PETITIONER: <ORG> Vs. RESPONDENT: SUPERINTENDENT OF TAXES NOWGONG & ORS. ETC. DATE OF JUDGMENT18/12/1987 BENCH: <NAME>, SABYASACHI (J) BENCH: <NAME>, SABYASACHI (J) RANGNATHAN, S. CITATION: 1990 AIR 772 1988 SCR (2) 474 1988 SCC (1) 401 1987 SCALE (2)1435 CITATOR INFO : D 1991 SC1676 (72) ACT: Constitution of India, 1950: Article 226 Petition for refund of tax paid under mistake of law-Maintainability of- Not to be turned down on the negative plea of alternative remedy. Assam Taxation (on Goods Carried by Road or on Inland Water ways) Act, 1961: ss. 7, 9, 16 & 23-High Court Setting aside assessment order-but refusing refund on triable issue of limitation-Validity of. Limitation Act , 1963, Article 113 , Laches-Discretion- Exercise of by Court-Must be fair and equitable. HEADNOTE: % The Assam Taxation (on Goods Carried by Road or Inland Water-ways) Act,1954 was struck down as ultra vires the Constitution in <ORG> v. <ORG> of Assam, AIR 1961 SC 232. A new Act was thereafter passed which received the President's assent on April 6, 1961. <ORG> declared the said Act to be ultra vires on August 1, 1963. The <ORG> and other respondents preferred appeals before <ORG> against the decision. In the meantime, in <CITATION> ,  5 SCR 975 the Court held the Act to be intra vires on December 13, 1963. Following the decision in <NAME> case the appeals filed by the <ORG> and others were allowed by this Court on April 1, 1968. After this decision the respondents required the appellants by notices under s. 7(2) of the Act issued on July 8, 1968 to submit return for the period ending June 30, 1961, September 30, 1961, December 31, 1961 and March 31, 1962. Due to the penal consequences mentioned in the said notices the appellants filed returns on July 11, 1968. The assessment orders were passed under s. 9(3) of the Act. The tax was duly paid. In November 1973 the appellants filed writ petitions before <ORG> seeking direction for refund of the tax paid under mistake relying on <ORG>'s Judgment in <ORG> (Civil Rule No. 1005 of 1969) dated July lO, 1973 declaring the assessment as without jurisdiction. 475 <ORG> set aside the orders and notices of demand but refused claim of refund on the ground of delay and laches. It took the view that it was possible for the appellants to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires. The taxes having been paid in 1968 the claim in November 1973 was belated. It, however, held that the claim for refund was a consequential relief. In the appeals to this Court it was contended for the appellants that they had paid the tax under a mistake of law and were entitled to seek refund thereof, and a writ petition seeking refund of tax realised without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party. Allowing the appeals, ^ HELD: By the Court: (Per <NAME> & <NAME>, JJ.) The money was refundable to the appellants. The writ petitions were within time. [4X4H] Per <NAME>, J. 1. No <ORG> has the right to receive or to retain taxes or monies realised from citizens without the authority of law. There is in such cases concomitant duty to refund the realisation as a corollary of the constitutional inhibition that should be respected unless it causes injustice or loss in any specific case or violates any specific provision of law. [480H; 485E-F] In the instant case, tax was collected without the authority of law. The notices were without jurisdiction. So was the assessment made under s. 9(3) of the Act. The respondents, therefore, had no authority to retain the money so collected, and as such the money was liable to refund. [480D] 2.1 In an application under Article 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause an injury either to respondent or any third party. [484C-D] 476 2.2 Courts have, however, made a distinction between those cases where a claimant approaches <ORG> seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. A petition of the former nature is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit wherein it is open to the <ORG> to raise all possible defences to the claim, defences which cannot in most cases be appropriately raised and considered in the exercise of writ jurisdiction. [480F-H; 48;B] In the instant case, s.23 of the Assam Act provided for refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under that Act. The section thus applies only in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ultra vires, the money had not been paid under the Act. In that view of the matter the case did not come within s. 23 of the Act. <ORG> having found that the claim for refund was a consequential relief, it could have directed the <ORG> to refund the amount in question. [483-G-H;484A-B] 2.3 Exercise of every discretion must be fair and equitable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act was three years from the date when the mistake was known. In the instant case, knowledge is attributable from the date of judgment in <NAME> case on 10th July, 1973. There being a statement that the appellants came to know of that fact in October 1973 and there being no denial by the averment made on this ground, <ORG> was in error in presuming that there was a triable issue on this ground and refusing to grant refund. Within a month in November 1973 the present petitions were filed. There was no unexplained delay. The appellants had proceeded diligently. There is nothing to indicate that had they been more diligent, the appellants could have discovered the constitutional inhibition earlier. The position is not clear even if there is a triable issue. The position becomes clearer only after the decision in <NAME> case. It could not, therefore, be said that the appellants had abandoned their claims. [487B- <CITATION> ., AIR 1965 SC 1740; <CITATION> .,  2 SCR 824; <CITATION> 21 S.T.C. 174; <CITATION> ., [1967 2 SCR 286; <CITATION> ,  3 SCR 417; <CITATION>  6 477 SCR. 261; <CITATION> .,  2 SCR 216; <CITATION> ,  1 SCR. 753; Shiv Shankar Dal Mills etc. etc. v. <ORG> of Haryana & Ors. etc.,  1 SCR. 1170 and <ORG> of Madhya Pradesh and others etc. etc. v. <NAME> and others etc. etc., AIR 1987 SC 251 referred to. 3. It is only on the delivery of the judgment in <NAME> case in 1973, the appellants realised the right to claim the relief of refund as a consequential relief, setting aside the assessment and the assessment was set aside by the very order itself. That right has been granted by <ORG>. <ORG> has not refused the setting aside on the ground of delay. It would be inconsistent for <ORG> to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by <ORG> by the judgment in the instant case, which claimed also the consequential relief, that relief must automatically follow. Refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. [489F-H] 4. The challenge to the assessment on the ground that the assessment was bad could not be made in an appeal under the Act because the right to appeal being a creature of the Act, if the Act is ultra vires that right would not ensure to the benefit of the appellant. Section 16 of the Act under which an appeal lay within thirty days from the date of service of an assessment order therefore had no application. Similarly, rule 55 of the Rules framed under the Act barring claims of refund unless made within one year from the date of the original order of assessment being unconstitutional had no application. [485H; 486A-B; 487H] 1. The assessments on the appellants were illegal. The taxes demanded on the basis thereof had been collected without the authority of law. <ORG>, therefore, while allowing the appellant's prayer for quashing the assessment should also have allowed the refund of the illegally collected taxes. [490D] <CITATION> ,  Supp. SCR 365, applied. 478 The petitions filed in November, 1973 were within the period of limitation prescribed in Article 113 of the Limitation Act read with s. 23 of the Assam Act. The appellants' averment that they realised their mistake only when they came to know about the decision of <ORG> case in July, 1973 stands uncontroverted. There is nothing on record to show that the appellants had realised their mistake earlier[491D-f] <ORG> of M. P. v. Bhailal Bhai 6 SCR 261 referred to. It was considered unnecessary therefore to consider the larger question whether the bar of limitation would be fatal to a writ petition for refund. 149. F-G l JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3023- 3029 OF 1979.

From the Judgment and order dated 14.6. 1979 of <ORG> in Civil Rule Nos. 509 to 512 of 1973.

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

<NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, J. These appeals arise out of the Judgment and order dated 14th June, 1979 of <ORG> in Assam setting aside the order and notice of demand under the Assam Taxation (on Goods carried by Road or Inland Waterways) Act , hereinafter called the Act, but declining to order any refund of the taxes paid. In 1954 Assam Taxation (on Goods carried by Road or Inland Waterways) Act was first enacted. This Court struck down the Act as ultra vires the Constitution of India. <CITATION> ., AIR 1961 SC 232. On 6th of April, 1961 a new Act passed received the assent of the President. <ORG> again struck down the Act declaring it ultra vires the Constitution on 1.8.63. On 13.12.63 <CITATION> ,  5 SCR ts 975 in a challenge to the Act under Article 32 of the Constitution, this Court held the Act to be intra vires. On 19th December, 1966, Judgment was passed in Civil Rule No. 190/ 1965. On Ist April 1968, the appeals preferred by the State of Assam against the <ORG> order dated 13.12.63 were allowed on the basis of the declaration of the Act to be intra vires the Constitution. Thereafter notices were issued by <ORG>, Nowgong, requiring the appellant under section 7(2) of the Act to submit returns for the period ending 30.6.61, 30.9.61, 31.12.61 and 31.3.62. Returns were duly filed. Assessment orders were passed under section 9(3) of the said Act. On 10th July, 1973, the <ORG> passed judgment in Loong Soong Tea Estate, (Civil Rule No. 1005 of 1969) declaring the assessment as without jurisdiction. It is the case of the appellant-petitioner that in view of the above judgment, the appellant came to know about the mistake in paying the tax as per assessment order and also that the appellant became entitled to refund of the amount paid. The present Writ Petition was filed in November, 1973 before the <ORG> of Assam. Thereafter in June, 1976, the learned Single Judge of the <ORG> referred the matter to a larger Bench. The Division Bench on June 14, 1979, passed judgment setting aside the orders and notices of demand but refused relief of refund claimed by the appellant.

