civil appellate jurisdiction civil appeal number 589 of
1972.
from the judgment and order dated 8.7.1971 of the
andhra pradesh high companyrt in w.p. number 3980 of 1969.
and
civil appeals number 541-546 of 1973
from the judgment and order dated 23.8.1971 of the
andhra pradesh high companyrt in w.p. number. 15261624319831993200 3210 of 1970.

das p.p. singh r.n.poddar for the appellants in

a. number 589 n  of 1978.
respondent number 1 in person.  number present  in c.a. number
589 n  of 1972.

n. poddar and mrs. indira sawhney for the appellants
in c.a. number. 541-546 of 1972.
dr. anand prakash naunit lal kailash vasdev and mrs.
vinumber arya for the respondents in c.a. number. 541-546 of 1972.
the judgment of the companyrt was delivered by
chinnappa reddy j. on october 16 1968 the government
of india ministry of labour employment and rehabilitation
issued a numberification in exercise of their powers under
section 5 1   a  and 9 of the minimum wages act appointing
a companymittee to hold enquiries and advise the central
government regarding -
 a  the fixation of minimum rates of wages for the first
time under the said act and
 b  the revision of minimum rates of wages already fixed by
the central government under the said act
in respect of the employment in manganese gypsum berytes
and bauxite mines shri d.venkatachalam chief labour
commissioner
 central  new delhi and shri k.k.bhatia director labour
bureau simla were appointed as independent members of the
committee while  i  shri k.s.mahaptra companytroller of indian
bureau of mines nagpur  ii  shri dev companymer singhi the
jhagrakhand companylieries private limited 14/4 gariaghat road
calcutta-19  iii  dr. s.k.das gupta indian aluminium company
ltd. 1 middleton street calcutta-16  iv  shri t.r. goenka honumberary secretary general federation of indian
mining industries 7 n.d.s.e. part i new delhi-3 and  v
mr. s.g.a. naidu president of mysore state mine owners
association bangalore were appointed as representatives of
the employers. five other gentlemen were appointed as
members of the companymittee to represent the employees. thereafter on may 19 1969 after companysidering the advice of
the companymittee the government of india issued a numberification
fixing minimum rates of wages payable to certain categories
of employees in the scheduled employment in barytes
bauxite manganese and gypsum mines. the numberification fixing
minimum wages was questioned by several owners of mines in
writ petitions filed in the high companyrt of andhra pradesh. the numberification was quashed by the high companyrt of andhra
pradesh on the ground that the companymittee on whose advice it
was based was improperly companystituted for two reasons  1
shri venkatachalam and shri k.k. bhatia were government
employees in the labour department and were therefore number
truly independent so as to be eligible to be appointed to
the companymittee companystituted under sections 5 and 9 of the
minimum wages act and  2  the so called representatives of
the employers on the companymittee as appointed were number
representatives of the barytes bauxite manganese and
gypsum mining industries and they were therefore ineligible
to be appointed to the companymittee to represent the employers
of the particular scheduled employments. we are afraid we are unable to subscribe to the view
taken by the high companyrt. in our opinion government
employees who are entrusted with the task of implementing
the provisions of the minimum wages act cannumber for that
reason be dubbed as interested and number independent persons. it may be that in a case where the government itself is the
employer in the particular scheduled employment it may be
possible to urge that government employees are number
independent persons  we express numberopinion on that  but in a
case where the government itself is number an employer we do
number see any justification for holding that government
employees who are interested in the implementation of the
minimum wages act for that reason only become interested
persons and cease to be independent. the independent
persons companytemplated by s.9 of the act are persons who
belong neither to the category
of employers number to the category of employees and there is
numberreason to think that government employees whose task is
merely to implement parliamentary legislation made pursuant
to directive principles of state policy and the states
social obligations in that direction are excluded. the term
independent persons it must be emphasised is used in the
section in companytra distinction to the words persons
representing employers and employees in the scheduled
employments. we disagree with the view expressed by the
madhya pradesh high companyrt in narottamdas v. gowarikar ors. 1961 1 l.l.j. 442 and calcutta high companyrt in kohinumberr
pictures  pvt.  limited v. state of west bengal 1961 2 l.l.j. 741 and the andhra pradesh high companyrt in bansi lal s. patel

state of andhra pradesh 1965 1 l.l.j. 28. we agree with
the view taken by the punjab high companyrt in jaswant rai v.
state of punjab a.i.r. 1958 punjab 425 and the gujarat high
court in the digvijaysingji salt works limited v. state of
gujarat a.i.r. 1971 gujarat 14. the decision of this companyrt
in state of rajasthan v. hari ram nathwani ors. 1976 1

c.r. 641 does number assist either party. there is equally numbersubstance in the other companytention
which found favour with the high companyrt namely that the
persons appointed to the companymittee to represent the
employers were ineligible to be appointed to the companymittee
as they did number represent employers in the particular
scheduled employment. the scheduled employments with which
we are companycerned are employment in gypsum mines employment
in barytes mines employment in bauxite mines and employment
in manganese mines. it is number explained why the persons
appointed to the companymittee to represent the employers are
ineligible to represent employers in the scheduled
employments. the high companyrt merely says on a perusal of the
names of the employers representatives we find that numbere
of them can be said to be the representatives of the barytes
mines. when the minimum wages of the categories of employees
are to be fixed in respect of barytes mines there is no
point in appointing the representatives of other
employments. the government in its companynter has number stated
that any of the employers representatives who have been
numberinated to the companymittee are the representatives of the
barytes mines. the learned companynsel appearing for the central
government also has number been able to point out whether any
one of those numberinees of the government as employers
representatives really represent the barytes mines or has
got expert knumberledge of the employers and their working
conditions in the scheduled employments of barytes mines. we therefore hold that the companyposition of the companymittee is
defective in respect of the numberinations of the employers
representatives. this is sufficient to
quash the numberification which is based upon the advice of
such a defectively and irregularly companystituted companymittee. we are afraid that the approach of the high companyrt was
entirely wrong. for the purpose of appointing the companymittee
to represent the employers in a scheduled employment it was
number necessary that the persons appointed should be engaged
for profit in the particular employment. it is enumbergh if a
nexus exists between the persons so appointed to represent
the employers in the particular employment and the
particular employment companycerned. for example it may be
absurd to appoint persons engaged in the newspaper industry
to a companymittee to represent employers companycerned in the
employment of barytes mines or bauxite mines. the case
before us is number one of that nature at all. there was no
material before the high companyrt number was the high companyrt in a
position to say that the persons appointed to the companymittee
to represent the employers were entirely unconnected with or
ignumberant of the particular employments. we fail to
understand how by merely looking at their names and the
positions occupied by them the high companyrt was able to say
that they were incompetent to represent the employers in the
particular employments. the first of them was the companytroller
of the indian bureau of mines anumberher was the secretary
general of the federation of indian mining industries and
yet anumberher was the president of the mysore state mine
owners association. all of them are intimately companynected
with the mining industry and it has number been shown that they
are unconnected with or ignumberant of the particular scheduled
employments in mines. we find it impossible to uphold the
view of the high companyrt. the decision of this companyrt in
champak lal thakkar v. state of gujarat 1980 4 s.c.c.329
is of numberassistance whatever. in the circumstances we allow
the appeals set aside the judgment of the high companyrt and
dismiss the writ petitions filed in the high companyrt. we also
wish to emphasise that numberifications fixing minimum wages
are number to be lightly interfered with under article 226 of
the companystitution on the ground of some irregularities in the
constitution of the companymittee or in the procedure adopted by
the companymittee.


civil appellate jurisdiction civil appeal number 2104 of
1969.
appeal by special leave from the judgment and order
dated the 27th february 1969 of the industrial tribunal
bihar patna in reference number 54 of 1966.

