JUDGMENT <NAME>, J.

1. These are consolidated appeals by <NAME>, the plaintiff in three suits, against three decrees of <ORG>, the first two dated August 6, 1924, and the third dated March 19, 1925, by which the decrees of the learned Subordinate Judge were reversed and the plaintiff's suits were dismissed.

2. The first appeal, viz., No. 13 of 1926, related to Suit No. 58 of 1920, which was instituted on April 1, 1920.

3. The plaintiff, being a minor and a ward of Court, sued through his next friend : the defendants were alleged to be the heirs or assigns of <NAME> and <NAME>.

4. The plaintiff, as the proprietor of the Ramgarh estate, claimed a declaration that the defendants had no permanent and heritable interest in the villages Jabda and Jobdi. There was a further claim for possession of the said villages and mesne profits.

5. <ORG> came to the conclusion that the defendants had made a definite assertion of an adverse right more than twelve years prior to the suit, that they always claimed to hold as permanent mukarraridars, and that the suit was barred by Article 144 of the Indian Limitation Act .

6. The material facts are as follows :-

7. The two above mentioned villages were leased by the plaintiff's predecessor, Maharaja Shri <NAME>, on December 31, 1865, to the said <NAME> and <NAME>.

8. The kabuliat, which was produced, shows that the lease was "mukarrari istemrari" at an annual rent of Rs. 344. The mukarraridars undertook to cultivate the villages and keep the tenants contented.

9. It was provided that they should have no right to transfer the villages, that they should not cut fruit bearing trees, end that they would bear the expense relating to earth work.

10. On September 17, 1875, <NAME> executed an ikrarnama stating that he had no interest in the lease.

11. On August 1, 1879, the other lessee, <NAME>, assigned is interest in the villages in consideration of the sum of Rs. 1,861 to <NAME>, who was the predecessor-in-title of Sir <NAME> the defendants Nos. 1 to 10.

12. The deed recited that the said villages were held by <NAME> in perpetual mukarrari istemrari.

13. Both the original lessees died about 1891. <NAME>, the assignee, remained in possession of the villages until his death, which occurred about 1915: since that time the defendants continued in possession.

14. It appears that <ORG> had given a usufructuary mortgage to one <NAME>, who was in possession of the two villages from 1891-1892 to 1897-1898. The mortgagee sued the original lessee, <NAME>, and the predecessor-in-title of the defendants for rent, and obtained decrees, which were duly paid by the defendants or their predecessor-in-title. It is an admitted fact in this case that no rent was paid to the original lessor, the Maharaja, or his successors by <NAME>, or the defendants. Notices to quit were served in 1915 and again on August 20, 1919S but the defendants remained in possession, and, accordingly, the suit was brought in 1920.

15. In or about the year 1903, <NAME> apparently was willing to pay rent to the plaintiff's predecessor-in-title, provided that his name was entered as the holder of the mukarrari interest and that the was given receipts made out in his own name.

16. The plaintiff's predecessor-in-title refused to do this, but expressed his willingness to receive rent and give marfatdari receipts. <NAME> refused to accept marfatdari receipts, and consequently no rent was paid by <NAME> to the original lessor.

17. It may be taken as a fact that rent was paid to the mortgagee, and that after the mortgage came to an end about 1898, no rent was paid by <NAME> or the defendants to anyone.

18. It appears that the predecessor-in-title of the plaintiff had instituted suits for possession against the heirs and assigns of mukarraridars holding under leases similar in terms to the lease in the present case.

19. In 1877 the predecessor-in-title of the plaintiff was unsuccessful, but in 1903 he got a decree for possession against one ' <NAME>. The appeal to <ORG> in that case is <NAME> v. <NAME>. (1903) I.L.R. 30 Cal. 883

20. It was decided by <ORG>, relying upon a decision of <ORG>, that the words mukarari istemrari." do not in their lexicographical sense Sir <NAME> primarily imply any heritable character in the grant as the term "mourasi" does: but that they simply imply permanency from which in a secondary sense such heritable character might be inferred, it always being doubtful whether they meant permanent during the life-time of the persons to whom they were granted or permanent as regards hereditary character, and that the words do not per se convey an estate of inheritance.

21. It was held that the tenures created by the leases in that case were grants tenable for the life of the grantee only and that they were neither heritable nor transferable.

22. The position, therefore, seems to have been that from and after 1877 the predecessor in-title of plaintiff was alleging that in the case of leases similar to that in the present appeal, the grant came to an end when the original lessees died. On the other hand, the mukarraridars were maintaining the position that such leases conveyed an estate of inheritanceuntil in about 1903 the predeccer-in-title of the plaintiff succeeded in obtaining a decision in his favour.

23. It was not alleged on behalf of the plaintiff-appellant at the hearing of this appeal that the lease of December, 1865, was more than a lease for the life of the original lessees, but the above mentioned facts are material in considering the other contentions urged on behalf of the parties to this appeal.

24. It was argued on behalf of the plaintiff-appellant that when the mortgagee in possession demanded and received rent from the predecessor-in-title of the defendants, he was acting under the provisions of Section 76(a) of the Transfer of Property Act, 1882; that as long as the mortgage was in force the powers of the proprietor mortgagor were vested in the mortgagee; that when the term of the mortgage came to an end about the year 1898, the predecessor-in-title of the defendants became the tenant of the predecessor in-title of the plaintiff, and therefore that the defendants cannot set up adverse possession.

25. It was argued further on behalf of the plaintiff that the nature of the tenancy was a holding over by <NAME> and his successors upon the terms of the original lease, except as to duration; that by reason of Section 116 of the Transfer of Property Act, 1882, it became a tenancy from year to year; that it remained in existence until notice to quit was given, and therefore that the tenancy was in existence within twelve years of the institution <NAME> of the suit and that the suit was not barred by the Indian ram Limitation Act .

26. The main question, therefore, to be determined is whether, Sir <NAME> after the termination of the original lease in or about 1891, there was existing between the predecessor-in title of the plaintiff" and <NAME> or the defendants such a relation as to create a tenancy from year to year.

27. It is clear that there was no express recognition of the defendants or their predecessor-in-title as tenants by the plaintiff's predecessor-in-title.

28. In their Lordships' opinion, on the facts established in this case, the payment of the rent decrees obtained by the mortgagee against <NAME>, the original lessee, and <NAME> was not sufficient to create a tenancy between the mortgagor and <NAME> or the defendants.

29. The mere payment of the rent decrees obtained by the mortgagee is not inconsistent with the case of the defendants and their predecessors in-title that they were permanent tenure holders. The payment of the rent may well have been made in order to preserve the tenure, on which they relied from being sold.

30. In their Lordships' opinion, it has been established that the position between the predecessor-in-title of the plaintiff and the defendants' predecessor-in-title was that, on the one hand, the Maharaja was asserting that the grant to the original mukarraridars conveyed a life interest only, and that after 1891 the predecessors of the defendants had no right to be in possession of the lands. On the other hand, the mukarraridars and their assignees were claiming that the lease was of a permanent heritable character, and that this was the position up to 1903, when <NAME> endeavoured to get his name entered as the holder of a permanent tenure, and the proprietor refused, and would only agree to give marfatdari receipts, which <NAME> declined to accept, with the result that <NAME> remained in possession without paying any rent.

31. So far from being in agreement as to a tenancy, the parties were at arm's length, and, in their Lordships' opinion, after the termination of the lease for lives, there was no recognition by the plaintiff' or his predecessor in title so as to constitute the defendants or their predecessors in title tenants, as alleged by the plaintiff. In fact, the evidence shows that the then proprietor of the <ORG> refused to recognise the defendants' predecessors <NAME> as his tenants.

32. In these circumstances their Lordships are of opinion that the plaintiff failed to prove that the relationship of landlord and' Sir Lancelot tenant, on which he relied, was in existence within twelve years prior to the institution of his suit, and that, therefore, the plaintiff's suit for possession was barred by the Indian Limitation Act , and this appeal should be dismissed.

