ORDER <NAME>, J.

1. By this petition under Article 226 the petitioners challenges the impugned resolution of <ORG>, Udaipur respondent 2 dated 28-6-1976 granting a temporary stage carriage permit in favour of respondent 3 as well as the order dated 2-8-1976 of <ORG> respondent 1 which rejected the revision of the petitioner as not maintainable.

2. There is a route known as Bhil-wara-Jahazpur via Bigod-Kachola diversion via Paged Mandalgarh. Originally the scope fixed on this route was of 3 stage carriages to perform 2 return trips. <ORG> sought to increase it to 5 stage carriages to perform 3 return trips in the year 1970 but a revision against that was allowed by <ORG> which maintaining the increase of return trips to 3 but reduced the increased scope of stage carriages from 5 to 4. The scope thus fixed on the route came to be 4 stage carriages to perform 3 return trips. One of the existing operators on this route filed a petition being Civil Writ No. 1879 of 74 in this Court with the result that no non-temporary stage carriage permit was granted by <ORG> against the one vacancy which had arisen by the decision of <ORG>. That writ petition was dismissed on 20-4-1976 by this Court. In the meanwhile in October. 1975 the scheme of notified route of Bhitwara to Bundi came to be implemented. The petitioner who was operating on the Bhilwara-Jahazpur route accordingly had his permit curtailed for the portion from Bhilwara to Triveni Chauraya. The petitioner is thus now operating on the curtailed route from Triveni Chauraya to Jahazpur, a distance of 40 miles. The previous uncurtailed route from Bhilwara to Jahazpur was about 76 miles.

3. On 26-6-1976 respondent 3 applied for the grant of the temporary permit under Section 62 of the Act. In the column meant for the purpose for which permit was required it was stated "public convenience to meet a particular temporary need." The route mentioned was Bhilwara to Jahazpur via Begod-Mandal-garh-Triveni Chauraya-Kachola curtailed Bhilwara to Triveni Chauraya because (being) portion of Section 68-D now Triveni Chauraya to Jahazpur. The said application was taken up for consideration by the respondent 2 in its meeting of 28-6-1976. It was decided that respondent 3 may be given a temporay permit for four months from Triveni Chauraya to Jahazpura via Kachola in the existing vacancy. The petitioner being aggrieved against the grant of a temporary permit to respondent 3 filed a revision under Section 64-A of the Motor Vehicles Act, (hereinafter to be called 'the Act'). Respondent 1 however by the impugned order accepted the preliminary objection of the respondent 3 that as the petitioner could have filed an appeal under Section 64 (1) (f) of the Act and as he had failed to avail of that remedy revision under Section 64-A was not maintainable. The petitioner has come up in writ petition against both the orders of respondents 1 and 2.

4. Section 64-A provides that <ORG> may either on its own motion or on application made to it call for the record of any case in which an order has been made by <ORG> or <ORG> and in which no appeal lies and if it appears to <ORG> that the order made by <ORG> is improper or illegal <ORG> may pass such order in relation to the case as it deem fit. It is apparent that Section 64-A can be invoked only in which no appeal lies. If therefore an appeal is maintainable, jurisdiction under Section 64-A cannot be invoked by an applicant.

5. The appellate provision is to be found in Section 64 (1) (f) which lays down that any person being, a local authority or a police authority or an association which or a person providing transport facilities who having opposed the grant of a permit is aggrieved by the grant thereof or by any condition attached thereto may appeal to <ORG>. That a right of appeal can be exercised under Section 64 (1) {f) even in cases of the grant of a temporary permit has been decided in <CITATION> (AIR 1958 Raj 176) and the same view was also accepted in <CITATION> (AIR 1970 Punj. 18) (FB). Of course before a person can exercise the right of appeal it is essential that he should have opposed the grant of a permit. It is this element of the condition precedent of having opposed the grant of a permit which alone allows an appeal to be maintainable that the counsel for the petitioner Mr. <NAME> invokes in directing his criticism at the decision of the respondent 1 which has held that the petitioner due to his own fault disentitled himself from filing an appeal and therefore no indulgence can be granted to him by way of revision.

6. The undisputed facts are that on 28-6-1976 i. e. the day of the consideration by the respondent 2 about the grant of the permit to respondent 3 petitioner's brother who holds a power of attorney was present at the meeting of <ORG>. It was however further his case before the respondent 1 and the same has been put in the writ petition and now urged by Mr. <NAME> that the agenda of the meeting of <ORG> on 28-6-1976 mentioned only Bhtlwara-Jhaz-pur route and did not mention the route as Bhilwara-Jahazpur via Begod-Mandal-grah-Triveni Chauraya-Kachola curtailed Bhilwara to Triveni Chauraya being portion of 68-D now Triveni Chauraya to Jahazpur as mentioned in the application, and as he had not seen the application of respondent 3. the agenda made him believe that the application for temporary permit of the respondent No. 3 was for Bhilwara-Jahazpur route and as he was not concerned with that he did not file any objections. It was further his case that he went away from the meeting for some private work and when he came back after some time he was informed by other operators who were present at the meeting that <ORG> had granted a temporary permit to respondent No. 3 on the petitioner's route. At this the petitioner claims to have submitted his objection against the grant of temporary permit on Triveni Chauraya to Jahazpur but <ORG> refused to take into consideration the objections on the ground that it has already announced its order. The petitioners on these grounds filed a revision petition. Respondent 1 however did not accept this version of the petitioner and opined that the mere fact that the agenda described the route as Bhilwara-Jahazpur could not have persuaded the petitioner's brother to believe that the agenda referred to the second route that is Bhilwara Sanganeri route instead of Bhilwara-Jahazpur route via Begod-Triveni Chauraya. The respondent 1 also thought it rather surprising that the petitioner's brother should have left just at the time when the grant of a permit to respondent 3 was being considered. The <ORG> accordingly came to the conclusion that the petitioner's brother who had a power of attorney for him was present at the meeting in which the application of respondent 3 was being considered and had thus opportunity to object to the grant of a temporary permit to respondent 3 but as he failed to raise any objection to the grant of a temporary permit to respondent 3 he by his own fault failed to lay the foundation of filing an appeal against the order and therefore he could not be given any indulgence by way of revision, and consequently rejected the revision petition

7. Mr. <NAME> challenges the findings of the revisional authority in so far as it held that the petitioner must be taken to have knowledge of the grant of a permit to respondent 3. I may straightway mention that the finding of the respondent 3. that the petitioner's brother must be deemed to have been present at the time of the consideration of the grant of permit to respondent 3 and also the finding that he failed to raise any objection to the grant of a temporary permit to respondent 3 are findings of fact and are not open to challenge in proceedings under Article 226 of the Constitution. No doubt if as laid down in <CITATION> 1975 Raj L. W. 176) = (AIR 1975 Raj 203) the findings are contrary to evidence or without evidence the said findings are not binding and can be ignored in proceedings under Article 226. But the argument of Mr. <NAME> is not in reality an argument on the basis of there being no evidence but in fact an effort to persuade me to come to a different finding from that of respondent No. 1, on the basis of material on record, a course not permitted in these extraordinary proceedings. He seeks to maintain that it could not be imagined that the petitioner would know from the mention of item in the agenda as Bhila-wara-Jahazpur route that the route for which respondent 3 was seeking the grant of a temporary permit related to the curtailed route of Triveni Chauraya to Bhilwara and not the other route from Bhilwara-Jahazpur via Sanganeri-Kotadi-Roopa-Karauli and Paroli. This argument really asks me to sit as a court of appeal over the finding of respondent <ORG> which obviously I cannot do. The version of the petitioner was before the respondent 1, and it was open to him to come to a conclusion of fact, and even assuming it was wrong finding of fact it would still be within its jurisdiction and not liable to be interfered with, unless it could be shown that the finding is such which no reasonable person properly instructed in law could have arrived at. That is however not the position here. It should also be noted that the respondent Nc. 3 in his reply has stated that under item 3 of agenda of <ORG> for the meeting of 28-6-1976, application for grant of temporary permit on the other route i. e. Bhilwara-Jahazpur via Sanganeri-Kotadi-Roopa-Karauli and Paroli was listed and the said route in the agenda at item No. 3 was described as Bhilwara-Jahazpur-Kotadi. Item No. 4 was mentioned as Bhilwara-Jahaz-pur, in contradistinction to item 3 of the agenda. Now admittedly it is the petitioner's own case that there were only two routes from Bhilwara to Jahazpur. From this Mr. <NAME>, the learned counsel for respondent No. 3 urged, and in my view, rightly, that as under item 3 one of the routes was fully described the petitioner could not have been under any misapprehension that item 4 of the agenda dealt with any route other than the route of Bhilwara to Jahazpur via Begod-Triveni Chauraya-Kacholi and the description as merely Bhilwara-Jahazpur could not have in any manner given any impression to the petitioner that the route was not on the portion from Tri-veni Chauraya to Jahazpur. It will be thus seen that there was sufficient material before the <ORG> respondent 1 to come to the conclusion that the peti-titioner was aware of the grant of a permit to respondent 3 and even knowing about it, as he did not oppose the grant, he had therefore, disentitled himself to file an appeal, and could not by that process he allowed to avail the remedy of revision.