Aggrieved thereby, the appellant has preferred the present appeals. The appellant-petitioner claimed in all these petitions that the assessments were illegal and prayed that directions be given to the respondents to refund the tax collected in pursuance of those orders.

<ORG> passed the Act, as mentioned hereinbefore in 1954 called the Assam Taxation (on Goods carried by Road and Inland Waterways) Act , 1954 which purported to levy tax on manufactured tea and jute carried by road and inland waterways. The Act was declared ultra vires the Constitution by this Court in <NAME> case (supra) on the ground that previous sanction of the President was not taken. Thereafter the <ORG> passed the Act which received the assent of the President on 6.4.61. The validity of the Act was also challenged and <ORG> declared that Act to be ultra vires on 1st August, 1963. Against the judgment and order passed by <ORG>, the State of Assam and other respondents preferred appeals before this Court. In the meantime, <ORG> challenged the provisions of the Act directly before this Court by filing an application under Article 32 of the Constitution and this Court in its judgment dated 13.12.63 held the Act to be intra vires. Following the aforesaid decision of this Court, the appeals filed by the State of Assam and others against the judgment of <ORG> were allowed by this Court on the 1st April, 1968. It was after this decision that the respondents required the appellant by a notice under section 480  7(2) of the Act issued on 8.7.68 to submit returns for four periods mentioned hereinbefore. Due to penal consequences mentioned in the said notices in the event of failure to file return and pay the taxes, the appellant filed return on July 11, 1968 and paid the various taxes.

In the judgment under appeal after elaborate discussion, <ORG> came to the conclusion that when a petitioner approaches <ORG> with the sole claim for refund of money by writ of mandamus, the same is normally not granted but where the refund is prayed as a consequential relief the same is normally entertained if there is no obstruction or if there be no triable issue like that of limitation which could not be conveniently tried in writ petition.

In this case indisputably it appears that tax was collected without the authority of law. Indeed the appellant had to pay the tax in view of the notices which were without jurisdiction. It appears that the assessment was made under section 9(3) of the Act. Therefore, it was with out jurisdiction. In the premises it is manifest that the respondents had no authority to retain the money collected without the authority of law and as such the money was liable to refund.

The only question that falls for consideration here is whether in an application under Article 226 of the Constitution the <ORG> should have directed refund. It is the case of the appellant that it was after the judgment in the case of <ORG> the cause of action arose. That judgment was passed in July 1973. It appears thus that the High <ORG> was in error in coming to the conclusion that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires as mentioned hereinbefore. Thereafter the taxes were paid in 1968. Therefore the claim in November, 1973 was belated. We are unable to agree with this conclusion. As mentioned hereinbefore the question that arises in this case is whether the <ORG> should direct refund of the amount in question. <ORG>s have made a distinction between those cases where a claimant approaches a High <ORG> seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of  <CITATION> , AIR 1965 SC 1740, this <ORG> held that the High <ORG>s have power to pass any appropriate order in the exercise of the powers conferred on them under Article 226 of the Constitution. A petition solely praying for the issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected by the State as tax was not ordinarily maintainable for the simple reason that a claim for such refund can always be made in a suit against the authority which had illegally collected the money as a tax and in such a suit it was open to the State to raise all possible defences to the claim, defences which cannot in most cases,, be appropriately raised and considered in the exercise of writ jurisdiction. It appears that Section 23 of the Act deals with refund. In the facts of this case, the case did not come within section 23 of the Act. But in the instant appeal, it is clear as the High <ORG> found in our opinion rightly that the claim for refund was a consequential relief.

<CITATION> .,  2 S.C.R. 824, claimants in that case contended that they did pay taxes under section 2 1(4) of the Bombay Sales Tax Act, 1953 which was ultra vires on the particular ground on which it was struck down by this Court. On 28th March, 1958 the petitioners in that case filed a writ petition in <ORG> and contended that section 2  1(4) of the said Act was ultra vires the powers of the State Legislature and was violative of Articles 19(1)(f) and 265 of the Constitution. The single Judge of <ORG> dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. The appellate bench of <ORG> dismissed the appeal on the ground that it would not interfere with the discretionary order of the single Judge. Thereafter, it appears that on December 24, 1958, the Collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between August 1959 and August 1960. On September 29, 1967 this Court in <CITATION> , 2 1 S.T.C. 174 struck down section 12A(4) of the Bombay Sales Tax Act, 1946 corresponding to section 21(4) of the 1953 Act, on the ground that it was violative of Article 19(1)(f) of the Constitution inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under that Article. On the assumption that section 21(4) of the 1953 Act was also liable to be struck down on the same ground, on February 9, 1968, the petitioners therein filed a writ petition under Article 32 of the Constitution claiming a refund of the amount. The petitioners contended that they did not know that the section was ultra vires on the particular ground on which this Court had struck it down and they had paid the amounts under coercion or mistake, that the mistake was discovered on September 29, 1967 (the date of the judgment of this Court) and that they were entitled to the refund under section 72 of the Indian Contract Act, 1872.

It was held by the majority that the petition should be dismissed on the ground of laches. <NAME>, C.J. held that Article 32 gave the right to move the <ORG> by appropriate proceedings for enforcement of fundamental rights and the <ORG> cannot place any hindrance in the way of an aggrieved person. But once the matter had reached this <ORG>, the extent or manner of interference is for this <ORG> to decide. (emphasis supplied). The Chief Justice reiterated that this <ORG> had put itself in restraint in the matter of petitions under Article 32. For example, this <ORG>, reiterated the Chief Justice? refrained from acting under the Article if the party had already moved the High <ORG> under Article 226 and if the High <ORG> had exercised its parallel jurisdiction. It was said in such a case, the <ORG> would not allow fresh proceedings to be started under Article 32 but would insist on the decision of the High <ORG> being brought before it on appeal. Similarly, in inquiring into belated and stale claims, this <ORG> should take note of evidence of neglect of the petitioner's own rights for a long time or of the rights of innocent parties which might have emerged by reason of the delay. The Chief Justice emphasised that it was not possible for this <ORG> to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. A petition under Article 32 was neither a suit nor an application to which the Limitation Act applied. Further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under Article 13(2) for, if a short period of limitation was prescribed the fundamental right might be frustrated. Therefore, for the matter of relief in each case, this <ORG> had to exercise its description from case to case and where there was appearance of an avoidable delay and the delay affected the merits of the claim, this <ORG> held the party disentitled to invoke its extraordinary jurisdiction. In the facts of that case, the majority Judges found that by his own conduct, the petitioner had abandoned his own litigation years ago and the <ORG> would not apply the analogy of the Article in the Limitation Act in cases of mistake of law and give him relief.

<ORG> in a concurring judgment observed that the normal remedy for recovery of money paid to the <ORG> under coercion or mistake of law is by suit. The right to move this <ORG> for enforcement of fundamental rights was guaranteed by Article 32 , and no period of limitation was prescribed for such a petition. <ORG> reiterated that the writ issues as a matter of course if a breach of a fundamental right is established, but this did not mean that in giving relief under the Article this <ORG> might ignore all laws of procedure. The extraordinary remedies under Articles 32 and 226 of the Constitution, said <ORG>, are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. In the absence of any rules of procedure under Article 145(1)(c ), the <ORG> may adopt any reasonable rule. <ORG> emphasised that for example, the <ORG> will not allow a petitioner to move this <ORG> under Article 32 on a petition containing misleading and inaccurate statements. Similarly, the general principles of res judicata were applied where applicable on grounds of public policy. <ORG> emphasised that where the remedy in a writ application under Article 32 or Article 226 corresponded to a remedy in an ordinary suit and the latter remedy was subject to the bar of a statute of limitation, the <ORG> imposed on analogy the same limitation on the summary remedy in the writ jurisdiction even though there was no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. <NAME>, <NAME> more or less expressed the same view.

