to him by the companymittee under rules
and in the case of the head master or principal a
small sub-committee with instructions to submit the
report as expeditiously as possible. 36.  1  the grounds on which it is proposed to
take action shall be reduced in the form of a definite
charge or charges which shall be companymunicated to the
employee charged and which shall be so clear and
precise as to give sufficient indication to the charged
employee of the facts and circumstances against him. he
shall be required within three weeks of the receipt of
the charge-sheet to put in a written statement of his
defence and to state whether he desired to be heared in
person. if he or the inquiring authority so desires an
oral enquiry shall be held in respect of such of the
allegations as are number admitted. at that enquiry such
oral evidence will be heared as the inquiring authority
considers necessary. this person charged shall be
entitled to cross-examine the witness to give evidence
in person and to have such witnesses called as he may
wish provided that the inquiring authority companyducting
the enquiry may for sufficient reasons to be recorded
in writing refuse to call a witness. the proceedings
shall companytain a sufficient
record of the evidence and statement of the findings
and the grounds thereof. the inquiring authority
conducting the enquiry may also separately from these
proceedings make his own recommendation regarding the
punishment to be imposed on the employee. clause  1  shall number apply where the person
concerned has absconded or where it is for other
reasons impracticable to companymunicate with him. all or any of the provisions of clause  1  may
for sufficient reasons to be recorded in writing be
waived where there is difficulty in observing exactly
the requirements thereof and those requirements can in
the opinion of the inquiring authority be waived
without injustice to the person charged. soon after the report of the proceedings and
recommendation from the inquiring authority arc
received the companymittee of management shall meet to
consider the report of the proceedings and
recommendation made and take decision on the case. the
employee shall however be allowed if he so desires
to appear before the companymittee in person to state his
case and answer any question that may be put to him by
any member present at the meeting. the companymittee shall
then send a companyplete report together with all companynected
papers to the inspector or regional inspectress as the
case may be for approval of action proposed by it. if it is felt at any stage that the matter can
be more properly dealt with by action to terminate
service with numberice this may be done with the approval
of the inspector or regional inspectress as the case
may be. it is seen from the foregoing that the above provisions
relating to the procedure to be followed before imposing the
punishment of dismissal or removal from service are
virtually the same as provided by article 311  2  of the
constitution and the principles which should govern this
case should therefore be the same as those underlying
article 311  2 . the decisions in parshotam lal dhingra v.
union of india shamsher singh anr. v. state of
punjab and anumberp jaiswal v. government of india anr
explain the true legal position governing the termination of
the services of a probationer. in parshotam lal dhingras
case  supra  this companyrt observed at page 862 thus
in short if the termination of service is
founded on the right flowing from companytract or the
service rules then prima facie the termination is number
a punishment and carries with it numberevil companysequences
and so art. 311 is number attracted but even if the
government has by companytract or under the rules the
right to terminate the employment without going through
the procedure prescribed for inflicting the punishment
of dismissal or removal or reduction in rank the
government may nevertheless choose to punish the
servant and if the termination of service is sought to
be founded on misconduct negligence inefficiency or
other disqualification then it is a punishment and the
requirements of art. 311 must be companyplied with. the above rule applies to probationers too. admittedly numberenquiry was held in this case as provided
in regulations 35 and 36 of the regulations made under the
act. apparently in the light of the principles enunciated in
parshotam lal dhingras case  supra  the learned single
judge who decided the writ petition at the first instance in
the high companyrt observed in the companyrse of his order thus
in this petition under article 226 of the
constitution the petitioner questions the validity of
the so-called termination of his service by the
resolution passed by the managing companymittee on
27.4.1969. his case is that the termination in the
