PETITIONER: FORWARD CONSTRUCTION CO. & ORS. ETC. ETC. Vs. RESPONDENT: PRABHAT MANDAL (REGD.) ANDHERI & ORS. ETC. ETC. DATE OF JUDGMENT26/11/1985 BENCH: MISRA, R.B. (J) BENCH: MISRA, <NAME>, R.S. REDDY, O. CHINNAPPA (J) CITATION: 1986 AIR 391 1985 SCR Supl. (3) 766 1986 SCC (1) 100 1985 SCALE (2)1123 CITATOR INFO : R 1990 SC1607 (35) RF 1991 SC1153 (15) ACT: Maharashtra Regional Town Planning Act & Building Regulations - Regulation 3, Proviso - "Change of user" - Meaning of. Code of Civil Procedure, 1908, s.11, Explanations IV, VI and s.91 - Principle of res-judicata - Applicability to public interest litigation - "Public right" - Meaning of. Public Interest Litigation - Res-judicata - Principle of Applicability to such litigation. Words & Phrases - "Change" and "Public right" - Meaning of - S.11, Civil Procedure Code, 1908. HEADNOTE: Under the development plan for Bombay a plot of land was reserved for a bus depot of <ORG>. <ORG> passed a Resolution on 18th January, 1982 approving a proposal under which a part of the plot was to be used for construction of two buildings that will augment the income of the <ORG> which could be used for the purpose of construction of staff quarters. Under the proposal the <ORG> would, on the one hand get a cash amount of Rs.99.0 lacs in the forms of non-refundable premium from the builder in addition to the regular income from the tenants of the two buildings and on the other hand it would not be required to make any capital expenditure for the construction of the project. Thereafter, an advertisement came to be published in newspapers inviting offers from the interested parties to develop the property. In addition to the said advertisement, notices were also forwarded to 22 well-known builders out of whom 12 builders purchased the tender forms. Pursuant to the advertisement and the notices, two tenders were received out of which one was sent by respondent 7, <ORG> and another by <ORG>. The tender of respondent 7 being higher than that of <ORG>, was accepted by the <ORG> Committee on 31st March 1982. One Mr. <NAME> filed writ petition before <ORG> challenging the right of the <ORG> to use the land for a purpose different from the one for which it had been reserved and 767 designated under the development plan as well as the town planning scheme on the ground that it had no right to use it for commercial purpose. The right of the <ORG> to enter into a contract with the builder was also challenged. A single Judge dismissed the petition holding: (1) that the substantial portion of the acquired plot was being utilised for a purpose for which it was acquired and the commercial use to which the small portion was being put would substantially augment the coffers of the <ORG> for the benefit of the public at large; (2) that the value charged by the <ORG> for allowing use of its property was not grossly inadequate and that sufficient publicity was given before inviting offers; and after having rejected the various pleas taken by the petitioner in the case, he observed that the petitioner was not an independent-minded citizen solely inspired by the laudable motive of protecting public interest and that the allegations in the petition indicated that he had been set up by a disgruntled builder who purchased the tender document but did not give an offer. The matter was taken up in appeal but <ORG> dismissed the same after hearing all the parties. After the dismissal of the aforesaid appeal, respondents Nos. 1 to 6 in civil appeal no. 2311, filed a similar petition under Article 226 of the Constitution. The writ petition was summarily dismissed by a Single Judge. However, the appeal filed by the respondents was allowed by <ORG> which issued a writ of mandamus directing appellants 1 to 4 in civil appeal No. 2311, not to use the plot reserved for <ORG> bus depot for commercial purpose or for any purpose other than the purpose for which the said plot of land was reserved. The plea of res judicata was rejected for two reasons, namely (1) that in the earlier writ petition the validity of the permission granted under Rule 4(a)(i) of the Development Control Rules was not in issue; and (2) that the earlier writ petition filed by <NAME> was not a bona fide one insomuch as he was put up by some disgruntled builder. The appellant's review petition also failed. Allowing the appeals and dismissing the special leave petition, ^ HELD: 1(i) <ORG> was not justified in allowing the writ petition only on the basis of the proviso to Building Regulation No.3. The proviso to Building Regulation No.3 requires that the change of user of the sanctioned plan can be made only after the modification of the development plan. The key word in this regulation is 'change'. The general meaning of the word 768 'change' is to make or become different, to transform or cover. If the user was to be completely or substantially changed only then the prior modification of the development plan was necessary. In the instant case, the user of the plot has not been changed. It has been used for a bus depot combined with a commercial use to augment the income of the <ORG> for public purpose. In this view of the connotation of the word 'change' the proviso has no application to the present case. [784 D; 785 A-C] 1(ii) It cannot be said that the plot has been used for a different purpose from the one for which it had been acquired. All that can be said is that a part of the plot is being used for constructing two buildings which would augment the income of Bombay Municipal <ORG> that could be utilised for the public purpose. The plot is being substantially used for the purpose for which it had been acquired. The additional use of the property will not make the use of the property for altogether a different purpose. The purpose for which the plot was earmarked remains intact, that is, for the construction of a bus depot. The other public interest sought to be achieved by the construction of the two buildings in addition to the bus depot is equally important. [781 D-E; G] 2(i) Explanation IV to s.11 C.P.C. provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidential to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue, it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. <ORG> was therefore not right in holding that the earlier judgment would not operate as res-judicata as one of the ground taken in the present petition was conspicuous by its absence in the earlier petition. [779 E-G] 769 2(ii) It is only when the conditions of Explanation VI to s.11 are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words "public right" have been added in Explanation VI in view of the new s.91 C.P.C. and to prevent multiplicity of litigation in respect of public right. [780 C] 2(iii) It cannot be disputed that s.11 applies to public interest litigation as well in view of Explanation VI but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others. [780 C-D] In the instant case, <ORG> in the earlier writ petition had recorded a finding that it was not a bona fide litigation and that the petitioner in that case had been put up by a disgruntled builder. Therefore, this finding, excludes the application of s.11 C.P.C. [780 E] 3. Public interest law activities at times champion one public interest which clashes with another public interest thus benefiting one segment of public at another's expense. In the instant case, the avowed function of the <ORG> is the improvement of Greater Bombay. The plot in question admittedly lies in a commercial zone and if any facilities are given to the people of that locality providing for commercial offices those facilities would go towards the improvement of Bombay. It cannot, therefore, be said that the transaction was outside the Bombay <ORG> Act. [781 F; 782 C-D] 4. If commercial activities are to be pin-pointed in a commercial zone and for that purpose the Municipal <ORG> takes a step to provide accommodation for commercial purposes it cannot be said that the property of the <ORG> was being acquired or held for purposes other than the purposes of the Act. [783 B] Collins English Dictionary and Oxford Dictionary referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2310- 2311 of 1984 etc. From the Judgment and Order dated 14.11.1983 of <ORG> in A. No. 644 of 1982 and O.S.W.P. No. 2412 of 1982.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME> and Miss <NAME> for the Appellants.