<NAME> allowed the appeal because he was of the opinion that the petitioners were under a mistake of law, the mistake was discovered, like all assessees, when the <ORG> struck down section 12A(4) of the 1946 Act and they came to this <ORG> within six months of that date and hence there was no delay.

<ORG> allowed the petition. He was of the opinion that in the facts of that case, there was no delay.. He observed that mere impression of a party that a provision of law might be ultra vires cannot be equated to knowledge that the provision was invalid.

Under Article 113 of the Limitation Act , 1963 the limitation was the period of three years from the date the right to sue accrues. It may be noted that in the instant case under section 23 of the Act, it was provided that the Commissioner shall, in the prescribed manner refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under this Act either by case or, at the option of the producer or dealer, be set off against the sum due from him in respect of any other period. Section 23 applies only in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ultra vires, the money had not been paid under the Act. In that view of the matter section 23 would not apply.

<ORG> in the instant case after analysing the various decisions came to the conclusion that where a petitioner approached <ORG> with the sole prayer of claiming refund of money by writ of mandamus, the same was normally not granted but where the refund was prayed as a consequential relief the same was normally entertained if there was no obstruction or if there was no triable issue like that of limitation. We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution the <ORG> has power to direct the refund unless there had been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to respondent or any third party. It is true that in some case the period of three years is normally taken as a period beyond which the <ORG> should not grant relief but that is not an inflexible rule. It depends upon the facts of each case. In this case, however, <ORG> refused to grant the relief on the ground that when the section was declared ultra vires originally that was the time when refund should have been claimed. But it appears to us, it is only when the <NAME> case was decided by <ORG> in 1973 that the appellant became aware of his crystal right of having the assessment declared ultra vires and in that view of the matter in October, 1973 when the judgment was delivered in July, 1973 the appellant came to know that there is mistake in paying the tax and the appellant was entitled to refund of the amount paid. That was the time when the appellant came to know of it. Within a month in November 1973 the present petition was filed. There was no unexplained delay. There was no fact indicated to <ORG> from which it could be inferred that the appellant had either abandoned his claims or the respondent had changed his position in such a way that granting relief of refund would cause either injury to the respondent or anybody else. On the other hand, refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. We are, therefore of the view that the view of <ORG> in this matter cannot be sustained.

<CITATION> ., [1967l 2 S.C.R. 286 was a case where this Court observed that <ORG> erred in exalting a rule of practice into a rule of limitation and rejecting the petition of the appellant for refund without considering whether the appellant was guilty of laches and undue delay. <NAME>, J. delivering the judgment of the Court observed that the primary question in each case is whether the applicant had been guilty of laches or undue delay.

Reference may be made in this connection to <CITATION> ,  3 S.C.R. 417. There the question arose about punishing for contempt. The jurisdiction conferred on <ORG> under Article 215 of the Constitution to punish for contempt of itself was a special one, not arising or derived from the Contempt of Courts Act , 1952, and therefore, not within the purview of the Penal Code . Such a position is also clear from the provisions of the Contempt of Courts Act . The effect of section 5 of that Act was only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. So far as contempt of <ORG> itself is concerned, as distinguished from that of court subordinate to it, the Constitution vested these rights in <ORG>, and so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. That being the position, this Court held that section 25 of the General Clauses Act would not apply.

Similarly, it appears to us that this was a tax realised in breach of the section, the refund being of the money realised without the authority of law. The realisation is bad and there is a concomitant duty to refund the realisation as a corollary of the constitutional inhabitation that should be respected unless it causes injustice or loss in any specific case or violates any specific provision of law.

In that view of the matter in the facts of this case we are of the opinion that the money was refundable to the appellant. The appellant had proceeded diligently. There is nothing to indicate that had the appellant been more diligent, the appellant could have discovered the constitutional inhibition in 1966. The position is not clear even if there is any triable issue. The position becomes clearer only after the decision in <NAME> case as mentioned hereinbefore.

Our attention was drawn on behalf of the respondents that under section 16 of the Act an appeal lay in the prescribed manner within thirty days from the date of service of any order of assessment but the challenge to the assessment on the ground that the assessment was bad could not be made in an appeal under the Act because the right to appeal being a creature of the Act, if the Act is ultra vires that right would not enure to the benefit of the appellant.

<CITATION> .,  6 S.C.R. 261 this <ORG> had occasion to consider what was unreasonable delay in moving the court when tax was paid under a mistake. There the respondents were dealers in tobacco in the State of Madhya Bharat. The State had imposed sales tax on the sale of imported tobacco by the respondents. But no such tax was imposed on the sale of indigenous tobacco. The respondents filed writ petitions under Article 226 of the Constitution for the issue of writ of mandamus directing the refund of sales tax collected from them. They contended that the impugned tax was violative under Article 301(a) of the Constitution and they paid the tax under a mistake of law and the tax so paid was refundable under section 72 of the Indian Contract Act, 1872. The appellant contended that there was no violation of Article 301 of the Constitution, and even if there was such violation the tax came within the special provision under Article 304(a) of the Constitution and <ORG> had no power to direct refund of tax already paid and in any event <ORG> should not exercise its discretionary power of issuing a writ of mandamus directing this to be done since there was unreasonable delay in filing the petition. <ORG> rejected all the contentions of the appellant and a writ of mandamus was issued as prayed for. It was held that tax was violative under Article 301 of the Constitution. But it was held that even though the tax contravened Article 30 1 of the Constitution, it was valid if it came within the saving provisions of Article 304 of the Constitution. Tobacco manufactured or produced in the appellant State, similar to the tobacco imported from outside had not been subjected to the tax and therefore the tax was not within the saving provisions of Article 304(a) of the Constitution. It was reiterated that the tax which had already been paid was so paid under a mistake of law under section 72 of the Indian Contract Act. <ORG>s had power for the purpose of enforcement of. fundamental rights and statutory rights to grant consequential reliefs by ordering repayment of money realised by the <ORG> without the authority of law. It was reiterated that as a general rule if there has been unreasonable delay the court ought not ordinarily to lend its air to a party by the extraordinary remedy of mandamus. Even if there is no such delay, in cases where the opposite party raises a prima facie issue as regards the availability of such relief on the merits on grounds like limitation the <ORG> should ordinarily refuse to issue the writ of mandamus. Though the provisions of the Limitation Act did not as such, it was further held, apply to the granting of relief under Article 226 , the maximum period fixed by the legislature as the time within which relief by a suit in a Civil <ORG> must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 could be measured. The <ORG> might consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. Where the delay is more than that period it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act was three years from the date when the mistake was known. In this case knowledge is attributable from the date of the judgment in <NAME> case on 10th July, 1973 and there being a statement that the appellant came to know of that fact in October, 1973 and there being no denial by the averment made on this ground, <ORG>, in our opinion, in the instant case was in error in presuming that there was a triable issue on this ground and refusing to grant refund.

<CITATION> .  2 S.C.R. 216, in a different context, it was observed that laches or existence of alternative remedy may be ground for not granting relief. But in view of the facts of this case, it is not necessary to deal with that case in any detail.

<CITATION> ,  1 S.C.R. 753 this <ORG> held that <ORG> was in error in its view that though the respondent had failed to exercise his statutory remedy, the fact that it had become time-barred at the date of the hearing of the appeal against the order in the petition under Article 226 , was a good ground for the <ORG> to exercise its discretion in granting the relief prayed for by the respondent in his petition.

Learned counsel drew our attention to Rule 55 of the Act where it was stated that no claim to any refund shall be allowed unless it was made within one year from the date of the original order of assessment or within one year of the final order passed on appeal or revision as the case may be, in respect of such assessment. It was contended on behalf of the respondents that here a fixed period of limitation was prescribed and by virtue of Article 226 of the Constitution, we should not allow to subvert that rule. This principle, in our opinion, in view of the fact that the rule was unconstitutional will have no application.

In <ORG> etc. etc. v. State of Haryana & Ors. etc., [1980] l S.C.R. 1170 <NAME>, J. speaking on behalf of him self as well as on behalf of <NAME>, J. as the learned Chief Justice then was and <NAME>, J. Observed that where public bodies under colour of public laws recover people's money, later discovered to be erroneous levies the dharma of the situation admits of no equivocation. There was no law of limitation especially for public bodies on the virtue of returning what was wrongly recovered to whom it belongs. In our jurisprudence it is not palatable to turn down the prayer for high prerogative writs on the negative plea of alternative remedy, since the root principle of law married to justice, is ubi jus ibi remedium. His Lordship observed as follows:

"Since the root principle of law married to justice, is ubi jus ibi remedium. Long ago <NAME> wrote:

'The law ubi jus ibi remedium, becomes from this Point of view something more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or English men...The Constitution of the United States and the Constitutions of the separate States are embodied in written or printed documents, and contain declaration of rights. But the statesmen of America have shown an unrivalled skill in providing means for giving legal security to the rights declared by American Constitutions. The rule of law is as marked a feature of the United States as of England.

