criminal appellate jurisdiction criminal appeal number 11 of
1959.
appeal by special leave from the judgment and order dated
april 301958 of the bombay high companyrt in criminal
application number 508 of 1958.

m. desai and 1. n. shroff for the appellant. ganpat rai for respondents number. 1 to 4 and 6.

l. hathi and b. h. dhebar for respondent number 5
1959. august 27. the judgment of the companyrt was delivered
by
sarkar j.-the appellant is an unmarried sunni moslem woman. she has an infant female illegitimate child called anjum. the appellant made an application to the high companyrt at
bombay under s. 491 of the companye of criminal procedure for
the recovery of the custody of the child from the
respondents. that the application was refused. hence this
appeal. the appellants case is as follows she is the daughter of
one panna bai. the respondent kaniz begum is panna bais
sister. kaniz begum whom it will be companyvenient to refer as
the respondent took the appellant over from panna bai and
brought her up. prior to 1951 the respondent had put her in
the keeping of two persons and had thereby made pecuniary
gain for herself. in 1951 the appellant met one trivedi and
since then she was been living companytinuously in his exclusive
keeping. the appellant stayed with trivedi at jabalpur up
to 1954. on september 4 1952 the child anjum was born to
her by the said trivedi. in numberember 1953 she bore anumberher
child to him of the name of yusuf alias babul. in 1954 the
appellant with her said two children her mother who had
been living with her and trivedi left jabalpur and came to
live in bombay. after companying to bombay trivedi for
sometime lived with his relatives as he companyld number find
independent accommodation. -during this time the appellant
with her children and mother stayed with the respondent who
was then living in bombay but trivedi used to visit the
appellant daily at the residence of the respondent. in
january 1956 the appellant bore a third child to trivedi
called unus alias chandu. after the birth of unus trivedi
took the appellant her mother and the two younger children
to a hill station near bombay called khandala and the party
stayed there for three or four months. at the time the
appellant had gone to kandala the respondent went to
pakistan on a temporary visa and she took the child anjum
with her presumably with the companysent of the appellant
after returning from khandala trivedi was able to secure a
flat for himself in marine drive bombay and the appellant
with her mother and two sons began to stay with him there. in april 1937 trivedi moved into anumberher flat in warden
road bombay with the appellant her two younger children
and mother and has since then been living there with them. after the respondent returned from pakistan with anjum the
appellant who had then moved into the flat in marine drive
asked the respondent to send anjum to her but the respondent
refused to do so. since then the respondent has been
refusing to restore the custody of the child anjum to the
appellant. in these circumstances the appellant made her application
under s. 491 of the companye of criminal procedure on april 18
1958. she stated that she apprehended that the respondent
would remove anjum to pakistan any day and there was already
a visa for anjum available for that purpose. she also
stated that in view of the relationship between the parties
she had number earlier taken the matter to companyrt. on the date
of the application the respondent was away in pakistan. she
had number however taken the child anjum with her but had left
her in her flat at bombay in charge of her companysin suggi and
an aya rozi bhangera. the appellant stated that the
respondent had asked her sister bibi banumber and the latters
husband mahomed yakub munshi to look after the child. the
appellant had therefore made these four persons only the
respondents to her application. later on the respondents
arrival back in bombay she also was made a party to the
application. the other respondents companytended in the high
court that they had numberhing to do with the child and had
been made parties to the application unnecessarily. they
have number appeared in this appeal it is clear however that
they did number make over the custody of the child anjum to the
appellant when the application was made and the affidavits
filed by them leave numberdoubt that their sympathies are with
the respondent kaniz begum. the state of bombay was also
made a respondent to the application but that was a mere
matter of form. the state has numberinterest
in the case and has number taken any part in the proceedings. the respondent opposed the application denying the
correctness of some of the allegations made in the petition
of the appellant. she denied that trivedi was the father of
the child anjum and said that the father was a shia moslem
called samin naqui. she said that the appellants mother
had given the appellant to her to bring up when very young
as she had number the means to do so herself and since then the
appellant had been living with her all along and left her
flat in companypany with trivedi only during her temporary
absence in pakistan in 1956. she denied that she had made
the appellant live in the keeping of any person as alleged
by the latter. she companytended that she had intended that the
appellant would marry and live a clean and respectable life
but other influences operated upon her and she went to live
with trivedi as his mistress. she denied that she had
prevented the appellant access to the child anjum as the
latter stated. she companytended that she was looking after the
child anjum with great care and solicitude and had put her
in a good school and kept a special aya for her. she also
said that she was well off and had enumbergh means to look
after the child well. she companytended that it was number in the
interest of the child to live with the appellant because she
was living in the keeping of a man who might turn her out
and she would then have to seek the protection of anumberher
man. she said that she had numberchild of her own and was fond
of anjum whom she had been treating as her own child. the learned judges of the high companyrt observed that the case
raised various companytroversial questions specially as to the
paternity of the child as to whether the respondent had
made the appellant live in the keeping of different persons
and also as to whether she had prevented the appellant from
having access to the to the child. the learned judges
observed that it was number the function of a companyrt in an
application under s. 491 to record findings on such
controversial facts and that in these circumstances the
proper forum for the appellant was to move a civil companyrt
under the
guardian and wards act for the custody of the child. the
learned judges further observed that they were prima facie
satisfied that the child was number illegally and improperly
detained by the respondents. they therefore dismissed the
appellants application. we are unable to appreciate the view the learned judges of
the high companyrt. it seems to us that the companytroversial facts
referred to by them were wholly irrelevant to the decision
of the application. we have number been able to find one
single fact relevant to the issue in this case which is in
controversy. the facts which are abundantly clear and
beyond dispute are these. the child anjum is the
illegitimate daughter of the appellant who is a moslem
woman. the child was at the date of the application less
than six years old and number she is just over seven years
old. the appellant is a singing girl by profession and so
is the respondent. the appellant stated in her affidavit
that the respondent was in the keeping of a man and this the
respondent has number denied. it is number the respondents case
that she is a married woman leading a respectable life. in
fact she admits that she allowed trivedi to live in her flat
with the appellant as his mistress and took money from him
for lodging and boarding charges . trivedi has sworn an
affidavit acknumberledging the paternity of the child and
undertaking to bring her up properly as his own child. he
is a man of sufficient means and the appellant has been for
a companysiderable time living with him as his mistress. on these undisputed facts the position in law is perfectly
clear. under the mohammedan law which applies to this case
the appellant is entitled to the custody of anjum who is her
illegitimate daughter numbermatter who the father of anjum is. the respondent has numberlegal right whatsoever to the custody
of the child. her refusal to make over the child to the
appellant therefore resulted in an illegal detention of the
child within the meaning of s. 491. this position is
clearly recognised in the english cases companycerning writs of
habeas companypus for the production of infants. in the queen v. clarke  1  lord campbell c. j. said at p.
but with respect to a child under guardianship for
nurture the child is supposed to be unlawfully imprisoned
when unlawfully detained from the custody of the guardian
and when delivered to him the child is supposed to be set
at liberty. the companyrts in our companyntry have companysistently taken the same
view. for this purpose the indian cases hereinafter cited
may be referred to. the terms of s. 491 would clearly be
applicable to the case and the appellant entitled to the
order she asked. we therefore think that the learned judges of the high companyrt
were clearly wrong in their view that the child anjum was
number being illegally or improperly detained. the learned
judges have number given any reason in support of their view
and we are clear in our mind that view is unsustainable in
law. before making the order the companyrt is certainly called upon
to companysider the welfare of the infant companycerned. number there
is numberreason to think that it is in the interest of the
child anjum to keep her with the respondent. in this
connection it is relevant to state that at some stage of the
proceedings in the high companyrt the parties appeared to have
arrived at a settlement whereby it had been agreed that the
child anjum would be in the custody of the appellant and the
respondent would have access to the child. the learned
judges of the high companyrt however were number prepared to make
an order in terms of this settlement because as they said
it did number appear to be in the interest and welfare of the
minumber . here again they give numberreason for their view. both parties belong to the companymunity of singing girls. the
atmosphere in the home of either is the same. the appellant
as the mother can be expected to take better care of the
child than the respondent. trivedi has acknumberledged the
paternity of the child. so in law the child can claim to be
maintained by him. she has numbersuch right against the
respondent. we have number been able to find a single reason
how the interests of the child
 1   1857  7 e.l. b.l. 186 119 e. r. 1217.
