CASE NO.: Appeal (civil) 2083 of 2002 PETITIONER: STATE OF U.P. AND OTHERS Vs. RESPONDENT: VIJAY KUMAR JAIN DATE OF JUDGMENT: 14/03/2002 BENCH: V.N. Khare & <NAME> JUDGMENT:

[with C. A. No. 2085/2002 (@ S.L.P (Civil) No. 8975/2001] J U D G M E N T V. N. KHARE, J.

Leave granted.

The respondent herein was, on 18.10.1972, initially appointed as an Assistant Engineer in an ad-hoc capacity in <ORG>. Subsequently, in the year 1979, the respondent's services were regularised and he was also confirmed on the post of Assistant Engineer. The respondent was promoted to the post of Executive Engineer w.e.f. 23.11.1980 by a Government Order on the basis of seniority-cum-merit. <ORG> set up by the U.P. <ORG>. after considering the respondent's service record and entries available in the character roll recommended that he should be retired compulsorily. Under Government Order, <ORG> or the <ORG> government while considering a case of compulsory retirement, is required to take into account the service record and entries in the character roll for last ten years prior to the order of compulsory retirement. The government accepted the said recommendation of <ORG> and passed an order dated 22.2.1999 compulsorily retiring the respondent from service. <ORG> while recommending the compulsory retirement of the respondent and the <ORG> government while accepting the said recommendation took into consideration four adverse materials found in the character roll of the respondent, which are as under :

1) The order dated 8.2.94 whereby the government directed for recovery of a sum of Rs. 79,994 from the salary of the respondent and also stoppage of increment in the pay scale of Executive Engineer and awarding censure entry in his character roll for the year 1993-94.

2) The order dated 16.10.86 whereby an warning was given to the respondent for his conduct in exercise of his duties.

3) An order dated 20.3.83 whereby another censure entry was ordered to be recorded in the character roll of the respondent.

4) An order dated 13.6.97 whereby the integrity of the respondent was not certified for committing serious irregularities in the work at Lucknow in the year 1983-

84. By the said order the respondent was also awarded a censure entry for the year 1997-98.

The respondent herein filed a writ petition before <ORG> at Allahabad challenging the order dated 22.2.1999 compulsorily retiring him from service. The respondent also filed a second writ petition before <ORG> challenging the order dated 8.2.1994 whereby the government directed for recovery of Rs. 74,994/- from the salary of the respondent and also for ordering stoppage of increment in the pay scale of Executive Engineer and awarding of censure entry in his character roll in the year 1993-94. The respondent also filed a claim petition before <ORG>, challenging the order dated 13.6.1997 whereby the <ORG> government declined to certify his integrity. While the aforesaid writ petitions were pending, <ORG> disposed of the said claim petition by ordering that the entry in respect of withholding of integrity for the year 1997-98 awarded by an order dated 13.6.1997 since related to the period 1983-84, said entry is shifted to the year 1983-84.

<ORG> first took up the writ petition which was directed against the order dated 8.2.1994 and set aside the order impugned in the writ petition on the ground that the respondent was not responsible for any loss caused to the government in the purchase of the materials for the department. After setting aside the order dated 8.2.1994, <ORG> took up the writ petition which related to compulsory retirement of the respondent from service. <ORG> was of the view that so far as the recovery of money, stoppage of increment and censure entry for the year 1993-94 are concerned, the same having been set aside in connected writ petition, the said adverse materials are rendered non-existent and the same could not have formed basis of passing of the order compulsorily retiring the respondent. Therefore, <ORG> excluded the said adverse materials while testing the validity of the order of compulsorily retiring the respondent. <ORG> was of the further view that since the order dated 16.10.1986 administering warning to the respondent was not communicated to the respondent and, further, the said warning related to a period beyond ten years prior to the date of order of compulsory retirement, the said entry could not be legally made basis for compulsorily retiring the respondent, especially when the said warning was not communicated to the respondent and also in view of the government order dated 29.7.89 whereunder it has been provided that administering of warning to a delinquent officer shall not form part of the character roll and it is only to be placed in the Personal File of such a delinquent officer. In this way, <ORG> excluded the second and third adverse materials which the government took into account while forming its opinion to compulsorily retire the respondent.

<ORG> coming to the fourth adverse material contained in the government order dated 13.6.1997 whereby the integrity of the respondent was withheld, was of the view that since the said entry was modified by <ORG> to the extent that it would relate to the year 1983-84, the said entry being for a period beyond ten years preceding to the date of passing of order of compulsory retirement has to be excluded from zone of consideration for forming opinion to compulsorily retire the respondent. By the aforesaid process of elimination of adverse entries, <ORG> found that there was no foundation or basis available to the government to form an opinion to compulsorily retire the respondent. In that view of the matter, <ORG> set aside the order of compulsory retirement of the respondent, being arbitrary and allowed the writ petition. It is against the aforesaid judgment of <ORG> the State of U.P. has preferred these appeals by way of special leave petitions.

We took up Civil Appeal No../2002 (arising out of S.L.P (Civil) 8738/2001) first which arises out of the judgment of <ORG> whereby the order compulsorily retiring the respondent from service was set aside.