<NAME>, <NAME> and Mrs. <NAME> for the Respondents.

The Judgment of the Court was delivered by <ORG> The present connected appeals and the special leave petition to appeal are sequel to a public interest litigation and are directed against the judgment of <ORG> dated 14th November 1983 allowing a petition under Article 226 of the Constitution.

Public interest litigation is a comparatively recent concept of litigation but it occupies an important status in the new regime of pubic law in different legal systems. By it very nature the concept of public interest litigation is radically different from that off traditional private litigation. Ordinary traditional litigation is essentially of an adversary character where there is a dispute between the two litigating parties, one making the claim of seeking relief against the other and the other opposing such claim or resisting such relief. While public interest litigation is brought before the <ORG> not for the purpose of enforcing the right of one individual against another, as happens in the case of ordinary litigation, it is intended to prosecute and vindicate public interest which demands that violation of constitutional or legal rights of a large number of people, who are poor, ignorant or socially and economically in disadvantaged position, should not go unnoticed, unredressed for that would be destructive of the rule of law. Rule of law does not mean protection to a fortunate few or that it should be allowed to be prosecuted by vested interest for protecting and upholding the status-quo. The poor too have a civil and political right. Rule of standing evolved by Anglo Saxon jurisprudence that only a person wronged can sue for judicial redress may not hold good in the present setting. Therefore, new strategy has to be evolved so that justice become easily available to the lowly and the lost. Law is not a closed shop. Even under the old system it was permissible for the next friend to move the court on behalf of a minor or a person under disability or a person under detention or in restraint. Public interest litigation seeks to further relax the rule on locus standi. This <ORG> in <CITATION> ,  2 S.C.R. 365, dealing with the question of public interest litigation observed :

"It may therefore now be taken as well established that where a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the <ORG> for relief, any member of public can maintain an application for an appropriate direction, order or writ in <ORG> under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this <ORG> under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons."

The present is a typical case of public interest litigation and arises in the following circumstances.

The development plan for Bombay was sanctioned by the State Government on 8th August 1966 and the verified <ORG> framed under the Maharashtra Regional Town Planning Act, came into force, after the repeal of the Bombay Town Planning Act, this effect from 7th January 1967 and the Scheme was finally sanctioned on 11th June 1970. Under the development plan final plot No. 14 was reserved for a bus depot of <ORG> (hereinafter referred to as the 'BEST'), owned and run by <ORG> (hereinafter referred to as '<ORG>').

The said plot originally belonged to one Amarsi and after a prolonged litigation the said land admeasuring 4657.10 sq. mtrs. was acquired under the provisions of the Land Acquisition Act , 1894 and the <ORG> through the <ORG> had to pay a sum of Rs. 35,00,000 as compensation pursuant to the award given by an arbitrator appointed by consent of the parties and the <ORG> took possession of the same on 18th February, 1978.

It appears that the General Manager of <ORG> laid before <ORG> a proposal in his letter dated 4th August, 1981. In his opinion of the <ORG> provided only a bus depot on the said plot the total investment would be Rs.45,00,000 inclusive of the cost of the land and the return from the investment would be nothing except the rent from the canteen vendor. The General Manager, therefore, proposed to the said committee that if an additional investment of Rs.50,00,000 on the construction of two buildings was made, the <ORG> would get a return to the tune of Rs.8,50,000 per annum. He referred to the two buildings as 'A' and 'B' on the plan which was annexed with his letter. The 'A' building was to have five floors with the ground floor on stilts and building 'B' was to have a ground and two upper floors with a mezzanine floor and the first floor. Building 'B' was also partly to be on stilts to provide for car parking. The calculation made by the General Manager was on the footing that a carpet area of 22,500 sq.ft. could be spared after meeting the needs of the <ORG> bus depot and that space could be let out for offices and show rooms etc. from which the <ORG> could expect an overall minimum rent of Rs.3 per Sq. ft. exclusive of taxes resulting in a net profit of Rs.8.50 lacs per annum.

It, however, appears that <ORG> referred back the proposal of the 4th August, 1981 to the General Manager and he, in the light of discussions with the members of <ORG>, put up two alternative proposals vide his letter dated 17th September, 1981. The salient features of the first proposal were that offers from builders were to be invited by public advertisements for construction of the entire complex as per <ORG> plans and specifications by the builder at his own cost which was estimated at Rs.60.0 lacs. Under the said proposal the builder was to make his own arrangements for finance and materials including steel, cement etc. The proposal further indicated that as the builder's maximum investment would amount to Rs.159.0 lacs he may in lieu thereof be given a right to dispose of the property to the users of his own choice. Under that proposal the builder was to make an annual payment to the <ORG> to cover repairs, maintenance and other costs. The builder making the highest payment was to be selected and the premium was put at the rate of Rs.200 to Rs.250 per sq. ft. of the available F.S.I. On that basis it was estimated that the floor space available being 39,592 sq.ft., at the rate of Rs.200 to Rs.250 per sq.ft. a sum between Rs.79.0 lacs to Rs.99.0 lacs could be received by <ORG>, in addition to making a full-fledged bus depot free of cost. The General Manager in the said letter, however, also pointed out the draw-backs of his proposal and therefore an alternative suggestion was also made by him whereunder the <ORG> may invite offers directly from the prospective tenants for a period of 30 years at a time and after the expiry of 30 years the tenants were to have an option of renewal for a further period of 30 years but at a revised rate to be fixed by the <ORG> taking into consideration the prevailing market price. Under the alternative proposal a premium of Rs.99.0 lacs was to be received directly from the tenants and after deducting the cost of the whole complex, which was expected to be Rs.60.0 lacs the <ORG> would get a net amount of Rs. 39.0 lacs in addition to the revenue of Rs.8.46 lacs per annum by way of rent or compensation from the tenants.