circumstances in which it has been made by the managing
committee amounts to punishment of removal or dismissal
from service and the punishment having been imposed
upon him without following the procedure prescribed
under sec. 16-g of the intermediate education act and
the regulations framed thereunder becomes vitiated. indeed it has number been denied or companytroverted in the
counter affidavit that the action against the
petitioner was taken by
the managing companymittee on serious charges of
mismanagement brought against the principal by the
manager. but it has submitted by the learned companynsel
for the opposite parties that a reasonable opportunity
was afforded to the petitioner by the managing
committee when he was faced with the charges and asked
to explain on 27.4.69 at the meeting of the managing
committee. but the learned companynsel for opposite parties
when faced with the relevant regulations and sec. 16-g
of the intermediate education act found it difficult to
justify that what was done at the meeting of the
managing companymittee on 27.4.1969 companyplies with those
provisions. the attack made by the petitioner based on
number-compliance of the relevant regulations and the
provisions of sec. 16-g of the act on the validity of
the action taken appear to be sound and sustainable. numbermatter the petitioner was number a permanent principal
yet he was entitled to a regular show cause numberice
against the charges brought and an opportunity to be
heard as required by the regulations. the impugned
order of termination thus was a mere camouflage and
cannumber be regarded in the. circumstances as having been
passed by the managing companymittee in the numbermal companyrse. the district inspector of schools was in error in
approving the termination in those circumstances. but the division bench of the high companyrt took a
contrary view. the first error in the judgment of the
division bench lies in its observation
firstly the order of termination is innumberuous. it
does number refer to any allegations or even to the report
of the manager. it is seen from the letter dated june 30 1969 by which
the services of the appellant were terminated that the
resolution of the managing companymittee dated april 27 1969 is
made a part of it by treating it as an enclosure to that
letter. the resolution actually begins with a reference to
the report of the manager and slates that the facts
contained in the report were serious and number in the
interests of the institution. it further refers to the fact
that the appellant was asked to give his explanation to the
allegations made in the said report. that report stated
it is also evident that the seriousness of the
lapses is enumbergh to justify dismissal but no
educational institution should take that botheration. the above report was the real foundation on which the
decision of the managing companymittee was based. this is a case
where the order of termination issued is merely a camouflage
for an order imposing the penalty of termination of service
on the ground of misconduct. secondly the division bench
has tried to justify the action of the management by
observing that since the management had to secure the
approval of the district inspector to its action it was
necessary for it to give its assessment of the work of the
appellant as principal and therefore. in the. companytext of
the statutory requirements it cannumber be said that merely
because the managers report or the resolution of the
managing companymittee refers to the various aspects of the
assessment of the performance of the principal in terms
unfavourable to him it would in law amount to casting a
stigma upon the principal. it is difficult to engraft an
exception of the above type to the well-settled rule that if
the order of termination carries a stigma it has to fall to
the ground unless it is proceeded by an enquiry as
contemplated by law. a reading of the letter of termination
of the service and the resolution which forms part of that
letter clearly shows that they bear a mark of disgrace or
infamy and that the appellant is visited with evil
consequences as explained in parshotam lal dhingras case
 supra . the division bench therefore erred in holding
that on the facts and in the circumstances of the case the
order of termination was an innumberuous one and did number carry
any stigma. the order of the division bench is our opinion
an unsustainable one and is liable to the set aside. in the result we allow this appeal set aside the
judgment of the division bench of the high companyrt and restore
the judgment of the learned single judge.


civil appellate jurisdiction civil appeal number 1685 of
1970.
from the judgment and order dated 3rd march 1970 of
the gujarat high companyrt in s.c.a. number 102 of 1965.

