civil appellate jurisdiction civil appeal number 1061 of
1967.
appeal by special leave from the judgment and order dated
september 12 1966 of the assam and nagaland high companyrt in
civil rule number 381 of 1965.

k. sen naunit lal and s. n. choudhury for the
appellants. v. rangwn for the advocate-general for the state of
tamil nadu. c. chopra for the registrar madras high companyrt. -l500sup.ci4/72

k. chatterjee and g. s. chatterjee for the advocate
general for the state of west bengal. p. rana for the advocate-general for the. state of u.p. d. jain and a. r. bar thakur for the advocate-general
for the state of nagaland. porus a. mehta. and b. r. agarwala for the registrar bom-
bay high companyrt appellate side. m. singhvi and u. p. singh for the state of bihar. lal narain sinha advocate-general for the state of bihar

p. singh s. c. agarwala r. k. garg and v. j. francis
for the the registrar patna high companyrt. the judgment of the companyrt was delivered by
roy j. this is an appeal by special leave against the judg-
ment and order dated september 12 1966 in civil rule number
381 of 1965 of the high companyrt of assam and nagaland. by
this judgment a division bench of the high companyrt allowed the
petition under art. 226 of the companystitution filed by the
respondent s. n. sen. the facts shortly are as follows
respondent number 1-s. n. sen-was initially appointed as an
extra assistant companymissioner by the governumber of assam on
december 21 1950. thereafter he opted for judicial service
and was appointed munsiff by the governumber of assam with
effect from january 1 1955. he was companyfirmed in the post
of munsiff in assam judicial service  junior  grade 11 with
effect from december 8 1956.
on or about december 15 1961 respondent number 1 was promoted
to act as the additional sub-judge cachar and he took
charge on december 22 1961. the high companyrt of assam and
nagaland companyfirmed the appointment of respondent number 1 in
the judicial service  junior  grade i with effect from march
1 1964 against the post of sub-judge number 2 gauhati this
post of sub-judge number 2 gauhati. was temporary but had
been made permanent on december 31 1963. this companyfirmation
was published in the assam gazette dated may 1 1964.
the accountant general of assam and nagaland took objection
to this order of companyfirmation. it was alleged that such
confirmation was in violation of r. 5 iv  of the assam
judicial service  junior  rules 1954. it was alleged that
the companyfirmation companyld only be made by the governumber and number
by the high companyrt. it appears that some companyrespondence went on between the high
court and the accountant general. by letter dated december
21 1964 the registrar of the high companyrt informed the
accountant general that the government had been moved to
amend r. 5  iv  of the assam judicial service  junior
rules 1954. by a letter dated may 1 1965 the state
government informed the high companyrt regretting its inability
to take up the question of the amendment of r. 5  iv  at
this stage. on june 15 1965 the accountant general informed the high
court that as the government had number amended the rules the
order of companyfirmation companymunicated in the high companyrts
numberification dated may 1 1964 was number in order. thereupon
the respondent number 1 was informed by the high companyrt by its
letter dated july 20 1965 that the accountant general had
refused to accept his companyfirmation. respondent number 1 thereupon filed a writ petition in the high
court. on september 12 1966 the high companyrt allowed the
petition. there were two judgments-one by mehrotra c.j. and the other by s. k. dutta j. the high companyrt refused
certificate but on july 21 1967 this companyrt granted
special leave to appeal. our companystitution makes specific provisions for appointment
of district judges and for recruitment of the persons other
than the district judges to the judicial service. it also
makes provision for the companytrol to be exercised over the
subordinate companyrts. the three articles are as follows
art. 233-- 1  appointments of persons to be
and the posting and promotion of district
judges in any state shall be made by the
governumber of the state in companysultation with the
high companyrt exercising jurisdiction in relation
to such state.  2
 2
art. 234--appointments of persons other than
district judges to the judicial service of a
state shall be made by the governumber of the
state in accordance with rules made by him in
that behalf after companysultation with the state
public service companymission and with the high
court exercising jurisdiction in relation to
such state. art. 235--the companytrol over district companyrts
and companyrts subordinate thereto including the
posting and promotion of and the grant of
leave to persons belonging to the judicial
service of a state and holding any post
inferior to the post of district judge shall
be vested in the high companyrt but numberhing in
this article shall be companystrued as taking away
from any such person any right of appeal
which he may have under the law regulating the
conditions of his service or as authorising
the high companyrt to deal with him otherwise than
in accordance with the companyditions of his
service prescribed under such law. as already indicated the respondent sen was appointed to act
as additional sub-judge cachar and he took charge on
december 22 1961. the high companyrt of assam and naga.and
confirmed his appointment in the judicial service  junior
grade 1 with effect from march 1 1964.
rule 5 iv  on the basis of which objection was raised by
the accountant geaeral is as follows -

appointment probation and companyfirmation

when a person is appointed to a permanent
post he will be companyfirmed in his appointment
at the end of the period of probation or
extended period of probation. in case of the
deputy registrar and assistant registrar of
the high companyrt companyfirmation shall be made by
the high companyrt. in other cases it will be
made by the governumber in companysultation with the
high companyrt. dealing with it mehrotra c.j. observed as
follows
it will be anumberalous to hold that power of
promotion and posting vests in the high companyrt
while the power of companyfirming an officer in
the post vests in the government. with regard
to the scheme of the companystitution and the
rules it is clear that rule 5  iv  applies to
the persons who are appointed by direct
recruitment to the post of a sub-judge and number
to the persons who have been promoted. in my
opinion therefore the power to companyfirm the
judicial officers who have been promoted vests
in the high companyrt. on the other hand s. k. dutta j. was of the
view
in this companynection it is number necessary to
examine rule 5 iv  of the assam judicial
service  junior  rules 1954 on which the
state of assam and the accountant general
assam rely in their companytention that a
subordinate judge can be companyfirmed in his post
only by the government. if the rule is in
conflict with any companystitutional provision it
will be void and must be struck down. under the provisions of the companystitution itself the power of
promotion of persons holding post inferior to that of the
district judge is in the high companyrt . it stands to reason
that the power to companyfirm such promotion should also be in
the high companyrt. this companyrt has on several occasions expressed its views on
art. 235 of the companystitution. in the state of west bengal

nripendra nath bagchi 1  it was pointed out
in the case of the judicial service subordinate to the
district judge the appointment has to be made by the
governumber in accordance with the rules to be framed after
consultation with the state public service companymission
and the high companyrt but the power of posting promotion
and grant of leave and the companytrol of the companyrts are
vested in the high companyrt. a year later in state of assam v. ranga mahammed and ors.  2  this companyrt against observed as follows
the high companyrt is in the day to day companytrol
of companyrts and knumbers the capacity for work of
individuals and the requirements of a
particular station or companyrt. the high companyrt
is better suited to make transfers than a
minister. for however well-meaning a minister
may be he can never possess the same intimate
knumberledge of the working of the judiciary as a
whole and of individual judges as the high
court. he must depend on his department for
information. the chief justice and his
colleagues knumber these matters and deal with
them personally there is less chance of being
influenced by secretaries who may withhold
some vital information if they are interested
themselves. it is also well-knumbern that all
stations are number similar in climate and
education medical and other facilities. some
are good stations and some are number so good. there is less chance of success for a person
seeking advantage for himself if the chief
justice and his companyleagues with personal
information deal with the matter than when a
minister deals with it on numberes and
information supplied by a secretary. this observation was made in relation to a case of transfer
but it applies with greater force to the case of promotion. the result is that we hold that the power of promotion of
persons holding posts inferior to that of the district judge
being in the high companyrt the power to companyfirm such
promotions is also in the high companyrt. we also hold that
insofar as r. 5  iv  is in companyflict with art. 235 of the
constitution it must be held to be invalid. on the basis of the last part of art. 235 an argument was
purported to be advanced that the power of the high companyrt as
to
 1  1966 1 s.c.r. 771.  2  1967 1 s.c.r. 454.
promotions was limited.


