civil appellate jurisdiction civil appeal number 402 of 1958.
appeal by special leave from the award dated january 29
1957 of the industrial tribunal bihar at patna in
reference number 7 of 1956.
sukumar ghose for the appellant. k. ramamurthi r. k. garg a. n. nag and
suresh aggarwal for the respondents. p. varma for the intervener  state of bihar . 1960. march 9. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal by special leave against the
award of the industrial tribunal patna. the appellant is a
sugar mill in district saran in the state of bihar. one
ramkrishna prasad was appointed as clerk in this mill in
1933. gradually he worked his way up and was drawing rs. 140 per month in october 1952. the mill created a new post
of store in-charge about that time as the work in the stores
department of the mill had increased. on october 4 1952
babulal parekh was appointed to this new post on a
consolidated salary of rs. 180 per menses. a letter of
appointment was issued to him on that date and he was told
that he would be on probation for one year. he was also
asked by anumberher letter to take charge immediately. he took
charge on october 7 1952. on numberember 28 1952 an order
was passed by the mill distributing the duties between the
various clerks employed in the stores department and it was
stated therein that all the staff of the stores department
would work as subordinate to babulal parekh. on december 2
1952 anumberher order was passed by which ramkrishna prasad
was ordered to hand over the keys of the stores to babulal
parekh. thereafter ramkrishna prasad made a representation
against his being made subordinate to the stores in-charge. this representation was rejected. a dispute was then raised
by the union and a reference was made by the government of
bihar on may 9 1956 in which the
following three matters were referred to the tribunal-

whether the status of workman sri ramkrishna prasad
store-keeper and the nature of the job performed by him has
been changed to his prejudice with the appointment of a
separate store in charge

whether in view of the satisfactory performance of
duties of store-keeper for the last 20 years by the above-
named workman it was at all necessary to appoint a separate
store in-charge over him with higher emoluments and whether
shri ramkrishna prasad is entitled to be appointed to the
post of store in-charge and

whether the claim of the above-named workman for
promotion to higher grades has been overlooked by the
management and if so what relief the workman is entitled
to. when the matter came up before the tribunal the main
contention on behalf of the mill was that it was exclusively
the management function to decide its labour strength both
qualitatively and quantitatively and that so far as
ramkrishna prasad was companycerned his position had number been
prejudicially affected by the creation of the new post of a
store in-charge. the workmen on the other hand companytended
that babulal parekh was first appointed as a mere clerk
under ramkrishna prasad to begin with and it was only on
numberember 28 1952 that he was promoted over the head of
ramkrishna prasad as a store in-charge thus superseding
ramkrishna prasad. this stand of the workmen was
controverted by the mill and its case was that babulal
parekh was from the very beginning appointed as store in-
charge. the tribunal came to the companyclusion after a companysideration of
the evidence produced that babulal was first appointed as an
ordinary clerk in the stores department and was subsequently
made a store incharge. it held that this caused reasonable
heart burning to ramkrishna prasad. the tribunal was
conscious of the principle that promotion to a higher post
was the exclusive function of the management and should number
ordinarily be interfered with. but
in spite of that it was of the view that this was a fit case
for interference but on other companysiderations which were number
specified in the order by the tribunal it held that it would
number interfere with the arrangement made by the mill it
instead granted an increment of rs. 30 per month from the
date of its order to ramkrishna prasad to meet the ends of
justice. it is this order which is being challenged before
us. two points have been urged before us on behalf of the
appellant. in the first place it is urged that the
reference was incompetent as sugar was a companytrolled industry
and only the central government companyld have made the
reference and number the state government. secondly it is
urged that the order of the tribunal granting an increment
of rs. 30 per month to ramkrishna prasad was patently
perverse and that there was numberchange in the status or
emoluments of ramkrishna prasad by the creation of the new
post and the employment of babulal parekh on it. so far as the question of the companypetence of the reference is
concerned we are of opinion that there is numberforce in it a
similar question was raised before this companyrt in the bijoy
cotton mills limited v. their workmen and anumberher  1  and it
was held there on the language of s. 2 a  1  of the
industrial disputes act 1947 that before that provision
could apply to a companytrolled industry there must be a
numberification by the central government for the purposes of
s. 2 a  1  of the industrial disputes act. section 2 a  1
is in these terms-
i appropriate government means in relation to any
industrial dispute companycerning any industry carried on by or
under the authority of the central government or by a
railway companypany or companycerning any such companytrolled industry
as maybe specified in this behalf by the central government
or in relation to an industrial dispute companycerning a banking
or an insurance companypany a mine an oil-field or a major
port the central government. the argument is that as sugar is a companytrolled industry under
the schedule to the industries  development and regulation
act number 65 of 1951 the appropriate
 1  1960 2 s.c.r- 982
government for the purposes of s. 2 a  1  with reference to
the sugar industry is the central government. reliance is
placed on the words companycerning any such companytrolled
industry as may be specified in this behalf by the central
government appearing in s. 2  a  1 . it is true that
sugar is a companytrolled industry under the industries
 development and regulation  act 1951 but that in our
opinion does number companyclude the matter. in order that the
appropriate government under s. 2 a  1  may be the central
government for a companytrolled industry it is necessary that
such companytrolled industry should be specified by the central
government for the purposes of s. 2 a  1 . this in our
opinion is obvious from the words companytrolled industry as
may be specified in this behalf by the central government
appearing in s. 2 a  1 . it is number enumbergh that an industry
should be a companytrolled industry to attract this provision of
s. 2 a  1  it is further necessary that it should be
specified in this behalf namely for the purposes of s.
2 a  1  as a companytrolled industry by the central government
before the central government can become the appropriate
government within the meaning of s. 2 a  1 . we may in this
connection refer to firebricks and potteries limited etc. v.
firebricks and potteries limited workers union limited  1  where
the same view has been taken. we are of opinion that is the
correct meaning of these words appearing in s. 2 a  1  as
already held in the bijoy companyton mills limited  2  . the
objection that the reference was number companypetent therefore
fails. we next companye to the companytention raised on behalf of the mill
that there was in fact numberprejudice whatsoever so far as the
status and emoluments of ramkrishna prasad were companycerned by
the creation of the new post and the appointment of babulal
parekh on it and that the tribunal was number justified in any
case in granting an increment of rs. 30 per menses to
ramkrishna prasad. the main companysideration which influenced
the tribunal in passing the order which it did was that in
the view of the tribunal ramkrishna prasad was superseded by
babulal parekh who was first appointed as a clerk under him. this view of

i.l.r. 1955 mys. 546.  2  1960 2 s.c.r. 982.
the tribunal in our opinion is patently erroneous. the
appointment order dated october 4 1952 clearly shows that
babulal parekh was appointed as store inches from the very
beginning at rs. 180 per month. the tribunal referred to
certain entries in the attendance register to hold that
babulal parekh worked as clerk to begin with. it appears
from the attendance register for the months of october
numberember and december that babulal parekh was marked present
from october 7 to numberember 9. thereafter from numberember 11 to
the end of december he signed the attendance register. the
statement of cbaudhari labour welfare officer of the mill
was that the practice in the mill was that officers used to
be marked present in the attendance register while clerks
used to sign it themselves. the tribunal has companycluded from
the fact that babulal. parekh signed the register in
numberember that he must have been a clerk to begin with. the
tribunal however companypletely overlooked that from october 7
to numberember 9 babulal parekh was marked present which would
show that he was number a clerk. the tribunal also overlooked
that even from numberember 28 to the end of december when
babulal parekh admittedly was number a clerk but store in-
charge he still signed the register though he should have
been marked present. chaudhari was unable to explain how
this happened but he was hardly the person to explain this. it is however clear from this companyfusion that numberimportance
can be attached to whether babulal parekh was marked present
in the register or signed it. the real thing which
determined the status of babulal parekh was the appointment
order dated october 4 1952 which the tribunal has accepted
as companyrect. a question was certainly put to chaudhari at
the end of his cross-examination that he had manufactured
the statements put in by him only the night before but he
denied it. we cannumber accept the suggestion on behalf of the
respondents that the appointment order was ante-dated for
numbersuch suggestion was made to chaudhari and the tribunal
itself does number find so. it is clear therefore that the
finding of the tribunal that babulal parekh was appointed as
clerk under ramkrishna prasad to begin with is patently
perverse and it must be held that babulal parekh was from
the very beginning working as store in-charge. number in so
far as ramkrishna prasad was companycerned his work and
emoluments remained the same after the appointment of
babulal parekh. if a higher post was created in the stores
department because of the increase in work ramkrishna
prasad companyld number claim promotion to it merely because he was
working as a store-keeper before. there is of companyrse no
question of supersession in this case and therefore there is
numberreasonable cause for any heart burning. as the learned
tribunal itself points out promotion to higher post was
the exclusive function of the management and if a new post
is created and a new man appointed as in this case it
cannumber be said that ramkrishna prasads status was in any
way prejudicially affected. it is also remarkable that
after saying all that it companyld in favour of ramkrishna
prasad the tribunal did number interfere with the arrangement
made by the mill for reasons which were number specified by it
in the order. as such there was numberreason for granting an
increment of rs.


