PETITIONER: <NAME> Vs. RESPONDENT: GOVERNMENT OF <NAME> AND ORS. DATE OF JUDGMENT: 11/10/1996 BENCH: S.N. RAY, B.L. HANSARIA ACT: HEADNOTE: JUDGMENT:

J U D G M E N T G.N. RAY, J.

Leave granted.

Heard learned counsel for the parties. The constitutional validity of the circular dated 19.5.1995 issued by the Secretary to <ORG> directing that for distribution of pumpsets under comprehensive coconut Development Programme and other similar schemes of <ORG> and in order to streamline the implementation of the schemes specifying specific roles and responsibilities for different agencies involved, <ORG> (<ORG> and <ORG> (<ORG>) would arrange supply of pump[sets in the districts of Kesarkoda, Kanner, vyanad, Koznikoda, Malappuram, Palekkao, Trissur and Kottayam and in the remaining districts, supply will be effected by private dealers along with <ORG> and <ORG>, since challenged by the appellants in O.P. No. 16115 of 1995, but upheld by the impugned judgment on <ORG> dated February, 1996 is in question in this appeal, Such writ petition was disposed by a common judgment along with other writ petitions being O.A. Nos, 13936 and 14454 of 1995, In the said other writ petitions, the constitutional validity of the circular dated 30.3.1989 issued by the Registrar of <ORG> inter alia directing that all the Land Development Banks, District Co-operative Banks and Service Co-operative Banks in the State of Kerala would patronise <ORG> to the fullest extent in preference to private dealers in the matter of purchase of Agro Machine under the scheme financed by the Bank/Societies and at in any rate not less than 75% of total requirement of such Agro Machines should be purchased through <ORG>, was challenged. <ORG> has also upheld the validity of such circular by the impugned judgment.

It may be stated that in the circular dated 19.9.1995 issued by the Secretary to <ORG> it was also indicated that pumpsets and accessories of the farmer's choice alone should be supplied and after sale service facility should be provided by suppliers/dealers. It was also indicated that the cost of pumpsets and accessories would be supplied at a lesser price than that fixed by the State level Technical Committee and necessary advance amount would be provided to <ORG> and <ORG> for taking advance action for implementing the scheme.

It will also be appropriate to state that in the circular dated 30.3.1989 issued by the Registrar of <ORG>, it was indicated that <ORG> was the only co-operative in the state under <ORG>, having a net work of branches for distribution of all sorts of pumpsets etc. <ORG> has dealership of almost all important pumpsets manufactures in the country and <ORG> was sole distributor for <ORG>, <ORG> engines manufactured by <ORG> In addition, <ORG> has set up its factory at Palghat with <ORG> assistance for the manufacture of pumpsets in collaboration with <ORG> <ORG> Explaining the justification of the said circular, it was also indicated:

"Though this is <ORG>, it is felt that the <ORG> including <ORG> in the State do not patronise, this society faces stiff competition with private dealers. <ORG>

op. Bank, Cannanore and Kasargode have taken policy decisions to the effect that the loans sanctioned by them to the primary societies, for the purchase of Agricultural implements shall be routed only through this <ORG><ORG><ORG>. This being a society assisted by the <ORG> substantially, it is necessary in the interests of <ORG> also that it functions properly with good business. In the circumstances. all the <ORG>. District <ORG><ORG>op. Banks and Service <ORG><ORG> <ORG> Banks in the State are directed to patronise <ORG> to the fullest extent in preference to private dealers. At any rate not less than 75% of the total requirement of <ORG> under the scheme financed by the Banks/Societies should be purchased through <ORG>."

Mr. <NAME>, learned Senior counsel appearing for the appellant, has submitted that the circular dated 19.5.95 issued by the Secretary to <ORG> directing that in eight districts mentioned in the circular only <ORG> and <ORG> would arrange supply of pumpsets and in other parts of the State of Kerala the said <ORG> and <ORG> along with private dealers would arrange the distribution of such pumpsets under <ORG> and other similar schemes, offends Articles 14 and 19(i) (g) of the Constitution.

Mr. <NAME> has contended that private dealers in the State of Kerala have a fundamental right under Article 19(1)(g) of the Constitution to carry on the business or sale of pumpsets and dealership in the pumpsets without being subjected to any unreasonable restriction in such trading activities. The aforesaid circular imposes embargo on the farmers of eight districts covered by financial schemes introduced by the <ORG> to purchase such pumpsets from any dealer of their choice. They have been compelled to select pumpsets to be offered by <ORG> and <ORG> only even if better terms and conditions of sale and after sales service are offered by private dealers.

Mr. <NAME> has submitted that it does not require any imagination to accept that majority of the farmers will take the financial assistance under the schemes introduced by the <ORG> for purchase of pump sets. If such majority of consumers of pumpsets are compelled to purchase from the said tow organizations, namely, <ORG> and <ORG>, the private dealers right guaranteed under Article 19(1) (g) to carry on trading activities without being subjected to unreasonable restriction, is bound to suffer.

Mr <NAME> has further submitted that fundamental right guaranteed under Article 19(1) (g) may not be an absolute right and such right may be subjected to reasonable restriction but such reasonable restriction may be imposed by statutory law and regulation on cogent grounds justifying the reasonable restriction imposed with reference to the object for which reasonable restriction is imposed. In this connection. Mr. <NAME> has relied on a decision of this Court in <NAME> Versus <ORG> of U.P. (AIR 1963 SC 1295). A Constitution Bench of this Court considered the validity of Regulation 236 clause (b) of U.P. police Regulations. It has been held in the said decision that if the petitioner who has challenged the constitutional validity of the Regulation is able to establish that the impugned Regulation constitutes an infringement of any of the freedom guaranteed to him by the Constitution, then the only manner in which this violation of the fundamental right can be defended is by justifying the impugned action taken by the police under the said Regulation by reference to a valid law, i.e. be it a statute, a statutory law or a statutory regulation. (emphasis supplied) The regulation contained in Chapter XX of the U.P. Police Regulations under which Regulation 237 is placed, have no such statutory basis but are merely executive or departmental instructions framed for the guidance of the police officers. They are, therefore, not a law which the <ORG> is entitled to make under relevant clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several clauses under Article 19(1) nor can the same be "a procedure established by law." within Article 21 of the Constitution.

Mr. <NAME> has submitted that as the said circular of the Government clearly impinges upon the right to trading activities of dealers in pumpsets etc. and such restriction against free and uncontrolled trading activities guaranteed under Article 19 of the Constitution is sought to be imposed, not through any statute or statutory rules and regulations or by any procedure established by law, but only on the basis of executive direction of <ORG>, the said unreasonable restriction sought to be introduced by the said impugned circular must be held violative of Article 19(1) (g) of the Constitution.