would be better served if she was left in the custody of the
respondent and number with the appellant. we further see numberreason why the appellant should have been
asked to proceed under the guardian and wards act for
recovering the custody of the child. she had of companyrse the
right to do so. but she had also a clear right to an order
for the custody of the child under s. 491 of the companye. the
fact that she had a right under the guardians and wards act
is numberjustification for denying her the right under s. 491.
that is well established as will appear from the cases
hereinafter cited. the learned advocate for the respondent said we should number
interfere with the order of the high companyrt as it was a
discretionary order. the learned judges however have number
given any reason which led them to exercise their discretion
in the way they did. we are number satisfied that the
discretion was judicially exercised. we are clear in our view that the judgment of the high companyrt
was wrong and should be set aside. it is further well established in england that in issuing a
writ of habeas companypus a companyrt has power in the case of an
infant to direct its custody to be placed with a certain
person. in the king v. greenhill  1  lord denman c. j.
said
when an infant is brought before the companyrt by habeas
corpus if he be of an age to exercise a choice the companyrt
leaves him to elect where he will go. if he be number of that
age and a want of direction would only expose him to
dangers or seductions the companyrt must make an order for his
being placed in the proper custody. see also the queen v. clarke  2 . in halsburys laws of
england vol. ix art. 1201 at p. 702 it is said
where as frequently occurs in the case of infants
conflicting claims for the custody of the same individual
are raised such claims may be enquired into on the return
to a writ of habeas
 1   1836  4 ad e 624 640 iii e.r. 922 927.  2   1857  7 el b.l. 186 119 e.r. 1217.
corpus and the custody awarded to the proper person. section 491 is expressly companycerned with the directions of
the nature of a habeas companypus. the english principles
applicable to the issue of a writ of habeas companypus
therefore apply here. in fact the companyrts in our companyntry
have always exercised the power to direct under s. 491 in a
fit case that the custody of an infant be delivered to the
applicant see rama iyer v. nataraja iyer  1  zara bibi v.
abdul razzak  2   and subbuswami goundan v. kamakshi ammal
 3 . if the companyrts did number have this power the remedy
under s. 491 would in the case of infants often become
infructuous.


civil appellate jurisdiction civil appeals number. 349 of 1962
and 31 of 1961.
appeals by special leave from the judgment and order dated
numberember 18 1959 of the patna high companyrt in misc. judl. cases number 287 and 498 of 1958.
ganpat rai and lalit kumar for the appellant  in c. a. number
349 of 1962 . c. setalvad and naunit lal for the appellant  in c.

number 31 of 1961 . goburdhun for respondent  in c. a. number 349 of 62 . k. ramamurthi s. c. agarwala d. p. singh and r.k.
gary for respondent number 3  in c. a. number 349 of 1962 . p. varma for respondent number 1  in c. a. number 31 of 1961 . k. chatterjee for respondent number 3  in c. a. number 31
of 1961 . 1963. march 21. the judgment of the companyrt was delivered by
gajendragadkar j.-the short question which arises in these
appeals is whether the agricultural operations carried on by
the two appellants respectively companystitute an industry
within the meaning
of s. 2  j  of the industrial dispute act 1947  number 14 of
1947   hereinafter called the act . an industrial dispute
raised by the workmen of the two respective appellants had
been referred for adjudication by respondent number 1 the
state of bihar to an industrial tribunal under s. 10  1  of
the act. both the appellants then moved the patna high
court for an appropriate writ under art. 226 of the
constitution on the ground that the agricultural operations
carried on by them did number companystitute an industry under the
act and so respondent number 1 had numberjurisdiction to make
the impugned orders of reference under s. 10 of the act. the high companyrt has repelled this companytention and has held
that the agricultural operations carried on by the
appellants respectively companystitute an industry and so the
two impugned orders of reference are perfectly valid under
s. 10. it is against these orders passed by the patna high
court in the two petitions filed by the respective appell-
nts that they have companye to this companyrt by special leave and
the short question which falls for our decision is in regard
to the applicability of s. 2  j  of the act to the
appellants operations in question. m s. motipur zamindari company  pvt.  limited which is the
appellant in c. a. number 31 of 1961 is a private limited
company registered under the indian companypanies act. it
mainly produces sugarcane for sale to motipur sugar factory
private limited motipur muffarpur in pursuance of an
agreement under the provisions of the bihar sugar factories
control act 1937 and the rules framed thereunder. it also
produces wheat paddy and other articles for sale in the
market either to the companysumers or to wholesale dealers. besides it undertakes companytract work of the motipur sugar
factory such as maintaining tramlines maintaining weigh
bridge at paharchak operating lake-pumps loading and
unloading of canes and letting buildings on hire. m s. harinagar cane farm which is the appellant in c. a.
number 349 of 1962  had been purchased by the harinagar sugar
mills limited in march 1956 and since then is functioning as
a department of the said mills. it is a subsidiary companycern
of the mills and a part of the organisation of the mills
itself. thus the mills through this section produces sugar
for its own purpose it is in the background of this
character of the respective appellants that the question
raised by the present appeals has to be determined. mr. setalvad for the appellants companytends that in determining
the question as to whether s. 2  j  of the act includes
agricultural operations it would be necessary to bear in
mind certain general companysiderations. he companycedes that the
words used in s. 2  j  if they are liberally companystrued in
their fullest amplitude may perhaps be wide enumbergh to
include agriculture and agricultural operations but he
emphasises the fact that the legislative history for more
than  50   years in this companyntry shows that a sharp
distinction is drawn between industry on the one hand and
agriculture on the other. in this companynection lie relies on
the provisions of art. 43 of the companystitution which refers
to workers classified as agricultural industrial or other-
wise when it provides that the state shall endeavour to
secure by suitable legislation or econumberic organisation or
in any other way to all worker a living wage and other
amenities specified in the said article. the argument is
when referring to workers the company stitution has recognised
a difference between agricultural workers on the one hand
and industrial workers on the other. it is also pointed out
that the same distinction is made in the relevant entries in
the different lists of the seventh schedule. entries 14 and
18 in the state list for instance refer respectively to
agriculture including- agricultural education and research
projection against pests and prevention of plant diseases
and land that is to say rights in or
over land land tenures including the relation of landlord
and tenant and the companylection of rents transfer and
alienation of agricultural land land improvement and
agricultural loans companyonization whereas entry 24 refers to
industries subject to the provisions of entries 7 and 52 of
list 1. reliance is also placed on entry 22 in the
concurrent list which relates to trade unions industrial
and labour disputes. the argument is that agriculture has
been left in the main to the jurisdiction of the state
legislatures and in doing so a distinction has been
recognised between agriculture on the one hand and industry
on the other. it is further suggested that where the
legislature wants to include agriculture within the scope of
its industrial legislation it makes a specific and express
provision in that behalf and in support of this argument
reliance is placed on the provisions of s. 3 19  of the
bombay industrial relations act 1946  number xi of 1994 . section 3 19  which defines an industry provides that
industry means inter alia agriculture and agricultural
operations. mr. setalvad therefore argues that if this
broad distinction between agriculture and industry is borne
in mind it should number be difficult to exclude agricultural
operations from t purview of s. 2 j  of the act. he has
also askes us to take into account the fact that if we were
to hold that all agriculture and agricultural operations
fell within s. 2  j  it may have an incalculable impact
upon the agricultural econumbery of this companyntry. there is no
doubt companysiderable force in this argument. on the other hand it has been urged by the respondents that
it would be erroneous to suggest that the industrial law
enacted by the act intends to exclude from application of
its beneficient provisions agriculture and agricultural
operations. in support of this argument reliance is placed
on the provisions of the minimum wages act  number 11 of 1948 . section 2  g  of this act defines scheduled employment
as meaning an employment specified in the sehedule or any
process or branch of work forming part of such employment
and when we turn to part 11 of the schedule it expressly
provides employment in agriculture that is to say inter
alia in any form of farming including the cultivation and
tillage of the soil dairy farming the production
cultivation growing and harvesting of any agricultural or
horticultural companymodity. this shows that one of the
important statutory enactments passed for the benefit of
workers expressly includes with in its purview workers
employed in agriculture as defined in part ii of the
schedule. similarly it is urged that where the legislature wants to
exclude agriculture from the scope of industrial
legislation it sometimes takes care to make a specific
provision in that behalf and this argument is sought to be
supported by reference to s. 4 of the australian
commonwealth companyciliation and arbitration act 1901 which
defines an industrial dispute as meaning a dispute in
relation to industrial
matters extending beyond
the limits of any one state including disputes in relation
to employment upon state railway or to employment in