Learned counsel for the appellant urged that, under law relating to compulsory retirement, the State government is entitled to take into account the entire service record, preference being given to the later entries while considering whether an officer is required to be retained in the service after he attains the age of 50 years or has put in qualifying service and the view taken by <ORG> that entries only for the period of ten years immediately prior to the date of order of compulsory retirement could only be looked into is patently erroneous. However, learned counsel appearing for the respondent supported the judgment of <ORG> and contended that the entries falling only within ten years of the order of compulsory retirement can only be looked into while exercising power of compulsory retirement and any consideration of adverse material beyond ten years from the date of order of compulsory retirement would vitiate the order of compulsory retirement.

It is true that as per government order, the service record or confidential reports for ten years prior to passing of order of compulsory retirement are ordinarily required to be seen for taking a decision to compulsorily retire a government servant. It appears that <ORG> on the said premise held that entries in the character roll being beyond ten years of passing of the order of compulsory retirement, the order passed by the <ORG> government compulsorily retiring the respondent was arbitrary. Assuming that the view taken by <ORG> that entries in the character roll of a government servant only for ten years can be seen for passing of an order of compulsory retirement is correct which according to us is not a correct view of law, the question arises whether the Government Order dated 13.6.1997 whereby the integrity of the respondent was withheld, merely being relatable to the year 1983-84 would render the order of compulsory retirement as arbitrary. Admittedly, the order withholding of integrity was passed in the year 1997 which was well within ten years of passing of the order of compulsory retirement. But the said entry in the character roll was shifted from the year 1997-98 to 1983-84 by the order of <ORG>. It is not disputed that the aforesaid entry in the character roll of the respondent was taken into account by <ORG> while recommending the compulsory retirement of the respondent and the <ORG> government also took into consideration the said entry while passing the order compulsorily retiring the respondent.

Fundamental Rule 56 (in short F.R.) of the U.P. Fundamental Rules provides for compulsory retirement of government servant. FR 56 (c) provides that notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or the government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years. Sub-rule (2) of Rule 56 of the Fundamental Rules reads as under:

"2) that in order to be satisfied whether it will be in the public interest to require a government servant to retire under clause (c) the appointing authority may take into consideration any material relating to the government servant and nothing herein contained shall be construed to exclude from consideration.

(a) any entries relating to any period before such government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad-hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or

(c) any report of <ORG> constituted under the Uttar Pradesh Vigilance Establishment Act, 1965."

The aforesaid rule thus empowers <ORG> to retire any government servant on completion of fifty years of age or on completion of qualifying service.

Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a government servant under FR 56 (c). <CITATION> . (1955) 1 SCR 26, it was held that an order of compulsory retirement is neither a punishment nor any stigma attached to it and it was held therein as thus:

"There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence of Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity."

<CITATION> , 1971 (1) SCR 791, it was held that an employee compulsorily retired does not lose any right acquired by him before retirement and that the said rule is not intended for taking any penal action against the government servant and that the order retiring a government servant compulsorily can only be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground is available to a government servant who is sought to be compulsorily retired from service under the relevant rules subject to the conditions provided therein.

Coming to the main question whether entries beyond ten years of the service record from the date of compulsory retirement could have been taken into account by the government while retiring a government servant under FR 56 (c) of the Rules, it is necessary to refer some of the decisions of this <ORG>.

<CITATION> 1992 (2) SCC 299, this Court laid down certain principles which are as under:

"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While <ORG> or this <ORG> would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or

(b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or <ORG>, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."

<CITATION> 1998 (4) SCC 92, it was held thus:

"Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well."

The aforesaid decisions unmistakably lay down that the entire service record of a government servant could be considered by the government while exercising the power under FR 56 (c) of the Rules with emphasis on the later entries. FR 56 (c) of the Rules read with sub-rule (2), empowers the <ORG> government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead woods need to be removed to maintain efficiency in the service. Integrity of a government employee is foremost consideration in public service. If a conduct of a government employee becomes unbecoming to the public interest or obstruct the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest. The government's right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to <ORG> or the <ORG> government, as the case may be, to find out whether a government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the government is expected to form its opinion whether an employee is to be compulsorily retired or not.

Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.6.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in <ORG>, <ORG> on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of order of compulsory retirement does not mean that its vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or 12th years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by <ORG> and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the government while considering a case for compulsory retirement of a government servant.

It was not urged before us that the order compulsorily retiring the respondent was mala fide or was not in the public interest, and in the absence of such a case, we do not find any infirmity in the order compulsorily retiring the respondent from service.

For the aforesaid reasons, we find that this appeal deserves to be allowed. The order under challenge is set aside. The appeal is, accordingly, allowed. No costs.

Civil Appeal No. 2085/2002 (@ S.L.P.(Civil) No. 8975/2001) In view of the decision in Civil Appeal No. 2083/2002 (@ S.L.P (Civil) No. 8738/2001), this appeal is rendered infructuous and is, accordingly, dismissed. No costs.

....<NAME>

(V. N. KHARE) ...J.

(<NAME>) 14th March, 2002


JUDGMENT <NAME>, C.J.

1. A preliminary objection has been taken by Mr. <NAME> on behalf of respondent No. 3 that this appeal is not maintainable. In my opinion, the objection ought to prevail.

2. The appeal is against an order of <NAME>, J., dated 19-3-1957, whereby he allowed respondent No. 3, Sm. <NAME>, to amend her written statement in a Partition Suit to which she had been added as a party some time after its institution. The appellant, who is another of the defendants in the Partition Suit, contended before the learned trial Judge that the amendment ought not to be allowed and, having failed with his objection there, has now appealed.