33. The second appeal No. 82 of 1926, related to suit No. 87 of 1920, which was instituted on April 1, 1920.

34. The plaintiff is the same as the plaintiff in the last appeal, and sued as the proprietor of the <NAME> estate for a declaration that the defendants have no permanent and heritable interest in the three villages mentioned in the plaint, and that their right to possession ceased at the end of the Sambat year 1976, for possession of the said villages and for mesne profits.

35. The facts of this case are different from the facts in the last appeal, but the main issue between the parties is the same.

36. In 1865 the wife of the then owner of the <NAME> estate, acting on his behalf and with his consent, granted a mukarrari istemrari lease to <NAME> and <NAME>.

37. <NAME> died in 1866 and <NAME> died in 1883.

38. The defendants Nos. 1 to 3 and 5 are the heirs of the original mukarraridars of the three villages. The defendants Nos. 11 to 16 and 19 to 22 are darmukarraridars.

39. The other defendants who contested the suit relied on a defence which succeeded at the trial, and which has not been disputed in this appeal.

40. The learned Judge who tried the suit made a decree for possession in favour of the plaintiff, except as to 4.09 acres being in the possession of certain defendants therein specified. The learned Judges of <ORG> were of opinion that the decision of the learned Subordinate Judge in so far as he decreed the plaintiff's suit for possession against the defendants other than the defendants No. 3.6 to 9 should be set aside, and accordingly the plaintiff's suit was dismissed in toto.

41. The plaintiff alleged that the right of the lessor and his heirs to re-enter accrued on the death of the last surviving grantee, viz., in 1383, bat that the defendants, who were the heirs or assigns of the original grantees, remained in possession with the assent of the landlord as tenants from year to year; that at the time of the preparation of the record of rights they asserted that they were entitled to continue in possession as mukarari istimidars. Notices to quit, therefore, were served in 1915 and again in September, 1919, but the defendants remained in possession, and this suit was instituted in 1920.

42. After the death of the last survivor of the original mukarraridars, the heirs remained in possession and paid rent to the Sir Lancelot predecessor in title of the plaintiff, but receipts were given in the marfatdari form, i.e., the receipts were made out in the names of the original mukarraridars, but the names of the persons who made the payment were also entered in the documents.

43. This practice was continued until about the year 1898.

44. At or about that time one of the defendants went to Padma and requested the Maharaja to accept rent and give a receipt to the person paying the rent in his own name.

45. The Maharaja refused to accept the rent and to grant a receipt as requested.

46. After that time no rent was paid, and it was alleged in evidence on behalf of the defendants that no demand for rent had been made on behalf of the Maharaja since the above-mentioned incident.

47. As in the first appeal, it was agreed by the parties to this appeal that the original lease of 1865, conveyed a life estate only.

48. It was, however, contended on behalf of the plaintiff-appellant that after the death of <NAME> in 1883 the heirs of the original mukarraridars, who remained in possession, were tenants on sufferance, and that when they paid rent, which was accepted by the predecessors in title of the plaintiff, they became his tenants from year to year by operation of law, that this tenancy continued until it was determined by the notice to quit, and consequently that the suit was in time.

49. In short, it was argued that the relationship of landlord and tenant between the predecessor in title of the plaintiff and the heirs of the original mukarraridars came into existence in 1883; and that the mere non-payment of rent did not put an end to such relationship, which existed until the notice to quit was given in 1919.

50. The main defendants alleged that the heirs of the original mukarraridars and their assignees had been in adverse possession of the property in suit for more than twelve years before the suit, by right of permanent mukarrari interest therein, and <ORG> accepted this contention and decided the appeal in there favour.

51. In answer to this argument it was urged on behalf of the plaintiff-appellant that, where a tenant admits that he holds as a tenant of the person who claims to be his landlord, but disputes the terms of the tenancy and sets up terms more favourable to himself. he does not, though he fails in establishing a more favourable tenancy, so far deny his landlord's title as to work a forfeiture, and that a man, who admits he is a tenant cannot rely on adverse possession by asserting a larger tenancy than that admitted by his landlord: and that when the persons who are defendants in an ejectment suit are tenants, they cannot obtain the right of permanent occupancy by prescription.

52. The decisions in Maharaja of Jeypore v. <NAME> (1) (1919) L.R. 46 I.A. 109, 118, <NAME> v. <NAME> (1899) L.R. 26 I.A. 216 and <NAME> v. <NAME>. (1923) L.R. 50 I.A. 255, s.c. Bom. L.R. 1005 and <CITATION> (1923) L.R. 51 I.A. 83, and other cases were referred to.

53. Their Lordships do not think it necessary to refer to the above-mentioned cases in detail, for the facts of the present case do not, in their opinion, bring it within the rulings contained therein.

54. In this case the evidence goes to show that after the expiration of the lease for lives the plaintiffs predecessor in title did not, in fact, claim to the landlord, he did not admit any tenancy on the part of the defendants or their predecessors and he did not, in fact, allow the defendants or their predecessors to be in possession as tenants.

55. Their Lordships need not refer again at any length to the position which existed at the material times between the plaintiff's predecessor in title and the mukarraridars of the estate.

56. It may be summed up in the words of the learned Judge who delivered the judgment in <ORG> :

The <NAME> estate consistently and uniformly held out that the estate granted under the istemrari mukarrari deeds was only a life estate to enure during the lifetime of the grantees. The heirs of the grantees equally consistently insisted that the grants were permanent and heritable grants.

57. This was the state of the things when <NAME> died in 1883.

58. The question then arose what was the position of the heirs of the mukarraridars

59. The heirs were claiming a permanent right and endeavouring to establish it by getting the landlord to accept rent and give a receipt in their name. The landlord was receiving the rent but protecting himself by giving receipts in the names of the original mukarraridars.

60. In their Lordships' opinion the effect of this was that the rent Ram was paid and" received by the parties respectively without prejudice to their above-mentioned contentions until the question of the rights in respect of the lease was settled.

61. Then there came a time, viz., about 1898, when the defendants who are heirs of the mukarraridars, or one of them on their behalf, demanded receipts in their own name; the landlord refused to give such receipts and no more rent was paid.

62. The question is whether it can be inferred from these facts (because there is no express agreement) that there was an implied agreement between the plaintiff's predecessor in title and the heirs of the original mukarraridars that they should continue in possession as tenats from year to year, for it was admitted on bahalf of the plaintiff-appellant that unless he can establish that there was such a tenancy, he cannot succeed in this appeal.

63. In their Lordships' opinion this appeal must be decided upon the special facts of the case, which go to show, as already stated, that after the lease for lives expired the plaintiff's predecessor in title did not recognise the heirs of the mukarraridars as tenants, <NAME> was aware of the position taken up by the heirs of the original mukarraridars and the permanent right which they claimed and which they were desirous of establishing, and he was at pains not to do anything which might be taken to recognise that right. The parties were really at arm's length, the heirs of the original lessees were asserting their permanent interest with a liability to pay rent, a right which the Maharaja refused to recognise, but which they continued to assert consistently and which they had asserted ever since the death of <NAME> in the year 1883.

64. It was argued that the principle contained in the provisions of Section 116 of the Transfer of Property Act, 1882, should be applied, for although it could not be said that this case came expressly within the provisions of the section, it was argued that the provisions thereof should be used by way of analogy as laying down a rule of equity and good conscience. In their Lordships' opinion this is not a case of the lessee or under lessee holding over within the meaning of the section, but even if the case were to be considered on the assumption that the provisions of the section were applicable, the facts of this case would go to show, as already stated, that the parties in paying and accepting rent after the expiration of the lease for lives were acting without prejudice to their respective contentions, and it would have to be <NAME> held that there was an "agreement to the contrary" which would prevent the application of the provisions of the section in the present case.

65. Much reliance was placed by the learned Counsel who appeared for the plaintiff-appellant on the case of <NAME> v. <NAME>. (1912) 17 C.W.N. 459. The learned Counsel argued that the above-mentioned case was on all fours with the case now under consideration.

66. Their Lordships are unable to take that view. A reference to the case will show that the facts of the cited case are materially different from the facts of this case.