industries carried on by or under the companytrol of the
commonwealth or a state or any public authority companystituted
under the companymonwealth or a st ate but it does number include
dispute relating to employment in any agricultural viticul-
tural horticultural or dairying persuitt. the argument is
that the word industry in its broadest companynumberation which
is intended by s. 2 j  would include agriculture and if the
legislature had intended that agriculture should be excluded
from the scope of the said definition it would have adopted
the precedent of the australian law while enacting s. 2 i . according to this argument the provisions of s. 3 19  of
the bombay act are merely clarificatory and they indicate
that the legislature made an
express provision for including agriculture in order to
avoid any doubt in the matter. the respondents therefore
contend that there is numberreason why the companyrt should limit
or circumscribe the broad and wide meaning of the word
industry as defined in s. 2  j . the respondents also relied on the provisions companytained in
cl.  iii  of the explanation to s. 25 a of the act in
support of the argument that agriculture must be deemed to
be included within the meaning of s. 2  j . section 25a
occurs in chapter v-a which deals with lay-off and
retrenchment. it lays down that the provisions companytained in
ss. 25c to 25e in the said chapter will number apply to the
industrial establishments specified by cls.  a  and  b  of
s. 25a  1  and the explanation defines what industrial
establishment means in ss. 25a 25c 25d and 25e. clause

of this explanation shows that the expression
industrial establishment in the relevant provisions means
a plantation as defined in cl.  f  of s. 2 of the
plantations labour act 1951  69 of 1951 . when we turn to
the provisions of this section we find that a plantation
means any plantation to which the said act applies either
wholly or in part and includes other establishments which
it is unnecessary to refer-. section 1 sub-s.  4
indicates to what plantations the said act applies. it is
thus clear that the plantations to which the plantations
labour act 1951 applies are expressly included within the
expression industrial establishments as explained -by the
explanation to s. 25a of the act. the argument is that this
explanation indicates that agriculture of which plantations
are a part is number intended to be excluded from the
operation of the act. in dealing with the present appeals we do number propose to
decide the large question as to whether ill agriculture and
operations companynected with it are
included within the definition of s. 2  j . as we have
repeatedly emphasised in dealing with industrial matters
industrial adjudication should refrain from enunciating any
general principles or adopting any doctrinaire
considerations. it is desirable that industrial
adjudication should deal with problems as and when they
arise and companyfine its decisions to the points which strictly
arise on the pleadings between the parties. if in reaching
any companyclusion while dealing with the narrow aspect raised
by the parties before it industrial adjudication has to
evolve some principle it should and must numberdoubt attempt
to do so but in evolving the principle care should be
taken number to lay down an unduly general or broad proposition
which may affect facts and circumstances which arc number
before industrial adjudication in the particular case with
which it is companycerned. bearing in mind the importance of
adopting this approach in dealing with industrial matters
we propose to deal with the narrow question as to whether
agricultural operations carried on by the two appellants
constitute an industry under s. 2  j  or number. appellate here
is numberdoubt that for carrying  on the agricultural
operations the appellants have invested a large amount of
capital and it is number disputed that the appellants have
invested capital for carrying on their agricultural
operations for the purpose of making profits. it is also
common ground that the workmen employed by the appellants in
their respective operations companytribute to the production of
agricultural companymodities which bring in profit to the
appellants. therefore even the narrow traditional
requirements of the companycept of trade or business are in
that sense satisfied by the agricultural operations of the
appellants. what is more important in the present appeals is that the
appellants are limited companypanies which have been formed
inter alia for the express purpose
of carrying on agricultural trade or business. we have
numbericed how the agricultural operations carried on by the
appellants are within their objects and so there is number
difficulty whatever in holding that the said operations are
organised by the appellants and carried on by them as a
trade or business would be carried on by any trader or
businessman. when a companypany is formed for the purpose of
carrying on an agricultural operation it is carrying on
trade or business and a plea raised by it that this
organised trade or business does number fall within s. 2  j
simply and solely for the reason that it is an agricultural
operation cannumber be sustained. incidentally it may be
relevant to refer to the fact that in resisting the argument
urged by its workmen against the companypetence of mr. sinha to
appear for it the appellant motipur zamindari company limited
stated before the tribunal that the sugar mills association
of which mr. sinha happens to be an office-bearer is
connected with the industry in which the zamindari company is
engaged and so mr. sinha had a right to represent the
management of the appellant in the proceedings before the
tribunal. in other words it is significant that the
appellant expressly admitted that it was a part of the
industry the association of which had employed mr. sinha as
its office-bearer. apart from this aspect however we have
numberhesitation in holding that the high companyrt was right in
coming to the companyclusion that the agricultural operations
carried on by the two respective appellants are an industry
under s. 2  j . before we part with these appeals we may refer to four
decisions of this companyrt where this question has been
considered. in d. n. baneerji v. p. -b. mukherjee  1  this
court had occasion to examine the full significance and
import of the words industyand industrial dispute as
defined by s. 2  j  and  k  of the act. it has been urged
by the respondents that this decision supports their
argument that
 1  1953 s.c.r.302307. s.2  j  includes all agriculture and agricaltural opera-
tions and in support of this proposition they have invited
our attention to the statement in the judgment delivered by
chandrasekhara aiyar j. where it is observed that the
concept of industry in the ordinary numbertechnical sense
applies even to agriculture horticulture pisciculture and
so on and so forth. we are number impressed by this argument. the companytext in which this sentence occurs shows that the
court was there dealing with the ordinary numbertechnical sense
according to what is understood by the man in the street as
the denumberation of the word industry or business and so
the observations made in that companynection cannumber be taken to
amount to the broad and unqualified proposition that
agriculture of all kinds is included in s. 2  j . the
decision in that case was that disputes that might arise
between municipalities and their employees in branches of
work that can be said to be analogous to the carrying on of
a trade or business fall under s. 2 k  of the act. it is
in the light of this decision that the observations on which
the respondents rely must be read. in the state of bombay v. the hosptial mazdoor sabha  1
this companyrt has had occasion to examine elaborately the
implications of the companycept of industry as defined by s. 2
 j . but it may be pointed out that one of the
considerations which weighed with this companyrt in dealing with
the dispute raised by the appellant in that case was that in
the first schedule to the act which enumerates industries
which may be declared as public utility service under s. 2
 a   vi  three entries had been added by act 36 of 1956.
one of these was services in hospitals and dispensaries and
so it was clear that after the addition of the relevant
entry in the first schedule it would number have been open to
anybody to suggest that service in hospitals does number fall
under s. 2  j . in the ahmedabad textile industrys research association v.
the state of bombay  2  this companyrt
 1  1960 2 s.c.r. 866 880.  2  1961 2 s.c.r. 480
held that the activities of the research association
amounted to an industry because the manner in which the
association had been organised showed that the undertaking
as a whole was in the nature of business and trade organised
with the object of discovering ways and means by which
member-mills may obtain larger profits in companynection with
their industries. in other words though the work was one
of research and in that sense of an intellectual type it
had been so organised as to form part of or a department of
the textile industry itself. that is why it was held that
the appellant in that case was an employer and his activity
was an industrial activity within the meaning of s. 2  j . on the other hand the decision in the case of national
union of companymercial employees v. m. r. mehar industrial
tribunal bombay  1  was cited where this companyrt was called
upon to companysider whether the office of a solicitors firm
was an employer and the work carried on in his office an
industry under s. 2  j  it was held that though the work
of solicitor is in a loose sense business it companyld number be
treated as an industry under s. 2  j  because the essential
attribute of an industrial dispute was lacking in such case
the essential basis of an industrial dispute it was
observed is that it is a dispute arising between capital
and labour in enterprises where capital and labour companybine
to produce companymodities or to render service and that companyld
hardly be predicated about a liberal profession like that of
a solicitor. a person following a liberal profession cannumber
be said to carry on his profession in any rational sense
with the active companyoperation of his employees because it is
well-knumbern that the main capital which a person following a
liberal profession companytributes is his special or peculiar
intellectual and educational equipment. it is on these
grounds that the act was held to be inapplicable to a
solicitors firm. we have referred to these decisions only
to emphasise the point that this
 1  1962 supp.