8. Mr. <NAME> had also tried to urge that as on that very date 28-6-1976 <ORG> had rejected the application for this route of Bhilwara to Jahazpur for the grant of a non-temporary permit as a part of the route overlapped notified route the petitioner did not bother to verify or take any interest in the grant of a temporary permit under item 4 (which dealt with the application of respondent 3 for the grant of a temporary permit) because the petitioner could legitimately believe that as <ORG> had rejected the claim to give a non-temporary permit on Bhilwara to Jahazpur route, the same consequences will follow for the grant of a temporary permit, because no temporary permit can be granted on a notified route. I am afraid this argument, runs counter to the stand of the petitioner himself before respondent 1 where the position taken was that the petitioner thought that this was some other route than the one in which the petitioner was interested and that is why he did not think it fit to file any objections. It should also be noted that of the Bhilwara-Jahazpur route, only portion from Bhilwara to Triveni Chauraya overlapped the notified route. The petitioner thus could not have any rationale in assuming that the application for grant of a temporary permit related to the notified route. It is to be seen that the notified route is Bhilwara to Bundi, and only Bhilwara to Triveni Chauaraya (which is a portion of the Bhilwara-Jahazpur route) overlaps the notified route and consequently there was no bar to respondent No. 2 in granting a temporary permit from Triveni Chauraya to Jahazpur. On that material finding that as no objection was made to the grant of a permit, petitioner had disentitled himself to file an appeal, and consequently would also lose the remedy of revision, followed as a matter of course from the wording of Section 64-A , because it can only be invoked, in which no appeal lies.

9. Mr. <NAME> when faced with this came out with the argument that even if it be assumed that the petitioner knew about the grant of a temporary permit to respondent 3 yet as the condition precedent of having opposed the grant of a permit was not complied, he could not file an appeal and hence a revision would lie. This to me seems, an astounding proposition. I can understand a case where it is found that the petitioner did not oppose the grant of a permit because he had no opportunity to do so. In that case of course revision will be maintainable because of the fact not simply because the petitioner had not opposed the grant of a permit but because he had no opportunity to oppose the grant and it would be inequitable if not having had an opportunity to oppose the grant of a permit he was to be deprived of the right not only of filing an appeal but also of revision. But a person who by his own fault has disentitled himself from filing an appeal by not having opposed the grant of a permit when he had the full opportunity to do so cannot be allowed to avail the remedy of revision, which only lies, where no appeal lies. Reference in this connection may be made to <CITATION> (AIR 1967 Raj 208) where it has been laid down that where a party on account of its own lapse has not filed any objection then he will not be entitled to maintain an appeal before <ORG> and in such a case to hold that though that party may not have a right of appeal he will still be having a right of maintaining a revision application may lead to an odd result which may not have been intended by the legislature. No doubt that authority was dealing with a case of a grant of a non-temporary permit. But in my opinion these principles and equitable consideration will equally apply in the case of grant of temporary permit.

10. The next argument of Mr. <NAME> was that in any case the <ORG> should have of its own motion exercised its re-visional power. Now whether the <ORG> should exercise its revisional power suo motu is a question of discretion and it is pointless for Mr. <NAME> to urge that this Court should compel the <ORG> to exercise its discretion. As held in <NAME> v. <ORG> it is for the revisional authority to see whether in any case it should exercise its revisionai jurisdiction of its own motion as the exercise of that jurisdiction is a matter of judicial discretion. It is patent that no mandamus can lie to compel a body to exercise its discretion in a particular manner unless the refusal to exercise its discretionary jurisdiction is vitiated by mala fide or is based on irrelevant ground or extraneous consideration. Such is not the case here and therefore, it is not possible to find fault with the respondent 1 as to why it did not exercise its own revisionai jurisdiction in the present case,

11. Mr. <NAME> next contended that the grant of a permit by respondent 2 was in any case without jurisdiction as it did not fulfil the requisite condition prescribed in Section 62 (1) (c) of the Act I may note that as I have held that the petitioner had disentitled himself by his own default for filing an appeal or a revision, it would not be open to the petitioner to urge any grievance on the merits to the grant of a permit by respondent 2. The reason is that the order of <ORG> dismissing his revision petition has put a stamp of finality on the order of <ORG>. To allow him to urge against the order of respondent No. 2 (when the order of respondent No. 1 is in the field) would lead to anomalous result, because if this court was to set aside the order of respondent No. 2, there will still remain the order of respondent No. 1 affirming the order of respondent No. 2 and in that case a problem will be created for the authorities in forcing them to choose between the order of this <ORG> and the appellate <ORG>. Mr. <NAME> had however suggested that in the present case it should be assumed that the petitioner has come direct to this <ORG> from the order of Respondent No, 2. Though one cannot accept this situation (which is against fact) the petitioner will be faced with another hurdle of not having availed of alternative remedy before coming to this <ORG>. I am aware that in number of cases it has been held that if the order of <ORG> is without jurisdiction this <ORG> may interfere even without the party having availed of the alternative remedy by way of appeal or revision. But I have no doubt that it is only in gravely exceptional cases that this court will entertain a writ petition direct and in normal course it will be a sound exercise of discretion to refuse to entertain it, if a party, has not availed of the remedy of appeal or revision, more especially as the matters which are necessarily contentious can be examined more satisfactorily by the authorities constituted under the Act. Moreover the present case where the petitioner did avail the remedy cf revision but ultimately it is found not to have been a proper remedy cannot be equated with a case where the petitioner chooses to invoke this <ORG>'s jurisdiction in the first instance. So normally the petitioner would not be allowed to urge any grievance against the merits of the order of <ORG> but as I permitted Mr. <NAME> to urge on merits, I deem it only fair that I should deal with this contention on merits also.

12. The main contention of Mr. <NAME> is that the requirement of Section 62 (1) (c) has not been fulfilled and the grant is therefore, illegal and without jurisdiction. Now Section 62 (1) (c) empowers <ORG> to grant a temporary permit to meet a particular temporary need. The application by respondent 3 in Clause 4 mentioned the purpose as 'public convenience' to meet a particular temporary need existing on the route. In detailed consideration by <ORG>, it was noted that according to the scope there was one vacancy and that previously because of the order from <ORG> there was a stay for grant of a non-temporary permit. It was noticed that by a letter of 4-5-1976 it had been communicated that <ORG> had dismissed the writ petition No. 1879/74 on 20-4-1976. It was further noticed that on this route Bhilwara-Triveni Chauraya portion is under a notified scheme of Section 68-D and therefore, by a decision of 28-6-1976 the applications for non-temporary permit have been rejected because since 20-10-1975 the buses of <ORG> were plying on that route. The rest of the portion of the route Triveni Chauraya to Jahazpur via Kachola was available. It was specifically mentioned that on this portion there is 3 lot of traffic and there is immediate and essential need to provide temporarily more buses, and therefore, the application of respondent 3 for the grant of a temporary permit may be accepted as it was for the convenience of the travelling public. Now the finding by <ORG> that there is large number of travelling public and that it was essential to provide for more vehicles for the benefit and convenience of the public is a finding of fact and a matter which is solely within the jurisdiction of <ORG>. This Court cannot start reassessing the sufficiency of the material on which <ORG> has come to such a conclusion. To ask this Court to substitute its own satisfaction for that of <ORG>, a body of exports and specialists who have been entrusted by the statute to look after the needs of the travelling public is to ask the court to take on matters for which it is obviously not fully equipped either with reference to the full materials local condition, and other circumstances on the basis of which alone a satisfactory decision can be made.

