PETITIONER: <ORG>, SWAROOP Vs. RESPONDENT: <ORG> DIRECTOR OF HEALTH SERVICES DATE OF JUDGMENT: 17/10/1997 BENCH: G.N. RAY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:

THE 17TH DAY OF OCTOBER, 1997 Present:

Hon'ble Mr. Justice <NAME> Mr. Justice <NAME> Sr. Adv., Mrs. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Ms. <NAME>, <NAME>, Mrs. <NAME>, <NAME>, <NAME>, and <NAME>, <ORG>., with him for the appellants.

<NAME> Sr. Adv., <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Advs with him for the Respondents.

O R D E R The following order of the <ORG> was delivered:

AND CIVIL APPEAL NO. 7442 OF 1997 (Arising out of S.L.P. [c] No. 8103 of 1993 Leave granted in both the matters. Heard learned counsel for the parties.

The propriety and validity of the public notice issued by the Director, <ORG>, <ORG> indicating that <ORG> had recognised Ayurved Ratna and Vaid Visharad degrees awarded by the Hindi <ORG>, Allahabad only upto 1967 and The certificate of Ayurved Ratna and Vaid visharada given by the said organization after 1967 not being recognised under the said Act registration obtained by any person as a medical practitioner on the basis of such degrees therefore would not be recognised and any person having such qualification would not be entitled to practice in Delhi are impugned in these appeals. It was also indicated in the said public notice that no <ORG> or <ORG> conducts one year's course for giving the bachelor's degree in Ayurvedic Medicine or through correspondence course no M.D. Degree in Ayurved was conferred by any university or <ORG>. The Public at large was cautioned by the said public notice published in the newspaper about such position in law.

<ORG> moved a writ petition before the Delhi high Court Challenging the validity of he said public notice issued by <ORG>. Similar Writ Petition was moved by Dr. <NAME> and others challenging the said public notice. Such writ petitions were dismissed by the Division Bench of <ORG> by indicating that as in the Indian Medicine Central Council Act 1970 the said degrees had not been recognised after 1967 and the writ petitioners before <ORG> had obtained such degree from the said Hindi Sahitya Sammalan Prayag long after the said Indian Medicine Central Council Act , 1970 was enforced they were not entitled to practice on the basis of the degrees obtained from the said Hindi Sahitya Sammalan Prayag. Therefore there was no occasion to interfere with the direction contained in the public notice and the writ petitions were accordingly dismissed.

Mr. <NAME> the learned counsel appearing in the appellants in the appeal arising out of SLP [C] No. 8103 of 1993 has submitted that the Hindi <ORG> is an old and reputed institution and such institution had been giving the said degrees of Ayurvedic Ratna and Vaid Visharada from a long time and such degrees awarded by the said institution had been recognised in various states. Dr. <NAME> has further submitted that about the qualifications of the Medical Practitioners in various disciplines, namely, Homeopathic, Unani, Ayurvedic etc. both the State Govt. and <ORG>. have competence to legislate because the subject is in the concurrent list. Various States have recognised the degree awarded by the said Hindi Sahitya Sammalan and on the basis of such degrees, large number of practitioners in the discipline of Ayurved have been registered in various States including Delhi and have been successfully practicing in the discipline of Ayurved. The writ petitioners also got themselves registered in the State of Delhi and they had been practicing in the State or Delhi and they had been practicing as Medical Practitioner in the discipline of Ayurved on the strength of such registration. Therefore their registrations could not be held as invalid or liable to be cancelled. In this connection. Mr. <NAME> has submitted that even under the said act of 1970 there was no bar for the writ petitioners or persons similarly circumstanced to get themselves registered and practice in the discipline of Ayurved. He had drawn out attention to the provisions of Section 17(3)(a)(b) and [c] of the said Central Act 1970. it is appropriate to refer to the said provisions for appreciating true legal import of such provisions.

17 (3) Nothing contained in sub section (2) shall affect:-

(a) the right of a practitioner of Indian medicine enrolled on a State Register of Indian Medicine to practice Indian Medicine in any State merely on the ground that on the commencement of this Act, he does not possess a recognised medical qualification:

(b) the privileges (including the right to practice any system of medicine) conferred by or under any law relating to registration of practitioners of Indian medicine for the time being in force in any State on a practitioners of Indian medicine enrolled on a State Register of Indian Medicine.