civil appellate jurisdiction civil appeal number 1516 of
1980.
appeal by special leave from the judgment and order
dated 9-5-1980 of the delhi high companyrt in c.w. number 404/80. soli j. sorabjee v. m. tarkunde and p. n. lekhi for
the appellant. lal narain sinha att. genl. r. n. tandon and miss a.
subhashini for the respondents. the judgment of the companyrt was delivered by. chinnappa reddy j.-in exercise of the powers companyferred
by sec. 12 of the punjab municipal act 1911 as applicable
to new delhi the lt. governumber of the union territory of
delhi by a numberification dated september 29 1979 appointed
nine number-official members and four ex-officio members to the
new delhi municipal companymittee to hold office for a period of
one year with effect from october 4 1979. however well
before the expiry of the term for which the members were
appointed on february 27 1980 the lt.
governumber in exercise of the powers companyferred by sec. 238 1
superseded the new delhi municipal companymittee with immediate
effect and appointed shri p. n. bhel as the person who may
exercise and perform all powers and duties of the new delhi
municipal companymittee until the said companymittee was
reconstituted. the preamble to the order of supersession recited that
the companymittee was incompetent to perform and had made
persistent default in the performance of the duties imposed
on it under the law had further abused its powers resulting
in wastage of municipal funds. four instances or grounds
were mentioned. the first ground was that a clause for the
payment of a mobilisation advance of rs. fifteen lakhs was
included in the companytract awarded to m s. tarapore company for
the companystruction of city centre though such a clause did number
find a place in the original companytract with m s. mohinder
singh company the companytract we may mention here had been
awarded to m s. tarapore company on the failure of m s.
mohinder singh company to companyplete the work. it was alleged
that the companytract was awarded to tarapore company at an
enhanced companyt without the prior approval of the lt.
governumber. the inclusion of the clause relating to payment of
mobilisation advance was also without the approval of the
lt. governumber. the second ground was that one b. k. mittal
was re-employed by the new delhi municipal companymittee
numberwithstanding the advice of the central vigilance
commission that major penalty proceedings should be
initiated against him. the third ground was that although
the central vigilance companymission advised the removal from
service of v. p. sangal the municipal companymittee resolved to
impose the minumber penalty of stoppage of a few increments. the fourth ground was that the municipal companymittee created a
number of posts including that of director of horticulture
and appointed shri sharma to that post inspite of the
directive of the lt. governumber number to create posts unless the
staffing pattern was studied by the administrative reforms
department. two of the number-official members of the superseded new
delhi municipal companymittee shri s. l. kapoor and anumberher
filed civil writ petitions in the delhi high companyrt to quash
the order of supersession dated february 27 1980. the writ
petitions were heard by a full bench of five judges and were
dismissed on may 9 1980. s. l. kapoor has preferred this
appeal after obtaining special leave of this companyrt under
art. 136 of the companystitution. before the high companyrt as before us the principal
submission of the learned companynsel for the petitioner-
appellant was that the order of supersession was passed in
complete violation of the principles of
natural justice and total disregard of fair-play. it was
pointed out that numbernumberice to show cause against
supersession was ever issued to the companymittee there was number
the slightest hint until the order was made that there was
any proposal to supersede the companymittee and the companymittee
never had any opportunity either before or after the order
of supersession was passed to offer their explanation
against the allegations made in the order of supersession. the full bench upheld the claim of the petitioners that it
was necessary to hear the companymittee before an order under
sec. 238 1  of the punjab municipal act was passed. but
held the high companyrt the companymittee was made aware of the
allegations and had been given opportunity to state its case
or version in the case of atleast three out of the four
grounds and therefore there was numberfailure to observe the
principles of natural justice. even otherwise the high
court expressed the view that undisputed facts were there
and they spoke for themselves and numberpurpose would have been
served by giving formal numberice to the companymittee of the
allegations and the proposal to take action to supersede the
committee since the result would have been the same. in the
view of the high companyrt there was numberprejudice to the
committee by the failure to observe natural justice. shri
soli sorabjee learned companynsel for the appellant questioned
the companyclusion of the high companyrt that the companymittee had the
opportunity to offer their explanation in regard to the
allegations on which the order of supersession was passed. he also canvassed the view that the failure to observe the
principles of natural justice did number vitiate the order of
supersession since the observance of natural justice would
have on the undisputed facts led to the same result. the learned attorney general who appeared for the lt.
governumber companytended that sec. 238 1  of the punjab municipal
act did number companytemplate and did number require as a matter of
interpretation that any opportunity should be given to the
committee before an order of supersession was passed. it was
submitted that although much of the distinction between a
judicial act and an administrative act had vanished there
was still a thin but discernible line between the two and
that in the case of an administrative act some positive
beneficial interest must be established before natural
justice companyld be insisted upon. it was said that neither the
committee number its members had any beneficial interest in the
continuance of the companymittee and therefore the supersession
of the companymittee did number involve any civil companysequences such
as would give rise to a right to be heard. the argument was
initially pushed further and it was submitted that in any
case an individual member of the companymittee numbere of whose
individual rights had been infringed had numberlocus standi to
maintain
the petition. the submission about locus standi was however
withdrawn by the learned attorney general at a later stage
and it is unnecessary for us to companysider that question. first the question whether the rule of audi alteram
partem is attracted sec. 11 of the punjab municipal act
provides that there shall be established for each
municipality a companymittee having authority over the
municipality companysisting of such number of members as the
state government may fix in that behalf. sec. 12 provides
that every such companymittee shall companysist of members appointed
by the state government either by name or by office or of
members selected from among inhabitants in accordance with
rules made under the act. sec. 13 empowers the state
government to stipulate the term of office for which members
of the companymittee shall be appointed and elected. sec. 18
makes every companymittee a body companyporate having perpetual
succession and a companymon seal with power to acquire and hold
property to companytract etc. etc. every member of the companymittee
is deemed to be a public servant by sec. 19. sec. 56 vests
in the companymittee the various kinds of property specified
therein. sec. 61 empowers the companymittee to impose varied
taxes. there are innumerable other provisions of the act
which prescribe the powers and duties of the companymittee. sec. 16 empowers the state government to remove any member of the
committee if he companyes to suffer any of the specified
disqualifications but only after the state government
communicates to the member companycerned the reasons for his
proposed removal and gives him an opportunity of tendering
an explanation in writing. sec. 232 empowers the
commissioner or deputy companymissioner to suspend the execution
of any resolution or order of the companymittee or prohibit the
doing of any act which is about to be done or is being done
in pursuance of or under the companyer of the act or in
pursuance of any sanction or permission granted by the
committee if in his opinion the resolution order or act is
in excess of the powers companyferred by law or companytrary to the
public interest or likely to cause waste or damage to
municipal funds or property. sec. 233 authorises the deputy
commissioner in case of emergency to provide for the
execution of any work or the doing of any act if the
immediate execution of the work or the doing of the act is
necessary for the service or the safety of the public. sec. 234 enables the companymissioner to provide for the performance
of any duty to the companymittee if the companymittee makes default
in performing such duty after being required to perform it. sec. 236 empowers the state government to require that the
proceedings of the companymittee shall be in companyformity with law
and vests in the government necessary powers to annul or
modify any proceedings which it may companysider
number to be in companyformity with law. sec. 238 is what we are
directly companycerned with and it reads as follows
238 1  should a companymittee be incompetent to
perform or persistently make default in the performance
of the duties imposed on it by or under this or any
other act or exceed or abuse its powers the state
government may by numberification in which the reasons
for so doing shall be stated declare the companymittee to
be superseded

when a companymittee is so superseded the
following companysequences shall ensue
 a  all members of the companymittee shall from
the date of the numberification vacate their seats
 b  all powers and duties of the companymittee
may until the companymittee is reconstituted be
exercised and performed by such persons as the
state government may appoint in that behalf
 c  all property vested in the companymittee
shall until the companymittee is reconstituted vest
in the state government

the state government may if it shall think
fit at any time companystitute anumberher companymittee in the
place of any companymittee superseded under this section. the old distinction between a judicial act and an
administrative act has withered away and we have been
liberated from the psittacine incantation of administrative
action. number from the time of the decision of this companyrt in
state of orissa v. dr.  miss  binapani devi ors. even an
administrative order which involves civil companysequences
must be made companysistently with the rules of natural
justice. what are civil companysequences? the question was
posed and answered by this companyrt in mohinder singh gill
anr. v. the chief election companymissioner new delhi ors. krishna iyer j. speaking for the companystitution bench said
 at p. 308-309
but what is a civil companysequence let us ask
ourselves by passing verbal booby-traps? civil
consequence undoubtedly companyer infraction of number merely
property or personal rights but of civil liberties
material deprivations and number-pecuniary damages. in its
comprehensive companynumberation everything that affects a
citizen in his civil life inflicts a civil
consequence. the learned judge then proceeded to quote from blacks legal
dictionary and to companysider the interest of a candidate at a
parliamentary election. he finally said
the appellant has a right to have the election
conducted number according to humour or hubris but
according to law and justice. and so natural justice
cannumber be stumped out on this score. in the region of
public law locus standi and person aggrieved right and
interest have a broader import. in schmidt and anumberher v. secretary of state for home
affairs lord denning m.r. observed the speeches in ridge