t. desai t.u. mehta h.s. parihar mrs. a.k. verma
joel peres d.n. mishra and vipin chandra for the
appellants. a. shah girish chandra c.v. subba rao and r.n. poddar for the respondents. u. mehta and h.j. zaveri for the interveners. the judgment of the companyrt was delivered by

b. misra j. slaughter of companys and calves has been a
sensitive issue and it has generated violent sentimental
differences time and again between different sections of the
people of this companyntry. part iv of the companystitution of india
enshrines what are called the directive principles of state
policy. these directive principles are number enforceable in a
court of law but are nevertheless fundamental in the
governance of the companyntry and are to be applied by states in
making laws. article 48 companytained in part iv provides

the state shall endeavour to organise
agriculture and animal husbandry in modern and
scientific lines and shall in particular take
steps for preserving and improving the breeds and
prohibiting the slaughter of companys and calves and
other milch and draught cattle. it appears that pursuant to article 48 of the
constitution several states enacted laws for the
preservation
and prohibition of the slaughter of companys and calves and
other milch and draught cattle. the state of bihar enacted
the bihar preservation and improvement of animals act
1955 the u.p. state enacted the uttar pradesh prevention of
cow slaughter act 1955 and madhya pradesh enacted the c.p. and berar animal preservation act 1949 hereinafter
referred to as the bihar u.p. and c.p. berar acts
respectively for short. these acts put a total ban on the
slaughter of all categories of animals or species of bovine
cattle. the companystitutional validity of these acts was
challenged in mohd. hanif quareshi ors. v. state of bihar
ors. 1959 s.c.r. 629 by those whose trade or business
was affected as being violative of arts. 14 19 1  g  and
25 of the companystitution. this companyrt held
the result is that we uphold and declare that the
bihar act in so far as it prohibits the slaughter
of companys of all ages and calves of companys and calves
of buffaloes male and female is companystitutionally
valid and we hold that in so far as it totally
prohibits the slaughter of she-buffaloes breeding
bulls and working bullocks  cattle and buffalo
without prescribing any test or requirement as to
their age or usefulness it infringes the rights
of the petitioners under art. 19 1  g  and is to
that extent void. as regards the u.p. act we uphold and declare for
reasons already stated that it is
constitutionally valid in so far as it prohibits
the slaughter of companys of all ages and calves of
cows male and female but we hold that in so far
as it purports to totally prohibit the slaughter
of breeding bulls and working bullocks without
prescribing any test or requirement as to their
age or usefulness it offends against art. 19 1  g  and is to that extent void. as regards the madhya pradesh act we likewise
declare that it is companystitutionally valid in so
far as it prohibits the slaughter of companys of all
ages and calves of companys male and female but that
it is void in so far as it totally prohibits the
slaughter of breeding bulls and working bullocks
without prescribing any test or requirement as to
their age of usefulness. we also hold that the act is valid in so far as it
regulates the slaughter of other animals under
certificates granted by the authorities mentioned
therein. the companyrt observed that these acts were made by the
states in discharge of the obligation laid on them by art. 48 of the companystitution. article 19 1  g  companyfers a fundamental right upon a
citizen to practise any profession or to carry on any
occupation trade or business. article 14 enjoins that the
state shall number deny to any person equality before the law
or the equal protection of the laws within the territory of
india. article 13 2  provides that the state shall number make
any law which takes away or abridges the rights companyferred by
this part and any law made in companytravention of this clause
shall to the extent of the companytravention be void. dealing with fundamental rights as given in part iii
and the directive principles as detailed in part iv of the
constitution the companystitution bench in minerva mills limited
ors. v. union of india ors. 1981 1 s.c.r. 206 257
observed as follows
the significance of the perception that parts iii
and iv together companystitute the companye of companymitment
to social revolution and they together are the
conscience of the companystitution is to be traced to
a deep understanding of the scheme of the indian
constitution. granville austins observation
brings out the true position that parts iii and iv
are like two wheels of a chariot one numberless
important than the other. you snap one and the
other will lose its efficacy. they are like a twin
formula for achieving the social revolution which
is the ideal which the visionary founders of the
constitution set before themselves. in other
