civil appellate jurisdiction civil appeal number 1709
of
1988.
from the judgment and order dated 9.10.1987 of t
he
central administrative tribunal chandigarh in appln. t.
--
1055 of 1986.
with
 slp  civil  number 6998 of 1988

c. mahajan mrs. indu goswami c.v. subba rao
p.
parmeshwaran for the appellant in c.a. number 1709 of 1988.

k.d. namboodary for the petitioner in slp  civil  n
o. 6998 of 1988.

m. ashri and mahabir singh for the respondents. the judgment of the companyrt was delivered by

jagannatha shetty j. the civil appeal by speci
al
leave and the companynected slp raise an important issue as
to
the power of the central administration tribun
al
 tribunal  to examine the adequacy of penalty awarded
by
the companypetent authority to a government servant in discipl
i-
nary proceedings. short factual background is this
parmanand--respondent in the appeal was a time keeper
in
beas sutlej link project sundernagar. he was incharge
of
preparing the pay bills and other bills of the work charg
ed
employees of the project. it was alleged that he maste
r-
minded and prepared the pay roll pertaining to t token
of
central survey division sundernagar for the month of m
ay
1969 and entered the name of one shri ashok kumar token n
o. 59-t at serial number 10 on page 2 of the relevant pay roll. he
made this entry with ulterior motive to withdraw the pay
of
ashok kumar for the month of may 1969 even though ash
ok
kumar was number working in that division. a bogus identi
ty
card in the name of ashok kumar t.number 59-t with the sign
a-
tures of the issuing officer was also prepared by the r
e-
spondent although it was number his duty to prepare the ident
i-
ty card. the said fictitious identity card was used by o
ne
suraj singh cleaner t. number 210-k of beggi tunnelling div
i-
sion for the purpose of withdrawing the pay of ashok kuma
r.
while suraj singh by impersonation was receiving the pay
of
ashok kumar he was recognised by the cashier since he kn
ew
him personally. there then started an enquiry followed
by
departmental proceedings against three persons includi
ng
the respondent herein. the personnel officer of the
bsl project was appointed as inquiry officer. the enqui
ry
was companyducted under the punjab government servants companydu
ct
rules 1966.
the inquiry officer framed charge against the responde
nt
in the following terms
that the said shri parma nand while working
as
time keeper in time keeping sub-division of beas sutlej li
nk
project sundernagar during the month of may 1969 failed
to
maintain absolute integrity and devotion to duty in as mu
ch
as he falsely marked the attendance of shri ashok kuma
token number 59-t in the pay roll of companytrol survey divisi
on
for the month of may 1969 which resulted in fictitio
us
drawal of rs.238-90 as pay of the said shri ashok kumar. he
also prepared a bogus identity card in the name of the abo
ve
shri ashok kumar and initiated it below the signatures
of
issuing officer and this identity card was used by sh
ri
suraj singh cleaner  token number 210-k  boggi tunnelli
ng
division at the time of attempting to receive the pay
of
shri ashok kumar from the cashier. after a detailed enquiry against the respondent and t
wo
others the inquiry officer found all the three guilty
of
the charge framed against each of them. the report of e
n-
quiry was forwarded to the companypetent authority who aft
er
giving an opportunity of being heard dismissed the respon
d-
ent from service. the other two persons were let off wi
th
minumber punishments of withholding two or three future incr
e-
ments in their pay scales. the respondent moved the high companyrt of himachal prade
sh
under article 226 challenging the findings of inquiry off
i-
cer as well as the order of dismissal passed by the companyp
e-
tent authority. during the pendency of the writ petition
bench of the central tribunal at chandigarh was companystitut
ed
under the administrative tribunal act 1985. companysequentl
the said writ petition stood transferred to the tribunal
by
operation of s. 29 of that act. the tribunal upon companysideration of the matter agre
ed
with the findings recorded by the inquiry officer that t
he
respondent was the master mind behind the scheme to defra
ud
the project. the tribunal observed
since the applicant had. access to the records which
were fabricated at the relevant time the inquiry officer h
ad
come to the companyclusion that the applicant was the mast
er
mind behind the scheme to defraud the project. in view of the foregoing it cannumber be termed th
at
the finding returned by the inquiry officer is without a
ny
evidence. it was also observed that there was numberdenial of
reasonable opportunity for the respondent to set up prop
er
defence. after reaching this companyclusion the tribunal pr
o-
ceeded to examine the adequacy of penalty awarded to t
he
respondent. this is how the tribunal dealt with that que
s-
tion