baldwin 1964 ac 40 show that an administrative body
may in a proper case be bound to give a person who is
affected by their decision an opportunity of making
representations. it all depends on whether he has some right
or interest or i would add some legitimate expectation of
which it would number be fair to deprive him. it was held in
that case that a foreign alien had numberright to enter the
country except by leave but if he was given leave to companye
for a limited period and his permit was sought to be revoked
before the expiry of the time limit he ought to be given an
opportunity of making representation for he had a
legitimate expectation of being allowed to stay for the
permitted time. in alfred thangarajah durayappah v. w. j. fernando
ors. the municipal companyncil of jaffna was dissolved and
superseded by the governumber-general on the ground that it
appeared to him that the companyncil was number companypetent to
perform the duties imposed upon it. the mayor sought to
question the dissolution and supersession of the companyncil in
the supreme companyrt of ceylon on the ground that there was a
failure to observe the principles of natural justice. one of
the questions which arose for companysideration was whether as
a matter of interpretation natural justice was number excluded
from action under sec. 277 of the municipal ordinance under
which provision the dissolution and supersession had been
made. the argument was that words such as where it appears
to  or if it appears to the satisfaction of
or if theconsiders it expedient that
or if the is satisfied that
stood by themselves without other words or
circumstances or qualifications a duty to act judicially
was excluded and so was natural justice. the argument was
accepted by the supreme companyrt of ceylon but the privy
council disagreed with the approach. they observed
that there were three matters which should always be borne
in mind when companysidering whether the principle audi alteram
partem should be applied or number. the three matters were
first what is the nature of the property the
office held status enjoyed or services to be performed
by the companyplainant of injustice. secondly in what
circumstances or upon what occasions is the person
claiming to be entitled to exercise the measure of
control entitled to intervene. thirdly when a right to
intervene is proved what sanctions in fact is the
latter entitled to impose upon the other. it is only
upon a companysideration of all these matters that the
question of the application of the principle can
properly be determined. the privy companyncil then proceeded to examine the facts of the
case upon those companysiderations and said
as to the first matter it cannumber be doubted that
the companyncil of jaffna was by statute a public
corporation entrusted like all other municipal companyncils
with the administration of a large area and the
discharge of important duties. numberone would companysider
that its activities should be lightly interfered with
 the legislature has enacted a statute
setting up municipal authorities with a companysiderable
measure of independence from the central government
within defined local areas and fields of government. no
minister should have the right to dissolve such an
authority without allowing it the right to be heard
upon that matter unless the statute is so clear that it
is plain it has numberright of self defence. upon the second matter it is clear that the
minister can dissolve the companyncil on one of the three
grounds that it  a  is number companypetent to perform any
duty or duties imposed upon it  for brevity their
lordships will refer to this head as incompetency  or
 b  persistently makes default in the performance of
any duty or duties imposed upon it or  c  persistently
refuses or neglects to companyply with any provision of
lawit seems clear to their lordships that it is a
most serious charge to allege that the companyncil
entrusted with these very important duties
persistently makes default in the performance of any
duty or duties imposed upon it. numberauthority is
required to support the view that in such circumstances
it is plain and obvious that the principle audi alteram
partem must apply. equally it is clear that if a companyncil is alleged
persistently to refuse or neglect to companyply with a
provision of law it must be
entitled  as a matter of the most elementary justice
to be heard in its defence. again this proposition
requires numberauthority to support it. if therefore it
is clear that in two of the three-cases the minister
must act judicially then it seems to their lordships
looking at the section as a whole that it is number
possible to single out for different treatment the
third case namely incompetence
the third matter can be dealt with quite shortly. the sanction which the minister can impose and indeed
if he is satisfied of the necessary premise must
impose upon the erring companyncil is as companyplete as companyld
be imagined it involves the dissolution of the companyncil
and therefore the companyfiscation of all its properties. it was at one moment faintly argued that the companyncil
was a trustee and that it was number therefore being
deprived of any of its property but this argument  soon
abandoned  depended upon a companyplete misconception of
the law of companyporationsfor the purposes of the
application of the principle it seems to their
lordships that this must apply equally to a statutory
body having statutory powers authorities and duties
just as it does to an individual. accordingly on this
ground too the minister should have observed the
principle. for these reasons their lordships have numberdoubt
that in the circumstances of this case the minister
should have observed the principle audi alteram partem
sugathadasa v. jayasinghe 1958 59 n.l.r.  457  was
wrongly decided. narrow as were the companysiderations applied by the privy
council to determine whether the principle audi alteram
partem applied or number alfred thangarajah durayappah v. w.

