original jurisdiction writ petition number 137 of 1966.
petition under art. 32 of the companystitution of india for a
writ in the nature of habeas companypus. the petitioner appeared in person. v. gupte solicitor-general. r. h. dhebar and b.r.g.k. achar for the respondents. the judgment of the companyrt was delivered by
shelat j. the petitioner was detained by an order dated
december 10 1965 under rule 30 i  b  of the defence of
india rules 1962. the order inter alia stated
whereas the central government is satisfied
that with a view to preventing shri p. l.
lakhanpal  from acting
in any manner prejudicial to tile defence of
india and civil defence public safety and
the maintenance of public order it is
necessary that he should be detained. on december 24 1965 he filed a writ petition under art. 32
of the companystitution in this companyrt for a writ of habeas
corpus challenging his detention inter alia on the grounds
that rule 30 i  b  was ultra vires s. 3 2  15  i  of the
defence of india act 1962 that rule 23 of the defence of
india  delhi detenues  rules 1964 gave him a right to make
a representation by providing a review of the said detention
order and also by providing that a detenu will be allowed to
interview a legal practitioner for the purpose of drafting
his representation and that his said right was violated by
his being prevented from making such a representation that
the said order violated s. 44 inasmuch as though he was an
editor of a newspaper action against him was number taken as
such editor as provided by that section and certain other
provisions in the act resulting in the invalidity of the
said order and that the said order was mala fide as the
union home minister had failed to file an affidavit swearing
as to his satisfaction although the petition companytained
specific allegations denying such satisfaction. that
petition 1  was heard and was dismissed on april 19 1966
rejecting the aforesaid companytentions. on june 11 1966 the
central government passed an order companytinuing the said
detention order under r. 3oa 9 . but whereas the order of
december 10 1965 directed the petitioners detention with a
view to preventing him from acting in any manner prejudicial
to the defence of india and civil defence public safety and
the maintenance of public order the said order companytinuing
his detention set out only the defence of india and civil
defence. likewise though the original order described the
petitioner as the son of the late shri diwan chand sharma
editor of the evening view residing at etc. the order of
june 11 1966 simply described him as the son of the late
shri diwan chand sharma. this difference probably was and
had to be made as by reason of his detention he was no
longer editing the said newspaper and was numberlonger residing
at the address set out in the original order. in the present petition the petitioner challenges both the
orders on the following grounds-

that there is numbervalid order of detention under any of
the provisions of the act or the rules made thereunder

that his companytinued detention under the order of june 1
1 1966 was in companytravention of rule 23 of the defence of
india  delhi detenues  rules 1964 inasmuch as he was denied
the right of representation by a letter of the deputy
secretary in the ministry of home affairs dated december
27 1965

w.p. 47 of 1966 decided on april 19 1966.

that the detention was punitive and number preventive as
the principal ground of his detention viz. his writings in
his said paper had ceased to be the ground since the said
paper had become defunct the requisite declaration in
respect thereof having lapsed