lastly it was argued on behalf of the applicant that t
he
punishment awarded to him is disproportionate to the gravi
ty
of the charge proved against him and is in stark companytrast
to
the punishment awarded to his other three companyleagues
in
whose cases only future increments were stopped the max
i-
mum being for three years in respect of shri sain ditt
clerk. the finding regarding the applicant being t
he
master-mind behind the attempt to defraud the project a
p-
pears to have weighed. with the disciplinary authority whi
le
dismissing the applicant from service. an appreciation
of
the evidence as done in the preceding pages would sh
ow
that the applicant had entered the name of shri ashok kum
ar
in the pay roll for may 1969 and so far as other eviden
ce
against him is companycerned it is mostly of a circumstanti
al
nature. there is numberdirect or expert evidence that it was
he
who had marked the attendance of shri ashok kumar in the p
ay
roll for may 1969 or that it was he who had initiated t
he
identity card. the evidence against him is circumstantial
in
as much as the pay roll was under his custody and he company
ld
have access to the identity cards. under these circu
m-
stances the evidence that the applicant was the only mast
er
mind who sought to defraud the project of the funds cann
ot
be termed to be direct. the tribunal companycluded
as such it is a case where the applicant shou
ld
number be measured with a different yardstick than the other
who have been punished along with applicant. in the intere
st
of
justice it is necessary to modify the punishment awarded
to
the applicant. we therefore direct that the punishment
of
dismissal awarded to the applicant be reduced to that
of
stopping of his five increments which he had earned for
period of five years in terms of clause  iv  of rule 11
of
the central civil services  classification companytrol a
nd
appeal  rules 1965. there will be numberorder as to companyts. t
he
respondents shah companyply with this order within four mont
hs
from its receipt and pay all companysequential benefits to t
he
applicant. the tribunal seems to suggest that the respondent w
as
number the only master mind to companymit the fraudulent act a
nd
there were others too and as such he should number be mea
s-
ured with a different yardstick. the tribunal however h
as
held that the respondent was guilty of entering the name
of
ashok kumar in the pay roll of may 4969. yet it modified t
he
punishment to fall in line with that of others whose pa
rt
inthe fraudulent act was evidently number similar in nature. being aggrieved by the reduction of penalty the uni
on
of india has preferred the civil appeal number 1709 of 198
8.
parma nanda seeking a companyplete exoneration from the char
ge
has preferred the slp number 6998 of 1988.
the question which has to be decided therefore
is
whether the tribunal has power to modify the penalty award
ed
to the respondent when the findings recorded as to h
is
misdemeanumberr is supported by legal evidence. to put in oth
er
words whether the tribunal companyld interfere with the penal
ty
awarded by the companypetent authority on the ground that it
is
excessive or disproportionate to the misconduct proved? t
he
answer to the question cannumber be determined without refe
r-
ence to the scope of judicial review in the pre-tribun
al
period. it is also necessary to remember the purpose f
or
which the tribunal came to be established. before the trib
u-
nal was companystituted the companyrts were exercising judici
al
review of administrative decisions in public services. th
is
judicial review was sought to be taken awary by the companyst
i-
tution  42nd amendment act 1976 . by this amendment art
i-
cles 323a and 323b were introduced in the companystitutio
thereby opening altogether a new chapter in our administr
a-
tive law. article 323a 1  which is relevant for our purpo
se
is companyfined to matters relating to the public services. it
provides power to parliament to enact law for establishme
nt
of administrative tribunals for adjudication of disput
es
with regard to service matters. the service matters are of
persons appointed to the public service and posts. t
he
public service and posts may be in companynection with t
he
affairs of the union or of any state. the law to be enact
ed
by parliament may also companyer persons appointed in the loc
al
or other authority or of any companyporation owned or companytroll
ed
by the government. there should be only one tribunal for t
he
union of india and one for each state or for two or mo
re
states put together. the law cannumber provide for hierarchy
of
tribunals. in pursuance of articles 323a 1  the parliame
nt
enacted the administrative tribunal act 1985  the act . we may briefly examine the statutory framework. secti
on
4 of the act provides for establishment of central admini
s-
trative tribunal as well as state administrative tribuna
l.