Mr. <NAME> has contended that it has not been demonstrated that as a matter of fact the private dealers in the said eight districts were not supplying genuine pump set etc. or they were charging price for such implements at a rate higher that offered by <ORG> or <ORG> or that after sales service of the private dealers is unsatisfactory thereby causing hardship to the farmers purchasing pump sets etc. from the private dealers. Accordingly, there can not be any reasonable ground to give a favorable treatment to a particular dealer or dealers and by giving unjustified favorable treatment to such dealers. an unfortunate situation has been created by which right to free trading activities of the dealers in pump sets etc. is seriously infringed.

Mr. <NAME> has also submitted that a vast majority of the purchasers of such pumps sets etc. are also being deprived of their unfettered right to choose the dealers of their choice of such pump sets because of the embargo on such farmers who have been given financial assistance under the schemes of <ORG> that they are to take delivery of pump sets only from two dealers namely <ORG> and <ORG>. While the farmers covered under financial assistance in areas outside the said eight districts are free to choose their dealers and to strike better bargain in an open competitive market, the farmers in eight districts have been deprived of such free choice and consequential opportunity of striking better bargain on account of open competition. Mr. <NAME> has submitted that when Government has taken a decision to give largesses to the farmers by introducing benevolent schemes of financial assistance, the Government cannot discriminate between farmers of one area and farmers of another area in controlling the recipients of such largesses. In this connection reference to the decision of this Court in <NAME> versus <ORG> (AIR 1979 SC 1628) has been made. In the said decision this court has held:

"It must, therefore, be taken to be the law that where the Government in dealing with the public. Whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, put its action must be in conformity with standard or form which is not arbitrary, irrational or irrelevant. The power of discretion of the Government in the matter of grant of largess including award of job contracts. quota, licences etc, must be confined and structured by rational, relevant and non- discriminatory standards or norm and if the Government departs from such standard or norm in any particular case of cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory".

Mr. <NAME> has submitted that there is no demonstrable foundation on fact that there was impelling reasons to treat the farmers of eight districts, who got financial assistance under the schemes of <ORG> differently, thereby compelling them to take delivery of pump sets from only two dealers. Hence, such action must be held to be arbitrary, capricious and discriminatory without being informed by reason. The circular is therefore liable to be struck down also on the score of offending Article 14 of the Constitution. Mr <NAME> has submitted that the impugned circular has resulted in creating a discriminatory monopoly in favour of only two dealers in the eight districts of the <ORG> in the dealership business because by and large most of the farmers purchasing pump sets etc. are covered by schemes introduced by the <ORG>. Mr. <NAME>, therefore, has submitted that the hostile discrimination meted out to the farmers of eight districts and also dealers in pump sets etc. without any just reason, must be held violative of Articles 14 and 19 of the Constitution and should be struck down by this Court by allowing this appeal.

Mr. <NAME>, learned Additional Solicitor General appearing for the State of Kerala, has however disputed the contentions of Mr. <NAME>. He has submitted that no action has been taken by the <ORG> to regulate or control the business of dealership of pump sets etc. in the State of Kerala. Hence question of violating the fundamental right guaranteed under Article 19 (i) (g) of the Constitution does not arise. Mr. <NAME> has submitted that unless any action has a direct impact on the right to carry on any trade or business, such action cannot be held to be violative of fundamental right guaranteed under Article 19(i) (g). If the action of the executive only indirectly creates some prejudice in carrying on any trade or business such action per se does not offend Article 19(i) (g). In support of such contention, Mr <NAME> has referred to the decision of this Court in <ORG> versus Union of India (1984 (1) SCR 657 (682). In the said case, <ORG> challenged the vires of Section 27A of the Indian <ORG> Act and circular issued thereunder relating to preferential Traffic Schedule providing for priorities for movement of different goods. A circular was issued by <ORG> in connection with movement of some goods including coal. The petitioners who were coal merchants, alleged that sum total of various restrictions imposed by giving abbreviation GX against all way side stations in the coal belt and restricting loading of coal in wagons from the stations categorised as GX and introducing preferential Traffic Schedule, in their cumulative effect resulted in total ban on transport of coal by <ORG> at their instance and such actions were violative of Articles 14 and 19(1) (g) of the Constitution. Repelling such contention, it has been held by this Court that whenever the court is called upon to examine the complaint that restrictions imposed on the freedom to carry on trade are unreasonable, it is necessary to find out what is the trade and business of the complainant-petitioner and to what extent the restriction, if any, is imposed upon the freedom to carry on trade or business and then to determine whether the restriction is' reasonable or not. It is the direct impact of the restriction on the freedom to carry on trade that has to be kept in view and not the ancillary or incidental effects of the governmental action on the freedom to carry on trade.

(Emphasis supplied) It has also been indicated that prima facie it appears that petitioners business or trade as coal merchants is in no way interfered with by the <ORG> by not being able to provide transport facilities. <ORG> is not the only means of transport. There are other means of transport by which coal can be transported by the petitioners to their respective place of business. Even assuming that the direct impact of the policy laid down by the <ORG> administration pursuant to the orders of <ORG> under Section 27A results in denial of the allotment of wagon to the petitioners, the restriction will none-the -less be reasonable because petitioners are not wholly denied the allotment of wagons. (Emphasis Supplied) Mr. <NAME> has contended that trading activities in pump sets etc have not been controlled or regulated. Even within the area comprising the said eight districts, any dealer is free to carry on its trading activities in respect of pump sets. By the impugned circular, <ORG> has only ensured that farmers in the said eight districts who have been given financial assistance under a scheme of the <ORG>, should take delivery of pump sets from <ORG> and <ORG>, Any other farmer or purchaser is quite free to choose his dealer. Such limited restriction is' also not there in respect of farmers, even though covered by the financial assistance under the scheme of the <ORG>, who are outside the area comprising the said eight districts. It is, therefore quite apparent that there is no total ban of purchase of pump sets from private dealers in the State of Kerala.

Mr. <NAME> has submitted that it is quite open to the Governments to select appropriate dealers in pump sets for supply of pump sets to farmers or agriculturists to whom financial assistance has been given under scheme of <ORG>. After all, <ORG> will be within its right to ensure supply of genuine pump sets at a desired price and proper after sales service through its approved dealers so that the schemes are effectively implemented by appropriate utilization of the pump sets over a reasonable period and, on such utilization, the concerned farmer may day back the financial assistance received by him.

Mr. <NAME> has further submitted that the impugned circular clearly indicates that for distribution of pump sets under the schemes of the <ORG> and for streamlining the implementation of the schemes specifying specific rules and responsibilities of different agencies involved. the directions contained in the circular have been given.

Mr. <NAME> has also submitted that there is no compulsion to any of the farmers to get covered under the scheme. If any farmer within the said eight districts, feels that it will be more advantageous for him to take delivery of pump sets from a dealers, he may not avail the financial assistance under the scheme. It is only when such assistance is to be taken the choice of selecting dealer has not been left to his discretion.