(c) the right of a person to practice Indian Medicine in a State in which, on the commencement of this Act, a state register of Indian Medicine is not maintained if a such commencement he has been practicing Indian Medicine for less than five years.

It has been contended by Mr. <NAME> that although a bar has been imposed under Section 17(2) to practice in India in the discipline of Ayrveda if the practitioner did not possess the qualifications enumerated in the schedules under the Indian Medicine Central Council Act , 1970 but sub- section (3) of Section 17 has carved out an exception to the provisions of Section 17(2) of the said Act. if a practitioner in the discipline of Ayurveda is enrolled and registered as a medical practitioner in any state in India, or such practitioner was already in the field practicing in Ayurveda or such person had a right to be enrolled then, such person was protected and his rights or privileges as a medical practitioner cannot be affected because according to Mr. <NAME> Clause (b) of sub-section (3) of Section 17 protects the privilege including the right to practice any system of medicine conference the right to practice any system of medicine conferred by or under any law relating to the registration of practitioners of Indian Medicine for the time being enforced if in any <ORG> practitioner of Indian Medicine is enrolled on a <ORG> register. Mr. <NAME> Has submitted that as the concerned practitioners have been registered as the practitioners in the discipline of Ayurveda, they have right to practice in such discipline as registered medical practitioners and privileges which a registered practitioner has have been protected by sub- section (3) of Section 17 . Therefore, notwithstanding non recognition of the said degrees conferred by the said <ORG> after 1967, the right to practice as registered medical practitioner and consequential privileges of a registered practitioner cannot be taken away. The public notice, therefore was misconceived and illegal and <ORG> has failed to appreciate the true legal import of sub section (3) of Section 17 of the said Act and has erroneously held that the writ petitioner are not entitled to practice in Delhi because of the bar imposed by the Indian Medicine Central Act , 1970 for not possessing the requisite qualification as enumerated in the said Act.

We are, however, unable to accept such contention of Mr. <NAME>, sub-section (3) of Section 17 of the Indian Medicine Central Act, 1970, in our view, only envisages that where before the enactment of the said Indian Medicine Central Act , 1970 on the basis of requisite qualification which was then recognised, a person got himself registered as medical practitioner in the disciplines contemplated under the said Act or in the absence of any requirement for registration such person had been practicing for five years or intended to be registered and was also entitled to be registered, the right of such person to practice in the concerned discipline including the privileges of a registered medical practitioner stood protected even though such practitioner did not posses requisite qualification under the said Act of 1970. It may be indicated that such view of ours is reflected from the objects and reasons indicated for introducing sub-section (3) of Section 17 in the act. In the objects and reasons, it was mentioned:-

'the committee are of the opinion that the existing rights and privileges of practitioners of Indian medicine should be given adequate safeguards. The <ORG> in order to achieve the object, have added three new paragraphs to sub-section (3) of the Clause protecting (I) the rights to practice of those practitioners of Indian medicine who may not, under the proposed legislation, possess a recognised qualification subject to the condition that they are already enrolled on a State register of Indian medicine on the date of commencement of this Act, (ii) the privileges conferred on enrolled on a State Register, under any law in force in that State, and (iii) the right to practice in a State of those practitioners who have been practicing Indian medicine in that State for not less than five years where no register of Indian medicine was maintained earlier.

As it is not the case of any of the writ petitioners that they had acquired the degree in between 1957 and 1970 or on the date of enforcement of provisions of Section 7(2) of the said Act and got themselves registered or acquired right to be registered, there is no question of getting the protection under Sub-Section (3) of Section 17 of the said Act. it is to be stated here that there is also no challenge as to the validity of the said Central Act , 1970 The decision of <ORG> therefore cannot be assailed by the appellants. We may indicate here that it has been submitted by Mr. <NAME> and also by Ms. <NAME> appearing in the appeal arising out of special leave petition No. 6167 of 1993 that proper consideration had not been given to the standard of education imparted by the said Hindi <ORG> and expertise acquired by the holders of the aforesaid degrees awarded by the said institution. In any event, when proper medical facilities have not been made available to a large number of poorer sections of the society, then ban imposed to the practitioners like the writ petitioners rendering useful service to the needy and poor people was wholly unjustified. It is not necessary for this Court to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of <ORG> is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this Court is called for. These appals therefore are dismissed without any order as to costs.