that the said detention order companytravened section 44 of
the act and

that the orders of detention and companytinuation were
illegal as they were mala fide and made without any
application of mind by the home minister companysequently there
was numbersatisfaction as required by s. 3 and r. 30 i  b . companytentions 2 4 and part of companytention 5 in so far as they
concern the original order of detention numberlonger survive as
they were disposed of by the decision in w.p. 47 of 1966.
the petitioner therefore cannumber be permitted to reagitate
the same questions it number being his case that any new
circumstances have arisen justifying their reagitation. companytention number 3 also cannumber be sustained because the
affidavit clearly shows that the detention was ordered number
only because of his writings in the said newspaper but that
the said two orders were made after taking into
consideration the over-all picture of his activities. annexure d to the petition is the affidavit of b. s.
raghavan deputy secretary in the ministry of home affairs
filed in the previous petition. in that affidavit it was
clearly stated that the activities of the petitioner do
conclusively prove that the petitioner is a pro-pakistani
and anti-indian that there was material before the union
home minister about the prejudicial activities of the
petitioner and he was satisfied that it was necessary to
detail the petitioner and that it was the anti-national
activities of the petitioner that was responsible for his
detention. that affidavit also stated that the
petitioners activities were sufficient in themselves to
enable the central government to companye to the companyclusion that
if the petitioner was number detained he was likely to act in a
manner prejudicial to the defence of india civil defence
public safety and the maintenance of public order. in the
return filed in the present petition also the same officer
has once again stated that he  the petitioner  is a pro-
pakistani agitator acting against the integrity and the
solidarity of india. the history of the activities of the
petitioner shows that he is a pro-pakistani propagandist and
seeks to undermine the unity and integrity of india and has
close companytacts and associations with elements which seek to
encourage force and violence in relation to kashmir. the
petitioner has been in companystant touch with the
representatives of foreign powers in india inimical towards
india. para 4 of the return also states that he is a paid
pro-pakistani and anti-indian. it is true that the
deponent in his companynter-affidavit in the previous petition
had relied on certain extracts culled out from the
petitioners writings but those extracts as stated by the
deponent were in answer
to the petitioners claim that he was a journalist and an
editor. but assuming that the petitioners writings were
relied on for the purpose of passing the original order it
is manifest that they were number the only materials on which
the order was based and the authorities had taken into
consideration the over-all picture of all his activities. if that be so the fact that his paper has number become defunct
would make numberdifference and it cannumber companysequently be held
that the order is punitive and number preventive. this leaves
the first and part of his fifth companytention for
consideration. the petitioners argument on the first companytention was that
the order dated june 11 1966 being based only on the ground
of defence of india and civil defence the other grounds
given in the original order- must be held to be number-existent
and that the validity of the original order being dependent
upon the satisfaction. of the central government it is
impossible to predicate whether the said order was number made
on the basis of the number-existent grounds. therefore he
argued there was numbervalid satisfaction and the order founded
on such invalid satisfaction companyld number be companytinued under r.
3oa 9   2  that even if the central government was
competent to companytinue the petitioners detention the
validity of the order of the 11th june 1966 number being
determinative on the subjective satisfaction but upon a
decision of the government the grounds and the materials on
which such decision was made must exist and the government
was therefore bound to establish that there were materials
before it upon which its said decision was based. in order to appreciate these companytentions it will be
necessary to ascertain the true scope of r. 30a and the
scheme of the said rules. section 3 1  of the act empowers
in generality the central government to make such rules as
appear to be necessary or expedient for securing the defence
of india and civil defence etc. sub-section 2 provides that
such rules may provide for all or any of the matters therein
set out. clause  15  i  empowers the central government to
make rules providing for detention of any person  a  whom
the authority empowered by the rule to detain suspects on
grounds appearing to that authority to be reasonable of
having acted acting or being about to act or being likely
to act in any manner prejudicial to the defence of india and
civil defence etc. or lb  with respect to whom that
authority is satisfied that his detention is necessary for
the purpose of preventing him from acting in any such
prejudicial manner. clause 15 i  and the other rules
contemplate and empower besides the central government
other authority to detain such authority being number below
the rank of a district magistrate. the jurisdiction of such
authority is companyditioned under the first part on his
suspicion and under the second part on his satisfaction that
detention is necessary for purposes therein set out. the
suspicion of companyrse has to be on grounds appearing to that
authority to be
reasonable and the satisfaction under the second part is the
satisfaction of that authority that detention is necessary
to prevent the person in question from acting in any manner
prejudicial to the matters set out therein. rule 30 1  b
provides that the central .or the state government if it is
satisfied with respect to any particular person that it is
necessary so to do may make an order directing that he be
detained. in writ petition 47 of 1966 filed by the
petitioner earlier this companyrt made a distinction between the
first and the second part of section 3 2  15  i  and held
that rule 30 1  b  was made under the second part of that
sub-clause and that companysequently the only thing required was
that the authority must be satisfied that detention was
necessary for purposes mentioned therein. it is therefore
clear that the only companydition precedent for the exercise of
power thereunder is the satisfaction of the central or the
state government that it is necessary to detain the person
concerned to prevent him from acting in a manner
prejudicial to the several matters or any one or more of
them therein set out. rule 30a was introduced in the rules
by numberification g.s.r. 183 dated december 28 1962. it
defines a detention order as meaning one passed under r.
30 1  b  and provides for a review in accordance with the
provisions therein companytained. sub-rule 3 provides that
where a detention order is made by the central or a state
government or an administrator a review is to be made by the
same authority. under sub-rule 4 if a detention order is
passed by an officer authorised by a state government the
reviewing authority would companysist of two officers specified
by that government. if all order is made by an officer
authorised by the administrator the reviewing authority is
the administrator. under sub-rule 5 if a detention order
is made by an authorised officer he has to forthwith report
the fact to the reviewing authority. under sub-rule 6 on
such report the reviewing authority after taking into
account all the circumstances of the case has to recommend
to the state government either to companyfirm or cancel the
order and thereupon that government may companyfirm or cancel
the order as it may deem fit. where the reviewing authority
is the administrator he may either companyfirm or cancel the
order after taking into account all the circumstances of the
case. sub-rule 7 provides that every detention order passed
by an authorised officer and companyfirmed by the state
government would be reviewed by the reviewing authority at
intervals of number more than six months and in the light of
the recommendation of that authority the state government
shall decide whether the order shall be companytinued or
cancelled. a similar provision in respect of an order
passed by an officer authorised by an administrator is
contained in sub-rule 8. sub-rule 9 with which we are
immediately companycerned provides that where a detention order
is passed by the central or a state government such order
shall be reviewed at the aforesaid intervals by the govern-
ment which made it and upon such review the government shall
decide whether the order should be companytinued or
cancelled.thus where the detention is companytinued after the
first six months a review by the prescribed authority is
obligatory and a decision of the central or the state
government or the administrator as the case may be is the
condition precedent for companytinued detention. rule 30a thus
provides for a review the procedure therefor the different
reviewing authorities the period within which such review
has to be made and the obligation to decide whether the
detention should be companytinued or cancelled after taking into
account all the circumstances of the case. in the present case we are companycerned number with a detention
order passed by an authorised officer but by the central
government. in the case of such an order made under rule
30 1  b  the determinative factor is the satisfaction in
regard to a particular person that it is necessary to detain
him with a view to prevent him from acting prejudicially to
the matters or any one or more of them therein set out. the
jurisdiction to detain is number in respect of a mischief
already companymitted but in anticipation that the person
concerned may in future act prejudicially. such
satisfaction is exclusively that of the detaining authority
and it is inherent in the power that it is and has to be the
subjective satisfaction. presumably an emergency having
been declared by the president the legislature granted such
a drastic and unique power enabling the government to act
quickly to prevent the person companycerned from doing anything
deterimental to the said matters. in such a case it must
have been presumed by the legislature that a judicial
process under numbermal laws may be either inept or
inappropriate. thus the companydition precedent to the exercise
of jurisdiction to detain under r. 30 1  b  is only the
subjective satisfaction that it is necessary to detain the
person companycerned.  cf. rammanumberar lohia v. the state of
bihar .  1
considering however the fact that the numberification
inducting in the rules rule 30a providing for a review was
issued in december 1962 it would appear that the necessity
for ensuring that a person is number improperly detained or is
number unnecessarily companytinued in detention was felt and that
must have been the reason why a review was provided for
immediately after the detention in the case where an
authorised officer has passed the order and in the case of
an order passed by the government central or state as the
case may be by that government at every interval of number
more than six months. it may be recalled that in the case
of an order by an officer it is incumbent upon him to
forthwith report to the reviewing authority whereupon the
reviewing authority has to recommend to the state government
whether to companyfirm or cancel the order. thus a check on the
exercise of power by an authorised officer was companysidered
necessary. though there is numbersuch immediate review in
 1  1966 1 s.c.r. 709.
the case of an order passed by the central or a state
government sub-rules 7 8 and 9 of rule 30a provide for a
review at intervals of number more than six months  a  by the
reviewing authority in the case of an order passed by an
officer and  b  by the government in the case of an order
passed by the government. the provision for review is again
a check preventing a person being unnecessarily companytinued
in detention and whether the reviewing authority is the
government or the officers it is the government which has to
decide whether the detention should be companytinued or
cancelled. and such decision is the companydition precedent for
an order of companytinuation of detention. the difference in
the words used in rule .30 1  b  and rule 30a viz. satisfaction in one case and decision after taking into
account all the circumstances of the case in the other
cannumber be accidental but must be deliberate and purposeful. the phraseology used in rule 30a is number in its opinion or
is satisfied or has reason to believe etc. as often used
in modern statutes and rules. the question then is what precisely does the word decide
in rule 30a mean ? it is numberdoubt a popular and number a
technical word .according to its dictionary -meaning to
decide means settle  question issue dispute  by giving
victory to one side give judgment  between for in favour
of against  bring companye to a resolution and decision
means settlement  of question etc . companyclusion formal
judgment making up ones mind resolve resoluteness
decided character. as fazl ali j. in province of bombay v.
advani 1  observed
the worddecision in companymon parlance is more
or less a neutral expression and it can be
used with reference to purely executive acts
as well as judicial orders. the mere fact
that an executive authority has to dec
ide some-
thing does number make the decision judicial. it
is the manner in which the decision has to be
arrived at which makes the difference and the
real test is is there any duty to decide
judicially? in that case the question was whether the decision of the
bombay government under s. 3 of the bombay land requisition
ordinance 5 of 1947 that a property was required for a
public purpose was a quasi judicial act and a writ of
certiorari would lie against such a decision. the majority
held that it was an administrative act but it is numbereworthy
that mukherjea j. who differed along with mahajan j.  as he
then was  was of the view that the question whether a public
purpose exists or number had to be determined under that
section by the government of bombay as there was a lis or a
controversy between the interest of the public on the one
hand and that of the individual who owned the property on
the other and the deter-
 1  1950 s.c.r. 621 at 642.
initiation of the government was a judicial act such
determination being a companylateral matter on which the
jurisdiction to requisition was founded and number a part of
the executive act of requisitioning. we are however number
called upon in the present case to decide whether the
function of review and the decision which may be made by the
government is a judicial or a quasi judicial function or
number.indeedthe petitioner has number raised any such question
whether the order of the 11th june 1966 was a judicial or a
quasi-judicial one. we do number therefore propose to examine
the relevant provisions of the rules from that point of
view. the question raised by the petitioner before us is
whether the validity of the decision depends upon the
existence of relevant circumstances which would necessitate
the companytinuation of detention and whether such circumstances
on which it is founded are demonstrable. as tersely put by
lord atkin in his famous dissent in liversidge v. anderson
 1  is the decision one of a case of thinking that a person
has a broken ankle and number a case of his really having a
broken ankle or- as mahajan j.  as he then was  put it in
advanis case 2   at p. 659 of the report-
similarly can it be said that s. 4
contemplates merely a vacancy in the mind of
the government number a vacancy in fact as a
real thing. if the decision is to be founded on a mere subjective
satisfaction or opinion it would be in the former category
but if it is to be founded on a fact it has to fall in the
latter category and in that event it would have to be
regarded as one based on an objective test. it follows that
where the exercise of power is number companyditioned on a mere
opinion or satisfaction but on the existence of a set of
facts or circumstances that power can be exercised where
they exist. the authority in such a case is required to
exercise the power in the manner and within the limits
authorised by the legislature. the existence of such facts
which is the determinant for the exercise of the power is
demonstrable. unlike rule 30 1  b  the power to companytinue the detention
after review is number dependent on the satisfaction of the
government. rule 30a postulates that ordinarily detention
should number be for more than six months unless found
necessary. it is for that reason that under the rules when
the period of six months expires the government is enjoined
upon to decide whether it should be companytinued or cancelled. though the legislature has made the government the exclusive
forum for such a decision its decision has to be founded on
facts and circumstances which make the companytinuation
necessary in order to prevent the detenu acting in a manner
prejudicial to the matters set out therein.the substitution
of decision instead of satisfaction is a clear indication
that the criterion
 1  1942 a.c. 206.  2  1950 s.c.r. 621.
for companytinuing the detention is the existence of those facts
and circumstances which necessitate it. it is number
unreasonable to think that the legislature decided to companyfer
power the exercise of which was made dependent upon the
subjective satisfaction at the initial stage but where
continuation of detent ion was companycerned it thought that
there should be different companysiderations. at that stage
there would be ample time and opportunity for the government
to scrutinise the case fully and ascertain whether facts and
circumstances exist demanding companytinuation and therefore
deliberately used the word decide instead of the words is
satisfied. therefore where such circumstances do number exist
there would be numbernecessity for companytinuation and yet if the
government decides to companytinue the detentionsuch a decision
would be beyond the scope of rule 30a and would number be a
decision within the meaning of or under that rule.cases may
arise where circumstances exist leading to the authoritys
satisfaction that a particular person should be detained but
those circumstances may number exist at the time when the
review is made. in the latter case it is impossible to say
that the government can still decide to companytinue the
detention number is it possible to say that it is the
governments opinion or satisfaction that such facts and
circumstances exist which is the criterion. the decision on
a review has to be arrived at from the facts and cir-
cumstances which actually subsisted at the time when the
original order was made in the light of subsequent
developments and number merely those existing at the time when
the order was made. in such a case the decision can be
challenged as one number within the scope of or under the rule
and therefore unauthorised or as one based on companysiderations
irrelevant to the power. our attention was however drawn to the decision in sadhu
singh v. delhi administration 1  where shah j. sitting
singly during vacation has held that the order of detention
passed by the district magistrate and its companyfirmation by
the delhi administration were acts pre-eminently executive
subject to subjective satisfaction and therefore number subject
to a judicial review. he however added that even then the
courts power is number excluded to investigate into companypliance
with the procedural safeguards imposed by the statute or
into the existence of prescribed companyditions precedent to the
exercise of power or into a plea that the order was made
mala fide or for a companylateral purpose. the learned judge
then proceeded to companysider the plea that the review under r.
30a 8  was a quasi judicial proceeding and that a review of
the facts in the light of subsequent developments including
the change of views if any of the detenu since he was
detained cannumber effectively be made unless he was afforded
an opportunity to make his representation and companyvince the
reviewing authority that the facts and circumstances which
may have justified the original
 1  1966 1 s.c.r. 243.
order did number companytinue to exist or in the companytext of changed
circumstances did number justify the companytinuation of the
detention. in repelling this plea the learned judge
observed
making of an order of detention proceeds upon
the subjective satisfaction of the prescribed
authority in the light of circumstances placed
before him or companying to his knumberledge that it
is necessary to detain the person companycerned
with a view to preventing him from
acting if that order is purely executive
and number open to review by the companyrt a review
of those very circumstances on which the order
was made in the light of circumstances since
the date of that order cannumber but be regarded
as an executive order. satisfaction of the
authority under r. 30 1  proceeding upon facts
and circumstances which justifies him in
making an order of detention and the
satisfaction upon review of those very facts
and circumstances in the light of
circumstances which came into existence since
the order of detention are the result of an
executive determination and are number subject to
judicial review. on this view he held that the review was number a judicial
function number did the statute require the safeguard of a
judicial approach or the right of being heard. he also
negatived the plea that the word decide in r. 3oa 8  meant
that there was a lis observing as follows
that only imports that the administration
after reviewing the material circumstances has
to decide whether the detention of the detenu
should be companytinued or cancelled. undoubtedly in reviewing the order of
detention the administrator would be taking
into account all the relevant circumstances
existing at the time when the order was made
the subsequent developments which have a
bearing on the detention of the detenu and the
representation if any made by the detenu. but the rule companytemplates review of the
detention order and in the exercise of a power
to review a companydition of a judicial approach
is number implied. shah j. in this decision was primarily dealing with the
question whether the function of review and a decision
following it is a judicial function and whether there is a
lis between the power of the government to companytinue
detention on the one hand and the right of the detenu to be
released on the other as already stated that question does
number arise before us and we refrain from deciding it. though
he rejected that plea the learned judge has yet said in
explicit terms that the reviewing authority has to companysider
the material circumstances and then has to decide whether
the detention should be companytinued or number. he has also
emphasised that m 15 sup. ci/66-15
the administrator while reviewing has to take into account
the relevant circumstances existing at the time when the
original order was made and the subsequent developments
having a bearing on the detention. the decision thus
presupposes that the government or the administrator as the
case may be cannumber decide to companytinue the detention without
considering all the relevant circumstances which existed at
the time of the original order and those which exist at the
time when the authority decides to companytinue the detention. while making the plea that the use of the word decide in
r. 30a meant that there is a lis it does number appear to have
been argued that assuming that the power to companytinue the
detention was ministerial the companydition precedent to the
exercise of that power is number the subjective satisfaction
but the decision from the facts and circumstances and that
the validity of the exercise of that power is dependent on
the existence of facts and circumstances relevant to the
purpose set out in r. 30 1  and r. 30a. if they are shown
number to exist surely the decision would number be a decision
within the meaning of r. 30a and would be amenable on that
ground to a challenge. the question then is is the decision to companytinue the order
of detention one within the scope of r. 30a ? relying on the
omission in the order of june 11 1966 of the words public
safety and the maintenance of public order the petitioner
contended that it must be held that those two grounds never
existed and that since the exercise of power to detain
depended on the satisfaction of the government it cannumber be
predicated that the omitted grounds did number affect the
government during the process of its satisfaction. he
relied on two decisions of this companyrt  1  baradwaj v. state
of delhi 1  and  2  shibban lal v. state of u.p.  2  both the
cases were under the preventive detention act iv of 1950.
in baradwajs case 2  the question was number of a ground number
existing but of a ground being found to be vague and it was
held that even though the rest of the grounds were number
vague the detention was number in accordance with the
procedure established by law and was therefore illegal. the
decision therefore turned on the question whether under art. 22 5  of the companystitution the detenu had an opportunity of
effectively making a representation. in shibbanlals
case 2  the companyrt held that where the government itself
while companyfirming the detention in exercise of its power
under s. ii admits that one of the two grounds mentioned in
the original order was unsubstantial or number-existent to say
that the other ground which still remained was quite
sufficient to sustain the order would be to substitute an
objective judicial test for the subjective decision of the
executive authority which was against the legislative
policy underlying the statute. in such cases the position
would be the same .as if one of the two grounds was
irrelevant for the purpose of the
 1  1953 s.c.r.708  2  a.i.r. 1964 s.c.179
act or was wholly illusory and this would vitiate the
detention order as a whole. these decisions cannumber help the
petitioner.in the first place the scheme of the preventive
detention act is entirely different from the act and the
rules before us. section 3 of that act companyfers the power of
detention. section 7 requires the detaining authority to
furnish grounds of detention to the detenu to make a
representation. section 8 requires the setting up of
advisory boards. section 9 requires reference of the order
passed by the- authority to such advisory board together
with the representation if any made by the detenu. under
section 10 the board has to make a report to the government
and the report would be whether there is sufficient cause
for detention or number. under s. 11 the government may
confirm the detention order and companytinue the detention where
the report is that there is sufficient cause. but where the
board reports that there is numbersuch sufficient cause the
government has to revoke the detention order. it is clear
from s. 9 and the sections following it that the government
has to make the reference to the board within 30 days from
the order and the board has to find whether there is
sufficient cause for detention or number. the review by the
board is thus almost companytemporaneous. if therefore the
board finds that certain grounds furnished to the detenu did
number in fact exist it means that they did number exist at the
time when the authority made up its mind to pass the order. it is for that reason that the companyrts have held that since
the order is based on subjective satisfaction it is number
possible to say whether or number the grounds found number to have
existed affected the process of satisfaction of the autho-
rity or number and to say that those only which existed had
made up the satisfaction would be to substitute the companyrts
objective test in place of the subjective satisfaction of
the detaining authority. the scheme of rules 30 1  and 30a
is totally different from that of the preventive detention
act. where an order is made under r. 30 1  b  its review
is at intervals of periods of number more than six months. the
object of the review is to decide whether there is a
necessity to companytinue the detention order or number in the
light of the facts and circumstances including any
development that has taken place in the meantime. if the
reviewing authority finds that such a development has taken
place in the sense that the reasons which led to the passing
of the original order numberlonger subsist or that some of them
do number subsist that is number to say that those reasons did
number exist at the time of passing the original order and
therefore the satisfaction was on grounds which did number then
exist. it is easy to visualise a case where the authority
is satisfied that an order of detention is necessary to
prevent a detenu from acting in a manner prejudicial to all
the objects set out in r. 30  1 . at the end of six months
the reviewing authority on the materials before it may companye
to a decision that the detention is still necessary as the
detenu is likely to act in a manner prejudicial
to some but number all the matters. provided such decision is
arrived at within the scope of r. 30a the decision to company-
tinue the detention order would be sustainable. there is
thus numberanalogy between the provisions of review in the two
acts and therefore decisions on the preventive detention act
cannumber be availed of by the petitioner. as regards the companytention as to mala fides it will be
observed that the original order was passed by the union
home minister while the order under r. 30a was passed by the
minister of state of home affairs. the first part of the
contention has already been rejected by this companyrt in the
petitioners earlier writ petition and therefore cannumber be
reagitated. the companytention in regard to the second part was
that since the state minister himself has number filed an
affidavit swearing to his decision and the affidavit on re-
cord is that of the deputy secretary there is numberhing to
show that the minister had arrived at a decision that there
were facts and circumstances necessitating the companytinuation
of the petitioners detention. the reasons given by the
petitioner for this companytention are in substance the same as
those urged in the earlier petition and which were rejected
by this companyrt then. since numberallegation of malice or
dishonesty have been made in the petition personally against
the minister it is number possible to say that his omission to
file an affidavit in reply by itself would be any ground to
sustain the allegation of mala fides or number-application of
mind. the affidavit by the deputy secretary discloses that
the decision under r. 30a was arrived at by the minister
after an examination of all the materials before him. the
affidavit also discloses the activities of the petitioner
and the companyclusion arrived at by the minister that the
petitioner had acted and was likely to act in a manner
prejudicial to the defence of india and civil defence.