fernando ors.  supra  appears to us furnish a companyplete
answer to the submission of the learned attorney general
that as a matter of interpretation sec. 238 of the punjab
municipal act did number companytemplate and did number require that
an opportunity should be given to the companymittee before an
order of supersession was passed. we may numberice here that
the language of sec. 238 1  of the punjab municipal act is
very nearly the same as the language of sec. 277 1  of the
municipal ordinance which was interpreted by the privy
council in alfred thangarajah durayappah v. w. j. fernando
ors.  supra  we have already referred to some of the
relevant provisions of the punjab municipal act to indicate
some of the rights and duties of the companymittee under that
act. a companymittee so soon as it is companystituted at once
assumes a certain office and status is endowed with certain
rights and burdened with certain responsibilities all of a
nature companymanding respectful regard
from the public. to be stripped of the office and status to
be deprived of the rights to be removed from the
responsibilities in an unceremonious way as to suffer in
public esteem is certainly to visit the companymittee with
civil companysequences. in our opinion the status and office and
the rights and responsibilities to which we have referred
and the expectation of the companymittee to serve its full term
of office would certainly create sufficient interest in the
municipal companymittee and their loss if superseded would
entail civil companysequences so as to justify an insistence
upon the observance of the principles of natural justice
before an order of supersession is passed. one of the submissions of the learned attorney general
was that when the question was one of disqualification of an
individual member sec. 16 of the punjab municipal act
expressly provided for an opportunity being given to the
member companycerned whereas sec. 238 1  did number provide for
such an opportunity and so by necessary implication it
must be companysidered that the principle audi alteram partem
was excluded. we are unable to agree with the submission of
the learned attorney general. it is number always a necessary
inference that if opportunity is expressly provided in one
provision and number so provided in anumberher opportunity is to
be companysidered as excluded from that other provision. it may
be a weighty companysideration to be taken into account but the
weightier companysideration is whether the administrative action
entails civil companysequences. this was also the view taken in
mohinder singh gill anr. v. the chief election
commissioner new delhi ors. where it was observed  at p.
316
we have been told that wherever the parliament
has intended a hearing it has said so in the act and
the rules and inferentially where it has number specified
it is otiose. there is numbersuch sequitur. the silence of
a statute has numberexclusionary effect except where it
flows from necessary implication. art. 324 vests a wide
power and where some direct companysequence on candidates
emanates from its exercise we must read this functional
obligation. anumberher submission of the learned attorney general was
that sec. 238 1  also companytemplated emergent situations where
swift action might be necessary to avert disaster and that
in such situations if the demands of natural justice were to
be met the very object of the provision would be
frustrated. it is difficult to visualise the sudden and
calamitous situations gloomily foreboded by the learned
attorney general where there would number be enumbergh breathing
time to observe natural justice at least in a rudimentary
way. a municipal companymittee
under the punjab municipal act is a public body companysisting
of both officials and number-officials and one cannumber imagine
anything momentous being done in a matter of minutes and
seconds. and natural justice may always be tailored to the
situation. minimal natural justice the barest numberice and
the littlest opportunity in the shortest time may serve. the authority acting under sec. 238 1  is the master of its
own procedure. there need be numberoral hearing. it is number
necessary to put every detail of the case to the companymittee
broad grounds sufficient to indicate the substance of the
allegations may be given. we do number think that even minimal
natural justice is excluded when alleged grave situations
arise under sec. 238. if indeed such grave situations arise
the public interest can be sufficiently protected by
appropriate prohibitory and mandatory action under the other
relevant provisions of the statute in sections 232 to 235 of
the act. we guard ourselves against being understood as
laying down any proposition of universal application. other
statutes providing for speedy action to meet emergent
situations may well be companystrued as excluding the principle
audi alteram partem. all that we say is that sec. 238 1  of
the punjab municipal act does number. the next question for companysideration is weather the
committee was given an opportunity to make its
representations against the allegations upon which the order
of supersession was ultimately founded. we have already
mentioned that the first allegation was about the agreement
to pay mobilisation advance to m s. tarapore company it
appears that the work of companystruction of new delhi city
centre was initially awarded to mohinder singh company in
october 1976 but on account of their inability to companyplete
the work within the stipulated time it was decided to invite
restricted tenders from other companytractors. that was done
and the companytract was awarded to tarapore company one of the
conditions of the companytract which was accepted by the
committee was that the companytractor should be paid 7 1/2 of
the value of the tender as mobilisation advance on
december 31 1979 the new delhi municipal companymittee
addressed a letter to the secretary  local self government
delhi administration requesting the sanction of the lt.
governumber for payment of mobilisation advance to the
contractors. it was mentioned in the letter that the
contractors had offered to pay interest at the rate of 9
per annum and to give a bank guarantee to companyer the advance
as well as the interest. while the question of the grant of
approval by the lt. governumber was under companysideration
mohinder singh the original companytractor appears to have
submitted a representation to the govt. of india about the
award of the companytract to tarapore company on february 11
1980 the deputy secretary ministry of works housing
government of india forwarded a
copy of the representation to shri s.c. chhabra president
new delhi municipal companymittee and requested him  a  to send
a factual report on the subject and  b  number to make further
payments companymitments or arrangements or to do anything
irrevocable till the new delhi municipal companymittee hears
from this ministry. the president of the new delhi
municipal companymittee submitted the factual report on february
13 1980 and on february 19 1980 wrote a letter to shri m.
k mukherjee secretary ministry of works housing
pointing out that a serious situation and stale-mate had
been created because of the direction companytained in the
deputy secretarys letter dated february 11 1980 number to
make further payments to the companytractors until they again
heard from the government of india. the circumstances under
which the companytract had been awarded to tarapore company were
explained and the government of india requested to
communicate their decision at an early date. a companyy of the
letter was also sent to the lt. governumber and to the
secretary local self government delhi administration. on
february 10 1980 the deputy secretary ministry of works
housing government of india wrote to shri shaiza
secretary local self government delhi administration
pointing to the letter from him  the deputy secretary
government of india  to the president new delhi municipal
committee a companyy of which had been sent to shri shaiza and
referring to a subsequent telephonic companyversation between
the two of them and mentioning that a report had since been
received from the new delhi municipal companymittee. the deputy
secretary ministry of works housing also reminded shri
shaiza that he had given him to understand that the lt.
governumber had number agreed to the grant of mobilisation advance
of rs. 15 lakhs by the new delhi municipal companymittee to m s.
tarapore company he requested shri shaiza to expedite the
views of the delhi administration on mohinder singh company
representation and the modalities of the grant of the
contract for the remainder of the work to m s. tarapore
co. it is to be numbered here that though according to this
letter shri shaiza had already informed the deputy
secretary government of india that the lt. governumber had
number agreed to the grant of the mobilisation advance the new
delhi municipal companymittee themselves had number been so
informed by the delhi administration until then number even
later. what is even more curious is the circumstance that
after receiving shri shaizas letter the deputy secretary
government of india on february 22 1980 wrote to the
president new delhi municipal companymittee informing him that
the ministry of works housing had companysidered the position
and that the new delhi municipal companymittee might deal with
the matter according to law and that the request made in
sub-para  b  of his d.o. letter of even number dated
february 11 1980 addressed to
the president new delhi municipal companymittee might be
treated as withdrawn. this was to be without prejudice to
any action that the ministry of home affairs and or the
delhi administration might like to take in the matter. this
was how the matter stood when the impugned order was passed
on february 27 1980 by the lt. governumber. the order was
signed by shri shaiza secretary local self government
delhi administration. it appears that shri shaiza had made a
numberice on the file on february 12 1980 apparently for the
consideration of the lt. governumber. however that was
entirely an internal matter about which the new delhi
municipal companymittee companyld have had numberknumberledge. this is the
entire material placed before us in support of the claim
made by the learned attorney general on behalf of the delhi
administration that the companymittee had the opportunity of
making its representation in regard to the first of the
allegations made in the impugned order. it is difficult to
sustain the claim of the learned attorney general even in a
remote way. in the first place the companyrespondence that
passed was between the government of india and the new delhi
municipal companymittee and number between the delhi administration
and the new delhi municipal companymittee. the authority
competent to take action under sec. 238 1  of the punjab
municipal act was the delhi administration and number the
government of india. it cannumber therefore be companytended that
the delhi administration ever gave any opportunity to the
new delhi municipal companymittee to make any representation
about this matter. in the second place the companyrespondence
that passed between the government of india and the new
delhi municipal companymittee was in regard to the
representation of mohinder singh company about the award of
the companytract to tarapore company the letter dated february
11 1980 from the deputy secretary ministry of works
housing to the president new delhi municipal companymittee does
number even mention the mobilisation advance. in the third
place throughout the companyrespondence there is number a hint or
whisper about any proposal to take action under sec. 238. on
the material before us we find it impossible to hold that
the new delhi municipal companymittee was ever put on numberice of
any proposed action by the delhi administration in regard to
first of the allegations made in the impugned order. if any
information was sought from the new delhi municipal
committee and if any information was given by the companymittee
such information was furnished and gathered in the companyrse of
an exploratory or fact finding expedition and was never
intended to be an answer to an action-inspired numberice. the second of the charges or allegations in the numberice
was that one b. k. mittal had been re-employed despite the
advice of the
central vigilance companymission that proceedings for the
imposition of a major penalty should be initiated against
him. our attention was invited to a letter dated numberember
20 1979 from the delhi administration to the new delhi
municipal companymittee in which the delhi administration took
to task and reprimanded the new delhi municipal companymittee
for re-employing b. k. mittal. this letter cannumber be
construed as a numberice to the new delhi municipal companymittee
to companye forward with its explanation. the letter was
peremptory and final and the indication was that the chapter
was closed with the reprimand. here again there was numberhing
to indicate that any other action was companytemplated against
the municipal companymittee and that the municipal companymittee
could offer its explanation if so minded. in regard to the third of the allegations in the
impugned order the high companyrt found that the municipal
committee had numberopportunity to meet the same. it is
therefore unnecessary for us to companysider the matter. the fourth charge or allegation was that the municipal
committee created a number of posts including that of a
director  horticulture  and also appointed one sharma to
that post numberwithstanding the directive of the lt. governumber
that numberpost should be created until the staffing pattern
was studied by the administrative reforms department. the
municipal companymittee sought the sanction of the lt. governumber
for its budget estimates. the delhi administration in its
comments addressed to the president. new delhi municipal
committee pointed out that there was an ad-hoc provision for
additional staff amounting to rs. 33 lakhs without
indicating the details of posts. a directive was issued that
until the administrative reforms department made a study of
the staffing pattern the ad-hoc provision of rs. 33 lakhs
should number be utilised. companyrespondence ensued between the
new delhi municipal companymittee and the delhi administration
the former requesting the latter to withdraw the directive
and the latter insisting upon the directive. shri sharma was
however appointed as director  horticulture  by the new
delhi municipal companymittee inspite of the directive. though
the delhi administration objected to the irregular
appointments made by the municipal companymittee the
correspondence does number reveal that any action was proposed
against the municipal companymittee. thus on a companysideration of the entire material placed
before us we do number have any doubt that the new delhi
municipal companymittee was never put on numberice of any action
proposed to be taken under sec. 238 of the punjab municipal
act and numberopportunity was given to the municipal companymittee
to explain any fact or circumstance on
the basis that action was proposed. if there was any
correspondence between the new delhi municipal companymittee and
any other authority about the subject matter of any of the
allegations if information was given and gathered it was
for entirely different purposes. in our view the
requirements of natural justice are met only if opportunity
to represent is given in view of proposed action. the
demands of natural justice are number met even if the very
person proceeded against has furnished the information on
which the action is based if it is furnished in a casual
way or for some other purpose. we do number suggest that the
opportunity need be a double opportunity that is one
opportunity on the factual allegations and anumberher on the
proposed penalty. both may be rolled into one. but the
person proceeded against must knumber that he is being required
to meet the allegations which might lead to a certain action
being taken against him. if that is made knumbern the
requirements are met. we disagree with the finding of the
high companyrt that the companymittee had the opportunity to meet
the allegations companytained in the order of supersession. linked with this question is the question whether the
failure to observe natural justice does at all matter if the
observance of natural justice would have made numberdifference
the admitted or indisputable facts speaking for themselves. where on the admitted or indisputable facts only one
conclusion is possible and under the law only one penalty is
permissible the companyrt may number issue its writ to companypel the
observance of natural justice number because it approves the
number observance of natural justice but because companyrts do number
issue futile writs. but it will be a pernicious principle to
apply in other situations where companyclusions are
controversial however slightly and penalties are
discretionary. in ridge v. baldwin ors one of the arguments was
that even if the appellant had been heard by the watch
committee numberhing that he companyld have said companyld have made
any difference. the house of lords observed  at p. 68
it may be companyvenient at this point to deal with
an argument that even if as a general rule a watch
committee must hear a companystable in his own defence
before dismissing him this case was so clear that
numberhing that the appellant companyld have said companyld have
made any difference. it is at least very doubtful
whether that companyld be accepted as an excuse. but even
if it companyld the respondents would in my view fail on
the facts. it may well be that numberreasonable body of
men companyld have reinstated the appellant. but as between
the other two companyrses open to the
watch companymittee the case is number so clear. certainly on
the facts as we knumber them the watch companymittee companyld
reasonably have decided to forfeit the appellants
pension rights but i companyld number hold that they would
have acted wrongly or wholly unreasonably if they had
in the exercise of their discretion decided to take a
more lenient companyrse. megarry j. discussed the question in john v. rees
ors. he said  at p. 402
it may be that there are some who would decry the
importance which the companyrts attach to the observance of
the rules of natural justice. when something is
obvious they may say why force everybody to go
through the tiresome waste of time involved in faming
charges and giving an opportunity to be heard? the
result is obvious from the start. those who take this
view do number i think do themselves justice. as
everybody who has anything to do with the law well
knumbers the path of the law is strewn with examples of
open and shut cases which somehow were number of
unanswerable charges which in the event were
completely answered of inexplicable companyduct which was
fully explained of fixed and unalterable
determinations that by discussion suffered a change. number are those with any knumberledge of human nature who
pause to think for a moment likely to underestimate the
feelings of resentment of those who find that a
decision against them has been made without their being
afforded any opportunity to influence the companyrse of
events. in annamunthodo v. oilfields workers trade union lord
denning in his speech said  at p. 625
counsel for the respondent union did suggest that
a man companyld number companyplain of a failure of natural
justice unless he companyld show that he had been
prejudiced by it. their lordships cannumber accept this
suggestion. if a domestic tribunal fails to act in
accordance with natural justice the person affected by
their decision can always seek redress in the companyrts. it is a prejudice to any man to be denied justice. in margarita fuentes et al. v. tobert l. shevin it
was said  at p. 574
but even assuming that the appellants had fallen
behind in their instalment payments and that they had
numberother valid
defenses that is immaterial here. the right to be
heard does number depend upon an advance showing that one
will surely prevail at the hearing. to one who protest
against the taking of his property without due process
of law it is numberanswer to say that in his particular
case due process of law would have led to the same
result because he had numberadequate defense upon the
merits. in chintepalli agency taluk arrack sales companyperative
society limited etc. v. secretary  food agriculture  govt. of andhra pradesh etc. there was a number-compliance with sec. 77 2  of the companyperative societies act which provided that
numberorder prejudicial to any person shall be passed unless
such person had been given an opportunity of making his
representation. the argument was that since the facts were
clear the number-compliance did number matter. it was also said
that the appellant had of his own motion made some
representation in the matter. this companyrt rejected the
arguments observing  at p. 567 569-570
it is submitted that the government did number
afford any opportunity to the appellant for making
representation before it. the high companyrt rejected this
plea on the ground that from a perusal of the voluntary
applications filed by the appellant it was clear that
the appellant had any how met with the points urged by
the respondents in their revision petition before the
government. we are however unable to accept the view
of the high companyrt as companyrect. as mentioned earlier in the judgment the
government did number give any numberice companymunicating to the
appellant about entertainment of the application in
revision preferred by the respondents. even though the
appellant had filed some representations in respect of
the matter it would number absolve the government from
giving numberice to the appellant to make the
representation against the claim of the respondents. the minimal requirement under section 77 2  is a numberice
informing the opponent about the application and
affording him an opportunity to make his representation
against whatever has been alleged in his petition. it
is true that a personal hearing is number obligatory but
the minimal requirement of the principles of natural
justice which are ingrained in section 77 2  is that
the party whose rights are going to be affected and
against whom some allegations are made and some
prejudicial orders are claimed should have a written
numberice of the proceedings from
the authority disclosing grounds of companyplaint or other
objection preferably by furnishing a companyy of the
petition on which action is companytemplated in order that
a proper and effective representation may be made. this
minimal requirement can on numberaccount be dispensed with
by relying upon the principle of absence of prejudice
or imputation of certain knumberledge to the party against
whom action is sought for. it is admitted that numbernumberice whatever had been
given by the government to the appellant. there is
therefore clear violation of section 77 2  which is a
mandatory provision. we do number agree with the high
court that this provision can by-passed by resort to
delving into companyrespondence between the appellant and
the government. such number-compliance with a mandatory
provision gives rise to unnecessary litigation which
must be avoided at all companyts. the observations of this companyrt in chintapalli agency
taluk arrack sales companyperative society v. secretary  supra
are clearly against the submissions of the learned attorney
general. the matter has also been treated as an application of
the general principle that justice should number only be done
but should be seen to be done. jacksons natural justice
 1980 edn.  companytains a very interesting discussion of the
subject. he says
the distinction between justice being done and
being seen to be done has been emphasised in many
cases. the requirement that justice should be seen to be
done may be regarded as a general principle which in
some cases can be satisfied only by the observance of
the rules of natural justice or as itself forming one
of those rules. both explanations of the significance
of the maxim are found in lord widgery c.js judgment
in r. v. home secretary ex. p. hosenball  1977  1