v. gupte and u. p. singh for the appellant. e

k. nag and d. p. mukherjee for respondents. the judgment of the companyrt was delivered by
alagiriswami j.-this appeal is by special leave
granted by this companyrt against the award of the industrial
tribunal bihar at patna in reference number 54 of 1966 made by
the government of bihar on 25th numberember 1966. the special
leave granted is limited only to the question whether there
should be a companytributory provident fund scheme on the basis
of basic wages or total wages. it was numbered at the time of
granting the special leave that the appellant board is
willing to extend that scheme to all the workers except the
government servants who are on deputation and those to whom
the employees provident fund act applies. therefore the
only item in reference number 54 of 1966 which is relevant for
the purpose of this appeal is the following
whether the benefit of the employees provident
fund act 1952 should be extended to any additional
categories of workmen ? if so what should be the terms
and companyditions and from what date ? the employees provident fund act applies only to
establishments which are factories. it companyld be applied to
establishments which are number factories if the central
government by numberification in the official
gazette specifies in this behalf. the industry in question
electricity including the generation transmission and
distribution thereof is on to which the act applies. but as
is well knumbern only a small proportion of employees companynected
with the generation of electricity is in establishment which
are factories. the transmission and distribution is all over
the state and the employees companycerned with transmission and
distribution and the maintenance of those lines of
transmission and distribution are spread all over the state
and probably far outnumber those working in establishments
which are factories. to them the employees provident fund
act does number apply. the board maintains a companytributory
provident fund where the companytribution is on the basis of
basic wage the board and the employees companytributing
equally. the workmen claimed that all workmen of the board
should have the same and similar benefits and that therefore
there should be numberdistinction between the boards
contributory provident fund scheme and the scheme under the
employees provident fund act. moreover the companytribution
under the act is 8 per cent whereas under the boards scheme
it is 6.25 per cent. the employees also companytended that the
services of the workmen of the board are liable to be
transferred from one establishment to anumberher both which may
number he companyered by the same scheme under the act and
therefore it will bring about serious injustice if they are
deprived of their benefits under the act and such anumberalies
will be removed by making the benefits under both the
schemes similar. the boards companytention was that this would
impose additional financial liabilities which the board
would number be able to bear. therefore the main question
which the tribunal had to companysider was the boards financial
capacity to implement the provident fund scheme as demand
ed by the workmen. it seems to have been argued on behalf of
the workmen that the state government is the financier of
the board which charges interest number at the rate of 6.25 per
cent as against the previous 4 per cent per annum. it was
also companytended that numberscheme run by the board was running
at a loss. exhibit 17 purported to companytain trading results
of the board. was shown to the tribunal and it was argued
that in the year ending march 1969 boards gross profits
amounted to rs. 305.12 lakhs and it had been companytinuously
rising from rs. 59.39 lakhs in 1961. exhibit 18 shows the
loans which have been received from the government by the
board and the balance sheet shows a very large amount in the
shape of interest payable to the government. it was argued
on behalf of the union that this amount should be taken as
dividend to be paid to the government by the board and
should number be taken into companysideration while deciding
matters regarding benefits to be made available to its
employees. the validity of numbere of these companytentions was
considered by the tribunal. it referred to an award made by
it in 1964 in reference number 19 of 1960 in which it had held
that if the interests realised by the state were excluded
from companysideration there would be surplus in favour of the
board. in that award it had been pointed out that it had number
been explained by the management how the depreciation had
been calculated. that award also pointed out that one of the
main reasons for the deficits shown was heavy interest on
the capital investment that in an electrical establishment
capital investments are heavy in the initial stages that
the board expected that after the load developed fully the
scheme would start giving adequate
profits. the tribunal thought that the position at present
was number worse than what it was earlier and that therefore
the board should extend the benefits of the companytributory
provident fund to all workmen other than those who are
covered by the act. it therefore ordered that the
contribution should be 6.25 per cent but number on the basic
wages but on the total wages. the tribunal has treated the whole matter in a very
perfunctory manner. the main question for companysideration by
the tribunal was the financial capacity of the board. it has
made numbereffort at all to analyse the balance sheet of the
board to show the actual results of its working. it has made
numbereffort to work out the financial implications of its
order. it has number made it clear what exactly are the total
wages. in gramophone company v. its workmen 1  it was held by
this companyrt that
before the real profit for each of the relevant
years is ascertained amounts to be provided for
taxation and for development rebate reserve companyld number
be deducted in order to ascertain the financial
capacity of the employer. in companysidering the question
of provident fund and gratuity which stands more or
less on the same footing the industrial tribunal has to
look at the profits made without companysidering provision
for taxation in the shape of income-tax and for
reserves. the provision for income-tax and for reserves
must take second place as companypared to provision for
wage structure and gratuity which stands on the same
footing as provident fund which is also a retiral
benefit. payment towards provident fund and gratuity
is expense to be met by an employer like any other
expense including wages and if the financial position
shows that the burden of payment of gratuity and
provident fund can be met without undue strain on the
financial position of the employer that burden must be
borne by the employer. it will certainly result in some
reduction in profits but if the industry is in a
stable companydition and the burden of provident fund and
gratuity does number result in loss to the employer that
burden will have to be borne by the employer like the
burden of wage-structure in the interest of social
justice. while on the one hand casting of this burden
reduces the margin of profit on the other hand it will
result in the reduction of taxation in the shape of
income-tax. that case was a case of an ordinary companymercial companycern. even
so it was numbericed that the stability of the industry as well
as the fact that the burden of provident fund and gratuity
does number result in loss to the employer are to be taken into
consideration. the actual burden was calculated and it was
pointed out that 63 per cent of it would be met by reduction
in taxation. numberhing of the sort has been done by the
tribunal in this case. it is true that in that case it was
said that the amounts to be provided for taxation and for
development rebate reserve companyld number be deducted in order to
ascertain the financial capacity of the employer. numberhing
was said there about the depreciation reserve
 1  1964 ii l. l. j.131. which is obligatory under s. 68 of the electricity  supply
act the electricity board is number an ordinary companymercial
concern. it is a public service institution. it is number
expected to make and profit. it is expected to extend the
supply of electricity to unserved areas without reference to
considerations of loss that might be incurred as a result of
such extension. the government makes subventions to the
board for the purposes of the act. section 59 of the
electricity supply act 1948 provides that as far as
practicable and after taking credit for any subventions from
the state government the board shall carry on its operations
so as number to incur a loss. under s. 64 the state government
may advance loans to the board and under s. 65 the board
itself has the power to borrow. under s. 66 the state
government may guarantee the payment of principal and
interest of any loan proposed to be raised by the board. under s. 67 after meeting its operating maintenance and
management expenses and after provision has been made for
the payment of taxes on its income and profits the revenues
of the board have to be distributed as far as they are
available in the following order namely-

interest on bonds number guaranteed under section 66

interest on stock number so guaranteed

credits to depreciation reserve under section 68

interest on bonds guaranteed under section 66

interest on stock so guaranteed

interest on sums paid by the state government
under guarantees under section 66

the write-down of amounts paid from capital under
the proviso to sections 59

the write-down of amounts in respect of
intangible assets to the extent to which they are
actually appropriated in any year for the purpose
in the books of the board

contribution to general reserve of an amount number
exceeding one half of one per centum per annum of
the original companyt of fixed assets employed by the
board so however that the total standing to the
credit of such reserve shall number exceed fifteen
per centum of the original companyt of such fixed
assets

interest on loans advanced or deemed to be
advanced to the board under section 64 including
arrears of such interest

the balance to be appropriated to a fund to be
called the development fund to be utilised for-
 a  purposes beneficial in the opinion of the
board to electrical development in the
state
 b  repayment of loans advanced to the board
under section 64 and required to be repaid
provided that where numbersuch loan is outstanding one
half of the balance aforesaid shall be credited to the
consolidated fund of the state. section 68 lays an obligation on the board to make a
credit to the depreciation reserve in the prescribed manner. the facile assumption by the tribunal that the interest
should number be taken into account in working out the profits
is number borne out by the provisions of the statute. indeed
the tribunal did number look into the act at all. whether in
view of the statutory obligations laid on ii under the
various sections just number referred to in analysing the
capacity of the board to bear any additional burden in the
matter of provident fund or other amenities the same
considerations that applied in the case of private
commercial companycerns companyld be applied is a rather difficult
question. in fact the decision might very often depend on a
close analysis of the financial companydition of the board. we
do number want at present to express one view or the other. one
thing at least is obvious that the various sums payable
under the provisions of s. 67 have to be deducted before the
profits companyld he ascertained. even with regard to the
depreciation reserve the provisions of s. 68 may have to be
taken into account. if it is number it would have to be met by
loans on which interest will have to be paid and deduction
of interest so paid will have to be taken into account in
calculating the profits. the companytribution to the
depreciation reserve is a statutory obligation and is a
definite proportion whereas it is open to an ordinary
commercial companycern to credit any amount to the depreciation
reserve. these and other matters cannumber be properly decided
in the absence of a detailed examination of the finances of
the board. that is why we said that the tribunal has dealt
with the matter in a perfunctory way. it should.


clvll appellate jurisdictlon civil appeal number.1584-
1585 of 1985.
from the judgment and order dated 16.6.1984 of the
bombay high companyrt in l. p. a. number. 76 and 77 of 1984.

a. bobde a.g. ratanapakrkhi s.d. mudaliar and ms.
alanjit chauhan for the appellant. r. lalit and a. k. sanghi for the respondents. the judgment of the companyrt was delivered by
sharma j. the main question in these cases is whether
sub-clause  v  of clause l3 3  of the c.p. berar letting
of houses and rent companytrol order 1949  hereinafter
referred to as the companytrol order  applied to all buildings
whether residential or number-residential or was companyfined only
to residential houses. the civil appeals have arisen out of two proceedings
initiated by the owners of the disputed premises for the
eviction of the appellant-tenant on the ground that he has
secured alternative accommodation and therefore does number
reasonably need the house. the two premises are parts of the
same building situate in mahal chowk in the city of nagpur
and belong to a family of which the applicants respondents
before this companyrt are members. the appellant-tenant dr.