words the indian companystitution is founded on the
bed-rock of the
balance between parts iii and iv. to give absolute
primacy to one over the other is to disturb the
harmony of the companystitution. this harmony and
balance between fundamental rights and directive
principles is an essential feature of the basic
structure of the companystitution. this is number mere semantics. the edifice of our
constitution is built upon the companycepts
crystallised in the preamble. we resolved to
constitute ourselves into a socialist state which
carried with it the obligation to secure to our
people justice-social econumberic and political. we
therefore put part iv into our companystitution
containing directive principles of state policy
which specify the socialistic goal to be achieved. we promised to our people a democratic polity
which carries with it the obligation of securing
to the people liberty of thought expression
belief faith and worship equality of status and
of opportunity and the assurance that the dignity
of the individual will at all companyts be preserved. we therefore put part iii in our companystitution
conferring those rights on the people. those
rights are number an end in themselves but are the
means to an end. the end is specified in part iv. therefore the rights companyferred by part iii are
subject to reasonable restrictions and the
constitution provides that enforcement of some of
them may in stated uncommon circumstances be
suspended. but just as the rights companyferred by
part iii would be without a radar and a companypass if
they were number geared to an ideal in the same
manner the attainment of the ideals set out in
part iv would become a pretence for tyranny if the
price to be paid for achieving that ideal is human
freedoms. one of the faiths of our founding
fathers was the purity of means. indeed under our
law even a decoit who has companymitted a murder
cannumber be put to death in the exercise of right of
self-defence after he has made good his escape. so
great is the insistence of civilised laws on the
purity of means. the goals set out in part iv
have therefore to be achieved
without the abrogation of the means provided for
by part iii. it is in this sense that parts iii
and iv together companystitute the companye of our
constitution and companybine to form its companyscience. anything that destroys the balance between the two
parts will ipso facto destroy an essential element
of the basic structure of our companystitution. attempts were however made from time to time to
circumvent the judgment of this companyrt in mohd. hanif
quareshis case  supra . after the judgment in that case the
legislatures of the state of bihar and u.p. passed amendment
acts prescribing minimum age of animals to be slaughtered. the bihar act prohibited slaughter of a bull bullock or
shebuffalo unless the animal was of 25 years of age and was
useless. under the u.p. act slaughter of a bull or buffalo
was permitted only if it was over 20 years of age and was
permanently unfit. the madhya pradesh legislature passed a
new act the m.p. agricultural cattle preservation act 1959
under which slaughter of a bull bullock or buffalo except
on a certificate issued by the companypetent authority was
prohibited. a certificate companyld number be issued unless the
animal was of over 20 years age and was unfit for work or
breeding. these acts were again challenged in abdul hakim
quraeshi ors. v. state of bihar ors. 1961 2 s.c.r. this companyrt took the view that the ban on the slaughter
of bulls bullocks and she-buffaloes below the age of 20 or
25 years was number a reasonable restriction in the interests
of the general public and was void. it was on the basis that
a bull bullock or buffalo did number remain useful after 15
years and whatever little use it may have then was greatly
offset by the econumberic disadvantages of feeding and
maintaining unserviceable cattle. this companyrt further held
that the additional companydition that the animal must apart
from being above 20 or 25 years of age also be unfit was a
further unreasonable restriction. accordingly the relevant
provisions in the bihar u.p. and madhya pradesh acts were
declared invalid. the present case is apparently anumberher attempt though
on a slightly different ground to circumvent the judgment
of this companyrt in mohd. hanif quareshis case  supra . the
writ giving rise to the present appeal sought to challenge
two standing orders made by the municipal companymissioner of
the
municipal companyporation of the city of ahmedabad in exercise
of his powers under s. 466 1  d  b  of the bombay provincial
municipal companyporation act 1949 directing that the municipal
?laughter houses should be kept open for use on all days
except on seven days mentioned in the two standing orders. janmohammed usmanbhai is a beef dealer having his shop
outside sarangpur darwaza in ahmedabad city. his case is
that he gets his animals slaughtered at the slaughter house
owned by the municipal companyporation. the municipal
corporation framed bye-laws relating to markets and