Mr. <NAME> has contended that it is immaterial if some of the dealers are prepared to supply pump sets on more favorable terms. In the instant case, the Government has felt that pump sets should be supplied to farmers covered under the financial assistance scheme through the dealers of its choice in eight districts. The choice of dealers has also not been made on the josi dixit of the Governmental authorities. The circular issued by the Secretary of <ORG> has indicated that <ORG> is the only state sponsored <ORG> having dealership of almost all varieties of pump sets. It has been ensures that both <ORG> and <ORG> will sell pump sets at a price lower than that fixed by <ORG> and will give proper after sales service. In the impugned circular, it has been indicated that necessary advance amount will be provided to <ORG> and <ORG> for taking advance action for implementing the scheme. Mr <NAME> has submitted that it is not feasible to give advance to large number of dealers. Nor is it a practicable proposition to keep proper watch and supervision in the functioning of large number of dealers. Therefore selection of the said two dealers is neither unreasonable nor capricious.

Mr. <NAME> has also submitted that for the entire state of Kerala, the said two dealers could have been selected by <ORG> as approved dealers. But as Co- operative movement is less organised in areas outside the said eight districts, <ORG> did not feel any necessity to ensure purchase of pump sets in such areas only from said two dealers. Mr <NAME> has, therefore, submitted that any interference by this <ORG> against the impugned judgment is not called for and appeal should be dismissed.

Mr <NAME>, learned senior counsel appearing for the other respondents, has also supported the contentions of Mr <NAME>. Mr. <NAME> has submitted that <ORG> is a state owned co-operative society having large number of branches in the State of Kerala. It has also the dealership of almost all brands of pump sets. It also manufactures pump sets in collaboration with <ORG>,<ORG> has elaborate arrangement for after sales service. <ORG> is also an established <ORG> having dealership in pump sets. The <ORG>, providing finance to farmers and agriculturists, providing finance to farmers and agriculturist, certainly has anxiety to ensured that such farmers and agriculturists should get supply of pump sets from such dealer on which the <ORG> may repose confidence.

If on such consideration, the two dealers have been selected for supplying pump sets in the said eight districts, to the farmers and agriculturists, no exception can be taken by alleging that such course of action infringes Article 14 and 19 of the Constitution.

Mr. <NAME> has submitted that dealership business in the State of Kerala or in the region comprising the said eight districts has not been regulated and controlled. It is still open to all the dealers to carry on trading activities in the dealership of pump sets in such areas. Mr <NAME> has further submitted that the executive instructive instruction of the State Government in fixing two dealers in the eight districts has been issued for streamlining and safeguarding the interest of the Government because of large scale malpractices prevalent and found to be indulged in by the private pump set dealers contrary to the interest of the economy of the State.

Referring to the counter affidavit of respondent No. 2 <ORG>. Mr <NAME> has submitted that is was brought to the notice of <ORG> of <ORG> that false invoice had been issued without effecting actual sale of the pump sets with a view to draw loans, subsidies and other financial benefit from the Government. There had been newspaper report about this wide spread manipulations and irregularities in the activities of various private dealers in the matter of sale of pump sets against subsidies and financial assistance from the Government.

Mr. <NAME> has also contended that it has been indicated in the counter affidavit of respondent No.2 that co- operative movements are stronger in northern regions comprising the said eight districts where pump sets are sold in large numbers. There was, therefore, a felt necessity to fix approved dealers in such ares by the <ORG>. Mr. <NAME> has further contended that the dealers are not recipients of loans or financial assistance from the <ORG>. The farmers have not raised any dispute that by the impugned <ORG> circular, they have suffered any prejudice whatsoever, The selection of two dealers in northern region of the State is not only within the right and competence of the State <ORG> but such selection is not also otherwise arbitrary, capricious and unreasonable. Hence, question of infringement of Articles 14 and 19 of the Constitution does not arise. The appeal should, therefore, be dismissed.

After giving our careful consideration to the facts and circumstances of the case and submissions made by the learned counsel for the parties, it appears to us that the fundamental right for trading activities of the dealers in pump sets in the State of Kerala as guaranteed under Article 19(1) (g) of the Constitution has not been infringed by the impugned circular. Fundamental rights guaranteed under Article 19 of the Constitution are not absolute but the same are subject to reasonable restrictions to be imposed against enjoyment of such rights. Such reasonable restriction seeks to strike a balance between the freedom guaranteed by any of the clauses under Article 19(1) and the social control permitted by the clauses (2) to (6) under Article 19.

The reasonableness of restriction is to be determined in an objective manner and from the standpoint of the interests of general public and not from the standpoint of the interests of the persons upon whom the restriction are imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly and even if the persons affected be petty traders (AIR 1958 SC 73- Hanif Versus State of Bihar). In determining the infringement of the right guaranteed under Article 19(1 ), the nature of right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, enter into judicial verdict (AIR 1981 SC 673 Laxmi ) versus State of U.P.; AIR 1968 SC 1323 Treveli Versus State of Gujarat and Herekchand vs. Union of India. India. AIR 1970 SC 1453).

Under Clause (1) (g) of Article 19 , every citizen has a freedom and right to choose his own employment or take up any trade or calling subject only to the limits as my be imposed by the <ORG> in the interests of public welfare and the other grounds mentioned in clause (6) of Article 19. But it may be emphasised that the Constitution does not recognise franchise or rights to business which are dependent on grants by the <ORG> or business affected by public interest <CITATION> . 1955 (1) SCR 707).

It may be indicated that where a right is conferred on a particular individual or group of individuals to the exclusion of others, the reasonableness of restrictions has to be determined with reference to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of specified individual has been held reasonable by this Court where vital interests of the community are concerned or when the business affects the economy of the country (P.T.C.S Vs. R.T.A. AIR 1960 SC 801: <NAME> Vs. Union of India, AIR 1979 SC 366 and <NAME> Vs. <ORG> and Anr, 1967(1) SCR 1012).

It is true that even for imposing reasonable restriction on the fundamental right guaranteed under Article 19(1 ), the restriction is to be imposed under a valid law, be it a statutory law or statutory regulation, and not by any executive instruction of the <ORG>. [<NAME> case (supra)].

But in the instant case, no fundamental right guaranteed under Article 19(1) (g) of the Constitution has been infringed. Hence, question of invalidity on account of imposition of reasonable restriction on the exercise of such right by executive order instead by a statute does not arise in the facts of the case.

It may be indicated that although a citizen has a fundamental right to carry on a trade or business, he has no fundamental right to insist upon the Government or any other individual for doing business with him. Any government or an individual has got a right to enter into contract with a particular person or to determine person or person with whom he or it will deal.

In the instant case, the farmer or agriculturist who has chosen to receive subsidies or financial assistance under the schemes of the Government has an obligation to accept the terms and conditions for such assistance. One of such condition is that in the northern region of the state. Pump set for which financial assistance has been given is to be purchased from the approved dealers of the Government. The private dealer cannot insist that the Government is also to enter into contract with any such private dealer to make it an approved dealer. Since the Government has every right to select dealers of its choice for delivery or pump sets at the price agreed upon and to render after sales service to the purchasers of pump sets covered by its financial assistance scheme. It is not open to challenge such selection of dealers on the score that such selection amounts to unreasonable restriction imposed on the dealers of the State to carry on trading activities in pump sets. It is nobody's case that all the farmers and agriculturist have been compulsorily covered under such schemes. On the contrary, it is open to any farmer or agriculturist not to volunteer for taking such assistance.