The final proposal which, however, emerged as a result of discussion with <ORG> was the one contained in the letter of the General Manager to <ORG> dated 14th January, 1982. Under this proposal the builder was to pay to the <ORG> non-refundable premium at the rate of Rs.250 per sq.ft. of 'FSI' allowed to be used. The builder was to construct at his cost two buildings including the bus depot, yard concreting, lighting etc. and hand them over free of cost to the <ORG> within two years after entering into the contract and the plans and specifications were to be given by the <ORG>. The builder was to recommend tenants for 23500 sq.ft. carpet area and the <ORG> was to grant lease to the tenants nominated by the builder subject to approval by the General Manager at the rate of Rs.1 per sq.ft. of the carpet area. The lease was renewable for a further period of 30 years and that the rent was to be at the rate of Rs.2 per sq.ft. The user was to be such as was allowed under the development control rules. The builder was to pay the premium in two instalments, the first instalment of 50 per cent before signing the agreement and the remaining 50 per cent within 18 months after the first payment but before the completion of the project.

The effect of this proposal was that the <ORG> would on the one hand get a cash amount of Rs.99.0 lacs in the form of non-refundable premium and on the other hand would not be required to make any capital expenditure for the construction of the project. A net income of Rs.2.82 lacs per year for 30 years amounting to Rs.84.60 lacs, and for the next 30 years at the rate of Rs.5.64 lacs per year amounting to Rs.169.20 lacs would be earned by the <ORG>. Under the said project the <ORG> or the <ORG> would gain in the first 60 years period about Rs.412.0 lacs as against Rs.159 lacs and would not be required to supply any cement for the project. This proposal was approved by the <ORG> Committee by its resolution dated 18th January, 1982.

The follow up proceedings started thereafter and an advertisement came to be published in <ORG> and various other newspapers on 10th February 1982 inviting offers from the interested parties to develop the <ORG> property on certain terms and conditions contained in a document which could be obtained from the Engineer-in-Charge (Civil) of the <ORG>. In addition to the said advertisement in the newspapers, notices were also forwarded to 22 well- known builders out of whom 12 builders purchased the tender forms on payment of Rs.1000 each.

The parties hereinafter are referred to in accordance with their position in C.A. No. 2311 of 1984.

Pursuant to the advertisement and the said notices two tenders were received, one was sent by <ORG>, respondent No.7, a partnership firm, and the other by <ORG>. As the tender of <ORG> was higher than that of <ORG> it was accepted by <ORG> on 31st March 1982. <ORG> also recorded its approval to General Manager entering into the contract with the highest bidder for development of the <ORG>'s property at Andheri. The approval further stated that the amount so earned would be used for constructing staff quarters. The possession of the plot was handed over to <ORG> for the purpose of putting up the construction for and on behalf of the <ORG> on 18th April 1982.

It appears that soon after one <NAME> on 20th April, 1982 filed a petition in his capacity as a rate-payer in <ORG> at Bombay under Article 226 of the Constitution, being writ petition No.921 of 1982. He challenged the right of the <ORG> to use the land for a purpose different from one for which it had been reserved and designated under the development plan as well as the town planning scheme and that it had no right to use it for commercial purpose. He also challenged the right of the <ORG> to enter into a contract with the builder. The petition was dismissed by a learned Single Judge on 28th May, 1982 after having heard all parties concerned and after giving opportunity to file replies. The learned Judge found that the substantial portion of the acquired plot was being utilised for a purpose for which it was acquired and the commercial use to which the small portion was being put would substantially argument the coffers of the <ORG> for the benefit of the public at large. The learned Judge also rejected the contention that the value charged by the <ORG> for allowing use of its property was grossly inadequate and that no sufficient publicity was given before inviting offers.

The court after having rejected the various pleas taken by the petitioner in the case also observed that the petitioner was not an independent-minded citizen solely inspired by the laudable motive of protecting public interest but the allegations in the petition indicated that he had been set up by a disgruntled builder who purchased the tender document but did not give an offer. The matter was taken up in appeal but <ORG> dismissed the same after hearing all the parties.

After the dismissal of the appeal the present respondents 1 to 6 in civil appeal no. 2311 filed a similar petition under Article 226 of the Constitution in <ORG> which gives rise to the present appeals and the special leave petition seeking almost the same relief as was claimed in the earlier petition filed by <NAME>. The learned Single Judge summarily dismissed the writ petition by his order dated 23rd November, 1982.

The respondents Nos. 1 to 6 took up the matter in appeal. <ORG> admitted the appeal and disposed of the same finally on the same day setting aside the order of the learned Single Judge. It admitted the writ petition and transferred the same to be finally disposed of by <ORG>. <ORG> eventually allowed the petition and issued a writ of mandamus directing appellants 1 to 4 in civil appeal no. 2311, their officers, subordinates, servants and agents not to use plot no. 14 in the Town Planning Scheme, Andheri No.1 (2nd Variation) reserved for <ORG> bus depot for commercial purpose or for any purpose other than the purpose for which the said plot of land was reserved. The court, however, clarified that its decision did not prevent the planning authority, that is, the <ORG>, form taking such steps as it may be advised to have the plan modified in accordance with s. 37 of the said Act.

The appellants feeling aggrieved by the judgment of <ORG> filed a detailed review petition mainly on the ground that the respondents 1 to 6 had not taken any plea based on regulation 3 of the Building Regulations and it was only during the course of arguments that this plea was advanced before the court and certain papers were filed before the court. The appellants had no opportunity to produce documents in rebuttal and it was only when the decision was given by the court that the appellants have been able to trace and collect a number of documents, which according to them have great bearing on the interpretation of the said building regulations contained in the Town Planning Scheme Andheri I (2nd Variation) finally sanctioned by the State Government on 17th July, 1976. They filed the following documents along with the review petition:

1. Town Planning Scheme Andheri No. I (Final) which came into force on 15th November, 1919 vide Government notification No. GP-8388-A dated 7th October 1919 in the Bombay Government Gazette Part I No. 2404 dated 9th October, 1919.

2. Notification No. TPS-2963-30714-R dated 29th October, 1963 issued by the State Government sanctioning the T.P. Scheme Andheri I (1st Variation) (Final) with effect from 1st January, 1964.

3. The T.P. Scheme Andheri I (1st Variation) containing Building Regulations which inter alia state that no plot within the area of the Scheme shall be permitted to be used for any purpose other than residential.

4. Resolution of the Bombay Municipal Corporation No. 539 dated 24th August 1967 declaring their intention under Section 92 read with Section 59(a) of the MRTP Act 1966 to make second variation Town Planning Scheme Andheri No. I with a view :

(a) to certify the discrepancies in the areas of the plots, if any, to regularise the boundaries wherever necessary, and to make other consequential changes in the re-distribution of Valuation Statement ;

(b) to change some of the residential and/or shopping plots into commercial plots as per final Development Plan;

(c) to make such other variation as deemed necessary, supplementary to and consequential to the Variations stated above.