Another point. In our jurisdiction, social justice is a pervasive presence; and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consenting to restore little sums, taken in little transactions, from little persons, to whom they belong."

<NAME>

We are in respectful agreement with this approach. A ln State of Madhya Pradesh and others etc. etc. v.

<NAME> and others etc. etc., A.I.R. 1987 S.C. 251 this principle was reiterated by <NAME>, C.J. that it was well settled that the power of <ORG> to issue an appropriate writ under Article 226 of the Constitution was discretionary and <ORG> in the exercise of its discretion did not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there was inordinate delay on the part of the petitioner in filing a writ petition and such delay was not satisfactorily explained, <ORG> might decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay was premised upon a number of factors. <ORG> did not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it was likely to cause confusion and public inconvenience and bring in its train new injustices. It was emphasised that this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula. There may be cases where despite delay and creation of third party rights <ORG> may still in the exercise of its discretion interfere and grant relief to the petitioner. But where the demand of justice is so compelling that <ORG> would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the <ORG>; ex hypotheses every discretion must be exercised fairly and justly so as to promote justice and not to defeat it. We are in respectful agreement with this approach also.

In this case looked at from one point of view, it is only on the delivery of the judgment in <NAME> case in 1973, the appellant realised the right to claim the relief of refund as a consequential relief, setting aside the assessment and the assessment was set aside by the very order itself in this case. That right has been granted by <ORG>, <ORG> has not refused the setting aside on the ground of delay. It would be inconsistent for <ORG> to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by <ORG> by the judgment in this case which claimed also the consequential relief, that relief must automatically follow and <ORG> was wrong in taking the view that a triable issue of limitation arises in this case. In the absence of any averment to the contrary, the averment of the appellant in the petition that they came to know only after the <NAME> case must be accepted. <ORG> was wrong in contending that they should have been more diligent. After all the discretion must be fair and equitable. In the facts of this case, we are of the opinion that <ORG> was in error in the approach it took. We, therefore, set aside the judgment and order of <ORG> and direct refund of the tax illegally realised by the respondent.

The appeals are allowed. We set aside the judgment and order to the extent that it refused refund of the tax illegally realised. In the facts of this case the parties will pay and bear their own costs.

<NAME> I agree with the order proposed by my learned brother but would like to add a word of reservation.

2. In view of the judgment of this Court in <CITATION> , [ 1975] Supp SCR 365, there can be no doubt that the assessments on the appellants were illegal and that. the taxes demanded on the basis thereof had been collected without the authority of law from the appellants. The appellant's contention is that they had paid the taxes under a mistake of law and are entitled to seek refund thereof. It is difficult to see how <ORG> could have allowed the appellant's prayer for quashing the assessments but refused the prayer for the refund of the illegally collected taxes. The appeals have, therefore, to be allowed.

3. Counsel for the respondents, however, places strong reliance on the following observations of a Constitution Bench of this Court in <CITATION> ,  6 SCR 261:

"Though the provisions of the Limitation Act do not, as such, apply to the granting of relief under Art. 226 , the maximum period fixed by the <ORG> as the time within which relief by a suit in <ORG> must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 could be measured XXXX Where the delay is more than that period it will almost always be proper for the <ORG> to hold that it is unreasonable. "

He also relies on <CITATION> ,  2 SCR 5tl and drawn our attention to the decision in <CITATION> ,  3 SCR 180 where the claim for refund in respect of a period beyond three years was rejected. He contends, on the strength of the above decisions, that <ORG> rightly rejected the appellants' claims for refund.

4. On the other hand, it is contended for the appellants that a writ petition seeking refund of taxes collected without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party or some other like forceful reason exists. Counsel refers in this context to <CITATION> ,  1 SCR 75; <CITATION> ,  2 SCR 286; <CITATION> ,  2 SCR 824; <CITATION> ,  2 SCR 216; <CITATION> , [ 1975] 2 SCR 558; Shiv shankar <CITATION> , [ 1980] 1 SCR 1170 and <CITATION> , AIR 1987 SC 251 and contends that these decisions have qualified the observations of <NAME>, J. in <NAME> case.

5. As pointed out by my learned brother, in the present case, the appellants' averment that they realised their mistake only when they came to know about the decision in the <ORG> case in July 1973 stands uncontroverted. There is nothing on record either to show that the appellants had realised their mistake even earlier, at about the time when the writ petition in the <ORG> case was filed or at the time when the earlier decision of 1966 referred in the <ORG> case judgment was rendered. On this finding of fact, the writ petitions, filed by the appellants in November 1973, were filed within the period of limitation prescribed in Article 113 read with s. 23 of the Limitation Act, 1963. Thus the petitions were within time even by the test enunciated in <NAME> case.

6. I think, therefore, that, for the purposes of the present case, it is unnecessary to consider the larger question whether the bar of limitation should be considered as fatal to a writ petition as to a suit for recovery or whether it is only a relevant but not conclusive factor that should be taken into account by the court in exercising a discretion.

P.S.S. Appeals allowed.


PETITIONER: <NAME> AND ORS Vs. RESPONDENT: SRI ARIYA M. RAMASWAMI IYER AND ORS. DATE OF JUDGMENT: 06/03/1964 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. <NAME>, S.M. CITATION: 1965 AIR 195 1964 SCR (7) 49 CITATOR INFO : RF 1973 SC 569 (22,25) ACT: Decree-<ORG> against decision of a Single Judge Right to move under Letters Patent not availed of-<ORG> if and when can be revoked-Basic requirement in pass- ing decree not satisfied-Propriety and Legality -Code of Civil Procedure, 1908 (Act 5 of 1908), s. 100-Constitution of India, Art. 136. HEADNOTE: The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a permanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village. They claimed that the suit property formed part of a public street and the appellants had no right to encroach upon it. The appellants claimed the suit property as absolute owners and as such, they were entitled to use it in any manner they pleased. The trial. <ORG> decreed the suit. On appeal, the learned Subordinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before <ORG>, the learned single Judge passed a decree in their favour. All that the learned Judge stated in his judgment was that "after a careful consideration of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the terms of his decree. On appeal by <ORG> the appellants contended that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. The respondents, raised a preliminary objection that since the appellants did not avail themselves of the remedy available to them under the Letters Patent of <ORG> either the special Leave granted by this <ORG> should be revoked, or the appeal should be dismissed. Held: It would not be possible to lay down an unqualified rule that special leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case special leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this <ORG> under Art. 136 , it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this <ORG> under Art. 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this <ORG> has to decide on the facts of each case. 50 <NAME> v. <NAME>, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by <ORG> in dealing with second appeals, it must obviously be corrected and <ORG> must be asked to deal with the matter in a normal way in accordance with law. Therefore, the decree passed in second appeal, must be set aside on the ground that the judgment delivered by the learned Judge did not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure. JUDGMENT:

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 79 of 1962.

Appeal by special leave from the judgment and decree dated February 20, 1958 of <ORG> in Second Appeal Lo. 91 of 1955.

<NAME> and <NAME>, for the appellants. <NAME> and <NAME>, for respondents Nos. 1 to 4.

March 6, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J.-This appeal by Special leave raises a short question about the correctness, propriety and legality of the decree passed by <ORG> in second appeal No. 91. of 1955. The respondents had sued the appellants in <ORG> for a mandatory injunction directing the removal of certain masonry structure standing on the suit site which was marked as A B C D in the plan attached to the plaint and for a permanent injunction restraining the appellants from building upon or otherwise encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village in which the suit property was situated. According to the respondents, the plot on which encroachment had been caused by the construction of the masonry structure by the appellants was a street and the reliefs they claimed were on the basis that the said property formed part of a public street and the appellants had no right to encroach upon it. This suit had been instituted by the respondents in a representative capacity on behalf of themselves and other residents in the locality.

The appellants disputed the main allegation of the res- pondents that the masonry structure to which the respondents had objected, stood on any part of the public street. According to them, the plot on which the masonry structure stood along with the adjoining property belonged to them as absolute owners and as such, they were entitled to use it in any manner they pleased. On these pleadings, appropriate issues were framed by the learned trial Judge and on considering the evidence, findings were recorded by him in favour of the respondents. In the result, the respondents' suit was decreed and injunction was issued against the appellants.