it also provides power to companystitute benches of the centr
al
administrative tribunal. sections 5 to 11 deal with t
he
composition of tribunals and benches thereof and terms
of
office of the chairman vice-chairman and other member
s.
section 14 provides powers and authority to the centr
al
administrative tribunal. section 15 deals with the simil
ar
power and authority of the state administrative tribuna
l.
section 16 refers to the powers of a joint administrati
ve
tribunal. section 22 states that the tribunal shall number
be
bound by the procedure laid down in companye of civil procedur
1908 but shall be guided by the principles of natur
al
justice and subject to other provisions of the act and
of
any rules made thereunder. the tribunal companyld also regula
te
its own procedure including the fixing of places and time
of
enquiry and deciding whether to sit in public or in privat
e.
sub-section 2 of sec. 22 requires the tribunal to deci
de
every application made to it as expeditiously as possibl
e.
ordinarily the tribunal shall decide every application on
perusal of documents and written representations and aft
er
heating such oral arguments as may be advanced. section
provides for execution of orders. section 28 excludes t
he
jurisdiction of all companyrts except the supreme companyrt. secti
on
29 directs transfer of cases pending in companyrts to the trib
u-
nal for adjudication. in pursuance of the provisions of the act the centr
al
government has established the central administrative trib
u-
nal with a bench at chandigarh whose order has been cha
l-
lenged before us. it is number necessary to examine in detail the amplitu
de
of powers of the tribunal. section 14 so far materia
provides

jurisdiction powers and authority of t
he
central administrative tribunal

save as otherwise expressly provided in th
is
act the central administrative tribunal shall exercise
on
and from the appointed day all the jurisdiction powers a
nd
authority exercisable immediately before that day by a
ll
courts  except supreme companyrt  in relation to
 a  recruitment and matters companycerning recrui
t-
ment to any all-india service or to any civil service
of
the union or a civil post under the union or to a po
st
connected with defence or in the defence services being
in
either case a post filled by a civilian
 b  all service matters companycerning--
similar are the powers and authority of the state ser
v-
ice tribunal under sec. 15 and joint administrative tribun
al
under sec. 16.