13. Mr. <NAME> had sought to find fault with the order of <ORG> by urging that it had granted the temporary permit on the ground that there was a scope of one permit and urged that the mere existence of a vacancy was not sufficient to hold that there was a temporary need. No doubt the existence of a permanent vacancy may not necessarily mean that there is a particular temporary need within the meaning of Section 62 (1) (c) of the Act. But the converse is not necessarily true. The existence of a permanent vacancy and a particular temporary need, can co-exist. There may be circumstances in which both may co-exist and in that case the grant of the temporary permit would be permissible. There is no reason why Section 62 (1) (c) should be given any special or restricted meaning and that there is no antithesis between a particular temporary need and a permanent need and it is manifest that these two kinds of need may co-exist on a particular route ..... and that this sub-section contemplates that there may exist a temporary need for transport facilities on a particular route even in case of permanent need for such facilities vide M P. S. R. T. Corpn. v. <NAME>, <ORG>, Raipur, (AIR 1966 SC 156). This authority approved <CITATION> , (AIR 1957 Raj 162) where it was held "there was thus a shortage of the necessary number of vehicles on this route and <ORG> had thought it fit to provide for this temporary need till a regular permit was granted after going through the procedure laid down under Section 57 . It therefore, had the jurisdiction in the circumstances of this case to grant a temporary permit." Though no doubt <ORG> noticed that there was a scope for one permit, yet it decided to grant a temporary permit only after corning to a finding that the need of travelling public and because of requirement of traffic, issue of a temporary permit was essential. That the issue of a temporary permit by <ORG> to meet the requirements of the Travelling public is a good reason for the exercise of its powers under Section 62 (1) (c) of the Act has been held in <NAME> v. <ORG>., <ORG>, (AIR 1972 All 146). Temporary permit can be given to meet the requirements of an unsatisfied demand of the public and it means that a temporary need exists. <CITATION> , (AIR 1974 Ker 188), <CITATION> , (AIR 1974 Madh Pra 10).

14. I may now notice some of the cases relied upon by Mr. <NAME>. <CITATION> , (1970 UJ (SC) 408) no purpose was mentioned in the application which was filed under Section 62 (1) (c). Even in a subsequent letter addressed to <ORG> the purpose or reason for the issue of a temporary permit was not stated. It was in that context that <ORG> said that as there was an absence of any purpose or reason for which temporary permits were asked for <ORG> should have dismissed the application in limine. The case is obviously distinguishable because in the present case the purpose mentioned in the application is for the public convenience and there is a full discussion and finding by <ORG> that it was essential to give temporary permit, to increase the vehicle for the benefit and the convenience of the travelling public.

15. <CITATION> . Writ Petn. No. 980 of 1975 decided on 24-7-1975 (Raj)) in the application for grant of a permit regarding the purpose for granting a temporary permit it was only mentioned "Temporary need under Section 62 (1) (c)". <ORG> in that case inferred that as there were two vacancies, "temporary need could be assumed." It will be seen that there was no finding by <ORG> that any temporary need existed in the sense of there being need for extra vehicles because of the traffic requirements. It was in this context that <NAME> held that the requirement of Section 62 (1) (c) had not been fulfilled. The learned Judge however accepted the proposition that the temporary need may co-exist simultaneously with the permanent need and in those circumstances it is open to the transport authority to grant temporary permit. Obviously the case is distinguishable.

16. In <NAME> v. <ORG>, (AIR 1976 Raj 164) the purpose mentioned in column 4 for asking the temporary permit was "to carry regular service". It was also found by the learned Judge that the only circumstance taken into consideration by <ORG> for the grant of a temporary permit was the existence of a vacancy on the route to come to a conclusion that there was a temporary need. This obviously has no applicability.

17. Similarly in <CITATION> , (AIR 1976 Raj 166) the purpose mentioned in the applications was "under Section 62 (1) (c) of the Motor Vehicles Act to meet a particular temporary need" and "to carry regular service". The consideration by <ORG> showed that it granted the temporary permits only on the ground that as the matter for grant of a non-temporary permit and filling vacancies were likely to take some time there was a particular temporary need. It was specifically found by the learned Judge that <ORG> had not considered the question of shortage of the vehicles for the purpose of maintaining the existing services on the route.

18. Similarly in Civil Writ No. 1869 of 1970 decided on 26-10-1970 <NAME>, J., (as his Lordship then was) after stating that the mere existence of a vacancy on a route did not warrant a conclusion that the temporary need co-existed with the permanent need however went on to observe "at any rate there is nothing in the aforesaid order of <ORG> to show that it granted a temporary permit to respondent <NAME> for any of the reasons or in any of the circumstances stated in Clause (1) of Sub-section (2) of Section 62 of the Act."

19. A reference to all these authorities cited by Mr. <NAME> would show that where the grant of a temporary permit was set aside, it was either because no purpose was mentioned in the application, or that <ORG> while granting the permit had not considered any temporary need but had only gone by the fact of the existence of a permanent vacancy. This cannot be said in the present case. The purpose mentioned in the application is "public convenience to meet a particular temporary need". <ORG> has considered the various circumstances and has definitely given a finding that there is a large traffic on this route and that it was for the convenience of the travelling public that further vehicle be provided for a temporary period and that the grant of a permit would be for the convenience of the public. I do not see how under the circumstances it can be said by Mr. <NAME> that there has been no application of the mind by <ORG> and no finding by it that a particular temporary need exists. The clause "to meet a particular temporary need" is not to be given any special or restricted meaning vide <CITATION> , (AIR 1966 SC 156). In each case it will have to be found whether a particular temporary need exists or not. The insistence of Mr. <NAME> that in the applications various details constituting a temporary need should be mentioned is tantamount to asking that the application be treated as a plaint. When <ORG> in <CITATION> , (1970 UJ (SC) 408) said that the application should have been dismissed in limine it was only in the context of no purpose having been mentioned in the application form at all. But where, as in the present case, the purpose is mentioned as a public convenience to meet a particular temporary need it is obviously impermissible for <ORG> to throw out the application in limine. The insistence of Mr. <NAME> that the application itself should have given full particulars and details as if it was in the nature of a plaint and if it did not contain all these details, it should be rejected as if it discloses no cause of action, on the analogy of Order 7, Rule 11, Civil Procedure Code is not warranted either on principle or on authority. One must look at these matters in a practical manner. An application is filed by a person asking for the grant of a temporary permit and the purpose mentioned is public convenience for a temporary need. Now whether he can substantiate that application will depend upon the various facts and circumstances which are placed for consideration before <ORG>, when it considers the question of a grant of the permit. No doubt it will be desirable and in the interest of all if the application was to contain as full a detail as is possible. But that does not mean that if full details are not given it must entail the rejection of the application without consideration of merits. That is not the scheme of the Act. <ORG> has to consider the matter and the grant or refusal of the permit will necessarily depend upon a consideration of all the facts and circumstances of each case. In the present case there is a firm finding that the requirement of the travelling public requires the grant of a temporary permit. I cannot say that <ORG> could not have come to this conclusion. This court, under Article 226 cannot sit as a court of appeal over these factual decisions given by <ORG>. I may however, also mention that it has been stated in the reply by respondent 3 that he is a displaced operator from Bhilwara-Ajmer route but his permit was cancelled because the said route became notified route with effect from 20-10-1975 and could not be renewed after August, 1976, because of nationalisation in order to justify that there is a need for increase of vehicles on the route the respondent has stated that a scope of 3:1 was fixed by <ORG> on Begun to Jahazpur route via Ladapur-Mandalpur-Triveni Chauraya but this was stayed by this <ORG> in a writ petition filed by one of the three existing operators on Bhilwara-Jahazpur via Begun-Triveni Chauraya route and since a portion of this route from Begun to Man-dalgarh became a part of the notified route of the Scheme no permit at any time could be granted. Similarly, on Begun to DeoJi border via Singholi-Charbhuja-Ja-hazpur route two permits were granted but they were challenged on a writ petition filed in this <ORG> and the grant was set aside with the result that no permits could be granted. Similarly in another writ petition the stay was given for not granting any permit on Begun-Deoli border Ooncha route and though this writ petition has been subsequently dismissed no permits as yet could be granted. Similarly on Mandalgarh-Deoli-Triveni Chau-raya-Jahazpur route one of the existing operators has obtained a stay order for not granting any permit. The purpose of mentioning all these details obviously is to show that the traffic needs on this route of Triveni Chauraya to Jahazpur are not being met adequately. Now it is not necessary for me to go into these details or to give a finding as to how far the facts are correctly mentioned by the respondent No. 3. I am only mentioning these for the purpose of emphasising and that all these details are such which obviously <ORG> alone is in a proper position to know and evaluate and therefore, unless it can be shown that respondent No. 2 has not applied its mind this <ORG> will be extremely slow to interfere with the discretion exercised by <ORG> in granting a temporary permit. I am more than willing to agree that the laconic order and sometimes even a one-line order by <ORG> in granting the temporary permit creates problems in finding whether <ORG> had applied its mind and come to a firm finding that the traffic requirements required the grant of a temporary permit. Much time, energy and avoidable litigation will be saved if <ORG> which is a quasi-judicial authority was to take some pains to write a little more detailed order in granting or refusing temporary permit so that <ORG> as well as this <ORG> may be in a position to appreciate the various considerations and reasons why a temporary permit has been granted or refused. I am saying this because if <ORG> disposes of the matter in a laconic manner without really giving a finding that a temporary need exists, it may lay itself open to the charge of having given, a temporary permit without the existence of the conditions provided by Section 62 (1) (c), and it may become difficult in that case for <ORG> to support its order when the reasons for it are not mentioned in its resolution granting or refusing the permit. One would therefore, think that it was in the interest of <ORG> itself that it devotes a little more detailed attention at the time of grant of permits and mention all the relevant facts in the resolution granting or refusing a permit. This <ORG> has had occasion on a number of times to caution <ORG> as to the deficiencies and lacunae in its order. One is entitled therefore, to expect and hope that the lacunae mentioned by this <ORG> will be carefully taken note of by <ORG> and its manner of disposing of the applications for the grant of a permit will show greater attention to details on the basis of which its decision is taken. If in spite of all this caution <ORG> continues to dispose of these matters in a laconic and unsatisfactory manner, the charge of the aggrieved operators that the order was without jurisdiction and arbitrary may be difficult to rebut. However as in the present case I have found that <ORG> has given a firm finding that it is necessary in the interest of traffic to give a temporary permit for the convenience of the travelling public no fault can be found with it and the argument of Mr. <NAME> cannot therefore, be accepted.