3. The subject-matter of the Partition Suit is the estate left by one <NAME>, who died intestate on 21-10-1926, without leaving any will. He left him surviving five sons, namely, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> as also his widow, Sm. <NAME>. <NAME> died childless and intestate some time in 1930 and <NAME> died intestate in 1939. In 1953, <NAME> filed a suit against his three surviving brothers for partition of the joint estate and set out in a schedule to the plaint the properties which he considered to be joint family properties. In that suit <NAME>, the third of the sons of <NAME>, filed his written statement in August, 1953 and he alleged in paragraph 15 of the written statement that <NAME> had built a honeat No. 74A Bhupendra Bosc Avenue in the be-nami of his wife, but with joint family funds. Some time thereafter, <NAME>, the fourth brother, died and a suitable amendment of the plaint was made. We are informed that, for some reason or other, there was next a general order, permitting parties to file additional written statements. The appellant <NAME> availed himself of that order and filed an additional written statement in February, 1955. In paragraph 8 of that statement, he elaborated what he had already alleged in paragraph 15 of his earlier statement and stated that the house at No. 74 Bhupendra Bose Avenue also appertained to the joint family estate in which Sm, <NAME>, in whose name the house stood, had no beneficial right or interest. Having filed that additional written statement, the appellant applied for the addition of Sm. <NAME> as a party to the suit and by an order made on 18-7-1956, she was added.

4. The written statement of Sm. <NAME> was filed on 21-8-1956. In paragraph 3 of that statement, she claimed the house at 74A Bhupendra Bose Avenue as her <NAME> property, the land according to her, having been acquired and the house built wholly with money belonging to herself. After asserting her title, she added in paragraph 5 that the appellant's claim to the house was barred by the law of limitation and that he had at all material times knowledge of the property having been purchased and owned by her. It appears that after she had filed that written statement, she was advised that the averments made therein ought to be supplemented and, accordingly, she made an application for leave to amend her written statement so as to introduce a case of adverse possession. The amendment she proposed to make was to add a new paragraph, numbered 5(a), containing the statement that since the acquisition of premises No. 74A Bhupendra Bose Avenue, she had been in possession and enjoyment of the property openly, peaceably and as of right with the fullest claim to ownership and title and without any interference by the appellant or by anybody else. A further amendment sought by her was to add to the allegation contained in her original written statement that the appellant's case was barred by the law of limitation, an allegation that it was also barred by adverse possession. Both these amendments were allowed by <NAME>, but the appellant contends that he wrongly allowed them to be made.

5. On behalf of respondent No. 3, Sm. <NAME>, Mr. <NAME> contended before us that, by the order appealed from, no question, touching the merits of the controversy between the parties, had been decided and, therefore, it could not be said that the order amounted to a judgment and was as such appealable. He has called our attention to the decision of <NAME>, J, and myself in the case of <CITATION> ., , and submitted that the present case comes within the general rule laid down in that case and not within the exception then recognised. If, by the order complained of, some question of substance relating to the controversy in suit had been decided, whether directly or indirectly, but, nevertheless, finally, so far as <ORG> was concerned, it might be contended that the order, although an order allowing an amendment of written statement, was a judgment and, therefore, an appeal from it would lie under Clause 15 of the Letters Patent. Mr. <NAME> contended that no such question had been decided by the order appealed from in the present case and, indeed there had been no decision of anything at all and, therefore, it could not possibly be said that the learned Judge had passed a 'judgment'.

6. In my opinion, Mr. <NAME>'s contention is, on the facts of this case, plainly right. Mr. <NAME> attempted to persuade us that the exception mentioned by Mr. <NAME> was not the only exception made by the case on which he was relying, but that the case had also decided that if an amendment affected some right accrued to another party or prejudiced him otherwise, even then, an appeal would lie from the order permitting the amendment. The proposition on which Mr. <NAME> concentrated was a proposition quoted-from an earlier decision of the <ORG> in the case of <CITATION> 45 Cal 305: (AIR 1919 Cal 904) (B), and he relied particularly on the words "or otherwise prejudices him". I need hardly point out that the word 'prejudice' must be read in relation to the context in which it was being used and it cannot certainly be taken to mean that if any embarrassment of any kind was caused by an amendment to another party to the suit, that by itself would be sufficient to make the order permitting the amendment a judgment. What <NAME>, J., was trying to do in the earlier case was to repel the contention that the order, allowing the amendment in that case, was a judgment and what he said had a clear reference to the terms of Clause 15 of the Letters Patent. When he said of the order before him that it did not either affect the rights of the other party or otherwise prejudice him, lie obviously meant that it did not prejudice him in the sense of concluding him with respect to any matter in controversy in the suit, so far as the trial <ORG> was concerned. He was certainly not using the word 'prejudice' in a general or popular sense.