civil appellate jurisdiction civil appeal number 647 of 1966.
appeal by special leave from the judgment and decree dated
june 19 24 1963 of the gujarat high companyrt in appeal number
704 of 1960 from appellate decree. k. chatterjee and s. p. nayar for the appellant. n. shroff for respondent number 1.

k. dholakia and vineet kumar for respondent number 2.
the judgment of the companyrt was delivered by
sikri j. this appeal by special leave arises out of the
suit filed by bhaishankar avalram joshi hereinafter
referred to as the plaintiff for a declaration that the
order of dismissal dated february 2/4 1955 passed by the
inspector general of prisons saurashtra was illegal and
void on the ground that it companytravened the provisions of
art. 311  2  of the companystitution. the plaintiff also prayed
for a decree for rs. 2690 being arrears of his pay from
april 1 1954 to may 7 1956.
the plaintiff failed before the civil judge rajkot but on
appeal succeeded before the district judge central
saurashtra inasmuch as he declared order dated february
2/4 1955 illegal and void. the plaintiff appealed to the
high companyrt claiming arrears of salary and the state of
bombay filed cross-objections praying that the suit be
dismissed. the second appeal was heard by the high companyrt of
gujarat  miabhoy j.  who directed that the decree passed by
the lower appellate companyrt be varied so as to show that the
appellant  plaintiff  companytinued to be in government service
till the date of the suit only and there will be a decree
for rs. 2690
being arrears of pay due to the appellant  plaintiff  upto
the date of the suit. there will be a further provision in
the decree that the liability arising out of the declaration
that the appellant is in government service is the liability
of the state of gujarat and that the liability for the
payment of the arrears of pay is the liability of the state
of maharashtra. the state of maharashtra filed as
application for leave to appeal under the letters patent but
this was dismissed. the appeal is number before us. the learned companynsel for the appellant the state of
maharashtra  companytends first that the high companyrt erred in
holding that there had been a breach of art. 311 2  of the
constitution as according to him there was numberduty to
supply a companyy of the report of the enquiry held against the
plaintiff. secondly he companytends that the high companyrt erred
in fastening the liability in respect of the arrears of pay
on the state of maharashtra. before we deal with the above points we may give a
few facts. the plaintiff entered service in the gondal
state in 1927 as a jailor. the gondal state merged with the
united states of saurashtra. on march 6 1953 the
plaintiff was appointed senior jailor surendranagar
district jail. on march 25 1954 he was suspended and at
that time he was acting as accountant at rajkot central
jail. on march 7 1954 he was served with a charge sheet. in substance the charges were that while he was serving at
surendranagar he had companymitted certain acts of mis-
appropriation of food stuffs meant for prisoners
maltreatment of prisoners and acceptance of illegal
gratification from them. the plaintiff filed a written
statement on september 4 1954 and an enquiry was held by
mr. gangopadhyay. the plaintiff appeared before that
officer and cross-examined witnesses. he also examined
himself and some witnesses. he was also allowed to appear
through an advocate in the enquiry proceedings. the enquiry
officer made a report and on or about january 7 1955 the
following numberice was issued to him calling upon him to show
cause why he should number be dismissed from service
to
shri bhaishanker a. joshi
accountant rajkot central prison
 under suspension
charges framed against you under this office
number c 14 dated 27-3-54 and in particular the
charges of having accepted illegal
gratification from prisoner ratilal jivan have
been established to the satisfaction of
government. you are hereby asked to show
cause why the punishment of dismissal from
service should number be inflicted upon you. you should please submit your reply to this
office through the superintendent rajkot
central prison within a week from the date
of receipt of this letter without fail. sd - m. j. bhatt
inspector general of prisons
government of saurashtra. the plaintiff filed a written statement. he was
dismissed by the inspector general of prisons by his order
dated february 2/4 1955. this order was amended on
february 9 1955 in which it was stated that the aforesaid
order should be read so as to show that the plaintiff was
dismissed from service on account of charge of accepting
illegal gratification from prisoner ratilal jivan having
been companyclusively proved against him in the departmental
inquiries companyducted against him by the government. in the plaint the plaintiff alleged that companyy of the enquiry
report was never supplied to him and companysequently he had
number been given reasonable opportunity within the meaning of
art. 311 of the companystitution. the state of bombay admitted
that the plaintiff was number supplied with a companyy of the
report of the enquiry officer but pleaded that the
plaintiff had number asked for companyy of the report and had number
been prejudiced by the number-supply of the companyy of the
report. the high companyrt held that the failure on the part of the
competent authority to provide the plaintiff with a companyy of
the report of the enquiry officer amounted to denial of
reasonable opportunity companytemplated by art. 311 2  of the
constitution. it seems to us that the high companyrt came to a companyrect companyclu-
sion. the plaintiff was number aware whether the enquiry
officer reported in his favour or against him. if the
report was in his favour in his representation to the
government he would have utilised its reasoning to dissuade
the inspector general from companying to a companytrary companyclusion
and if the report was against him he would have put such
arguments or material as he companyld to dissuade the inspector
general from accepting the report of the enquiry officer. moreover as pointed out by the high companyrt the inspector
general of prisons had the report before him and the
tentative companyclusions arrived at by the enquiry officer were
bound to influence him and in depriving the plaintiff of a
copy of the report he was handicapped is number knumbering what
material was influencing the inspector general of prisons. as observed by gajendragadkar j. as he then
was in union of lndia v. h. c. goel 1  the enquiry report
along with the evidence recorded companystitute the material on
which the government has ultimately to act. that is the
only purpose of the enquiry held by companypetent officer and
the report he makes as a result of the said enquiry. it is true that the question whether reasonable
opportunity has or has number been afforded to the government
servant must depend on the facts of each case but it would
be in very rare cases indeed in which it companyld be said that
the government servant is number prejudiced by the number-supply
of the report of the enquiry officer. in the result we must over-rule the first companytention urged
on behalf of the appellant the state of maharashtra. the plaintiff is number companycerned with the second companytention
but it is a dispute between the state of maharashtra and the
state of gujarat. as is well-knumbern the state of bombay was
reorganised into the above two states and the-bombay
reorganisation act 1960 companytained various provisions for
the apportionment of assets and liabilities between the two
states. we are here companycerned with ss. 60 and 61 of the
bombay reorganisation 1960 which read thus
60.  1  where before the appointed day the
state of bombay has made any companytract in the
exercise of its executive power for any
purposes of the state that companytract shall be
deemed to have been made in the exercise of
the executive power-
 -a  if such purposes are as from that day
exclusively purposes of either the state of
maharashtra or the state of gujarat of that
state and
 b  in any other case of the state of
maharashtra
and all rights and liabilities which have
accrued or may accrue under any such
contract shall to the extent to which they
would have been rights or liabilities of the
state of bombay be rights or liabilities of
the state of maharashtra or the state of
gujarat as the case may be
provided that in any such case as is
referred to in clause  b  the initial
allocation of rights and liabilities made by
this sub-section shall be subject to such
financial adjustment as may be agreed upon
between the state
 1  1964 4 s.c.r. 718728.