It has already been indicated that in <NAME>'s case (supra), it has been held by this Court that infringement of fundamental right under Article 19(1) (g) must have a direct impact on the restriction on the freedom to carry on trade and not ancillary or incidental effects on such freedom to trade and not ancillary or incidental effects on such freedom to trade arising out of any governmental action. It has also been held in that case that unless the trader or merchant is not wholly denied to carry on his trade, the restriction imposed in denying the allotment of wagon in favour of such trader or merchant to transport coal for carrying put trading activities does not offend Article 19(1) (g) of the Constitution. No restriction has been imposed on the trading activity of dealers in pump sets in the State of Kerala including northern region comprising eight districts. Even in such area, a dealer is free to carry on his business. Such dealer, even in the absence of the said circular, cannot claim as a matter of fundamental right guaranteed under Article 19(1) (g) that a farmer or agriculturist must enter into a business deal with such trader in the matter of purchase of pump sets. Similarly, such trader also cannot claim that the Government should also accept him as an approved dealer of the Government. The trading activity in dealership of pump sheets has not been stopped or even controlled or regulated generally. The dealer can deal with purchasers of pump sets without any control imposed on it to carry on such business. The obligation to purchase from approved dealer has been fastened only to such farmer or agriculturist who has volunteered to accept financial assistance under the scheme on various terms and conditions.

In our view the impugned circular does not offend Article 14 of the constitution. The direction contained in said circular cannot be held to be vitiated being arbitrary,capricious or unreasonable. The impugned circular specifically mentions that in order to implement the schemes introduced by the <ORG> for streamlining specific rules and responsibilities of different agencies involved, the directions contained in the circular have been given. It has been placed on record that it was brought to the notice of the agricultural department of the State <ORG> that false invoice had been issued by dealers with out effecting actual sales with a view to draw loans, subsidies and other financial benefits from the <ORG>. Reports were published in newspapers about wide spread manipulation and irregularities in the activities of various dealers in the pumpsets. It is also not in dispute that <ORG> is only government controlled co-operative society in the State of which eighty per cent capital was subscribed by the <ORG>. The other approved dealer <ORG> is also a Co- operative society involved in dealership of pump sets. If the State <ORG> on consideration of such facts and circumstances and to ensure genuine sale of pump sets at proper price with effective after sales service has felt that farmers covered by financial assistance scheme should be fastened with an obligation to purchase pump sets only from approved dealers in a region where according to State <ORG> there is a felt need of purchase from such approved dealers, it cannot be held that such action of the State <ORG> lies in its ipsi dixit, without being informed by any reason.

To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of <ORG>. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision can not be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, court should avoid " embarking on uncharted ocean of public policy."

The contention that the impugned circular suffers from hostile discrimination meted out to the farmers in northern region of the State covered by the financial assistance under the <ORG> schemes, by fastening such assistance with an obligation to purchase pump sets only from the two approved dealers, cannot be accepted in the facts of the case, The reasons for fastening the farmers of northern region with the obligation to purchase pump sets from the said two dealers have been indicated by Mr. <NAME> and Mr. <NAME> and, in our view, it cannot be held that such reasoning suffers from lack of objectivity. The law is well settled that even in the matter of grant of largese, award of job contracts etc, the <ORG> is permitted to depart from the general norms set down by it, in favour of particular group of persons by subjecting such persons with different standard or norm, if such departure is not arbitrary but based on some valid principle which in itself is not irrational, unreasonable or discriminatory [<NAME> case (supra)].

It may be stated here that Mr.<NAME>'s contention that the impugned circular has resulted in black listing of the private dealers of pump sets without even giving them an opportunity of being heard cannot be accepted. In our view, it cannot be reasonably contended that if the <ORG> selects a dealer as its approved dealer the same may mean that all the other dealers have been black listed. The question of black listing does not arise because it is nobody's case that all other dealers were previously approved dealers of the <ORG> but by the impugned circular, they have been suddenly stripped of such status without affording them an opportunity of being heard.

In the aforesaid facts, we do not find any reason to inferfere with the impugned judgment of <ORG>. The appeal therefore fails and is dismissed without any order as to cost.


PETITIONER: <NA<NA<ORG>E>E> Vs. RESPONDENT: DR. PRE<NA<ORG>E> <NA<NA<ORG>E>E>HAND DATE OF JUDG<NA<ORG>E>ENT: 06/02/1957 BEN<NA<NA<ORG>E>E>H: <NA<NA<ORG>E>E>, P.B. BEN<NA<NA<ORG>E>E>H: <NA<NA<ORG>E>E>, P.B. AIYYAR, T.L. VENKATARA<NA<ORG>E>A DAS, S.K. <NA<NA<ORG>E>E>ITATION: 1957 AIR 425 1957 S<NA<NA<ORG>E>E>R 575 A<NA<NA<ORG>E>E>T: Tribunal-<NA<ORG>E>ember having bias against Party-Whether tribunal improperly constituted-Waiver-What amounts to-Effect of waiver--Failure to examine a witness-Witness no better than accomplice-Effect-Professional misconduct by advocate- <NA<ORG>E>easure of punishment. HEADNOTE: P filed a complaint of professional misconduct against <NA<ORG>E>, an advocate of <ORG>. The <NA<NA<ORG>E>E>hief justice appointed a tribunal under the Bar <NA<NA<ORG>E>E>ouncils Act for enquiry into the complaint. <NA<NA<ORG>E>E>, a senior advocate, was appointed chairman of the tribunal. <NA<NA<ORG>E>E> had appeared once for P before the trial <NA<NA<ORG>E>E>ourt in the case out of which the complaint arose. No objection was raised as to its constitution before- the tribunal. The tribunal found <NA<ORG>E> guilty of having got a false stay order in favour of his clients written by the clerk of the <NA<NA<ORG>E>E>ourt by improper means. The High <NA<NA<ORG>E>E>ourt concurred in this finding and directed the removal of <NA<ORG>E>'s name from the rolls. It was contended on behalf of <NA<ORG>E> that the tribunal was not properly constituted. Held, that the constitution of the tribunal suffered from a serious infirmity in that <NA<NA<ORG>E>E> was appointed its member and acted as its chairman. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. Frome United Breweries <NA<NA<ORG>E>E>o. v. Bath justices  A. <NA<NA<ORG>E>E>. 586, <NAME> v. Sussex justices, Exparte <NA<ORG>E>c <NA<NA<ORG>E>E>arthy  I. K. B. 256, <NAME>. v. <NAME> justices, Ex parte Perkins  2 K. B. 475, followed. <NAME> v. <NAME>, Ex Parte Phillips  I. K. B. 6o8, explained. The objection to the constitution of., the tribunal can be waived. Waiver can be inferred from the failure of the party to take the objection only if and after it is shown that the party 74 576 knew about the relevant facts and was aware of his right to take the objection. Since <NA<ORG>E> knew that <NA<NA<ORG>E>E> had appeared for P and must be deemed to have been conscious of his legal rights, his failure to take the objection before the tribunal creates an effective bar of waiver against him. <NAME> v. <NAME> (186I) 30 Beav. 65; 54 E. R. 8I3 relied on. Even in quasi-criminalproceedings all important and relevant evidence must be laid before the tribunal, but it is generally for the prosecutor to decidewhich witnesses are necessary for the unfolding of the case. No adverse inference can be drawn against the complaint's case for failure to examine a witness who was no better than an accomplice. The order of the High <NA<NA<ORG>E>E>ourt removing <NA<ORG>E>'s name from the roll of advocates is fully justified. The misconduct proved is of a very serious character. Disapproval of such unworthy conduct must be expressed emphatically as the legal profession must be saved from persons who do not feel any hesitation in corrupting public officers by unworthy and illegal means for the benefit of their clients. JUDG<NA<ORG>E>ENT:

CIVIL APPELLATE JURISDICTION. Civil Appeal No. 246 of 1956. Appeal by special leave from the judgment and order dated- the November 11, 1955, of <ORG> in Civil Misc. Case No. 3 of 1952.

<NAME>, Solicitor-General of India, <NAME>, <NAME> and <NAME>, for the appellant <NAME> and <NAME>, for the respondent No. 2. 1957. February 6. The Judgment of the Court was delivered by <NAME> J.-The appellant Sri <NAME> was an advocate practising at <ORG>. A complaint was filed against him under s. 13 of the Legal Practitioners Act by Dr. <NAME>. It was alleged that the appellant was guilty of professional misconduct and the complainant requested that suitable action be taken against him in that behalf. Since the appellant was not a pleader or a mukhtear but an. advocate of <ORG>, the complaint was sent for enquiry to the tribunal nominated by the Chief justice' of <ORG> under S. 10(2)  577 of the Bar Councils Act. The tribunal held an enquiry recorded evidence and came to the unanimous conclusion that the appellant "was guilty of professional misconduct in having got a false stay order written by the clerk by improper means and thereby he managed to take an illegal and undue advantage for his clients and therefore deserves to be punished for the same." When this report was received by <ORG>, the matter was argued before the Court. In the result <ORG> agreed with the findings made by the tribunal and directed that the appellant should be removed from practice. It is against this order that by Special Leave the appellant has come to this Court.

The facts giving rise to the complaint against the appellant are very few. It appears that there was a dispute concerning Jhalra well and certain agricultural plots surrounding the well between <NAME> and others on the one hand and Dr. <NAME> and others on the other. These parties were described in the said proceedings as <ORG> and <ORG> respectively. The appellant was the counsel for Party No. r. As a result of this dispute the police presented a report in the court of the Sub-Divisional Magistrate, <NAME>, that the dispute was likely to cause breach of peace and suggested that proceedings under s. 145 of the Code of Criminal Procedure should be taken. The Sub- Divisional Magistrate drew out, a preliminary order on July 5, 1951 (Ex. A-1). By this order both the parties were called upon to put in their written statements as regards their claims to possession of the property in dispute. The learned Magistrate also passed an order attaching the property in dispute pending the decision of the proceedings under s. 145 . This was followed by another order passed on August 9, 1951,,that the crop which was on the field should be auctioned, its price deposited in court and the land itself should be given for cultivation to the highest bidder for the next year. It appears that the hearing of the case was fixed for August 21 1951. Members of <ORG> were aggrieved by these orders and on their behalf the' appellant preferred a revision application against these orders in the court of the <NAME> Judge, <NAME>, on August 13, 1951. The appellant presented another petition before the learned <NAME> judge on August 29, 195 1. In this petition it was alleged that the crop which stood on the fields in question belonged to the cultivators Described as <ORG>, that the crop was getting spoiled and that the cultivators would be considerably prejudiced if they were dispossessed- from their lands at that stage. On these allegations the application prayed that an order should be passed not to auction the crop as well as the right of future cultivation and that liberty should be given to the cultivators to go to the well and to look after the crop pending the final disposal of their revision application before the learned <NAME> Judge. The learned <NAME>, Judge was not apparently inclined to grant ex parte interim stay and so on the same day he directed that notice of the revision application should be given to the other party and called upon the applicants to furnish talbana and a copy of the application. The case then stood adjourned for hearing on September 6, 1951. On September 6, 1951, when the case was called out before the learned <NAME> Judge, the appellant was present. The learned <NAME> Judge found that the appellant had not submitted a copy of his application as already directed but he was told that the appellant was submitting a copy on the same day. That is why the learned Judge ordered that notice should be issued after the said copy was filed. The hearing of the case was then adjourned to September 12, 1951. So far there is no dispute about the facts. There is, however, a serious dispute as to other events which, according to the complainant, happened on September 6, 1951. The complainant's case is that, after the hearing of the case was adjourned to' September 12, 1951, and notice of the application was ordered to be issued to <ORG>, the appellant prevailed upon <NAME>, clerk of the <NAME> Judge's Court to prepare an actual stay order, that the said stay order was accordingly prepared and was got signed by the Reader of the Court. Then the appellant obtained the stay order from <NAME> the despatch clerk to whom it was entrusted by the Reader. Armed with this order the appellant personally took the order to the Sub-Divisional Magistrate and presented it to him the next day. In due course the revision application was taken up for hearing on September 12, 1951. Since no notice had been served on <ORG> the hearing was again adjourned to September 22, 1951. It is common ground that on September 22, 1951, it was discovered that a fraudulent stay order had been issued from the office of the learned <NAME> Judge's Court. The learned <NAME> Judge then called for explanation from <NAME> and directed the Sub-Divisional Magistrate to treat the letter of September 6, 1951, containing the alleged order of stay as cancelled. It appears that as a result of the enquiry held by the learned <NAME> Judge, he found that <NAME> had committed a grave mistake and held that it would be enough if <NAME> was fined Rs. II/and administered a severe warning to behave properly in future. The complaint against the appellant is that the appellant took an active part in the commission of the fraud and was thus guilty of fraudulent and grossly improper conduct in the discharge of his professional duty. A false order had been obtained by him by unfair means and so he was guilty of professional misconduct. That in substance is the case against the appellant.