7. Mr. <NAME> contended that the case introduced into the written statement by the amendment was plainly inconsistent with the case originally made and that if it was so, rights of his client were certainly affected by its introduction. In my view, this contention proceeds upon a misconception of what rights are contemplated by the well-known definition of 'judgment'. The right of the appellant to contend in the suit that respondent No. 3 could not possibly succeed on the fresh case sought to be made by her has in no way been affected by the amendment allowed. The controversy between the parties as to whether the appellant's right to the house in question has or has not been extinguished by adverse possession remains to be decided in the suit and has in no way been decided. Mr. <NAME> contended that while that was so, his client was concluded by the learned Judge's order at least to the extent that it would no longer be open to him to contend that respondent No. 3 should not be allowed to plead an inconsistent case and, therefore, in so far as he was now being prevented from holding respondent No. 3 to her original case, his right to fight respondent No. 3 on the single issue raised by her original written statement was being prejudiced. I cannot assent to that contention. When the definition of 'judgment' speaks of a decision of a question touching the merits of the controversy between the parties, it means controversy regarding the rights to the subject-matter of the suit or matter and not controversy about the grounds upon which such rights are asserted or denied. As I pointed out in my judgment cited today by Mr. <NAME>, in the case of a plaint, it was always thought that if an amendment merely allowed the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief, an order permitting such an amendment decided nothing and affected no rights, because the right of the plaintiff's adversaries to contest his claim on the new cause of action or to deny his right to the new relief or to challenge the new ground on which the relief was being asked. was in no way curtailed or affected or abridged. What the order decides in such a case is that the plaintiff will be allowed to make these claims and not that the claims were being rightly made; and, similarly, even when an amendment of a written statement introduces a new defence, an order permitting the amendment merely decides that the particular defendant shall he allowed to set up that plea, but not that the plea is well-founded. As has been said, in such cases, the order permitting the amendment is merely an order regulating the procedure of the <ORG> regarding the manner in which the parties will state their cases to it and, therefore, their substantive rights are in no way affected by such an order. If the substantive rights, which are the rights in controversy between the parties in the suit or cause or matter, an: not affected by an order permitting an amendment, such an order cannot amount to a judgment and. therefore, cannot be appealable. The case in 60 CWN 840 (A) was a very special case, because there the plaintiff, who had brought his suit against a firm, was trying to bring in a company in the place of the firm at a date when no suit against the company would be brought and he was trying to make the change by an amendment of the plaint so that the amendment, if allowed, would refer back to the date of the suit and the bar of limitation would thereby be avoided. An order for an amendment would clearly affect the rights accrued to the company by efflux- of time. The order before us, however, is very different in character. In my view, the order in the present case only permits respondent No. 3 to make the case which she was seeking to make by her amendment and except that respondent No. 3 will be entitled on the strength of that order to try to prove that plea, it has no further : effect on any rights of anybody. In that view of the order, I do not consider it necessary to examine the 'further contention of Mr. <NAME> that no new case had been sought to be introduced by the amendment at all, but only what had been implicit in the original written statement was being sought to be made explicit.

7a. For the reasons given above, the preliminary objection ought to succeed and this appeal is, in my view, not maintainable. It is, accordingly, dismissed with costs to respondent No. 3.

8. Certified for two Counsel.

9. The order of stay of further proceedings in the suit shall stand automatically vacated.

<NAME>, J.

10. I agree.


JUDGMENT <NAME>, C.J.

1. The order of <ORG> is canvassed in this revision case.

2. The petitioner who grows casuarina. appears to have cut the trees into short pieces for purposes of transporting them to places where they could be sold. He claimed exemption in respect of the sale of this casuarina on the basis of the proviso to Section 2(i) of the Madras General Sales Tax Act (the statute that governs the present case). This request of the petitioner was negatived by the department as also by the <ORG> in the view that it does not fall within the ambit of the proviso as it stood at the relevant time. It is against this decision of the Appellate <ORG> affirming that of the Assistant Commissioner (C.T.) who in his turn confirmed the assessment made by the Deputy Commercial Tax Officer, that this revision is carried.

3. In this case, it is urged by Sri <NAME> that the instant case attracts the applicability of the proviso and consequently his client is entitled to the exemption contemplated by the proviso. It is convenient at this stage to extract the terms of the relevant proviso, which is as under :

Provided that in the case of a sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant or otherwise, the amount of the consideration relating to such sale shall be excluded from his turnover (when such produce is sold in the form in which it was produced, without subjecting it to any physical or chemical or other process to prepare it for consumption, save mere cleaning and grading or sorting).

4. The portion that is within the brackets was added by Section 2(iii) of the Madras General Sales Tax (Andhra Amendment) Act (16 of 1956). The crucial words that have to be considered are, "in the form in which it was produced without subjecting it to any physical or chemical or other process to prepare it for consumption".

5. Could it be posited in this case that casuarina, that is subjected to tax, is not sold in the form in which it was produced. In our opinion, on the facts found, the answer should be in the affirmative. It could not be postulated that merely because the tree was cut into pieces for the convenience of transport, it would result in the change of the form. We do not feel that it has lost its character as casuarina, merely because each tree is cut into three or four pieces for the purpose of carrying it to places wherever it is marketable. The circumstance that the process of cutting the tree into two or three or even four pieces, does not amount to cleaning, grading or sorting and does not take away the agricultural produce from the ambit of the proviso. The test is whether the form or the character of the produce is altered by the physical or chemical or other process while preparing it for consumption. It is only when the produce loses its original character, then the further question arises whether the physical process is only that of cleaning, grading or sorting. In the absence of any alteration in its original form or character, the fact that the process which the produce undergoes does not amount to cleaning, grading or sorting, would not make any difference.