67. The learned Judges of <ORG>, in the cited case, stated in their judgment (p. 481):

It appears that after his purchase, <NAME> held the note in the name of the original tenant and both parties must be held to have accepted the position that <NAME> was paying rent in the name of the old tenant and that the Plaintiff was his landlord.

68. Their Lordships are not concerned to express any opinion as to the correctness of the above-mentioned decision, it is sufficient for them to note the finding of fact, upon which the case rested.

69. On the facts of the case now before the <ORG>, their Lordships have arrived at the conclusion that the predecessor in title of the plaintiff did not recognise the heirs of the mukarraridars as his tenants from year to year, which finding in itself differentiates the case from the above-mentioned cited case.

70. Their Lordships, therefore, are of opinion that the plaintiff's claim for possession was barred by the Indian Limitation Act , and that this appeal should be dismissed.

71. The third appeal, No. 102 of 1926, related to suit No. 35 of 1919, which was instituted on February 20, 1919.

72. The plaintiff is the same as in the two other, suits and sued as the proprietor of the Ramgarh estate, in respect of certain villages mentioned in the plaint; he claimed (1) a declaration that the defendants have no permanent and heritable interest in the said villages and that their right to possession ceased at the end of the Sambat year 1974 (2) possession of the villages, and (3) tueeue profits.

73. The defendants were alleged to be heirs or assigns of <NAME> and <NAME>.

74. The learned Subordinate Judge gave a decree for the plaintiff against the defendants, with the exception of defendants Nos. 20, 20 (a) and 21.

75. The learned Judges of <ORG> allowed the appeal and dismissed the plaintiff's suit.

76. In 1866 the then proprietor of the <NAME> estate granted a mukarrari istemrari lease to <NAME> and <NAME>.

77. <NAME>, the survivor of the two lessees, died in 1884.

78. As already stated, it is not now alleged that the lease of 1866 would be effective for more than the lives of the above-mentioned lesSections The predecessor in title, therefore, of the plaintiff became entitled to possession of the said villages in 1884 and this suit was not brought until 1919.

79. The main point in this appeal is the same as in the second, which has already been considered.

80. Indeed, the learned Counsel who appeared on behalf of the plaintiff-appellant stated that there was no material difference between the second and the third appeals.

81. The learned Judges of <ORG> came to the conclusion on the facts of this case that the plaintiff's predecessor in title was not willing to recognise the defendants as tenants, and that the suit was barred by the Indian Limitation Act .

82. Their Lordships are of opinion that this conclusion is correct and that the evidence in this appeal is not sufficient to establish the case which the plaintiff admittedly has to make out in order to succeed, viz., the existence of a tenancy from year to year between the predecessor of the plaintiff' as landlord, on the one hand, and the heirs of the mukarraridars as tenants on the other hand.

83. They are, therefore, of opinion that this appeal also should be dismissed.

84. In their Lordships' opinion, all three appeals should be dismissed with costs, and they will humbly advise His Majesty accordingly.


JUDGMENT <NAME>, J.

1. Leave to appeal, as prayed for, is granted.

2. Learned counsel for the appellant and the learned Standing Counsel for <ORG> representing <ORG> and its authorities are heard.

3. The appellants started their service in the <ORG> as daily-rated employees on different posts of Khalasi, Gangman, Chowkidar between the years January 1981 to June 1982. They were given temporary status on the post in which they were working.

They were posted on different dates in the year 1984 to work as store man which is a higher post in the Group 'C' carrying a higher scale of pay. They continuously worked on the post of Store man for long periods during the years 1984, 1985, 1988 and 1990 till they were reverted by the impugned order passed on 29.7.1999 from Group 'C' post of Store man to Group 'D' post of <ORG> in the open line.

4. The appellants approached <ORG> with their grievance and prayer that they having been made to work on the post of Store man and sometimes as Clerk for a long period of more than ten years they are entitled to be regularized and absorbed on the Group 'C' post.

5. <ORG> partly allowed the claim of the appellants by directing consideration of their cases for regularization after ascertaining the minimum eligibility criteria for the post and subjecting them to qualifying tests. The tribunal placed reliance on the order of this Court passed in SLP No. 12947 of 1993 decided on 25.10.1996 in the case of <CITATION> . The short order passed in the case of <NAME> reads thus:

"Delay condoned.

In the facts and circumstances of the case including the fact that the concerned employees have all worked in that capacity for over a decade, the direction given by the tribunal, for regularization of those suitable found fit after screening, is just and does not call for any interference under Article 136 of the Constitution. The question of law raised in the Special Leave Petition is not required to be considered on these facts and is, therefore, left open for decision in an appropriate case.

The special leave petition is dismissed."

6. Relying on the above quoted order of this Court in the case of <NAME> (supra) in partly allowing the petition of the appellants, the tribunal made the following directions:

"In view of the above discussion and keeping in view the ratio laid down by <ORG> in <NAME> case we set aside the order dated 16.8.1999 and direct the respondents to regularize the applicants in Class III posts as Clerks after ascertaining the minimum eligibility criteria for the said posts and also subjecting them to qualifying test etc. The applicants, if found fit, would also be entitled for the consequential benefits from the date their services have been utilized as Clerks. No costs. The OA is allowed on the above terms."

7. <ORG> challenged the order made by the tribunal in granting the above partial relief to the appellants by way of a Writ Petition under Article 227 of the Constitution of India in <ORG> at New Delhi. <ORG> allowed the petition filed by the <ORG> and set aside the order of the tribunal. <ORG>, however, made in its concluding part the observation as under:

"However, keeping in view the peculiar facts and circumstances of this case, the cases of the respondents may be considered for regular appointment along with other eligible candidates in terms of the recruitment rules after giving them the benefit of relaxation of age keeping in view of the fact that they had worked for such a long time."

8. In this appeal preferred after seeking leave, learned counsel for the appellant contends that the high Court erred in upsetting the directions of the <ORG> which were made keeping in view the extraordinary circumstances and facts of the case of the appellants that they were made to work for a very long period as Store man-cum-Clerk on a promotional post. In such circumstances, repatriating them after more than a decade of service from Group 'C' post to lower post of Group 'D' was wholly unjustified. The tribunal rightly granted them partial relief on the basis of the order made by this Court in the case of <NAME> (supra)

9. The learned Standing Counsel appearing for the <ORG> has triad to justify the action of the <ORG> and supported the order of <ORG>. It is submitted that post of Store man is a promotional post. It cannot be filled by regularization or direct recruitment. It is also not a post in the ministerial cadre. The post being a promotional post in Group 'C', an employee substantively holding Group 'D' post cannot be regularized on a promotional post. It is submitted that the appellants have only right to be considered for rsgularization on a Group 'D' post.

10. Learned counsel for the <ORG> also argued that in <NAME> case Special Leave Petition was summarily dismissed leaving the question of law raised by the railways open.

11. It is not disputed that the appellants were made to work on the post, of Store man-cum-Clerk which is a higher post carrying higher scale of pay. They were made to work on that higher post not for a short period as a Stopgap arrangement but for a long period of more than ten years. It is on these facts that the appellants have raised their claim for being allowed to continue on the higher post and questioned drop of their emoluments.

12. Reliance is placed on the decision on this Court in the case of <CITATION> in Writ Petition No. 548 of 2000 decided on 13.1.2003. In that case, similarly placed railway employees, who were substantively holding Group 'D' post but were made to work for long period on a higher group 'C' were granted partial relief by making the following directions:

"However, while the petitioners cannot be granted the reliefs as prayed for in the writ petition, namely, that they should not be reverted to a lower post or that they should be treated as having been promoted by reason of their promotion in the projects, nevertheless, we wish to protect the petitioners against some of the anomalies which may arise, if the petitioners are directed to join, their parent cadre or other project, in future. It cannot be lost sight of that the petitioners have passed trade tests to achieve the promotional level in a particular project. Therefore, if the petitioners are posted back to the same project they shall be entitled to the same pay as their contemporaries unless the posts held by such contemporary employees at the time of such re-posting of the petitioners is based on selection.