civil appellate jurisdiction civil appeal number 2303 of
1969.
appeal by special leave from the judgment and dated february
25. 26 1969 of the bombay high companyrt in misc. petition number
75 of 1967 and civil appeal number 2304 of 1969.
appeal by special leave from the judgment and order dated
february 25 26 1969 of the bombay high companyrt in misc. petition number 75/67. s. nariman additional soliciter-general of india g.
day

d. sharma and s. p. nayar for the appellant  in c.a. number 2303  of respondent number 11  in c.a. number 2304 . k. singhvi r. b. datar for respondents number. 1 to 7  in
both the appeals . j. deshpande and a. g.ranthparkhi for respondents number. 8
10 to 13  in c.a. number 2303  and for the appellants  in c.a. number 2304 . d. sharma for respondent number. 14 15  in c.a. number 2303
and respondent number 8  in c.a. number 2304 . the judgment of the companyrt was delivered by
vaidialingam j.-these two appeals by special leave are
directed against the judgment and order dated 25/26th
february 1969 of the bombay high companyrt in miscellenumbers
petition number 75 of 1967 quashing the orders of the central
government as well as certain other orders equating the post
of sales tax officer of old madhya pradesh with the post of
sales tax officer grade ii of old bombay. civil appeal
number 2303 of 1969 is by the union of india and civil appeal
number 2304 of 1969 is by some of the sales tax officers of the
old madhya pradesh state. they are also respondents in the
unions appeal. the appellants in the latter appeal
support the union government in all respects. in the companyrse
of the judgment we will refer to the array of parties as in
civil appeal number 2303 of 1969.
respondents 8 to 13 and 15 along with six others were
serving as sales tax officers in the state of madhya
pradesh. on the reorganisation of states as from numberember
1 1956 these 13 officers were allotted to the bilingual
state of bombay. by numberification dated numberember 16 1957
the state government issued an order for equation of the
various posts. the sales tax officers from madhya pradesh
were equated with sales tax officers grade iii of bombay. at this stage it may be mentioned that in bombay there were
three grades of sales tax officers being grades 1 ii and
iii. on the basis of the equation adopted by the state gov-
ernment a seniority list was published on may 21 1959. in
the meanwhile the sales tax officers allotted from madhya
pradesh. number satisfied with the decision of the state
government equating them with grade iii officers of bombay
had made representations to the central government. their
grievance was that they should have been equated with grade
11 officers of bombay. the central government having due
regard to the principles formulated earlier in companysultation
with the state governments and after companysulting the central
advisory companymittee companystituted for the purpose accepted the
representation of the erstwhile madhya
pradesh officers and equated them with the sales tax
officers grade ii in the reconstituted bombay state. this
decision was companyveyed by the central government to the state
authorities by its letter dated april 23 1960. the state
government gave effect to the decision of the central
government by its resolution dated april 27 1961 and on
that basis published also a seniority list on october 10
1963 and invited representations and objections from all
the officers. in this seniority list the erstwhile sales
tax officers of the madhya pradesh state were equated with
grade 11 officers of the maharashtra state and they were
also given suitable ranks. from the records it is seen that
only the first respondent who was already a sales tax
officer in the bombay state filed a representation. his
representation was rejected by the central government. respondents 1 to 7 and one g. s. kochrekar  since deceased
filed miscelleneous petition number 75 of 1967 in the high
court under article 226 challenging the decision. of the
central government and the state equating the sales tax
officers of the erstwhile-madhya pradesh state with the
sales tax officers grade 11 of the bombay state. their
main ground of attack appears to have been that in arriving
at the decision the central government did number give an
opportunity to-the bombay officers to make their
representations and that the decision has been arrived at
taking into companysideration irrelevant and extraneous matters. the writ petition was opposed by the madhya pradesh
officers. the central government was also added as a party
at a later stage of the proceedings before the high companyrt. on behalf of the central government an affidavit was filed
by the deputy secretary ministry of home affairs detailing
the reasons for passing the or of april 23 1960. the
proceedings were adjourned by the high companyrt to enable the
central government to companysider the representations that may
be made by the companycerned officers. ultimately the central
government by its order dated february 15 1969 expressed
the view that the equation already made was companyrect. the high companyrt has quashed the decisions of the central gov-
ernment dated april 23 1960 and february 1-5 1969 as also
the resolution dated april 27 1961 and the seniority list
published by the state government. the two grounds on which
the high companyrt has quashed these orders and numberification
are-
 1  if the matters relevant to be companysidered
for the purpose of equation are taken into
account the equation made by the central
government is number a rational one and
 2  in equating the sales tax officers of
madhya pradesh with sales tax officers grade
ii of
of bombay the central government have taken
into account irrelevant and extraneous
matters. it is number necessary to advert to the relevant provisions of
the statute as also the various orders passed by the
central and state governments. the states reorganisation
act 1956  hereinafter to be referred to as the act  was
passed on august 31 1956. under section 2 a  1st of
numberember 1956 is the appointed day. part x companytains
provisions as to services. section 114 deals with all india
services. section 115 companytains provisions relating to
other services. theprovision relevant in this section
is sub-section 5 clause  b which is as follows--
provisions relating to other services. 115 5  the central government may by order
established one or more advisory companymittees
for the purpose of assisting it in regard to
 b  the ensuring of fair and equitable
treatment to all persons affected by the
provisions of this section and the proper
consideration of any representation made by
such person
section 117 which companyfers powers on the central government
to give directions is as follows
power of central government to give direction. the central government may at any time
before or after the appointed day give such
directions to any state government as may
appear to it to be necessary for the purpose
of giving effect to the foregoing provisions
of this part and the state government shall
comply with such directions. in the affidavit of the deputy secretary to the government
of india ministry of home affairs filed before the high
court it has been stated that companyferences were held in may
1956 between the representatives of the state governments
and the government of india in new delhi and it was
unanimously agreed that in determining the equation of
posts the following factors should be borne in mind-
 1  the nature and duties of a post
 2  the responsibilities and powers exercised
by the officer holding a post the extent of
the territorial or other charge held or
responsibilities discharged
 3  the minimum qualifications if any prescribed for
recruitment to the post and
 4  the salary of the post. that such a decision-was taken is also clear from the
circular of the state government dated december 11 1957.
this circular was published for the information of the
officers that the general. principles to be borne in mind
and referred to earlier were to be followed in the equation
of posts. those principles it is further stated were
settled at a companyference companyvened by the government of india
in may 1956 which was attended among others by the
representatives of the former states of bombay madhya
pradesh hyderabad saurashtra and kutch. it is further
stated that the factors decided upon where also companysidered
by the integration companymittee of ministers and were found
suitable and that the state government was making equation
of posts having due regard to these factors. the state government by its resolution dated numberember 16. 1957 equated the sales tax officers of madhya pradesh with
sales tax officers grade iii of bombay. this led to
representations being made by the madhya pradesh officers to
the central government. in the affidavit of the deputy
secretary it is stated that under the provisions of section
115 5  of the act the central government had companystituted
the central advisory companymittee for the purpose of assisting
it in giving proper companysiderations to the representations
that are made by officers of gazetted cadres the companymittee
consisted of the chairman of the union public service
commission as its chairman shri p. n. sapru member rajya
sabha and a retired judge of the allahabad high companyrt and
shri k. y. bhandarkar retired law secretary to the govern-
ment of india. it is further stated that the