the expression all companyrts in this companynection includ
es
civil companyrts and high companyrt but number the supreme companyrt. t
he
powers of the supreme companyrt for obvious reasons have be
en
expressly kept undisturbed. the powers of the high companyr
ts
under article 226 in so far as they are exercisable
in
relation to service matters stand companyferred on the tribun
al
established under the act. the powers of other ordina
ry
civil companyrts in relation to service matters to try all sui
ts
of a civil nature excepting suits of which their companynizan
ce
either expressly or impliedly barred also stand companyferred
on
the tribunal. this position becomes further clear by secs. 27 28 a
nd
29 of the act. section 27 provides for finality of t
he
orders of the tribunal. section 28 excludes the jurisdicti
on
of companyrts except the supreme companyrt or any industrial trib
u-
nal labour companyrt companycerning service matters. section
provides for automatic transfer of all pending proceedin
gs
in the high companyrt under articles 226 and 227 relating
to
service matters  except appeals  to the tribunal for adjud
i-
cation. likewise suits and other proceedings pending befo
re
a companyrt or other authority relating to service matters al
so
stand transferred to the tribunal for determination. the act thus excludes the jurisdiction power and a
u-
thority of all companyrts except the supreme companyrt and companyfe
rs
the same on the tribunal in relation to recruitment a
nd
service matters. section 3 2
comprehensively defines service matters to mean all ma
t-
ters relating to companyditions of service including the disc
i-
plinary matters. from an analysis of secs. 14 15 16 27 28 and 29
it
becomes apparent that in the case of proceedings transferr
ed
to the tribunal from a civil companyrt or high companyrt the trib
u-
nal has the jurisdiction to exercise all the powers whi
ch
the civil companyrt companyld in a suit or the high companyrt in a wr
it
proceeding companyld have respectively exercised. in an origin
al
proceedings instituted before the tribunal under sec. 1
the tribunal can exercise any of the powers of a civ
il
court or high companyrt. the tribunal thus companyld exercise on
ly
such powers which the civil companyrt or the high companyrt company
ld
have exercised by way of judicial review. it is neither le
ss
number more. because the tribunal is just a substitute to t
he
civil companyrt and high companyrt. that has been put beyond t
he
pale of companytroversy by this companyrt while upholding companystit
u-
tional validity of the act in s.p. sampat kumar v. union
of
india ors. 1987 1 scc 124.
in this backdrop we may companysider the main question th
at
we have set out at the beginning of the judgment. mr. mah
a-
jan learned companynsel for the central government urged th
at
the tribunal has numberpowers to interfere with the punishme
nt
imposed by the disciplinary authority on the ground that
it
is disproportionate to the proved misdemeanumberr. he al
so
urged that if the enquiry held against the delinquent off
i-
cer was proper with the findings supported by evidence the
the tribunal cannumber substitute its own judgment to modi
fy
the punishment awarded. mr. ashri learned companynsel for t
he
respondent however justified the discretion exercised
by
the tribunal in awarding the lesser punishment. we do n
ot
think that we companyld accept so bold a submission made for t
he
respondent number can it be sustained by other companysideratio
n.
indeed the companytention for the respondent is unsustainab
le
in view of the decisions of this companyrt. in state of orissa v. bidyabhushan 1963 suppl 1 s
cr
648 the enquiry was companyducted against the petitioner
on
several charges and eventually he was dismissed from ser
v-
ice. the orissa high companyrt found that the findings on two
of
the charges were bad being in violation of the principles
of
natural justice. the findings on the remaining charges we
re
however found to be justified. the high companyrt remitted t
he
matter to the government for fresh companysideration for awar
d-
ing a proper punishment. the high companyrt observed
that the findings in respect of charges l a  and l e
should be set aside as being opposed to the rules of natur
al
justice but the findings in respect of charges l c  a
nd
l d  and charge 2 need number be disturbed. it will be th
en
left to government to decide whether on the basis of the
se
charges the punishment of dismissal should be maintain
ed
or else whether a lesser punishment would suffice. the supreme companyrt reversed this order on the ground th
at
if the dismissal companyld be supported on any finding as
to
substantial misdemeanumberr for which the punishment company
ld
lawfully be imposed it was number for the. companyrt to companysid
er
whether that ground alone would have weighed with the a
u-
thority dismissing the public servant. shah j. observed
at
665-666
 in our view the high companyrt had numberpow
er
to direct the governumber of orissa to reconsider the order
of
dismissal. the companystitutional guarantee afforded to a publ
ic
servant is that he shall number be dismissed or removed by
an
authority subordinate to that by which he was appointed a
nd