Additionally, while it is open to <ORG> to utilize the services of the petitioners in the open line, they must, for the purpose of determining efficiency and fitment take into account the trade test which may have been passed by the petitioners as well as length of service rendered by the petitioners in the several projects subsequent to their regular appointment."

13. The practice adopted by the railways of taking work from employees in group 'D' post on a higher Group 'C' post for unduly long period legitimately raises hopes and claims for higher posts by those working in such higher posts. As the railways is utilizing for long periods the services of employees in group 'D' post for higher post in Group 'C' carrying higher responsibilities benefit of pay protection, age relaxation and counting of their service on the higher post towards requisite minimum prescribed period of service, if any, for promotion to the higher post must be granted to them as their legitimate claim.

14. As held by <ORG> - the appellants cannot be granted relief of regularizing their services on the post of Store man/Clerk merely on the basis of their ad hoc promotion from open line to higher post in the Project or construction side. The appellants are, however, entitled to claim age relaxation and advantage of experience for the long period spent by them on a higher group 'C' post.

15. Without disturbing, therefore, orders of the <ORG> and <ORG> the appellants are held entitled to the following additional reliefs. The pay last drawn by them in group 'C' post shall be protected even after their repatriation to group 'D' post in their parent department. They shall be considered in their turn for promotion to group 'C' post. The period of service spent by them on ad hoc basis in group 'C' post shall be given due weightage and counted towards length of requisite service, if any, prescribed for higher post in group 'C'. If there is any bar of age that shall be relaxed in the case of the appellants.

16. With the above modifications in the directions of the <ORG> and <ORG>, the appeal partly succeeds, in the circumstances the parties shall bear their own costs.


JUDGMENT <NAME>, C.J.

1. This appeal arises out of a suit filed by the appellant in <ORG> of Cochin for a declaration that certain orders passed by the Deputy Commercial Tax Officer) by the Commercial Tax Officer on appeal and by <ORG> on revision in respect of sales tax assessment for 1945-46 are illegal, ultra vires, unauthorised and opposed to the provisions of the Madras General Sales Tax Act and the rules framed thereunder. The learned Subordinate Judge dismissed the suit and hence the appeal.

2. The facts of this case can be better understood by first referring to the material provisions of the Madras General Sales Tax Act (Act IX of 1939) and the rules framed thereunder. This Act was amended in 1947 and 1949. But we are concerned in this case with the provisions of the Act as they stood before these amendments. The descriptive title of the Act is :

"An Act to provide for the levy of a general tax on the sale of goods in the Province of Madras."

The following definitions in section 2 are important, "(b) 'dealer' means any person who carries on the business of buying or selling goods.

* * * * Explanation (2) -- The agent of a person resident outside the Province who carries on the business of buying or selling goods in the province shall be deemed to be the dealer in respect of such business for the purposes of this Act. "(c) 'goods' means all kinds of movable property other than actionable claims, 'stocks and shares and securities and includes all materials, commodities and articles;

"(h) 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge;

Explanation: A transfer of goods on the hire-purchase or other instalment system of payment shall notwithstanding the fact that the seller retains the title in the goods as security for payment of the price, be deemed to be a sale.

(i) 'turnover' means the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover.

Section 3 is the charging section and is in the following terms:

"3(1) Subject to the provisions of this Act, every dealer shall pay in each year a tax in accordance with the scale specified below:

(a) If his turnover does not exceed twenty thousand rupees.

Five rupees per month

(b) If his turnover exceeds twenty thousand rupees.

One half of one percent of such turnover.

Provided that any dealer whose turnover in any year is less than ten thousand rupees shall not be liable to pay the tax under this sub-section for that year."

There is another proviso which is not relevant. Section 3(2) provides that the turnover for all the purposes of the Act shall be determined in accordance with, and the tax shall be assessed, levied and collected in such manner and in such instalments as may be prescribed by the rules made by the Government. Every dealer whose turnover is Rs. 10,000 or more for a year shall submit such return or returns of his turnover in such manner and within such periods as may be specified in the rules made under sub-section (2) of section 3 (section 9(1)). If the assessing authority is satisfied that any return so submitted is correct and complete he shall assess the dealer on the basis thereof (Section 9(2)(a)). If no return is submitted before the prescribed date or if the return submitted appears to the assessing authority to be incorrect or incomplete the assessing authority shall proceed to determine the turnover in accordance with the rules, provided that before taking action under this clause the dealer shall be given a reasonable opportunity of proving the correctness and completeness of any return submitted by him.

Section 10 provides for the recovery of the tax, section 11 for appeals against the orders of assessment and section 12 for revision by <ORG>. An officer duly empowered by <ORG> may require any dealer to produce before him the accounts and other documents and to furnish any other information relating to such business (Section 14(1)). Section 14(2) provides for inspection of accounts and registers, goods, offices, shops etc.

3. In exercise of the powers conferred by Sub-section (2) of Section 3 of the Act rules were framed called the Madras General Sales Tax (Turnover and Assessment) Rules 1939. Rule 6(2) provided that every dealer commencing business after the first day of October 1939 whose estimated nett turnover for the first twelve months of his business is not less than Rs. 10,000 shall, within 30 days of commencing his business, submit to the assessing authority of the area in which his principal place of business is situated a return in form A-1 showing his estimated gross turnover and the nett turnover for the first 12 months of his business. Rule 6(3) ran thus:

"Every dealer commencing business, who has not submitted a return under Sub-rule (2) but whose turnover reaches Rs. 10,000 within the first 12 months of the commencement of the business, shall, within 30 days of the day on which his turnover reaches Rs. 10,000 submit to the assessing authority of the area in which his principal place of business is situated a return in form A-1".

Rule 11(1) is in the following terms:

"Paragraph 1: Every dealer liable to submit a return under Rule 6, except those who have elected to be assessed by the method prescribed in Rule 13, shall, on or before the first day of May, in every year submit to the assessing authority of the area in which his principal place of business is situated a return in form A showing the actual gross and nett turnover for the preceding year.

"Paragraph 2: Every dealer not liable to submit a return under rule 6 who has a nett turnover of not less than Rs. 10,000 for any year shall (unless he has elected to be assessed by the method prescribed in rule 13) submit to the assessing authority of the area in which his principal place of business is situated, a return in form A snowing the actual gross and nett turnover for that year on or before the first day of May of the succeeding year and thereafter, for every_ year on or before the first day of May immediately following such year,"

4. On 15th March 1947 the Deputy Commercial Officer, <NAME> issued a notice to the appellant informing him that it was seen from the records of the companies stationed in British Cochin that the appellant had sold coir yarn etc. to them to the extent of Rs. 13,37,431-12-3 (the details of which were appended) during the year 1945-46, that as such sales had taken place in British Cochin he was liable to pay tax under the Madras General Sales Tax Act, 1939, that he had neither furnished the turnover in Form A-1 after having reached a taxable turnover of Rs. 10,000 as required by Rule 6(3) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, nor submitted a return in form A for the said year on or before 1st May 1946 as required by Rule 11(1) of the said rules, and giving him notice that if no satisfactory explanation was received from him accompanied by the accounts, if any, on or before the 19th March he would be finally assessed to the best of his judgment on the nett turnover of Rs. 13,37,431-12-3 for 1945-46 without further notice.

To this notice the appellant sent his objections (Exhibit B. 5). He stated that he was resident in Palluruthy and that his principal place of business was also situated in Palluruthy which was in Cochin State, that he had no place of business in British Cochin or in the Province of Madras, that the Sales Tax authorities had no jurisdiction or authority under the said Act to call upon him to submit a return of his turnover in British Cochin and that the provisions of the Madras General Sales. Tax Act did not apply to dealers whose place of business was situated outside the Province of Madras unless there was an agent in the Province. He therefore disclaimed any liability to submit a return of his turnover or to pay any tax under the Madras General Sales Tax Act. These objections were overruled and the Deputy Commercial Tax Officer by his order dated the 22nd March 1947 held that the appellant was liable to be assessed on a nett turnover of Rs. 12,30,124/- for the year ending 31st March 1946 and called upon him to pay a sum of Rs. 12.301-4-0 within 21 days.