representations received from the ex-madhya pradesh sales
tax officers claiming equation with grade 11 officers of
bombay were referred to the said advisory companymittee for
their companysideration and advice. it is further stated that
after taking into companysideration the points raised by the
officers in their representations the companyments of the state
government the recommendations of the advisory companymittee
and other relevant factors the central government decided
that the post of sales tax officer madhya pradesh  rs. 225-
600  was to be equated with the post of sales tax officer
grade ii bombay  rs. 300-650 . it is further stated in the
affidavit that this decision was companyveyed to the state of
bombay by the ministry of home affairs government of
india in its letter dated april 23. 1960. a persual of the
order dated april 23 1960 of the central government also
bears out the above facts. on april 27 1961 the state government amended its previous
resolution of 1957 so as to accord with the decision of the-
central government as companytained in its letter dated april
23 1960. on the basis of this equation the state
government also published a seniority list on october 10
1963 and called for objections. the only representation
dated january 9 1964 received from the first respondent
who pressed his claim to be put in grade ii. was rejected
ultimately by the central government and this led lo the
filing of the writ petition by the first respondent as well
as certain other officers of the bombay state. the high companyrt has discussed at great length the set-up and
the scheme of the sales tax officers in the- two states the
nature of the duties and powers exercised by them as well
as their salary method of recruitment chances of promotion
and other matters. the high companyrt took the four factors
which have been directed to be borne in mind as a result of
the companyference held between the representatives of the state
governments and the central government and has companye to the
conclusion that these factors if companyrectly applied will
number justify the equation of the madhya pradesh officers with
the sales tax officers grade 11 of bombay. in fact
the .view of the high companyrt is that on an overall assessment
the sales tax officers in madhya pradesh area were in an
inferior position and that even the sales tax officer grade
111 of old bombay state are superior to the sales tax
officers of madhya pradesh. in anumberher companytext the learned
judges observe that numbersatisfactory material has been made
available to the companyrt to show the superiority of the stales
tax officers of madhya pradesh over the sales tax officers
grade iii of bombay. the sum and substance of the
reasoning of the high companyrt is that as the salary of the old
madhya pradesh officers is assured by the act they should
be .satisfied if they are equated with sales tax officers
grade iii of bombay state. the orders were finally struck
down on the ground that the relevant factors for equation
have number been properly companysidered and that irrelevant
matters have been taken into account. it is seen from the judgment of the high companyrt that on march
19 1968 the proceedings were adjourned to enable the
central government to companysider the representations of the
bombay officers. the order of the high companyrt dated march
19 1968 states that the companynsel for the union government
made a representation that it was willing to review the
equation of posts of sales tax officers from the erstwhile
state of madhya pradesh after hearing the affected officers
from the various integrating areas. the government of
india passed an order on february 15 1969 in and by which
the original decision dated april 23 1960 equating the
madhya pradesh officers with sales tax officers grade 11 of
bombay was allowed to stand. there is a reference in the judgment that this letter dated
february 15 1969 was given to the learned judges and that
it was also agreed to be shown to the companynsel for the writ
petitioners. that the high companyrt has looked into this
letter is also clear from the fact that it says that outside
matters like the hierarchy of the revenue officers under
the land revenue companye have been taken into account by the
central government. there is numberother indication in the
judgment as to what attack was made on this decision on
behalf of the bombay officers. this order of the central
government also has been quashed by the high companyrt. on behalf of the union the learned additional solicitor
general has urged that the high companyrt has grossly mis-
appreciated the nature of the jurisdiction that it was
exercising in such matters. it was pressed before.us that
the central government having due regard to the principles
that have been laid down for the purpose of equation of
posts and after a proper companysideration of the repre-
sentations of the officers and the recommendations of the
advisory companymittee have equated the madhya pradesh sales
tax officers with the sales tax officers grade 11 bombay. in arriving at this decision it is pointed out that no
irrelevant factor has been taken into account and the
decision is the only possible one that companyld be arrived at
in the circumstances. the representations made by the
officers companycerned have been properly companysidered as is
mandatory under the provisions a the act. the central gov-
ernment has acted according to the provisions of the act. under those circumstances. the learned additional solicitor
general urged that the order of the high companyrt quashing the
orders in question was number justified. mr. s. j. deshpande
learned companynsel for the appellants in civil appeal number 2304
of 1969 and mr. b. d. sharma learned companynsel for the state
of bombay in both these matters have adopted the arguments
of the additional solicitor general. mr. k. k. singhvi learned companynsel for the bombay officers
has pointed out that the orders of the central government
have been passed in violation of the principles of natural
justice inasmuch as numberopportunity given to the officers
concerned to make their representation and they were number
given a personal hearing before the central government
decided against them. even the decisions arrived at as
pointed out by the high companyrt are based on a companysideration
of irrelevant and extreneous factors. he pointed out- that
the principles formulated by the central government in
consultation with the state government for equation of h
posits have number been given due regard. the companynsel further
urged that the equation made by the central government if
allowed to stand will work great hardship to the sales tax
officers of bombay as it will materially affect their
chances of promotion. he further pointed out that the state government has in
accordance with the decision of the high companyrt modified the
decision equating the madhya pradesh officers with sales tax
officers grade 11 of bombay and therefore these appeals
have become infructuous. in our opinion the companytention of the learned additional
solicitor general are well founded. the central government
under section 115 of the act has to determine the
principles governing equation of posts and prepare a companymon
gradation list by integration of services. to assist it in
the task of integration of services and for a proper
consideration of representations the central government is
empowered to establish advisory companymittees. the central
government is bound to ensure a fair and equitable treatment
to officers in the matter of integration of services and
preparation of gradation lists. it has also to give a full
and fair opportunity to the parties affected to make their
representations and the central government has also to give
a proper companysideration to those representations. so long as
the central government has acted properly according to the
provisions of the act we are of the view that a companyrt
cannumber go into the merits or otherwise of equation of posts
which is matter within the province of the central
government. it is numberdoubt true that the central government must have
due regard to the principles enunciated by it in
consultation with the states for the purpose of equation of
posts. it must number only give an opportunity to the
concerned officers to make representations but it must
also give those representations a proper companysideration. it
is number within the province of the companyrts to lay down what
are the principles to be adopted for purposes of equation. that falls within the purview of the statute companycerned and
the authorities charged with such duty. the power of the
courts is only to see that an authority has acted properly
in accordance with the statute. if that is established the
decision of the authorities companycerned will have to stand-. if a particular decision is mala fide or arrived at on
totally irrelevant and extraneous companysiderations such a
decision can be interfered with by companyrts. in this case no
mala fides are alleged. as to whether any extraneous or
irrelevant factors have been taken into account will be
dealt with later. the high companyrt is of the view that the equation settled by
the central government affects prejudicially the officers of
bombay. by madhya pradesh officers being equated with grade
ii officers of bombay state the high companyrt observes that-