20. The next contention of Mr. <NAME> was that as Bhilwara-Triveni Chuaraya portion of Bhilwara-Jahazpur route overlaps notified route it was not open to give a permit on Triveni-Chau-raya-Jahazpur route as there is no Triveni-Chauraya-Jahazpur route existing. I think there is fallacy in the argument. Bhilwara-Jahazpur route is existing and all that has happened is that because of the Bhilwara-Triveni-Chauraya portion overlapping on the notified route a permit now cannot be issued to a private operator for that portion. It is for that reason that the petitioner himself who had a permit from Bhilwara to Jahaz-pur is now operating from Triveni-Chau-raya to Jahazpur. I can see therefore, no infirmity in the grant of a permit to respondent 3 from Triveni-Chauraya to Jahazpur. As a matter of fact the application of respondent 3 clearly states that the Bhilwara to Jahazpur route has been curtailed from Bhilwara to Triveni-Chau-raya. Mr. <NAME> concedes that it is not necessary to first fix a scope for grant of a temporary permit. If so, it is obvious that even though there may not be a se-parate route of Triveni-Chauraya to Jahazpur, no objection can be found to issue of a temporary permit to respondent 3.

21. The next objection was that Secretary of <ORG> had by his order of 29th June, 1976, directed the respondent No. 3 that he should ply his vehicles in rotation with the existing operators. Mr, <NAME> objected that if the permit to respondent No. 3 allows him to ply his vehicles only in rotation with the petitioner it is apparent that there is no temporary need because there can only be particular temporary need if the existing operators are not able to fulfil the need. Mr. <NAME> however pointed out that in the resolution of <ORG> D/-28-6-1976 there is no such restriction that respondent 3 is to operate by rotation and the direction by the Secretary cannot therefore, be invoked to hold that there is no temporary need when <ORG> had definitely so found that a temporary need exists. Though the direction by the Secretary does seem a little at variance with the resolution of <ORG>, but that is a matter which may be sorted out from the authorities but cannot help the petitioner in maintaining that this is sufficient to show that there was no particular temporary need on the route. This plea therefore, fails.

22. As a result I find no merit in the writ petition which fails and is dismissed with costs.


PETITIONER: <ORG> Vs. RESPONDENT: C.I.T., WEST BENGAL, CALCUTTA DATE OF JUDGMENT10/10/1979 BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. UNTWALIA, N.L. CITATION: 1980 AIR 251 1980 SCR (1) 906 1980 SCC (1) 139 ACT: Indian Income Tax Act 1922_s. 24(2)(iii)-Assessee if could claim vested right under the law as it stood before amendment-Law to be applied is the law in relevant assessment year. HEADNOTE: Section 24(2)(iii) of the Indian Income-Tax Act, 1922 as it stood in 1955 provided that a business loss which was not wholly set off should be carried forward from year to year. In consequence of an amendment to the section made in 1957 the carry forward of unabsorbed loss could not be effected for more than eight years. After setting off unabsorbed losses for the assessment years 1949-50 and 1950-51 the Income Tax officer directed that the loss remaining unabsorbed in the year 1950-51 be carried forward. The assessee's plea that the unabsorbed loss of the year 1950-51 should be set off against the business income of the assessment year 1960.61 was rejected by the Income- Tax officer on the ground that the unabsorbed loss of the year 1950-51 could not be carried forward for more than eight years. The assessee was unsuccessful in appeal before <ORG> and <ORG>. <ORG> answered the reference against the Assessee. In appeal to this Court it was contended that by virtue of s. 24(2) (iii) of the Act, as it stood before its amendment in 1957, the assessee had acquired a vested right to have the unabsorbed loss carried forward from year to year until it was completely set off and that the subsequent amendment limiting the period to eight years could not divest the assessee of the vested right already accrued to him. Dismissing the appeal, ^ HELD: The unabsorbed loss of the assessment year 1950- 51 could not be carried forward for more than eight years and consequently could not be set off against the business income of the assessment year 1960-61. [909 C] 1. (a) It is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication right claimed by an assessee under the law in force In a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that years. [908 G, 909 <CITATION> , (1951) 20 I.T.R. 572 and <CITATION> (1966 60 I.T.R. 262: referred to. 907 (b) When an assessment for the assessment year 1960-61 was to be made A and s. 24(2) was invoked it was the section in force as ill that assessment year which had to be applied. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. [908 H, 909 A-B] 2. The direction of <ORG> that the unabsorbed loss should be carried forward have meaning only if the law in force in the relevant assessment year permits the unabsorbed loss to be carried forward into the assessment of that year the instant case <ORG> assumed that the law permitted the unabsorbed loss to be carried forward into future year. But that was not the law in the relevant assessment year and therefore the assessee could derive no advantage from that direction. [909 <CITATION> . (1962) 44 I.T.R. 714, distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2366 of 1972.

From the Judgment and order dated 25-3-1971 of <ORG> in Income Tax Ref. No. 120/69.

<NAME>, <NAME>, <NAME>, <NAME> and Miss <NAME> for the Appellant. <NAME> and Miss <NAME> for the Respondent.

The <NAME>udgment of the Court was delivered by <NAME>, <NAME>: This appeal by certificate under section 66- A(2) of the Indian Income Tax Act , 1922 raises a question involving the interpretation of section 24(2) (iii) of that Act.

The assessee is a company carrying on the business of manufacturing jute goods. The case relates to the assessment year 1960-61, for which the relevant accounting period is the financial year ending Match 31, 1960.

While making the assessment for the assessment year 1959-60, the <ORG> officer set off the unabsorbed business loss of Rs. 1,58,845 for 1949-50 and Rs. 5,70,952 for 1950-51 against the business income of that year and directed that Rs. 15,50,189 representing the loss remaining unabsorbed should be carried forward. In the assessment proceeding for the assessment year 1960-61, with which we are concerned, the assessee claimed that the unabsorbed loss should be carried forward and set off against the business income of the current year. The <ORG> officer rejected the claim on the ground that the unabsorbed loss related to 1950-51 and could not be carried forward for more than eight years. The assessee pressed the claim in appeal before the Appellate Assistant Commissioner but without success. A second appeal was dismissed by the <ORG> Appellate Tribunal. At the instance of the assessee, <ORG> referred the following question of law to <ORG> at Calcutta:-

"Whether, on the facts and circumstances of the case, the assessee was entitled in law to set off unabsorbed loss of Rs. 15,50,189 of the assessment year 1950-51 against the business income of the assessment year 1960-61 ?"