slaughter houses on 18th july 1957 and these bye-laws had
been sanctioned by the government of bombay as it then was. section 466 1  d  b  of the act companyfers on the municipal
commissioner power to make standing orders companysistent with
the provisions of the act and the rules and bye-laws. one of
such powers extends to fixation of days and hours during
which any market slaughter house or stock-yard may be kept
open for use and a standing order was made by the municipal
commissioner in the year 1956 fixing four days as holidays
on which the municipal slaughter house shall remain closed. by an amendment to the standing order effected on 17th
september 1965 three more days were added thus making a
total list of seven days in a year on which the municipal
slaughter house was to be kept closed. janmohammed usmanbhai challenged the validity of the
aforesaid two standing orders framed under s. 466 1  d  b
of the bombay provincial municipal companyporation act 1949
directing the closure of slaughter houses on seven days
named in the standing orders being violative of arts. 14 and
19 1  g  of the companystitution inasmuch as the closure of the
slaughter house adversely effected his trade as animals
could number be admitted in the slaughter house on those seven
days specified in the standing orders and therefore he companyld
number get the meat of those animals for his beef shop. it appears that at the time of the presentation of the
writ petition the amended standing order adding three more
days to the list of holidays in the slaughter house had number
seen the light of the day. the municipal companyporation of
ahmedabad had however passed a resolution on 18th january
1965 whereby three more days were added to the list of
holidays for the slaughter house. the petitioner took up a
plea that the power to keep the municipal slaughter house
closed on any particular day in an area vested in the
municipal companymissioner and such a power companyld only be
exercised by a standing order properly issued and
promulgated by the municipal companymissioner. under the earlier
standing order on 1956 made by the municipal companymissioner
municipal slaughter houses companyld be kept open for use on all
days except on the following four days viz. janmashtami
jain samvatsari 2nd october  mahatama gandhis birthday
and 12th february  sharaddha day of mahatama gandhi . the
resolution passed by the companyporation on 18th january 1965
declaring three additional holidays for the slaughter
houses therefore was null and void. during the pendency of
the writ petition however a new standing order was made by
the municipal companymissioner on 17th september 1965 in
exercise of his powers under s. 466 1  d  b  of the bombay
provincial municipal companyporation act adding three more days
as the closure days of the slaughter houses 30th january
 mahatama gandhis nirwan day  mahavir jayanti and ram
navmi to the previous list. companysequently respondent number 1
the petitioner in the writ petition applied for the
amendment of the writ petition which was allowed by the
court on 12th august 1969. by the amendment he challenged
the validity of the amended standing order adding three more
days as holidays. the result was that the respondent number 1
challenged the companystitutional validity of all the seven days
declared as holidays in the slaughter houses. the main ground of challenge was that the impugned
standing orders put an unreasonable restriction on the
petitioners right to carry on his trade or business as a
beef dealer and that restriction was number in the interests of
the general public but was based on other extraneous
considerations. the other ground of attack was that the
standing orders single out the petitioner and other butchers
like him who slaughter only cattle and number sheep or goat
for hostile discrimination inasmuch as the standing orders
effect only the butchers who slaughter cattle and number those
who deal in meat of goat and sheep. the high companyrt relying on mohd. faruk v. state of
madhya pradesh ors. 1970 1 s.c.r. 156 held that the
impugned standing orders were ultra vires being violative of
art. 19 1  g  of the companystitution. in that case the bye-laws
of the
jabalpur municipality permitted the slaughter of various
animals including bulls and bullocks. a licence had to be
obtained for that purpose. the slaughter of animals in
places outside the premises fixed by the municipality was
prohibited by s. 257 3  of the act and the sale of meat
within the area of the municipality of the animals so
slaughtered in the premises number fixed by the municipality
was also prohibited. under the numberification by which the
bye-laws were issued in 1948 bulls and bullocks companyld be
slaughtered in the premises fixed for the purpose but by the
numberification dated 12th january 1967 the companyfirmation of
bye-laws in so far as they related to bulls and bullocks was
cancelled. the effect of that numberification was to prohibit
the slaughter of bulls and bullocks within the municipality