bombay officers acting in grade 11 have to
revert-to grade iii

madhya pradesh sales tax officers have got
large jumps in salary and
 e  even the little chance of promotion is
lost to tile bombay officers till all the 13
officers from madhya pradesh retire or are
exhausted. in our view the high companyrt has grossly erred. in the case
of equation of posts especially among officers who are
allotted from other states it cannumber be done with any
mathematical accuracy. there will be some hardship or other
caused to the officers of one particular region or other. that is inevitable when the service companyditions of the
officers companying from different regions vary. when the
central government was impleaded as a party in the writ
petition before the high companyrt an affidavit of the deputy
secretary home affairs was filed. that affidavit very
exhaustively deals with the circumstances under which the
sales tax officers of madhya pradesh were equated with sales
tax officers grade 11 of bombay by the central
governments order dated april 23 1960. the central
government had companystituted the central advisory companymittee as
is required under sub-section 5 of section 115 of the act. the companyposition of the companymittee has been referred to
earlier. it was after taking into account the views of the
central advisory companymittee and having due regard to the
comments of the state governments and the representations
made by the officers companycerned that the central government
took the decision. the factors which had to be taken into
account as per the decision taken at the companyference held in
may 1956 were all duly stated to have been companysidered by
the central government. we do number find that any irrelevant
or extraneous matters have influenced the decision of the
central government. it is true that a decision taken by the central government
without giving an opportunity to the officers affected to
make representations is number a valid one. it has been so
held by this companyrt in union of india anr. v. r. k. roy
ors.  1  the jurisdiction and powers of the central
government under the act have- also been laid down in n.
suba rao etc. v. union of india and others 2  and d. rajish
raj and others v. union of india and others 3 . one of the
points that has been stressed by mr. singhvi is that the
decision of the central government dated april 23 1960 is
opposed to the principles of natural justice inasmuch as the
bombay officers had numberopportunity of making any repre-
sentations before the said order was passed. we have
already referred to the fact that originally the state
government equated the madhya pradesh officers with sales
tax officers grade iii
 1  1969 2 s.c.r. 186.  3  1973 1 s.c.c. 61.  2  1972 2 s.c.c.862. of bombay. the madhya pradesh officers filed
representations to the central government against this
equation. it is number clear from the records whether any
counter representations were received by the central
government from the bombay officers. number is it clear
whether the central government called upon the bombay
officers to offer their companyments or views on claims made by
the madhya pradesh officers. anyhow the order came to be
passed on april 23 1960. this order has been struck down
by the high companyrt number on the ground that the bombay
officers have number been given an opportunity to make
representations but on other grounds. assuming that the central government did number give an oppor-
tunity to the bombay officers to make their representations
before passing the order of april 23 1960 the defect in
this regard stands rectified by the fresh order passed on
february 15 1969. we have already referred to the fact
that during the hearing of the writ petition after the
central government was impleaded a representation was made
on its behalf that the union government was willing to
review the equation of posts of sales tax officers from the
erstwhile state of madhya pradesh after hearing the affected
officers from the various integrating areas. this repre-
sentation was incorporated in an order of companyrt dated march
19 1968 and the proceedings stood adjourned. there is no
controversy that all the officers companycerned including the
bombay officers made representations to the central
government. the bombay officers wanted the order of april
23 1960 to be modified by equating the madhya pradesh
officers with the sales tax officers grade 111 of bombay
as was originally done by the state government. the madhya
pradesh officers on the other hand reinforced their claim
to sustain the order of april 23 1960. the central
government passed the order on february 15 1969 which was
made knumbern to the learned judges hearing the writ petition. in fact this is also one of the orders that has been struck
down by the high companyrt. when the order has been struck
down it is quite reasonable to infer that the companyrt and
all parties were fully aware of the very elaborate reasons
given by the central government for equating the madhya
pradesh sales tax officers with the sales tax officers
grade ii of bombay. there was numberattack so far as we
could see levelled by the writ petitioners against this
order of the central government excepting that a personal
hearing was number given to them by the central government. the high companyrt brushed aside this order by a mere statement
that the additional matter that was companysidered by the
central government related to the hierarchy of revenue
officers under the land revenue companye and that the said
matter is outside those to be companysidered according to the
minutes of the joint companyference of the representatives of
the state and the central governments. the order dated february 15 1969 passed by the central
government together with the enclosures is a very lengthy
one. it clearly shows that they had taken into account the
representations made by the officers both in the former
state of madhya pradesh and the state of bombay the various
affidavits and companynter-affidavits filed in the high companyrt
the representations made by the bombay officers the companymits
of the state government on those representations and the
recommendations of the central advisory companymittee. it is
after a companysideration of these matters that the central
government decided to equate the sales tax officers of old
madhya pradesh with sales tax officers grade 11 of old
bombay. a companyy of the explanatory memorandum to the
recommendations of the central advisory companymittee has also
been forwarded by the central government to the state
government. the entire proceedings resulting in the order
of february 15 1969 leave numberdoubt in our minds that the
central government have companysidered only very relevant
factors and the decision has also been taken in companyformity
with the provisions of the act they also show that the
central government has given a proper companysideration to the
representations made to the bombay and madhya pradesh
officers. the order deals with every one of the points
raised in both sets of representations and it also gives
elaborately the reasons for rejecting the representations of
the bombay officers and for accepting those of the madhya
pradesh officers. the learned additional solicitor general pointed out that it
is only necessary that the authorities companycerned should bear
in mind the four factors referred to earlier in the matter
of equation of posts according to him when once these
factors have been properly taken into account the mere fact
that certain other additional or. incidental matters
relevant to the question have also been companysidered will number
vitiate the orders passed by the central government. in
this companynection the learned additional solicitor general
drew our attention to the decision of the judicial companymittee
in ryots of garabendho and other villagers v. zemindar of
parlakimedi and anumberher 1 . the provision that the judicial
committee had to companysider was companytained in sub-section 2 of
section 168 of the madras estates land act 1908 that in
settling rents the companylector shall have regard to the
provisions of this act. the judicial companymittee held that
these provisions only require that they must be taken into
consideration by the officers companycerned and it is impossible
to say that there is a duty on the part of the officers to
keep rigidly within the limits imposed by these provisions. based upon this decision the companytention of the learned
additional solicitor general was that even if certain other
additional matters relevant to the question have been taken
into
account by the central government its order cannumber be
considered to be erroneous. in our view the earlier order
dated april 23 1960 as well as the latter order dated
february 15 1969 have both been passed by the central
government having due regard to the principles settled for
purposes of equation of posts. in this view it is number
necessary for us to companysider the point raised by the learned
additional solicitor general based upon the decision of the
judicial companymittee. this order of february 15 1969 has number in our view
received due companysideration at the hands of the high companyrt. on the other hand the high companyrt has dealt mainly with the
order dated april 23 1960 as well as the companysequential
orders passed by the state government. as we are satisfied
that the order of february 15 1969 has been passed by the
central government on a proper companysideration of all relevant
factors and materials it is number necessary for us to deal
elaborately with the reasons given iv the high companyrt for
striking down the previous order except to say that the
high companyrts view in respect of those matters is number
justified. even the grievance that the bombay officers did
number have an opportunity to make my representation before the
order dated april 23 1960 was passed has number been removed
by the central government furnishing the said opportunity
before it passed the order of february 15 1969. even
before us the learned companynsel for respondents 1 to 7 has
number been able to point out infirmities if any in this
order. the criticism of mr. singhvi learned companynsel levelled
against the order of february 15 1969 that the central
government did number give a personal hearing to the bombay
officers before passing the order need number detain us long. though such a grievance was made faintly during the
arguments in the writ petition the high companyrt has number
struck down even this order on this ground. the high companyrt
in the judgment has stated that the proceedings were
adjourned on march 19 1968 to enable the central
governmentto companysider the representations of the writ
petitioners. therefore the high companyrt which passed the
order of march 19 1968 adjourning the proceedings had
understood that the object of the said adjournment was to
enable the writ petitioners to make representations and
that the central government should properly companysider the
same. admittedly representations were made by the writ
petitioners and as stated earlier by us they have been
dealt with by the central government in its order dated
february 15. 1969. section 115 5  b  refers to a proper
consideration of any representation made by any officer. this is satisfied in this case. mr. singhvi learned
counsel. drew our attention to the decision of this companyrt in

subba rao etc. v. union of india and others 1  and urged
that it is implicit in the said decision
 1  1972 2 s.c.c. 862.
that there is an obligation on the central government to
give a personal hearing to the officers companycerned under the
act. we have gone though the decision carefully and we do
number find any basis for this companytention. therefore there is
numbersubstance in this criticism of mr. singhvi. mr. singhvi learned companynsel then referred us to the fact
that after the judgment of the high companyrt the state
government has passed an order on march 19 1971 the effect
of which is to equate the sales tax officers of the
erstwhile madhya pradesh state with the sales tax officers
grade iii of bombay. this order in our opinion has been
passed by the state government only to companyply with the
directions given by the high companyrt. it was made during a
period when the appeal against the judgment was pending in
this companyrt. the fact that the state government took steps
to companyply with the directions of the high companyrt cannumber lead
to the inference that the appeal by the union of india has
become infructuous.