As we have already indicated, many of 'the facts alleged in the complaint against the appellant are not in dispute. The appellant admits that he was present before the learned Sessions Judge on September 6, 1951. It is not denied by him that he took the envelope from the despatch clerk addressed-to the Sub-Divisional Magistrate, <NAME>, and that he in fact handed over the envelope the next day in the office of -the Sub-Divisional Magistrate. His case, however, is that he never approached <NAME> in this matter and that he was not in any way instrumental in get- ting the draft prepared. In fact, according to the appellant, he did not know the contents of the envelope and it was only on September 22, 1951, that he knew that a false order of stay had been issued by the office.of the Sessions Judge by mistake. Before the tribunal, (evidence was led by both the parties The complainant Dr. <NAME> himself gave evidence and on his behalf <NAME> and <NAME> were examined. The appellant <NAME> gave evidence on his behalf Both the members of the tribunal and the learned Judges of <ORG> have, on the whole, accepted the complainants version rejected the pleas raised by the appellant and have held that the appellant is guilty of gross professional misconduct. It is this finding which, on the merits, is challenged before us by <NAME> on behalf of the appellant. <NAME> has also raised two points of law in support of his argument that the order passed against the appellant must be set aside. It -will be convenient to deal with these points first. <NAME> contends that the tribunal appointed by the learned Chief Justice of <ORG> to enquire into the alleged misconduct of the appellant was improperly constituted and all proceedings taken before the tribunal, the report made by it and the subsequent order passed by <ORG> pursuant to this report are all invalid. This point arises in this way. The tribunal consisted of three members with <NAME> as it,-, Chairman. It is common ground that <NAME> had filed his vakalat on behalf of Dr. <NAME> in proceedings under s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date. <NAME> contends that since <NAME> had appeared in the criminal proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity in the constitution of the tribunal itself There is some force in this argument. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not Whether in fact a bias has affected the judgment; the test always is and must be whether a, litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it, is often said that justice must not only be done but must also appear to be done. As Viscount <NAME> has observed in <ORG> v. <ORG> (1) " this rule has been asserted not only in the case of <ORG>s of Justices and other judicial tribunals but in the case of authorities which, though in no sense to be called <ORG>s, have to act as judges of the rights of others ". In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant, or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. " The principle says <NAME>, "nemo debet esse judex in causaproprta sua precludes a justice, who is interested in the subjectmatter of a dispute, from acting as a justice therein " (2). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by <NAME> but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties. In support of his argument, <NAME> referred us to the decision in <NAME> v. Sussex Justices, Ex parte McCarthy (3). In this case, the <ORG> was dealing with a case &rising out of a collision between a motor (1) [1926] A.C. 586, 590.

(2) Halsbury's Laws of England, Vol- XXI, P- 535, para 952. (3) [1924] 1. K. B. 256, vehicle belonging to the applicant and one belonging to <ORG>. At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for <ORG> in a claim for damages against the applicant for injuries received in the collision. After the evidence was recorded the justices retired to consider their decision and the acting clerk also retired with them in case they should desire to be advised on any point of law. The appli- cant was convicted in the case. This conviction was challenged by the applicant on the ground that it was vitiated by the improper conduct of the justices in allowing the acting clerk to be associated with them when they deliberated about the merits of the case. An affidavit was filed on behalf of the justices that they reached their decision without consulting the acting clerk and that the acting clerk had in fact abstained from referring to the case. This affidavit was accepted as true by all the learned judges who heard the case and yet the conviction was quashed. "The question is" observed Lord <NAME> whether the acting clerk was so related to the case in its civil aspect, as to be unfit to act as a clerk to the justices in the criminal matter" and the learned judge added that "the answer to that question depends not upon what exactly'was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference in the course of justice." <NAME> who agreed with Lord <NAME> likewise accepted the affidavit made on behalf of the justices but observed, "that they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room." The same principle was enunciated. with equal emphasis in <NAME> v. Essex Justices, Ex parte Perking (1). This was a dispute between a husband and his wife and it appeared that the wife had consulted the solicitor's clerk in their office about the preparation of a deed of separation from her husband and the lawyer acted in the matter for a time after which she ceased to consult him. No mention of (1) (1927] 2 K.B. 475.

the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. Subsequently the solicitor acted as a clerk to the justices who tried the case. He stated in his affidavit that, when acting as a clerk to the justices on the occasion in question, he had no knowledge that his firm had acted for the wife and that he was in no way adverse to the husband. It was urged that the decision of the justices should be set aside as the justices were not properly constituted and it appears also to have been suggested that the decision might, perhaps, have been influenced by a prejudice though indirectly and to a very small extent. Rejecting the argument that the decision of the justices had been influenced even remotely by the impropriety alleged, <NAME> stated that "though the clerk to the justices and the 'justices did not know that his firm had acted for the applicant's wife, the necessary, or at least the reasonable, impression, on the mind of the applicant would be that justice was not done seeing that the solicitor for his wife was acting with the justices and advising' them on the hear- ing of the summons which she had taken against him." It has, however, been urged before us by <NAME>, on behalf of the Advocate-General, that this principle should not be applied to the proceedings before the tribunal appointed under <ORG>s Act . He contends that the tribunal is not empowered to. pass final orders on the enquiry and that the report made by the tribunal is, in every case, to be submitted to <ORG> for the final decision of <ORG>. We are not impressed with this argument. If it is true that in judicial or quasi-judicial proceedings justice must not only be done but must appear to be done to the litigating public, it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of <ORG>, the enquiry before the tribunal must leave no room for a reasonable apprehension in the mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal. In the present case, we have no hesitation in assuming that when  <NAME> agreed to work as the Chairman of the tribunal, he did not remember that he had appeared against the appellant's clients in the criminal proceedings under s.

145. We are told that <NAME> is a senior member of the <ORG> and was once Advocate-General of <ORG>. Besides he had not appeared in the case at all stages but had appeared only once as a senior counsel to argue the matter. It is, therefore, not at all unlikely that <NAME> had no personal contact with the client Dr. <NAME> and may not have been aware of the fact that, in the case from which the present proceedings arose, he had appeared at any stage for Dr. <NAME>. We are, however, inclined to hold that this fact does not in any way affect the legal argument urged before us by <NAME>. It is not <NAME>'s case that <NAME> actually had a bias against the appellant and that the said bias was responsible for the final report made against the appellant. Indeed it is unnecessary for <NAME> to advance such an argument. If <NAME> was disqualified from working as a member of the tribunal by reason of the fact that he had appeared for Dr.' <NAME> in the criminal proceedings under s. 145 in question, then it would not be necessary for <NAME> to prove that any prejudice in fact had been caused or that <NAME> improperly influenced the final decision of the tribunal. Actual proof of prejudice in such cases may make the, appellant's case stronger but such proof is not necessary in order that the appellant should effectively raise the argument that the, tribunal was not properly constituted.