of jabalpur. this cancellation of the companyfirmation of bye-
laws it was urged imposed a direct restriction upon the
fundamental right of the petitioner under art. 19 1  g  of
the companystitution. this companyrt laid down
the impugned numberification though technically
within the companypetence of the state government
directly infringes the fundamental right of the
petitioner guaranteed by art. 19 1  g  and may be
upheld only if it be established that it seeks to
impose reasonable restrictions in the interests of
the general public and a less drastic restrictions
will number ensure the interest of the general
public. this companyrt further observed
the sentiments of a section of the people may be
hurt by permitting slaughter of bulls and bullocks
in premises maintained by a local authority. but a
prohibition imposed on the exercise of a
fundamental right to carry on an occupation trade
or business will number be regarded as reasonable if
it is imposed number in the interest of the general
public but merely to respect the susceptibilities
and sentiments of a section of the people whose
way of life belief or thought is number the same as
that of the claimant. the high companyrt however overruled the objection based
on art. 14 of the companystitution. the appellants have number companye to challenge the judgment
and order of the high companyrt by certificate and they companytend
that the restriction imposed by the two standing orders was
a reasonable one and in the interests of the general public. before proceeding to deal with the points urged on
behalf of the appellants it will be appropriate to refer to
the well established principles in the companystruction of the
constitutional provisions. when the validity of a law
placing restriction on the exercise of a fundamental right
in art.  19  1  g  is challenged the onus of proving to the
satisfaction of the companyrt that the restriction is reasonable
lies upon the state. if the law requires that an act which
is inherently dangerous numberious or injurious to the public
interest health or safety or is likely to prove a nuisance
to the companymunity shall be done under a permit or a licence
of an executive authority it is number per se unreasonable and
numberperson may claim a licence or a permit to do that act as
of right. where the law providing for grant of a licence or
permit companyfers a discretion upon an administrative authority
regulated by rules or principles express or implied and
exerciseable in companysonance with the rules of natural
justice it will be presumed to impose a reasonable
restriction. where however power is entrusted to an
administrative agency to grant or withhold a permit or
licence in its uncontrolled discretion the law ex facie
infringes the fundamental right under art. 19 1  g . imposition of restriction on the exercise of a fundamental
right may be in the form of companytrol or prohibition. but when
the exercise of a fundamental right is prohibited the
burden of proving that a total ban on the exercise of the
right alone may ensure the maintenance of the interest of
general public lies heavily upon the state. in this
background of legal position the appellants have to
establish that the restriction put on the fundamental right
of the respondents to carry on their trade or business in
beef was a reasonable one. the companyrt must in companysidering the
validity of the impugned law imposing prohibition on the
carrying on of a business or a profession attempt an
evaluation of its direct and immediate impact upon the
fundamental rights of the citizens affected thereby and the
larger public interest sought to be ensured in the light of
the object sought to be achieved the necessity to restrict
the citizens freedom the inherent pernicious nature of the
act prohibited or its capacity or tendency to be harmful to
the general public the possibility of achieving the object
by imposing a less drastic restraint and in the absence of
exceptional situations such as the prevalence of a state of
emergency national or local or the necessity to maintain
necessary supplies or the necessity to stop activities
inherently dangerous the existence of a machinery to
satisfy the administrative authority that a case for
imposing restriction is made out or a less drastic
restriction may ensure the object intended to be achieved. in the light of the aforesaid principles the question
for companysideration is whether the closure of the slaughter
house on seven days specified in the two standing orders
puts a reasonable restriction on the fundamental right of
the petitioner guaranteed under art. 19 1  g  of the
constitution. out of the seven days declared as closed days
for the slaughter house three of the days are companynected with
mahatma gandhi that is 2nd october being his birthday
12th february being his sharaddha day and the 30th january
as his nirwan day and out of the remaining four days
janmashtami relates to the birth day of lord krishna ram
navami relates to the birth day of sri ram mahabir jayanti
and jain samvatsari relate to lord mahabir the exponent of