<ORG> answered the question in the negative.

In this appeal by the assessee it is contended that by virtue of section 24(2) (iii) of the Indian Income Tax Act , 1922, as it stood before its amendment with effect from April 1, 1957, the assessee had acquired a vested right to have the unabsorbed loss carried forward from year to year until it was completely set off and the subsequent amendment limiting the period for carrying forward the loss to eight years could not divest the assessee of the vested right which had thus accrued to him. It is pointed out that the amendment effected in 1957 is not retrospective in operation. In our judgment, there is no substance in the assesse's claim.

Section 24(2) has suffered amendment a number of times. Prior to its amendment by the Finance Act , 1955 it permitted a business loss to be carried forward for not more than six years, except in the case of losses pertaining to certain assessment years ending with the assessment year 1943-44 where the period for carrying forward was shorter. Section 16 of the Finance Act, 1955 amended section 24(2) , and as a result of the amendment section 24(2) (iii) provided that a businesss loss which was not wholly set off could be carried forward from year to year. Thereafter, Finance (No. 2) Act of 1957 amended s.24(2) (iii) with effect from April 1, 1957 and in consequence an unabsorbed loss could not now be carried forward for more than eight years.

The assessee claims a vested right under section 24(2)

(iii), as it, stood before its amendment in 1957, to have the unabsorbed loss of 1950-51 carried forward from year to year until the loss is completely absorbed. The claim is based on a misconception of the fundamental basis underlying every income tax assessment. "It is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication." <CITATION> and <CITATION> on that principle, it is abundantly clear that when an assessment for the assessment year 1960-61 is to be made and section 24(2) is invoked, it is s.24(2) as in force in that assessment year which has to be applied.' That is the provision as amended by the Finance (No. 2) Act, 1957. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year. A right claimed by an assessee under the law in force in a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that year. Therefore, inasmuch as the provisions of section 24(2) , as amended in 1957, govern the assessment for the assessment year 1960-61, <ORG> is right in affirming that the unabsorbed loss of Rs. 15,50,189 of the assessment year 1950-Sl cannot be carried forward for more than eight years, and consequently cannot be set off against the business income of the assessment year 1960-61.

It is pointed out that the Appellate Assistant Commissioner mentioned in his order for the assessment year 1959-60 that the unabsorbed loss of Rs. 15,50,189 should be carried forward. That direction has meaning only if the law in force in the assessment year 1960-61 permits the unabsorbed loss to be carried forward into the assessment of that year. The direction by the Appellate Assistant Commissioner assumes that it the law permits the unabsorbed loss to be carried forward into future years, but as we have seen that is not the law and, therefore, the assessee can derive no advantage from that direction.

The assessee relies on the judgment of this Court in <CITATION> .(l) That was a case, however, where paragraph 3 of the Taxation Laws (Removal of Difficulties) order, 1950 operated to divide the previous years to which the provision of the Travancore Income Tax Act, 1946 applied from those previous years to which the provisions of the Indian Income Tax Act , 1922, brought into force in the State of Travancore in 1950, would apply. It was because of the Removal of Difficulties order that the Court held that since under the Travancore Law the loss could be carried forward for two years only and those two years ended be- fore the previous years for which the Indian Income Tax Act began to apply, the benefit of the period of six years under the Indian Income Tax Act would not be available. The case is clearly distinguishable.

In the result, the appeal fails and is dismissed.

P.B.R. Appeal dismissed.


CASE NO.: Appeal (civil) 10014 of 1995 PETITIONER: <ORG> Vs. RESPONDENT: <ORG> LIMITED DATE OF JUDGMENT: 21/02/2001 BENCH: S. Rajendra Babu & <NAME>. JUDGMENT:

J U D G M E N T RAJENDRA BABU, J. :

L...I...T.......T.......T.......T.......T.......T.......T..J An agreement was entered into between the appellant and the respondent for supply of electrical energy and by virtue of clause 1 of the agreement, the supply of electrical energy shall be in form of a three-phase alternating current at a pressure of approximately 400 Volts between phases, a frequency of approximately 80 cycles per second and a power not exceeding 744.12 KVA and the supply shall be available continuously during the 24 hours of each day and throughout the whole period of this agreement, provided always that the supplier shall not be responsible for damages or otherwise on account of accidental interruption of supply or stoppage or deficiency of energy caused by any order or direction issued by <ORG> or resulting from fire, flood, tempest or any accident or from any strike or lock out of workman or from any other cause beyond the control of the supplier, but the supplier shall make every effort to restore the supply as soon as possible. On the ground that disputes arose between the appellant and the respondent, the matter was referred to the arbitration as provided in the agreement. The respondent in the claim statement made various claims for refund of the amounts paid under various bills and for various losses suffered on account of various acts of commission and omission of the appellant, details of which are set out therein. By their written statement the appellant refuted the various claims of the respondent.

On April 6, 1990 the arbitrators made an award for a sum of Rs. 1,74,338.98 by way of refund, while in regard to losses suffered on account of interruption in the power supply as a result of the negligence and acts of omission and commission by the appellant a sum of Rs. 24,00,000 was awarded with interest at 12% with effect from 12.11.1986 up to the date of the award and interest @ 6% per annum from the date of the award till the date of payment. In <ORG> the award was filed. Over-ruling the objections of the appellant, the Civil Judge made a decree in terms of the award against which an appeal was preferred to <ORG> and which appeal having been dismissed, this appeal by special leave is filed.

<NAME>, the learned Senior Advocate appearing for the appellant, submitted that the award made by the arbitrators is not within the scope of the agreement entered into between the parties inasmuch as the claim for damages would arise except in the circumstances arising in the proviso to clause 1 of the terms of agreement, to which we have adverted to at the very outset. Damages would not arise on account of interruptions, stoppage and deficiency caused by (i) accident, or (ii) by any order or direction issued by <ORG>, or (iii) resulting from fire, flood, tempest or any accident or from any strike or lock out of workman or from any other cause beyond the control of the supplier. Thus the principal contention addressed before us is that there is a guarantee of supply of electricity for 24 hours of a day but under the circumstances set out in the proviso supply could be interrupted without liability of paying damages and this aspect was not considered by the arbitrators. When this point was raised before <ORG>, <ORG> noticed the finding of the arbitrators that all log books were not made available and even where they were made available by the appellant were not complete and even did not give any reasons and, where they contained reasons, the same were not tenable. While recording findings in respect of issues Nos. 1 and 2 after assessing the evidence, the arbitrators came to this conclusion. Before us the extracts of the logbooks have been produced and the reasons noted therein, for instance, are Tripping, Shut down, Grid failure, Break down. The respondent wrote to the appellant seeking for clarification regarding the interruption in the power supply and there was no response to such correspondence at all. Taking this circumstance into consideration and after going through the documents produced by the parties, it was noticed by the arbitrators as follows :-

The opposite party failed to produce log books for the period 6.12.1978 to 3.12.1980 and also admitted vide their letter dated 4.7.1987 that these log books were not traceable. In these circumstances we are of the opinion that had the opposite party filed the said log books it would have gone against them. The opposite party has not filed the best evidence available. Besides, the log books which the opposite party produced, did not give any reasons or where reasons were given, they were untenable.

<NAME> very strenuously contended that the relevant documents have been placed before the arbitrators and stated that except in regard to one station for some period, rest of the documents of the log books had been made available. However, as noticed by us, there were reasons set out in the log books or, as noticed earlier, those reasons, in the opinion of the arbitrators, were either not relevant or where they were relevant, they were untenable. Therefore, the view taken by the arbitrators cannot be characterised as not emanating from the agreement and falls squarely within the excepted part of the proviso to clause 1 of the agreement. When the arbitrators have applied their mind to the pleadings, the evidence adduced before them and the terms of the contract, we do not think, it is within our scope to re-appraise the matter as if this were an appeal, and it is clear that where two views are possible in this case there is no such scope the view taken by the arbitrators would prevail.

<NAME> further pointed out that the interruptions in the power supply, if any, were on account of the Uttar Pradesh Electricity (Regulation of Supply Distribution, Consumption and Use) Order issued from time to time and, therefore, if there is any power cut effect at any time or staggering of the power supply, it was the result of such order which falls within the scope of the proviso to clause 1 of the agreement. Clause 6 of the Order, which regulated the supply, reads as follows :-

6. (i) In respect of electrical energy consumer by all large and heavy power industrial consumers receiving power at 33 KV and above from <ORG>, a cut of 33-1/3 per cent in their highest maximum demand recorded in any month during the twelve months from August, 1978 to July, 1979 shall be exercised :

Provided that where any such industrial consumer has his own source of generation of energy which alone enables him to obtain 66-2/3 per cent or more of his aforesaid highest maximum demand then a cut of 100 per cent in the power supplied by the <ORG> shall be exercised.