PETITIONER: STATE OF MYSORE Vs. RESPONDENT: <NAME> SETTY AND SONS DATE OF JUDGMENT: 10/11/1964 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. SUBBARAO, K. SIKRI, S.M. CITATION: 1965 AIR 1510 1965 SCR (2) 129 CITATOR INFO : RF 1969 SC 147 (21) E 1973 SC1325 (3,4) R 1975 SC1604 (1,5,7,8,9) ACT: Central Sales Tax Act , ss. 6 , 8(2) and 9 and Mysore Sales Tax Act , s. 5(3)(a) -Inter-<ORG> sale of powerloom textiles-Assessee not the first or earliest dealer in <ORG>-Liability to tax. HEADNOTE: The assessee was a dealer in Mysore dealing in powerloom textiles. His turnover in the course of inter-state trade was assessed and taxed by the Commercial Tax Officer, under s. 9 of the Central Sales Tax Act , 1954, before its amendment in 1958. The order was upheld by the Deputy Commissioner of Commercial Taxes and <ORG>. <ORG>, in revision, held that the sales were not "first sales" within the <ORG>, and that not being exigible to tax under the <ORG> Sales Tax Act (Mysore Act 25 of 1957), no tax was payable under the Central Act . The <ORG> appealed to <ORG> and contended that the assessee was liable to be taxed because of s. 6 of the Central Act HELD : (Per <NAME> and <NAME>, JJ.) Though s. 6 of the Central Act is the charging section the liability to pay tax is subject to the other provisions in the Act. Section 8(2) provides that tax shall be calculated at the same rates and in the same manner as would have been done if the had in fact, taken place inside the appropriate <ORG>, and s. 9 provides that, under the Central Act , tax shall be levied in the same manner as the tax on the sale or purchase of goods, under the general sales tax law of the <ORG> is assessed, paid and collected. The word "levied" means "imposed" and since s. 5(3)(a) of the Mysore Sales Tax Act, read with Schedule H of that Act provides that the tax shall be levied, in the case of powerloom goods on the first or the earliest of successive dealers in the <ORG>, and the assessee was not such a dealer, no tax could be levied on him in respect of the disputed turnover. Such a construction avoids the anomaly of the <ORG> collecting tax on powerloom textiles only at a single point and the <ORG>, through the agency of the <ORG> authorities, collecting the said tax for and on behalf of the <ORG> at multi-points. [131 A; 132 G; 133 B, D-F, H] Per <NAME>, J. (dissenting) : <ORG> was in error in regarding We* other than the first sales as exempted from liability to pay tax under the Central Act , when the sales sought to be taxed, were in the course of inter-state trade or commerce. [138 C-D] Section 6 of the Central Act charges inter-state transactions to tax. 'Me function of a. 8(2) is to prescribe the rate and the manner of calculation of tax : it is not intended to incorporate the entire procedural and substantive <ORG> law relating to tax. Section 9(1) and (2) establish that the machinery of assessment, collection and enforcement of liability prescribed by the <ORG> statute alone is incorporated in the Central Act . Neither s. 8(2) nor s. 9 cut down the plenary charge imposed by a. 6, nor 130 do they attract any exemptions from tax prescribed by the <ORG> law. [136 B-E] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 165 of 1964. Appeal by special leave from the judgment and order dated January 22, 1962, of <ORG> in Civil Revision Petition No. 964 of 1961.

<NAME>, Solicitor-General, <NAME> and <NAME>, for the appellant.

<NAME>, for the respondent. The Judgment of <NAME> and <NAME> was delivered by <NAME> delivered a dissenting Opinion. <NAME> This is an appeal by special leave directed against the judgment of <ORG> accepting the revision petition of the respondent before us, hereinafter referred to as the assessee.

The relevant facts are these. The assessee is a dealer in powerloom and handloom textiles, both within the Mysore State and in the course of inter-State trade. For the year 1957-58, the Commercial Tax Officer, Bangalore, assessed and taxed the turnover relating to powerloom textiles under S. 9 of the Central Sales Tax Act (LXXIV of 1956), hereinafter referred to as the Central Act , as it stood before its amendment by the Central Sales Tax (Second Amendment) Act , 1958 (XXX of 1958). This was upheld by the Deputy Commissioner of Commercial Taxes. <ORG> also affirmed the order. <ORG>, in revision, accepted the plea of the assessee that its turnover consisting of sales of textiles manufactured by means of powerlooms in the course of inter-State trade is liable to be taxed at the same rate and exactly in the same manner as they would have been taxed if they had been intra- state transactions. <ORG> arrived at this conclusion because, according to it, the true construction of s. 8 (2) of the Central Act is that any exemption given by a State Sales Tax Act or the point determined by it at which a sale is to be taxed applies to assessments under the Central Act .