<NAME>, however, contended that unless prejudice is actually proved the challenge to the validity of the constitution of the tribunal cannot be upheld and he sought to rely upon the decision in <NAME> v. <NAME>, Ex parts Phillips(1) in support of this contention. In this case the court was dealing with an application for a writ of certiorari. A baker had been charged under s. 4 of Bread Act of 1836. It was (1) [1914] 1 K.B. 608.

alleged that he had sold bread otherwise than by weight and was liable to be convicted under s. 15 of the Act. In fact he was so convicted. Thereupon he obtained a rule nisi for a writ of certiorari to quash the conviction on the ground that one of the justices was a person concerned in the business of a baker. Section 15 disqualified persons concerned in the business of a baker to act as a justice in the trial of such cases. This application for a writ was ultimately rejected by the <ORG>. The decision of the <ORG>, however, was based substantially on two grounds. <ORG>, who delivered the principal judgment of the <ORG>, observed that " when objection to a conviction is taken merely by a member of the public and not by a party more particularly aggrieved the granting of a certiorari' is discretionary. Where the objection is by a party aggrieved, then, as a rule, a writ is issued ex debito. justitiae. This position, however, is subject to the exception that a party aggrieved may by his conduct preclude himself from taking objection to the jurisdiction of an inferior <ORG>. " But it is significant that the second ground on which the judgment proceeded clearly indicates that the justice whose presence at the hearing was challenged under s. 15 of the Act by the petitioner did not apparently appear to fall within the mischief of s. 15 of the Act at all. "I do not say", observed <ORG>, " whether the facts shown would be enough to make him a person following or concerned in the business of a baker within the meaning of s. 15 ". This conclusion was accepted by the two other learned judges. It would thus appear that the decision in this case does not justify <NAME> contention that, even if the constitution of the tribunal is held to be defective or improper, the proceedings taken before the tribunal and the orders subsequently passed in pursuance of the report cannot be successfully challenged unless it is shown that the defective constitution of the tribunal had in fact led to the prejudice of the appellant. We would,, therefore, hold that <NAME> is right when he contends that the constitution of" the tribunal appointed by the Chief Justice of the High <ORG> of Rajasthan suffered from a serious infirmity in that <NAME>, who had appeared for Dr. <NAME> in the criminal proceedings in question, was appointed a member of the tribunal and in fact acted as its Chairman. The next question which falls to be considered is whether it was open to the appellant to take this objection for the first time before- the High <ORG>. In other words, has he or has he not waived his objection to the presence of <NAME> in the tribunal? <NAME> does not seriously contest the position that the objection could have been effectively waived. The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the -presence of the member in question had not been their by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objections Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir <NAME> has observed in <NAME> v. <NAME> (1) " waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim ". If, in the present case, it appears that the appellant knew all the facts about the alleged disability of <NAME> and was also aware that he could effectively request 'the learned Chief Justice to nominate some other member instead of <NAME> and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High <ORG> for the first (1) (1861) 30 <NAME>, 65, 74 54 ER. 813, 817.

time. In other words, though the point of law raised by <NAME> against the competence of the, tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before <ORG> by waiver or acquiescence.

From the record it is clear that the appellant never raised this point before the tribunal and the manner in which this point was raised by him even before <ORG> is somewhat significant. The first 'round of objection filed by the appellant against the tribunal's report was that <NAME> had pecuniary and personal interest in the complainant, Dr. <NAME>. The learned Judges of <ORG> have found that the allegations about the pecuniary interest of <NAME> in the present proceedings are wholly unfounded and this finding has not been challenged before us by <NAME>. The learned Judges of <ORG> have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. It may be conceded in favour of <NAME> that the judgment of <ORG> does not in terms find against the appellant on the ground of waiver though that no doubt appeare to be the substance of their conclusion. We have, however, heard <NAME>'s case on the question of waiver and we have no hesitation in reaching the conclusion that the appellant waived his objection deliberately and cannot now be allowed to raise it. <NAME> does not contend that at the material time the appellant did not remember the fact that <NAME> had appeared for Dr. <NAME> in the criminal proceedings. Indeed such a plea cannot be raised by the appellant in view of the affidavit which the appellant sought to place before us in the present appeal. -Under this affidavit, the appellant's case appears to be that until lie met his advocate <NAME> for filing objections to the report of the tribunal, the appellant did not know that <NAME> was legally disqualified from acting as a member of the tribunal. It is obvious that this ground necessarily implies that the appellant knew about the facts giving ise to the alleged disqualification of <NAME> to act as a member of the tribunal. In substance, the Contention is that though the appellant knew that <NAME> had appeared for Dr. <NAME> in the criminal proceedings in question, he was not aware that, in consequence, <NAME> was disqualified to act as a member of the tribunal. It is this limited aspect of the matter which is pressed before us by <NAME>. <NAME> contends and no doubt rightly that if we are satisfied that the appellant did not know about the true legal position in this matter and his rights arising therefrom, his failure to challenge the appointment of <NAME> on the tribunal would not raise an effective plea of waiver. However, in our opinion, it is very difficult to accept <NAME>'s argument that his client did not know the true legal position or his rights until he met <NAME>. No doubt the appellant is a junior at the <ORG> but even so he can claim ten years' standing at the <ORG>. Besides, he had the assistance of a lawyer in defending him in the present proceedings and it appears extremely difficult to assume that neither the appellant nor his lawyer knew that the presence of <NAME> in the tribunal could be effectively challenged by them. We are disposed to think that even a layman, not familiar with legal technicalities and equitable principles on which this doctrine of disability has been based, would have immediately apprehended that the lawyer who had appeared for Dr. <NAME> was authorised to sit in judgment over the conduct of the appellant and that might cause embarassnient to the appellant and might lead to prejudice against him. From a purely common sense point of view of a layman, the position was patently awkward, and so, the argument that the appellant was not conscious of his legal rights in this matter appears to us to be an afterthought. Since the appellant was driven to adopt this untenable position before <ORG> in seeking to raise this point for the first time at that stage, we are not surprised that <ORG> took the view that the plea had been taken late in order, to gain time and to secure a fresh enquiry in the matter. Since we have no doubt that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. It seems clear that the appellant wanted to take a chance to secure a favourable report, from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point. Then <NAME> sought to challenge the main conclusion of <ORG> that the appellant was guilty of professional misconduct on a preliminary ground. He contended that <ORG> judgment shows that the learned Judges had considered some inadmissible evidence in the absence of the appellant and without giving him an opportunity to be heard on the said evidence and that had introduced an infirmity in the judgment which vitiated their final conclusions. It appears from the judgment of <ORG> that the learned Judges sent for and looked into the record of Revision Application No. 31 of 1951 in <ORG>, <NAME>, and the record of Case No. 134 of 1951 in <ORG>, <NAME>. <NAME> has made pointed reference to the fact that the record in Case No. 134 of 1951 was sent for by <ORG> after this matter had been argued before them. If we had been satisfied that the learned Judges of <ORG> had taken into consideration material documents which were not before them at the time the case was argued before them, we would certainly have considered <NAME>'s grievance more seriously. We are, however, not satisfied that the grievance made by <NAME> against this alleged irregularity is really justified. The <ORG> judgment shows that the appellant argued before <ORG> that he could not have been concerned with the fabrication of the false order because his subsequent conduct showed that he was not at all interested in seeing that the said order was implemented.. In fact, this argument has been characterised by <ORG> as plausible but not sound. It was this argument which provoked the reply from the other side that in fact the fabricated order had been implemented and in support of this reply reference was made to the application made by Dr. <NAME> and his men in which it had been specifically alleged that the appellant's clients had taken possession of the crops and that they had also removed them. This application had been made on September 24, 1951, and it requested the Sub-Divisional Magistrate to prevent the appellant's clients from taking illegal possession of the land and removing the crops. It is these two rival contentions which the learned Judges of <ORG> had to examine. The judgment shows that it was substantially with a view to satisfy themselves that the application referred to by the respondent before <ORG> in the course of the argument had in fact been made that <ORG> subsequently called for and examined the relevant records. It may be that in the earlier part of the judgment the learned Judges have stated somewhat generally that they had looked at the records of both the cases; but it is clear from the reasons given by the learned Judges that the perusal of the records in the said two cases had played no part in the final decision of <ORG>. We are, therefore, not satisfied that the procedure adopted by <ORG> in dealing with this matter suffers from any serious irregularity as a result of which their final orders should be set aside and a fresh hearing of the matter should be ordered.