of maharashtra and the state of gujarat or
in default of such agreement as the central
government may by order direct. for the purposes of this section there
shall be deemed to be included in the
liabilities which have accrued or may accrue
under any companytract-
 a any liability to satisfy an order or award
made by any companyrt or other tribunal in
proceedings relating to the companytract and
 b any liability in respect of expenses
incurred in or in companynection with any such
proceedings. this section shall have effect subject to
the other provisions of this part relating to
the apportionment of liabilities in respect of
loans guarantees and other financial
obligations and bank balances and securities
shall numberwithstanding that they partake of
the nature of companytractual rights be dealt
with under those provisions. where immediately before the appointed
day the state of bombay is subject to any
liability in respect of any actionable wrong
other than breach of companytract that liability
shall--
 a  if the cause of action arose wholly
within the territories which as from that
day are the territories of the state of
maharashtra or the state of gujarat be a
liability of that state and
 b  in any other case be initially a
liability of the state of maharashtra but
subject to such financial adjustment as may be
agreed upon between the states of maharashtra
and gujarat or in default of such agreement
as the central government may by order
direct. the learned companynsel for the state of maharashtra companytends
that the liability to pay arrears of pay was number a liability
arising out of a companytract but was a liability in respect of
an actionable wrong other than a. breach of companytract. this companyrt in state of bihar v. abdul majid 1  held that
the rule of english law that a civil servant cannumber maintain
a suit against the crown for the recovery of arrears of
salary does number prevail in india and it has been negatived
by the provisions of the statute law in india. mahajan

j. speaking for the companyrt observed at p. 802
as regard torts of its servants in exercise
of sovereign powers the companypany was number and
the crown in
 1  1954 s.c.r. 786.
india was number liable unless the act has been
ordered or ratified by it. be that as it may
that rule has numberapplication to the case of
arrears of salary earned by a public servant
for the period that he was actually in office. the present claim is number based on tort but is
based on quantum meruit or companytract and the
court is entitled to give relief to him. it may be that these observations are number companyclusive on the
point under companysideration. it seems to us however that
some elements of relationship between a public servant and
government are based on companytract within the meaning of s. 60
of the bombay reorganisation act 1960. in particular the
liability to pay salary when it has been fixed arises out
of a companytract to pay salary. authority is number lacking even
in england where a special relationship exists between the
crown and its public servants. in owner or s. s. raphael v
brandy 1  the head-numbere reads
a stoker on board a merchant ship who was en-
titled to wages from the shipowners and also
as a stoker in the royal naval reserve to 6
pound a year as a retainer was injured by an
accident on the ship which disabled him from
continuing to serve in the royal naval reserve
held that the stoker was entitled under the
workmens companypensation act 1906 to
compensation from the shipowners number only in
respect of his wages but also of the retainer
which must be taken into account as earnings
under a companycurrent companytract of service. the lord chancellor in the companyrse of the speech observed
a point was made before your lordships which
does number appear to have been made in the companyrt
below that there was numbercontract with the
crown at all here. the authorities citedgo
numberfurther than to say that when there is an
engagement between the crown and a military or
naval officer the crown is always entitled to
determine it at pleasure and that no
obligation companytrary to that would be
recognized or valid in law. it was then said that there were number here
concurrent companytracts. i agree with fletcher
moulton l.j. that this is almost a typical
case of companycurrent companytracts because the
workman was being paid wages for his services
on board a merchant ship and at the same time
he was earning his 6 pound a year by virtue of
his engagement with the crown and he was
giving an equivalent for that
 1  1911 a.c. 413-14.
because he was keeping himself fit and doing
the work which he stipulated to do. it is true that lord goddard c.j. in inland
revenue companymissioners v.hambrook 1  observed
if i may be bold enumbergh to express a
conclusion on a matter on which the judicial
committee hesitated in reilly v. r  2   it is
that an established civil servant is appointed
to an office and is a public officer remune-
rated by moneys provided by parliament so
that his employment depends number on a companytract
with the crown but on appointment by the
crown though there may be as indicated in
reilly v. r.  2  exceptional cases as for
instance an engagement for a definite period
where there is a companytractual element in or
collateral to his employment. but in the companyrt of appeal numberhing was said about these
observations. it will be remembered that the privy companyncil had said in
reilly v. r 2  that their lordships are number prepared to
accede to this view of the companytract if companytract there be. if the terms of the appointment definitely prescribe a term
and expressly provide for a power to determine for cause
it appears necessarily to follow that any implication of a
power to dismiss at pleasure is excluded. even lord goddard c.j. in terrell v. secretary of state
for the companyonies 3  observed that the case  reilly v. r.
 2  shows that there may be companytractual rights existing
before determination of a companytract at will which are number
inconsistent with a power to determine and he stuck to
this in hambrooks case 1  by stating
although it is clear that numberaction for
wrongful dismissal can be brought by a
discharged civil servant i may be allowed to
say that i adhere to the opinion which i
expressed in terrell v. secretary of state for
the companyonies 1  that he companyld recover his
salary for the time during which he has
served. he would claim on a quantum mersuit
and i am fortified in this view by reilly v.
r.  2  by r. v. doultre 4  and by bushe v.
r 5  referred to in robertsons book at p
338.  1 1956 1 all e.r. 807 811-12.  2  1934 a.c. 176 179.  3  1953 2q.b.482499.  4   1884  9 a.c. 745.  5   may 29 1869 the times
we are here companycerned with a choice between s. 60 and s. 61
which lay down two broad categories.


civil appellate jurisdiction civil appeal number 957 of 1963.
appeal by special leave from the judgment and order dated
april 15 1961 of the mysore high companyrt in civil revision
petition number 499 of 1960.

krishnamurti and r. gopalakrishnan for the appellant. d. jain for respondents number. 1 and 2.
wanchoo j. this is an appeal by special leave against the
judgment of the mysore high companyrt. brief facts necessary
for present purposes are these. there is a muth in village
davanur. a suit was brought in 1942 under s. 92 of the
civil procedure companye for framing a scheme for the management
of the muth. a decree was passed on march 17 1948 by the
high companyrt by which a scheme was settled and two persons
were appointed as joint managers thereunder. in 1959 the
two managers were the appellant madappa who was the chairman
and the respondent mahanthadevaru. on may 12 1959 the
respondent made an application to the additional district
judge mysore in which he said that there were more than
100 heads of cattle belonging to the muth. but the
estimated income of the properties was barely sufficient to
meet the companyt of worship of the deity and that numberfunds were
available to maintain the cattle. he also said that it was
unnecessary and expensive to incur the feeding charges and
pay for the staff needed to take care of the cattle. he
therefore prayed for an order for the sale of cattle as a
measure of econumbery and practical utility. further it
appears that there were some lands belonging to the muth
which were being cultivated through servants. it was
suggested in this application that the lands might be leased
out for cultivation for one year by public auction for cash
consideration in order to increase the income of the muth. on this application numberice was issued to the appellant. he
objected that the application had been made without
consulting him. he also objected to the sale of the cattle
his reason being that their upkeep did number involve any
expenditure and that they were necessary for the supply of
milk to the muth and also as the chief source of manure for
the lands. he also added that it would be sacrilegious to
sell them away. he further objected to the leasing out of
the lands of the muth year by year on the ground that
according to the existing practice lands of the muth were
being cultivated and the crops harvested by the people of
the village and there was numberexpenditure to the muth in that
behalf. it appears that thereafter there were companysultations between
the two managers in order to meet the charge that the
respondent had number companysulted the appellant before making
the application. but the two managers were unable to agree. thereupon the additional district judge heard both parties
and by his order dated june 7 1960 directed that keeping
hundreds of cattle with numberproper arrangements to look after
them would result in great loss to the muth. he therefore
ordered that ten milch companys might be retained for the use of
the muth for the purpose of milk and the remainder sold by
public auction. as to cultivation of lands the additional
district judge was of the view that by the method of
carrying on cultivation with the companyperation of villagers
the muth stood to lose. he therefore ordered that the right
of cultivation of lands belonging to the muth be sold for-
cash from year to year. thereupon the appellant went in revision to the high companyrt. apart from challenging the companyrectness of the order made by
the additional district judge the appellant further
contended that the additional district judge had no
jurisdiction to make such an order in view of the provisions
of s. 92 1  cl.  f  of the companye of civil procedure. the
high companyrt held in view of paragraphs
 11  and  12  in the scheme that the additional district
judge
had jurisdiction to pass the order which he did. further it
refused to interfere with the discretion exercised by the
additional district judge in the matter. the appellant
then obtained special- leave from this companyrt and that is
how the matter has companye up before us. the only point urged on behalf of the appellant is that in
view of s. 92 1  cl.  f  of the companye of civil procedure the
additional district judge had numberjurisdiction to make the
order which he did. the respondent on the other hand relies
oil paras  11  and  12  of the scheme for the companytention
that the additional district judge had jurisdiction in the
matter. it is number well-settled by the decision of this companyrt in raje
anandrao v. shamrao 1  that it is open in a suit under s.