6. On the facts of this case, we cannot but reach the conclusion that the petitioner is entitled to the benefits of the exemption envisaged in the proviso to Section 2(i) of the Madras General Sales Tax Act.

7. In the result, this tax revision case is allowed. The parties will bear their own costs throughout.


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 338-340 OF 2011 (Arising out of S.L.P. (Crl.) Nos.4436-4438 of 2009) KANAIYALAL LALCHAND SACHDEV & -- APPELLANTS ORS. VERSUS STATE OF MAHARASHTRA & ORS. -- RESPONDENTS J U D G M E N T

<NAME> J.:

Leave granted.

2. Challenge in these appeals, by special leave, is to the judgments and orders dated 28th April, 2009 and 1st July, 2009 delivered by <ORG> in W.P. No. 707 of 2009, and Criminal Application No. 178 of 2009 in W.P. No. 707 of 2009, respectively whereby it has dismissed the writ petition filed by the appellants herein, and also declined to extend the status-quo order granted by it to them.

3. Briefly stated, the facts, material for adjudication of the present appeals, may be stated thus:

Respondent No. 3, viz. <ORG> had advanced a loan of `4,50,00,000/- to appellant No. 6 on an equitable mortgage by deposit of the title deeds of certain properties, subject matter of these appeals, on 6th February, 2006. Appellant Nos.1 to 5 and one Mr. <NAME> stood as personal guarantors to the said loan.

4. On default of re-payment of loan amount, respondent No. 3 issued a notice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Second) Ordinance, 2002 on 18th November, 2006. On 12th February, 2007, the officers of respondent No. 3 dispossessed the appellants of one of the secured properties viz. T-125, CTS, No. 1729. Being aggrieved, the appellants filed a writ petition being CRL. W.P. No.286 of 2007 before <ORG>, inter-alia, contending that the notice issued by respondent No. 3 was illegal, no action could be taken in pursuance thereof, and if at all, the respondent wanted to take any action, it was required to approach the Chief Metropolitan Magistrate under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (for short "the Act").

5. Before <ORG>, respondent No. 3 offered to withdraw the notice dated 18th November, 2006 without prejudice to the rights and contentions advanced by them, and to return the possession of the said property to the appellants, subject to the appellants and all adult members furnishing an undertaking to the effect that they shall not alienate, encumber, transfer, dispose of and/or create any third party interest in the said premises for a period of six months. Accepting the statement made on behalf of respondent No. 3, <ORG> dismissed the writ petition vide order dated 7th March, 2007.

6. Thereafter, on 11th April, 2007 respondent No. 3 issued to the appellants a notice under Section 13(2) of the Act. The appellants replied to the said notice on 23rd May, 2007. Vide letter dated 29th May, 2007, respondent No. 3, communicated its reasons for not accepting the reply.

Subsequently, respondent No. 3 issued a public notice in newspapers, informing the appellants of the issuance of notice under Section 13(2) of the Act.

7. In pursuance thereof, respondent No.3, filed C.C. No. 223/M/2008 before the Chief Metropolitan Magistrate under Section 14 of the Act for taking possession of the secured assets. Vide order dated 3rd February, 2009, the Magistrate allowed the said application and directed the Assistant Registrar, <ORG>, to take possession of the mortgaged properties after issuing notice to the appellants.

8. Vide notice dated 27th February, 2009, the Assistant Registrar, directed the appellants to hand over the possession of the mortgaged properties to respondent No. 3 within 15 days from the receipt of the said notice. At this juncture, it would be expedient to extract the relevant portions of the said notice:

"Whereas, the Chief Metropolitan Magistrate, Esplanade, Mumbai has passed the following order on 3.2.2009 on the application filed before him by <ORG>, Mazda Complex, Parsi Agari Lane, Thana (W) 400601 through its Authorized Officer <NAME>.

ORDER The Application is allowed. Asst. Registrar, Mr. P.A. Tendolkar, <ORG> after issuing notice of taking possession of the secured assets.................................... ........................................................................... ........................................................................... .............................."

It is manifest from a bare perusal of the said notice that the order passed by the Magistrate dated 3rd February, 2009 was referred to by the Assistant Registrar in his notice.

9. Being aggrieved by the said notice, the appellants herein again approached <ORG>. As afore-stated, <ORG> dismissed the said writ petition, vide order dated 28th April, 2009, on the ground that an alternative remedy was available to the appellants under Section 17 of the Act. Nevertheless, <ORG> directed the respondents to maintain status quo in the matter for a period of 10 weeks from the date of its order, so as to enable the appellants to approach <ORG> (for short the "DRT") under Section 17 of the Act.

10. Thereafter, the appellants filed Criminal Application No. 178 of 2009 in W.P. No. 707 of 2009 seeking an extension of the status quo period granted vide order dated 28th April, 2009. As afore-stated, <ORG> rejected the said application filed by the appellants.

11. Hence, the present appeals against both the said orders.

12. Ms. <NAME>, learned counsel appearing on behalf of the appellants, while assailing the impugned orders, strenuously urged that apart from the fact that the notice issued by the Assistant Registrar was vague, it was never served on the appellants. In fact, appellants received a copy of the order of the Magistrate during the proceedings before <ORG>, pleaded the learned counsel. Learned counsel also urged that the notice issued by the Assistant Registrar was vitiated on account of non-

compliance with Rule 8 of the Security Interest (Enforcement) Rules, 2002 (for short "the 2002 Rules") as well. It was argued that <ORG> had also erred in equating action under Section14 of the Act with action under Section 13(4)(a) of the Act. It was thus, asserted that for all these reasons, the impugned orders deserve to be set aside.