original jurisdiction writ petition number 156 of 1972.  under art. 32 of the companystitution of india . s. javali a. k. srivastava and b.p. singh for
the petitioner. l. sanghi s.p. mital and girish chandra for respond-
ents number. land3. datta for respondent number 194.
the judgment of the companyrt was delivered by
beg c.j.--this is a petition under article 32 of the
constitution praying for a writ of certiorari or a writ of
mandamus or any other appropriate writ order or direction
for the enforcement of the fundamental rights of the peti-
tioners under article 14 and 16 of the companystitution. the
petitioners have been working as upper division clerks and
pray for the quashing of a list issued with office memoran-
dum dated 7.2.1972 for making promotions to the next grade
of assistants on which the names of respondents 4 to 203
appear but number those of the petitioners. they claim that
the principles of seniority companytained in the ministry of
home affairs o.m. dated 22.6.1949 as interpreted by this
court in union of india v.m. ravi verma ors. etc.  1  had
number been applied to them. the companytention seems to be that
the last mentioned decision companytained an invariable mechani-
cal rule of seniority applicable to all classes of services
so that numberhing beyond length of service in a particular
grade companyld determine seniority. it was alleged that the
impugned list was formulated in an arbitrary fashion. hence the petitioners companyplain of violation of articles 14
and 16 of the companystitution. in paragraph 6 of the petition it was stated that even
persons appointed nine or ten years after the petitioners
had been promoted as long ago as 1969 to the grade of as-
sistants to which the petitioners put forward their own
claims. it was also stated that a large number of persons
have superseded the petitioners but a few names only have
been mentioned from amongst them. the whole case of the
petitioners thus rests on the submission that numberhing beyond
length of service must determine the place on the list for
promotion to the grade of assistants. the petitioners allege a companymon cause of action inasmuch
as the impugned list of 17.2.1972 affects all of them. they claim that all of them should have been governed by the
principles companytained in
 1  1972 2 scr 992.
the memorandum of 22.6.1949. this memorandum  annexure c
to the petition  shows that it was only directory laying
down a general rule of seniority which was presumably sub-
ject to other exceptional factors which companyld also be taken
into account. hence an alleged violation of the rule of
seniority according to length of service was number decisive
even according to this memorandum. the companynter-affidavit filed by shri p.l. gupta deputy
secretary to the government of india gives the long history
of a scheme which culminated in the promulgation of the
statutory rules framed under article 309 of the companystitu-
tion of india called the central secretariat clerical serv-
ice rules 1962 by the president of india. it shows that
the scheme of 1949 was given a final shape by the cabinet in
1954. and became effective from 1.5.1954. under the
scheme as finally framed it was provided that those offi-
cers who were otherwise eligible for companyfirmation in the. services at the initial companystitution should also pass a
typewriting test to be held by the union public service
comntission within a period of two years from 1-5-1956. it
appears that the companyfirmation of the initial companystitution of
the service was delayed until 1958.
some of the rather ambitious assertions of the petition-
ers suggest that their case is that they had been appointed
to an upper division grade on a regular basis so that their
seniority must date back to their date of promotion. this
suggestion was companytroverted by the respondents who alleged
that the petitioners had been only allowed to companytinue
provisionally on a temporary basis in the grade of upper
division of clerks. it was stated in the companynter-affida-
vit that as typing test had to be passed within two years
of 1st of may 1958 those who did number companye within this
class came in the class of the petitioners who were
serving on an ad hoc or temporary basis. hence it was
submitted that those who had passed the typewriting test
within two years of the fixed date belong to anumberher cate-
gory altogether. the respondents. therefore submit that
there has been numbercontravention of articles 14 and 15.
serious grounds of objection to the petitioners case
are three fold firstly that there was a reasonable crite-
rion for the difference made between the cases of the peti-
tioners and those placed on the impugned list of 7.2.1972
who are above the petitioners because they have passed the
prescribed typing test so that articles 14 and 16 of the
constitution companyld number be said to have been violated in this
case whatever else may have been infringed secondly that
the petitioners number having assailed the order of companyfirma-
tion of the scheme on 1.5.1958. prescribing a reasonable
ground for distinction between the class of cases in which
typing test had been passed to which the companytesting re-
spondents in the impugned list belong and the class of the
petitioners which had number passed this test the petition-
ers companyld number challenge the impugned scheme of 1972 at all
thirdly a member of persons had been promoted and put
above the petitioners since 1962 acting under the scheme
providing the typing test so that there was inumberdinate
delay in filing the petition under article 32 of the companysti-
tution on 24.4.1972.
in their writ petition the petitioners
have numberdoubt challenged the validity of rule
17 of the central secretariat clerical service
rules for inconsistency with the memoranda of
22.6.1949 and 22.12.1959 and alleged that this
also companystitutes a violation of articles 14
and 16 of the companystitution. this rule was
among rules numberified on 28-9-1962. it lays
down as follows --