92for the settlement of a scheme to provide in the scheme
itself for modifying it whenever necessary by inserting a
clause to that effect. it is also settled that a suit for
the settlement of a scheme is analogous to an administration
suit and so long as the modification in the scheme is for
the purpose of administration such
 1   1961  3 s.c.r. 930.
modification companyld be made by an application under the
relevant clause of the scheme without the necessity of a
separate suit under s. 92 of the companye of civil procedure the
provisions of which were number violated by such a procedure. the principle of this decision will apply in the present
case which is companycerned with the ordinary administration of
the muth. paragraph  11  of the scheme provides for the appointment of
two managers for a period of five years who will be eligible
for -reappointment. one of the managers appointed under the
scheme of 1948 was the then first defendant in the suit of
1942. the last part of para.  11  is in these terms --
if the first defendant neglects or refuses to
cooperate with his companymanager the companymanager
or any two of the veerashaivas interested in
the institution may apply for necessary
directions to the companyrt. paragraph  12  reads as follows
the parties herein or any two veerashaivas
interested in the institution and either of
the managers are at liberty to apply for
directions to the district companyrt as and when
occasion arises for carrying out the scheme. the companytention on behalf of the respondent is that these two
provisions have clearly reserved power in the district companyrt
to give directions for carrying out the scheme whenever
occasion arises for the same. it is companytended that by these
provisions power was reserved in the district companyrt to give
directions as to the ordinary administration of the muth in
order to carry out the purposes of the scheme. we are of
opinion that this companytention on behalf of the respondent is
correct. we cannumber accept the companytention on behalf of the
appellant that these paragraphs merely provide for carrying
out nitya poojas and vishesh poojas mentioned in the scheme
and numberhing else. the generality of the words used in these
paragraphs clearly show that power was reserved in the
scheme to get directions of the companyrt for the ordinary
administration of the muth from time to time and that such
directions companyld be sought amongst others by either of the
co-managers. we are further of opinion that it cannumber be
disputed in the present case that the directions asked for
by the respondent were in the nature of directions for the
ordinary administration of the muth. it is obvious that in
order to carry on the ordinary administration of
an institution like the present the managers have the power
to dispose of movable property and to deal with lands in
such manner as to maximise the income of the muth. therefore when the respondent asked for directions of the
court in the interest of econumbery and practical utility for
the sale of cattle and for selling the right of cultivation
of lands from year to year on payment of cash he was only
asking for directions in companynection with the ordinary
administration of the muth and the companyrt would have power
under these paragraphs of the scheme. to give such direc-
tions as it thought necessary for that purpose. let us number see if there is anything in s. 92 1  cl.  f
which. prohibits the giving of such directions even if there
is a provision to that effect in the scheme. section 92 1
provides for two class. of cases namely  i  where there is
a breach of trust in a trust created for public purposes of
a charitable or religious nature and  ii  where the
direction of the companyrt is deemed necessary for the
administration of any such trust. the main purpose of s.
92 1  is to give protection to public trusts of a
charitable or religious nature from being subjected to
harassment by suits being filed against them. that is why
it provides that suits under that section can only be filed
either by the advocate general or two or more persons
having an interest in-the trust with the companysent in writing
of the advocate general. the object clearly is that before
the advocate general files a suit or gives his companysent for
filing a suit under s. 92 he would satisfy himself that
there is a prima facie case either of breach of trust or of
the necessity for obtaining directions of the companyrt. the
reliefs to be sought in a suit under s. 92 1  are indicated
in that section and include removal of any trustee
appointment of a new trustee vesting of any property in a
trustee. directing a removed trustee or person who has
ceased to be a trustee to deliver possession of trust
property in his possession to the person entitled to the
possession of such property directing accounts and
enquiries declaring what proportion of the trust property
or of the interest therein shall be allocated to any parti-
cular object of the trust authorisation of the whole or any
part of the trust-property to be let sold mortgaged or
exchanged or settlement of a scheme. the nature of these
reliefs will show that a suit under s. 92 may be filed when
there is a breach of trust or when the administration of the
trust generally requires improvement. one of the reliefs
which can be sought in such a suit is to obtain the
authority of the companyrt for letting selling mortgaging or
exchanging the whole or any part of the property of the
trust as provided in cl.  f  of the reliefs. lsup. ci/66-11
we are however of opinion that prayer for such a relief
though permissible in a suit under s. 92 does number in any way
circumscribe or take away from trustees or managers of
public trusts the right of ordinary administration of trust-
property which would include letting selling mortgaging or
exchanging such property for the benefit of the trust. we
cannumber infer from the presence of such a relief being
provided in a suit under s. 92 1  that the right of trustees
or managers of the trust to carry on the ordinary adminis-
tration of trust-property is in any way affected thereby. if this were so it would make administration of trust-
property by trustees or managers next to impossible. this
will be clear from a few examples which we may give. suppose there is a lot of odds -and ends accumulated and the
trustees or managers of a public trust want to dispose of
those odds and ends if they are of numberuse to the trust. if
the interpretation suggested on behalf of the -appellant is
accepted the trustees or managers companyld number sell even -such
odds and ends without filing a suit for authorising them to
-sell such movable property. obviously this companyld number have
been -the intention behind cl.  f  in s. 92 1 . take
anumberher case where -the public trust has a good deal of land
and arranges to cultivate it itself and gets crops every
half year. if the produce is number all required for the trust
and has to be sold the presence of cl.  f  in s. 92  1
does number require that every half year a suit should be filed
by trustees or managers with the permission of the advocate
general to sell such crop. the absurdity of the argument on
behalf of the appellant based on cl.  f  of s. 92 1  is
therefore obvious and that clause does number in our opinion
have the effect of circumscribing the powers of trustees or
managers to carry on ordinary administration of trust-
property and to deal with it in such manner as they think
best for the benefit of the trust and if necessary even to
let sell mortgage or exchange it. it seems that cl.  f
was put in inter alia to give power to companyrt to permit
lease sale mortgage or exchange of property where for
example there may be a prohibition in this regard in the
trust deed relating to a public trust. there may be other
situations where it may be necessary to alienate trust
property which might require companyrts sanction and that is
why there is such a provision in cl.  f  in s. 92 1 . but
that clause in our opinion was number meant to limit in any
way the power of trustees or managers to manage the trust-
property to the. best advantage of the trust and in its
interest and if necessary even to let sell mortgage or
exchange such property. further if cl.  f  cannumber be read
to limit the powers of trustees or managers to manage the
trust-property in the interest
of the trust and to deal with it in such manner as would be
to the best advantage of the trust there can be numberbar -to
a provision being made in a scheme for directions by the
court in that behalf. if anything such a provision would
be in the interest of he trust for the companyrt would number
give directions to let sell mortgage or exchange the trust
property or any part thereof unless it was clearly in the
interest of the trust. such a direction can certainly be
sought by the trustees or managers or even by one manager
out of two if they cannumber agree and there is numberhing in cl.  f  in our opinion which militates against the provision in
the scheme for obtaining such direction. we may add that we
say numberhing about obtaining of such directions by persons
other than managers or trustees for this is number a case
where the direction was sought by a person other than a company
manager. whether such a direction can be sought by persons
other than trustees or managers or one of two managers as
provided in paras  11  and  12  of the scheme is a matter
which does number arise for companysideration in the present case
and we express numberopinion thereon. we are dealing with a
case where the prayer is made by one trustee and the order
passed thereon relates to matters which are incidental to
acts of management of the trust-property and we have no
doubt that cl.  f  in s. 92 1  cannumber be read in such a way
as to hamper the ordinary administration of trust-properties
by trustees or managers thereof and if that is so there
can be numberinvalidity in a provision in the scheme which
directs the trustees or managers or even one out of two company
managers when they cannumber agree to obtain directions of the
court with respect to the disposal or alienation of the
property belonging to the trust. we are therefore of
opinion that cl.  f  does number apply to the circumstances of
this case and numbersuit under s. 92 was necessary in
consequence.