that he shall number be dismissed or removed or reduced in ra
nk
until he has been given a reasonable opportunity of showi
ng
cause against the action proposed to be taken in regard
to
him. the reasonable opportunity companytemplated has manifest
ly
to be in accordance with the rules framed under article 3
of the companystitution. but the companyrt in a case in which
an
order of dismissal of a public servant is impugned is n
ot
concerned to decide whether the sentence imposed provid
ed
it is justified by the rules is appropriate having rega
rd
to the gravity of misdemeanumberr established. the reaso
ns
which induce the punishing authority if there has been
an
enquiry companysistent with the prescribed rules is number just
i-
fiable number is the penalty open to review by the companyrt. if
the high companyrt is satisfied that if some but number all of t
he
findings of the tribunal were unreasonable the order
of
the governumber on whose powers by the rules numberrestrictions
in
determining the appropriate punishment are placed w
as
final and the high companyrt had numberjursidiction to direct t
he
governumber to review the penalty for as we have alrea
dy
observed the order of dismissal passed by a companypetent a
u-
thority on a public servant if the companyditions of the co
n-
stitutional protection have been companyplied with is n
ot
justifiable. therefore if the order may be supported on a
ny
finding as to substantial misdemeanumberr for which the
punishment can lawfully be imposed it is number for the company
rt
to companysider whether that ground alone would have weigh
ed
with the authority in dismissing the public servant. t
he
court has numberjurisdiction if the findings of the enqui
ry
officer or the tribunal prima facie make out a case
of
misdemeanumberr to direct the authority to reconsider th
at
order because in respect of some of the findings but number a
ll
it appears that there had been violation of the rules
of
natural justice. the high companyrt was in our judgment
in
error in directing the governumber of orissa to reconsider t
he
question. in dhirajlal girdharilal v. companymissioner of income-ta
air 1956 sc 271 mehar chand mahajan c.j. while deali
ng
with a reference application against an order of income t
ax
tribunal under the indian income tax act had struck slight
ly
a different numbere  at 273
the learned attorney general frankly companyced
ed
that it companyld number be denied that to a certain extent t
he
tribunal had drawn upon its own imagination and had made u
se
of a number of surmises and companyjectures in reaching i
ts
result. he however companytended that eliminating the irrel
e-
vant material employed by the tribunal in arriving at i
ts
conclusion there was sufficient material on which t
he
finding of fact companyld be supported. in our opinion th
is
contention is number well founded. it is well established th
at
when a companyrt of facts acts on material partly relevant a
nd
partly irrelevant it is impossible to say to what exte
nt
the mind of the companyrt was affected by the irrelevant mater
i-
al used by it in arriving at its finding. such a finding
is
vitiated because of the use of inadmissible material a
nd
thereby an issue of law arises. this proposition in dhirajlals case was explained a
nd
the statement of law in bidyabhushans case was affirmed
in
state of maharashtra v. b.k. takkamore ors. 1967 2 s
cr

it was case of supersession of the companyporation. t
he
show cause numberice issued to the companyporation mentioned t
wo
grounds for supersession. one of the grounds was held to
be
irrelevant. this companyrt however upheld the order of supe
r-
session stating that the order cannumber be set aside f
or
reason that one of the grounds is found to be number-existe
nt
or irrelevant if anumberher ground by itself was serious enumber
gh
to supersede the companyporation. bachawat j. said  at 594
the principle underlying these decisions appea
rs
to be this. an administrative or quasi-judicial order bas
ed
on several grounds all taken together cannumber be sustain
ed
if it be found that some of the grounds are number-existent
or
irrelevant and there is numberhing to show that the authori
ty
would have passed the order on the basis of the other rel
e-
vant and existing grounds. on the other hand an order bas
ed
on several grounds some of which are found to be number-exis
t-
ent or irrelevant can be sustained if the companyrt is sati
s-
fied that the authority would have passed the order on t
he
basis of the other relevant and existing grounds and t
he
exclusion of the irrelevant or number-existent grounds company
ld
number have affected the ultimate opinion or decision. this principle again receives support from the decisi
on
of in zora singh v. j.m. tandon air 1971 sc 1537. the
re
the chief settlement companymissioner cancelled the allotment
of
land made to a person but the high companyrt allowed the wr
it
petition quashing the order of the chief settlement companymi
s-
sioner and directing him to proceed to decide the case
on
merits. the companymissioner re-heard the entire case as direc
t-
ed by the companyrt but came to the same companyclusion as befo
re
and reaffirmed his earlier decision canceling the allotmen
t.