13. Per contra, Mr. <NAME>, learned counsel appearing on behalf of respondent <ORG>, supporting the impugned judgments, contended that in light of the decision of this Court in <ORG> Vs. <ORG>, no fault could be found with the impugned judgments. It was also urged that the appellants having already availed of the remedy of approaching the <ORG>, they are estopped from challenging the decision of <ORG>.

14. Mr. <NAME>, learned counsel appearing on behalf of the State of Maharashtra contended that Rule 8 of the 2002 Rules was inapplicable in the instant case, in as much as it deals with sale of secured assets.

According to the learned counsel, it was Rule 4 which was applicable to the facts of the instant case. In support, reliance was placed on the decision of this Court in <ORG> & <ORG>. Vs. <ORG> & <ORG>.2.

15. Having bestowed our anxious consideration to the facts at hand, we are of the opinion that the appeals are utterly misconceived.

1 (2008) 1 SCC 125 2 (2004) 4 SCC 311

16. Section 13 of the Act deals with enforcement of security interest, providing that notwithstanding anything contained in Sections 69 or 69 A of the Transfer of Property Act , 1882, any security interest created in favour of any secured creditor may be enforced, without the court's intervention, by such creditor in accordance with the provisions of the Act. Section 13(2) of the Act provides that when a borrower, who is under a liability to a secured creditor, makes any default in repayment of secured debt, and his account in respect of such debt is classified as non-

performing asset, then the secured creditor may require the borrower, by notice in writing, to discharge his liabilities within sixty days from the date of the notice, failing which the secured creditor shall be entitled to exercise all or any of the rights given in Section 13(4) of the Act. Section 13(3) of the Act provides that the notice under Section 13(2) of the Act shall give details of the amount payable by the borrower as also the details of the secured assets intended to be enforced by the bank. Section 13 (3- A) of the Act was inserted by Act 30 of 2004 after the decision of this Court in <ORG> (supra), and provides for a last opportunity for the borrower to make a representation to the secured creditor against the classification of his account as a non-performing asset. The secured creditor is required to consider the representation of the borrowers, and if the secured creditor comes to the conclusion that the representation is not tenable or acceptable, then he must communicate, within one week of the receipt of the communication by the borrower, the reasons for rejecting the same. Section 13(4) of the Act provides that if the borrower fails to discharge his liability within the period specified in Section 13(2) , then the secured creditor, may take recourse to any of the following actions, to recover his debt, namely-

"(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:

Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt:

Provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt;

(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt."

Section 14 of the Act provides that the secured creditor can file an application before the Chief Metropolitan Magistrate or the District Magistrate, within whose jurisdiction, the secured asset or other documents relating thereto are found for taking possession thereof. If any such request is made, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, is obliged to take possession of such asset or document and forward the same to the secured creditor. (See: <ORG> Vs. <NAME> & Ors.3). Therefore, it follows that a secured creditor may, in order to enforce his rights under Section 13(4) , in particular Section 13(4)(a) , may take recourse to Section 14 of the Act.

17. Section 17 of the Act which provides for an appeal to the <ORG>, reads as follows:

"17. Right to appeal.--(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed to <ORG> having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

Explanation.--For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or 3 (2010) 8 SCC 110 objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to <ORG> under sub-section (1) of Section 17 .

(2) <ORG> shall consider whether any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder."

18.The 2002 Rules, enacted under sub-section (1) and clause (b) of sub-

section (2) of Section 38 read with sub-sections (4), (10) and (12) of Section 13 of the Act, set down the procedure for enforcing a security interest. Rule 4 of the 2002 Rules deals with the possession of movable assets, whereas Rule 8 deals with the possession of immoveable assets. It is manifest that Rule 4 has no application to the facts of the instant case, as contended by the learned counsel for the <ORG>.

19. In Authorised Officer, <ORG> & Anr. Vs. <NAME>, the main question which fell for determination was whether the <ORG> would have jurisdiction to consider and adjudicate post Section 13(4) events or whether its scope in terms of Section 17 of the Act will be confined to the stage contemplated under Section 13(4) of the Act?

On an examination of the provisions contained in Chapter III of the Act, in particular Sections 13 and 17 , this <ORG>, held as under :

4 (2009) 8 SCC 366 "35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in sub- section (3) thereof.

36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the <ORG> with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee. .............................................................................

39. We are unable to agree with or accept the submissions made on behalf of the appellants that the <ORG> had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under Section 13(4) of the Act. On the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the <ORG>."

(Emphasis supplied by us)

20.We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4) , and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT.

21. In our opinion, therefore, <ORG> rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See:

<NAME> Vs. <ORG> & Anr.5; <NAME> Vs. <NAME> & Ors.6; <ORG> Vs. <ORG> & Anr.7). In <ORG> Vs. <NAME> & Ors.8, this Court had observed that:

"The <ORG> while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;

5 (2003) 3 SCC 524 6 (2003) 6 SCC 675 7 (2006) 9 SCC 252 8 (2009) 1 SCC 168

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors."