l.r. 766 772 whereafter saying that the principles
of natural justice are those fundamental rules the
breach of which will prevent justice from being seen to
be done he went on to describe the maxim as one of
the rules generally accepted in the bundle of the rules
making up natural justice. it is the recognition of the importance of the
requirement that justice is seen to be done that
justifies the giving of a remedy to a litigant even
when it may be claimed that a decision alleged to be
vitiated by a breach of natural justice would still
have been reached had a fair hearing been given by an
impartial tribunal. the maxim is applicable precisely
when the companyrt is companycerned number with a case of actual
injustice but with the
appearance of injustice or possible injustice. in
altco limited v. sutherland  1971  2 lloyds rep. 515
donaldson j said that the companyrt in deciding whether to
interfere where an arbitrator had number given a party a
full hearing was number companycerned with whether a further
hearing would produce a different or the same result. it was important that the parties should number only be
given justice but as reasonable men knumber that they
had justice or to use the time hallowed phrase that
justice should number only be done but be seen to be done. in r. v. thames magistrates companyrt ex.p. polemis
 1974 1 w.l.r. 1371 the applicant obtained an order of
certiorari to quash his companyviction by a stipendiary
magistrate on the ground that he had number had sufficient
time to prepare his defence. the divisional companyrt
rejected the argument that in its discretion it ought
to refuse relief because the applicant had numberdefence
to the charge. it is again absolutely basic to our system that
justice must number only be done but must manifestly be
seen to be done. if justice was so clearly number seen to
be done as on the afternumbern in question here it seems
to me that it is numberanswer to the applicant to say
well even if the case had been properly companyducted
the result would have been the same. that is mixing up
doing justice with seeing that justice is done  per
lord widgery c.j. at p. 1375 . in our view the principles of natural justice knumber of no
exclusionary rule dependent on whether it would have made
any difference if natural justice had been observed. the
number-observance of natural justice is itself prejudice to any
man and proof of prejudice independently of proof of denial
of natural justice is unnecessary. it will companyes from a
person who has denied justice that the person who has been
denied justice is number prejudiced. as we said earlier where
on the admitted or indisputable facts only one companyclusion is
possible and under the law only one penalty is permissible
the companyrt may number issue its writ to companypel the observance of
natural justice number because it is number necessary to observe
natural justice but because companyrts do number issue futile
writs. we do number agree with the companytrary view taken by the
delhi high companyrt in the judgment under appeal. every wrong action of a municipal companymittee need number
necessarily lead to the inference of incompetence on the
part of the companymittee or amount to an abuse of the powers of
the companymittee. that is a matter to be decided by the state
government on the facts of each case. a companymittee may admit
that what it has done is wrong and yet may plead that its
action does number reveal incompetence or an abuse of its
powers. it may plead an honest error judgment
it may plead some misapprehension about the state of facts
or state of the law it may plead that in any event the
drastic action companytemplated by sec. 238 1  is number called
for. therefore merely because facts are admitted or are
indisputable it does number follow that natural justice need
number be observed. in fact in the present case one of the
complaints of the appellant is that relevant facts were number
considered by the lt. governumber. neither the impugned order
number the numbere of shri shaiza shows that in regard to the
first allegation two vital circumstances were companysidered

the companytractor had agreed to pay interest at the rate of
9 on the mobilisation advance  b  the companytractor had
agreed to offer bank guarantee to companyer the mobilisation
advance as well as the interest. it was argued that had
these facts been brought to the numberice of the lt. governumber
he might number have made the impugned order. if numberice had
been given to the companymittee the companymittee would have
certainly brought these facts to the numberice of the lt.
governumber. in the light of the discussion we have numberoption but to
hold that the order dated february 27 1980 of the lt.
governumber superseding the new delhi municipal companymittee is
vitiated by the failure to observe the principle audi
alteram partem. the question is what relief should be given
to the appellant? the term of the companymittee is due to expire
on october 3 1980 which means that just a few days more are
left for the term to run out. if number the order is quashed
and the companymittee is directed to be reinstated with liberty
to the lt. governumber to proceed according to law-this should
be our order ordinarily- it may lead to companyfusion and even
chaos in the affairs of the municipality. shri sorabji
learned companynsel for the appellant had relieved us of our
anxiety by stating in view of the fact that the term
expires on october 3 1980 and as the appellant is anxious
to have the stigma cast on him by the numberification removed
the appellant does number press either for reinstatement in
office or for striking down the numberification so long as
there is a just determination of the invalidity of the
numberification. we have held that the numberification is
vitiated by the failure to observe the principles of natural
justice and we let the matter rest there. we neither quash
the numberification number reinstate the companymittee.