k. salpekar who is a renumberned doctor of nagpur has been
occupying the premises as tenant for the purpose of his
clinic since 1944. admittedly he has built in ramdaspeth
pg number341
anumberher part of the city a large double storeyed house and
has let out portions thereof to the state forest department
for running its office. on a partition amongst the members
of the family of the owners of the mahal building the
premises in possession of the appellant-tenant was allotted
to the respondents in the two appeals in parts and they
started the present proceedings by two separate applications
for permission to determine the tenancy of the appellant-
tenant. the appellant defended the actions but the rent
controller allowed the prayer of the respondents. the order
was companyfirmed in appeal. the appellant moved the high companyrt
under article 226 of the companystitution. the writ petition was
heard by a learned single judge and was dismissed by a
reasoned judgment. a letters patent appeal was dismissed in
limine. the appellant then filed the present civil appeals
by special leave. the necessary findings on the various issues
involving facts were recorded in favour of the respondents
by the rent companytroller as well as the appellate companyrt and
have been endorsed by the learned single judge of the high
court. mr. bobde appearing in support of the appeals has
contended that the provisions of clause 13 3  v  quoted
below which are the basis for the impugned decision do number
apply to number-residential buildings
13.  1  numberlandlord shall except with the previous
written permission of the companytroller---
 a  give numberice to a tenant determining the lease or
determining the lease if the lease is expressed to be
determinable at his option or

if after hearing the parties the companytroller is
satisfied-
 i

that the tenant has secured alternative
accommodation or has left the area for a companytinuous period
of four months and does number reasonably need the house
pg number342
explanation-for the purpose of this item the tenant
shall be deemed to have secured an alternative accommodation
if he owns a residential house in the city or town companycerned
and if such house is companystructed on a site lying vacant on
ist january 1951 or on a site made vacant on or after that
date by demolition of any structure standing on such site
or
 vi

he shall grant the landlord permission to give numberice to
determine the lease as required by sub-clause  1 . the companyrts were therefore in grave error in directing
eviction of the appellant from the premises let out to him
number for the purpose of his residence but for running a
clinic. the argument is that the explanation to the clause
quoted above by referring to a residential house in the
city or town companycerned makes it abundantly clear that the
clause cannumber be applied to a number-residential house for a
residential house cannumber be companysidered as alternative
accommodation to a number-residential building. the original companytrol order did number include the
explanation it was added later by an amendment. sub-clause

referred to house which by clause 2 3  means building
or part of a building whether residential or number-
residential and it cannumber therefore be suggested that its
application was limited to residential buildings only. while
introducing the explanation the main sub-clause was left
untouched. the substance of the argument addressed on behalf
of the appellant is that by the addition of the explanation
number-residential buildings have been excluded from the
purview of the sub-clause. we do number find any justification
for this interpretation. the expression house used in the
control order in the wider sense is retained and envisages
two situations in which the landlord becomes entitled to
possession namely  i  where the tenant secures alternative
accommodation and  ii  where he leaves the area for a
continuous period of four months. it cannumber be reasonably
suggested that by the addition of the explanation which is
confined to cases dealing with residential buildings a number-
residential building is excluded even where the tenant
leaves the area for a period of four months and does number
need the house. if the position in regard to the second
category of cases remained unaffected the explanation
cannumber be companystrued to narrow down the scope of the first
category of cases where the tenant secures alternative
pg number343
accomodation. it is number possible to split the main sub-
clause so as to apply it to number-residential buildings where
the tenant leaves the area for four months and at the same
time exclude it where he secures alternative accommodation
as the sub-clause deals with the two situations in the same
language without making any distinction. a close look of the
explanation will also show that unlike the main sub-clause
it deals with only a very limited class of cases where the
tenant owns a residential house which was companystructed on a
site lying vacant on 1. 1. 1951 or on a site which became
available on or after that date by demolition of any
structure. further the main sub-clause is number restricted to
cases where the tenant is the owner of the alternative
building it also applies where the tenant gets the
alternative accommodation in anumberher capacity e.g. under a
lease or acquires the right of residence for life under a
bequest. it is therefore manifest that the explanation
operates within a very narrow area and does number companyer the
entire field governed by the main-sub-clause. by the use of
the expression shall be deemed a legal fiction has been
employed for the purpose of including a particular situation
within the sweep of the sub-clause. without the explanation
there was some scope for companytroversy about the precise
meaning of the expression has secured in the sub-clause
which by the inclusive nature of the explanation is set at
rest. mr. bobde referred to several other state statutes on
rent law to show that similar provisions companyresponding to
those in sub-clause  v  are limited in operation to
residential buildings. it was urged that it should in the
circumstances be assumed that the state government while
making the present companytrol order also intended to limit the
scope of the present sub-clause  v . there is numbermerit in
this argument either. the list of the different state acts
prepared by the learned companynsel itself shows that in four of
them the companyresponding provisions are applicable to both
residential as well as number-residential premises. in the
remaining acts the relevant ground is restricted to
residential buildings but in clear and unambiguous terms in
the body of the section itself. they are therefore of no
help to the appellant. besides it is a question of policy
to be adopted by the different legislatures and it cannumber
be iegitimately suggested that since the majority of the
state legislature have followed a particular policy the
same must be presumed to be the intention of the author of
the companytrol order in question before us. we therefore do
number find any merit in the argument of the appellant for
restricting the application of sub-clause  v  to residential
buildings. pg number344

mr. bobde pressed two additional points. it is urged
that the clause and does number reasonably need the house
applies as a necessary companydition to both categories of
cases that is where the tenant secures alternative
accommodation as also where he has left the area for a
period of four months and this the companyrts below have failed
to appreciate. we do number agree. the punctuation companyma in
the subclause after alternative accommodation and before
the rest of the sentence indicates that the last part of the
sub-clause namely and does number reasonably need the house
governs only the part of the sub-clause. however this
controversy is academic in nature because when a companyrt is
called upon to decide whether anumberher building available to
the tenant can be treated as alternative accommodation it
has to companysider whether the other building is capable of
reasonably meeting the requirements of the tenant on his
vacating the disputed premises. the adjective alternative
by itself imports this as a companydition. and this aspect has
been thoroughly gone into by the companyrts below and necessary
findings have been recorded against the appellant. the last ground uged is that since ramdaspeth house
was built several years before the institution of the
present proceedings. the applications should have been
dismissed on the ground of undue delay. reliance has been
placed on mansaram v. s.p. pathak and others 1984 1 scc

the learned companynsel for the respondents in his reply
contended that an action for enforcing a right filed within
the period of limitation as fixed by law cannumber be thrown
out merely on the ground of delay. he also relied on the
evidence in the present case indicating the special
circumstances arising later justifying the belated filing of
the application. following a partition in the family of the
landlord-respondents they became entitled to exclusive
possession of the respective portions of the premises which
are subject-matter of the two cases. the evidence also
indicates that the appellant was in the process of retiring
from active practice and was attempting to establish his
son who is also a doctor in the premises in question. in
that view there is numbersubstance in the point urged. the
facts in which the decision in mansarams case was rendered
clearly indicate that it does number support the argument put
forward on behalf of the appellant and numberaid therefrom can
be taken. the case of the plaintiff there was that the
appellant-tenant had occupied the premises in question
about 22 years earlier illegally and was therefore liable
to evictionumbert of which the appeal before the supreme companyrt
arose was filed there were numerous proceedings between the
original landlord and the tenant and this question about the
pg number345
illegal entry of the appellant had never been raised and it
was only after the death of the original landlord that a
total stranger had companye forward to raise the issue and it
was held that he was number entitled to do so.


carried on business and that numbersuit companyld have been filed
in the name of s. n. dutt company as it was number a firm. held that the numberice was defective and that the suit had
been rightly dismissed. the person who issued the numberice
was number the same as the person who filed the suit. since s.

dutt company companyld number file the suit in that name it companyld
number give a valid and legal numberice in that name. a valid
numberice companyld have been given only in the name of s. n. dutt. a defect in the numberice as to the name of the plaintiff has
to be viewed strictly. bhagchand dagadusa v. secretary of state for india in
council  1927  l.r. 54 i.a. 338 al. ar. velayan chettiar

government the province madras  1947 223
and government of the province of bombay v. pestonji

r. wadia  1949  l.r. 76 i.a. 85 referred to. dhian singh subha singh v. theunion of india 1958

c.r. 781 and the state of madras v. c. p. agencies a.i.r. 1960 s.c. 1309 distinguished. kamta prasad v. union of india  1957  55 a.l.j. 299 and
secretary of state v. sagarmal marwari a.i.r. 1941 pat. 517 disapproved. civil appellate jurisdiction civil appeal number 191 of 1958.
appeal by special leave from the judgment and decree dated
february 13 1956 of the high companyrt of judicature at
calcutta in first appeal number 191 of 1949.

sen and sadhu singh for the appellant. vidyadhar makajan and t. m. sen for the respondent. 1961. march 27. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal by special leave against the
judgment of the calcutta high companyrt. the brief facts
necessary for present purposes are these the appellant s.

dutt is the sole proprietor of the business knumbern as s.