The plaintiff filed an appeal to the Commercial Tax Officer of Malabar at Calicut against this order of assessment and raised the same contentions. But the Commercial Tax Officer confirmed the order of the Deputy Commercial Tax Officer by his order dated the 22nd May 1947. The appellant then took the matter in revision to <ORG>, but his petition was rejected by the Board by its order dated the 20th October 1947. Thereupon the appellant filed the present suit making more or less the same allegations which he made and raising the same contentions as he raised before the Sales Tax Officers and <ORG>. The learned Subordinate Judge held that the appellant had been rightly assessed under the Act and dismissed the suit.

5. From the evidence adduced in the case the following facts emerge. The plaintiff's principal place of business is in <ORG> in the Cochin State. He is also a resident of that place. He had large dealings with European firms in Fort Cochin to whom he sold coir yarn. . The contracts relating to these sales were several if not all of them, executed in Fort Cochin. They were signed either by the appellant or by his son. <NAME> a clerk in Messrs. Pierce Leslie and Co. Ltd. produced on behalf of his company contracts entered into with the appellant and he deposed that these contracts were signed, some of them by the appellant and the others by his son <NAME>, in Fort Cochin in the office of <ORG> The goods were despatched from the appellant's <ORG> office to Fort Cochin and delivered to the merchants in Fort Cochin.

6. Mr. <NAME>, learned counsel for the appellant, raised two main contentions. His first contention was that as the appellant was a resident of Cochin State and his place of business was in that State he was not bound by the laws of a different country, viz., the Stale of Madras. He cited to us passages from leading text writers on conflict of laws. Story in his book (VIII Edn., page 8) says:

"It is plain that the laws of one country can have no intrinsic force 'proprio vigore', except within the territorial limits and jurisdiction of that country. They can bind only its own subjects, and others who are within its jurisdictional limits; and the latter only while they remain therein."

Again at page 22 he says:

"Another maxim or proposition is that no State or nation can by its laws directly affect or bind property out of its own territory or bind persons not resident therein whether they are natural born subjects or not."

See also Dicey's Conflict of Laws, sixth edn., page 154.

7. In -- 'Ex parte Blain, In re: Sawers', (1879) 12 Ch D 522, <NAME> observed thus:

"It appears to me that the whole question is governed by the broad, general, universal Principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of <ORG> to give effect to an English statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or a short time have made themselves during that time subject to English jurisdiction."

In our opinion, from this rule of law which is certainly well established it does not follow that one who is not a resident of a State can escape from or evade the imposition of taxes by the particular state if the necessary requirements are fulfilled which would justify the levy of a tax.

8. In -- '<NAME> v. Commissioners of Inland Revenue', (1926) AC 37, the facts were these. The Appellant, a citizen of the United <ORG>s of America and having possessions in the United Kingdom from which he derived a larger income, was required by the Special Commissioners for income-tax to make a return of his income for the purposes of super-tax. Having failed to make the return he was assessed by the Commissioners to the best of their judgment. It was held by <ORG> that the assessment was rightly made. The statute of any country imposing a tax on the profits earned by a person in transactions which take place within the <ORG> is not inconsistent with the rule of international law of which mention has been made.

9. Mr. <NAME>'s next contention was in fact the main contention which he strongly pressed before us. The contention was mat the appellant cannot be deemed to be a 'dealer' within the meaning of the definition of the term in the Act. Before the appellant could be held to be a dealer it must be established that he carried on the business of buying or selling goods. A person who has no place of business in an area or locality cannot be said to be a person who carries on any business in that place. Even assuming that there have been sales in Fort Cochin the sales alone cannot warrant the inference that the appellant carries on a business in that area or locality. So his argument ran. He relied upon certain decisions to which we shall refer briefly. <CITATION> ', 42 Mad 455, the question was whether a Shipping <ORG> which earned profits by carriage of goods by sea and in the course of its business the ships called at several ports in various parts of the world including Cocanada and which employed sub-agent at Cocanada could be assessed by the Municipality of Cocanada to a tax under Section 53 of the District Municipalities Act for exercising a trade and carrying on business in Cocanada. It appeared from the evidence in the case that all contracts with the shippers couid be and were entered into by the agent of the <ORG> at Madras. <NAME> after referring to the decision of <ORG> in --'Grainger and Son v. <NAME>', (1896) AC 325, and the decision of <ORG> in --'I^vell and <CITATION> ', (1908) AC 46 (PC) observed thus:

"Looking at the facts of the present case in the light of these decisions, I think there is no ground for holding that <ORG> exercises a trade at Cocanada. It is a shipping company which earns profits by the carriage of goods by sea, and in the course of its business trades, in Lord <NAME>'s language, with, but not necessarily within, Port towns in various parts of the world. It has not been contended before us that a shipowner exercises his trade at all the ports at which his steamers habitually call to discharge or load cargo, which latter operation may involve entering there and then into contracts with shippers.......lt is unnecessary to pursue this question, because it is, I think, clear upon the authorities that whore, as in the present case, the freight earning contracts with shippers which enable profits to be earned by sea carriage are not entered into at the port in question by the ship's master or the local agent of the shipowner, but elsewhere, the ship-owner cannot be held to exercise his trade at the port, merely because he employs a shipping agent there to attend to other matters, such as issuing shipping orders and signing bills of lading pursuant to contracts already made and receiving payment of advance freight."

<NAME> formulated the test thus:

"........In this class of cases if the contract out of which the profit arises is not made in the place where the tax is sought to be imposed, the liability does not arise."

10. <CITATION> .', 52 Mad 207, the principle laid down in -- ' <CITATION> .', 42 Mad 455, was followed. The plaintiff company in that case which had its chief place of business in Madras purchased produce such as cotton and groundnuts through its agent in Dindigul, Contracts in respect of such purchases were entered into at Madras and after purchase the produce was sold abroad at Madras. The agent of the plaintiff company in Dindigul had no power to conclude any contract. The question was whether the company transacted business, that is to say carried on business within the municipality. <NAME> said;

"In my opinion it would be no more reasonable so to hold than to hold that a company who sends a commercial traveller all over India to make purchases for them can be said to carry on business in all the various places at which he calls to fulfil the purpose of his employment."

<NAME> discussed all the relevant decisions of the English Courts on the point. He came to the same conclusion mainly on the ground that all the business contracts were concluded at Madras. To use his language "what we have to find out mainly from the evidence is as to where the contracts relating to the business of this company are habitually made"

11. Mr. <NAME> referred us to a very early case in -- '<NAME> v. The Attorney-General', (1860) 157 ER 1364, but that decision as well as subsequent decisions have all been reviewed both by <ORG> and by <ORG> in the two cases above mentioned. The facts in that case were peculiar, as one of the partners in a firm resided at Nottingham in England, whereas the other partners resided in New York where the principal business of the firm was carried on. The profits which arose on the resale of the goods purchased in England at an increased price in America were held not to be subject to the income-tax in the United Kingdom.

12. As <NAME> pointed out in --'Erichsen v. Last', (1882) 8 QBD 414:

"there is not........any principle of law which lays down what carrying on trade is. There are a multitude of things which together make up the carrying on of trade, but I know no one distinguishing incident, for it is a compound fact made up of a variety of things."