Then remains the question of the merits of the finding recorded by <ORG>. <NAME> himself was aware that this part of his case is bound to be weak in an appeal which has been admitted on Special Leave under Art. 136 of the Constitution. Both the tribunal and <ORG> have made concurrent findings of fact against the appellant and it is difficult to accept the argument that this finding of 'fact should be re-examined on the merits by us in the present appeal. We may, however, incidentally point out that there are some salient features of the case which unequivocally support the view taken by <ORG> against the appellant. It is common ground that the appellant's clients were not present before the Sessions Judge on September 6, 1951. It is admitted that the appellant was present and that he took the envelope containing the order to the Sub-Divisional Magistrate. It may be that, in the State of Jodhpur, lawyers practising in subordinate courts sometimes assisted the court officers by taking packets containing judicial orders from one court to another; but, if the appellant's clients were not present in the court, it is difficult to understand how the fabricated order came to be prepared without instigation by the, appellant. It is inconceivable that officers of the court would suo motu think of fabricating the order. The order was intended to benefit the appellant's clients and, on the whole, it is an irresistible inference that the appellant must have corrupted the officers of the court by the offer of illegal consideration and induced them to fabricate the order. <NAME> attempted to rely on the view taken by the learned Sessions Judge in the enquiry which he held soon after he learnt about the issue of this fabricated order. We are free to confess that we are not at all satisfied with this enquiry and its final decision. However., we are really not concerned to consider the merits of this enquiry and we cannot attach any importance to an argument based on the view taken by the learned Sessions Judge in this enquiry. <ORG> has taken the view, and we think rightly, that the conduct of <NAME> should also be examined as it is obvious that both <NAME> and <NAME> were interested in persuading the Sessions Judge to take the view that the fabrication of the order was due to a mistake committed by <NAME>. The theory of a mistake committed by <NAME> is, in our opinion, wholly unreasonable, if not fantastic. The order passed by the learned Sessions Judge on September 6, 1951, is clear beyond any doubt. <NAME> read this order and it is suggested that he misconstrued its effect. How an order directing notice of the application to the opponent along with a copy of the application to be served on the opponent could ever have been construed to mean an order  Directing the issue of stay, it is impossible to understand. Then again, the order actually issued is elaborate in its terms and its object clearly was to require the Sub- Divisional Magistrate to give effect to the prayers made by the appellant in his application without any delay. Besides, the endorsement made by <NAME> showing that the order had been complied with and his silence on September 12, 1951, when the learned Sessions Judge found that notice had not been served are very eloquent. If <NAME> had committed an honest mistake, he would have immediately reported to the learned Sessions Judge that notice had not been issued and instead erroneously an order of stay had been sent in the said proceedings. Besides, when <NAME> gave evidence in the present proceedings, he did not adhere to the theory of mistake. His present version is that he prepared the draft order at the instance of the appellant before the case was argued and when he received it back duly signed by the Reader <NAME>, it was given to the despatcher and from him it reached the hands of the appellant. There is no doubt that <NAME> is an accomplice and, so like all accomplices, he has tried to minimise the part played by him in this transaction. It is true that the evidence against the appellant is substantially circumstantial and there is no a doubt that the finding against the appellant cannot be made on such circumstantial evidence unless the evidence is wholly incon- sistent with his innocence and leads irresistibly to the inference of his guilt. The judgment of <ORG> shows that the learned judges were fully conscious of this legal position. They have held that, having regard to all the circumstances of the case it is impossible to hold that the fabricated order could have come into existence. and would have been despatched hurriedly without the active assistance and collaboration of the appellant. <NAME> then argued that the failure of the complainant to examine <NAME>, the Reader, was deliberate and he suggested that adverse inference against the complainant should be drawn in consequence. Indeed this was the only point which <NAME> placed before us seriously in regard to the merits of the finding recorded by <ORG> against the appellant. It may be conceded in favour of <NAME> that, even in quasi-criminal proceedings like the present, all important and relevant evidence must be laid before the tribunal; but this requirement is always subject to the proviso that it is generally for the prosecutor who is in charge of the case to decide which of the witnesses are necessary for the unfolding of the case. The prosecutor no doubt must act bona fide and fairly by the court and the person against whom the proceedings have been started. Acting bona fide, if the prosecutor takes the view that certain witnesses need not be examined, generally the court would be reluctant to draw an adverse inference against the prosecution. Besides, in the present case, there is no justification for drawing any such adverse inference against the complainant because <NAME> is no better than an accomplice and it is difficult to assume that the failure of the complainant to examine an accomplice can ever give rise to an adverse inference against the complainant's case. If that be the true position, it would be idle to contend that the finding of <ORG> is vitiated by reason of the fact that <ORG> did not consider the effect of the complainant's failure to examine <NAME> before the tribunal. Incidentally this point does not appear to have been pressed before <ORG>. In the result, we have no hesitation in holding that no case has been made out for our interference with the conclusions of <ORG> under Art. 136 of the Constitution.

That leaves only one point to consider and that is the correctness or the propriety of the order passed by <ORG> directing the removal of the appellant's name from the roll of legal practitioners. <NAME> contends that this order is unduly severe and he has appealed to us to consider the fact that the appellant was a junior at the <ORG> and the removal of his name from the roll of legal practitioners would deprive him of the source of his livelihood. We are not impressed with this argument at all. Unfortunately it appears that this, is not the first time that the appellant has come into trouble on the ground of professional misconduct. In 1952 he was suspended for a period of two months for misappropriating some money given to him by his clients for the payment of court fee. This is one fact which is against the appellant. Besides, the misconduct which is proved in this case is, in our opinion, of a very serious character. In the administration of law and justice, lawyers have to play an important part. They are, in a sense, officers of the court and as such they are given special rights and privileges. The profession of law enjoys high and respected status and reputation of its own and this status carries with it corresponding obligations. Naturally the <ORG> must zealously safeguard the highest standards of professional morality and integrity. In fairness to the <ORG>, we ought to add that cases of this nature are very rare but unfortunately when such cases come before the courts, the courts must take a serious view of such reprehensible lapses and must pass deterrent orders. It is our duty to express our disapproval of such unworthy practices as emphatically as we can because the legal profession must be saved from persons who do not feel any hesitation in corrupting public officers by unworthy and illegal considerations for the temporary and immediate benefit of their clients. We must, therefore, hold that the order passed by <ORG> directing the removal of the appellant's name from the rolls is fully justified. In the result, the appeal fails and must be dismissed with costs. Appeal dismissed.