The appellants then took the dispute before the Subordi nate Judge at Kumbakonam. On the substantive issues which arose between the parties, the learned Subordinate Judge made findings against the respondents and in consequence, the decree passed by <ORG> was set aside. The learned Subordinate Judge, however, made it clear that it might be open to the respondents to agitate "against any case of customary rights in the nature of an easement in their favour, if they can legally do so, without any bar, and if they are so advised." That question was left by him as undecided as it did not arise before him in the present suit.

This decree was challenged by the respondents by preferring a second appeal before <ORG>. <NAME> who heard this appeal, passed a decree which is challenged before us by the appellants in the present appeal. All that the learned Judge has done in his judgment is to state that "after a careful consideration of all the issues that arise for decision in this Second Appeal, 1 am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms," and then the learned Judge has proceeded to set out the terms of his decree in clauses (1), (2) & (3), the 3rd clause being sub- divided into clauses (a), (b) & (c). As to the costs, the learned Judge directed that parties should bear their own costs throughout. The appellants contend that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained.

Before dealing with this contention, however, it is neces- sary to refer to a preliminary objection raised by Mr. <NAME> on behalf of the respondents. He contends that it was open to the appellants to apply for leave to file a Letters Patent appeal against the judgment of the learned Single Judge and since the appellants have not adopted that course, it is not open to them to come to this Court by special leave. He has, therefore, argued that either the leave granted by this Court to the appellants should be revoked, or the appeal should be dismissed on the ground that this was not a matter in which this Court will interfere having regard to the fact that a remedy available to the appellant under the Letters Patent of <ORG> has not been availed of by them.

In resisting this preliminary objection, Mr. <NAME> for the appellants has relied on the decision of this <ORG> in  <CITATION> (1). In that case, this <ORG> allowed an appeal preferred against a second appellate decision of <ORG> on the ground that the said impugned decision had interfered with a finding of fact contrary to the provisions of section 100 of the Civil Procedure Code. It appears that a preliminary objection had been raised in that case by the respondents similar to the one which is raised in the present appeal, and in rejecting that preliminary objection, this <ORG> observed that "since leave has been -ranted, we do not think we can or should virtually revoke the leave by accepting the preliminary objection." It is because of this observation that this appeal has been referred to a larger Bench. It is true that the statement on which Mr. <NAME> relies does seem to support his contention; but we are satisfied that the said statement should no, be interpreted as laying down a general proposition that if special leave is -ranted in a given case, it can never be revoked. On several occasions, this <ORG> has revoked special leave when facts were brought to its notice to justify the adoption of that course, and so we do not think Mr. <NAME> is justified in contending that leave granted to the appellants under Art. 136. as in the present case, can never be revoked. The true position is that in a given case, if the respondent brings to the notice of this <ORG> facts which would justify the <ORG> in revoking the leave already granted, this <ORG> would, in the interests of justice, not hesitate to adopt that course. Therefore, the question which falls to be considered is whether the present appeal should be dismissed solely on the ground that the appellants did not apply for leave under the relevant clause of the Letters Patent of the Madras High <ORG>.

There is no doubt that if a party wants to avail himself of the remedy provided by Art. 136 in cases where the decree of <ORG> under appeal has been passed under s. 100 C. P. C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to <ORG> against the ,decision of a single Judge. Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent Appeal has been availed of. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Art. 133(3) expressly provides that normally an appeal will not lie to this <ORG> from the judgment, decree, or final order of one Judge of <ORG>, It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the <ORG> would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such cases, it is necessary that the remedy by way of a Letters Patent Appeal must be resorted to before a party comes to this <ORG>. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this <ORG> under Art. 136 , it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this <ORG> under Art. 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this <ORG> has to decide on the facts of each case.

In dealing with the respondents' contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent caveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal, and it appers that the said ground is argued and rejected on the merits and consequently special leave is granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the <ORG> does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata, and the de- cision on the point will depend upon a proper consideration of all the relevant facts.

Reverting then to the main point raised by the appellants in this appeal, we do not think we would be justified in refus- ing to deal with the merits of the appeal solely on the

-round that the appellants did not move the learned single Judge for leave to prefer an appeal before <ORG> of <ORG>. The infirmity in the judgment under appeal is so glaring that the ends of justice require that we should set aside the decree and send the matter back to <ORG> for disposal in accordance with law. The limitations placed by s. 100 , C.P.C., on the jurisdiction and powers of <ORG> in dealing with second appeals are well-known and the procedure which has to be followed by <ORG> in dealing with such appeals is also well-established. In the present case, the learned Judge has passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by <ORG> in dealing with second appeals, it must obviously be corrected and <ORG> must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. <NAME>, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before <ORG> of <ORG>. Therefore, without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned judge does not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.

The result is, the appeal is allowed, the decree passed by <ORG> is set aside and second appeal No. 91 of 1955 is sent back to <ORG> with a direction that it should be dealt with in accordance with law. The costs of this appeal would be costs in the second appeal. Appeal allowed.


JUDGMENT <NAME>, J.

1. These appeals arise out of Sessions Case No. 11/8 of 1958 on the file of the Sessions Judge, Khammam division. As two of the appellants have been sentenced to death, the sentences have been submitted to us by that Court for confirmation. We have not heard these appeals on the merits because in our opinion, an objection taken by the learned counsel for the appellants as to the manner in which the trial was conducted must prevail and there should be a retrial of the case.

2. We may state however that our decision to direct a re-trial has not been reached without reluctance. A re-trial does not only involve fresh expenditure of public time and money; it also oc-

casions considerable hardship to the accused by prolonging the period of uncertainty as to their fate and entailing, at least in cases where they retain counsel of their own, extra expenditure of money for them too. There will be, besides, considerable inconvenience caused to the witnesses, an inconvenience so graphically described by <NAME>, in <CITATION> , . Fully aware as we are of these undesirable consequences, we need hardly state that we are ordering a re-trial of the case because we are convinced that it is the only course to adopt in the interests of justice.

3. Mr. <NAME>'s objection shortly stated is that contrary to the relevant provisions of the Code of Criminal Procedure, the Public Prosecutor abdicated his duty to conduct the prosecution and that a pleader, privately briefed and instructed, took complete charge of the case and effectively determined its course and that, as a consequence, there was grave prejudice to the appellants. It is frankly conceded by him that no objection to the procedure adopted was taken by his clients in <ORG>.

4. Before we take up the question of prejudice, we shall consider what the requirements of the Code are in regard to this matter.

5. Under Section 270, Cr. P. C., "in every trial before <ORG> the prosecution shall be conducted by a Public Prosecutor", who is defined in Section 4(I)(t) of the Code. According to that part of the definition which is relevant to our purpose, he is "only person appointed under Section 492 and includes any person acting under the directions of a Public Prosecutor". Section 492, Cr. P. C., empowers <ORG> to appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors. It is also necessary to refer to Section 493 of the Code which is in these terms:

"The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal; and, if any private person instructs a pleader to prosecute in any court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein under his directions." The last section, in our opinion, while it does not interfere with the generally recognised right of a counsel to depute another professional gentleman with instructions to plead and act in a case of which he is in charge, provides for the special case-where a pleader is appointed by a private party. Such pleader, it says, may act therein, subject to the superintendence and control of the Public Prosecutor.

The mere fact therefore that a, pleader privately instructed has acted for the prosecution in a Sessions Case does not involve the violation of Section 270 if the conduct of the prosecution could be said to have been in the hands of the Public Prosecutor. Now what is the meaning of the words "conduct the prosecution" and how is it to be distinguished from what is meant by 'act therein'? Is the word 'act' in the section used in contradistinction to the word 'plead' earlier used? At the first blush one is apt to think that the <ORG> used the words 'plead' and 'act' in their technical connotation. We are, however, persuaded after careful consideration that the words are not so used. In <NAME> v. <NAME>,, 1930 Mad WN 769, <NAME>, of <ORG> pointed out that the word 'act' is not to be understood in the technical sense as meaning something distinct and different from the word 'plead'. To quote the exact words of the head-note in that case;

"The word 'act' in the end of Section 493, Cr. P. C., does not mean something other than examining or cross-examining witnesses or addressing the court and is not used in any technical sense in distinction from the words 'appear and plead' in the opening part of the section."

It seems to us that having regard to the object and purpose underlying the section and understood with reference to the word 'acting' used in the definition of 'Public Prosecutor', the learned Judge's interpretation is right. A person "acting under the directions of the Public Prosecutor" may, in our opinion, do everything that a pleader may do in any criminal case. He can appear, plead and act: he can examine witnesses, raise and answer objections, and address arguments. So, when Section 493 authorizes a privately engaged pleader to act in the case under the directions of the Public Prosecutor, he may do everything in the case provided that it is done under the control and direction of the Public Prosecutor.