Nevertheless the learned Master of the Rolls attached great weight to the fact that the company concerned in the case entered into contracts in England with English subjects for the right of carriage. <NAME> observed thus: "The only thing that we have to decide is whether upon the facts of this case, this company carry on a profit earning trade in this country. I should say that wherever profitable contracts are habitually made in England, by or for foreigners, with persons in England, because they are in England, to do something for or supply something to those persons, such foreigners are exercising a profitable trade in England, even though everything to be done by them in order to fulfil the contracts is done abroad." In that case it was held that though the principal place of business of the company was at Copenhagen they carried on business also in England, because the contracts were made with the company in England. 13. In -- '<ORG> v. <NAME>', (1888) 20 QBD 753, the facts were these. A firm of wine merchants at <ORG> in France employed a London firm to obtain orders for their wine in England. They had no wine in England, and all orders were forwarded to <ORG> and the wine was packed and sent direct from thence to the customers. Payments were made direct to the firm or to the London firm who remitted the amount to the firm at <ORG>. It was held that the firm at <ORG> exercised a trade within the United Kingdom and were therefore assessable to income-tax in respect of profits arising therefrom. The test enunciated in -- 'Erichsen v. Last', (1882) 8 QBD 414 was applied, viz.. where were the profitable contracts made? Lord <NAME>, M. R. summed up the position thus: "The making of contracts in such a case as the present is the whole substance and essence of the trade, and so the appellants exercise a business in England."

14. In -- 'Grainger and Son v. Gough', (1896) AC 325, a foreign merchant who canvassed through agents in the United Kingdom for orders for the sale of his merchandise to customers in the United Kingdom was held not liable to income-tax in the United Kingdom as he did not exercise a trade therein because the contracts for the sale and all deliveries of the merchandise were" made in a foreign country. Stress was laid by the learned Lords on the fact that no contracts were ever made by the canvassing agents on behalf of the assessee. All they did was to transmit the orders received, and it was open to the merchant to accept them or not. Lord <NAME> approved of the test enunciated in -- '<NAME> v. <NAME>', (1882) 8 QBD 414, namely where were the contracts habitually made?

15. The same test was applied by <ORG> in -- ' <CITATION> ', (1908) AC 46 (PC). The rule is stated thus by Their Lordships:

"One rule is easily deducible from the decided cases. The trade or business in question in such cases ordinarily consists in making certain classes of contracts and in carrying those contracts into operation with a view to profit; and the rule seems to be that where such contracts, forming as they do the essence of the business or trade, are habitually made, there a trade or business is carried on within the meaning of the Income-tax Act s, so as to render the profits liable to income-tax."

16. <CITATION> ', 44 Mad 773 (SB) the test laid down in -- 'Werle and Co. v. <NAME>', (1888) 20 QBD 753, was expressly applied. In that case the person sought to be taxed under the Indian Income-tax Act resided and had his principal place of business in Cochin State in Mattancherri which adjoined British Cochin and practically formed one town with it. The facts found were that contracts for the supply of goods were entered into and signed at the offices of the firm in British Cochin and the goods were delivered at the jetties of the purchasers. The sale proceeds were paid to the firm's agent or other duly authorised servant in cash in British India or by cheques which were encashed in banks in British India. In these circumstances it was held by a Special Bench consisting of <NAME> and <NAME> and <NAME> that the profits and gains arising through these transactions were assessable under the Indian Income-tax Act .

17. In the light of the above authorities let us see the facts of this case. The contracts of sale were made in Port Cochin. The plaintiff or his son was present in Fort Cochin and executed the contracts. The delivery of the goods was undertaken to be given in the yards of the respective buyers who were all carrying on business in Fort Cochin. On these facts we nave no hesitation in holding, agreeing with the learned Trial Judge, that the plaintiff must be held to be a person who carries on the business of buying or selling goods in the State of Madras and therefore a dealer within the meaning of Section 2 (b) of the Act. The Sales tax, as observed in -- ' <CITATION> and. Sons', 1942 FCR 90, is a tax levied on the occasion of the sale of goods. The sales must be deemed to have taken place in Fort Cochin which is part of the State of Madras. The appellant was therefore rightly assessed under the Act.

18. The appeal is dismissed with costs.


PETITIONER: STATE OF BOMBAY (NOW MAHARASTRA) Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 22/02/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) DAYAL, <NAME>, V. CITATION: 1966 AIR 269 1965 SCR (3) 135 ACT: Departmental Enquiry--Charge-sheeted officer desiring to produce oral evidence--Refusal to record such evidence on the ground that the case against the officer rested on documents alone--Such refusal whether amounts to denial of reasonable opportunity--Civil Services (Classification, Control & Appeal) Rules r. 55-- Constitution of India, Art. 311(2). HEADNOTE: The appellant who was in the service of a State Government asked for long leave which was refused. Subsequently he asked for ten days' leave which was granted. On the expiry of the leave period he did not join duty on the ground that he was seriously ill. The Government refused to accept the plea and instituted a departmental inquiry against him. The respondent wanted to produce oral evidence in support of his plea including the evidence of doctors who treated him, but the enquiry officer refused to record oral evidence on the ground that the case against the appellant rested on documents alone and therefore no oral evidence was necessary. On the report of the enquiry' officer <ORG> ordered the compulsory retirement of the respondent. The latter filed a suit in which he claimed inter alia that the constitutional provision in Art. 311 had been contravened. The trial judge held against him but <ORG> decided in his favour. The State Government appealed to <ORG> with certificate. The narrow question to which the <ORG> had to address itself was whether it was obligatory on the enquiry officer to give a reasonable opportunity to the respondent to lead oral evidence and examine his doctors. HELD: (i) The Civil Services (ClassifiCation, Control and Appeal) Rules provide in r. 55 that if the charge- sheeted Officer so desires or if the authority concerned so directs an oral enquiry shall be held. This provision is mandatory and is based on considerations of natural justice and fair play. Therefore when the respondent expressed his desire to the enquiry officer that he wanted to lead evidence in support of his plea, it was obligatory on the enquiry officer to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf. [143 D-F] (ii) Though an enquiry officer would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged, it would be impossible to accept the argument that if the charge-sheeted officer wants to lead oral evidence the enquiry officer can say that having regard to the charges against the officer he would not hold any oral enquiry [143 H] (iii) In the present case the witnesses whom the respondent wanted to examine would undoubtedly have given relevant evidence. He wanted to examine his doctors but the enquiry officer failed to give him an opportunity to do so. That introduced a fatal infirmity in the whole enquiry as the respondent had not been given a reasonable opportunity to de.fend himself within the meeting of Art. 311 (2). The appeal of <ORG> had therefore to be dismissed. [144 A, C] 136 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1040/63. <NAME>, Attorney General, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by-- <NAME>, <NAME> The short question of law which arises in this appeal is whether the appellant, the State of Bombay (now Maharashtra), shows that its predecessor State of Madhya Pradesh (hereinafter called the <ORG>) had given a reasonable opportunity to. the respondent, <NAME>, to defend himself before it passed the final order on June 6, 1952 compulsorily retiring him under Article 353 of the Civil Service Regulations. By this order, the respondent was compulsorily retired and in relaxation of Art. 353 , the <ORG> was pleased to allow the respondent to draw a compassionate allowance equal to the pension which would have been admissible to him had he been invalidated. This order was challenged by the respondent by filing a suit in the Court of the first Additional District Judge at Nagpur. In his plaint, the respondent alleged that the impugned order whereby he was compulsorily retired, was invalid and he claimed a declaration that it was ultra vires and inoperative. He also asked for a declaration that he was entitled to be restored to the post which he held on July 6, 1950, and that he should be given all pay, allowances. increments and promotions to which he would have been entitled if he had been permitted to continue in service. In the result, the respondent asked for a decree for Rs. 62,237 with interest at 6 per cent per annum from the date of the suit till realisation.