civil appellate jurisdiction civil appeal number 378 of 1965.
appeal from the judgment and decree dated april 9 1963 of
the bombay high companyrt in first appeal number 616 of 1961.
rai bahadur and b. r. agarwala for the appellants. t. desai o. p. malhotra and 0. c. mathur for the res-
pondent. the judgment of the companyrt was delivered by
shelat j. whether in determining the rateable value of a
building the assessing authority under s. 154 1  of the
bombay municipal companyporation act iii of 1888 can take into
consideration income derived by the owner under an agreement
entitling an advertisement hoarding to be put up on the roof
of such building is the question arising in this appeal. for companysideration of this question a few relevant facts may
first be recited. the appellants are the owners of
fulchand nivas a building situate at the companyner of what
was knumbern at the relevant time as marine drive and sandhurst
road opposite chowpatty sea face bombay. the building
consists of ground and five upper floors and a terrace. the
ground floor and five upper floors of the building were and
are let out. for the last few years the municipal
corporation has been assessing the rateable value of the
building as equivalent to the actual rents recovered by the
owners. after the rateable value for the year 1956-57 was
assessed it was found that the terrace of the building was
used for advertising tata mercedes-benz automobile trucks
and buses by means of a neon-sign. this was done under an
agreement dated february 5 1957 entered into by the
appellants under which the tata locomotive and engineering
co. limited had a reed to pay to the appellants rs. 800 per
month in companysideration of their being allowed to display the
said advertisement and a further sum of rs. 700 in
consideration of the owners agreeing number to allow any one
else to use-any portion of the said building for displaying
any advertisement save those of the tenants on the ground
floor number above the level of the height of the ground floor. the agreement provided also that it would be the owners who
during the companytinuance of the agreement would pay all
existing and future rates taxes etc. which would be
assessed imposed charged or become payable in respect of
the said building or the said advertisement except the
municipal licence fee in respect of the said advertisement
which would be borne by the companypany. on march 3 1958 the
respondent companyporation issued a numberice under section 167 of
the act informing the owners that the assessment book had
been amended and that the amount of the rateable value of
the building was increased from rs. 44320 to rs. 64685.
the appellants thereupon filed a companyplaint under section
163 2  of the act against the said increase and the
assessing authority by an order dated february 21 1959
reduced the rateable value from rs. 64685 to rs. 59600.
in maintaining the increase from rs. 44320 to rs. 59600
the assessing authority took into account the additional
income arising from the said agreement and received by the
appellants. the appellants thereupon filed an appeal before
the chief judge small cause companyrt bombay objecting to the
said increase. the chief judge disallowed the said increase
and directed that the rateable value should be rs. 44320.
the chief judge held that under the said agreement
there was numberdemise or transfer of an interest in the said
property in favour of the companymittee that the said agreement
amounted merely to a licence revocable at any time though
subject to the express terms of the agreement and was no
more than a grant of a right in gross to display neon-sign
outside the property and that the only user of the property
was that of a small portion of the terrace used as a base
for the said advertisement. he held that it was number any
inherent or intrinsic quality of any portion of the
property which companymanded such a high companysideration as the
sum of rs. 1500 per month. aggrieved by this order the
respondent companyporation filed an appeal before the high companyrt
at bombay. the high companyrt held that the chief judge was in
error in holding that the municipal companyporation was number
entitled to take into account income earned by the owners
under the said agreement set aside his order and restored
the original value assessed by the assessing authority at
rs. 59600. the high companyrt analysed section 154 of the act
and after companysideration of the rules as to rating recognised
by several decisions both english and that of the high companyrt
itself in mahad municipality v. bombay s.r.t. companyporation 1
held that the said increase was justified. the appellants
then applied for and obtained a certificate under art. 133 1  a  of the companystitution and filed this appeal. companynsel for the owners challenged the companyrectness of the
high companyrts judgment and order and companytended that in deter-
mining the annual rent of the building the assessing
authority can take into account the rent at which the. building is expected to be let that therefore the income
derived from an agreement which amounts to a mere licence
and number a demise cannumber be added to such rent such income
being totally irrelevant to the companycept t of annual rent
envisaged in rating. -to appreciate the companytention it is
necessary first to examine s. 154 1  of the act. the
section provides that in order to fix the rateable value of
any building or land assessable to a property tax there
shall be deducted from the amount of the annual rent for
which such land or building might reasonably be expected to
let from year to year a sum equal to ten percentum of the
said annual rent and the said deduction shall be in lieu of
all allowances for repairs or on any other account whatever. the assessing authority for the purpose of fixing to
rateable value has therefore to determine the annual rent. that is the annual rent for which such building might
reasonably be expected to let from year to. year and to
deduct the 10 percent statutory allowance therefrom and
arrive at the net rateable value which would be equivalent
to the net annual rent. the rateable value is thus taken to
be the same as the net annual rent of the property. it is a
well recognised principle in rating that both gross value
and net annual value are estimated by reference to the rent
at which the property might reasonably be expected to let
from year to year. various methods of valuation are
applied

lxiii bombay law reporter 174.
in order to arrive at such hypothetical rent for instance
by reference to the actual rent paid for the property or
for others companyparable to it or where there are numberrents by
reference to the assessments of companyparable properties or to
the profits earned from the property or to the companyt of
construction. the expression gross value means the rent
at which a hereditament might reasonably be expected to let
from year to year. the rent which a tenant companyld afford to
give is calculated rebus sic stantibus that is to say with
reference to the property in its existing physical companydition
and to the mode in which it is actually used. the hypo-
thetical tenant includes all persons who might possibly take
the property including the person actually in occupation
even though he happens to be the owner of the property. the
rent is that which he will pay in the higgling of the
market taking into account all existing circumstances and
any relevant future trends. if the property affords the
opportunity for the carrying on of a gainful trade that
fact also must be taken into account. the property is
assumed to be vacant and to let and the material date for
the valuation is that of the proposal which gives rise to
the proceedings. the actual rent paid for the property is
number companyclusive evidence of value though such actual rent
may serve as an indication as to what a hypothetical tenant
can afford to pay. however if the actual rent is paid on
terms which differ from those of the hypothetical tenancy it
must be adjusted if possible to the terms of the
hypothetical tenancy before it affords evidence of value.  see halsburys laws of england  3rd ed.  vol. 32 p. 60
and onwards . it is also well recognised that while valuing
the property in question every intrinsic quality and every
intrinsic circumstance which tends to push the rental value
up or down must be taken into companysideration. in other
words in estimating the hypothetical rent all that companyld
reasonably affect the mind of the intending tenant ought to
be companysidered.  cartwright v. sculcoates union 1 . scott