(ii) All Arc Furnaces, Induction Furnaces, Rolling and Re-Rolling mills receiving power below 33 KV from <ORG> shall use energy for 10 hours only every day during such hours as may be specified by the <ORG> from time to time anything contained in Clause 8(a) notwithstanding.

(iii) All other continuous process industrial power consumers (listed in Annexure 2) as well as Textile Mills and non-continuous industrial power consumers having loads above 110 BHP/100KVA/75 KW billed on large and heavy power tariffs receiving power from <ORG> shall exercise 33.1/3 per cent cut in their highest maximum demand recorded in any month during the twelve months from August, 1978 to July, 1979:

Provided that any such consumer or Mill may for reasons of technical difficulty instead of observing the aforesaid cut avail supply for such 20 days in a month as may be determined with the approval of the Executive Engineer concerned and may observe block closure during the remaining days of the month so, however, that consumption up to 5 per cent of such highest maximum demand shall be allowed during the block closure to meet the requirements of light, fan, tube-well and repair workshops."

The log books should have indicated or other materials should have been placed before the arbitrators to indicate that the heavy power tariffs received from <ORG> should exercise 33.1/3 per cent cut in the highest maximum demand recorded in any month during the 12 months from August 1978 to July 1979 and the manner in which the same should be regulated. Whether that amount of electricity was supplied to the respondent or not is also not clear from the records. In the absence of such material placed before the arbitrators, we cannot embark upon an investigation on the basis of this order of the U.P. Government.

Therefore, we think, <ORG> is justified in having dismissed the appeal filed by the appellant, and we do not think that there is any justification for us to interfere with the award which was made the decree of the civil court and in appeal affirmed by <ORG>.

The appeal, therefore, stands dismissed. However, in the circumstances of the case, the parties shall bear their respective costs.

..J. @@ IIIIIIIIIIIIIIIIII [ S. RAJENDRA BABU ] .J. @@ IIIIIIIIIIIIIIIII [ S. N. PHUKAN ] FEBRUARY 21, 2001.


PETITIONER: STATE OF U.P. Vs. RESPONDENT: RAM CHANDRA TRIVEDI DATE OF JUDGMENT01/09/1976 BENCH: <NAME>, JASWANT BENCH: <NAME>, JASWANT KHANNA, HANS RAJ SARKARIA, RANJIT <NAME> CITATION: 1976 AIR 2547 1977 SCR (1) 462 1976 SCC (4) 52 CITATOR INFO : RF 1979 SC 429 (11) R 1979 SC 684 (7) F 1980 SC 42 (12,19) RF 1980 SC1242 (11) R 1984 SC 636 (11) R 1987 SC1531 (46) R 1987 SC2408 (9) F 1989 SC1335 (33) ACT: Pracctice--Duty of <ORG> when there is conflict between decisions of <ORG>--Upsetting concurrent findings of fact in second appeal-Propriety. Constitution of India, 1950 Art. 311-- Termination of services of temporary servant--Protection of article when applicable. HEADNOTE: The respondent was appointed as a temporary clerk in an engineering division of the <ORG>. The attempt of another clerk to impersonate and appear for him in a depart- mental examination was detected. The Executive Engineer obtained explanations from both the clerks and reported the matter to the Superintending Engineer, who brought the matter to the notice of the ChiefEngineer. The Chief Engi- neer wrote to the Superintending Engineer to award suitable punishment. The Superintending Engineer passed the order that the respondent a "temporary clerk is hereby served with one month's notice to the effect that his services shall not be required after one month from the date of receipt of this notice." The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art 311 of the constitution;. and since the provisions of the Article had not been complied had not been complied with the order was void. <ORG> and <ORG> dismissed the suit. But the <ORG> went,through the official correspondence preceding the passing of the impugned order, and observing that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer, allowed the second appeal. Allowing the appeal to this <ORG>, HELD :(1) It is no longer open to any one to urge that the constitutional position in regard to cases of the present nature is not clear. An examination of the deci- sions of this <ORG> shows that there is no real conflict in their ratio decidendi. Even if there is a conflict, the proper course for a <ORG> is to find out and follow the opinion expressed by larger benches of this <ORG> in preference to those expressed by smaller benches of this <ORG>. This practice is followed by those <ORG> itself and has hardened into a rule of law. [475B- <CITATION> ,  1 S.C.R. 87, followed. <CITATION>  2 .S.C.R. 335: (1974) 1 S.C.C. 218, <CITATION> A.I.R. 1975 S.C. 1096, <CITATION>  S.C.R. 655, <CITATION> .  1 S.C.R. 26, <CITATION>  S.C.R. 828, Gopi Kishore Prasad v. Union of India AIR. 1960 S.C. 689, <CITATION>  1 S.C.R. 606, <CITATION>  3 S.C.R. 716, <CITATION>  2 SC.R. 135, <CITATION>  3 S.C.R. 190, <CITATION> A.I.R. 1964 S.C. 449, <CITATION>  3 S.C.R; 234, Union Of India 463 & Ors. v.R.S. Dhaba  3 S.C.C. 603, <CITATION>  2 S.C.R. 191. <CITATION> .  3 S.C.R. 754, <CITATION>  1 S.C. R. 814 and <CITATION>  3 S.C.R. 540 referred to. (2) Before it is held that an order terminating the services of a <ORG> servant amounts to punishment the <ORG> must hold that either of the two tests,namely, (a) that the servant had a right to the post or (b) that he had been visited with evil consequences such as forfeiture of pay etc., is satisfied. Therefore, an order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract Art. 311. Where a departmental enquiry is contem- plated but an enquiry is not in fact proceeded with, Art. 311 will not be attracted unless it can be shown that the order, though. unexceptionable in form, is made following a report based on misconduct. Even though misconduct, negli- gence, inefficiency or other disqualification may be the motive for the order of termination, if a right exists under the contract or the rules to terminate his services, then Art. 311(2) is not attracted unless the misconduct or negli- gence is the very foundation of the order. Where there are no express words in the impugned order itself' which throw a stigma on the <ORG> servant, the <ORG> would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research. [469 A-B; 473 C; 471 H; 475 <CITATION>  S.C.R. 828, <CITATION> .  3 S.C.R. 754, Shamsher Singh & Ant. v. <ORG> of Punjab  1 S.C.R. 814 and 1. <CITATION>  2 S.C.R. 496 followed. (3) The respondent was a temporary hand and had no right to the post. Under the contract of service and the service rules applicable to him the <ORG> had the right to terminate his services by giving him one month's notice. The order ex-facie is an order of termination of service sim- pliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. Therefore, the respondent could not invite the <ORG> to go into the motive behind the order and claim the protection of Art. 311(2) of the Constitution. [475 D- E] (4) The <ORG> failed to appreciate the true legal .and constitutional position and upset the concurrent findings of fact arrived at by the <ORG>s below, ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous findings of fact, however, gross the error might seem to be. [475 <CITATION> .  1 S.C.R. 271. <CITATION> .  2 S.C.R. 509, <CITATION>  3 S.C.R. 604 and Madamanchi Ramappa & ..Anr. v. <NAME>  2 S.C.R. 673, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 258/76. Appeal by Special Leave from the Judgment and Order dated 3-1-75 of <ORG> in Second Appeal No. 2261/66.