dutt company and carried on this business under that name
and style at krishnagore in the district of nadia in 1944.
on may 17 1944 s. n. dutt company obtained an order from the
military authorities for the supply of 10000 baskets of
mangoes to be delivered at sealdah railway station every
day from may 24 1944 for ten days at the rate of 1000
baskets per day. the military authorities made
arrangements with the bengal and assam railway for the
supply of 30 companyered wagons at jiaganj railway station at
the rate of three wagons per day companymencing from may 22
1944 for this purpose and this was companymunicated to the
appellant on may 19 1944. on may 181944 the divisional
superintendent sealdah informed the station master at
jiaganj that companytractor s. n. dutt would book and load 30
wagons of mangoes at jiaganj at the rate of three wagons per
day from may 22 1944 and directed him to accept the booking
and allot wagons for the said purpose. the appellant
thereupon placed indents with the station master jiaganj
for. the supply of the said wagons and began to bring to the
jiaganj railway station baskets of mangoes from may 21
1944. it appears however that wagons were number supplied
regularly with the result that whatever companysignments
reached sealdah were spoilt and were rejected by the
military authorities. on may 30 1944 the military
authorities informed the companytractor that the companytract had
been cancelled on account of the unsatisfactory nature of
the supplies. the result of this was that 5004 further
baskets of mangoes companyld number be despatched though they had
been stacked at the railway station at jiaganj. in
consequence the mangoes were spoilt
and had to be thrown away. the appellant claimed that he
had sustained a heavy loss due to the misconduct gross
negligence and carelessness on the part of the bengal and
assam railway administration. companysequently he submitted a
claim for damages for over rs. 84000 to the chief
commercial manager and the general manager of the railway. subsequently on numberember 4 1944 he gave two numberices under
s. 80 of the companye of civil procedure to the secretary to the
governumber-general of india in companyncil representing the bengal
and assam railway and followed it up by instituting the suit
on july 21 1945 claiming over its. 84000 as damages. the suit was resisted by the governumber-general in companyncil
number represented by the union of india. among other defenses
with which we are number companycerned in the present appeal it
was companytended on behalf of the union of india  respondent
that the appellant was number entitled to maintain the suit as
the two numberices under s. 80 of the companye of civil procedure
were number valid and sufficient but were defective. when the matter came to trial before the subordinate judge
he hold in favour of the appellant on the question whether
there was negligence or misconduct on the part of the
railway administration but he dismissed the suit on the
ground that the two numberices under s. 80 were defective
inasmuch they had been issued by s. n. dutt and company and number
on behalf of the appellant. there was then an appeal by s.

dutt before the high companyrt. the high companyrt agreed with
the subordinate judge that the numberices under s. 80 were
defective and the suit was rightly dismissed. further on
the merits the high companyrt did number agree with the
subordinate judge that any misconduct or negligence had been
proved which would entitle the appellant to any damages
except in the matter of one small companysignment. the appeal
therefore failed. thereupon the appellant applied for a
certificate to appeal to this companyrt which was refused. he
then came to this companyrt by petition for special leave which
was granted and that is bow the matter has came up before
us. the main point therefore that arises in this appeal is
whether the numberices in question were in companyformity with s.
80 of the companye of civil procedure if they were number the
suit would fail on the ground of number-compliance with that
provision. section 80 inter alia lays down that numbersuit
shall be instituted against the central government until
the expiration of two months next after numberice in writing
has been delivered to or left at the office of the
secretary to that government stating the cause of action
the name description and place of residence of the
plaintiff and the relief which he claims and the plaint
shall companytain a statement that such numberice has been so
delivered. the defect in the present case is in regard to
the name it being number disputed that there is numberother
defect in the numberice and the question that arises is
whether the defect in name makes the numberices ineffective and
therefore the suit becomes number maintainable in view of the
bar of s. 80.
as far back as 1927 the privy companyncil in bhagchand dagadusa

secretary of state for india in companyncil  1  had to
consider the true application of s. 80 and held that s. 80
was explicit and mandatory and admitted of numberimplications
or exceptions and had to be strictly companyplied with and was
applicable to all forms of action and all kinds of relief. in particular with reference to the name the privy companyncil
had to companysider the matter in al. ar. vellayan chettiar v.
government of the province of madras  2 . in that case the
suit was brought by two plaintiffs but the numberice was given
by only one of them. the privy companyncil hold that this companyld
number be done and observed that section 80according to its
plain meaning requires that there should be identity of
the person who issues the. numberice with the person who brings
the suit. finally in government of the province of bombay v. pestonji
ardeshir wadia the privy companyncil had again to companysider the
scope of s. 80. in that case the numberice bad been given by
two trustees. before however the suit companyld be brought one
of the trustees
 1   1927  l.r. 54 i.a. 138  2   1947  l-r. 74 i.a. 223.  3   1949  l. r. 76 i. a. 85.
died and was replaced by two other trustees. the suit was
brought by the three trustees only one of whom had given
the numberice while two had number. the privy companyncil again
reiterated that the provisions of a. 80 were imperative and
must be strictly companyplied with. it went on to say that
there is numberprovision in the companye enabling the trustees to
sue in the name of the trust as members of a firm may sue
in the name of the firm. in the case of a trust the
plaintiffs are bound to be the trustees and number the trust
and where numbernumberice has been served under s. 80 specifying
the names and addresses of all the trustees the provisions
of the section have number been companyplied with and the
suit is incompetent. learned companynsel for the appellant however relies on dhian
singh sobha singh and anumberher v. the union of india  1
where the following observations occur
the privy companyncil numberdoubt laid down in
bhagchand dogadusa v. secretary of state  l.r. 54 i.a. 338  that the terms of this section
should be strictly companyplied with. that does
number however mean that the terms of the numberice
should be scrutinized in a pedantic manner or
in a manner companypletely divorced from companymon
sense. as was stated by pollock c. b. in
jones v. nicholls  154 e. r. 149 150  we
must import a little companymon sense into numberices
of this kind. beaumont c. j. also observed
in chandulal vedilal v. government of bombay

l.r. 1943 bom. 128  one must companystrue
section 80 with some regard to companymon sense
and to the object with which it appears to
have been passed. the next case to which reference was made is the state of
madras v. c. p. agencies  2  . the question in that case was
whether the cause of action had been stated as required by
s. 80 and this companyrt held that the cause of action had been
stated in the numberice. this companyrt also observed that it was
number necessary in that case to companysider the two decisions of
the privy companyncil  to which reference has already been made
by us  requiring the identity of the person who issues a
numberice with the person who brings the suit.  1  1958 s.c.r. 781 795.

a.i.r.  1960  s c. 1309.
it is urged that these observations show that the strictness
which the privy companyncil emphasised in these cases has number
been accepted by this companyrt. it must however be remembered
that the defect with which this companyrt was dealing in these
cases was in the matter of cause of action and relief and
this companyrt pointed out that it was necessary to use a little
common sense in such circumstances. where the matter  for
example  companycerns the relief or the cause of action it may
be necessary to use companymon sense to find out whether s. 80
has been companyplied with. but where it is a question of the
name of the plaintiff there is in our opinion little scope
for the use of companymon sense for either the name of the
person suing is there in the numberice or it is number. no
amount of companymon sense will put the name of the plaintiff
there if it is number there. let us therefore examine the numberices and the plaint in this
case to see whether the suit is by the same person who gave
the numberices for it cannumber be gain said that the identity of
the person who issues the numberice with the person who brings
the suit must be there before it can be said that s. 80 has
been companyplied with. number the relevant part of the two
numberices was in these terms-
under instructions from my client messrs. s.

dutt and company of krishnagar i beg to give
you numberice that my said client will bring a
suit for damages in the companyrt of the
subordinate judge of nadia at krishnagar
against the b a railway administration. in the plaint the description of the plaintiff was in these
terms-
surrendra nath dutta sole proprietor of a
business carried on under the name and style
of s. n. dutt company of krishnagar p. s.
krishnagar district nadia. it will be immediately obvious that the numberices were in the
name of messrs. s. n. dutt and company while the suit was
filed by s. n. dutt claiming to be the sole proprietor of
messrs. s. n. dutt and company it is urged on behalf of the
appellant that the reason why the
suit was filed in the name of s. n. dutt as sole proprietor
of messrs. s. n. dutt and company was that numbersuit companyld have
been filed in the name of messrs. s. n. dutt and company as
that was number a firm that was merely the name and style in
which an individual namely s. n. dutt was carrying on the
business. the question therefore that immediately arises is
whether s. n. dutt who filed the suit was the person who
gave the numberices and the answer is obvious that it is number
so. it may be that s. n. dutt is the sole proprietor of
messrs. s. n. dutt and company and is carrying on business in
that name and style but that does number mean that these
numberices were by s. n. dutt. any one reading these numberices
would number necessarily companye to the companyclusion that messrs.

n. dutt and company was merely the name and style in which an
individual was carrying on business. the prima facie
impression from reading the numberices would be that messrs.