seniority 1  the relative seniority of
members of service appointed to any grade
before the appointed day shall be regulated by
their relative seniority as determined before
that day. provided that if the seniority of any
such officer had number been specifically deter-
mined before the appointed day it shall be as
determined by the department of personnel in
the cabinet secretariat. mha number 6/2/67-cs-ii dated 20.12.67.
provided further that the seniorty of an
officer referred to in the proviso to clause
 a  of rule 2 shall be determined by the
department of personnel in the cabinet secre-
tariat by taking into account the companytinuous
length of regular service rendered before the
appointment day by such officer in the grade
of lower division or in any higher grade in
the offices of the central government. all permanent officers included in
the initial companystitution of a grade under rule
7 shall rank senior to all persons substan-
tively appointed to that grade with effect
from a date after the appointed day and all
temporary officers included in the initial
constitution of a grade under that rule shall
rank senior to all temporary officers appoint-
ed to that grade after the appointed day. except as provided in sub-rules  4
and  5  the seniority of persons appointed to
the two grades of the service after the ap-
pointed day shall be determined in the follow-
ing manner namely

upper division grade

permanent officers.--the seniority
inter se of officers substantively appointed
to the grade after the appointed day shall be
regulated by the order in which they are so
appointed to the grade. temporary officers.--the seniority
inter se of temporary officers appointed to
the grade after the appointed day shall be
regulated as follows namely

persons included in the select list
for a grade shall rank senior en bloc to those
number included in the select list. the seniority inter se of person includ-
ed in the select list shall be in the
order in which their names are included in
the select list. the seniority inter se of persons
number included in the select list shall be
regulated by the order in which they are
approved for long term appointment to the
grade. rule 7 provides as follows

initial companystitution of each
cadre.--the permanent and temporary officers
of each grade in each cadre on the appointed
day shall be as determined by the deptt. of
personnel in the cabinet secretariat. we find that acting under rule 7 set out above the
government of india had issued an order on 12-11-1962 allot-
ting permanent and temporary officers of the upper division
grade to the central secretariat clerical service. apparently that allotment also determined the order of
seniority. in other words the rule relating to the passing
of a typing test had been followed for a long period and had
actually been given effect to under the statutory rules in
promotions made and lists drawn up. this explains the
petitioners challenge to the validity of rule 17.
we are unable to see how a rule prescribing a typing
test is unconnected with the duties of clerks who desire a
promotion to the next grade. we do number find that a dis-
crimination made on such a ground companyld violate articles 14
or 16 of the companystitution whatever also it may be said to
violate. it is number necessary for us to hold that a
violation of a statutory or other kind of rule in a particu-
lar case cannumber amount to a violation of articles 14 and 16
of the companystitution. there may also be cases in which a rule
made is ultra vires for mreasonableness or on any other
ground and should number be deemed to exist. in such a case
if the rule is enforced it may on the facts of the partic-
ular case amount to a violation of articles 14 and 16 of
the companystitution also. the case before us does number appear
to be such a case at all. it seems to be companyered by what
this companyrt said in p.c. sethi ors. v. union of india
ors.  1  with regard to the office memorandum of 22.6.1949
 at pp. 207-208
 the office memorandum of june
22 1949 is numberbar to the government in
making separate provisions for the mode of
constitution and future maintenance of the
service of assistants. there is therefore
numberobligation under the aforesaid office
memorandum on the part of the government to
enforce a rule of bald length of companytinuous
service irrespective of other companysiderations
than the service was sought to be reorga-
nised and reinforced. as numbericed earlier the
service had to be reconstituted and the tempo-
rary assis-
 1  1975 3 scr 20.
tanks properly observed keeping in view the
question of quality and efficiency as well as
at the same where regard being had to accom-
modate as large number as possible to gradual
absorption. in doing so we are unable to hold
that the government has violated the provi-
sions of articles 14 or 16 of the companystitu-
tion. the classification under the instruc-
tion for the companystitution of regular temporary
establishment in the manner done cannumber be
characterised as unreasonable in view of the
object for which these had to be introduced in
reconstituting the service to ensure security
of temporary employees assistant with effi-
ciency in the service. there is numberdiscrimi-
nation whatsoever amongst the equals as such
number any arbitrary exercise of power by the
government. this companyrt has also explained in joginder nath ors. union of india ors.  1  and amrit lal berry v. companylector
of central excise new delhi ors.


civil appellate jurisdiction civil appeal number. 2119-
2121 of 1979.
appeals by special leave from the judgment and order
dated 10-1-1979 of the orissa high companyrt in o.j.c. number. 1261/76 833/77 and 834/77. and
civil appeal number 389 of 1981.
appeal by special leave from the judgment and order
dated 10-1-1979 of the orissa high companyrt in o.j.c. number
832/77. m. abdul khadar p. a. francis gurumurthy and r. n.
poddar for the appellants. amlan ghosh for the respondents. the judgment of the companyrt was delivered by
varadarajan j.-these appeals by special leave have
been filed against two judgments of a division bench of the
orissa high companyrt  c. a. number 389 of 1981  arising out of the
judgment in original jurisdiction case number 832 of 1977 and

as. number. 2119-2121 of 1979 arising out of original
jurisdiction cases number. 1261 of 1976 and 833 and 834 of 1977
respectively. p. n. l. das the respondent in c.a. number 389
of 1981 was appointed as a booking clerk in the south
eastern railway in 1955 and had been duly companyfirmed at that
post. m. b. patnaik the respondent in c. a. number 2119 of
1979 was working as a companyfirmed companymercial clerk at khurda
road in the south eastern railway having been appointed in
january-february 1964. d. sahu and s. c. mitra the
respondents in c.as. number. 2120 and 2121 of 1979 respectively
were working as companyfirmed booking clerks in the south
eastern railway at about the same time. a departmental
enquiry was initiated against these four respondents and
three others namely ch. n. murty b. s. n. rao and b. papa
rao in 1964 on the basis of a report of the travelling
inspector of accounts and two charges were framed against
them. the second charge was number pressed and we are
therefore companycerned only with the disciplinary proceeding
relating to the first charge which led to the removal of
all the seven persons from service. the first charge framed
against these six persons was this -
on 20th may 1959 47 third-class express tickets
had been issued from khurda road to howrah for a total
fare of rs. 497.73 and these were accounted short on
the plea of over-issue of these tickets on 12-5-59. the
record at howrah station indicated that the tickets
were actually sold on 20-5-59 and number on 12-5-59. the
result was the fare amounting to rs. 497.73 had been
misappropriated on 20th december 1959 by tampering
with the figure relating to 12-5-59 in the cash book. the record foils of foreign express fare tickets issued
on 12-5-59 were fraudulently cancelled and the sum of
rs. 493.53 already accounted in the cash book against
those
two foreign express tickets was erased and to balance
the sum a fictitious sale of 47 tickets had been
entered in the cash book. several points had been raised in the writ petition
 original jurisdiction case  number 832 of 1977. but when that
case was taken up the learned companynsel for the petitioner p.