22.In the instant case, apart from the fact that admittedly certain disputed questions of fact viz. non-receipt of notice under Section 13(2) of the Act, non-communication of the order of the Chief Judicial Magistrate etc. are involved, an efficacious statutory remedy of appeal under Section 17 of the Act was available to the appellants, who ultimately availed of the same. Therefore, having regard to the facts obtaining in the case, <ORG> was fully justified in declining to exercise its jurisdiction under Articles 226 and 227 of the Constitution.

23. For the foregoing reasons, the impugned judgments cannot be flawed, warranting interference by this Court. Accordingly, the appeals, being devoid of any merit, are dismissed with costs, quantified at `20,000/-.

(D.K. JAIN, J.) ............................................ (H.L. DATTU, J.) NEW DELHI;

FEBRUARY 7, 2011.

ARS


PETITIONER: SATISH CHANDRA ANAND Vs. RESPONDENT: THE UNION OF INDIA. DATE OF JUDGMENT: 13/03/1953 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN SASTRI, <NAME> (CJ) MUKHERJEA, <NAME>, <NAME>, <NAME> CITATION: 1953 AIR 250 1953 SCR 655 CITATOR INFO : R 1954 SC 369 (15,16) RF 1957 SC 886 (5) E&F 1958 SC 36 (27,28,33,39,40) R 1958 SC 232 (18) F 1958 SC 905 (6) RF 1961 SC 177 (11) R 1963 SC 602 (4) RF 1964 SC 600 (34,42,45,127,134,148) R 1964 SC1585 (11) RF 1971 SC1516 (7) RF 1973 SC2641 (21) RF 1975 SC2045 (6) RF 1976 SC1766 (14) RF 1976 SC2547 (8,9) RF 1982 SC1107 (30) F 1985 SC 551 (29) ACT: constitution of India, 1950, Arts. 14, 16, 311-Civil servant-Appointment on contract for 5 years-Continuation of appointment on temporary service basis-Termination of service on one month's notice-Legality--Fundamental rights- Central Civil Services (Temporary Service) Rules, 1949, r. 5. HEADNOTE: The petitioner was employed by <ORG> on a five year contract in <ORG> of <ORG>. When his contract was due to expire the Government made him a new offer to continue him in service in his post temporarily for the period of <ORG> on the condition that he will be governed by the Central Civil Services (Temporary Service) Rules, 1949, which provided for termination of the contract by month's notice on either side. He accepted the offer and continued in service, but subsequently his services were terminated after giving him one month's notice, The petitioner applied for relief under Art. 32 (1) of the Constitution alleging that his funda- mental rights under Arts. 311, 14 and 16 (1) of the Constitution were infringed: Held, (i) that Art. 311 had no application as this was not a case of dismissal or removal from service nor a reduction in rank but only an ordinary case of a contract being terminated by notice under one of its clauses, the difference between dismissal and 656 removal being that the former ordinarily disqualifies from future employment but not the latter; (ii) Art. 14 had no application as he had not been discriminated against and had not been denied the protection of any laws which others similarly situated could claim; (iii) Art. 16 was equally inapplicable as the petitioner was not denied equal opportunity in a matter relating to appointment or employment but had been treated just like any other person to whom an offer of temporary employment under these conditions was made. The <ORG> can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the <ORG> is bound. JUDGMENT:

ORIGINAL JURISDICTION: Petition (No. 201 of 1952) under Art. 32 of the Constitution for the enforcement of fundamental rights.

<NAME> <NAME> for the petitioner. <NAME>, Attorney-General for India, (<NAME>, with him) for the respondent.

1953. March 13. -The Judgment of the Court was delivered by <NAME> is a petition under article 32 of the Constitution in which the petitioner seeks redress for what, according to him, is a breach of his fundamental rights under articles 14 and 16(1) of the Constitution. It was argued at considerable length by the petitioner in person. Then, when our judgment was nearly ready, he put in a petition asking for a rehearing and for permission to file some fresh papers. When that was refused he came again on another,day and asked for leave to engage an agent and appear through counsel as he felt he had not been able to do justice to his case in person. (It may be mentioned that though he had originally engaged an agent he dismissed him before the hearing when he appeared in person.) We granted his request and counsel reargued the case for him but has not carried the matter any further. The facts are these.

In October,1945, the petitioner was employed by <ORG> on a five year contracting, <ORG> of <ORG>. This was after selection by <ORG>. After a short period of practical training, he was posted in January, 1946, at Jabalpur as the Manager of <ORG> and was later confirmed in this appointment. This contract of service was due to expire in 1950. Shortly before its expiration <ORG> made him a new offer, embodied in its letter dated the 30th June, 1950, to continue him in service on the expiry of his contract on the terms specified in that letter. Among them were the following:

(3) Other conditions of service:-On the termination of your contract you will be allowed to continue in your post temporarily for the period of <ORG> and will be governed by the Central Civil Services (Temporary Service) Rules, 1949, unless you are a permanent Government servant."

He was asked in the letter to intimate to <ORG> whether he was willing to continue in service on those terms and he admits that he accepted the offer and continued in service, He was not a permanent <ORG> servant though it was contended in argument that he was, for he was on a five year contract and the work for which he was employed, namely Resettlement and Employment, was itself only of a temporary character. Therefore, the Temporary Service Rules applied.