5. Notification dated 6th September 1968 issued by the Municipal Commissioner for Greater Bombay informing the public that the Draft Variation Scheme for Andheri Town prepared and approved by the <ORG> for publication under Resolution No.399 of 19th August, 1968 was upon for inspection and any person who had been affected by the draft variation scheme should communicate in writing to the Executive Engineer, <ORG> any objection or suggestion within 30 days from the publication of the said notification.

6. Government notification in Urban Development, Public Health 6 Housing Department TPS 2969/11752 dated 30th May 1970 sanctioning the draft scheme (2nd variation).

7. Notification dated 15th May 1973 issued by <NAME>, Arbitrator, announcing that he had done all that was required of him regarding Town Planning Scheme, Andheri I (2nd Variation) (Final) under Section 72(3) of the MRTP Act 1966 and the rules framed under the Bombay Town Planning Act 1954 and had drawn up the Final Scheme as required under section 72(3) (xviii) of the said Act.

8. Decision given by <ORG> presided by <NAME> dated 7.4.1975 regarding Town Planning Scheme, Andheri I, (2nd Variation)(Final) wherein paragraph No.16 deals with Appeal No.3 relating to Final Plot No.14.

9. Notice dated 16th January 1976 issued by <NAME>, Arbitrator, announcing that he had drawn up the Final Scheme, Andheri No.1 (2nd Variation) as required under section 72(3) (xviii) read with section 82(2) of the MRTP Act, 1966.

10. Final Scheme drawn by <NAME>, Arbitrator on 16th January 1976 showing that the Scheme involved 27 plots which had fallen in Commercial Zone under the Final Development Plan and the Original Plot Nos.1 to 27 remained as Final Plot Nos.1 to 27.

11. Notification dated 17th July 1976 issued by <ORG> sanctioning Town Planning Scheme, Andheri No.1 (2nd Variation)(Final) published in <ORG> dated 17th July 1976.

These documents according to the appellants proved that:

(a) The Town Planning Scheme Andheri No.1 (Final) known as the principal scheme, came into force on 15th November 1919.

(b) <ORG> declared its intention to vary that scheme on 18th November 1957 to enable the plot holders in the scheme area to effect development on par with the area outside the scheme wherein the built up area upto 1/3rd of the plot and the structures for ground and two upper floors were permissible and also to provide underground sewers and storm water drains.

(c) The Town Planning Scheme, Andheri No.1 (1st Variation) (Final) was sanctioned by the Government on 29th October, 1963 with effect from 1st January, 1964. Under the Building Regulations made under the said scheme, Regulation No.6 stated that no plot within the area of the scheme shall be permitted to be used for any purpose other than residential, provided that professional offices of doctors, lawyers, engineers and the like as also buildings required for educational, recreational, religious or cultural purposes, community centres, dispensaries, hospitals and any other buildings the use of which is, in the opinion of <ORG>, not likely to affect detrimentally the residential character of the locality, may be permitted. In short, all the plots in the area of the scheme were permitted to be used for residential purposes.

(d) Final Development Plan of 'K' Ward which includes Andheri came into force with effect from 8.8.1966 and the Development Control Rules for the entire Greater Bombay came into force from 9th February 1967. Under the Final Development Plan the plots which had been included in <ORG> Andheri No.1 (1st Variation) (Final) were included in 'Commercial Zone'.

In short, the entire purpose of varying the Town Planning Scheme Andheri No.1 was to bring the scheme in conformity with the Development Plan.

<ORG>, however, dismissed the review petition on 22nd December, 1983 by the following order:

"Heard Mr. <NAME>. We have interpreted Regulation 3 and the proviso in its plain terms. The number of documents now produced do not effect the construction which we have placed on Regulation 3 and the proviso. Review Petition rejected."

All the contesting parties have now come up in appeal against the judgment of <ORG> dated 14th November 1983 to the extent it want against them. The result is that all the questions which were before <ORG> are again up for consideration by this Court.

To start with, the respondents 1 to 6 had taken a plea that the Municipal Commissioner had not obtained the approval of <ORG> under r.4(a)(i) of the Development Control Rules for change of user. The counsel for the <ORG>, however, informed the court that he had already sought the sanction of <ORG> and the proposal would soon come up before the <ORG> for discussion and on that ground he sought an adjournment of the case to enable the <ORG> to approve the said proposal. On 6th January 1983 the <ORG> by its resolution accorded sanction under r.4(a)(i) of the Development Control Rules for the change of present user of <ORG> bus depot to a combined user of <ORG> bus depot with commercial offices proposed by the Municipal Commissioner. The court thereafter allowed respondents 1 to 6 to amend their writ petition as the plea taken by them had lost its force after the sanction.

The second question for consideration is whether the present writ petition is barred by res judicata. This plea has been negatived by <ORG> for two reasons: (1) that in the earlier writ petition the validity of the permission granted under r.4(a)(i) of the Development Control Rules was not in issue; and (2) that the earlier writ petition filed by <NAME> was not a bona fide one in as much as he was put up by some disgruntled builder, namely, of <ORG>.

So far as the first reason is concerned, <ORG> in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to s.11 C.P.C. provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.

The second reason given by <ORG> however, holds good. Explanation VI to s.11 provides :

"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the persons so litigating."

But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words "public right" have been added in Explanation VI in view of the new s.91 C.P.C. and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that s. 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bonafide litigation in respect of a right which is common and is agitated in common with others.

<ORG> in the earlier writ petition had recorded a finding that it was not a bona fide litigation and that <NAME>, the petitioner in that case, had been put up by <ORG>. This finding excludes the application of s.11 C.P.C. in the present case. The possibility of litigation to foreclose any further enquiry into a matter in which an enquiry is necessary in the interest of public cannot be overruled. In view of the finding of <ORG> that the previous writ petition was not a bona fide one, the present writ petition would not be barred by s.11 of the C.P.C. and <ORG> was justified in so holding but not because of the first reason but because of the second reason.

This leads us to the third point that a valuable public property was being disposed of at a gross undervalue in a highly secretive manner only to oblige respondent No. 7. This plea in our opinion was rightly negatived by <ORG>. Consequent upon the resolution of 18th January 1982 approving the proposal of the General Manager, an advertisement came to be published in <ORG> and various other newspapers on 10th February 1982 inviting offers from the interested parties to develop <ORG>'s property on certain terms and conditions contained in a document which could be obtained from the Engineer-in-Chief (Civil) in the <ORG>. In addition to the said advertisement in the newspapers notices were also forwarded to 22 well- known builders out of whom 12 builders purchased the tender forms on payment of Rs.1000 each. In view of these circumstances it cannot be said that the whole thing was done in a secretive manner.