6. Our attention has been drawn in this connection to the decision of our learned brethren <NAME> and <NAME> in In re <NAME>, It. T. No. 40 of 1958: . In that case, it was urged on behalf of the accused that the counsel for the complainant had, at the trial, interrupted the cross-examination of the prosecution witnesses by the accused frequently and unfairly so as to nullify the very object of cross-examination and that the procedure adopted by <ORG> had resulted in irreparable prejudice to the accused.

<NAME>, who wrote the leading judgment observed "that the procedure followed by the learned Sessions Judge in allowing the prosecution to be conducted by a counsel engaged and briefed by the complainant in the case and not by the Public Prosecutor is in violation of the express and mandatory provisions of the Code contained in Section 270". The learned Judge referred to Sections 492 and 493 of the Criminal Procedure Code also and proceeded to remark:

"It is clear from these sections that the pleader engaged by the private persons cannot plead although he can act under the directions of the Public Prosecutor."

The learned Judge then referred to the definition of "Public Prosecutor" in Section 4(I)(t) and went on to say:

"This clause has to be read with Section 493 , Cr. P. C., which leads us to the inevitable conclusion that any person engaged and briefed by a private person in the case, to instruct the Public Prosecutor can only so instruct, and act under the directions of the Public Prosecutor and in such a case the prosecution shall be conducted by the Public Pro-secutor himself".

There is, therefore, no substance in the contention that Section 4(1) ft) enables the Public Prosecutor to abdicate his functions and allow a person briefed by a private party interested in the result of the case, to take over charge of the case and conduct the prosecution. If such a contention were to be accepted we can even say that a Public Prosecutor can engage even an incompetent and unqualified person to conduct the cases by merely giving him directions. A situation so absurd as this calls for no comment. We wish to impress on all Courts of Session that it is the duty of the Public Prosecutors of the district appointed under Section 492 , Cr. P. C., to conduct the prosecutions in <ORG>. If such a Public Prosecutor is disabled or sick and is unable to carry on his functions, it would be his plain duty to obtain the necessary orders of the District Magistrate under Section 492(2) , Cr. P. C., to appoint a suitable person to act as Public Prosecutor for the purpose of the case in question. We would like to make it very clear that it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however eminent he may be, briefed by the complainant in the case."

7. <NAME>, who concurred in the conclusion, made the following observations upon this aspect of the case:

"On the general question whether a complainant's counsel may be allowed to conduct the prosecution under the Public Prosecutor's directions, I think that no exception can he taken to it under the provisions of the Criminal Procedure Code ." The referred then to the decision of <NAME>, in 1930 Mad WN 769 and the decision of <NAME>, in <CITATION> , AIR 1951 Madh-B 84. Then the learned Judge remarked:

"I do not think that any legal principle or purpose of criminal administration is involved in excluding a counsel, merely on the ground that the complainant has briefed him, if he conforms to the normal standards of advocacy. But on practical considerations, obviously, the office of Public Prosecutor is not & sinecure appointment and it is an undesirable practice to allow him unless it be on grounds of personal inconvenience or other necessity to get his duties performed by a proxy whenever a private person engages a pleader for that purpose."

Both the learned Judges were of opinion that apart from the above objection which they thus dealt with, there was also in the case before them another ground for directing a re-trial. The dicta above-quoted cannot be treated as the Ratio Decidendi in view of the fact that the learned Judges do not speak in one voice. <NAME>, in our opinion, has not kept the distinction in mind between the conduct of a case and the acting therein under another's directions.

The learned Judge's observation that the plea-der briefed by a private person cannot plead although he can act seems to us, with due deference, to be erroneous, as we arc in agreement with the interpretation put upon Section 493 by <NAME> As observed in <CITATION> , AIR 1.949 All 213 at p. 214 "the rights of a complainant are only subordinate to the rights of the Crown" and to use the words of <NAME>, in the case already cited "an advocate engaged by the complainant when desired by the Public Prosecutor to address the Magistrate for the prosecution, is entitled to do so." The fact that <NAME>, was dealing with a case before a Magistrate does not for the present purposes make any difference because he was interpreting Section 493 and that section governs cases before Magis-trates as well as before <ORG>.

8. We desire to add that the view of <NAME>, that there is no statutory interdiction against a complainant's counsel acting under the Public Prosecutor's directions, appears to us to be correct. However, the learned Judge's observation: "On the general question whether a complainant's counsel may be allowed to conduct the prosecution under the Public Prosecutor's directions, I think that no exception can be taken to it under the provisions' of the Criminal Procedure Code ", has to be understood only to mean that the complainant's counsel shall function under the directions of the Public Prosecutor hut the conduct of the prosecution shall be in the hands of the Public Prosecutor, as enjoined by Section 493 .

9. But what exactly does the word 'conduct' import? It conveys the idea of leading and guid-ing; that is to say, the person who conducts the prosecution determines all important questions of policy involved in the course of the trial and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence. So long, therefore, as the Public Prosecutor leads and guides, in the above sense, the pleader for the private party, no objection to such a procedure could be entertained. But if in a particular case it happens that the very conduct of the prosecution is completely left in the hands of such a pleader, then the provisions of the Code must be held to have been violated.

10. To sum up, the conduct of all prosecutions before <ORG> shall be in the hands of a Public Prosecutor appointed under Section 492 subject to his power to instruct a duly qualified person acting under his directions, and where either before a Magistrate or before <ORG>, a pleader is instructed by a private individual to prosecute any person in a case before any court, the pleader so instructed may act in that case subject to the over-all supervision of the Public Prosecutor. Such a pleader can conduct the examination, cross-examination and re-examination o witnesses as also address arguments to the court. These provisions do not, however, authorise the abdication of his functions by the Public Prosecutor; he should continue to be in charge of the case and to issue directions on all important matters.

These provisions are clearly conceived in the public interest as well as in the interest of the accused because the position of the Public Prosecutor is, it must be borne in mind, unlike that of any advocate appearing for a private party. It is well-recognised, to use the words of <NAME>, in R. v. <NAME>, (1865) 4 F and F 497 at p. 499, Public Prosecutors "should regard themselves rather as Ministers of Justice assisting in its administration than as advocates"--an observation which was adopted by <ORG> in <CITATION> , 1916-2 KB 621.

Unless, therefore, the control of the Public Prosecutor is there, the prosecution by a pleader for a private party may degenerate into a legalized means for wreaking private vengeance. The pro-secution instead of being a fair and dispassionate presentation of the facts of the case for the deter-mination of the <ORG>, would he transformed into a battle between two parties in which one was trying to get better of the other, by whatever means available. It is true that in every case there is the over-all control of the court in regard to the conduct of the case by either party. But it cannot extend to the point of ensuring that in all matters one party is fair to the other.

A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the licensed and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The <ORG> and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the <ORG> to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.

11. The question then in the present case is whether the circumstances indicate that the Public Prosecutor effaced himself and gave up his charge of the case to Mr. <NAME>, who appeared for a private party.

12. Now, it is common ground that at the trial before the Sessions Judge, the Public Prosecutor did not examine the most important witnesses for the prosecution; nor did he address arguments upon the case. Mr. <NAME> who was instructed by a private party did both. But that was not all. A demand made on behalf of the accused for the examination of certain persons--whose names were mentioned in the charge-sheet as having been present at the time of the offence and who had even been served with summonses--as witnesses for the prosecution, was turned down by the court at the instance of that pleader.

Further, certain objections raised by the accused to the order in which the most important witnesses for the prosecution were examined, were met by the same pleader and overruled by the Courts; as a result, two out of four such principal witnesses were examined after an interval of twenty days from the date of the examination of the other two. It was the same pleader again who raised objections successfully to certain questions sought to be put by counsel for the accused during the cross-examination of the 10th witness for the prosecution.

13. After a careful consideration of the various facts put before us, we have reached the conclusion that Mr. <NAME> not only did the case for the Public Prosecutor but be determined, alone and without any restraint, the course which the prosecution pursued every time a choice was presented between two alternative courses. The Public Prosecutor on all such, occasions would seem to have not taken any part; in truth he did not conduct the prosecution. It is no wonder therefore that no accommodation was made to the point of view urged on behalf of the accused.

The trial involved a large number of accused and according to the prosecution there was quite a good number of persons available who could give evidence as to the occurrence. A case such as this calls for more than the usual vigilance on the part of the prosecution in the exercise of its duty to be fair.

14. When a private prosecutor is in complete charge, assurance will be lacking that even material witnesses, the effect of whose testimony may be against the case for the prosecution, are likely to be called. In the present case, the complaint is made that as many as nine witnesses referred to in the charge-sheet have been withheld although all of them, had been served with summonses and many of them were attending the court during the trial.