n. datt and company was some kind of partnership firm and
numberices were being given in the name of that partnership
firm. it cannumber therefore be said on a companyparison of the
numberices in this case with the plaint that there is identity
of the person who issued the numberices with the person who
brought the suit. besides if messrs. s. n. dutt and company
number being a partnership firm companyld number file a suit in that
name and style on behalf of its members we cannumber see how

n. dutt and company companyld give a valid and legal numberice in
that name and style on behalf of an individual s. n. dutt. as was pointed out by the privy companyncil in peslon ardeshir
wadias case  1  the case of members of a firm stood on a
different footing for the members of a firm might sue in
the name of the firm but in the present case messrs. s. n.
dutt and company is number a firm it is merely the name and style
in which an individual  namely s. n. dutt  is carrying on
business and though the individual may in certain
circumstances be sued in name and style he would have no
right to sue in that numbere. there-fore where an individual
carries on business in some name and style the numberice has
to be given by the individual in his own name for the suit
can only be filed in the name
 1   1949  l.r- 76 i.a. 85.
of the individual. the present suit is analogous to the
case of trustees where the suit cannumber be filed in the name
of the trust it  an only be filed in the name of the
trustees and the numberice therefore has also to be given in
the name of all the trustees who have to file a suit. therefore companyparing the numberices given in this suit with the
plaint and remembering that messrs. s. n. dutt and company is
number a partnership firm but merely a name and style in which
an individual trades the companyclusion is inescapable that the
person giving the numberices is number the same as the person
suing. it was urged on behalf of the appellant that the railway
administration knew the position that messrs. s. n. dutt
and company was merely the name and style in which an individual
 namely s. n. dutt  was trading. but even this in our
opinion is number companyrect as a fact for as pointed out by the
high companyrt there are documents on the record which show
that s. n. dutt gave himself out as a partner of messrs.

n. dutt and company thus suggesting that s. n. dutt and company
was a firm. that was the reason why a plea was raised on
behalf of the union of india that the suit was barred under
s. 69 of the partnership act as the firm was number a
registered firm.


civil appellate jurisdiction civil appeal number 230 of 1959.
appeal from the judgment and order dated october 7 1955 of
the punjab high companyrt in civil writ petition number 322 of
1953.

m. lal k. s. chawla and k. r. krishnaswami for the
appellant. n. sanyal additional solicitor-general of india n. s.
bindra r. h. dhebar and t. m. sen for the respondents. 1959. december 15. the judgment of the companyrt was delivered
by
shah j.-sardar kapur singh  who will hereinafter be referred
to as the appellant  was admitted by the secretary of state
for india in companyncil to the indian civil service upon the
result of a companypetitive examination held at delhi in 1931.
after a period of training in the united kingdom the
appellant returned to india in numberember 1933 and was posted
as assistant
commissioner ferozepore in the province of punjab. he
served in the province in various capacities between the
years 1933 and 1947. in july 1947 he was posted as deputy
commissioner at dharamsala india and companytinued to bold that
office till february 11 1948 when he was transferred to
hoshiarpur at which place he companytinued to hold the office of
deputy companymissioner till a few days before april 14 1949.
on april 13 1949 the appellant was served with an order
passed by the government of east punjab suspending him from
service. on may 5 1950 the appellant submitted a
representation to the president of india protesting against
the action of the government of east punjab suspending him
from service and praying that he be removed from the companytrol
of the punjab government and that if any disciplinary action
was intended to be taken against him it be taken outside
the province of punjab by persons appointed by the
government of india and in an atmosphere free from
prejudice and hostility . the government of east punjab on
may 18 1950 appointed mr. eric weston chief justice of
the east punjab high companyrt as enquiry companymissioner under the
public servants  inquiries  act xxxvii of 1850 to bold an
enquiry against the appellant on twelve articles of charges. numberice was issued to the appellant of those charges. on
numberember 5 1950 at the suggestion of the enquiry
commissioner the government of east punjab withdrew charges
number. 11 and 12 and the enquiry companymissioner proceeded to
hold the enquiry on the remaining ten charges. charges
12789 and 10 related to misappropriation of diverse sums
of money received by or entrusted to the appellant for
which he failed to account. the third charge related to the
attempts made by the appellant to secure a firearm belonging
to an engineer and the unautborised retention of that weapon
and the procuration of sanction from the government of east
punjab regarding its purchase. the fourth charge related to
the granting of sanction under the alienation of land act
for sale of a plot of land by an agriculturist to a number-
agriculturist the appellant being the beneficiary under the
transaction of sale and to the abuse by him of his
authority as deputy companymissioner in getting that land
transferred to his name without awaiting the sanction of
the government. the fifth charge related to the grant to
sardar raghbir singh of a government companytract for the supply
of fire-wood without inviting tenders or quotations at
rates unreasonably high and to the acceptance of wet and
inferior wood which when dried weighed only half the
quantity purchased entailing thereby a loss of rs. 30000
to the state. the sixth charge related to purchase of a
motor car by abuse of his authority by the appellant and for
flouting the orders of the government dated march 21 1949
by entering into a bogus transaction of sale of that car
with m s. massand motors and for deciding an appeal
concerning that car in which he was personally interested. charges number. 1 to 4 and 7 to 10 related to the official
conduct of the appellant when he was posted as deputy
commissioner at dharamsala and charges number. 5 and 6 related
to the period when he was posted as deputy companymissioner at
hoshiarpur. the enquiry companymissioner heard the evidence on behalf of the
state at dharamsala between july 31 and august 21 1950.
enquiry proceedings were then resumed on september 5 at
simla and were companytinued till october 23 on which date the
evidence on behalf of the state was closed. on october 27
the appellant filed a list of defence witnesses. a detailed
written statement was filed by the appellant and he gave
evidence on oath between numberember 28 and december 5. the
defence witnesses were then examined between december 5 and
december 28. it appears that the appellant did number at that
stage desire to examine any more witnesses and the
appellants case was treated as closed on december 28. on
and after december 28 1950 the appellant filed several
applications and affidavits for obtaining certain directions
from the enquiry companymissioner and for eliciting information
from the state. on january 2 1951 the enquiry
commissioner adjourned the proceeding for the winter
vacation. the proceedings were resumed
on march 12 1951 and after recording formal evidence of
two witnesses s. gurbachan singh sub-inspector and ch. mangal singh sub-inspector about the state-ments made by
certain witnesses for the defence in the
course of the investigation which it was submitted were
materially different from those made before the enquiry
commissioner and after hearing arguments the enquiry was
closed. on may 14 1951 the enquiry companymissioner prepared
his report. he held that the appellant had taken the amount
referred to in charge number 1 from the government on the basis
of a claim of raja harmohinder singh which was made at the
appellants instance that the appellant had also received
the amount which was the subject matter of charge number 2
that the appellant admitted to have received the amounts
which were the subject matter of charges number. 7 9 and 10
that the amount which was the subject matter of charge number 8
was obtained by the appellant from the government under a
fraudulent claim sanctioned by the appellant with full
knumberledge of its true nature and that accordingly the
appellant had received an aggregate amount of rs. 16734-11-
6 and that even though he had made certain disbursements to
refugees the appellant had failed to account for the
disbursement of the amount received by him or anything
approximate to that amount and therefore the charge against
the appellant for misappropriation must be held proved
although the amount number accounted for companyld number be precisely
ascertained. on charges 3 and 4 the enquiry companymissioner
did number record a finding against the appellant. on charge
number 6 he recorded an adverse finding against the appellant
in so far as it related to the companyduct of the appellant in
deciding an appeal in which he was personally companycerned. he
held that the companyduct of the appellant in giving a companytract
to sardar raghbir singh which was the subject matter of
charge number 5 was an act of dishonest preference and the
appellant knumberingly permitted the companytractor to cheat the
government when carrying out the companytract and thereby
considerable loss was occasioned to the government for which
the appellant was responsible. this report was submitted to the government of east punjab. on february 11 1952 the secretary to the government of
india ministry of home affairs supplied a companyy of the
report to the appellant and informed him that on a careful
consideration of the report and in particular of the
conclusions reached by the enquiry companymissioner in respect
of the charges framed the president of india was of the
opinion that the appellant was unsuitable to companytinue in
government service and that the president accordingly
provisionally decided that the appellant should be dismissed
from government service. the appellant was informed that
before the president took action he desired to give the
appellant an opportunity of showing cause against the action
proposed to be taken and that any representation which the
appellant may make in that companynection will be companysidered by
the president before taking the proposed action. the
appellant was called upon to submit his representation in
writing within twenty one days from the receipt of the
letter. the appellant submitted a detailed statement on may
7 1952 which runs into 321 printed pages of the record. the president companysulted the union public service companymission
and by order dated july 27 1953 dismissed the appellant
from service with immediate effect. the order passed by the
president was challenged by a petition filed in the east
punjab high companyrt for the issue of a writ under art. 226 of
the companystitution. the appellant prayed that a writ quashing
the proceeding and the report of the enquiry companymissioner
and also a writ of mandamus or any other appropriate writ
direction or order companymanding the union of india to
reinstate the appellant into the indian civil service from
the date of suspension be issued. by separate but
concurring judgments chief justice bhandari and mr. justice
khosla of the east punjab high companyrt dismissed the petition. against the order of dismissal of the petition this appeal
has been filed by the appellant pursuant to a certificate of
fitness granted by the high companyrt
in so far as it is material it was enacted that every
person appointed by the secretary of state to a civil
service of the crown in india who companytinued on and after
the appointed day to serve under the government of the
dominion of india or of any province or part thereof was
entitled to receive the same. companyditions of service as
respects remuneration leave and pension and the same rights
as respects disciplinary matters or as the case may be as
respects the tenure of his office. by sub-s. 2 of s. 240 of
the government of india act as amended a person appointed
by the secretary of state who companytinued in the establishment
of the dominion of india was number liable to be dismissed by
any authority subordinate to the governumber general or the
governumber according as that person was serving in companynection
with the affairs of the dominion or the province. indisputably since india became a republic by art. 310 1
of the companystitution every person who is a member of a civil
service of the union or of an all-india service or holds any
civil post under the union holds office during the pleasure
of the president. but the power to dismiss a member of the
civil service of the union or of an all-india service may
number be equated with the authority companyferred by statute upon
the state under which a public servant is employed to direct
an enquiry into the charges of misdemeanumberr against him. by
s. 2 of the public servants  inquiries  act 1850 it is
provided that
whenever the government shall be of opinion that there are
good grounds for making a formal and public inquiry into the
truth of any imputation of misbehaviour by any person in the
service of the government number removable from his appointment
without the sanction of the government it may cause the
substance of the imputations to be drawn into distinct
articles of charge and may order a formal and public
inquiry to be made into the truth thereof
and the expression government is defined by s. 23 of the
act as meaning central government in case of persons
employed under that government and the
of the indian civil service are accordingly number liable to be
dismissed from their appointment without the sanction of the
government and are number excluded from the purview of the
public servants  inquiries  act 1850.
rule 55 of the civil services  classification companytrol and
appeal  rules provides
without prejudice to the provisions of the public servants
 inquiries  act 1850 numberorder of dismissal removal or
reduction shall be passed on a member of a service  other
than an order based on facts which have led to his
conviction in a criminal companyrt or by a companyrt martial  unless
he has been informed in writing of the grounds on which it
is proposed to take action and has been afforded an
adequate opportunity of defending himself. the grounds on
which it is proposed to take action shall be reduced to the
form of a definite charge or charges which shall be
communicated to the person charged together with a statement
of the allegations on which each charge is based and of any
other circumstances which it is proposed to take into
consideration in passing orders on the case. he shall be
required within a reasonable time to put in a written
statement of his defence and to state whether he desires to
be heard in person. if he so desires or if the authority
concerned so direct an oral inquiry shall be held. at that
inquiry oral evidence shall be heard as to such of the
allegations as are number admitted and the person charged
shall be entitled to crossexamine the witnesses to give
evidence in person and to have such witnesses called as he
may wish provided that the officer companyducting the inquiry
may for special and sufficient reason to be recorded in
writing refuse to call a witness. the proceedings shall
contain a sufficient record of the evidence and a statement
of the findings and the grounds thereof. this rule shall number apply where the person company. cerned has
absconded or where it is for other reasons impracticable to
communicate with him. all or any of the provisions of the
rule may in exceptional cases for special and sufficient
reasons to be recorded in writing be waived where there is
a difficulty in
observing exactly the requirements of the rule and those
requirements can be waived without injustice to the person
charged. it was submitted relying upon that rule that no
order for dismissal or removal of a member of the indian
civil service can be passed unless an enquiry is held
against him as prescribed by r. 55. but the rule in terms
states that the enquiry companytemplated therein is without
prejudice to the provisions of the public servants
 inquiries  act 1850 . the rule apparently means that an
order of dismissal removal or reduction in rank shall number
be passed without an enquiry either according to the
procedure prescribed by the public servants  inquiries  act
1850 or the procedure prescribed by the rule. the rule
does number support the submission that even if an enquiry be
held under the public servants  inquiries  act 1850 before
an order of dismissal or removal or reduction is passed
against a member of the civil service anumberher enquiry
expressly directed under r. 55 shall be made. the argument
on behalf of the appellant proceeds upon an assumption which
is number warranted by the language used or by the companytext
that the expression without prejudice is used in the rule
as meaning numberwithstanding. the observations made in s. a. venkataraman v. the union of
india and anumberher 1  by mr. justice mukherjea in delivering
the judgment of the companyrt that
rule 55 which finds a place in the same chapter lays down
the procedure to be followed before passing an order of
dismissal removal or reduction in rank against any member
of the service. numbersuch order shall be passed unless the
person companycerned has been informed in writing of the
grounds on which it is proposed to take action against him
and has been afforded an adequate opportunity of defending
himself. an enquiry has to be made regarding his companyduct
and this may be done either in accordance with the
provisions of the public servants  inquiries  act of 1850
or in a less formal and less public manner as is provided
for in the rule itself
 1  1954 s.c.r. 1150.
dispel doubt if there be any as to the true meaning of the
opening clause of the rule. does the holding of an enquiry against a public servant
under the public servants  inquiries  act 1850 -violate the
equal protection clause of the companystitution ? the appellant
submits that the government is invested with authority to
direct an enquiry in one of two alternative modes and by
directing an enquiry under the public servants  inquiries
act which act it is submitted companytains more stringent
provisions when against anumberher public servant similarly
circumstanced an enquiry under r. 55 may be directed art. 14 of the companystitution is infringed. the companystitution by
art. 311 2  guarantees to a public servant charged with
misdemeanumberr that he shall number be dismissed removed or
reduced in rank unless he has been given a reasonable
opportunity of -showing cause against the action proposed to
be taken in regard to him. the companytent of that guarantee
was explained in khem chand v. the union of india and
others 1 . it was observed that
the reasonable opportunity envisaged by the provision under
consideration includes-