jainism. numbermally the legislature is the best judge of what
is good for the companymunity by whose suffrage it companyes into
existence. this should be the proper approach of the companyrt. but the ultimate responsibility for determining the validity
of the law must rest with the companyrt and the companyrt must number
shirk that solemn duty cast upon it by the companystitution. clause  6  of art. 19 protects a law which imposes in
the interest of general public reasonable restrictions on
the exercise of the right companyferred by sub-clause  g  of
clause  1  of art. 19. obviously it is left to the companyrt in
case of a dispute to determine the reasonableness of the
restrictions imposed by the law. in determining that
question the companyrt cannumber proceed on a general numberion of
what is reasonable in the abstract or even on a
consideration of what is reasonable from the point of view
of the person or persons on whom the restrictions are
imposed. the right companyferred by sub-clause
 g  is expressed in general language and if there had been
numberqualifying provision like clause  6  the right so
conferred would have been an absolute one. to the persons
who have this right any restriction will be irksome and may
well be regarded by them as unreasonable. but the question
cannumber be decided on that basis. what the companyrt has to do is
to companysider whether the restrictions imposed are reasonable
in the interest of general public. in the state of madras v.

g. row 1952 s.c.r. 597 this companyrt laid down the test of
reasonableness in the following terms
it is important in this companytext to bear in mind
that the test of reasonableness whereever
prescribed should be applied to each individual
statute impugned and numberabstract standard or
general pattern of reasonableness can be laid down
as applicable to all cases. the nature of the
right alleged to have been infringed the
underlying purpose of the restrictions imposed
the extent and urgency of the evil sought to be
remedied thereby the disproportion of the
imposition the prevailing companyditions at the time
should all enter into the judicial verdict. in the instant case it was open to the municipal
commissioner to fix days and hours at and during which any
slaughter house should be kept open for use. if the
municipal companymissioner declares certain days as holidays for
the slaughter house in order to give facilities to the
municipal staff working in the municipal slaughter house no
body companyld have any objection to such a standing order. the
grievance of the petitioner-respondent in the instant case
is on the ground that the municipal companymissioner by standing
orders had declared days companycerning mahatma gandhi lord
mahavir sri ram and lord krishna as holidays. mahatma
gandhi and lord mahavir were apostles of number-violence who
lived and died for that cause. mahatma gandhi venerated by
the people of india as the father of the nation was an
apostle of number-violence. mahavir preached and practised
ahimsa and even today has a large following in the state of
gujarat. rama and krishna are the beloved of the hindu
pantheon and are worshiped by large sections of the people. rama is companysidered by them to be the embodiment of all
virtues and of everything that is good in
humanity. krishna is knumbern to be the expounder of the
philosophy of the geeta. their birthdays are generally
observed by the people number merely as days of festivity but
also as days of abstinence from meat. one cannumber therefore
complain that these days are ill chosen as holidays. the expression in the interest of general public is
of wide import companyprehending public order public health
public security morals econumberic welfare of the companymunity
and the objects mentioned in part iv of the companystitution. numberody can dispute a law providing for basic amenities for
the dignity of human labour like provision for canteen rest
rooms facilities for drinking water latrines and urinals
etc. as a social welfare measure in the interest of general
public. likewise in respect of legislations and
numberifications companycerning the wages working companyditions or
the other amenities for the working class the companyrts have
adopted a liberal attitude and the interest of the workers
has been protected numberwithstanding the hardship that might
be caused to the employers. it was therefore open to the
legislature or the authority companycerned to ensure proper
holidays for the municipal staff working in the municipal
slaughter houses and provide certain closed days in the
year. even according to the observations of the high companyrt
numberody companyld have any objection to the standing orders
issued by the municipal companymissioner under section
466 1  d  b  if municipal slaughter houses were closed on
certain days in order to ensure proper holidays for the
municipal staff working in the municipal slaughter houses. the only objection was that the standing orders direct
closure of the slaughter houses on janamashtami jain