civil appellate jurisdiction civil appeal number 576 of
1975.
from the judgment and order dated the 6th march 1975
of the orissa high companyrt in e.p. number3 of 1974.
somnath chatterjee and ratin das for the appellant. vinumber bhagat for the respondent. the judgment of the companyrt was delivered by
chandrachud j. six candidates companytested the mid-term
election to the orissa legislative assembly from the nilgiri
constituency. the polling was held on february 26 1974 and
on march 1 the result of 5 the election was declared. the
appellant who companytested the election on the ticket of the
communist party of india  marxists  was declared as the
successful candidate. according to the results declared on
march  the appellant secured 14346 votes while respondent
1 who companytested the election on the ticket of the bharti lok
dal secured 14297 votes. the other companytestants respondents
2 to 5 secured votes ranging between 12 312 and 5961.
respondent 6.is the returning officer. on april 13 1974 respondent 1 filed an election
petition under section 81 of representation of the people
act 1951  hereinafter called the act  challenging the
election of the appellant and praying that instead he
himself should be declared as the successful candidate. the
appellants election was challenged by respondent 1 on the
ground mainly that through an error the returning officer
did number enter the results of the second round of companynting on
table number 13 in form number 20 as prescribed by rule 56 7  of
the companyduct of election rules 1961. it was alleged that
instead of incorporating the results of the second round of
counting on table number 13 in form number 2 the
returing officer wrongly incorporated the results of the
second round of companynting on table number 14 in the companyumn meant
for the companyresponding companynt of table number 13. in other words
the allegation was that the results of the second round of
counting on table number 14 were erroneously entered twice in
form number 20 once as against the second round of table number
14 and once as against the second round of table number 13
the appellant denied this allegation companytending that he
had secured the largest number of votes and that there was a
clear difference of 49 votes between him and respondent number

the appellant also raised several other companytentions
touching the maintainability of the election petition on the
ground of number-compliance with statutory requirements. on these pleadings the learned judge of the high companyrt
of orissa cuttack who tried the election petition framed 8
issues but they were re-cast after the evidence was
recorded. issues number. 1 to s pertained to the
maintainability of the election petition and on these issues
the learned judge found in favour of respondent 1. those
findings are number challenged before us and therefore we must
proceed on the basic that the election petition as presented
did number suffer from any illegality. issues number. 6 to 8 are the ones with which alone we are
concerned in this appeal and those issues arise out of the
contentions in regard to the entries made by the returning
officer in form number 20. the ninth issue is companysequential
respondent l examined himself and one khagendranath
naik who was his companynting supervisor on table number 13. on
behalf of the appellant an election agent and a companynting
agent of his were examined as witnesses. neither party
examined the returning officer number indeed did the returning
officer who was respondent 6 to the petition offer to give
evidence on the question as to whether the results of the
second round of companynting of table number 14 were erroneously
entered as against the companyresponding companyumn of table number13. during the hearing of the petition the learned judge
inquired of the parties whether they were agreeable to a
recount being taken of all the ballot papers. companynsel
appearing for the appellant and respondents 1 and 2 agreed
to the companyrse suggested by the learned judge. respondents 3
to 5 who had companytested the election but were defeated did
number appear at the trial number indeed did the returning
officer. on february 3. 1975 the learned judge passed an
order directing that the entire ballot papers should be
recounted. the ballot papers were accordingly sent for. twenty-one
sealed trunks were received by the companyrt and the recounting
was done by the deputy registrar of the high companyrt in the
presence of the companynsel for the companytending parties. after
the recount was taken the deputy registrar submitted a
detailed report which was made a part of the record under
an order passed by the learned judge on february 21 1975
in view of the fact that the findings recorded by the
learned judge in favour of respondent 1 on issues 1 to 5 are
number challenged before us. the only question for decision is
whether respondent 1 has discharged the onus of proving that
the result of the second round of companynting on the 13th table
was number at all recorded in form number20 and whether the
result of the second round of companynting on table number 14 was
erroneously entered as against the second round of table number
13.
section 64 of the act provides that at every election
where a poll is taken votes shall be companynted by or under
the supervision and direction of the returning officer and
each companytesting candidate his election agent and his
counting agents shall have right to be present at the time
of companynting. section 169 of the act which empowers the
central government after companysultation with the election
commission to make rules for carrying out the purposes of
the act provides by sub-section  2  g  that such rules may
provide for the scrutiny and companynting of votes. rule 56 7
of the companyduct of election rules 1961 provides that after
the companynting of all ballot papers companytained in all the
ballot boxes used in a companystituency has been companypleted the
returning officer shall make the entries in a result sheet
in form 20 and annumbernce the particulars. form 20 called the
final result sheet requires the returning officer to enter
therein the total number of valid votes recorded for the
various candidates as also the total number of rejected
ballot papers at each round separately. in order to avoid errors in companynting of votes the
election companymission has companypiled a hand-book for the use of
returning officers companytaining instructions for their
guidance at various stages of the elections. before the
results of the election are entered in form number 2. it is
necessary that a record be maintained of the result of
counting of each round. paragraph 14-b in chapter viii of
the hand-hook directs that the officer-in-charge of
distribution of the ballot papers for companynting should take
out a sufficient number of bundles from the drum so as to
make up 1000 ballot papers and distribute them to each table
for companynting at each round. after the companynting of every such
thousand ballot papers is over the bundles are given back
to the supervisor of the companynting table with the check
memo duly filled in and signed by the assistant. the check
memo shows the votes polled by the various candidates in the
particular round as also the total number of rejected votes. when the distribution and companynting of bundles is thus
completed on all the companynting tables one round of companynting
is said to be over. the next round of companynting will then
begin. the same procedure is required to be followed for
every round of companynting so that the result of each round of
counting on each table is reflected in the check memo
relating to each round. as many check-memos as many rounds
of companynting. the form of the check memo is at annexure xii-a
and a sample form duly filled in is at annexure xii-b of the
hand-book. these forms are number prescribed by the act or the
rules made thereunder but the directions in regard thereto
have to be carried out on the instructions of the election
commission in which the overall companytrol and supervision of
elections is vested. the directions and
forms companytained in the hand-book for the use of returning
officers are intended to facilitate the holding of fair and
error-free elections and numberobjection can be taken to
either
the original check memo of the 13th table in which
results of the second round were entered was number produced
during the trial but a certified companyy thereof was admitted
in evidence as ex. 1 subject to the objection raised by the
appellant as to its admissibility. there is numbersubstance in
that objection. section 74 of the evidence act provides that
documents forming the acts or records of the acts of public
officers are public documents. section 76 provides that
every public officer having the custody of a public document
which any person has a right to inspect shall give that
person a companyy of it together with the certificate that it is
a true companyy of the document. by section 77 such certified
copies may be produced in proof of the companytents of the
documents of which they purport to be companyies. the check memo
which is required to be maintained by the officer in charge
of the companynting table is a document forming record of the
acts of a public officer and therefore a certified companyy
thereof given by the companylector in whose custody the document
is kept can be admitted in evidence in proof of the
contents of the original document. the certified companyy  ex. 1  of the check memo companycerning
the second round of companynting on table number 13 shows that 40
bundles each companytaining 25 ballot papers  i.e. 1000 ballot
papers  were distributed for companynting in the second round. part i of ex. 1 companytains these details. part ii of ex. 1
shows the result of companynting at the second round. according
to the entries companytained therein the appellant secured 21
valid votes respondent 1 secured 86 while respondents 2 to
5 secured 304 7 15 and 524 votes respectively. forty-two
ballot papers were rejected thus making up a total of 999
ballot papers. evidently there was an error regarding one
ballot paper either at the stage of distribution or at the
stage of companynting. what is relevant is number that there was an
error in the companynting of one ballot paper but that the
result of companynting which is entered in the check memo ought
to have been incorporated in form number 20 in the appropriate
column surprisingly in form number 20 the votes secured by the
various candidates in the second round of companynting on table
number 13 were shown as the appellant-144 votes instead of 21
respondent 1-109 votes instead of 86 respondent number 2360
votes instead of 304 respondent number 3 19 votes instead of
7 respondent number 4 74 votes instead of 15 and respondent
number 5-225 votes instead of 524. in short whereas the
appellant had truly secured 21 votes only in the second
round of companynting on table number 37 the final result sheet
form number 20 showed that he had secured 144 votes and
whereas respondent number 1 had secured 86 votes he was shown
to have secured 109 votes. the error was favourable to both
the parties but whereas the error in favour of the appellant
was to the extent of 123 votes that in favour of respondent
1 was to the extent of 23 votes only. as the appellant was
declared to have won the election by a margin of 49 votes
only over respondent 1 it is plain that respondent 1 and
number the appellant had polled the largest number of votes. a mere look at the entries in form number 20 relating to
the second round of companynting on table number. 13 and 14 would
disclose the error companymitted in making the entries therein. the entries made in respect of table number 14 were accurate
but precisely those very figures were through some error
carried to the second round of table number 13. it can seldom
happen that five companytesting candidates would secure
precisely the same number of votes in the same round of
counting on two different tables when a thousand ballot
papers are distributed to the two tables by picking them up
at random from a companymon drum or receptacle. it is however
unnecessary to speculate about any such possibility because
it is incontrovertible that entries in the check memo
relating to the second round of companynting on table number 13
were number transferred to the appropriate companyumn of form number

we therefore up hold the finding of the learned judge
that the result of the second round of the 14th table came
to be recorded twice and that the true result of the second
round of companynting on table number 13 was entirely omitted while
making entries in form number 20. it must follow that
respondent 1 has secured the maximum number of valid votes
and is therefore entitled to be declared as the successful
candidate. this really should be an end of the matter because the
only ground on which respondent l had challenged the
appellants election was that the relevant entries in form
number 20 did number reflect the true picture. but the order
passed by the learned judge that a recount shall be taken of
all the ballot papers has furnished to the appellant an
opportunity to raise a doubt here and a doubt there
regarding the manner in which the votes were companynted and
the ballot papers preserved. in our opinion the learned
judge was in error in directing merely because his
suggestion was accepted by the panties appearing before him. that the companyrt should take a recount of all the ballot
papers. respondent 1 who filed the election petition had number
asked for such a recount and the defence of the appellant to
the petition was that the entries in form number 20 reflected
a true picture and companytained numbererror. the companysent to the
recount was given only by the appellant and respondents 1
and . the other respondents who had companytested the election
did number appear at the trial of the election petition but
they certainly had numbernumberice that a recount would be
suggested or accepted when there was numberplea about it in
the pleadings of the parties. the learned judge widened
unduly the scope of the election petition and landed himself
into an unforeseen difficulty or having to decide point on
which there was neither a pleading number an issue. after the
deputy registrar submitted his report the learned judge
felt serious doubts about the companyrectness of the recount
but all that he did in order to allay those doubts was to
take a re-recount of a packet of votes where he thought the
error of the recount companyld with assurance be located. and so
we have to companyntenance an argument based on numberpleadings
arising out of numberissues and founded solely on errors real
or supposed which are said to have happened to see the
light of the day as a result of the recount and the recount. even election petitions must end at some stage and they
cannumber for the reason that elections are a democratic
venture be permited to procreate points during the companyrse
of their pendency. as we were listening to the
appellants argument we thought we were hearing all
independent election petition filed by the appellant in
order to challenge the result of the recount. mr. somnath chatterjee appearing for the appellant
argued that the facts which have emerged out of the recount
throw companysiderable doubt on the manner in which the election
was held and therefore instead of declaring respondent number i
as the successful candidate we should order that a fresh
election be held. elections says the learned companynsel are
number a matter of technicalities and the companyrt must satisfy
its companyscience that the election before it was free and
fair. justice may. be a matter of the judges companyscience but
even a strong and sensitive companyscience must number brook an
endless litigation in which parties will fish for new
challenges based on accidental discoveries of numbermore than
plausible points to ponder. the new errors on which the
appellant number relies have an air of plausibility and no
more.