The assessee's plea, in brief, is that he is not the first or earliest of the successive dealers of the disputed turnover, and, therefore, if he had sold the goods intrastate, no tax would have been levied on him. The reply of the <ORG> is that this is true but under the Central Act he is liable to be taxed because of s. 6 , and the point at which a turnover is taxed has nothing to do with the man- ner of calculation of tax.

The relevant sections of the Central Act are as follows "6. Liability to tax on inter-State sales :- Subject to the other provisions contained in this Act, every dealer shall, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, not being earlier than thirty days from the date of such notification, be liable to pay tax under this Act on all sales effected by him in the course of inter-State trade or commerce during any year on and from the date so notified.

8. Rate of tax on sales in the course of inter-State trade or commerce (1) Every dealer who, in the course of inter-State trade or commerce sells to a registered dealer goods of the description referred to in sub- section (3) shall be liable to pay tax under this Act, which shall be one per cent of his turnover :

Provided that, if under the sales tax law of the appropriate State, the sale or purchase of any goods by a dealer is exempt from tax generally and not in specified cases or in specified circumstances or is subject to tax (by whatever name called) at a rate or rates which is or are lower than the rate specified in subsection (1), the tax payable under this Act on the turnover in relation to sale of such goods in the course of inter-State trade or commerce shall be nil or shall be calculated at the lower rate, as the case may be.

(2)The tax payable by any dealer in any case not falling within sub-section (1) in respect of the sale by him of 'any goods in the course of inter-State trade or commerce shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State; and for the purposes of making any such calculation any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.

9.Levy and collection of tax.-(1) The tax payable by any dealer under this Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub-section (2).

(2)The authorities for the time being empowered to assess, collect and enforce payment of any tax under the generalsales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly.

(3)The proceeds (reduced by the cost of collection) in any financial year of any tax levied and collected under this Act in any State on behalf of <ORG> shall, except insofar as those proceeds repre-

sent proceeds attributable to <ORG> territories, be assigned to that S tate and

shall be retained by it; and the proceeds attributable to <ORG> territories shall form part of <ORG>." Section 6 of the Central Act is the charging section. Sub- ject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him. It will be noticed that the liability is not absolute but subject to the other provisions of the Act. If the effect of another provision is to take away the liability, effect will have to be given to it. Section 8 prescribes the rates of tax to be levied. It is common ground that s. 8 (1) does not apply to the facts of the case, but the proviso is important as it indicates that in some cases falling within the proviso the rate may be nil. In other words, notwithstanding S. 6 , the dealer, may not be liable to pay any tax if he comes within the proviso to & 8 1 ). It follows that the scheme of the Act is not that every transaction in inter- State trade must bear some tax.

Section 8(2) provides for the method of calculating the tax; under that sub-section, the tax shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate <ORG>. The expression "in the manner" may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But s. 9(1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate <ORG> by <ORG> in the manner provided in sub-section (2); and sub-s. (2) of s. 9 empowers the appropriate <ORG> authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the <ORG> is assessed, paid and collected. The expression "levy' means "impose". Under s. 5(3) (a) of the Mysore Sales Tax Act, 1957, hereinafter called the <ORG> Act , tax shall be levied in the case of the sale of any of the goods mentioned in col. (2) of the Second Schedule by the first or the earliest of successive dealers in the <ORG>, who is liable to tax under that section, a tax at the rate specified in the corresponding entry of Col. (3) of the said Schedule on the turnover of sales of such dealer in each year relating to such goods. When s. 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the <ORG> is assessed, paid and collected, it is reasonable to hold that the expression "levied" in s. 9(1) of the Central Act refers to the expression "levied" in s. 5 (3) (a) of the <ORG> Act . There is no reason why the Central Act made a departure in the manner of levy of tax on the specified goods which are taxed only at a single point under the <ORG> Act : if any such radical departure was intended, the Central Act would have expressly stated so. The Central Act was passed to levy and collect sales-tax on inter<ORG> sales to avoid confusion and conflict of jurisdictions; the tax is also collected only for the benefit of the <ORG>s. Therefore. the construction we accept avoids the anomaly of the <ORG> collecting tax on powerloom textiles only at a single point and the <ORG>, through the agency of the <ORG> authorities, collecting the said tax for and on behalf of the <ORG> at multi-points.