On those rules,' rule 5 is material. It runs as follows: 5 (a) The service of a temporary <ORG> servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the <ORG> servant to the appointing authority, or by the appointing authority to the <ORG> servant.

(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant."

Quasi-permanent service is defined in-the rules and it is clear that the petitioner does not come within that class. It is also an undisputed fact that there was no agreement between the petitioner and <ORG> regarding the period of the notice. Therefore, according to this rule, which was a term in the petitioner's contract of further service, his services were liable to termination at any time by' one month's notice in writing. This notice was given on 25th November, 1950, and he was told that his services would terminate on the expiry of one month from 1st December, 1950.

A large field was covered in the course of the arguments, and had the matter not been re-argued we would, for the petitioner's satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared.

The petition is under article 32(1) of the Constitution and so it must be shown that a fundamental right has been infringed. It was argued that the rights infringed are the ones conferred by articles 14 and 16(1).

Taking article 14 first, it must be shown that the ,petitioner has been discriminated against in the exercise or enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those confered by article 31 1. He says he has either been dismissed or removed from service without the safeguards which that article confers. In our opinion, article 31 1 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being termi- nated by notice under one of its clauses.

The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank Under section 240 of the Government of India Act, 1935, the safeguards were limited to those two cases. Under. the present Constitution, a third was added, namely removal from service. In order to understand the difference between "dismissal" and "removal" from service, it will be necessary to turn to the Rule,; which governed, and with modifications still govern, the "services" in India because of article 313 of the Constitution.

Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to Conduct and Discipline includes rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. 'The <ORG> has added a third to the list. The distinction which is drawn between the two is explained in rule 49. There is first removal from service "which does not disqualify from future employment " and there is next dismissal from service "which ordinarily disqualifies from future employment." Then follows an Explanation:

The discharge-

(c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule." These terms are used in the same sense in article 3ll. It follows that the article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the right-, and remedies available to other persons similarly situated -to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived. Article 16(1) is equally inapplicable. The whole matter rests in contract. When the petitioner's first contract (the five year one) came to an end, he was not a permanent <ORG> servant and <ORG> was not bound either to re-employ him or to continue him in service. On the other hand, it was open to <ORG> to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16(1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the <ORG>. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the <ORG> can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the <ORG> is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations government is, subject to the qualification mentioned above, as free to make special, contracts of, service with temporary employees, engaged in, works of a temporary nature, as any other employer. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, we have no alternative but to dismiss the petition with costs.

Petition dismissed.

Agent for the petitioner: <NAME>. Agent for the respondent: <NAME>,


<NAME>, J.

1. The appellant was working as a conductor with <ORG>, Nagpur (the <ORG>). A departmental enquiry was held against him on the allegations that he misappropriated a sum of Rs. 2300. The charge of misappropriation was proved against him and as a consequence he was dismissed from service by the order dated April 10, 1980. The appellant raised a dispute and the State Government made a reference under the Industrial Disputes Act , 1947. <ORG> came to the conclusion that the enquiry held against the appellant was neither fair nor proper and as such it gave an opportunity to the <ORG> to prove the charge against the appellant before <ORG>. Finally <ORG> by its award dated April 23, 1991 upheld the dismissal of the appellant. The appellant challenged the said award by way of a writ petition before the Nagpur Bench of <ORG>. The only point raised before <ORG> was that the order dismissing the appellant could only be effective from April 23, 1991 (the date of the award) and not from April 10, 1980 when it was originally passed. <ORG> rejected the contention raised by the appellant and dismissed the writ petition.

2. We have heard learned Counsel for the parties. Mrs. <NAME>, learned Counsel for the appellant has placed strong reliance on the following observations from the judgment of this Court in <ORG>, Indore :

The second contention must also therefore fail. We would, however, like to add that the decision in <CITATION> case 1963-I-LLJ-679 is not to be construed as a charter for employers to dismiss employees after the pretence of an enquiry. The enquiry in the instant case does not suffer from defects so serious or fundamental as to make it non est. On an appropriate occasion, it may become necessary to carve an exception to the ratio of <NAME> (supra) case so as to exclude from its operation at least that class of cases in which under the facade of a domestic enquiry, the employer passes an order gravely detrimental to the employee's interest like an order of dismissal. An enquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an enquiry so as to exclude the application of the 'relation-back' doctrine. But we will not pursue the point beyond this as the facts before us do not warrant a closer consideration thereof.

Mrs. <NAME> has vehemently contended that the domestic enquiry against the appellant having been held to be unfair the order of dismissal dated April 10, 1980 became illegal and inoperative as a consequence. According to her the dismissal order could only operate from the date of the award which was given as a result of the fair and proper enquiry held by <ORG> itself.

3. We do not agree with the contentions raised by the learned Counsel. We are of the view that the enquiry held against the appellant by the <ORG> in the instant case did not suffer from defects which were so serious or fundamental as to render the same non est. We have perused Part 1 of the award wherein <ORG> has held the domestic enquiry to be unfair. The defects on the basis of which the domestic enquiry was held to be unfair did not go to the root of the case and as such it is not possible to hold that the said enquiry was void and non est. We see no ground to interfere with the judgment of the High Court. We agree with the reasoning and the conclusions reached therein. The appeal is dismissed. No costs.