15. The result therefore is that in our opinion the irregularity in the conduct of the trial has caused prejudice to the accused and has occasioned a failure of justice. The convictions and sentences are therefore set aside and the appellants will be re-tried on charges properly framed. The appellants will be kept in remand pending the trial. The accused who have been acquitted by the Sessions Judge will not be tried again. The appeals are accordingly allowed with the above direction. The case will go on the file of <ORG>, <ORG>.

16. Before parting with this case, we should like to impress upon all public Prosecutors that they are the representatives of the <ORG> and their office is one of trust and responsibility. That being so, they should do nothing to lower the dignity of the office by effacing themselves or by being con tent to play second fiddle in the trial of <NAME> Cases.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7904 OF 2010 (Arising out of S.L.P.(C) No.19807 of 2006) <NAME>. ..........Appellants Versus State of Punjab & <NAME>. .........Respondents WITH CIVIL APPEAL NO.7905 OF 2010 (Arising out of S.L.P.(C) No.19995 of 2006) Dilbagh Singh & <NAME>. ............Appellants Versus State of Punjab & <NAME>. ...........Respondents JUDGMENT

<NAME>, J.

Leave granted.

2) The appellants have come before this Court, being aggrieved by the judgment and order passed by <ORG> at Chandigarh dated 11.09.2006 in CWP No. 5142/2005 and CWP No. 5144/2005. Both the appeals involve identical questions of law and facts. Consequently, both of them are clubbed and disposed of by this common Judgment.

3) The appellants in the instant case are `volunteers' of <ORG>. They were recruited and appointed sometime in the year 1989 under <ORG> Act, 1947 and the Rules framed thereunder. They were paid consolidated wages of Rs.2700/- per month, from the date of their appointment till their services were dispensed with. In the order of termination, it is alleged that the appellants were involved in an act of indiscipline at the Amritsar railway station on 02.10.2004. The order of termination was challenged before <ORG> in the above mentioned civil writ petitions. The view of <ORG> is that `volunteers' are persons engaged in Honorary capacity. They have no civil rights and, therefore, the termination of their services on account of the allegations leveled against them cannot be considered to be in violation of law. <ORG> has also placed reliance on the observations made by this Court in the case of State of Gujarat Vs. <NAME> (2006) 2 SCC

4) The learned counsel <NAME> appearing for the appellants, apart from others, submitted, that, the appellants, being temporary employees working from last 15 to 17 years, were entitled to Protection Guaranteed under Article 311(2) of the Constitution of India before being terminated. Reference is made to the decision of this Court in the case of <NAME> Vs. Union of India (1958) SCR 828; and Divisional Personnel Officer, Southern Railway, Mysore Vs. S. <NAME> (1966) 3 SCR 106; since the appellants are governed by the provisions of Punjab Home Guards Act, 1947 and Punjab Home Guards and Civil Defence (Field) Class III Rules, 1983, their services could not have been terminated without issuing Show Cause Notice and without holding departmental enquiry. Alternatively, it is contended that the order of termination passed by the respondents is not only stigmatic but the same has been passed as a consequence of an alleged misconduct committed by the appellants at the Railway Station, Amritsar on 02.12.2004.

Therefore, it is submitted that before any action could have been taken against the appellants, they ought to have been afforded a reasonable opportunity of hearing in consonance with the principles of natural justice. It is, therefore, contended that the action of the respondents is arbitrary and in violation of Principles of Natural Justice.

5) It is the contention of the learned senior counsel Dr. <NAME> that the appellants are `volunteers', though their appointment is under the Act and the Rules and, therefore, in view of the specific provisions under the Rules, their services could be discharged at any time without issuing a Show Cause Notice and without holding any enquiry, much less a departmental enquiry. Alternatively, it is contended that the appellants have no civil rights as they are engaged only as volunteers. Since, the appellants have no civil rights, their services could be terminated for the reasons stated in the order of termination. The learned senior counsel invites our attention to the extract of Para 14.4 of Compendium of Instructions on Home Guards issued by <ORG>, which authorizes the Commandant General or the Commandant to discharge any Home Guard at any time, if in his opinion, the services of such Home Guard are no longer required. It is also submitted that the appellants are not temporary employees, but only volunteers in the <ORG> and they are governed by Punjab Homes Guards Rules, 1963 and not the Punjab Home Guards and Civil Defence (Field) Class III Rules, 1983.

6) In view of the rival contentions canvassed by the learned counsel, the first issue which requires our consideration is, which is the rule which may be made applicable to the parties to this lis. The appellants contend, that, they are governed by <ORG> and Civil Defense (Field) Class III Service Rules, 1983, whereas the Respondents contend that the appellants are governed by the Punjab Home Guard Rules, 1963. They also contend that the Punjab Home Guard Rules, 1963 have been repealed by the <ORG> and Civil Defense (Field) Class III Service Rules, 1983. In support of their submission, they cite Rule 20 of the latter which reads as under:

"20.Repeal and Saving :- The Punjab Home Guard Rules 1963 as these are the applicable to the members of the service are hereby repealed. Provided that anything done or any action taken under the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules."

7) The respondents submit that there is a distinction between the `volunteers' and `members of the service" of <ORG>. It was argued before us, that the 1963 Rules were still applicable to the `volunteer' members of <ORG> and that they are not to be considered as `members of the service' as mentioned under Rule 20 of the 1983 Rules. The question before us is, whether the 1983 Rules provide for the repeal of the 1963 rules only in matters relating to `members of the service' and whether the 1963 rules are still applicable for the purpose of recruitment, discharge and dismissal of `volunteers' of <ORG>.

8) The Punjab Home Guard Rules, 1963 were earlier repealed by the Punjab Home Guard Rules, 1960. Rule 31 of the Punjab Home Guard Rules, 1963 reads:

"Repeal :- The Punjab Home Guard Rules 1960, republished with <ORG> Notification No. G.S.R 9P-A-8/47/S.9/6/ dated 19th December 1961 are hereby repealed."

9) If we were to juxtapose the two corresponding provisions relating to repeal, there is a marked difference in the wording of Rule 31 of The Punjab Home Guard Rules,1963 and Rule 20 of Punjab Home Guards and Civil Defense (Field) Class III Service Rules, 1983. It is to be noted that the Rule 31 of the 1963 rules unlike Rule 20 of the 1983 rules are categorical in repealing the 1960 Rules. There is no reference to the `members of the service'.

10) There is further evidence for such a distinction in Rule 22(2) of the Home Guard Act, 1963. Rule 22 is as under:-

"22 (1) Training: - Every member shall be required to undergo a preliminary course of training in drill, discipline, weapon training and special training of service he belongs to for such period as may be fixed by the Commandant-

General in the case of <ORG> and the Gram Raksha Dal Chief in the case of <ORG>.

(2) Such members of the public as may offer themselves voluntarily may also be given training in drill, discipline and the use of weapons."

11) It is relevant to note that there is no such provision empowering the state to recruit volunteers from the public under the scheme of the Punjab Home Guards and Civil Defense (Field) Class III Service Rules, 1983. In fact, Rule 22 of the Punjab Home Guard Rules, 1963, is the only Provision which seems to empower the recruitment of volunteers. The 1983 Rules prescribe an elaborate scheme for appointment of members to specific posts enumerated in Appendix `A'. This can be seen from Rule 3 of Punjab Home Guards and Civil Defense (Field) Class III Service Rules, 1983 which states :-

"3. Number and Character of Posts. - The service shall comprise of the posts shown in Appendix `A' to these rules."

12) The 1983 Rules envisage a scheme where a person who fulfills the requirements under Rule 5 which deals with nationality, domicile and character of candidates; secondly, he must not be specifically disqualified under Rule 6, thirdly, he has to fall under the age group prescribed under Rule 7. On fulfilling these three criteria, he would be eligible for appointment to any of the posts mentioned under Appendix `A' as long as he has the necessary educational qualification. The educational requirement differs depending on the post to which the person is being appointed. On appointment there is a period of probation as prescribed under Rule 9 during which the work and conduct of the appointee is evaluated. The proviso to Rule 9 states that:-

"Provided that the total period of probation, including extension, if any, shall not exceed three years."

13) The 1983 Rules deal with the appointment of individuals to specific posts mentioned in Annexure `A', when a temporary or permanent vacancy arises. It does not deal with volunteers who are recruited from the general public.

14) The legislative intent for such a distinction with respect to application of the 1983 Rules to `non-volunteer' members is also discernible from a combined reading of Rule 2(n) and Rule 3.

15) Rule 2(n) defines `service' as follows:- `Service' means the Punjab Home Guards and Civil Defence [Field] Class III Service.