There has been considerable difference of opinion among <ORG>s about the true construction of S. 8(2) , but none of them have relied on S. 9 of the Central Act. Therefore, it is not necessary to refer to cases cited before us. For the foregoing reasons we hold, though for different rea- sons, that the order of <ORG> is correct. In the result, the appeal is dismissed with costs. <NAME>, J. <ORG> has held that sales which were not "first sales" within the Mysore State being not exigible to tax under the Mysore Sales Tax Act, no tax was payable thereon under the Central Sales Tax Act , 1956. The provisions of the Central Sales Tax Act in force at the relevant time may be briefly referred to. Section 6 imposes upon ;every dealer, subject to the other provisions contained in the Act, liability to pay tax under the Act on all sales effected by him in the course of inter-State trade or commerce during any year. Section 7 provides for registration of dealers. Section 8 deals with the rates of tax on sales in the course of inter-State trade or commerce. By sub-s. (2), as it stood at the relevant time, it was provided :

"The tax payable by any dealer in any case not falling within sub-section (1) in respect of the sale by him of any goods in the course of inter-State trade or commerce shall be calculated at the same rates and in the same manner as would have been done if the sale had, in fact, taken place inside the appropriate State and for the purpose of making any such calculation any such dealer shall be deemed to be dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law."

Section 9 provided for levy and collection of tax. It provided "(1) The tax payable by any dealer under this Act shall be levied and collected in the appropriate State by <ORG> in the manner provided in subsection (2). (2)The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of <ORG> and subject to any rules made under this Act, assess, collect and enforce payment of any tax payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for the purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly.

The turnover of the respondents sought to be taxed arises out of transactions of sale of handloom and powerloom cloth effected by them in the course of inter-<ORG> trade or commerce. Under the Mysore Sales Tax Act, 1957, sale of these goods was liable to tax under S. 5 (3 ) (a) read with Entry 7 in Sch. II of the Act, at a single point on sale by the first or the earliest of successive dealers in the <ORG>. It is common ground that the respondents are not the first or the earliest of successive dealers in the <ORG> in respect of the transactions sought to be taxed. Section 6 charges to tax sales in the course of inter-<ORG> trade or commerce of every dealer, but the Act does not prescribe the rates at which tax is to be levied, nor does it set up machinery for assessment, collection and enforcement of liability to pay tax, charged upon inter-<ORG> sales of dealers. By S. 8(2) tax payable by the dealer in respect of his sales not falling within sub-s. (1)-and the turnover in the present case is not in respect of sales falling within sub-s. (1)-has to be calculated at the same rates and in the same manner as would have been calculated, if the sale had taken place inside the appropriate <ORG>. The clause in terms only deals with calculation of the tax-the rate at which and the manner in which the tax has to be calculated- under the <ORG> law : it does not attract any exemptions from tax prescribed by the <ORG> law.

Use of the expression "in the same manner" in S. 8 (2) has not the effect of assimilating the procedural and the substantive provisions relating to the imposition, levy and collection of tax as are provided by the <ORG> law in the matter of collection of tax under the Central Sales Tax Act . The <ORG> has not said so in express terms, and there is no implication to that effect in the scheme of the Act. Section 9(1) invests the appropriate <ORG> Government with authority to levy and collect tax, in the manner provided by sub-s. (2). By sub-s. (2) of S. 9 the <ORG> has expressly provided that the tax has to be assessed, collected and payment has to be enforced under the general sales tax law of the appropriate <ORG> on behalf of <ORG>. The scheme devised by the <ORG> is fairly clear. Section 6 charges inter-<ORG> transactions to tax. The function of S. 8(2) is to prescribe the rate and the manner of calculation of tax : it is not intended to incorporate the entire procedural and substantive <ORG> law relating to tax. By sub-s. (2) of S. 9 the machinery for assessment, collection and enforcement of liability to pay tax is set up. Neither S. 8 (2) nor S. 9 (2) cuts down the plenary charge imposed by s. 6 . It is true that s. 9(1) directs that the tax payable by IL dealer shall be levied and collected, in the manner provided in that sub-section. The sub-section, however, does not charge turnover to tax : the turnover stands already charged by S. 6 . Again the inter-relation of the two sub-sections of S. 9 clearly establishes that the machinery of assessment, collection and enforcement of liability prescribed by the <ORG> statute alone is incorporated in the Central Sales Tax Act . I am, therefore, unable to hold that under sub-sections (1) and (2) of s. 9 , the power conferred upon the authority competent to assess the tax in the same manner as the tax on the sale or purchase of goods under the general sales tax law includes the power to admit to exemptions provided by the <ORG> law, inter-<ORG> sales-taxable under the Central Sales Tax Act .