<NAME> and <NAME>, for the Appellant. <NAME> and <NAME>, for the Respondent. The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against the judgment and decree dated January 3, 1975, of <ORG> at Allahabad setting aside the judgment and decree dated July 27, 1965, of the Second Additional Civil Judge, Jhansi, whereby the latter affirmed the judg- ment and decree of the trial Court dismissing the respond- ent's suit for declaration that order dated November 29, 1961, passed by <ORG>, Jhansi, U.P. terminating the services of the respondent was void and ineffective in law and he was entitled to recover a sum of Rs. 2147/-as arrears of pay and dearness allowance from the appellant. The facts leading to this appeal are: The respondent herein was appointed as a temporary clerk in Gur Sarain Canal Division, Jhansi. on May 16, 1954. Seven years later, he was required to appear in a departmental examination which was held in July, 1961. On July 12. 1961, an optional typewriting test was held by the Department.In that test the Executive Engineer, <ORG>, Jhansi, it is alleged, detected <NAME>, a clerk of <ORG>, attempting to personate and appear for the respondent. He obtained the explanation of both the clerks and reported the matter to the Superintend- ing Engineer of his Division. Considering the explanations tendered by the clerks to be unsatisfactory, the Superin- tending Engineer brought the matter to the notice of the Chief Engineer, <ORG>, Lucknow. The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks. The Superintending Engineer thereafter issued orders terminating the services of both the clerks. The order that was passed in respect of and served on the respondent ran as follows :-

"No. E-70/IV/259 Dated Jhansi, November 29, 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi, Temporary Routine Grade Clerk is hereby served with one month's notice to the effect that his services shall not be required after one month from the date of receipt of this Notice.

sd/- S.P. Sahni, Superintending Engineer."

The respondent attempted to have the above order re- scinded by making representations to the Chief Engineer, and the Minister of Irrigation, U.P. which proved abortive. The respondent thereupon challenged the aforesaid order of termination of his services by instituting the aforesaid suit averring inter alia that the order not being an order of termination of his service simpliciter but being one passed by way of punishment, attracted the applicability of Article 311 of the Constitution which not having been com- plied with rendered the order void and ineffective, in law. The suit was resisted by the appellant on the ground that the respondent was only a temporary hand; that under the contract of service as also the rules applicable to tempo- rary Government servants, the respondent was liable to be discharged any time even though an enquiry in respect of a charge of misconduct might have been insti-

tuted against him; and that the impugned order not having been passed a measure of punishment but being a simple order of termination of the respondent's services without casting any stigma on him or visiting him with evil conse- quences, was valid both under the aforesaid rules and the contract of service. The grounds of attack made against the impugned order did not find favour with the trial Court which dismissed the suit. Aggrieved by the judgment and decree of the trial Court, the respondont took the matter in appeal to the Second Additional Civil Judge, <NAME>, who affirmed the judgment and decree of the trial Court. Both the Courts found that the impugned order was valid in law as it was a simple order of termination of service and not having been passed by way of punishment, it did not attract the provisions of Article 311 (2) of the Constitu- tion. Dissatisfied with these judgments, the respondent preferred a second appeal to <ORG>, which as already stated was allowed by a learned Single Judge of that Court.

While oversetting the concurrent findings of fact ar- rived at by the courts below and decreeing the respondent's aforesaid suit, the learned single Judge went through the official correspondence preceding the passing of the im- pugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punish- ment on the basis of the enquire proceedings and as a result of the recommendation made by the Executive Engineer fol- lowed by the direction issued by the Chief Engineer that the respondent should be suitably punished. It is against this judgment and decree that the present appeal has been pre- ferred by the State of U.P.

Mr. <NAME>, learned counsel appearing on behalf of the appellant, has urged that <ORG> acted illegally in reversing the concurrent findings of fact arrived at by the courts below and quashing the impugned order which was a simple order of termination of the respondent's services and had been validly passed in accordance with the rules relat- ing to temporary <ORG> servants and the contract of service. He has further contended that the learned Single Judge could not probe into the departmental files to support his finding that the impugned order was passed against the respondent by way of punishment. He has. in support of his submissions, relied upon a number of decisions of this Court.

As against this, it has been vehemently urged by Mr. <NAME>, learned counsel for the respondent, that the constitutional position in regard to orders of the impugned nature is not well settled in view of the conflicting decisions of this Court particularly in view of the observations made in <CITATION> (1) and <CITATION> (2), Mr. <NAME> has further contended that the circumstances attending the issue of the impugned order clearly establish that it was passed by way of punish- ment.

It would, in our opinion, be appropriate at the outset to refer to the I decisions of this Court which have an important bearing on the instant (1) [1974] 2 S.C.R. 335 =[1974] 1 S.C.C. 218. (2) A.I.R 1975 S.C. 1096.

case and to dispel the doubts sought to be created by Mr. <NAME> with regard to the constitutional position in relation to the applicability of Article 311 (2) of the Constitution, resulting from the said decisions.

<CITATION> (1), it was held by this Court that any and every termination of service does not amount to dismissal or removal and a termination of service brought about by exercise of a contractual right is not per se dismissal or removal. On the same reasoning, this Court laid down in <CITATION> .(2) that the termination of service by compulsory retirement in terms of specific rule regulating the conditions of service is not tantamount to the infliction of punishment and does not attract Article 311(2).

<CITATION> (3) which is regarded as the Magna Carta of the Indian Civil Servant Das, C.J. speaking for the majority made the following illuminat- ing observations :--

"Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punish- ment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a <ORG> servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Art. 311 (2 ), will apply to those cases where the <ORG> servant, had he been employed by a private employ- er, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the <ORG> has, by contract, express or implied, or, under the rules,the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provi- sions of Art. 311.

It does not, however, follow that, except in the three cases mentioned above. in all other cases. termination of (1) [1953] S.C..R.. 655.

(2) [1955]1 S.C..R. 26.

(3) S..C..R. 828.

service of a <ORG> servant who has no right to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi-permanent status, the termina- tion cannot, in any circumstance, be dismissal or removal from service by way of punishment' Cases may arise where the <ORG> may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on an offciating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the <ORG>. Again if the servant was appointed to a post, permanent or tempo- rary, on the express condition or term that the employment would be terminable on say a month's notice as in the case of <CITATION> (supra), then the <ORG> might at any time serve the requisite notice. In both cases the <ORG> may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the <ORG> will take this course. But the <ORG> may take the view that a simple termination of service is not enough and that the conduct of the servant. has been such that he deserves a punishment entailing penal consequences. In such a case the <ORG> may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Art. 311 (2). The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in <CITATION> (supra). Likewise the termination of service by compulsory retire- ment in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punish- ment and does not attract Art. 311 (2 ), as has also been held by this Court in <CITATION> (supra). In either of the two above mentioned cases the termination of the service did not carry with it the panel consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the <ORG> to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to termi- ate the service the motive operative on the mind of the <ORG> is, as <NAME> has said in <CITATION> (1) wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract of the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the <ORG> has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punish- ment of dismissal or removal or reduction in rank, the <ORG> may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with. As already stated if the Servant has got a right to continue in the post then, unless the contract of employment or the rules provide to the contrary, his services cannot be termi- nated otherwise than for misconduct, negligence, ineffi- ciency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311 , for it operates a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the <ORG> servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he, will then lose the emoluments and privi- leges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the <ORG> has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a tower post or rank cannot in any circum- stances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the <ORG> had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the <ORG> has terminated the employment as and by way (1) A.I.R. 1956 Bom. 455.

of penalty. The use of the expression 'terminate' or 'discharge' is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1 ) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as. a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311 , which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."

In <NAME> v. Union of India(1), it was held by this Court that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment, but if instead of taking the easy course, the Government chose the more difficult one of holding an enquiry into his alleged miscon- duct and branded him as a dishonest and incompetent officer, it would attract Article 311 (2) of the Constitution. In The State (2) <CITATION> (2) where July 28, 1954, a notice was served on the respondent who was appointed as a Sub-Inspector on probation in <ORG> in the year 1950 to show cause why he should not be discharged from service for gross neglect of duties and unsatisfactory work and where the explanation tendered by him was considered to be unsatisfactory by the Deputy Inspector-General of Police who passed an order discharging the respondent from service for unsatisfactory work and conduct and where the respondent contended that the order was invalid on two grounds: (i) that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of Article 311 (2 ), and (ii) that he was not afforded an opportunity to be heard nor was any evidence taken on the charge, it was held that the order of discharge did not amount to dismissal and did not attract the protection of Article 311 (2) of the Constitution as the respondent was a probationer and had no right to the post held by him and his services were terminated in accordance with the rules which permitted his being discharged at any time during the period of probation.

The case of <CITATION> (3) where the order terminating the employment of the appellant who was a temporary Government servant was qashed on the ground that it was in the nature of an order of punishment which had been passed without complying with the provisions of Article 311 (2) of the Constitution is clearly distinguishable. In that case, the order of termination of the (1) A.I.R. 1960 S.C. 689.

(2) [1961] 1 S.C.R. 606.

(3) [1963] 3 S.C.R. 716.

appellant's service which was preceded by an enquiry into his alleged misconduct was based on the finding of miscon- duct which amounted to casting a stigma affecting his future career.