This claim was resisted by the appellant on several grounds. The principal ground on which the appellant challenged the respondent's claim, however, was that he had been given a reasonable opportunity to defend himself, and so, the impugned order was perfectly valid, and legal. Several other pleas were also raised by the appellant. On these pleas, the learned trial Judge framed appropriate issues. The issue with which we are concerned in the present appeal, however, centered round the question as to whether the Constitutional provision prescribed by Art. 311 affording protection to the respondent had been contravened. The trial Judge made a finding against the respondent on this issue. He also recorded his findings on the other issues with which we are not directly concerned in the present appeal. In regard to the money claim made by the respondent, the learned trial Judge made a finding that in case he was held entitled to such relief, a decree for Rs. 37,237 may have to be passed in his favour. In view of his conclusion that the impugned order was valid, no question arose for making such a decree in favour of the respondent. The respondent's suit, therefore, failed and was dismissed. The respondent then took the matter in appeal before <ORG> at Bombay, Nagpur Bench. <ORG> has, in substance, held that the constitutional provisions prescribed by Art. 311 have not been complied with by the appellant before it passed the impugned order against the respondent. It has found that the departmental enquiry which was held suffered from the serious infirmity that the enquiry officer did not hold an oral enquiry and did not allow an opportunity to the respondent to lead his oral evidence. It has also held that the second notice served by the appellant on the respondent calling upon him to show cause why the report made by the enquiry officer should not be accepted and appropriate punishment should not be inflicted on him, was defective, and that also made the impugned order invalid. <ORG> appears to have taken the view that the impugned order does not show that the appellant had taken into account the explanation offered by the respondent in response to the second notice issued by the appellant. As a result of these findings, <ORG> has reversed the conclusion of <ORG> on the main question and has found that the impugned order is invalid and inoperative. On that view, <ORG> considered the money claim made by the respondent, and it confirmed the finding of <ORG> that the respondent would be entitled to a decree for Rs. 37,237. In fact, the alternative finding recorded by <ORG> in respect of the amount to which the respondent would be entitled in case he succeeded in challenging the validity of the impugned order, was not questioned before <ORG>. In the result, <ORG> allowed the appeal and passed a money decree for Rs. 37,237 in favour of the respondent in terms of prayer (A) of paragraph 31 of the plaint. The appellant then applied for and obtained a certificate from <ORG> and it is with the said certificate that it has brought the present appeal before this Court. That is how the main question which falls for our decision is whether the constitutional provision prescribed by Art. 311 has been complied with by the appellant before it passed the impugned order. At this stage, it may be relevant to refer to some material facts. The respondent was appointed as Extra Assistant Commissioner in 1926 and since then he had been holding various offices in the State service of the then Madhya Pradesh <ORG>. In 1950, he was holding the post of a <ORG> Officer at Nagpur. It appears that privilege leave for over a year was due to him and he had applied for four months' privilege leave. On June 12, 1950, <ORG> informed him that his request for leave was rejected and he was told that no further application for leave would be entertained in future. On July 7, 1950, the respondent proceeded on casual leave for two days, and on July 8, 1950 he renewed his application for four months' leave on medical grounds. This application was accompanied by a certificate given by Dr. <NAME>. <ORG>, therefore, decided to constitute <ORG> for examining the respondent in order to .decide whether leave on medical grounds should be granted to him. Accordingly, the respondent appeared before <ORG> on July 22, 1950. <ORG>, however, could not come to a decision as to whether the respondent should be granted leave on medical grounds for four months. It recommended that the respondent should get himself admitted in <ORG>, Nagpur. for observation and investigation. In accordance with this report, <ORG> asked the respondent to get himself admitted in <ORG> in time, so that the Board could examine him on August 8, 1950. The respondent refused to, go to <ORG> and pressed that he should be allowed to go to Calcutta to receive medical treatment from experts. It appears that on July 26, 1950, the respondent received a telegram from Raipur stating that his daughter was dangerously ill there. He, therefore, made another application on the same day requesting for ten days' leave to enable him to go to Raipur and see his ailing daughter. On July 31, 1950, <ORG> granted the respondent's request. Accordingly, the respondent went to Raipur. From Raipur he renewed his application for four months' leave on Medical grounds and produced certificates from Dr. <NAME> and Dr. <NAME>. That led to a lengthy correspondence between the respondent and the <ORG> which shows that <ORG> insisted on his appearing before <ORG> and the respondent was not prepared to go to. Nagpur because he alleged that he was seriously ill and could not undertake a journey to Nagpur. Ultimately, on September 9, 1950, <ORG> called upon the respondent to resume his duties within three days from the receipt of the said letter failing which he was told that he would be suspended and a departmental enquiry would be started against him. On October 4, 1950, the respondent wrote a lengthily reply setting forth his contentions in detail. Since he did not resume his duties, <ORG> decided to suspend him and start a departmental enquiry against him. Mr. <NAME>, I.C.S., was accordingly appointed to hold the. enquiry. On November 29, 1950, Mr. <NAME> wrote to the respondent that <ORG> had directed him to conduct the departmental enquiry, and called upon the respondent to attend his office on December 7, 1950, at 11.00 a.m. The respondent, however. did not appear before him and wrote to Mr. <NAME> that owing to his illness, he was unable to appear before him. He again pleaded that he was seriously ill.

On January 15, 1951, Mr. <NAME> served the respondent with a charge-sheet. Three charges were framed against him. The first charge was that he had deliberately disobeyed the orders of <ORG> when he was asked to get himself admitted in <ORG> for observation and investigation. The second charge was that he had failed to report for duty even though no leave was sanctioned to him by <ORG> and he was specifically ordered by <ORG> to report for duty. The third charge was that he had persistently disobeyed the orders of <ORG> and he had thereby shown himself unfit to continue as a member of <ORG>. Material allegations on which reliance was placed against the respondent in support of these charges were also specified under the respective charges.

The respondent was, however, not prepared to appear before Mr. <NAME> and he raised several technical contentions. Ultimately, he sent his written statement and denied all the charges. His case appears to have been that he had not deliberately disobeyed any of the orders issued by <ORG>. In regard to his getting admitted in <ORG>, he seems to have taken the plea that when he was allowed to go on casual leave to see his ailing daughter at Raipur, it was clear that he could not have got himself admitted in <ORG> so as to enable <ORG> to examine him on August 8, 1950. In respect of the charge that he had persistently refused to obey the orders of <ORG>, his case was that he was dangerously ill and that he genuinely apprehended that if he undertook a journey to resume his duty, he might even collapse. He requested the enquiry officer to allow him to appear by a lawyer whom he would instruct to cross-examine the witnesses whom the <ORG> would examine against him. He also stated that he wanted to give evidence of his own doctors who would depose to his ailing condition at the relevant time. It appears that Mr. <NAME> wanted to accommodate the respondent as much as he could and when he found that the respondent was not appearing in person before him, he in fact fixed a date for hearing at Raipur on September 21, 1951 where he happened to be camping. On that date, the respondent appeared before Mr. <NAME> and Mr. <NAME> made a note as to what transpired on that date. The note shows that "the whole case was discussed with the respondent. His plea was that he should be allowed to appear through a counsel, but it was explained to him in detail that as far as the case can be seen from <ORG> side at present, it does not involve the taking up oral evidence. He agreed that he would not press for this facility. He would, however, like to give a detailed answer to the charge-sheet. He also undertook to appear in person regularly in future". Thereafter, Mr. <NAME> required the respondent to file his detailed written statement. and in fact, the respondent did file his detailed written statement containing the pleas to which we have already referred. On November 8. 1951, Mr. <NAME> wrote to the respondent that he would be glad to hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not appear on the said date, Mr. <NAME> proceeded to examine the documentary evidence showing the failure of the respondent to comply with the orders issued by <ORG> and made his report on November 24, 1951. He found that the three charges framed against the respondent were proved. In his report, Mr. <NAME> observed that "the conduct of the respondent and the language used by him from time to time in his communications .discloses an attitude of disobedience and insubordination which no <ORG> can tolerate from its subordinate officers". We may incidentally observe that the comment thus made by Mr. <NAME> in regard to the communications addressed by the respondent to him appears to us to be fully justified but, in our opinion, this aspect of the matter cannot have any material bearing on the question with which we are concerned. The validity of the impugned order must be judged objectively without considering the impropriety of the language used by the respondent or the reluctance shown by him to appear before Mr. <NAME>. In his report, Mr. <NAME> has also observed that when the respondent met him, he explained to him that the case did not involve recording of any oral evidence as it was based on documents only. Mr. <NAME> adds that according to the impression he got at that time, the respondent was satisfied that in the circumstances, the assistance of a counsel was unnecessary. It is, however, plain from the several letters written by the respondent to Mr. <NAME> that he was insisting upon an oral enquiry and that he wanted to examine his doctors to show that he was so iII at the relevant time that he could not have resumed his duties. On March 2, 1951, the respondent wrote to Mr. <NAME> stating, inter alia, that he wished to put in the witness-box a few high-ranking <ORG> officers and the doctors whom he had consulted about his illness. Earlier on January 20, 1951, he had written to Mr. <NAME> requesting him to conduct an oral enquiry as laid down in paragraph 8(iv) G.B. Circular 13. Similarly, on April 23, 1951, he again informed Mr. <NAME> that in his opinion the institution of the departmental enquiry after suspending him was illegal and had caused him grave injury, and he added that oral and documentary evidence will be produced in defence.