This view has been taken in several cases which have come before the Madras. Kerala and Andhra Pradesh High Courts, in <CITATION> (1) it was held by <ORG> that tax leviable under s. 8(2) was on the turnover under the Central Sales Tax Act , and not under the Madras General Sales Tax Act. There was, in the view of the Court, nothing in S. 8(2) which provided that the inter<ORG> nature of the transaction was taken away and the transaction became intra-<ORG>. The Act did not declare that the transaction shall be deemed to be one inside the <ORG>. The local sales tax law applied to it only to the extent to which it was specifically directed. Therefore by the terms of S. 8 the assessee was not entitled to exclude from the turnover the inter-<ORG> sales. The Court also held that the phrase "in the same manner" in S. 9(3) which was substituted for the original sub-s. (2) of S. 9 , by the Central Sales Tax (Second Amendment) Act , 19581 did not make applicable all the incidents of the local sales tax law to the assessment under the Central Sales Tax Act . The phrase merely contemplated that the procedure of making an assessment, collection (1) 13 S.T.C. 371.

of tax, and the provisions relating to the determination of turnover shall be the same as laid down in the local Sales Tax Act .

<CITATION> (1) it was held by <ORG> that for the purpose of attaching liability to sales tax under S. 8 (2) the fact that in respect of that transaction the dealer may not be liable under the local sales tax law (goods sold being subject only to a single point levy under the local sales tax law) is of no consequence.

The principle of <NAME>'s case(2) was applied by <ORG> in <CITATION> (8), in which excise duty paid to <ORG> by a dealer and collected from his customers was not permitted to be excluded from the turnover by the application of rule 7(1) of the General Sales Tax Rules, 1950, framed under the local <ORG> . It was observed in that case that the expression "in the same manner" in S. 9(2) of the Central <ORG> did not attract the application of the rule which justified the exemption. <ORG> in <CITATION> ( 4 ) held that an assessee dealing in handloom cloth and whose inter-State sales fell under s. 8(2) of the Central <ORG>, 1956, was not entitled to the benefit of the exemption granted to handloom cloth under the notification issued by the State Government on December 13, 1957, in exercise of the powers conferred under S. 9(1) of the Andhra Pradesh General <ORG>, 1957. The fiction created by s. 8 (2) of the Central <ORG> , 1956, was only for the limited purpose of calculating the rate, and the position of a dealer under S. 8 (2) could not be equated with that of a dealer governed by the Andhra Pradesh General <ORG>, 1957, for every purpose.

<CITATION> (5) <ORG> also approved of the principle of Mariappa's case(2) and Parvathi Mills' case(3) and held that by the use of the expression "in the same manner" in S. 9 (3) which was substituted for the original s. 9 (2) by the Central Sales Tax (Second Amendment) Act , 19581 all the incidents of the local sales tax law to the assessment under the Central Sales Tax Act are not applied: what is contemplated by that phrase is that the procedure of making an assessment and collection of tax is the same as in the local Sales Tax Act .

(1) (1962) 13 S.T.C. 433.

(2) (1962) 13 S.T.C. 371.

(3) (1962) 13 S.T.C. 927.

(4) (5964) 1 5 S.T.C. 176.

(5) (1964) 15 S.T.C. 176.

Sup./65-10 In my view these cases correctly interpret the words of s. 8 (2) and S. 9 (2) of the Central Sales Tax Act as they stood before, its amendment in the year 1958. These cases, it is true, did not expressly deal with the interpretation of S. 9(1) of the Central Sales Tax Act, but in my judgment, for reasons already stated, the machinery incorporated by sub- ss. (1) & (2) of s. 9 of the Central Sales Tax Act from the <ORG> statute only relates to assessment, collection and enforcement of liability to tax.