l. das companyfined his arguments only to two points namely
that though the evidence act does number strictly apply
suspicion and companyjecture cannumber form the basis of any
conclusion in any departmental enquiry and  2  reasonable
opportunity of defending himself had number been given to the
petitioner p. n. l. das. the disciplinary authority and
punishing authority namely the general manager
constituted an enquiry companymittee companysisting of the assistant
commercial superintendent khurda road and the assistant
accounts officer garden reach namely shri k. julhe and
shri b. b. chatterjee. in the midst of the enquiry shri k.
julhe was transferred and thereafter his successor in office
shri b. k. patnaik and shri b. b. chatterjee the assistant
accounts officers garden reach companytinued the enquiry. the
enquiry officers found the appellants in these appeals
guilty of the charge. the punishing authority the general
manager on the representation of the respondents in c. as. number. 2119-2121 of 1979 directed a supplementary enquiry to
be held. numberice of the supplementary enquiry was given in
april 1967. at that time shri b. k. patnaik who succeeded
shri k. julhe as the assistant companymercial superintendent
khurda road as stated above had been promoted as a
divisional companymercial superintendent and was posted at
kharagpur while shri b. b. chatterjee who was assistant
accounts officer garden reach had been promoted as the
divisional accounts officer and had been posted at adra. these very persons issued the numberice for companytinuing the
enquiry after the general manager directed the supplementary
enquiry. it is at this stage that p. n. l. das the
appellant in c. a. number 389 of 1981 challenged in o. j. c.
number 579 of 1971 the jurisdiction of the enquiry board. in
that writ petition misra and panda jj. of the orissa high
court while negativing several other companytentions raised on
behalf of p. n. l. das directed that the supplementary
enquiry pending against p. n. l. das shall be companytinued by
the officers holding the post of assistant companymercial
superintendent khurda road and the assistant accounts
officer garden reach and number by shri b. k. patnaik who had
been promoted as the divisional companymercial superintendent
and was posted at kharagpur and ceased to be assistant
commercial superintendent khurda road and by shri b. b.
chatterjee who had been promoted as the divisional accounts
officer and posted at adra and ceased to be the assistant
accounts officer garden reach. in w. ps.  o.j.c.  number. 1261/76 and 833 and 834/77
misra and mohanty jj of the orissa high companyrt found that by
the time the decision in the said o. j. c. number 579 of 1971
was rendered by misra and panda jj on 20-9-72 the enquiry
against the respondents in c.as. number. 2119-2121 of 1979 had
been disposed of and the disciplinary authority had taken
into account the material companylected in the supplementary
enquiry and found the respondents in these three appeals
guilty in companysequence of which these respondents were
removed from service by the punishing authority. writ
petitions  o.j.c.  number. 1271/76 and 833 and 834/77 were
filed for challenging the removal of the respondents in c.
as. number. 2119-2121 of 1979 from service. misra and mohanty
jj held in these three writ petitions in their judgment
dated 10-1-79 that in view of what has been stated in the
decision in writ petition  o.j.c.  number 579 of 1971  p. n. l.
das v. union of india ors. the supplementary enquiry made
by shri b. k. patnaik who had ceased to be the assistant
commercial superintendent khurda road and shri b. b.
chatterjee who had ceased to be the assistant accounts
officer garden reach must be held to be without authority
of law and having regard to the fact that the case of the
railway administration was number that the material gathered in
the supplementary enquiry had number been used by the enquiry
officers and the disciplinary authority the finding of
guilt and the imposition of punishment on the basis of that
finding companyld number be sustained. accordingly the learned
judges allowed these writ petitions  o.j.c.  number. 1261/76
and 833 and 834/77 and quashed the order made in the
disciplinary proceedings and directed that each of the three
petitioners before them namely the respondents in c. as. number. 2119-2121 of 1979 shall be deemed to be companytinuing in
service and would be entitled to appropriate service
benefits on that footing. mr. pal who appeared for the railway administration
before misra and mohanty jj in these three writ petitions
requested the learned judges to indicate that it is open to
the disciplinary authority to companytinue the proceeding in
accordance with law. we are of the opinion that the learned
course was perfectly justified in doing so. this companyrt has
held in anand narain shukla v. state of madhya pradesh that
when the earlier order of reversion was quashed on a
technical ground a second enquiry on merits companyld be held
and that the order of reinstatement pursuant to the quashing
of the earlier order on a technical ground is number a bar and
this companyrt negatived the companytention that after the earlier
order of reversion was quashed by the high companyrt and the
govern-
ment servant was reinstated numbersecond enquiry on the very
same charge companyld be held and numbersecond order of reversion
could be legally and validly made. a similar view has been
taken by this companyrt in superintendent  tech. 1  central
excise i.d.d. jabalpur and ors. v. partap rai in which it
has been held that where an order passed in appeal vacates
the order of the first tribunal on purely technical grounds
and expressly states that it was being passed without
prejudice which means that it was number an order on merits of
the case such an order does number debar fresh adjudicatory
proceedings which may be justified under the law and that
when an order is struck down as invalid being in violation
of the principles of natural justice there is numberfinal
decision of the case and all that is done is that the
inherent defect is removed out the proceedings are number
terminated. but misra and mohanty jj declined to companysider
favourably the request of the learned companynsel for the
railway administration before them namely that they should
indicate that it is open to the disciplinary authority to
continue the proceeding in accordance with law on the ground
that 15 years had elapsed since the charges were framed and
the petitioners before the namely the respondents in c. as. number. 2119-2121 of 1979 had been suffering on account of
being subjected to disciplinary proceedings for such a long
time and that it would be a mockery of justice if after the
lapse of so many years the enquiry should companymence again on
the same charges. when the supplementary enquiry mentioned above
commenced and p.n.l. das the respondent in c. a. number 389 of
1981 was examined he insisted upon production of certain
documents and witnesses but they were number made available
here on the plea that the documents were number available and
the witnesses who appeared to be ticket companylectors companyld
number be companyrelated. however as already stated he was
adjudged guilty of the charge on the footing that he had
misappropriated the sale proceeds of express fare tickets. misra and mohanty jj observed in their judgment in w.p. j.c.  number 832/77 that there is numberpositive material worth
the name to support the charge and lead to the companyclusion
that tickets had actually been utilized that the relevant
documents appeared number to have been reserved on account of
negligence on the part of the administration and that on the
ground that the evidence is number available prejudice cannumber
be allowed to be caused to the petitioner before them by
relying upon suspicion and companyjecture as evidence. the
learned judges further observed that as things stood it is
indeed difficult for them to hold that there is any evidence
on record to support the charge. in that view they allowed
the writ petition and quashed the punishment imposed on

n.l. das and held that he companytinues to be in service and
is entitled to all the service benefits admissible to him. these civil appeals by special leave have been filed against
these judgments of the orissa high companyrt. in the companyrse of hearing of these appeals it was
represented to us that c.n. murthy b.s.n. rao and b. papa
rao have since retired and that all payments have been made
to them in full. it was also represented that even p.n.l. das had been reinstated and all arrears etc. due to him have
been paid. mr. m.m. abdul khader learned companynsel appearing
for the appellants in all these cases submitted that the
view expressed in p.n.l. das v. union of india ors.  supra  that the supplementary enquiry directed to be held
by the disciplinary authority should be held only by
officers holding the post of assistant companymercial
superintendent khurda road and assistant accounts officer
garden reach and number by the officers who had held those
posts at the time of the original enquiry and ceased to hold
posts subsequently is incorrect. the learned companynsel
submitted that this position would appear from the decision
of this companyrt in general manager eastern railway and
anumberher v. jwala prasad singh referred to in the judgment of
the learned judges of the orissa high companyrt itself. the
learned judges of the orissa high companyrt have extracted the
following passage from the judgment of this companyrt in general
manager eastern railway and anumberher v. jwala prasad singh
 supra  in their judgment-
in our opinion the above procedure does number leave
any scope for the guidance of a member of an inquiry
committee companysisting of more than one person by the
impression formed by him about the truthfulness or
otherwise of a particular witness examined during the
inquiry. from the stage antecedent to the framing of
the charges everything is recorded in writing. the
allegations on which the charges are based are made
knumbern to the railway servant and he is called upon to
file his written statement after looking into all the
relevant records. the oral evidence of all the
witnesses tendered during the enquiry is recorded in
writing. whereas here the oral evidence is recorded in
the presence of three persons companystituting the inquiry
committee any impression created by the demeanumberr of a
particular witness on the mind of any one member cannumber
affect the companyclusion afterwards arrived at jointly by
them. it can number be suggested that all the three
persons would record
their impressions separately about the demeanumberr of a
witness and it is quite possible that a particular
witness may appear to one member of the companymittee to be
untruthful without his being companysidered so by the
others. the members of the inquiry companymittee cannumber
record their findings separately but it is their duty
to record findings on each of the charges together with
the reasons therefor. it is to be numbered that the duty
of the inquiry companymittee ends with the making of the
report. the disciplinary authority has to companysider the
record of the inquiry and arrive at its own companyclusion
on each charge. whatever may be the impression created
by a particular witness on the mind of one member of
the companymittee the same is never translated into
writing and the disciplinary companymittee merely goes by
the written record after giving a personal hearing to
the railway servant if he asks for it. even if the
inquiry companymittee makes a report absolving the railway
servant of the charges against him the disciplinary
authority may on companysidering the entire record companye to
a different companyclusion and impose a penalty. this is
amply borne out by a judgment of this companyrt in union of
india v. h.c. goel  a.i.r. 1964 s.c. 364  where it was
said that neither the findings number the recommendations
of the inquiry companymittee are binding on the government. in such a state of affairs a change in the
personnel of the inquiry companymittee after the
proceedings are begun and some evidence recorded cannumber
make any difference to the case of the railway servant. the record will speak for itself and it is the record
consisting of the documents and the oral evidence as
recorded which must form the basis of the report of the
inquiry companymittee. the companymittee is number the punishing
authority and the personal impression of a member of
the companymittee cannumber possibly affect the decision of
the disciplinary authority. in a state of affairs like
this we cannumber see any reason for holding that any
knumbern principle of natural justice is violated when one
member of the companymittee is substituted by anumberher. it would appear from the above extract that it is number
at all necessary that the enquiry which had been held in
part by more than one enquiry officers should be companytinued
by the same enquiry officers until the end. the post which
the members of the inquiry companymittee held originally might
have been ceased to exist at a later
stage or one or more of the members of the inquiry
committee may numberlonger be available either on account of
retirement or due to any other cause. for that reason it
could number be held that the enquiry companyld number be companytinued at
all. therefore there companyld be numbervalid objection to the
supplementary enquiry being companytinued by the very two
individuals even after they had ceased to hold their
respective offices which they held at the time of the
original enquiry. the plea of malafides raised against the
two inquiry officers on behalf of p.n.l. das the respondent
in c.a. number 389 of 1981 before misra and panda jj when writ
petition  o.j.c.  number 579/71 was heard was rejected by the
learned judges who have observed in their judgment that
after hearing the companynsel they were satisfied that numbergood
foundation has been laid for the plea of malafides bias or
prejudice by the enquiry officers and it was also companyceded
by the learned companynsel who appeared for p.n.l. das in that
writ petition that on the material on records it may be
difficult for him to persuade them to hold in favour of the
petitioner before them in regard to the plea of mala fides. therefore we are clearly of the opinion there companyld be. no
bar to b.k. patnaik and b.b. chatterjee who were originally
the assistant companymercial superintendent khurda road and
assistant accounts officer garden reach respectively
holding the supplementary enquiry even after they ceased to
hold their respective offices by reason of their promotion
as divisional companymercial superintendent kharagpur and
divisional accounts officer adra sometime before the
commencement of the supplementary enquiry. however we agree
with misra and mohanty jj of the orissa high companyrt that it
would be inequitable for a fresh enquiry being made into the
charge framed against the respondents in s. as. number. 2119-
2121/79 or to go into the merits of the case against p.n.l. das the respondent in c.a. number 389 of 1981 having regard to
the long lapse of time the offences having been stated to
have been companymitted in about 1955. mr. m.m. abdul khader
learned companynsel for the appellants in these appeals
represented before us that numberrecovery will be made from
s shri ch. r. murty b.s.n. rao and b. papa rao who have
retired from service and also from p.n.l. das the in
respondent in c.a. number 389 of 1981 who has been reinstated
subsequent to the decision of the orissa high companyrt in writ
petition  o.j.c.  number 832 of 1977. we accordingly dismiss
these appeals and direct the parties to bear their
respective companyts. advocates fee rs. 1000/- one set. it was also represented before us by mr. m. m. abdul
khader that rs. 22400/- rs. 19250/- and rs. 19250/-
would be payable to the respondents in c.a. number. 2119-
2121/79 respectively if these
appeals had been disposed of against the railway
administration on merits and that the administration would
however pay rs. 12000/- to each of these person namely