samvatsari 2nd october  mahatama gandhis birthday  12th
february  sharaddha day of mahatama gandhi  30th january
 mahatma gandhis nirvan day  mahavir jayanti and ram
navami. these days were declared as holidays under the
standing orders for the municipal companyporation slaughter
houses. the tests of reasonableness have to be viewed in the
context of the issues which faced the legislature. in the
construction of such laws and in judging their validity
courts must approach the problem from the point of view of
furthering the social interest which it is the purpose of
the legislation to promote. they are number in these matters
functioning in vacuo but as part of society which is trying
by the enacted law to solve its problems and furthering the
moral and material progress of the companymunity as a whole.  see joti prasad v. union territory of delhi 1961 s.c.r. 1601  if the expression in the interest of general public
is of wide import companyprising public order public security
and public morals it cannumber be said that the standing
orders closing the slaughter houses on seven days is number in
the interest of general public. in view of the aforesaid discussion we are number prepared
to hold that the closure of slaughter house on seven days
specified in the two standing orders in any way put an
unreasonable restriction on the fundamental right guaranteed
to the petitioner-respondent under article 19 1  g  of the
constitution. this leads us to the second companytention raised on behalf
of the respondent which is based on art. 14 of the
constitution. the high companyrt had repelled this companytention
for a valid reason with which we fully agree. it is number well-established that while art. 14 forbids
class legislation it does number forbid reasonable
classification for the purposes of legislation and that in
order to pass the test of permissible classification two
conditions must be fulfilled namely  i  the classification
must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together
from others left out of the group and  ii  such differentia
must have rational relation to the object sought to be
achieved by the statute in question. the classification may
be founded on different basis namely geographical or
according to objects or occupations or the like and what is
necessary is that there must be a nexus between the basis of
classification and the object of the act under
consideration. there is always a presumption in favour of
constitutionality of an enactment and the burden is upon
him who attacks it to show that there has been a clear
violation of the companystitutional principles. the companyrts must
presume that the legislature understands and companyrectly
appreciates the needs of its own people that its laws are
directed against problems made manifest by experience and
that its discriminations are based on adequate grounds. it
must be borne in mind that the legislature is free to
recognise
degrees of harm and may companyfine its restrictions to those
cases where the need is deemed to be the clearest and
finally that in order to sustain the presumption of
constitutionality the companyrt may take into companysideration
matters of companymon knumberledge matters of companymon rapport the
history of the times and may assume every state of facts
which can be companyceived to be existing at the time of
legislation. the objects sought to be achieved by the impugned
standing orders are the preservation protection and
improvement of live-stock. companys bulls bullocks and calves
of companys are numberdoubt the most important cattle for the
agricultural econumbery of this companyntry. female buffaloes yield
a large quantity of milk and are therefore well looked
after and do number need as much protection as companys yielding a
small quantity of milk require. as draught cattle male
buffaloes are number half as useful as bullocks. sheep and goat
give very little milk companypared to the companys and the female
buffaloes and have practically numberutility as draught
animals. these different categories of animals being
susceptible of classification into separate groups on the
basis of their usefulness to society the butchers who kill
each category of animals may also be placed in distinct
classes according to the effect produced on society by the
carrying on of their respective occupations. the butchers
who slaughter cattle formed the well defined class based on
their occupation. that classification is based on
intelligible differentia and distinguishes them from those
who kill goats and sheep and this differentiation has a
close companynection with the object sought to be achieved by
the impugned act namely the preservation protection and
the improvement of our livestock. the attainment of these
objectives may well necessitate that the slaughterers of
cattle should be dealt with differently than the
slaughterers of say goats and sheep. the standing orders
therefore in our view adopt a classification based on
sound and intelligible basis and can quite clearly stand the
test laid down above.