In my view <ORG> was in error in regarding sales other than the first sales exempt from liability to pay tax under the Central Sales Tax Act when the sales sought to be taxed were in the course of inter-State trade or commerce.

ORDER In accordance with the Opinion of the majority this Appeal is dismissed with costs.


PETITIONER: STATE OF MADHYA PRADESH & ORS. Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 02/12/1959 BENCH: ACT: Constitution of India, Art. 311(1) -- If the <ORG> empowered to dismiss should itself initiate or conduct the enquiry- Article 309 , proviso, -"Conditions of service", meaning of. HEADNOTE: The Superintendent of Police initiated a departmental inquiry against the respondent, who was a Sub-Inspector, with respect to certain charges, found him guilty, and forwarded the report to the Inspector-General of Police, who was the authority competent to dismiss him, for necessary action. The Inspector-General sent a copy of the report to the respondent, called upon him to show cause against the proposed punishment of dismissal, considered his explanation, and passed an order dismissing him. The procedure followed was in accordance with Regulations 228 and 229 of the Central Provinces and Berar Police Regulations framed under s. 241 of the Government of India Act, 1935, corresponding to Art. 309 of the Constitution. On the question whether the Regulations were ultra vires because, under Art. 311 , the authority empowered to dismiss (in this case the Inspector-General) must have himself initiated,or conducted the inquiry preceding the dismissal, HELD : Under the proviso to Art. 309 , power is conferred on the President of India and the Governor of a <ORG> to make rules Regulating the conditions of service of persons appointed to the civil service of the <ORG> or the <ORG>, as the-case may be, until provision in that behalf is made by an Act of the appropriate <ORG>. 'Conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond, in matters like pension etc., and includes rules relating to the dismissal of an officer. Article 311 (1) confers an additional right on the civil servant, namely, that no person holding a civil post shall be dismissed or removed by an authority subordinate to that by which he was appointed. But for that Article rules could have been framed even in respect to these matters under Art. 309.  Article 311(l) however, does not, in terms, provide that the relevant disciplinary inquiry should also be initiated or conducted by the authority mentioned in the Article. Therefore, -rules could be framed under Art. 309 with respect to conditions of service other than those in Art. 311(l) and hence, the Regulations were not ultra vires the Constitution. [306 B-E] <NAME> The Hon'ble the Chief Justice of Calcutta High Court,  2 S.C.R. 1331 and <CITATION> ,  S.C.R. 1052, followed. <CITATION> , (1948) L.R. 75 I.A. 343, applied. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2554 of 1966.

Appeal from the judgment and order dated November 4, 1965 ,of <ORG> in Misc. Petition No. 646 of 1964.

<ORG>, for the appellants.

<NAME>, <NAME> and <NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME> Scope of Art. 311(l) of the Constitution comes up for consideration in this appeal by certificate. <ORG> of Madhya Pradesh has opined that the power of dismissal and removal referred to in Art. 3 1 1 ( 1 ) implies that the authorities mentioned in that Article must alone initiate and conduct the disciplinary proceeding culminating in the dismissal or removal of a delinquent officer.

The respondent herein was a Sub-Inspector of Police in the State of Madhya Pradesh. A departmental enquiry was initiated against him on the basis of certain charges, by the Superintendent of Police, Surguja, on June 24, 1962. After holding the enquiry as prescribed by the Central Provinces and Bihar Police Regulations, the Superintendent of Police submitted his report to the Inspector-General of Police, Madhya Pradesh through Deputy Inspector-General of Police, Raipur. On the basis of the enquiry held by him,

-the Superintendent of Police concluded that the respondent was guilty of the charges levelled against him. He recommended his dismissal. After receiving the report of the Superintendent of Police, the Inspector General sent a copy of the same to the respondent and called upon him to show cause why he should not be dismissed from service. The respondent submitted his explanation. After considering the same, the Inspector General of Police dismissed the respondent from service on November 30, 1963. The respondent's appeal to the Government against the order dismissing him was rejected. Thereafter the respondent moved <ORG> under Art. 226 of the Constitution to quash the order dismissing him by issuing a writ of certiorari. The dismissal order was challenged on various grounds. <ORG> rejected all but one of them. It came to the conclusion that the Superintendent of Police, <NAME> was not competent to initiate or conduct the enquiry held against the respondent as he had been appointed by the Inspector-General of Police. It was of the view that the enquiry in the case was without the authority of law and against the, mandate of Art. 3 1 1 ( 1 ). It accordingly allowed the writ petition and quashed the impugn%-,,-' order. The Superintendent of Police, Surg ja initiated and conducted the enquiry against the respondent on the basis of Regulations 228 and 229 of the Central Provinces and Bihar Police Regulations. These 'Regulations are evidently framed on the basis of S. 241 of the Government of India Act, 1935,a Provision which. permitted the State Governments to make rules regulating the recruitment and conditions of service of persons appointed to State service. Regulation 228 says :