<CITATION> (1) where the appellant was appointed as a probationer for one year (which was extended from time to time) on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally in- formed that the explanation given by him was not satisfacto- ry and his services would stand terminated on a specified date, it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311.  <CITATION> (2) where the appellant, whose appointment being temporary, was liable to be terminated on one month's notice on either side was informed without assigning any cause after the expiry of about five years that his services would be terminated with effect from a specified date but before the termina- tion, he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him and certain preliminary enquiries were also held against him in which he was not heard, but no regular departmental enquiry followed and the proceedings were dropped, it was held by this Court after considering the cases of <NAME> v. Union of India (supra), <CITATION> (supra). <CITATION> (supra) and <CITATION> (3) that such a regular departmental enquiry though contemplated was not held against the appellant and no punitive action was taken against him, there-was no question of the case being gov- erned by Article 311(2) or the Constitution. It was fur- ther held in that case that it is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishment'; that the Government servant gets the protection of Article

311. <CITATION> (4) where the Punjab Government reverted the respondent from his officiating appointment in <ORG> (Executive Branch) to his substantive post in <ORG> after issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with, it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment. In that case, Mitter, J. who spoke for the Bench laid down the following propositions :--

(1) [1964] 2 S.C.R. 135.

(2) [1964] 5 S.C.R. 190.

(3) A.I R. 1964 S.C. 449.

(4) [1968] 3 S.C.R. 234.

"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without any- thing more would not attract the operation of Art. 311 of the Constitution.

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

4. An order of termination of service in unex- ceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution.

5. If there be a fulI-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, and order of termina- tion of service made thereafter will attract the operation of the said Article."

The principles laid down in <NAME> case (supra), <NAME> case (supra), and <NAME> case (supra) were reiterated by this Court in <CITATION> (1). <CITATION> (2) and <CITATION> .(3) where it was laid down that the test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive to its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the over- riding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In <NAME> v. <ORG> (3) to which one of us (brother <NAME>, J.) was a party, it was made clear in unambiguous terms that it may be taken to be well settled that even though misconduct, negligence, ineffi- ciency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under (1)  3 S.C.R. 603.

(2) [1971] 2 S.C.R. 191.

(3) [1974] 3 S.C.R. 754.

<NAME>

the contract or the rules to terminate the services the motive operating on the mind of the Governments is wholly immaterial. The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity. The decision of this Court in <CITATION> (supra) where the order of the re- spondent's reversion held to have been passed by way of punishment to which our attention has been drawn by Mr. <NAME> and which has led to a certain amount of misunderstanding turned upon a clear statement made before <ORG> by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll.

The constitutional position has now been made crystal clear by a Bench of seven Judges of this Court in <CITATION> (1) where the learned Chief Justice after an exhaustive review of the decisions of this Court observed :--

"No abstract preposition can be laid down that where the services of a probationer are termi- nated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or ineffi- ciency or for similar reason without a proper enquiry and without his getting a reasonable oppor- tunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Con- stitution.

Before a probationer is confirmed the author- ity concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclu- sion that on account of inadequacy for the job or for any temperamental or other object not involv- ing moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inef- ficiency or corruption, and if his services are terminated without following the provisions of Article 311 (2) he can claim protection ..... (1)  1 S.C.R. 814.

The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment ...... A proba- tioner whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2).

An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unex- ceptionable in form is made following a report based on misconduct."

The <ORG> judgment of this Court in <NAME> case (supra) on which strong reliance has been placed by Mr. <NAME> is also clearly distinguishable and no help can be derived therefrom by the respondent. In that case, both the trial Court and the first appellant Court had come to a concurrent finding of fact that the impugned order of termination was by way of punishment. It would also be seen that in that case on a representation being made by the respondent to the then Chief Minister of the <ORG>, the latter after consideration of the matter had ordered that in view of the respondent's previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports and that the respondent should continue in service and his case should be reviewed after he earned another report from <ORG> for the year 1964-65".

In a recent decision of this Court in <CITATION> (1) to which one of us was a party, <NAME> case (supra) which is the sheet anchor of Mr. <NAME>'s contention was also adverted to and it was explained therein that that case did not depart from earlier decisions on applicability of Article 311 (2) or Article 16 of the Constitution. The following observations made in <NAME> case (supra) should suffice to clear the doubts that may still be lurking in some quarters as to the ratio decidendi of <NAME> case (supra) :--

"We think that the principles involved in applying Article 311(2) having been sufficiently explained in <NAME> case (supra) it should no longer be possible to urge that <NAME> case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the differing cir- cumstances and facts of various cases which (1)  3 S.C.R. 540.

have come up to this Court could create the impres- sion sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and cir- cumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One addition- al or different fact can make a world of differ- ence between conclusions in two cases even when the same principles are applied in each case to simi- lar facts. This Court's judgment in <NAME> case (supra) shows that it was only following the law on Article 311(2) of the Constitution as laid down repeatedly earlier by this Court. It specif- ically referred to the following cases: <CITATION> (supra); <CITATION> (supra); <CITATION> (supra); R.C. Lucy v. <ORG> of Bihar(1) <CITATION> (supra);A. G. Benjamin v. Union 01 India(2); <CITATION> . of Madhya Pradesh(3); <CITATION> (4); <CITATION> (5); <CITATION> (6); <CITATION> (7); <CITATION> (8). In <NAME> case (supra), this Court summarised the propositions of law deducible from the cases mentioned above; and, while considering the ap- plicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against <NAME> did not appear to be punitive. Nevertheless, on a total consideration of all the facts, including the admission in <ORG> before <NAME>, C.J. by the Standing Counsel appearing on behalf of the <ORG>, that the reversion order could not be ex- plained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the <CITATION> (supra), where this Court had affirmed the opinion of <ORG>, on facts, that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him.

On this view of the case, it was not really necessary for this <ORG> to consider whether the reversion of <NAME> was contrary to the provisions of Article 16 also.

C.A. No. 590 of 1962 decided on 23-10-1963 . (2) [1967] 1 S.C.R. 718.

(3) [1970] 1 S.C.R. 472.

(4) [1972] 2 S .C.R. 660.

(5) [1966] 3 S.C.R. 106.

(6) A.I.R.1958 s.c. 905.

(7) [19621 1 S.C.R. 886.

(8) [1962] Supp. 2 SC.R. 92.

We do not think that <NAME> case (supra) in any way, conflicts with what has been laid down by this <ORG> previously on Article 311(2) of the Constitution or Article 16 of the Constitution."

Thus on a conspectus of the decisions of this <ORG> referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the consti- tutional position emerging from the decisions of this <ORG> in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where <ORG> finds any conflict between the views expressed by larger and smaller benches of this <ORG>, it cannot disregard or skirt the views expressed by the larger bench- es. The proper course for <ORG> in such a case, as observed by this <ORG> in <CITATION> (1) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this <ORG> in preference to those expressed by smaller benches of the <ORG> which practice, hardened as it has into a rule of law is followed by this <ORG> itself. Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the respondent, the <ORG> had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the <ORG> to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution.

We, therefore, agree with the submission made on behalf of the appellant that <ORG> was in error in arriv- ing at the finding that the impugned order was passed by way of punishment by probing into the departmental correspond- ence that passed between the superiors of the respondent overlooking the observations made by this Court in <CITATION> (2) that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat flies to discover whether some kind of stigma could be inferred on such research. We also find ourselves in agreement with the contention advanced on behalf of the appellant that <ORG> failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the <ORG> below that the impugned order was not by way of punishment ignoring the well settled principle of law that a second appeal cannot be. entertained on the ground of erroneous finding of fact, however gross the error might seem to be. (See Paras (1)  1 S.C.R. 87.

C2) [1967] 2 S.C.R. 496.

<CITATION> .(1); <CITATION> . (2); <CITATION> (3) and Madamanchi Ramappa & Anr. v. Muthaluru Bojappa(4).

For the foregoing reasons, the contentions of Mr. <NAME> are upheld and those of Mr. <NAME> are repelled. In the result, we allow the appeal, set aside the judg- ment and, decree of <ORG>, restore the judgments and decrees of the <ORG> below and dismiss the respond- ent's suit. In the circumstances of the case, the parties are, however, left to pay and bear their own costs of this appeal.

V.P.S. Appeal allowed. (1) [1960] 1 S.C.R. 271. (2) [1962] 2 S.C.R. 509. (3) [1963] 3 S.C.R. 604.