It does appear that Mr. <NAME> explained to the respondent that so far as Government was concerned, it rested its case merely on documents and did not think it necessary to examine any witnesses, and thereupon the respondent agreed that he need not have the facility of the assistance of a lawyer. But it is clear from the remarks made by Mr. <NAME> in the order sheet on September 21, 1951, and the observations made by him in his report that the only point on which the respondent agreed with Mr. <NAME> was that he need not be allowed the assistance of the lawyer in the departmental enquiry. We have carefully examined the record in this case and we see no justification for assuming that the respondent at any time gave up his demand for an oral enquiry in the sense that he should be given permission to cite his doctors in support of his pica that his failure to resume his duties was due to his ill-health. The charge against him was that he had deliberately disobeyed the Government orders, and it is conceivable that this charge could have been met by the respondent by showing that though he disobeyed the orders, the disobedience was in no sense deliberate because his doctors had advised him to lie in bed; and thus considered, his desire to lead medical evidence cannot be treated as a mere subterfuge to prolong the enquiry. It is true that the respondent did not give a list of his witnesses; but he had named his doctors in his communications to Mr. <NAME>, and in fact Mr. <NAME> never fixed any date for taking the evidence of the witnesses whom the respondent wanted to examine. If Mr. <NAME> had told the respondent that he would take the evidence of has witnesses on a specified date and the respondent had failed to appear on the said date with his witnesses, it would have been an entirely different matter. Therefore, the position is that Mr. <NAME> did net hold an oral enquiry and did not give an opportunity to the respondent to examine his witnesses and so, the question which arises for our decision is: does the failure of Mr. <NAME> to hold an oral enquiry amount to a failure to give a reasonable opportunity to the respondent within the meaning of Art. 311 ?

The requirements of Art. 311(2) have been considered by this Court on several occasions. At the relevant time, Art. 311(2) provided that no person to whom Art. 311 applies shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard t9 him. It is common ground that the impugned order of compulsory retirement attracts the provisions of Art. 311 (2). If it appears that the relevant statutory rule regulating the departmental enquiry which was held against the respondent made it obligatory on the enquiry officer to hold an oral enquiry if the respondent so demanded. then there would be no doubt that the failure of the enquiry officer to hold such an oral enquiry would introduce a serious infirmity in the enquiry and would plainly amount to the failure of the appellant to give a reasonable opportunity to the respondent. This position is not disputed by the learned Attorney-General and is indeed well-settled. So, the narrow question to which we must address ourselves is whether it was obligatory on Mr. <NAME> to hold, an oral enquiry and give d reasonable opportunity to the respondent to lead oral evidence and examine his doctors. We will assume for the purpose of this appeal that in a given case, Government would be justified in placing its case against the charge- sheeted officer only on documents and may be under no obligation to examine any witnesses, though we may incidentally Observe that even in such cases, if the officer desires that the persons whose reports or orders are being relied upon against him should be offered for cross-examination, it may have to be considered whether such an opportunity ought not to be given to the officer; but that aspect of the matter we will not consider in the present appeal. Therefore, even if it is assumed that Government could dispense with the examination of witnesses in support of the charges framed against the respondent, does the relevant rule make it obligatory on the Enquiry Officer to hold an oral enquiry and give the respondent a chance to examine his witnesses or not?

This question falls to be considered on the construction of rule 55 of the Civil Services (Classification, Control and Appeal) Rules. This rule reads thus:-

"Without prejudice to the provisions of the Public Servants Inquiries Act , 1850, no order of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which have led to the conviction in <ORG> or by a Court, Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and. has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each. charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called. as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing. refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof."

It appears that <ORG> had issued a Circular explaining this Rule. The Circular contained Rule 8 which is relevant. It provides that "particular attention is invited to the provisions regarding oral enquiry. In case the person charged desires that an oral enquiry should be held, the authority holding the departmental enquiry has no option to refuse it". <ORG> seems to have based its conclusion substantially, if not entirely, on this rule. We do not propose to adopt that course. The rule may be no more than a circular issued by <ORG> and we do not propose to examine the question as to whether it has the force of a statutory rule. Our decision would, therefore, be based on the construction of Rule 55 of the Civil Services Rules which admittedly applied and which admittedly is a statutory rule.

The relevant clause in this Rule provides that the officer charge-sheeted shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. This clause has been complied with m the present proceedings. Mr. <NAME> gave notice to the respondent to appear before him in person on the 20th November, 1951 and the respondent did net appear on that date. It is the next clause on which the decision of the present appeal depends. This clause lays down that if he, that is to say the charge-sheeted officer, so desires or if the authority concerned so directs, an oral enquiry shall be held. In our opinion, it is plain that the. requirement that an oral enquiry shall be held if the authority concerned so directs. or if the charge-sheeted officer so desires is mandatory. Indeed. this requirement is plainly based upon considerations of natural justice and fairplay. If the charge-sheeted officer wants to lead his own evidence in support of his plea, it is obviously essential that he should be given an opportunity to lead such evidence. Therefore. we feel no hesitation in holding .that once the respondent expressed his desire to Mr. <NAME> that he wanted to lead evidence in support of his plea that his alleged disobedience of the <ORG> orders was not deliberate, it was obligatory on Mr. <NAME> to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf. It is true that the oral enquiry which the enquiry officer is bound to hold can well be regulated by him in his discretion. If the charge-sheeted officer starts cross- examining the departmental witnesses in an irrelevant manner, such cross-examination can be checked and controlled. If the officer desires to examine witnesses whose evidence may appear to the enquiry officer to be thoroughly irrelevant, the enquiry officer may refuse to examine such witnesses; but in doing so, he will have to record his special and sufficient reasons. In other words, the right given to the charges heated officer to cross- examine the departmental witnesses or examine his own witnesses can be legitimately examined and controlled by the enquiry officer; he would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged. But, in our opinion it would be impossible to accept the argument that if the charge-sheeted officer wants to lead oral evidence, the enquiry officer can say that having regard to the charges framed against the officer. he would not hold any oral enquiry. In the present case, the witnesse.

whom the respondent wanted-to examine; would undoubtedly have given relevant evidence. If the doctors who treated the respondent had come and told the enquiry officer that the condition of the respondent was so bad that he could not resume work, that undoubtedly would have been a relevant and material fact to consider in deciding whether the charges framed against the respondent were proved. Even if we disapprove of the attitude adopted by the respondent in the course of this enquiry and condemn him for using extravagant words and making unreasonable contentions in his communications to the enquiry officer, the fact still remains that he wanted to examine his doctors, and though he intimated to Mr. <NAME> that he desired to examine his doctors, Mr. <NAME> failed to give him an opportunity to do so. That, in our opinion, introduces a fatal infirmity in the whole enquiry which means that the respondent has not been given a reasonable opportunity to defend himself within the meaning of Art. 311(2). On that view of the matter, it is unnecessary to consider whether <ORG> was right in its other conclusions that the second notice served by the appellant on the respondent was defective and that the final order was also defective inasmuch as it did not appear that the appellant had taken into account the representation made by respondent.

It is not disputed by the learned Attorney-General that if we hold that the enquiry conducted by Mr. <NAME> contravened the mandatory provision of r. 55, the decision of <ORG> could be sustained on that ground alone.

In the result. the appeal fails and is dismissed with cost.

Appeal dismissed.