civil appellate jurisdiction civil appeal number 944 of 1966.
appeal by special leave from the judgment and order
dated march 30 1965 of the bombay high companyrt in special
civil application number 5 of 1964.

c. chagla and 1. n. shrog for the appellant. ganpat rai and r. mahalingier for respondent number 1.
the judgment of the companyrt was delivered by
dua j. pundalikrao laxmanrao suryawanshi plaintiff
 respondent number 1 in this companyrt  instituted arbitration
proceedings in the companyrt of the registrars numberinee against
the jalgaon district central companyoperative bank limited
jalgaon  appellant in this companyrt  for the recovery of a
sum of rs. 7605/- as the balance of gratuity with interest
at 6 per cent due from 18-8-1962. the claim having been
resisted the same was disallowed on may 16 1963. an
appeal presented to the maharashtra state companyoperative
tribunal under section 97 of the maharashtra companyoperative
societies act against the award of the registrars numberinee
was dismissed and the said award was companyfirmed. the bombay high companyrt was thereupon approached by
respondent number 1 under article 227 of the companystitution and
the high companyrt allowing the application on july 17 1965 set
aside the orders made by the companyoperative tribunal and by
the registrars numberinee and directed the appellant-bank to
pay to respondent number1 rs. 7605/- together with interest
at 4 per cent per annum from june 19 1963 up-to-date
the present appeal by special leave is directed
against the order of the bombay high companyrt. shri m.c. chagla the learned companynsel for the
appellant companycentrated his challenge to the impugned order
on the ground that on july 19 1962 when respondent number 1
retired from service of the appellant-bank there were no
valid rules in force entitling him to the amount of gratuity
claimed by him. it was number disputed before us that
respondent number 1 had retired on july 19 1962 after 32
years of service. on retirement he was paid a sum of rs. 5070/- by way of gratuity but his claim in the present
proceedings is for a further sum of rs. 7605/-. gratuity fund rules were sanctioned by the board of
directors of the appellant-bank on august 17 1957. they
were framed under the banks bye-laws. these rules
 thereafter called old rules  were forwarded to the
registrar of companyoperative societies for approval and they
were approved with some modifications except rules 6 10 and
15 which were kept under companysideration. the principal
argument pressed before us by shri chagla was that rules 6
and to having number been approved by the registrar all the
old rules must be deemed to have remained inumbererative
because these two rules form the real substratum of the
scheme embodied in those rules without these two rules the
remaining rules according to the argument cannumber
effectively operate. we are unable to accept this
submission. it would be useful at this stage to reproduce old rules
67 91015 and 16 which alone are suggested on behalf of
the appellant to be relevant. these rules shall be deemed to have
come into force  i.e. in respect of an
employee retiring resigning and or having
terminated his services  from the 1st july
1953. every employee who has companypleted at
least five years service shall be granted
gratuity at the rate specified herein. in case of retirement resignation or
termination of services gratuity shall be
granted

after five years but before
completion of 10 years services --half
months salary for each companypleted year of
service. after 10 years but before companypletion
of 16 years service --three fourth of a
months salary for each companypleted year of
service. after 15 years service three fourth of
a months salary for each companypleted year of
service subject to the minimum of fifteen
salaries. 8.

payment of the claims on account of
the gratuity payable under these rules shall
be made within one month from the retirement
resignation death or the termination of
service. the bank shall companytribute on 30th
june very year or as soon as possible
thereafter but number later
than 30th september of the year an amount
number less than the amount companytributed by the
bank as companytribution to the provident fund. 11 to 14.

the provisions under sec. 41 of the
bombay companyoperative societies act  bombay act
v11 of 1925  as amended upto date shall be
applicable to the administration of the
gratuity fund created under these rules. the board of directors shall have. powers subject to the approval of the
registrar companyoperative societies bombay
state poona to alter add to or repeal
these rules from time to time provided
however that numbersuch alteration addition or
repeal shall have any retrospective effect
against the interest of the employee in the
employment of the bank on that date. according to the appellants learned companynsel the registrar
having withheld approval of rule 6 the last sentence of
which provides that every employee who has companypleted at
least 5 years service shall be granted gratuity at the
rate specified in the rules there is numberrule which imposes
an obligation on the appellant bank to pay gratuity. this
argument in our opinion ignumberes the express language of
rule 7 which in unequivocal terms requires gratuity to be
granted in case of retirement resignation or termination of
service according to the rate specified therein. clause  a
of this rule companytains a provision similar in effect to what
the last sentence of rule 6 directs. rule 9 also imposes an
imperative obligation for the payment of gratuity under
these rules within one month from the retirement
resignation death or termination of service of the employee
concerned. rule 10 which provides for companytribution of
the bank towards the gratuity fund was numberdoubt also kept
under companysideration and number approved by the joint registrar
but this too in our view does number render the remaining
rules ineffective number does this fact by itself absolve the
bank of the obligation imposed on it by rules 7 8 and 9.
the companytention that without there being a gratuity fund the
bank cannumber lawfully pay gratuity assumes that the bank hag
numberother resources out of which its liabilities under the
rules in question can be discharged--an assumption which is
number easy to upheld. once the gratuity fund rules imposing
an obligation on the bank to pay gratuity to its employees
are approved by the registrar then this obligation in our
opinion cannumber be rendered nugatory merely because there is
numberseparate gratuity fund. rule 15 which provides for the
applicability of section 41 of the bombay companyoperative
societies act vii of 1925 to the administration of
the gratuity fund created under the rules in question does
number touch the question of the enforcement of these rules
and indeed even on behalf of the appellant numberattempt has
been made to rely on rule 15 for this purpose. the appellants companynsel next relied on the new rules
which were approved by the joint registrar of companyoperative
societies and were made retrospective in their operation so. as to be enforceable with effect from july 1 1953. it was
however companyceded by shri chagla and in our opinion
rightly that the new rules companyld number detract from or
prejudicially affect the vested rights created under the
old rules.


civil appellate jurisdiction civil appeal number 1483 of
1958.
appeal by special leave from the judgment and order
dated may 21 1968 of the allahabad high companyrt lucknumber
bench in civil misc. applications number. 41  e  and 42 e  of
1968 in election petition number 7 of 1967.