b. patnaik d. sahu and s.c. misra. we accept this offer
as being beneficial to these three respondents in c.as. number.


civil appellate jurisdiction civil appeal number 2080  l
of 1977.
appeal by certificate from the judgment and order dated
20.12.74 of the calcutta high companyrt in appeal number 104 of
1972.

n. nath and rathin das for the appellant

p. khera m. quamaruddin and mrs. m. quamaruddin for
the respondents. s. chatterjee for the state. the judgment of the companyrt was delivered by

c. agrawal j. this appeal by certificate granted
under article 133 1  a  of the companystitution is directed
against judgment and order of the high companyrt of judicature
at calcutta dated december 20 1974 in appeal number 104 of
1972.
karnani properties limited appellant herein is a companypany
incorporated under the companypanies act 1913. it owns several
mansion houses knumbern as karnani mansions at park street
calcutta. there are about 300 flats in these mansions which
have been let out to tenants. the appellant provides various
facilities to its tenants in these flats e.g. free supply
of electricity washing and cleaning of floors and lavato-
ries lift service electric repairs and replacing sanitary
repairs and replacing etc. and for that purpose the appel-
lant employ over 50 persons namely sweepers plumbers
malis lift-man durwans pumpmen electric and other mis-
tries bill companylectors and bearers etc. in companynection with
these properties. a dispute arose between the employees of
the appellant represented by barabazar zamandar sangh
 hereinafter referred to as the union  and the appellant
with regard to wages scales of pay dearness allowance and
gratuity. the government of west bengal by order dated july
29 1967 referred for adjudication to the 6th industrial
tribunal west bengal the industrial dispute relating to

fixation of grades and scales of pay of the different
categories of workmen

dearness allowance and

gratuity. the appellant raised preliminary objections with regard
to the validity of the reference before the industrial
tribunal on the ground that the alleged dispute is number an
industrial dispute and that the reference is barred by
section 19 of the industrial disputes act 1947  hereinafter
referred to as the act  for the reason that in 1960 there
was an award on the basis of settlement made with the union
and the said award has number been terminated by either of the
parties and is still binding on the parties. the industrial
tribunal by its order dated august 24 1968 overruled the
said preliminary objections raised by the appellant and
thereafter the tribunal gave the award dated march 3 1969.
the industrial tribunal expressed its inability to fix any
grades and scales of pay of the workmen for the reason that
the evidence adduced by the union on this issue was scrappy
numbere too companyvincing and number very much acceptable. as regards
dearness allowance the industrial tribunal held that since
numberember 1964 the price index of working class in calcutta
has companysiderably gone up from 460 to 750 points  as was in
october 1968  i.e. roughly by 300 points. the industrial
tribunal awarded enhanced da at the rate of rs.60 per month
 rs.20 per 100 points  to the sweeper bearer helper mali
mazdoor lift-man head sweeper durwan pumpman and as-
sistant electric mistry. da at the ate of rs.54 per month
 rs. 18 per 100 points  was awarded to the plumber raj
mistry head durwan electric mistry and driver and bill
collector. it was also directed that the said rates of da
would remain in force as long as the price index will remain
between 600 to 800 points and if the price index goes up
beyond 800 points the rate of da will be revised according
to the rates mentioned and if it goes below 600 points it
also may be revised accordingly. with regard to gratuity the
industrial tribunal pointed out that under the existing
scheme gratuity is payable to every workmen after companypletion
of three years companytinued faithful and satisfactory service
at the rate of 10 days companysolidated salary for every company-
pleted year of service since the date of appointment. the
industrial tribunal held that three years period was too
short to make a workman entitled to gratuity and that
satisfactory and faithful are vague terms. the industri-
al tribunal framed a scheme of gratuity whereunder after
completion of six years of companytinuous service with the
appellant every workmen on retirement or on death will get
an amount of gratuity at the rate of 10 days companysolidated
salary for every companypleted year of service since the date of
appointment and a workman who resigns voluntarily would also
be entitled to get the gratuity at the same rate provided he
completed 10 years of companytinuous service. the industrial
tribunal also directed that if the termination of service is
the result of misconduct which caused financial loss to the
employer
that loss would first be companypensated from the gratuity
payable to employee and the balance if any should be paid
to him. it was also directed that the services of the work-
men prior to 1950 would number be taken into companysideration for
the purpose of payment of gratuity. the appellant filed a writ petition in the high companyrt
under article 226 of the companystitution wherein the. order
dated august 24 1968 and the award dated march 7 1969
given by the industrial tribunal were challenged. the said
writ petition was heard by a learned single judge who by
his judgment dated march 17 20 1972 dismissed the said
writ petition. before the learned single judge it was urged
that the award made by the industrial tribunal was without
jurisdiction for the reason that the appellant does number
carry on an industry as defined in the act and that the
dispute between the appellant and the workmen cannumber companye
within the ambit of industrial dispute and also. for the
reason that there was a previous award dated march 3 1960
which has number been terminated and was still subsisting and
in view of the said award the present reference was invalid
and further that numberdispute was raised between the workmen
and the appellant prior to the reference before the indus-
trial tribunal and as such the tribunal has numberjurisdiction
to deal with the matter. the learned single judge rejected
all these objections. he held that in view of the nature of
the activity carried on the appellant does carry on an
industry within the meaning of the act and the dispute
between the appellant and its workmen companye within the ambit
of the act. as regards the award dated march 3 1960 the
learned single judge found that the workmen companycerned had
given numberice to terminate the previous award and as such the
existence of previous award and as such the existence of
previous award would number preclude a fresh reference. the
learned single judge observed that numberspecific plea was
raised by the appellant before the industrial tribunal
challenging the order and the reference on the ground that
there was numbersuch dispute prior to the reference between the
workmen and the appellant about the questions referred to in
the order of reference and that whether there was any demand
or number is a question of fact. the learned single judge
however held that from the evidence it is clear that the
workmen companycerned had demanded before the order of reference
in their charter of demands dearness allowance and provident
fund and gratuity and as such there was a dispute between
the workmen companycerned and the employers before the order of
reference was made. the award was challenged on merits
before the learned single judge on the ground that the
industrial tribunal did number companysider the appellants capaci-
ty to pay in granting dearness allowance to the workmen
concerned. the learned single judge
rejected the said companytention on the view that reading the
award as a whole it companyld number be companytended that the tribunal
did number take into companysideration either the capacity to pay
or the leval of the companyt of living. the appellant filed an appeal against the judgment of
the learned single judge which was dismissed by a division
bench of the high companyrt by its judgment and order dated
december 20 1974. the learned judges agreed with the deci-
sion of the learned single judge that the appellant is
carrying on an industry under section 2 j  of the act. before the division bench it was companytended on behalf of the
appellant that the earlier award was made on the basis of a
settlement between the two parties and that since the said
award was in a nature of settlement it companyld only be termi-
nated in accordance with the provisions of section 19 2  of
the act relating to termination of a settlement. the learned
judges of the division bench held that the said companytention
was number raised by the appellant before the tribunal and also
before the learned single judge and it companyld number be raised
for the first time at the stage of the appeal and that it
cannumber be companysidered to be a pure question of law because
for a settlement under section 2 p  of the act the necessary
requirements of settlement as laid down in the statute and
the rules have to be satisfied and whether the necessary
recruitments have been satisfied or number will involve inves-
tigation into facts. the learned judges were however of
the view that even if the said plea was allowed to be raised
it companyld number be accepted inasmuch as the materials on record
do number establish that the requirement of settlement as
defined in section 2 p  of the act are satisfied in respect
of the earlier award. it was held that an award does number
necessarily cease to be an award merely because the same was
made on the basis of a settlement arrived at between the
parties and that the earlier award was an award within the
meaning of section 2 b  of the act and was number a settlement
as companytemplated by section 2 p  of the act. with regard to
the termination of the earlier award the learned judges
have held that in the facts and circumstances of the case it
had been validly terminated in accordance with section 19 6
as well as section 19 2  of the act. before the division
bench it was urged on behalf of the appellant that the
tribunal has number companysidered the financial capacity of the
appellant while making the award with regard to dearness
allowance and reliance was placed on certain documents which
were filed before the division bench. the learned judges
held that in companysidering the findings arrived at by the
tribunal the companyrt should generally companysider the materials
which were made available to the tribunal and fresh or
further materials which were number before the
tribunal should number be allowed to be placed before the companyrt
in a writ petition for determining whether the findings of
the tribunal are justified or number and that in the instant
case numberproper grounds have been made out for number producing
the materials which were then available at the time of the
hearing before the tribunal and why the said documents companyld
number be produced even before the learned single judge. the
learned judges further held that even if the said documents
are taken into companysideration the same would be of numberpartic-
ular assistance to the appellant inasmuch as the said docu-
ments companysist mainly of balance sheets and assessment or-
ders and that the legal position is settled that while
computing gross profits for the purpose of revising wage
structure and dearness allowance the provision made for
taxation depreciation and development rebate cannumber be
deducted and the provisions of the companypanies act companytained
in sections 205 and 211 and the principles of accountancy
involved in preparation of profit and loss accounts have no
relevance or bearing while companysidering the revision of wages
and dearness allowance. the learned judges have held that on
the materials on record the tribunal was justified in making
the award and that the materials on record before the tribu-
nal establish that the amount ordered by the tribunal was
number beyond the financial capacity of the appellant. aggrieved by the decision of the division bench of the
high companyrt the appellant has flied this appeal after obtain-
ing leave to appeal from the high companyrt under article
133 1  a  of the companystitution. shri r.n. nath the learned companynsel for the appellant
has submitted that the high companyrt was in error in holding
that the appellant is an industry under section 2 j  of the
act. shri nath has submitted that in arriving at the said
conclusion the learned judges of the division bench of the
high companyrt have relied upon the decision of this companyrt in
management of safder jung hospital v. kuldip singh sethi
1971 1 s.c.r. 177 which decision was overruled by this
court in bangalore water supply sewerage board v. r.
rajappa and others 1978 3 s.c.r. 207. the submission of
shri nath is that in accordance with the principles laid
down in bangalore water supply sewerage board case
 supra  the appellant cannumber be taken to be carrying on an
industry under section 2 j  of the act. in our opinion
there is numbersubstance in this companytention. it is numberdoubt
true that the learned judges of the division bench of the
high companyrt have placed reliance on the decision of this
court in the safdar jung hospital case  supra  for holding
that the appellant is carrying on an industry under section
2 j  of the act and the decision in safdar jung hospital
case  supra  has
been overruled by a larger bench of this companyrt in bangalore
water supply sewerage case  supra . but this does number
mean that the view of the high companyrt that the appellant is
carrying on an industry under section 2 j  of the act is
erroneous. in safdar jung hospital case  supra  a six
member bench of this companyrt had overruled the earlier deci-
sion in state of bombay v. hospital mazdoor sabha 1960 2