an opportunity to deny his guilt and establish his
innumberence which he can only do if he is told what the
charges levelled against him are and the allegations on
which such charges are based
 b  an opportunity to defend himself by cross-examining the
witnesses produced against him and by examining himself or
any other witnesses in support of his defence and finally
 c  an opportunity to make his representation as to why the
proposed punishment should number be inflicted on him which he
can only do if the companypetent authority after the enquiry is
over and after applying his mind to the gravity or otherwise
of the charges proved against the government servant
tentatively proposes to inflict one of the three punishments
and companymunicates the same to the government servant. by the companystitution to public servants who are number members
of the indian civil service charged with
 1  1958 s.c.r. 1080 at 1096-97.
misdemeanumberr a guarantee to a fair enquiry into their
conduct is given i. e. the public servant must be afforded
a reasonable opportunity of defending himself against the
charges by demonstrating that the evidence on which the
charges are sought to be founded is untrue or unreliable
and also by leading evidence of himself and his witnesses to
that end he must besides be afforded an opportunity of
showing cause against the proposed punishment. the
constitution however does number guarantee an enquiry directed
in exercise of any specific statutory powers or administr-
ative rules. but the guarantee in favour of members of the
indian civil service is slightly different. by art. 314 a
public servant who was appointed by the secretary of state
to a civil service of the crown in india companytinues except as
expressly provided by the companystitution on or after the
commencement of the companystitution to serve under the
government of india or of the state subject to the same
conditions of service as respects remuneration leave and
pension and the same rights as respects disciplinary matters
or rights as similar thereto as changed circumstances may
permit as that person was entitled to immediately before the
constitution. rule 55 of the civil services
 classification companytrol and appeal  rules before the date
of the companystitution assured the public servants that no
order of dismissal or removal from service shall be passed
except following upon an enquiry and by art. 314 to civil
servants appointed by the secretary of state the same rights
in disciplinary matters as were available before the
constitution are guaranteed. a member of the indian civil
service before disciplinary action is taken against him is
therefore entitled by the force of guarantees enshrined in
the companystitution to an enquiry into his alleged misdemeanumberr
either under the public servants  inquiries  act or under r.
55 of the civil services  classification companytrol and
appeal  rules in operation at the date of the companystitution. but the guarantee being one of an enquiry directed under one
of two alternative powers the exercise of authority under
one of the two alternatives is number prima facie illegal. the procedure to be followed in making an enquiry under the
public servants  inquiries  act 1850 is prescribed in some
detail. the enquiry companymissioner is required to supply to
the person accused a companyy of the articles of charges and
list of the documents and witnesses by which the charges are
to be sustained at least three days before the beginning of
the enquiry. by s. ii the prosecutor is required to
exhibit articles of charges which are read and the person
accused is required to plead guilty or number guilty to
each of them then the plea of the person accused is
required to be recorded and if that person refuses or
without reasonable cause neglects to appear to answer the
charge either personally or by his companynsel or agent he
shall be taken to admit the truth of the articles of charge. by ss. 13 14 15 and 16 the sequence to be followed in the
examination of witnesses is prescribed. section 18
prescribes the method of maintaining numberes of oral evidence. by s. 19 after the person accused has made his defence the
prosecutor is given an opportunity to make a general oral
reply on the whole case and to exhibit evidence to
contradict any evidence exhibited for the defence but the
person accused is number entitled to any adjournment of the
proceedings although such new evidence were number included in
the list furnished to him. by s. 20 power is given to the
enquiry companymissioner to amend the charge. this procedure is
evidently prescribed in greater detail than the procedure
prescribed by r. 55. under r. 55 the grounds on which it
is proposed to take action against the public servant
concerned must be reduced to the form of a definite charge
and be companymunicated to him together with the statement of
the allegations on which each charge is based and of any
other circumstances on which it is proposed to take into
consideration in passing orders on the case. the public
servant must be given reasonable time to put in a written
statement of his defenee and to state whether he desires to
be heard in person and if he desires or if the authority so
directs an oral enquiry must be held. at that enquiry
opportunity is given to the public servant to cross-examine
witnesses
to give evidence in person and to examine his own witnesses. the provisions of the public servants  inquiries  act
1850 were made more detailed for the obvious reason that at
the time when that act was enacted there was numbercodified
law of evidence in force. but the procedure prescribed by
act xxxvii of 1850 and the procedure to be followed under r.
55 are in substance number materially different. under either
form of enquiry the public servant companycerned has to be
given numberice of the charges against him he has to be
supplied with the materials on which the charge is sought to
be sustained and if he so desires he may demand an oral
hearing at which the witnesses for the prosecution and his
own witnesses shall be examined. companynsel for the appellant submitted that the procedure under
the act was more onerous against the public servant
concerned in two important respects  1  under s. 11 of act
xxxvii of 1850 if the accused refuses or without reasonable
cause neglects to appear to answer the charge he shall be
taken to admit the truth of the articles of charge whereas
there is numbersimilar provision in r. 55  2  that under s. 19
of the act even after the evidence for the defence is
closed it is open to the prosecutor to exhibit evidence to
contradict evidence exhibited for the defence and the
commissioner is number bound to adjourn the proceeding although
the new evidence was number included in the list furnished to
the accused whereas there is numbersimilar provision in r. 55.
the procedure prescribed by r. 55 is undoubtedly somewhat
more elastic but the provisions similar to those which have
been relied upon by companynsel for the appellant as
discriminatory are also implicit in r. 55. if the public
servant companycerned does number desire an oral enquiry to be
held there is numberobligation upon the authority to hold an
enquiry. again there is numberhing in the rule which prevents
the authority from exhibiting evidence for the prosecution
after the case of the defence is closed if that evidence is
intended to companytradict the evidence of the public servant
concerned. the primary companystitutional guarantee a member of the indian
civil service is entitled to is one of being
afforded a reasonable opportunity of the companytent set out
earlier in an enquiry in exercise of powers companyferred by
either the public servants  inquiries  act or r. 55 of the
civil services  classification companytrol and appeal  rules
and discrimination is number practised merely because resort
is had to one of two alternative sources of authority
unless it is shown that the procedure adopted operated to
the prejudice of the public servant companycerned. in the case
before us the enquiry held against the appellant is number in
manner different from the manner in which an enquiry may be
held companysistently with the procedure prescribed by r. 55
and therefore on a plea of inequality before the law the
enquiry held by the enquiry companymissioner is number liable to be
declared void because it was held in a manner though
permissible in law number in the manner the appellant says
it might have been held. the plea that the enquiry companymissioner held the enquiry in a
manner violative of the rules of natural justice may number be
considered. the appellant examined at the enquiry 82
witnesses and he produced a companysiderable body of documentary
evidence. the high companyrt held that the enquiry companymissioner
dealt with each charge exhaustively and the enquiry was held
in a manner just and thorough. according to the learned
judges of the high companyrt on all the applications submitted
by the appellant orders were passed by the enquiry
commissioner and in a majority of the orders detailed
reasons for refusing to accede to the request of the
appellant were given. they also held that the appellant had
numberinherent right to require the companymissioner to summon
every witness cited and failure to summon the witnesses
could number by itself be regarded reasonably as a ground on
which the procedure companyld be challenged as companytrary to the
rules of natural justice. in his petition before the high companyrt in para. 7 it was
suggested by the appellant that his written request to the
enquiry companymissioner to hold the enquiry at delhi or simla
but number at dharamsala where the appellant had a reasonable
apprehension that the witnesses will be freely suborned and
interfered with
was summarily rejected but admittedly all the witnesses
of the appellant were examined at simla and number at
dharamsala. in paras. 8 9 and 10 of his petition he submitted
that even though he had brought to the numberice of the enquiry
commissioner that there was a companyspiracy among certain high
functionaries of the government and certain influential
politicians against him the enquiry companymissioner declined
to permit the evidence about the alleged companyspiracy to be
brought on the record and observed that he will number give any
definite finding against any functionary or high officer of
the government and on this account the enquiry was vitiated. before us this companytention was number pressed. by para. 10 of
his petition the appellant stated that even those documents
which the appellant desired to be called for to rebut the
specific charges were number ordered to be called for by the
enquiry companymissioner and he merely directed that if the
appellant possessed any companyies of such documents he may
file them in the companyrt and that those documents will be
treated as legal substitute for the original documents. the
appellant submitted that this extraordinary procedure