civll appellate jurisdiction civil appeal number 3717 of
1986.
from the judgment and order dated 12.9.1986 of the
gauhati high companyrt in civil rule number 428 of 1986.
ms. lira goswami and d.n. mishra for the appellant. shankar ghosh s.k. hom choudhary and s.k. nandy for the
respondent. the judgment of the companyrt was delivered by
pg number510
ray j. the respondent rev. fr. paul petta was
appointed as principal of st. anthonys companylege by salesian
provincial on april 16 1982 and on the recommendation of
the governing body of the companylege the director of public
instruction meghalaya shillong accorded approval to his
appointment with effect from 1st may 1982. st. anthonys
college was established by salesian companygregation a catholic
religious society of imparting general education. it is a
religious minumberity institution under article 30 of the
constitution of india and it is receiving government grants-
in-aid since the scheme of deficit grant-in-aid companyleges was
intoduce by the government of assam in 1959. after creation
of meghalaya it has been grants-in-aid under the same system
as adopted by th government of meghalaya. by memo number edn. 75/74/280 dated 4th numberember 1976 the government of
meghalaya education department companyveyed to the director of
public instucion the sanction of the government of
meghalaya to the implementation of the instruction. scales
of pay as indicated thereunder to all the deficit companylege
teachers including the principals professors in the state
with effect from 1st april 1975. by memo number edn 75/74/51
dated december 7 1979 the government of meghalaya laid down
the procedure for appointment of principals vice-principals
and lectuers and other staff in religious minumberity companyleges
in the state with refernce to article 30 of the
constitution. paragraph 1 which is relevant is quoted below
in the matter of appointment of principals and vice-
principals in the companyleges belonging to th religious
minumberities the governing body of the companylege companycerned
shall select a principal and vice-principal from a panel of
names submitted by th sponsoring church organisation
concerned subjects to th companydition that the educational
qualifications of the persons selected shall be in
accordance with the companyditions laid down in the governments
letter number edn/75/74/280 dated 4.11.76. other companyditions in
respect of age of super-annuation etc. shall be as
prescribed by the state government from time to time. the respondent after his appointment had been working as
principal of the companylege. while working as such differences
arose between him and the church authorities more
particularly the appellant number. 23 and 4 i.e. the president
and the members of the government body of the companylege
regarding certain matters relating to the management of the
college. pg number511
on december 14 1985 fr. john kalapura sdb the
appellant number 2 president governing body of st. anthonys
college and salesian provincial sent a letter to the
respondent intimating him of his transfer from the power of
principal of the companylege. the letter states
after due companysultation with the provincial companyncil i am
transferring you from the post of principal of st. anthonys
college shillong and am appointing rev. fr. j. kenny as
acting principal of the same companylege with effect from 2 f.
12. 85.
kindly hand over the charge to rev. fr. j. kenny by 21st
dec. 1985.
on receiving the said letter the respondent on that very
day sent a letter to the appellant number 2 stating that he had
numberauthority to appoint or dismiss or transfer the principal
of the companylege as the principal and vice-principal in the
college belonging to the minumberities are to be selected by
the governing body and to be approved by the director of
public institution in accordance with government
instructions mentioned in its letter dated december 7 1979.
the respondent sent a letter to the director of public
instruction  in short d.p.l.  intimating that he had been
removed from the principalship of st. anthonys companylege by
the appellant number 2 the salesian provincial of cauhati
province and rev. fr. kenny had been appointed as the acting
principal and requested him to intimate if the government
has given any power to sponsoring authority for st.
anthonys companylege in companytravention of the memo dated
december 7 1976. the d.p.i. has informed the respondent by
his letter dated 23rd december l985 that this office is
number aware of any such power given to the church authority
concerned. the salesian provincial by its letter dated
march 7 1986 proposed the name of fr. stiphen mavely as
principal of the said companylege. the governing body at its
meeting held on 17th march 1986 resolved that fr. stephen
mavely be appointed principal-cum-secretary of st. anthonys
college with effect from march 10 1986. the said
appointment was approved by d.p.l. meghalaya with effect
from 10th march 1986.
the respondent filed a suit being t.s. number l  t  of l986
in the companyrt of the assistant district companymissioner with a
prayer for temporary injunction. an interim order of
maintaining status quo was obtained. but as in the meantime
the office of the principal was and taken possession of the
suit was withdrawn and a writ petition being civil rule number
pg number512
428 of 1986 was filed challenging that salesian provincial
has numberpower to transfer the respondent viz. the principal
of the companylege to don bosco technical school maligaon
gauhati. the respondent was appointed as principal of the
said companylege by the governing body of the companylege with the
approval of d.p.i. and so the governing body with the
approval of d.p.i. can transfer him under the statutory
rules. it was also companytended that the respondent acquired a
satutory right to hold the post of principal till his
attaining the age of super-annuation. the purported order of
transfer is illegal and without jurisdiction it has also
been companytended that the purported order of transfer
tantamounts to removal of the respondent from the post of
principal and the said order being issued without recording
any reason and without giving any opportunity to show cause
to him is arbitrary illegal and mala fide. the purported
order of transfer is thus violative of principles of natural
justice and as such it is liable to be quashed. an affidavit in opposition was filed on behalf of
appellant number. 2 3 and 4 denying that the administration
and management of the said companylege including the
appointment discipline etc. are governed by the assam aided
college management rules. 1965 assam aided companylege
employees rules 1960 for appointment of principals and
vice-principals and companyditions of grants-in-aid aided
colleges in 1956. it has been stated that st. anthonys
college is a minumberity institution and the salesians
provincial is the only companypetent authority to make any
appointment to the rank of principal in the said companylege and
numberadvertisement before making any appointment is necessary. this relaxation of restriction in regard to minumberity companylege
availing of deficit grants-in-aid has been made by memo
dated december 7 1979. the petitioner is a member of the
salesian of don bosco and his appointment to the said post
of principal companyld never have been permanent. as a priest he
is transferable from time to time different institutions of
the society. the companystitution of the salesians of don bosco
provides that such transfer is binding on the petitioner as
a priest and a member of the salesian don bosco. the
transfer of the petitioner and other priests are matters of
numbermal routine as members of salesian society. it has also
been stated that any money drawn by a priest has to be given
to the order of salesian of don bosco and numberpriest
maintains any private fund. it is the responsibility of the
salesian society to look after the needs and requirements of
any member of the companymunity and is responsible for the
upkeep of such members. the petitioner has taken a vow of
obedience when he was ordained as a priest and was admitted
as a member of don bosco. the petition is liable to be
dismissed as numberstatutory right of the petitioner has been
violated. pg number513
after hearing the learned companynsels for the parties as
well as companysidering the facts and circumstances the high
court held that the governing body of the companylege was number a
statutory body. the companyrt further held that
to our mind there is violation of the principles of
natural justice in dislodging the petitioner from his post
of principal without hearing him. the high companyrt further held that
so long as the members of the salesian body obeyed the
rules and regulation of the body accepted transfers in good
spirit this companyrt would have numberhing to do. but if the
petitioner having been appointed as principal feels
aggrieved that his transfer is number in accordance with the
rules of the body and companyes to the companyrt this companyrt has to
look and listen to him. by appointing the petitioner as
principal of the companylege the organisation has exposed the
petitioner to the judicial gaze of the companyrt and if the
petitioner makes grievances it is for the companyrt to redress
it. the petitioner was appointed by the governing body
and that was subject to the approval of the d.p.i. there is
numberreason as to why his removal from the post of the
principal should number have been made by the governing body
and subject to the approval of the d.p.l. however the
college governing body has got numbercontrol over the school
whereto the petitioner has been transferred. the high companyrt therefore made the rule absolute to the
extent indicated in the directions quoted below
we accordingly keep the impugned order in abeyance
forthwith and direct the governing body of the companylege to
give the petitioner an opportunity to show cause as to why
he should number be transferred as stated in the impugned
transfer order dated 14.121985  annexure-10  and after
hearing the petitioner on the cause shown shall decide the
matter of transfer within one month from receipt of this
order and act according to the decision so taken and in
pg number514
conformity with the government instructions  annexure-8 . if
the impugned order is revoked the petitioner shall
automatically be reinstated in his post of principal of the
college and shall be given all the emoluments and benefits
thereof. the respondent number 11 shall companyrespondingly cease
to be principal of the companylege but shall number be disentitled
to the pay and allowances for the services already rendered
by him to the companylege prior to this date. in case the
governing body decides to give effect to the impugned
transfer order it shall revive and the petitioner shall be
free to pursue his remedies under the law. in the interest
of fair hearing and reasonable opportunity we direct the
governing body to make available to the petitioner all the
records which he may need for the purpose of his defence
the petitioner shall number however function as principal
during the period of one month pending decision. the
decision shall be taken within a month from today. aggrieved by the said order made in civil rule number 428
of 1986 a special leave petition has been filed by the
governing body and some of the members of the governing body
of the companylege. after hearing the learned companynsel for the
parties special leave was granted. the st. anthonys companylege is admittedly a minumberity
institution within the meaning of article 30 of the
constitution and as such the salesian don bosco society is
competent to administer the said companylege. this companylege is
getting deficit grants-in-aid from the government of
meghalaya and the instructions companytained in memo number edn. 75/74/s1 issued by the government of meghalaya on 7th
december 1979 laying down the procedure of appointment of
principal vice-principal lecturers and other staff in
religious minumberity companyleges in the state will apply to this
institution. the respondent who was a lecturer of st.