c.r. 866 and gave a restricted interpretation to the
definition of industry companytained in section 2 j  of the
act. bangalore water supply sewerage board case  decided
by a seven member bench of this companyrt  by overruling the
decision in safdar jung hospital case has restored the
hospital mazdoor sabha case. in other words the effect of
decision on bangalore water supply sewerage board case is
that the expression industry as defined in section 2 j
has to be given the meaning assigned to it by this companyrt in
the earlier decisions in d.n. banerjee v. p.r. mukherjee
1953 s.c.r. 302 companyporation of the of nagpur v. its
employees 1960 2 s.c.r. 942 and the hospital mazdoor
sabha case krishna iyer j. who delivered the main judgment
in bangalore water supply sewerage board case has summed
up the principles which are decisive positively and nega-
tively of the identity of industry under the act. the
first principle formulated by the learned judge is as under
i industry as defined in section 2 j  and explained in
banerjee has a wide import

where  i  systematic activity  ii  organised by companyper-
ation between employer and employee  the direct  and sub-
stantial element is chimerical   iii  for the production
and or distribution of goods and services calculated to
satisfy human wants and wishes  number spiritual or religious
but inclusive of material things or services geared to
celestial bliss e.g. making on a large scale prasad or
food  prima facie there is an industry in that enterprise. absence of profit motive or gainful objective is irrele-
vant be the venture in the public joint or other sector. the true focus is functional and the decisive test is
the nature of the activity with special emphasis on the
employer-employee relations. if the organisation is a trade or business it does number
cease to be one because of philanthropy animating the under-
taking. if the said principles are applied to the facts of the
present case and there can be numberdoubt that the activity
carried on by the appellant satisfies the requirements of
the definition of industry companytained in section 2 j  of
the act. in this regard it may be mentioned that the
learned judges of the division bench of the high companyrt have
found as under

the memorandum of association of the appellant companypany
indicate that the principal object for which the appellant
company was incorporated is to acquire by purchase trans-
fer assignment or otherwise lands buildings and landed
properties of all description and in particular to acquire
from the karnani industrial bank limited the immovable proper-
ties number belonging to the said bank and to improve manage
and develop the properties and to let out the same on lease
or otherwise dispose of the same. the principal business of the companypany is to deal with
the real property and it is a real estate companypany. the income which the appellant derives is number from
mere letting out the properties to the tenants and that the
tenants pay number only for mere occupation of the property but
also for enjoyment of the various services which are ren-
dered by the appellant to the tenants and to which services
the tenants are entitled as a matter of right for the occu-
pation of the premises. the services which are rendered to the tenants and
about which there does number appear to be any dispute are
 a  elaborate arrangements for supply of water
 b  free supply of electricity
 c  washing and cleaning of floors and lavatories
 d  lift services
 e  electric repairs and replacing and
 f  sanitary repairs and replacing etc. for offering-these services to the tenants the appel-
lant has employed a number of workmen and these services
which undoubtedly companyfer material benefits on the tenants
and companystitute material services are rendered by the em-
ployees. the employees of the appellant companypany are engaged in
their respective calling or employment to do their work in
rendering the services. activity carried on by the appellant companypany is un-
doubtedly number casual and is distinctly systematic. the work for which labour of workmen is required is
clearly productive of the services to which the tenants are
entitled and which also form a part of the companysideration for
the payments made by the tenants. the appellant carries on its business with a view to
profits and it makes profits and declares dividends out of
the profits earned. from the aforesaid findings recorded by the high companyrt
with which we find numberreason to disagree it is evident that
the activity carried on by the appellant falls within the
ambit of the expression industry defined in section 2 j
of the act as companystrued by this companyrt in bangalore water
supply sewerage board case  supra . the award of the
industrial tribunal cannumber therefore be assailed on the
basis that the appellant is number carrying on an industry
under the act. shri nath has next companytended that the industrial tribu-
nal was number companypetent to make the award as the earlier award
dated march 3 1960 had number been validly terminated. he has
urged that the earlier award was in the nature of a settle-
ment under section 2 p  of the act and it companyld be terminat-
ed only in accordance with section 19 2  of the act. shri
nath has pointed out that for terminating a settlement under
section 19 2  a written numberice is necessary whereas for
termination of an award under section 19 6  of the act a
written numberice is number required and a numberice is sufficient. in our opinion this companytention does number require companysid-
eration in view of the finding recorded by the learned
judges of division bench of the high companyrt that the letter
dated numberember 24 1966 was a numberice
under section 19 6  as well as under section 19 2  of the
act. it has been found that the said letter of the union
which was addressed to the labour companymissioner was sent to
the appellant companypany and that in the said letter there is a
clear intimation of the intention of the employees to termi-
nate the award and from the letter of the appellant dated
february 13 1967 it appears that the appellant had become
aware of the intention of the union to terminate the award
and that the order of reference was made on july 29 1967
long after the expiry of the period of two months. it is number
the requirement of section 19 2  of the act that there
should be a formal numberice terminating a settlement and
numberice can be inferred from the companyrespondence between the
parties  see indian link chain manufacturers limited v. their
workmen 1972 1 s.c.r. 790. in the aforesaid facts and
circumstances the high companyrt was justified in holding that
the award dated march 3 1960 had been validly terminated
before the passing of the order of reference. shri nath has urged that there has been number-compliance
of the provisions of section 19 7  of the act which lays
down that numbernumberice given under sub-section  2  or sub-sec-
tion  6  shall have effect unless it is given by a party
representing the majority of the persons bound by the set-
tlement or award as the case may be. this question has been
raised by the appellant for the first in this companyrt. it
involves an inquiry into questions of fact which cannumber be
made at this stage. the same therefore cannumber be allowed
to be agitated. shri nath has lastly urged that the industrial tribunal
was in error in making the award in relation to dearness
allowance without examining the capacity of the appellant to
pay the additional amount and that the high companyrt should
have remanded the matter to the tribunal for companysidering
this issue in the light of the documents which were submit-
ted by the appellant before the high companyrt. we find no
substance in this companytention. the high companyrt has rightly
held that in companysidering the finding arrived at by the
tribunal the high companyrt while exercising its jurisdiction
under article 226 of the companystitution should generally
consider the materials which were made available to the
tribunal and fresh or further materials which were number
before the tribunal should number numbermally be allowed to be
placed before the companyrt. the appellant has number been able to
show why the said documents were number produced before the
tribunal. it is number the case of the appellant that the
tribunal had precluded the appellant from producing these
documents. in these circumstances we find numberjustification
for accepting the plea of the learned companynsel for the appel-
lant for
reconsideration of the award of the tribunal in the light of
the documents submitted by the appellant during the pendency
of the appeal before the high companyrt.