Pursuant to the advertisement and the said notices two tenders were received out of which one was sent by respondent 7 which is a partnership firm and another by <ORG>. The tender of respondent 7 being higher than that of <ORG>, was accepted by <ORG> on 31st March 1982. In the facts and circumstances of this case as established, it cannot be said that the property of the <ORG> has been disposed of for a wholly inadequate consideration acquired for a public purpose of constructing a bus station was being used for a commercial purpose which was not permissible. This plea had been rejected by <ORG> holding that a very substantial portion of the acquired plot was being utilised for the purpose for which it was acquired and the commercial use to which a small portion was being put would substantially augment the coffered of the <ORG> for the benefit of the public at large without spending any further amount on the development. It cannot be said that the plot has been used for a different purpose from the one for which it had been acquired. All that can be said is that a part of the plot is being used for constructing two buildings which would augment the income of <ORG> that could be utilised for the public purpose. The plot is being substantially used for the purpose for which it had been acquired. The additional use of the property will not make the use of the property for altogether a different purpose.

Public interest law activities at time champion one public interest which clashes with another public interest thus benefiting one segment of public at another's expense. As disclosed in the earlier part of the judgment, the General Manager had sent up a proposal whereunder a part of plot No. 14 was to be used for construction of two buildings that will augment the income of the <ORG> which could be used for the purpose of construction of staff quarters. The purpose for which the plot was earmarked remains intact, that is, for the construction of bus depot. In our opinion the other public interest sought to be achieved by the construction of the two buildings in addition to the bus depot is equally important.

This leads us to the question of mala fides of the officers of the <ORG> in accepting the tender of <ORG>. This plea was based on various circumstances which had been taken into consideration by <ORG> and repelled. Indeed, no specific plea had been taken against any officer of the <ORG> to show that the officers were acting with any ulterior or improper motive. All the same, <ORG> did consider this plea and rejected the same for congent reasons with which we agree and it is not necessary to repeat them here.

As a second limb to the plea of mala fides it was contended that even assuming that no mental guilt on the part of the officer of the <ORG> is proved, the transaction suffered from legal mala fides or mala fides in law in as much as the transaction was outside the Bombay <ORG> Act as it was intended to make financial gain.

The avowed function of the <ORG> is the improvement of Greater Bombay. Section 61 of the Municipal <ORG> Act enumerates the obligatory and discretionary duties of the <ORG> Section 61(t) refer to the improvement of Greater Bombay. Section 63(k) authorises the <ORG> to take any measures to promote public safety health, convenience. The plot in question admittedly lies in a commercial zone and if any facilities are given to the people of that locality providing for commercial offices those facilities would go towards the improvement of Bombay. It cannot, therefore, be said that the transaction was outside the Bombay <ORG> Act.

The resolution of <ORG> dated 18th January 1982 approving the proposal of the General Manager dated 14th January 1982 clearly provided that the amount of non- refundable premium payable by the builder at the rate of Rs.250 per sq.ft. of F.S.I. would be utilised for the construction of the <ORG>'s quarters and tenements under hire-purchase scheme. The <ORG> had, therefore, clearly earmarked the non-refundable premium for the purpose of construction of quarters and tenements under the hire- purchase scheme.

Section 87 of the Bombay Municipal <ORG> Act provides that the <ORG> shall be for the purposes of this Act have powers to acquire and hold movable and immovable property whether within or without the limits of Greater Bombay. As the property is being utilised for augmentation of the revenues of the <ORG> it is sought to be contended that it is not for the purpose of the Act.

The mere fact that the <ORG> was to make a gain of the nonrefundable premium did not mean that was the only purpose which was in view. The purpose obviously was the best utilisation of the available space. If in a commercial zone the <ORG> was able to make available accommodation for commercial purposes we do not see why such a venture cannot be one either for the purpose of promoting public safety, convenience or in the nature of facilities being made available as a part of the improvement of the city, If commercial activities are to be pin-pointed in a commercial zone and for that purposes the Municipal <ORG> takes a step to provide accommodation for commercial purposes it cannot be said that the property of the <ORG> was being acquired or held for purposes other than the purposes of the Act.

This leads us to the last but not the least in importance the plea based on Building Regulation No. 3. In order to appreciate the contention it will be proper to read the regulation:

"The user of the following final plots will be as under, as per the sanctioned development plan :

Final Plot No. User -------------- ---- 10 Public Wall 12 Part Parking lot 14 Best Bus Depot

Provided that the above users may be changed by <ORG> after modification of the Development Plan.

It was this plea which prevailed with <ORG> and the writ petition was allowed only on this score. The precise contention of the counsel for the respondents was that Building Regulation No.3 will override the Development Control Rules for Greater Bombay. Rule 3 of the Development Control Rules for Greater Bombay reads :

"3.(a)(i) All development work shall conform to the respective provisions made under these Rules. If there is a conflict between the requirement of these rules and the requirements of bye-laws in force the requirements of these rules shall prevail;

Provided however that in respect of areas included in a finally sanctioned Town Planning Scheme, the scheme regulations shall prevail if there is a conflict between the requirements of these rules and of the Scheme regulations.

(ii) The development work when completed shall not be used for any purpose except for the sanctioned use or such use as can be permitted under these rules.

(b) Change of use; No building or premises shall be changed or converted to a use not in conformity with the provisions of these rules."

If the contention of the respondents that proviso to Building Regulation No. 3 overrides the Development Control Rules in accepted then the user of the plot as per sanctioned development plan can be changed by the local authority after modification of the development plan and as in the instant case there has been no modification of the development plan the change of user cannot be permitted. This is the crucial point on which the writ petition has been allowed. The other pleas taken by the respondents, as stated above, had been negatived by <ORG>. What the proviso to Building Regulation No.3 requires is that the change of user of the sanctioned plan can be made only after the modification of the development plan. The key word in this regulation is 'change'. What does the word 'change' mean? <ORG> gives the following meaning to the word 'change' :

"1. to make or become different, alter, 2. to replace with or exchange for another, 3. to transform or convert, 4. to give or receive something in return, interchange, 5. to give or receive money in exchange for the equivalent sum in small denomination or different currency, 6. to remove or replace the covering of, 7. to put on other clothes, 8. to pass from one phase to the following one, 9. to alight from and board another, 10. a variation, deviation or modification, 11. the substitution of one thing for another, exchange, 12. anything that is or may be substituted for something else, 13. a different or fresh set."