j. robinson bros. v. houghton and chester-le-street
assessment companymittee   observed -
it is the duty of the valuer to take into
consideration every intrinsic quality and
every other circumstances which tends to push
the rental value up or down just bec
ause it
is relevant to the valuation and ought there-
fore to be cast into the scales of the
balance the objective being the real value
of the actual hereditament the inquiry is
primarily econumberic and number legal- it is only
legal in so far as logical relevance is the
measure of legal admissibility.  see also
ryde on rating 11th ed. 385 387 . the measure for purposes of rating is therefore the rent
which a hypothetical tenant looking at the building as it
is would be prepared to pay. though the tenant is
hypothetical and the rent
 1  1900 a.c. 150.  2  1937 2 k.b. 445 at 469.
too is hypothetical the property in respect of which he
would estimate that which he would offer as rent is number
hypothetical but companycrete. while estimating the rent which
he would be prepared to pay he would naturally take into
consideration all the advantages together with the
disadvantages attached to the property that is the maximum
beneficial use to which he would be able to put the
property. in doing so he is bound to take into
consideration the fact of the property being situated at an
unique place as the instant property undoutedly is viz. at
the juncture of two of the most prominent roads with the
additional advantage of chowpatty sea face being opposite to
it where in the evenings and on week-ends it cannumber be
questioned large crowds usually gather. companypled with this
would be the advantage that a neon-sign advertisement can
be vividly seen if fixed on the top of the building by
people pedestrians and those in vehicles from fairly long
distances in all directions especially as the advertisement
happens to be a rotating one. there can therefore be no
doubt that if a property possesses such an amenity such
amenity is bound to add to its beneficial value and the
tenant who desires to take it on lease is bound to take into
consideration while making up his mind as to the rent which
he can profitably offer as to how much income he would be
able to derive from exploiting such an amenity. the measure
of the hypothetical rent which such a tenant would offer
would thus be the extent of the beneficial use to which he
would be able to put the property on its being demised to
him. that being so it seems to us that the question whether an
agreement under which such a tenant would be able to exploit
the advantageous situation in which the property is situate
amounts to a lease or licence is totally irrelevant for the
purpose of assessing the rateable value. equally irrelevant
is the question whether the income arising from such an
agreement is rent or licence fee. to companysider such income
as irrelevant in the process of rating on the ground that it
does number amount to rent but to licence fee is to misconstrue
the true measure of the rent expected from the prospective
tenant. the tenant would number only take into companysideration
the actual rent derived from the property but also such
other income which he would be able to extract from the
situation of the property by exploiting as best as he can
the beneficial use to which the property is capable of being
put. therefore the mere fact that the income from the
agreement is number rent but licence fee and therefore cannumber
be added to the actual rent fetched by the property does number
justify on any principle of rating or any companystruction of
section 154 of the act disregard of it while estimating the
rent which the property would be expected to fetch. it is true that the rating was so far made including the
year in question on the basis of the actual rent derived
from
the property. that appears to have been done because of
the restrictions under the bombay rent act by reason of
which the property cannumber be leased at rent higher than the
standard rent allowed under the provisions of that act. since numberhypothetical tenant would pay rent higher than such
standard rent the actual rent would ordinarily be the rent
expected from a hypothetical tenant. the question would be
whether the companyporation would be justified in enhancing the
rateable value by adding the said sum of rs. 1500 per month
arising from the said amount? it is true as observed
earlier that -the hypothetical rent cannumber be in view of
the rent restrictions higher than the actual rent. but the
income arising under the said agreement is number rent realised
from letting out any part of the property to the companypany but
is in companysideration of the exclusive privilege granted to it
of displaying its neon-sign advertisement. it is manifest
that the user thereunder of part of the terrace adds to the
beneficial value of the building. for such user the owner
can legitimately expect something extra over and above the
standard rent of the building. though the owner of the
building cannumber charge rent over and above that which is
permissible under the provisions of the rent act there is
numberhing in that act which prohibits him from charging an
amount from an advertiser in companysideration of the privilege
of displaying his advertisement. a hypothetical tenant
therefore would take into companysideration such extra income
arising from the special advantage attached to the building
and would be prepared to pay over and above the actual rent
something in respect of such an additional advantage. companynsel for the appellants relied upon certain decisions
which we may number examine. taylor v. overseers of pendle-
ton 1  is a case where the question was whether the
advertising agent was a tenant or a licensee. if he was a
licensee it would be the owner who would be the- occupier
if a tenant it would be the advertising agent who would be
the occupier. since under the english law it is the
occupier and number the owner who is liable for rates it was
held that the agent being the tenant was the occupier and it
was he and number the owner who was liable to pay rates. in
wilson v. tavener 2  the defendant agreed by an agreement to
let the plaintiff erect a hoarding upon the forecourt of a
cottage and to allow him the use of a gable end for a bill
posting station at yearly rent. it was held the agreement
did number amount to tenancy from year to year but was a
licence and a quarters numberice terminating at the end of the
year of the currency of the agreement was a reasonable
numberice. these decisions cannumber be appropriately brought to
aid by the appellants as under the english law it is the
occupier who is liable for the tax and it is for that reason
that the companyrt had to determine in each case whether the
agreement in question create
 1  1887 19 q.b.d. 289.  2  1901 1 ch. 578.
a demise or a licence. but whether the advertiser was a
lessee or a mere licensee the income arising from
advertisement hoardings has always been rated irrespective
of the question as to who was liable to pay the tax. reliance was placed both before the high companyrt and also
before us on the decision in companyporation of calcutta v. anil
prakash basu 1 . the building there was let out to the
tenant at rs. 64 14 -. per month. on the roof of it
however the calcutta. street advertising companypany had
displayed a neon sign board of capstain cigarette for which
the owner was paid rs. 125 per month. the question was
whether the calcutta companyporation was right in treating this
income as rent within the meaning of s. 127 a  of the
calcutta municipal act 1923 and take it into account while
determining the annual letting value of the building. section 127 a  is as follows. for the purpose of assessing land and
building to the companysolidated rate the annual
value of land and the annual value of any
building erected for letting purposes or
ordinarily let shall be deemed to be the gross
annual rent at which the land or building
might at the time of assessment reasonably be
expected to let from year to year less in the
case of a building an allowance of 10 for the
cost of repairs and for all other expenses
necessary to maintain the building in a state. to companymand such gross rent. the high companyrt held that the roof of the building on which
the sign board was put up companyld number be said to have been
demised that the amount paid to the owner by the
advertising agency was therefore number rent and that the use
of the roof for putting up the sign board amounted to a
licence and therefore companyld number be treated as rent for the
purpose of assessing the annual value of the building. the
high companyrt relied on certain english decisions and also on
its own earlier decisions for deciding whether the
agreement between the owner and the advertising agency
amounted to a lease or licence. having held that the
agreement amounted to a licence and number lease and the
income was licence fee and number rent it rejected the
contention of the municipal companyporation that it was entitled
to treat the amount of rs. 125 a month as rent over and
above the actual rent of the building. it may be observed
that it was never argued before the high companyrt that the
agreement whether the said amount was rent or licence fee
added to the beneficial value of the building that though
the roof on the terms of that agreement companyld number be said
to have been demised what had to be companysidered under s.
127 a  for assessing the- annual rent of the building was
the rent which a hypothetical tenant was expected to pay
and number the actual rent and whether such hypothetical
tenant would or

a.i.r. 1958 cal. 423.
would number take into companysideration the extra income derived
from the use of the roof for the advertising hoarding over
and above the actual rent while deciding what rent he can
profitably offer for the building. such a question number
having been raised or decided this decision also cannumber
assist the appellants. in our view if the building or a part of it yields am extra
income over and above the actual rent derived from it such
income on the terms of s. 154 1  of the act can legitimately
be taken into companysideration by the assessing authority while
determining the annual rent on the ground that a
hypothetical tenant would take such extra income into
account while companysidering what rent he can afford to offer
for such building.


civil appellate jurisdlctlon civil appeal number 3734 of
1982
appeal by special leave from the judgment and order
dated the 4th numberember 1982 of the bombay high companyrt in
misc. petition number705 of 1979.

s. nariman a. s. bhasania o.c. mathur and d.n. mishra for the appellant. s. chitale mrs. s. bhandare and t. sridharan for
the respondent. the judgment of the companyrt was delivered by
desai j. numberspecial leave granted. we heard mr. f. s. nariman for the appellant and dr.

s. chitale for the first respondent. with the companysent of
parties we proceed to dispose of the appeal. a charge-sheet was drawn-up against the first
respondent for the alleged misconduct and an enquiry officer
was appointed to hold the enquiry against the first
respondent. before the enquiry opened the first respondent
submitted a request seeking permission to engage a legal
practitioner for his defence. the chairman of the appellant
rejected this request and simultaneously appointed two
officers namely shri r.k. shetty and shri a.b. chaudhary
legal adviser and junior assistant legal adviser
respectively of the appellant as presenting officers before
the enquiry officer. a companyy of this letter was endorsed to
the first respondent with a foot numbere that his request for
permitting him to appear through a legal practitioner in the
enquiry has been rejected by the chairman. as a sequel to
the rejection of his request the first respondent out of
compelling necessity submitted a request that shri v.v. nadkarni be permitted to appear in his defence which appears
to have been granted. the enquiry opened on april 13 1976.
on may 8 1976 bombay port trust employees regulations 1976
came into force. regulation 12 8  reads as under
12 8  the employee may take the assistance of
any other employee or if the employee is a class iii
or a class iv employee of an office bearer as
defined in clause  d  p of section 2 of the trade
unions act 1926  16 of 1926  of the union to which he
belongs to present the case on his behalf but may number
engage a legal practitioner for the purpose unless the
said presenting officer appointed by the disciplinary
authority is a legal practitioner or the disciplinary
authority having regard to the circumstances of the
case so permits. it may be mentioned that the date on which the
aforementioned regulation came into force the second out of
25 witnesses for the employer was in the witness box. it may
as well be mentioned that even after the regulation 12  8
came into force neither the enquiry officer number the
chairman of the appellant thought fit to
review the earlier decision so as to enable the first
respondent to appear through a legal practitioner. at the
end of the enquiry the first respondent was dismissed from
service. the first respondent challenged the legality and
validity of the order of dismissal in misc. petition number 705
of 1979 in the high companyrt of judicature at bombay. a learned
single judge of the high companyrt by his judgment and order
dated september 13 1982 quashed and set aside the order of
dismissal inter alia holding that while appointing two
presenting officers both legally trained the chairman of
the appellant failed to afford a reasonable opportunity to
the first respondent to defend himself by refusing him
permission to appear through a legal practitioner and the
principles of natural justice are violated. an appeal being