16) If we read the above definition alongwith Rule 3 which states as under :-

"3. The service shall comprise of the posts shown in Appendix `A' to these rules."

17) It is, therefore, apparent from the scheme of the Rules that the appointment of volunteers is not envisaged under the scope of the 1983 Rules. Volunteers could be appointed only under Rule 22(2) of the Punjab Home Guard Rules, 1963.

(18)Rule 20 is as under:-

"20. Repeal and Saving :- The Punjab Home Guard Rules 1963 as these are the applicable to the members of the service are hereby repealed."

(19)The repeal applies only to the members of the service mentioned under Annexure `A' and not to volunteers. Furthermore, the 1983 rules do not confer upon the appointing authority any power to discharge the volunteer when his services are no longer required as provided under Rule 18 of the 1963 Rules. This is because, the 1983 Rules are not meant to apply to volunteers. Under the 1983 Rules, a member of the service can be dismissed only after following the procedure prescribed for that purpose under the Punjab Civil Services (Punishment and Appeal) Rules, 1970. But such a detailed procedure is not envisaged while discharging a volunteer under 1963 rules. It is therefore evident that the legislature intended to preserve this distinction between the `volunteers' and `members of the service' within the scheme of the 1983 Rules. That being the case, we think that it is neither possible nor desirable to dilute the distinction which the legislature intended to preserve, something which falls squarely in the realm of policy. Therefore, in our opinion, the 1963 Rules are applicable to the appellants in these appeals. (20)Now we take up the second issue. The appellants contend that <ORG> erred in dismissing the writ petition filed by the appellants relying on the decision of this court in <CITATION> . In that case, <NAME> was appointed to the honorary post of District Commandant in <ORG> and then subsequently the order of disengagement was passed by the State <ORG>. vide its order dated 02.12.1995. It is this order which was impugned in the writ petition. This court sustained the order passed by <ORG> primarily on the ground, that the persons involved therein did not act in the terms of undertaking given by them. It has also observed, that the services rendered by those persons was honorary, therefore, no civil consequences were involved. In our view, the facts of that case are different from that of the instant case. In that case, <NAME> was being discharged from a honorary post, his employment was not being terminated as is being done in the present case. Therefore, in our opinion, <ORG> was not justified in placing reliance on this decision to unsuit the appellants. (21)A judgment, as is well known is the authority for the proposition which it decides and not what can logically be deduced from. This Court in the case of <CITATION> , has observed:

"The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as <NAME>'s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

The court has proceeded to add:

"Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

(22)There is a substantial difference in the circumstances surrounding the lis in <NAME>'s case and the present case. Firstly, as stated earlier, the appellants in that case were not being terminated from service. Secondly, the revocation of appointment was merely with regard to an honorary post.

(23)It is, therefore, necessary to consider whether Order No. E//285 dated 02.12.2004 passed by the respondents is one without authority of law and whether the said order suffers from any other legal infirmities. (24)The order of termination served on the appellants reads :

"In response to above said letters, the following guards who had created indiscipline at the Railway station Amritsar while boarding the train for going to Maharashtra in connection with election duty maybe terminated today the 2.12.2004 and they cannot be given any allowance from 3.12.2004. Immediate [action] in this regard should be taken on this letter."

(25)It is argued on behalf of the Respondents that the appellants were discharged under Rule 18 of the 1963 rules read with para 14.4 of compendium of instructions on Home Guards. Rule 18 of 1963 reads:

"Discharge of Members :- any member may be discharged at any time by the authority which had appointed him when his services are no longer required."

(26)The expression `Discharge' was interpreted by this Court in the case of <CITATION> , wherein, it is stated, "Discharge would connote for any other reason ejusdem generis due to abolition of the post or course of study or such similar circumstances except for discharge due to misconduct.".

(27)The abovesaid Rule does not contemplate the requirement of conducting an enquiry or giving notice to the concerned person and, therefore, the respondents maintain that the termination order was therefore within the scope and scheme of the Home Gaurds Act, 1947 and the 1963 Rules made thereunder.

(28)The order terminating the services of the appellants specifically cites indiscipline at the Amritsar Railway Station as the cause for the termination. Therefore, it is not a case where the appointing authority is discharging the services of the appellants on the ground that their services are no longer required but it is a case where their services are sought to be dispensed with on the ground of indiscipline, which would come within the meaning of the expression `Misconduct'. In such a situation, the respondents cannot terminate the services of the appellants without following the procedure prescribed under Rule 27 of the Rules, the said rules, specifically deals with Discipline. It reads as under :-

"Dismissed :- (1) Any officer may for misconduct or for absence without sufficient cause, be dismissed from service.

Provided that an order of dismissal shall not be passed unless reason of dismissal are recorded in writing and the member concerned has been given a reasonable opportunity of showing cause against the action proposed to be taken against him."

(29)The language employed in the Rule is clear and unambiguous. The Rule envisages that any officer may be dismissed from service either for misconduct or for unauthorized absence. Proviso appended to the Rules speaks of giving an opportunity of hearing to the delinquent officer or the member appointed under the Act and the Rules. It is an admitted position that no such opportunity of hearing or notice was given to the appellants in the present case as is required under Rule

27. In this view of the matter, the respondents cannot be permitted to contend that the appellants being `volunteers', their services could be terminated without complying with the procedure prescribed in the Statutory Rules, which speaks of providing an opportunity of hearing to the person who would be affected by the proposed action. (30)To us, it appears, after going through the Act and the Rules framed thereunder, that the expression `volunteers' appears to be misnomer. We do not intend to dwell on this issue, since we are told that the writ petitions for the regularization of similarly placed persons are pending before <ORG>. The facts and circumstances pleaded by the appellants and the number of years they have spent as `volunteers' and since they have no other avenue for their alternate employment because of their age factor, we are impelled to look into the reason for the termination of the services of the appellants. The letter discharging their services explicitly states that the reason for discharge is the indiscipline at Amritsar railway station before the appellants were to board the train for Maharashtra on election duty. Therefore, in our view, it is not a case of discharge simplicitor. Under Rule 18 of the 1963 Rules, any member appointed under the rules may be discharged at any time by the authority which had appointed him when his services are no longer required. If it is instance of discharge simplicitor, it would necessarily relate to instances where the post has been abolished or where there is a surplus of employees or other similar circumstances. The respondents have not raised the existence of any circumstances which required the discharge of any volunteers, neither has it been urged that there exists any condition which would require the appellants specifically to be discharged apart from the allegation of indiscipline. Therefore, in our view, services of the appellants are discharged for acts of alleged misconduct. It casts a stigma on their competence and affects their future career.

(31)In our considered view, even in matters of discharge, the authority concerned cannot act arbitrarily while discharging an employee. However, in the instant case, the appellants are being discharged from service for indiscipline. Therefore, as provided in proviso to rule 27 of the rules, the appellants should have been given a reasonable opportunity of showing cause against the action proposed to be taken against them. Admittedly, no such opportunity was given to them. Therefore, we are of the view that the action of the respondents is contrary to their own statutory rules and in violation of principles of natural justice.

(32)Even without going into the question whether the appellants are eligible for the protection under Article 311 of the Constitution, in our view, the respondents seem to have acted in an arbitrary manner by terminating the services of the appellants, who have been working as Home Guards for the last 15-17 years. They are all over-aged. They may find it difficult to find alternate employment. Therefore, in the facts and circumstances of this case and in the interest of justice, we deem it proper to set aside the order of termination passed by the respondents dated 02.12.2004 and direct the respondents to reinstate the appellants as Home Guards without back wages. (33) Before parting with the case, we should also notice the minor issue raised by learned senior counsel for respondents. It is submitted that the appellants without exhausting the appeal remedy provided under rule 27(3) of 1963 rules could not have approached <ORG> under Article 226 of the Constitution, inter-alia, requesting <ORG> to quash the order passed by respondents dated 02.12.2004. We do not find any merit in their submission, for the reason that this issue was not raised nor argued before <ORG> and, therefore, we will not permit this issue to be raised for the first time before us. It is also argued that para 14.4 of compendium of instructions on Home Guards authorizes the Commandant General or the Commandant to discharge a Home Guard at any time, if in his opinion, the services of <ORG> are no longer required. These instructions are reiteration of Rule 18 of the Rules. We have already dealt with these rules. Therefore, repetition of our reasoning once over again may not be necessary.

(34) For the reasons stated, we allow these appeals and set aside the impugned judgment. We direct the respondents to reinstate the appellants within four weeks' time from today without back wages. No order as to costs.

............................J.

[ D.K. JAIN ] ...........................J.

[ <NAME> ] New Delhi, September 10, 2010.