The meaning of the word 'change' in the Oxford Dictionary reads :

"1. take another instead of, 2. resign, get rid of, 3. give or get money change for, 4. put on different clothes, 5. go from one to another, 6. pass to different owner, 7. make or become different, 8. take new position in argument, 9. adopt new plan or opinion."

So, the general meaning of the word 'change' in the two dictionaries is "to make or become different, to transform or convert." If the user was to be completely or substantially changed only then the prior modification of the development plan was necessary. But in the instant case the user of the plot has not been changed. It has been used for a bus depot combined with a commercial use to augment the income of the <ORG> for public purpose. In this view of the connotation of the word 'change' the proviso has no application to the present case and <ORG> in our opinion was not quite justified in allowing the writ petition only on the basis of the proviso to Building Regulation No.3.

It may further be pointed out even at the cost of repetition that this plea had not been taken in the original writ petition nor in the amended writ petition, and had been taken for the first time in the course of argument. The appellants had no opportunity to produce documents in rebuttal and it was only when the judgment was pronounced that the appellants could lay their hands on certain notifications and certain other documents to show that was a minor adjustment and could be rectified. Therefore, the appellants filed a review petition along with those documents which has been enumerated in the earlier part of the judgment. The court described those papers as irrelevant for the purpose of construction of the proviso to Building Regulation No. 3. But in our opinion those documents would go a long way to solve the problem.

For the foregoing discussion, the appeals must succeed. They are accordingly allowed, the judgment and order dated 14th November, 1983 of <ORG> of <ORG> are set aside, and the judgment and order dated 23rd November 1982 of the learned Single Judge of <ORG> dismissing the writ petition are restored. The special leave petition filed by <NAME> and others is dismissed. In the circumstances of the case, however, the parties shall bear their own costs.

M.L.A. Appeals allowed.


PETITIONER: STATE OF UTTAR PRADESH AND <NAME>. Vs. RESPONDENT: KAUSHAL KISHORE SHUKLA DATE OF JUDGMENT11/01/1991 BENCH: <NAME>, K.N. (J) BENCH: <NAME>, K.N. (J) OJHA, <NAME> (J) SAWANT, P.B. CITATION: 1991 SCR (1) 29 1991 SCC (1) 691 JT 1991 (1) 108 1991 SCALE (1)15 ACT: Civil Service--Assistant Auditor--Ad hoc and temporary employee--Holding of preliminary inquiry--Does not affect the nature of the termination order. HEADNOTE: The respondent was appointed on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examiner of State of U.P. on ad hoc temporary basis for the term fixed in the order of his appointment and his services were liable to be terminated at any time without assigning any reason. After his initial appointment, his services were extended from time to time till 28.2.1981. He was awarded an adverse entry in his character roll for the year 1977-78 both regarding his conduct as also his work. The respondent alongwith one <NAME>, another Sub-Auditor, were deputed to audit the accounts of <ORG>, Sitapur in respect of the year 1979-80. It is alleged that while auditing the account, they acted in excess of their authority in as much as they audited the '<ORG> Accounts', issued audit note and also irregularly demanded and collected Rs. 2,000 as audit fee, and issued receipt under their signature. On complaint a preliminary enquiry was held and the allegations were found to be correct. After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duty at Allahabad. Whereupon the respondent proceeded on leave and did not join his duty at Allahabad. The respondent's services were therefore terminated by order dated 23.9.1980 and by another order services of <NAME> were also terminated. Both of them filed writ petitions in <ORG> contending that their termination orders were illegal having been passed in violation of Article 311 of the Constitution. Whereas the writ petition filed by <NAME> was dismissed, the one filed by the respondent was allowed. <ORG> held that since juniors to the respondent were retained in service while the respondent's services were terminated, the order of termination was discriminatory in nature. <ORG> further held that the order of termination was founded on an adverse entry awarded to the respondent hence it was not in good faith; the punishment awarded to the respondent was not proportionate to the alleged offence. Against the - 30 said order, the State of U.P. filed a appeal after obtaining special leave. The question involved for consideration is whether the order terminating the services of the respondent is vitiated in law? Allowing the appeal, this <ORG>, HELD: Holding of preliminary inquiry does not affect the nature of the termination order. [42C) In the instant case the respondent was a temporary Government Servant and there was adverse regarding his work which was reflected in the adverse remarks made for the year 1977-78. The competent authority held a preliminary inquiry in regard to the allegations of improper conduct in carrying out unauthorised audit of <ORG> of educational institution. On result of the preliminary inquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent's services in exercise of its powers under the terms of contract a well as under the relevant rules applicable to a temporary Government servant. [42A-C] The principle 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre, retrenchment takes place and the services of employees are terminated on account of retrenchment. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with term and conditions of his service. On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service. The view taken by <ORG> is not sustainable in law. [33D-H] Appeal allowed, High <ORG> order set aside as it interfered with order of termination in a casual manner. [42D] <CITATION> .  S.C.R. 828; <CITATION> ,  1 S.C.R. 606; R.C. Lacy v. The State of Bihar & Ors., C.A.No 590/62 decided on 23.10.1963; <CITATION> ,  AIR S.C.449; A.G. Benjamin v. Union of India, C.A. No. 1341/66 decided on 13.12.1966; <CITATION> ,  1 S.C.R. 814; <CITATION> ,  3 S.C.R. 31 234; R.K. Misra v. <ORG>,  1 S.C.R. 501, referred to. <CITATION> .,  1 S.C.C. 56; <CITATION> <ORG> of Punjab & Haryana & Anr.,  3 S.C.C. 370 distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal (C) No. 137 of 1991.

From the Judgment and Order dated 20.2.1989 of <ORG> in W.P. No. 3096 of 1980.

<NAME> and Ms. <NAME> for the Appellants. <NAME>, <NAME> and <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, <NAME> Leave granted.

This appeal is directed against the judgment of <ORG> (<ORG>) setting aside the order dated 23.9.1980 terminating the respondent's services.

The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating the respondent's services, who was admittedly an ad-hoc and temporary employee is vitiated in law. <ORG> has held that since juniors to the respondent were retained in service while the respondent's services were terminated, the order of termination was discriminatory in nature. It further held that since the order of termination was founded on an adverse entry awarded to the respondent his character roll without giving him any opportunity on the ground that he was not suitable, the order "cannot be said to be a decision given in good faith." <ORG> further observed: "Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any." On these findings <ORG> held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent's writ petition and quashed the order of termination.