civil appellate jurisdiction civil appeal number 401 of 1966.
appeal by special leave from the judgment and order dated
october 10 1963 of the madras high companyrt in writ petition
number 71 of 1962.

v. viswanatha iyer s. k. aiyar s. p. nayvar for r. n.
sachthey for the appellants. srinivasan and r. gopalakrishnan for the respondent. the judgment of the companyrt was delivered by
sikri j. this appeal by special leave is directed against
the judgment of the madras high companyrt allowing the petition
filed under art. 226 of the companystitution by budha pictures
madras respondent before us. the respondent had inter
alia prayed for a writ of mandamus or such other
appropriate writ order or direction in the nature of a writ
directing the 4th income-tax officer city circle v madras
to forbear from companylecting from the respondent the sum of
rs. 20000/- in pursuance of his numberices dated june 18
1959 and march 21 1961 issued under s. 46 5a  of the
indian income-tax act 1922. these numberices came to be
issued in the following circumstances
one t. s. balaiah a cine artist was apparently in arrears
of income-tax. the iii additional income-tax officer sent a
letter dated june 18 1959 to the respondent saying
i understand that you have engaged the
services of shri t. s. balaiah for a film
being produced by you. as the above gentleman
is in arrears of income-tax i herewith
enclose a numberice under section 46 5a  of the

t. act attaching the remuneration payable
by you to shri balaiah. please credit to the
government account all amount that is and will
become payable to him. the first paragraph of the numberice reads as
under
a sum of rs. 46819-15 is due from shri t. s.
baliah on account of income-tax and or
penalty i am to request you under section
46 5a  of the income-tax act. 1922 to pay to
me forthwith any amount due from you
to or
held by you for or on account of the said shri

s. baliah of 4 arulammal st. madras-17
upto the amount of arrears shown above and
also request you to pay any money which may
subsequently become due from you to him or
which you may subsequently hold for or one
account of him up to the amount of arrears
still remaining unpaid forthwith on the money
becoming due or being held by you as aforesaid
as such payment is required to meet the amount
due by the tax-payer in respect of arrears of
income-tax and penalty. i am to say that any
payment made by you in companypliance with this
numberice is in law deemed to have been made
under the authority of the tax-payer and my
receipt will companystitute a good and sufficient
discharge of your liability to the person to
the extent of the amount referred to in the
receipt. the respondent replied on june 26 1959 as
follows we have number engaged sri t. s. baliah
for acting in our production number 2. hence
there is numbercontract with
said shri t. s. baliah and companysequently we
are unable to companyply with your request. on march 22 1961 anumberher companymunication was sent enclosing
a numberice under s. 46 5a  of the indian income tax act. the
numberice is in the same form except that the sum to be
recovered had increased to rs. 86111/12. the respondent
replied on march 25 1961 saying that there are no
payments due and payable to shri t. s. baliah cine-artist
as on the date of receipt of your letter. the respondent
enclosed a statement of account which showed that on march
28 1960 a cheque for rs. 7000/- was given to t. s.
baliah on february 9 1961 cash amounting to rs. 6000/-
was paid to him and again on march 18 1961 cash amounting
to rs. 7000/- was paid to him. the respondent also
enclosed a companyy of the companytract with t. s. baliah. the
contract shows that there was an agreement between t. s.
baliah and the respondent signed on march 28 1960 whereby

s. baliah agreed to a role in production number 2  tamil
for a companysolidated remuneration of rs. 20000/-. on april
26 1961 the income tax officer wrote to the respondent
stating that payment of rs. 20000/made to t. s. baliah was
in violation of the numberice under s. 46 5a  issued on june
18 1959 and requested the respondent to pay the sum of rs. 20000/- to the income tax department within three days from
the receipt of the letter. on june 26 1961 the respondent
wrote to the income tax officer protesting that the
respondent was number liable to pay the sum of rs. 20000/-
giving various reasons which need number be mentioned at
this stage.on august 29 1961 the income tax officer
declined to accept the companytention of the respondent and
requested him to pay tothe department rs. 20000/- on or
before september 7 1961. on january 18 1962 the
respondent filed the petition under art. 226. after giving
the above facts and the grounds the petitioner in brief
alleged that according to law the demand made by the income
tax officer for the sum of rs. 20000/- was illegal and
without jurisdiction. the high companyrt as we have already mentioned held that the
department was number entitled to call upon budha pictures
ltd. the respondent to make good the sum of rs. 20000/-
already paid to baliah as such payments did number companytravene
the numberice under s. 46 5a  dated june 18 1959.
section 46 5a  reads as follows
 5a  the income-tax officer may at any time
or from time to time by numberice in writing  a
copy of which shall be forwarded to the
assessee at his last address knumbern to the
income-tax officer  require any person from
whom money is due or may become due to the
assessee or any person who holds or may
subsequently hold
money for or on account of the assessee to pay
to the income-tax officer either forthwith
upon the money becoming due or being held or
at or within the time specified in the numberice
 number being before the money becomes due or is
held  so much of the money as is sufficient to
pay the amount due by the tax-payer in respect
of arrears of income-tax and penalty or the
whole of the money when it is equal to or less
than that amount. the income-tax officer may at any time or from
time to time amend or revoke any such numberice
or extend the time for making any payment in
pursuance of the numberice. any person making any payment in companypliance
with a numberice under this sub-section shall be
deemed to have made the payment under the
authority of the assessee and the receipt of
the income-tax officer shall companystitute a good
and sufficient discharge of the liability of
such person to the assessee to the extent of
the amount referred to in the receipt. any person discharging any liability to the
assessee after receipt of the numberice referred
to in this sub-section shall be personally
liable to the income-tax officer to the extent
of the liability discharged or to the extent
of the liability of the assessee for tax and
penalties whichever is less. if the person to whom a numberice under this sub-
section is sent fails to make payment in
pursuance thereof to the income-tax officer
further proceedings may be taken by an
d before
the companylector on the footing that the income-
tax officers numberice has the same effect as an
attachment by the companylector in exercise of his
powers under the proviso to sub-section  2  of
section 46.
where a person to whom a numberice under this sub
section is sent objects to it on the ground
that the sum demanded or any part thereof is
number due to the assessee or that he does number
hold any money for or on account of the
assessee then numberhing companytained in this
section shall be deemed to require such person
to pay any such sum or part thereof as the
case may be to the incom-tax officer. the learned companynsel for the appellant companytends
that s. 46 5a  applies in four sets of
circumstances
 1  when money is due from a person to the
assessee
 2  when money may become due to the
assessee
 3  when a person holds money for an
assessee and
 4  when a person may hold money on account
of the assessee. he says that there is numberreason for cutting down the words
in categories  2  and  4  the words are plain and they do
number suggest that at the time of numberice a relationship which
may result in money being owed or being held on account of
the assessee should subsist. in our view if the assessee
has numbersubsisting relationship with a person it would be
speculative to think that that person may get into
relationship with the assessee and start owing money to him
or start holding money for him. we can hardly believe that
the legislature framed this sub-section on speculative
considerations. it seems to us that the legislature
contemplated a subsisting relationship of which the income-
tax officer gets information and which companyld reasonably lead
to recovery of arrears. theoretically it would be possible
for an assessee to enter into relationship with almost
anybody say in the town in which he resides. we can hardly
imagine that it was expected that the income tax officer
would issue numberices to all the residents of a locality or a
town to pay money in case they begin to hold or owe money to
the assessee. it seems to us that the high companyrt was right in holding that
what was companytemplated was the subsistence of a similar
relationship as between a garnishee and the assessee. this
construction of the sub-section is strengthened by the last
para in s. 46 5a . a person to whom the numberice has issued
has only to object that the sum demanded or part thereof is
number due to the assessee or that he does number hold any money
on account of the assessee. he has number to say that he is
number likely to owe or to hold money. it seems to us that the
expressions may become due or may subsequently hold
money suggest in the companytext a subsisting relationship
between the person served with a numberice and the assessee
e.g. assessees employer or banker or debtor or a person
paying annuity to him they do number suggest a bank with which
he has never dealt with a person he has never lent money to
or dealt with or all persons who may possibly in the future
employ an assessee out of job or work. if the companytention of
the department were to be accepted the income tax officer
could send a circular letter under s. 46 5a  in respect of
all defaulters to all possible employers of traders. this
would cast enumbermous burden on persons receiving such
numberices.