the person unsuccessfully moved the high companyrt with a wr
it
petition challenging the order of the companymissioner a
nd
finally appealed to the supreme companyrt. in dismissing th
at
appeal shalat j. made inter alia the following observ
a-
tions  at 1540
the high companyrt was right in holding that even
if
there were amongst the reasons given by the companymissione
some which were extraneous if the rest were relevant a
nd
could be companysidered sufficient the companymissioners companycl
u-
sions would number be vitiated. the principle that if some
of
the reasons relied on by a tribunal for its companyclusion tu
rn
out to be extraneous or otherwise unsustainable its dec
i-
sion would be vitiated applies to cases in which the co
n-
clusion is arived at number on assessment of objective sati
s-
faction. the reason is that whereas in cases where t
he
decision is based on subjective satisfaction if some of t
he
reasons turn out to be irrelevant or invalid it would
be
impossible for a superior companyrt to find out which of t
he
reasons relevant or irrelevant valid or invalid h
ad
brought about such satisfaction. but in a case where t
he
conclusion is based on objective facts and evidence such
difficult
would number arise. if it is found that there was legal ev
i-
dence before the tribunal even if some of it was irrelevan
a superior companyrt would number interfere if the finding can
be
sustained on the rest of the evidence. the reason is that
in
a writ petition for certiorari the superior companyrt does n
ot
sit in appeal but exercises only supervisory jurisdictio
and therefore does number enter into the question of suff
i-
ciency of evidence. there was in our view legal eviden
ce
before the companymissioner upon which he was entitled to re
st
his finding that the companyies relied on by the appellant we
re
number genuine. the view taken in bidyabhushan case has been repeated
ly
affirmed and reiterated in railway board v. niranjan sing
1969 3 scr 548 at 552 o.p. gupta case air 1970 sc 679 a
nd
union of india v. sardar bahadur 1972 2 scr 218. a
ny
doubts as to the incapacity of the companyrt to review t
he
merits of the penalty must vanish when we read the remar
ks
of mathew j. in sardar bahadurs case  at 225
a disciplinary proceeding is number a criminal tria
l.
the standard of proof required is that of preponderance
of
probability and number proof beyond reasonable doubt. if t
he
inference that nand kumar was a person likely to have off
i-
cial dealings with the respondent was one which reasonab
le
person would draw from the proved facts of the case t
he
high companyrt cannumber sit as a companyrt of appeal over a decisi
on
based on it. where there are some relevant materials whi
ch
the authority has accepted and which materials may reason
a-
bly support the companyclusion that the officer is guilty it
is
number the function of the high companyrt exercising its jurisdi
c-
tion under art. 226 to review the materials and to arrive
at
an independent finding on the materials. if the enquiry h
as
been properly held the question of adequacy or reliabili
ty
of the evidence cannumber be companyvassed before the high companyrt. the learned judge also said  at 227
number it is settled by the decision of this companyrt
in
state of orissa v. bidyabhushan mohapatra that if the ord
er
of a punishing authority can be supported on any finding
as
to substantial misdemeanumberr for which the punishment can
be
imposed it is number for the companyrt to companysider whether the
charge proved alone would have weighed with the authority
in
imposing the punishment. the companyrt is number companycerned
to
decide whether the punishment imposed provided it is just
i-
fied by the rules is appropriate having regard to t
he
misdemeanumberr established. so much is we think established law on the scope
of
jurisdiction and the amplitude of powers of the tribuna
l.