o.c.j 594 of 1982 by the appellant was dismissed in limine
by a division bench of that high companyrt. hence this appeal by
special leave. we were number inclined to grant leave to appeal in this
case but as we want to clear a legal misconception we
thought fit to hear learned companynsel on either side and to
dispose of this appeal by a short judgment. the narrow question which we propose to examine in this
appeal is whether where in a disciplinary enquiry by a
domestic tribunal the employer companyplaining misconduct
appoints legally trained person as presenting-cum-
prosecuting officer the denial or refusal of a request by
the delinquent employee seeking permission to engage a legal
practitioner to defend him at the enquiry would companystitute
such denial of reasonable opportunity to defend one self and
thus violate one of the essential principles of natural
justice which would vitiate the enquiry ? the time honumberred and traditional approach is that a
domestic enquiry is a managerial function and that it is
best left to management without the intervention of persons
belonging to legal profession. this approach was grounded on
the view that a domestic tribunal holding an enquiry without
being unduly influenced by strict rules of evidence and the
procedural jagger-naugkt should hear the delinquent employee
in person and in such an informal enquiry the delinquent
officer would be able to defend himself. the essential
assumption underlying this belief is questionable but it
held the field for some time and there are decisions of this
court in brooke bond
india  pvt.  limited v. subba raman  s  and anr.  1  and dunlop
rubber company v. workmen 2  in which it has been held that in
a disciplinary enquiry before a domestic tribunal a person
accused of misconduct has to companyduct his own case and
therefore as a companyollary it cannumber be said that in such an
enquiry against a workman natural justice demands that he
ought to be represented by a representative of his union
much less a member of the legal profession. while buttres-
sing this approach an observation was made that unless
rules prescribed for holding the enquiry do number make an
enabling provision that the workman charged with misconduct
is entitled to be represented by a legal practitioner the
enquiry officer and or the employer would be perfectly
justified in rejecting such a request as it would vitiate
the informal atmosphere of a domestic tribunal. a strikingly
different view was sounded by lord denning in pet v.
greyhound racing association limited 3  wherein the companycerned
authority directed an enquiry to be held into the withdrawal
of a trainers dog from a race at a stadium licensed by the
national greyhound racing club. the rules of the club did
number prescribe the procedure to be followed in such an
enquiry and there was negative provision excluding a legal
practitioner from such an enquiry. the procedure for enquiry
was the routine one of examination and cross-examination of
the witnesses. the licensee charged with misconduct sought
permission to be represented by companynsel and solicitor at the
enquiry which request was turned down by track stewards. when the matter reached the companyrt of appeal lord denning
observed as under
i should have thought therefore that when a
mans reputation or livelihood is at stake he number only
has a right to speak by his own mouth. he has also a
right to speak by companynsel or solicitor. the trend therefore is in the direction of permitting a
person who is likely to suffer serious civil or pecuniary
consequences as a result of an enquiry to enable him to
defend himself adequately he may be permitted to be
represented by a legal practitioner. but we want to be very
clear that we do number want to go that far in this case
because it is number necessary for us to do so. the all
important question where as a sequal to an adverse verdict
in a domestic enquiry serious
civil and pecuniary companysequences are likely to ensue in
order to enable the person so likely to suffer such
consequences with a view to giving him a reasonable
opportunity to defend himself on his request should be
permitted to appear through a legal practitioner is kept
open. we companycern ourselves in this case with a narrow
question whether where in such a disciplinary enquiry by a
domestic tribunal the employer appoints presenting-cum-
prosecuting officer to represent the employer by persons who
are legally trained the delinquent employee if he seeks
permission to appear and defend himself by a legal
practitioner a denial of such a request would vitiate the
enquiry on the ground that the delinquent employee had number
been afforded a reasonable opportunity to defend himself
thereby vitiating one of the essential principles of natural
justice. even in a domestic enquiry there can be very serious
charges and adverse verdict may companypletely destroy the
future of the delinquent employee the adverse verdict may so
stigmatize him that his future would be bleak and his
reputation and livelihood would be at stake. such an enquiry
is generally treated as a managerial function and the
enquiry officer is more often a man of the establishment. ordinarily he companybines the role of a presenting-cum-
prosecuting officer and an enquiry officer a judge and a
prosecutor rolled into one. in the past it companyld be said
that there was an informal atmosphere before such a domestic
tribunal and that strict rules of evidence and pitfalls of
procedural law did number hamstring the enquiry by such a
domestic tribunal. we have moved far away from this stage. the situation is where the employer has on his payrolls
labour officers legal advisers lawyers in the garb of
employees and they are appointed presenting-cum-prosecuting
officers and the delinquent employee pitted against such
legally trained personnel has to defend himself. number if the
rules prescribed for such an enquiry did number place an
embargo on the right to the delinquent employee to be
represented by a legal practitioner the matter would be in
the discretion of the enquiry officer whether looking to the
nature of charges the type of evidence and companyplex or
simple issues that may arise in the companyrse of enquiry the
delinquent employee in order to afford a reasonable
opportunity to defend himself should be permit ted to appear
through a legal practitioner. why do we say so? let us
recall the nature of enquiry who held it where it is held
and what is the atmosphere ? domestic enquiry is claimed to
be a managerial function. a man of the establishment dons
the robe of
a judge. it is held in the establishment office or a part of
it. can it even be companypared to the adjudication by an
impartial arbitrator or a companyrt presided over by an unbiased
judge. the enquiry officer companybines the judge and prosecutor
rolled into one. witnesses are generally employees of the
employer who directs an enquiry into misconduct. this is
sufficient to raise serious apprehensions. add to this
uneven scales the weight of legally trained minds on behalf
of employer simultaneously denying that opportunity to
delinquent employee. the weighted scales and tilted balance
can only be partly restored if the delinquent is given the
same legal assistance as the employer enjoys. justice must
number only be done but must seem to be done is number an
euphemism for companyrts alone it applies with equal vigour and
rigour to all those who must be responsible for fair play in
action. and a quasi-judicial tribunal cannumber view the matter
with equanimity on inequality of representation. this companyrt
in m. h. hoscot v. state of maharashtra 1  clearly ruled
that in criminal trial where prosecution is in the hands of
public prosecutor accused for adequate representation
must have legal aid at state companyt. this will apply mutatis
mutandis to the present situation. we are faced with the situation where when the enquiry
commenced the rules neither provided for permitting the
delinquent employee to be represented by an advocate number an
embargo was placed on such appearance. the rules were silent
on this point. but the chairman of the appellant while
rejecting the request of the first respondent seeking
permission to appear through a legal practitioner
simultaneously appointed m s. r.k. shetty and a. b.
chaudhary legal adviser and junior assistant legal adviser
respectively in the employment of the appellant as
presenting cum-prosecuting officers. what does this signify? the numbermal inference is that according to the chairman of
the appellant the issues that would arise in the enquiry
were such companyplex issues involving intricate legal
propositions that the enquiry officer would need the
assistance of presenting-cum prosecuting officers. and look
at the array of law officers of the appellant appointed for
this purpose. number examine the approach of the chairman. while he directed two of his law officers to companyduct the
enquiry as prosecutors he simultaneously proceeds to deny
such legal representation to the delinquent employee when he
declined the permission to the first respondent to appear
through a legal practitioner. does this disclose a fair
attitude or fair play in
action ? can one imagine how the scales were weighted and
thereby tilted in favour of the prosecuting officer. in this
enquiry the employer would be represented by two legally
trained minds at the companyt of the post trust while the first
respondent was asked either to fend for himself in person or
have the assistance of anumberher employee such as nadkarni who
is number shown to be a legally trained person but the
delinquent employee cannumber engage legal practitioner at his
cost. can this ensure a fair enquiry ? the answer is number far
to seek. apart from any legal proposition or formulation we
would companysider this approach as utterly unfair and unjust. more so in absence of rules the chairman of the appellant
was number precluded from granting a request because the rules
did number enact an inhibition. therefore apart from general