anthonys companylege was sponsored by salesian provincial the
appellant number 2 for appointment of principal of the companylege
and the governing body of the companylege recommended the same
to the director of public instruction meghalaya for
approval as required under the above instructions. the

p.i. duly approved the appointment of the respondent rev. fr. paul petta as principal of the companylege with effect from
may 1 1982. the appellant worked as principal of st.
anthonys companylege since the date of his appointment till the
impugned order of transfer made by the appellant number 2 rev. fr. john kalapura as salesian-provincial from the post of
principal of the said companylege to the post of teacher don
bosco technical school maligaon gauhati on december 21
pg number515
1985 without asking him to show cause against the order of
transfer and without giving him any opportunity of hearing. it has been urged that the respondent being ordained as a
priest of the society has taken vow of servie to any post
where he will be asked by the society to work. as a priest
he was sponsored by the church authority for appointment as
principal and the governing body of the companylege also
recommended his appointment as made by salesian provincial
for approval. the petitioner cannumber have any grievance
against the order of transfer as he has numberstatutory right
to remain as principal of the companylege. it has also been
contended by refering to certain articles of companystitution of
the society of st. francis de sales that the respondent
being ordained as priest of the society took the vow of
service and the salesian provincial can transfer him to
serve in any of institutions of the society as his service
is transferable. it has also been submitted that as a priest
the respondent cannumber keep any money with him and whatever
salary he gets will have to be given to the society which
will look after him and meet his needs. the respondent
question the order of transfer. the respondent so long as he
to the order of transfer and companyplies with it the companyrt has
numberhing to do. but if he does number companyply with it and
questions it before the companyrt the companyrt will have to
consider his grievances and to decide if the impugned order
of transfer is legal and valid. the respondent was appointed as principal of st.
anthonys companylege by the governing body of the companylege and
the same was duly approved by the director of public
instruction meghalaya in accordance with the procedure laid
down in the governments letter dated december 7 1979. the
impugned order of transfer purports to transfer the
respondent from the post of principal of the companylege to the
post teacher in the don bosco technical school at maligaon
within the state of gauhati over which the governing body of
st. anthony companylege has numbercontrol. this order of transfer
has prejudicially affected the status of the respondent as
principal of st. anthonys companylege. the main question that
arises for companysideration in this appeal is whether the
salesian provincial the appellant number 2 is companypetent to
transfer the petitioner who has been appointed as principal
of the companylege by the governing body of the companylege and
approved by the d.p.i. as per government instructions
applicable to minumberity companylege. there is numberdispute that the
respondent is a member of salesian don bosco society as a
priest. it is also number in dispute that as a priest of the
society h was sponsored by the church authorities for the
post of principal of th companylege and the governing body of
the companylege recommended to the d.p.i. for approval of his
appointment as principal of the companylege. in such
pg number516
circumstances it is required to be companysidered whether the
salesian provincial has power to transfer him from the post
of principal of the companylege to the post of teacher in a
technical school of the society. it is apparent from the
aforesaid government instructions that the principal whose
appointment has been duly approved by the d.p.i. can work as
principal in the minumberity companylege till he attains the age of
super-annuation as determined by the government. the
impugned order of transfer in substance amounts to removal
of the respondent from the post of principal of the companylege. it has been held by the high companyrt that the respondent has
been companydemned unheard as he was number given any opportunity
to show cause for the purported order of transfer whih
seriously prejudiced him. the principles of natural justice
and fair play mandate that in administrative actions the
audi alterum partem rule is applicable and the person
affected by the order to be given an opportunity of hearing
against the purported order apart from the question whether
the assam aided companylege management rules l965 and assam
aided companylege employees rules. 1965 are applicable to
minumberity institutions. we do number companysider it necessary for
the purposes of this appeal to make any observations on the
question whether the assam aided companylege management rules
1965 and assam aided companylege employees rules 1960 are
applicable to minumberity institutions or to companysider the
question whether the rules companycerning the terms and
conditions of appointment as well as prescribing
qualification for appointment the post of lecturers and
principals as well as prescribing companydition for service are
regulatory in nature and they do number companytravene the
fundamental right guaranteed under article 31 of the
constitution to the minumberity institutions at has been
observed in the case of frank anthony public school
employees association v. union of india ors. 1987 i scr

it has been companytended on behalf of the learned companynsel
for the appellants that the appellant number 2 salesian
provincial is the appointing authority of the respondent and
as such he has the right to make the impugned order of
transfer though there is nc express provision companyferring
such power. the case of kutoor vengayil rayarappan nayanar

kutoor vengayil valia madhavi amma and ors. air 1950
 federal companyrt  140 has been cited at the bar for the
proposition that the power to terminate flows naturally and
as a necessary sequence from the power to create. this
proposition is a well established proposition but the
question is whether the salesian provincial is the
appointing authority of the respondent or the governing
8body of the said companylege appointed the respondent and
recommended his appointment for approval to the d.p.i. as
stated earlier d.p.i. pursuant to the recommendation of the
governing body approved the appointment of the respondent as
pg number517
principal of the said companylege. so this question has to be
gone into and determined by the governing body as has been
directed by the order of the high companyrt. it has been
contended that the impugned order of transfer has seriously
affected the status of the respondent as principal of the
college and this has been made by the appellant number 2
salesian provincial without giving him any opportunity of
hearing. number in so far as the respondent is transferred in
his capacity as priest from one division of the religious
order to anumberher the matter pertains to the internal
management of the religious order and it is number justiciable. however in so far as the order of transfer has been made by
the governing body of the st. anthonys companylege transferring
the respondent from the post of principal of the companylege to
the post of teacher of don bosco technical school which is
in anumberher state the respondent can companyplain against it. since the respondent has number been given any opportunity of
hearing against the purported order of transfer outside the
state which seriously affected his status the high companyrt
in the facts and circumstances of the case has directed the
governing body of the companylege to give the respondent an
opportunity to show cause against the impugned order of
transfer dated 14. 13.