The factual matrix of the case is in a short compass. The respon-

dent, was appointed on ad-hoc basis on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examinater of the State of Uttar Pradesh, for a fixed period ending on 31.8.1977. In December, 1977 the respondent was again appointed on ad-hoc basis for a period ending on 28.2.1978. Since the regular appointment could not be made in time, the respondent's services were extended from time to time. The last extension was granted on 21.1.1980 and the extended period of service was to expire on 28.2.1981. The terms and conditions of respondent's service as contained in the order of appointment stated that the appointment was ad-hoc, purely temporary for the term fixed in the order and his services were liable to be terminated at any time without assigning any reason. He was awarded an adverse entry in his character roll for the year 1977-78. The entry stated that the respondent's work was poor and he should work hard and take interest in the work. The respondent made representation against the entry but the same was rejected. The respondent and <NAME> another Sub- Auditor both were deputed to audit the accounts of <ORG>, Sitapur for the year 1979-80. While carrying on the Audit the respondent and <NAME> both are alleged to have acted in excess of their authority in auditing the "Boys Fund Accounts" of that College for the year 1978-79 on their own accord without any authority for the same. They issued audit note under their own signatures and also irregularly demanded a high amount of Rs. 13,250.70 as audit fee and collected an amount of RS. 2,000 as audit fee for which they issued receipts under their own signatures. On receipt of complaint a preliminary inquiry was held that it was found that the allegations against the respondent and <NAME> were correct and both of them had acted beyond their authority and collected a sum of Rs. 2,000 as audit fee for the audit of the Boys Fund Accounts, although the Boys Fund of the Institution did not fall within the purview of audit of the Local Funds Audit and no fee was chargeable for the audit of such Fund. After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duties at Allahabad, but the respondent proceeded on leave and did not join his duties at Allahabad. Ultimately, the respondent's services were terminated by the order dated 32.9.1980 and on the same day by another order, service of <NAME> were also terminated. Both the aggrieved persons filed writ petitions in <ORG> at Lucknow Bench under Article 226 of the Constitution contending that their termination orders were illegal, having been passed in violation of Article 311 of the Constitution. The writ petition filed by <NAME> was dismissed but the respondent's writ petition was allowed by <ORG> of <ORG> on the ground as noted earlier.

There is no dispute that the respondent was an ad-hoc and temporary employees and the terms and conditions of his employment were regulated by the U.P. Temporary Government Servant (Termination of Services0 Rules, 1975. The contract of service as contained in the appointment letter also stipulated the terms and conditions of the respondent's employment that his services were liable to be terminated at any time without assigning any reason or compensation. In the counter-affidavit filed before <ORG> the order of termination was defended on the ground that the respondent's work and conduct were not satisfactory and he was unsuitable for the service, therefore his services were terminated. To support that contention the appellant placed reliance on the adverse entry awarded to the respondent in the year 1977-78 and also on the allegations made against him with raged to the audit of <ORG> of <ORG>. <ORG> held that since junior persons to the respondent in service were retained, the order of termination was rendered illegal. In our opinion, the principle of 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on a count of retrenchment. In the event of retrenchment the principle of 'last come first go' is applicable under which senior in service is retained while the junior's services are terminated. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service. if out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution. if a junior employees is hard-working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service. if this principle is not accepted there would be discrimination and the order of the termination of a junior employee would be unreasonable and discriminatory. On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service. The view taken by <ORG> is not sustainable in law.

<ORG> held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. it is unfortunate that <ORG> has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of <ORG> in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable to competent authority to form the requisite opinion regarding the respondents suitability for service. Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.

A temporary <ORG>. Servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary <ORG>. servants. A temporary <ORG>. servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the <ORG>. servant in accordance with the provisions of Art. 311 of the Constitution. since, a temporary <ORG>. servant is also entitled to the protection of Article 311(2) in the same manner as a permanent <ORG>. servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now sell-settled that the form of the order is not conclusive and it is open to the <ORG> to determine the true nature of the order. in <CITATION> , SCR 828 a <ORG> of this <ORG> held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the <ORG> may determine the true nature of the order to ascertain whether the action taken against the <ORG>. servant is punitive in nature. The <ORG> further held that in determining the true nature of the order the <ORG> should apply two tests namely: (1) whether the temporary <ORG>. servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary <ORG>. servant is by way of punishment. It must be borne in mind that a temporary <ORG>. servant has no right to hold the post and termination of such a <ORG>. servant does not visit him with any evil consequences. The evil consequences as held in <NAME> case (supra) do not include the termination of services of a temporary <ORG>. servant in accordance with the terms and conditions of service. The view taken by <ORG> in <NAME>'s case has been reiterated and affirmed by <ORG> decisions of this <ORG> in the State or Orrisa and anr. v. <NAME>,  1 SCR 606; <NAME> v. The State of Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963; <CITATION> ,  5 SCR 190; <CITATION> ,  AIR SC 449; A.G. Benjamin v. Union of in`ia, C.A. No. 1341/66 decided on 13.12.1966 and <CITATION> , 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in <CITATION> ,  3 SCR 234.

Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of <ORG> of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex-parte. had he been given the opportunity, he would have placed correct facts before the inquiry officer. His services were terminated on allegation of misconduct founded on the basis of an ex-parte enquiry report. He further referred to the allegations made against the respondent in the counter-affidavit filed before <ORG> and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report. In order to determine this question, it is necessary to consider the nature of the respondent's right to hold the post and to ascertain the nature and purpose of the inquiry held against him. As already observed, the respondent being a temporary <ORG>. servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitablity and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the repondent in regard to the allegations of unauthorised audit of <ORG>, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent's services in accordance with the contract of service and the Rules.

<CITATION> ,  1 SCR 606 a Constitution Bench of this court considered the question and indicated "the fact of the holding of an inquiry is not decisive of the question. What is decisive is whether the order is by way of punishment in the light of the tests laid down in <NAME> case."

In <NAME> case (supra) <ORG> of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed. The Court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service. Before passing order of termination the competent authority may hold inquiry in fairness to ascertain whether the temporary servant should be continued in service or not. While discussing the nature of preliminary inquiry the Court observed as under:

"There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Art. 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged."