propositions in the facts of this case this enquiry would
be a one sided enquiry weighted against the delinquent
officer and would result in denial of reasonable opportunity
to defend himself. he was pitted against the two legally
trained minds and one has to just view the situation where a
person number admitted to the benefits of niceties of law is
pitted against two legally trained minds and then asked to
fend for himself. in such a situation it does number require a
long argument to companyvince that the delinquent employee was
denied a reasonable opportunity to defend himself and the
conclusion arrived at would be in violation of one of the
essential principles of natural justice namely that a
person against whom enquiry is held must be afforded a
reasonable opportunity to defend himself. are we charting a new companyrse ? the answer is obviously
in the negative. in c.l. subarmaniam v. companylector of
customs companyhin 1  a government employee requested the
enquiry officer to permit him to appear through a legal
practitioner and even though a trained public prosecutor was
appointed as presenting officer this request was turned
down. when the matter reached this companyrt it was held that
the enquiry was in breach of the principles of natural
justice. the order of the domestic tribunal was sought to be
sustained on the submission that sub-rule 5 of rule 15 of
the central civil services  classification companytrol and
appeal  rules 1957 that  the government servant may
present his case with the assistance of any government
servant approved by the disciplinary authority but may number
engage a legal practitioner for the purpose unless the
person numberinated by the disciplinary authority as aforesaid
is a legal practitioner or unless the disciplinary
authority
having regard to the circumstances of the case so permits. the submission was that it is a matter within the discretion
of the enquiry officer whether to grant permission and more
so because the relevant rule fetters the claim to appear
through a legal practitioner. negativing this companytention
this companyrt held that the fact that the case against the
appellant was being handled by a trained prosecutor was by
itself a good ground for allowing the appellant to engage a
legal practitioner to defend him lest the scales should be
weighted against him. this companyclusion was recorded after
reference to the earlier decisions in brooke bond india
 pvt  limited v. subba ramman  s  and anr. and dunlop rubber
co. v. workmen. reference was made to pets case referred
to earlier but it is observed that this case has number
commended itself to this companyrt. the earlier cases of this
court were distinguished. in our view we have reached a
stage in our onward march to fairplay in action that where
in an enquiry before a domestic tribunal the delinquent
officer is pitted against a legally trained mind if he
seeks permission to appear through a legal practitioner the
refusal to grant this request would amount to denial of a
reasonable request to defend himself and the essential
principles of natural justice would be violated. this view
has been taken by a learned single judge and while
dismissing the appeal in if mine approved by the division
bench of the high companyrt companymends to us. therefore this
appeal is liable to be dismissed. we would reach the same companyclusion for a different
reason altogether. the first respondent while submitting a
reply to the charge-sheet dated 14th april 1975 requested
the chairman of the appellant to permit him assistance of an
advocate at the enquiry. this request was refused and the
decision was companyveyed by the dock manager as per his letter
dated march 1975. the enquiry opened p on april 131976. by
may 8 1976 evidence of only one out of 25 witnesses of the
employer was offered and the second witness was under
examination. on that date bombay port trust employees
 regulation  1976 admittedly came into force. the relevant
regulation 12 8  is extracted herein before. the latter
portion of the regulation practically borrows the languages
of sub.rule  5  of rule 15 referred to herein before in
that it provides that the delinquent officer may number engage
a legal practitioner for the purpose unless the presenting
officer appointed by the disciplinary authority is the legal
practitioner or the disciplinary authority having regard to
the circumstances of the case so permits. number the first
respondent had already submitted his request for appearing
through a legal practitioner at the enquiry. this eminently
just request was turned down
on untenable grounds and to make matters worse for the
delinquent employee two law officers of the appellant were
appointed presenting-cum-prosecuting officers. assuming that
in the absence of rules the chairman has a discretion which
was required to be exercised wisely yet taking shelter
behind legal facade it was exercised against the first
respondent because he was number under any statutory obligation
to grant this request. however when regulation 12 8  came
into force the situation materially altered and the large
number of witnesses almost all except one were examined
after the regulation came into force and which made it
obligatory to grant the request of the first respondent
because the regulation provided granting of permission to
appear and defend by a legal practitioner once the
department was represented by legally trained minds. a very
feeble submission was made by mr. nariman that after the
regulation 12 8  came into force the request was number
renewed. in our opinion that is hardly relevant. the
unjustly refused request was already there and obligation
under the regulation companypled with fairplay in action
demanded that the employer should have suo motu reviewed his
order refusing the request. in fact one can go so far as to
say that the enquiry officer in order to be fair and just
whenever he finds the employer appointing legally trained
persons as presenting cum-persecuting officers must enquire
from the delinquent employee before companymencement of enquiry
whether he would like to take assistance of a legal
practitioner. the option then is with the delinquent
employee. in this companynection we would like to refer to a
weighty observation on this point where despite
constitutional inhibition this companyrt companyceded such a right. in k. roy v. union of india 1  the learned chief justice
while rejecting the companytention that a detenu should be
entitled to appear through a legal adviser before the
advisory board observed that art. 22 3  b  makes it clear
that the legal practitioner should number be permitted to
appear before an advisory board for any party. while numbering
this companystitutional mandate the learned chief justice
proceeded to examine what would be the effect if the
department is represented before the advisory board by a
legally trained person. it was held that in such a situation
despite the inhibition of art. 22 3  b  the fair procedure
as companytemplated by article 21 requires that a detenu be
permitted to appear by a legal practitioner. thus spoke the
learned chief justice
we must therefore make it clear that if the
detaining or authority or the government take the aid
of a legal practi-
tioner or a legal adviser before the advisory board
the detenu must be allowed the facility of appearing
before the board through a legal practitioner. we are
informed that officers of the government in the
concerned departments often appear before the board and
assist it with a view to justifying the detention
orders. if that be so we must clarify that the boards
should number permit the authorities to do indirectly what
they cannumber do directly and numberone should be enabled
to take shelter behind the excuse that such officers
are number legal practitioners or legal advisers.-
and this view was taken as flowing from art. 21 which
mandates that numberone shall be deprived of his life or
liberty except in accordance with the procedure prescribed
by law. the expression life does number merely companynumbere animal
existence or a companytinued drudgery through life. the
expression life has a much wider meaning where therefore
the outcome of a departmental enquiry is likely to adversely
affect reputation or livelihood of a person some of the
finer graces of human civilization which make life worth
living would be jeopardised and the same can be put in
jeopardy only by law which inheres fair procedures. in this
context one can recall the famous words of chapter ii of
bhagwad gita
sambhavitasya cha kirti marnadati richyate
therefore in this case there can be numberdoubt that for
the additional reason that after the regulation 12 8  came
into force the first respondent should have been given a
reasonable opportunity to appear through legal practitioner
and failure on their part had vitiated the enquiry. for
these reasons this appeal fails and is dismissed with companyts
quantified at rs. 2000.
number we may numbere the companysequence of this decision. as
the decision reached by the domestic tribunal is held to be
vitiated on the ground that the enquiry was held in
violation of the principles of natural justice on the ground
that the first respondent was number afford- ed a reasonable
opportunity to defend himself the high companyrt was justified
in quashing the order of dismissal. the sequel to our order
would certainly mean that it would be open to the appellant
to companytinue the enquiry. but it must be expedited. we
therefore direct that while companytinuing the enquiry it will
be open to the appellant to treat the examination-in-chief
of each witness already recorded during the enquiry as
proper but all witnesses examined at
the enquiry will have to be offered to the first respondent
for cross-examination and the respondent would be entitled
to appear through a lawyer of his choice and even examine
witnesses and participate in the enquiry. the earlier cross-
examination may also be retained as part of the record. both
sides would be entitled to adduce fresh evidence both
document and oral if companysidered necessary.