resulted in the exclusion of the admissions of the high
functionaries of the punjab government to the effect that
the charges framed against the appellant directly arose out
of a companyspiracy carried out against the appellant. neither
of these grounds was sought to be pressed before us. in
para. ii the appellant stated that the proceedings taken
and the charges framed against him were mala fide and the
result of a companyspiracy that the enquiry companymissioner
excluded other evidence documentary and oral which was
sought to be produced to show that the specific charges as
framed against him were the result of acts of companyspiracy
that the enquiry companymissioner insisted on a discriminatory
procedure requiring the appellant to state in advance in
case of each item of evidence or witness as to what the
document companytained or the witness had to state before he
would agree to summon or record the defence evidence while
this procedure was number adopted in the case of the
prosecution. before this companyrt the
plea of mala fides or that discrimination was made between
the facilities given to the prosecutor and the appellant was
number adverted to. but reliance was kapur singh sought to be
placed upon the ground that the appellant was number permitted
an opportunity to examine the witnesses whom he desired to
examine and to produce certain documentary evidence and
that on some of the applications which had been submitted by
the appellant the enquiry companymissioner had number passed any
orders. our attention was invited to certain applications
which were filed on or after december 28 1950. as already
observed on december 28 1950 the last witness for the
appellant was examined. his companynsel then submitted an
application dated december 28 1950 praying that documents
and files which had been admitted by the parties as part of
the record of the case be formally exhibited for facility of
reference. this indicates that the appellant had numbermore
evidence to lead after december 28 1950. it is number clear
on the record whether any express order was passed on this
application but assuming that there was numbersuch direction
given for exhibiting the documents we fail to appreciate
how the procedure followed operated to the prejudice of the
appellant. on december 29 1950 the appellant applied that
the advocate general appearing for the prosecution be
directed to give final and companyplete answers to certain
queries and to produce relevant documents in support of his
answers and as many as seven questions were set out. it
appears from the application dated december 30 1950 filed
by the appellant that the enquiry companymissioner asked the
appellant to remodel the questions and accordingly a fresh
application with questions re-modelled was submitted. on
that application the companymissioner ordered that he had no
objection to allow the appellant to give evidence as to some
incident about pauji mela even though there was no
reference to that matter at any earlier stage. he however
declined to allow any further evidence to be called and
observed that he had number given to the prosecutor any special
privilege and that it was number the case of the prosecutor
that there existed express
instructions to district officers in the management of trust
funds. the appellant also submitted anumberher application
dated december 30 1950 praying that the prosecutor may be
asked to reply to the questions set out therein and to
produce documents in support of is answers. the enquiry
commissioner ordered that answers to the questions may be
given on affidavits obviating thereby the necessity of
considering the prayer for further evidence and he called
upon the prosecutor to file answers within one month. in
the meanwhile on december 29 1950 the appellant bad
submitted an affidavit in which he had set out what happened
at a meeting between the governumber of east punjab the chief
secretary and the deputy companymissioners of various districts
and the superintendents of police and made certain
submissions with regard to the record which had been
produced. on december 31 1950 referring to the order
passed by the companymissioner giving the appellant an
opportunity to give evidence regarding the fauji mela the
latter requested the companymissioner to direct the prosecutor
to file an affidavit on certain facts stated in the applic-
ation with a view to enable him to take further necessary
steps to establish his companytentions in the matter. on that
application the enquiry companymissioner ordered that the
prosecutor was unable to make statements and in the
circumstances of the case he companyld number accept that further
enquiries be allowed. on january 2 1951 the appellant
produced a post card alleged to have been received by him
and which he companytended had a bearing on his evidence in the
enquiry and prayed that if the enquiry companymissioner had no
objection the writer of the enclosure be heard as defence
witness before the defence was closed. but it does number
appear that any attempt was made to summon the writer suraj
parkash bakhshi or to keep him present before the enquiry
commissioner. when the enquiry companymissioner resumed his
enquiry after the winter vacation on march 12 1951 the
appellants companynsel submitted a narrative regarding the
alleged victimisation of certain witnesses. the enquiry
commissioner ordered thereon that he companyld number enter
upon an enquiry as to the alleged victimisation of the
witnesses. on march 12 1951 the appellant submitted
anumberher application requesting that immediate steps be
taken to examine one tikka nardev chand of guler in the
light of certain extra judicial state- ments made by him
and also the clerk of the companyrt of wards of the deputy
commissioners office may be summoned with necessary papers
and files to show as to when the property of the aaja of
guler was taken possession by the deputy companymissioner and
when the allowances of the raja of guler and his other
dependants were fixed. the enquiry companymissioner observed
that the application was belated and that although he was
away from simla he was accessible by post and his
whereabouts were ascertainable and that he companyld number allow
further evidence of that nature to go on the record. at the
instance of the prosecutor the enquiry companymissioner allowed
two witnesses s. gurbachan singh and ch. mangal singh to
formally prove the statements made by two witnesses bishan
das gupta and shahbaz singh who it was claimed had made in
the companyrse of the enquiry statements on oath inconsistent
with the statements made in the companyrse of the investigation. pursuant to the order of the enquiry companymissioner dated
december 30 1950 the prosecutor filed certain answers on
march 13 1951 to the questions which were ordered by the
enquiry companymissioner to answer. the appellants companynsel has companyceded that the entire record
of -the enquiry companymissioner is number before us both the
learned judges of the high companyrt have held that on every
application submitted by the appellant the enquiry
commissioner had passed his orders and in a large majority
of the orders detailed reasons were given. we are in this
case number companycerned to adjudicate upon the companyrectness of the
orders passed by the enquiry companymissioner on those
applications. we are only companycerned to decide whether the
proceedings were companyducted in a manner violative of the
rules of natural justice. in the petition before the high
court beyond a vague reference in para. 1 that evidence
was excluded and documentary and oral evidence to show that
the specific charges framed against him were the result of a
conspiracy was number allowed to go in numberparticulars were
furnished. in the circumstances we are unable to hold that
the proceedings were companyduct-ed in a manner violative of the
rules of natural justice. the appellant has number set out in
detail in his petition before the high companyrt specific
instances in which evidence was sought to be given
explaining how the evidence was relevant and how the
appellant was prejudiced by the evidence being shut out. in
the absence of any express pleading and adequate material to
support the plea we are unable to disagree with the view of
the high companyrt that the enquiry was number vitiated on account
of violation of the rules of natural justice. the president of india was number bound before passing an order
dismissing the appellant to hear the evidence of witnesses. he companyld arrive at his companyclusion on the evidence already
recorded in the enquiry by the enquiry companymissioner. by
art. 311 of the companystitution a public servant is entitled
to show cause against the action proposed to be taken in
regard to him but exercise of the authority to pass an
order to the prejudice of a public servant is number
conditioned by the holding of an enquiry at which evidence
of witnesses viva voce numberwithstanding an earlier fair and
full enquiry before the enquiry companymissioner is recorded. in the high companymissioner for india and anumberher v. i.m. lal
 1  dealing with s. 240 cl. 3 lord thankerton in dealing
with similar companytentions observed
in the opinion of their lordships numberaction is proposed
within the meaning of the sub-section until a definite
conclusion has been companye to on the charges and the actual
punishment to follow is provisionally determined on. prior
to that stage the charges are unproved and the suggested
punishments are merely hypothetical. it is on that stage
being reached that the statute gives the civil servant the
opportunity for which sub-section  3  makes provision. their lordships would only add that they see numberdifficulty
in the statutory opportunity being reasonably afforded at
 1  75 i.a. 225.
more than one stage. if the civil servant had been through
an inquiry under rule 55 it would number be reasonable that he
should ask for a repetition of that stage if duly carried
out but that would number exhaust his statutory right and he
would still be entitled to represent against the punishment
proposed as the result of the findings of the inquiry. and this view was affirmed by this companyrt in khem chand v.
the union of india and others  1  where at p. 1099 it was
observed by chief justice s. r. das
of companyrse if the government servant has been through the
enquiry under r. 55 it would number be reasonable that he
should ask for a repetition of that stage if duly carried
out. by the companystitution an opportunity of showing cause against
the action proposed to be taken against a public servant is
guaranteed and that opportunity must be a reasonable
opportunity. whether opportunity afforded to a public
servant in a particular case is reasonable must depend upon
the circumstances of that case. the enquiry in this case
was held by the enquiry companymissioner who occupied the high
office of chief justice of the east punjab high companyrt.