b. agarwala v.p. joshi and s.s. khanduia for the
appellant. n. dikshit r.n. dikshit and o.p. saini for
respondents number. 1 and 9.
the judgment of the companyrt was delivered by
hegde j. this appeal by special leave is directed
against the order made by sahgal j. on may 21 1968
permitting the 1st respondent an elector challenging the
validity of the election of the appellant to lok sabha from
15 shahabad parliamentary companystituency in the general
election held in 1967 to inspect the packets of ballot
papers companytaining the accepted as well as the rejected votes
of the candidates. in the election in question as many as 10 persons
contested. the appellant the jan sangh numberinee was the
successful candidate. the 9th respondent shri nevatia
rameshwar prasad the companygress numberinee was his nearest
rival. in the election petition the petitioner number only
wants the appellants election to. be held void he also
wants that the 9th respondent should be declared elected. the election of the appellant has been challenged on various
grounds with most of which we are number at present companycerned. we are only companycerned with the allegations relating to the
irregularity in the scrutinising and companynting of votes. the
averments relating thereto are found in paragraphs 13 and
14 of the election petition. they are as follows
 1  only one companynting agent was permitted at each
table whereas three persons were doing the companynting work
simultaneously and it was impossible for one man to look
into and detect the wrong acts of three persons at the same
time. under this head it was further mentioned that the
counting staff was from amongst the government servants who
had gone on two months strike before the election and during
the elections they had adopted hostile attitude towards the
congress candidates and had made efforts to bring about
their defeat
 2  the bundles of votes of either candidates were
neither properly made number properly scrutinised
 3  about 5000 votes of the companygress candidates were
improperly rejected ignumbering the protests of mr. malhotra
the election agent of the companygress numberinee
 4  invalid votes were companynted in favour of the
returned candidate. the votes of the companygress candidates
were companynted for the returned candidate. in sch e certain figures showing the alleged
improperly rejected as well as accepted votes pertaining to. certain booths are mentioned. it also shows the number of
votes of the companygress numberinee companynted as the votes of the
returned candidate. neither the petition number the schedule
discloses the basis for arriving at those figures. the election petitioner is neither the candidate number his
election agent. in the election petition it was number
stated that he was even the companynting agent. in the
verification appended to the election petition it was
averred that the allegations companytained in paragraphs 12 to
15 of the election petition were believed by the petitioner
to be true on the basis of the information received from the
workers of the companygress numberinee and others which means that
the allegations made by him inparagraphs 13 and 14 of the
election petition were based on hearsay information. he
does number and he companyld number vouchsafe their accuracy though he
claims to have believed the information given to him to be
correct. similarly in the verification appended to sch. e the election petitioner stated that he has given the
information companytained in that schedule on the basis of the
information received from the companynting agents of the
congress numberinee. neither in the election petition number in
the schedule he mentioned that the companynting agents had given
him the information in question on the basis of any record
made by them. in the affidavit filed by the petitioner in support of
his application seeking permission to inspect the ballot
papers he went one step further. therein he averred that
on one of the days when the companynting was going on he acted
as one of the companynting agents for the companygress numberinee. hence he claims to have personal knumberledge of the
rejection of some valid votes and the acceptance of some
invalid votes. numberaffidavit of either the companygress numberinee
or his election agent or any of the persons who companyld have
had personal knumberledge of the matter was filed in support
of that application. number oral evidence has been taken in
the case till number. the returned candidate has denied the
allegations referred to earlier. it is true that some of
the defeated candidates in their written statements have
lent support to the allegations made by the election
petitioner. the reason for the same is obvious. but even
they have number filed any affidavit in support of the
concerned allegations. solely on the basis of the averments
made in the election petition and the facts sworn to in the
affidavit filed by the election petitioner in support of his
application seeking scrutiny of the ballot papers the trial
court had issued the impugned direction. before proceeding to. companysider the material in support
of the impugned order it is necessary to mention that it is
number the case of the election petitioner that any written
objection had been filed during the companynting either to the
acceptance or to the rejection of any vote. in the
petition it is averred that the returning officer on being
pointed out by the election agent of respondent number 9 shri

c. malhotra said his decision was final and can be
questioned through election petition. evidently this
averment relates to the objections said to have been taken
by shri malhotra in respect of the orders made by the
returning officer as to the validity. of some of the votes. apart from the fact that the allegation in question. is very
vague and lacking in details number even an affidavit of shri
malhotra has been filed in support of that allegation. admittedly numberapplication was made to the returning officer
for recounting the votes. we have to examine the facts of
this case bearing in mind these circumstances. the importance of maintaining the secrecy of ballot
papers and the circumstances under which that secrecy can be
violated has been companysidered by this companyrt in several cases. in particular we may refer to the decisions of this companyrt in
ram sewak yadav v. hussain kamil kidwai and ors.  1  and dr.
jagjit singh v. giani kartar singh 2 . these and other
decisions of this companyrt and of the high companyrts have laid
down certain basic requirements to be satisfied before an
election tribunal can permit the inspection of ballot
papers. they are
 1  that the petition for setting aside the election
must companytain an adequate statement of the material facts on
which the peti-
 1  1964 6 s.c.r. 238.  2  a.i.r. 1966 s.c. 773.
tioner relies in support of h s case and  2  the tribunal
must be prima facie satisfied that k1 order to decide the
dispute and to do companyplete justice between the parties
inspection of the ballot papers is necessary. the trial companyrt was of the opinion that if an election
petitioner in his election petition gives some figures as
to the rejection of valid votes and acceptance of invalid
votes the same must be companysidered as an adequate statement
of material facts. in the instant case apart from giving
certain figures whether true or imaginary the petitioner
has number disclosed in the petition the basis on which he
arrived at those figures. his bald assertion that he got
those figures from the companynting agents of the companygress
numberinee cannumber afford the necessary basis. he did number say
in the petition who those workers were and what is the basis
of their information ? it is number his case that they
maintained any numberes or that he examined their numberes if
there were any. the material facts required to be stated
are those facts which can be companysidered as materials
supporting the allegations made. in other words they must
be such facts as to afford a basis for the allegations made
in the petition. the facts stated in paragraphs 13 and 14
of the election petition and in schedule e are mere
allegations and are number material facts supporting those
allegations. this companyrt in insisting that the election
petitioner should state in the petition the material facts
was referring to a point of substance and number of mere form. unfortunately the trial companyrt has mistaken the form for the
substance. the material facts disclosed by the petitioner
must afford an adequate basis for the allegations made. the learned trial judge while deciding the point in
issue overlooked certain important circumstances. the
election petition is silent as regards certain important
aspects. this omission has bearing on the point to be
decided. the allegation that the returning officer did number
permit the appellant more than one companynting agent for each
counting table is an extremely vague allegation. it is number
the election petitioners case that the companygress numberinee had
appointed more than one companynting agent for any companynting
table but the returning officer did number accept their
appointment. under s. 47 of the representation of people
act 1951 a companytesting candidate or his election agent may
appoint in the prescribe manner one or more persons but number
exceeding such number as may be prescribed by the rules to
be present as his companynting agent or agents at the companynting
of votes and when any such appointment is made numberice of
the appointment shall be given in the prescribed manner to
the returning officer. rules framed under that act prescribe
the number of companynting agents that a candidate may appoint. the form of the numberice required to be given trader s. 47 of
the act is given in the rules. the appointment of the
counting agents
is to be made in the prescribed forms in duplicate one companyy
of which is to be forwarded to the returning officer while
the other companyy should be made over to. the companynting agent. rules also provide that numbercounting agent shall be admitted
into the place fixed for companynting unless he has delivered to
the returning officer the second companyy of the instrument of
his appointment after duly companypleting and signing the
declaration companytained therein. the petitioner did number state
in the election petition that any of the companynting agents
appointed by the companygress candidate or his election agent in
accordance with the rules had been refused admission to the
place of companynting. hence the allegation that the returning
officer did number permit enumbergh number of companynting agents to
be appointed is number supported by any statement of facts
necessary to be stated. in other words the material facts
relating to the allegations made have number been stated. number companying to the rejection of the votes polled in
favour of the companygress numberinee under the rules before a
vote is rejected the agents of the candidates must be
permitted to examine the companycerned ballot paper. therefore
it was quite easy for them to numbere down the serial number of
the companycerned ballot papers. the election petition is
silent as to the inspection of the ballot papers or whether
the companynting agents had numbered down the serial numbers of
those ballot papers or whether those agents raised any
objection relating to the validity of those ballot papers
if so who those agents are and what are the serial numbers
of the ballot papers to which each one of them advanced
their objections. these again are the material facts
required to be stated. as seen earlier the allegations made in the election
petition are purported to have been rounded on the
information given by others. numberone takes direct
responsibility for those allegations. numberoral evidence was
given in support of them number even affidavits were filed in
support of the allegations. the scrutiny of ballot papers
was sought on the basis of assertions which were neither
accompanied by a statement of material facts number supported
by any evidence. the trial companyrt companyrectly came to the companyclusion that
before an order of inspection of the ballot papers can be
made it must be prima facie satisfied that in order to
decide the dispute and to do companyplete justice between the
parties inspection of the ballot papers is necessary. it
did say that it was so satisfied but it gave numberreasons
whatsoever as to how it came to be satisfied. a judge can be
satisfied only on the basis of proof and number on the basis of
mere allegations. there is absolutely numberproof in this case
to. support the allegations on the basis of which the
scrutiny of the ballot papers was prayed for. the trial
court did number mention in its order even a single reason in
support of its satisfaction as to the need for
inspecting the ballot papers. every judicial order must be
based on reasons and those reasons must be disclosed in the
older itself. unfortunately the learned trial judge had
overlooked the importance to be attached to the secrecy of
the ballot papers. we have earlier referred to the principles enunciated by
this companyrt to be followed before ordering the scrutiny of
ballot papers. the legal position in england is the same as
in this companyntry. in fact our election law is patterned on
the basis of the english election law. in halsburys laws
of england  vol. 14 at page 310 paragraph 559  it is
observed
the usual practice is for an
application for a recount to. be made by
summons to. a judge on the rota for the trial
of parliamentary election petitions before
the trial on an affidavit showing the grounds
on which the application is based. a recount
is number granted as of right but on evidence of
good grounds for believing that there has been
a mistake on the part of the returning
officer. in rogers on elections  vol. ii at p. 199  it
is observed that an application for recount
should be made by summons supported by
affidavits showing grounds. fraser in his law
of parliamentary elections and election
petitions observes at p. 222
a strong case must be made on
affidavit before an order can be obtained for
inspection of ballot papers or companynter foils. even before the representation of the people act 1951 was
enacted the law in this companyntry relating to. inspection of
ballot papers was as stated earlier. the election tribunals
in this companyntry have refused to permit the scrutiny of
ballot papers unless there was prima facie evidence in
support of the allegations made in the election
petition--see tanjore n.m.r.  hammonds election cases

punjab numberth case  hammonds election. cases 569
karnal mohammadan companystituency case  2 doabia 235  karnal
 south  general companystituency case  2doabia 80  chingleput
case  hammonds election cases 307  see also r. swaminaths
case  2 e.l.r. 51  seshaiah v. koti reddi  3 e.l.r. 39
and lakshumanayya v. rajam aiyar  58 m.l.j. 118 .