"In every case of dismissal, reduction in rank, grade or pay, or withholding of increment for, a period in excess of one year, a formal proceeding must be recorded, by the District Superintendent in the prescribed form, setting forth

(a) the charge;

(b) the evidence on which the charge is based;

(c) the defence of the, accused;

(d) the statements of his witnesses (if any).

(e) the finding of the District Superintendent, with the reasons on which it is based;

(f) the District Superintendent's final order or re- commendation, as the case -may be."

Regulation 229 prescribes that in cases where the District Superintendent is not empowered to pass a final order, he should forward his proposals for the dismissal, removal or compulsory retirement of an officer of and above the rank of Sub-Inspector to the proper authority through the District Magistrate, except in cases where an officer is not serving in a district.

There is no dispute that <NAME> had complied with the requirements of Regs. 228 and 229. The question for consideration is whether the power conferred on <NAME> under Regs. 228 and 229 is ultra vires Art. 3 11(1).

Art. 311(1) provides that no person who is a member of <ORG> or of <ORG> or holds civil post under the <ORG> or <ORG> shall be dismissed or removed by an authority subordinate to that by which he was appointed. This Article does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that that enquiry should be done at its instance. The only right guaranteed to a civil servant tinder that provision is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed. But it is said on behalf of the respondent that that guarantee include,, within itself the guarantee that the relevant 'disciplinary enquiry should be initiated and con-

ducted by the authorities mentioned in the Article. <ORG> has accepted this contention. We have now to see whether the view taken by <ORG> is correct. Art. 310(l) of the Constitution declares that every person who is a member of civil service of a State or holds any civil post in a State holds office during the pleasure of the Governor of a State. But the pleasure doctrine embodied therein is subject to the other provisions in the Constitution. Two, other Articles in the Constitution which cut down the width of the power given under Art. 310(l) are Arts. '309 and 311. Art. 309 provides that subject to the provisions of the Constitution, Acts of the appropriate <ORG> may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the <ORG> or of any State. Proviso to that Article says :

"Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in collection with the affairs of the <ORG>, and for the Governor of a <ORG> or such person as he may direct in the case of services and posts in connection with the affairs of the <ORG> to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate <ORG> under this article, and any rules so made shall have effect subject to the provisions of any such Act." One of the powers conferred under this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the <ORG> or the <ORG> as the case may be. The expression "conditions of service" is an expression of wide import. As pointed by this Court in, <NAME> v. The Hon'ble the Chief Justice of Calcutta <ORG> (1), the dismissal of an official is a matter which falls within "conditions of service of public servants. <ORG> in <CITATION> (2) took the view that a right of dismissal is a condition of service within the meaning of the words under s. 243 of the Government of India Act, 1935.

Lord <NAME> speaking for the <ORG> observed therein "apart from consideration whether the context indicates a special significance to the expression conditions of service? their Lordships are unable in the absence of any such special significance, to regard provisions (1) [1955] 2 S.C.R. 1331.

(2) [1948] L.R. 75 I.A. 343.

which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory; they are therefore of opinion that the natural meaning of the expression would include such provisions."

In <NAME> v. <ORG>) this Court proceeded on the basis that a rule providing for the termination of the service of a railway official can be made in exercise of the powers conferred on the Government by ss. 241(2), 247 and 263(3) of the Government of India Act, 1935. The expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc. But for the incorporation of Art. 311 in the Constitution even in respect of matters provided therein, rules could have been framed under Art. 309. The provisions in Art. 311 confer additional rights on the civil servants. Hence we are unable to agree, with <ORG> that the guarantee given under Art. 311(l) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article.

In the result this appeal is allowed, the judgment of <ORG> is set aside and the writ petition dismissed. In the circumstances of the case we make no order as to costs-.

Y.P. Appeal allowed. (1) [1958] S.C.R. 1052.