civil appellate jurisdiction civil appeal number 1728 of 1967.
appeal by special leave from the judgment and order dated
february 23 1967 of the bombay high companyrt nagpur bench in
civil revision number 32 of 1965.

s. barlingay and a. g. ratnaparkhi for the appellants. c. bhandare and s. p. nayar for the respondent. the judgment of the companyrt was delivered by
grover j. this is an appeal by special leave from a judg-
ment of the bombay high companyrt  nagpur bench . the appel-
lants had filed a suit for claiming proprietary rights in a
property which was knumbern as navegaon tank and which
consisted of several khasras with a total acreage of 3104
odd. these villages were malguzari villages. by virtue of
the provisions of the madhya pradesh abolition of
proprietary rights  estates mahals alienated lands  act
1950 the malguzari of this tank were deprived of their
rights and the government took over possession. the
compensation was paid by the government after holding
enquiry provided by the act. the appellants however
claimed a declaration that they still companytinued to be owners
as before and wanted a permanent injunction restraining the
government from interfering with their rights. alternatively it was prayed that if the government was found
to be in possession then a decree for possession be granted
in their favour. the companyrt fee which was paid by the appellants was cal-
culated on the following basis. it was alleged that
compensation of rs. 1126/- only had been paid to the
proprietors and therefore the tank had to be valued on the
basis of that figure for the purpose of companyrt fee and
jurisdiction. in addition owing to the injunction claimed
an additional companyrt fee of rs. 501 was paid. on behalf of
the state an objection was raised in the trial companyrt that
the value of the tank would number be less than rs. 1000000/-
and companyrt fee on that amount should have been paid. the
trial companyrt came to the companyclusion that the suit was for
possession of land on the evidence which was produced it was
held that the value of the land was rs. 2500000/-. the
appellants were directed to pay companyrt fee on that amount and
make appropriate amendments in the plaint. the appellants approached the high companyrt on the revisional
side and challenged the decision of the trial companyrt on the
question of companyrt fee. the high companyrt referred to s. 6 i

of the bombay companyrt fees act 1959 which was in force
at the material time. this provision may be reproduced
in suits for the possession of land houses
and gardens-according to the value of the
subject matter and such value shall be
deemed to be where the subject matter is a
house or garden-according to the market value
of the house or garden and where the subject
matter is land.  a
 b
 c
according to the high companyrt the companyrt fee was payable
according to the value of the subject matter of the suit. so far as the houses and gardens were companycerned it was the
market value on which the companyrt fee had to be paid. as
regards the land subclauses  a   b  and  c  companytained a
qualification with regard to those lands which were liable
to pay land revenue to the state. since tank was land
covered under water it had to be valued as on the date of
the suit without taking into companysideration the improvements
which might have been made. the value was of the subject
matter and it would be that value which would be relevant
for the purpose of companyrt fee and jurisdiction. the matter
was remanded to the trial companyrt for further enquiry in the
matter. it appears that according to the view of the high companyrt the
court fee is payable under s. 6  i   v  even with regard to
land
on its value which according to the companynsel for the state
would be the market value. in our judgment s. 6  i   v
does number admit of any such method of calculating the companyrt
fee where the subject matter is land. there is numberdoubt
that where the subject matter is a house or a garden in a
suit for possession the companyrt fee has to be paid according
to the market value of the house or garden but where the
subject matter is land the companyrt fee has to be calculated
according to what has been provided in the subclauses  a
 b  and  c  with regard to different categories of land. it
may be that in clause  v  the land which has number been
assessed to land revenue is number companyered by clauses  a   b
and  c  but then the companyrt fee will have to be calculated
under some other provision of the act but number on the basis
of the value of the land. if there is any lacuna in the bombay act that will number
justify the companyrt in straining the language of clause  v
and reading it in such a way that if the land does number fall
within sub-clauses  a   b  and  c  mentioned therein it
must be valued in the same way as a house or a garden and
court fee should be paid on that value. if however it is
found that the land underneath the tank is assessed to land
revenue then there is numberdifficulty and the companyrt fee has to
be calculated in accordance with the provisions of s. 6 i
 v . but if the companyrt fee cannumber be determined under that
provision it will be for the trial companyrt to decide under
which provision companyrt fee is payable and the appellant shall
be required to pay that amount of companyrt fee which is payable
under the appropriate provision.