In <NAME> case (supra) the appellant therein was a temporary employee of <ORG>. His services were terminated without assigning any reasons and without affording him opportunity of showing-cause. Before passing the order of termination the competent authority had issued a notice to <NAME> calling upon him to explain certain irregularities and to show-cause why disciplinary action should not be taken against him. In response to the notice, he submitted his explanation thereupon, certain preliminary enquiries were held, but he was not given opportunity to place his case during the preliminary enquiry. However, after the preliminary enquiry to regular departmental enquiry was held instead proceedings for departmental enqiury were dropped and the services of <NAME> were terminated in accordance with the terms and conditions of service of a temporary <ORG>. servant. The termination order was assailed on the ground that the order of termination was in substance an order of punishment. <ORG> held that the order of termination was not an order of punishment and the appellant was not entitled to the protection of Article 311(2) of the Constitution. The Court emphasised that when a preliminary enquiry is held against a temporary <ORG>. employee, it must not be confused with the regular departmental inquiry which usually follows the preliminary inquiry, after the government decides to frame charges and to get a departmental enquiry made, with a view to inflict one of the three major punishments on the <ORG>. servant. So far as the preliminary enquiry is concerned, there is no question of it being governed by Article 311(2) of the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in terms and under the contract of service or the rules applicable to a temporary government servant. A <ORG>. servant has no right to insist for affording him opportunity during such enquiry and such an ex-parte enquiry is not initiated in law in view of the purpose and object of preliminary enquiry. On an elaborate discussion, the Court observed as under:

"In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Art. 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments. indicated in art. 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in <NAME> case (supra) and in <CITATION> pradesh,  1 SCR 26 that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant."

The above principles were reiterated by another Constitution Bench of this Court in <NAME> case (supra) dealing with the case of reversion of a permanent <ORG>. servant officiating on a higher post. The Bench observed that the Government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of an employee and the same reasoning applies to a public servant who is reverted from a higher post to his substantive lower post, if the higher post was held in a temporary nature. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the <ORG>. may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating <ORG>. servant. Such an inquiry does not change the nature of the order of the termination or reversion.

In <NAME> case (supra) the appellant was temporarily employed as a Store Officer in <ORG>, his services were terminated under the Central Civil Service (Temporary Service) Rules, 1949 by granting him one month's salary in lieu of notice. <NAME> contended that the order of termination was in fact an order of punishment, which had been passed without affording him the protection under Article 311(2) of the Constitution. In that case before the issue of termination order, a notice had been issued to <NAME> for showing- cause as to why disciplinary action should not be taken on the allegations made against him in respect of which the charges had been framed and an enquiry officer had been appointed. After the charges were framed and the explanation of <NAME> was obtained, the Chairman of <ORG> submitted a note to the Government that the departmental proceedings may take much longer time and he was not sure that after going through all the formalities of departmental enquiry <NAME> will be dealt in the way he deserved, therefore, he suggest that action should be taken under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 for terminating his services by giving him one month's salary in lieu of notice as he was a temporary Govt. servant. The Minister concerned accepted the recommendations, whereupon, order of termination was issued terminating the services of <NAME>. While assailing the order of termination, it was seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent Art. 311 of the Constitution. <ORG> repelled the contention and held that the preliminary enquiry held against the Govt. servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on <NAME>. The Court held that no temporary Govt. servant is entitled to opportunity in the preliminary inquiry as "there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not." Further <ORG> held that even if formal departmental inquiry is initiated against the temporary Govt. servant, it is open to the competent authority to drop further proceedings in the departmental enquiry against the temporary govt. servant and to have recourse to Rules applicable to a temporary Govt. servant for terminating his services. The Court observed as under:

"If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary <ORG>. servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary <ORG>. servant which in form and in substance is no more than his discharge affected under the terms of contract or the relevant rule cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct." We have referred to the above decision in detail to dispel any doubt about the correct position of <NAME>. It is erroneous to hold that where a preliminary enquiry into allegations against a temporary <ORG>. servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature.

Learned counsel for the respondent placed reliance on the decisions of this <ORG> in <CITATION> .,  1 SCC 56 and <CITATION> <ORG> of Punjab & Haryana & Anr.,  3 SCC 370 in support of his contention that the termination order is punitive in nature. In Nepal <NAME>'s case a disciplinary inquiry was instituted against Nepal <NAME> who was a temporary sub- Inspector of Police, on the charge of having contracted a second marriage during the life time of his first wife without prior permission of the <ORG> in violating of Rule 29 of the U.P. <ORG> Servants' Conduct Rules, 1956. Before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary <ORG> servants by giving him one month's pay in lieu of notice. nepal <NAME> unsuccessfully challenged the order of termination before <ORG>, but his appeal was allowed by a three Judge Bench of this <ORG>. This <ORG> quashed the order of termination on three grounds. Firstly,it held that the order of termination was arbitrary, violative of Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations. Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub-Inspector had been terminated were mere allegations and there was no definite material for terminating his services. Thirdly, the <ORG> held that since the inquiry against Nepal <NAME> on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution. The <ORG> further held that the termination order had been passed to circumvent the constitutional provision of Art. 311(2) of the Constitution. The facts and circumstances in Nepal <NAME>'s case were quite different than those in the instant case. However, Nepal <NAME>'s case is no authority for the proposition that the services of an ad-hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service. The <ORG>'s observations in Nepal <NAME>'s case that since the enquiry against nepal <NAME> on certain charges was dropped and his services were terminated under the rules applicable to the temporary govt. servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case. It appears that he decisions in the case of <NAME> (supra) and <NAME> (supra) and the principles laid down therein were not brought to the notice of the Bench. Had those decisions been placed before the <ORG>, the finding that the termination order had been passed to circumvent the provision of Art. 311(2) merely because departmental inquiry was dropped and the termination order had been passed, may not have been made. The decision of Nepal <NAME>'s case in this regard is per incurium. In <NAME> case the order of termination of Probationary Judicial Officer was set aside by this <ORG> on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation. The <ORG> held that some of the material which had been taken into account in adjudging the Judicial Officer's work and conduct as unsatisfactory was not relevant. The decision has no relevance to the instant case. We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case. On the other hand our view is fully supported by the decision of three Judge Bench of this <ORG> in <CITATION> ,  1 SCR 501.

In the instant case the repondent was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977-78. The competent authority held a preliminary inquiry in the allegations of improper conduct in carrying out unauthorised audit of <ORG> of an educational institution, On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent's services in exercise of its power under the terms of contract as well as under the relevant rules applicable to a temporary <ORG>. servant. It never intended to dismiss the respondent from service. Holding of preliminary inquiry does not affect the nature of the termination order. The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination. <ORG> failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner.

We, accordingly, allow the appeal and set aside the order of <ORG> and dismiss the respondent's Writ Petition. There will be no order as to costs.

<NAME> Appeal allowed.