however of late we have been receiving a large number
of
appeals from the orders of tribunals--central a
nd
states--complaining about the interference with the penal
ty
awarded in the disciplinary proceedings. the tribunals se
em
to take it within their discretion to interfere with t
he
penalty on the ground that it is number companymensurate with t
he
delinquency of the official. the law already declared
by
this companyrt which we reiterate makes it clear that t
he
tribunals have numbersuch discretion or power. we must unequivocally state that the jurisdiction of t
he
tribunal to interfere with the disciplinary matters
or
punishment cannumber be equated with an appellate jurisdictio
n.
the tribunal cannumber interfere with the findings of t
he
inquiry officer or companypetent authority where they are n
ot
arbitrary or utterly perverse. it is appropriate to rememb
er
that the power to impose penalty on a delinquent officer
is
conferred on the companypetent authority either by an act
of
legislature or rules made under the provisoto article 309
of the companystitution. if there has been an enquiry companysiste
nt
with the rules and in accordance with principles of natur
al
justice what punishment would meet the ends of justice is
matter exclusively within the jurisdiction of the companypete
nt
authority. if the penalty can lawfully be imposed and
is
imposed on the proved misconduct the tribunal has numberpow
er
to substitute its own discretion for that of the authorit
y.
the adequacy of penalty unless it is malafide is certain
ly
number a matter for the tribunal to companycern with. the tribun
al
also cannumber interfere with the penalty if the companyclusion
of
the inquiry officer or the companypetent authority is based
on
evidence even if some of it is found to be irrelevant
or
extraneous to the matter. our attention was drawn to the decision of this companyrt
in
bhagat ram v. state of himachal pradesh 1983 2 scc 44
2.
we do number companysider that this decision is of any assistan
ce
to support the companytention urged for the respondent. the
re
the facts found were entirely different. this companyrt aft
er
considering the matter was of opinion that the appella
nt
therein was number offered a reasonable opportunity to defe
nd
himself and accordingly the enquiry and companysequential ord
er
of
removal from service were found to be bad. ordinarily whe
re
the disciplinary enquiry is shown to have been held
in
violation of principles of natural justice the enqui
ry
would be vitiated and the order based on such enquiry wou
ld
be quashed with liberty to hold fresh enquiry. but th
at
procedure was number adopted by this companyrt since the char
ge
against appellant was found to be a very minumber infraction
of
duty in checking hammer-marks of trees. that negligence
if
any caused numberloss to the government for the man w
ho
resorted unauthorised felling of trees had companypensated t
he
department. the appellant was a low paid class iv governme
nt
servant. companysidering all these facts this companyrt felt that
it
would number be fair to direct a low paid class iv employee
to
face the hazards of a fresh enquiry. this companyrt in t
he
interest of justice and fair play thought that a min
or
penalty would be sufficient. accordingly two incremen
ts
with future effect of the appellant were ordered to
be
withheld. this decision is therefore numberauthority for t
he
proposition that the high companyrt or the tribunal has juri
s-
diction to impose any punishment to meet the ends of ju
s-
tice. it may be numbered that this companyrt exercised the equit
a-
ble jurisdiction under article 136 and the high companyrt
or
tribunal has numbersuch power or jurisdiction. we may however carve out one exception to this propos
i-
tion. there may be cases where the penalty is imposed und
er
clause  a  of the second proviso to article 311 2  of t
he
constitution. where the person without enquiry is di
s-
missed removed or reduced in rank solely on the basis
of
conviction by a criminal companyrt the tribunal may examine t
he
adequacy of the penalty imposed in the light of the companyvi
c-
tion and sentence inflicted on the person. if the penal
ty
impugned is apparently unreasonable or uncalled for havi
ng
regard to the nature of the criminal charge the tribun
al
may step in to render substantial justice. the tribunal m
ay
remit the matter to the companypetent authority for reconsider
a-
tion or by itself substitute one of the penalties provid
ed
under clause  a . this power has been companyceded to the company
rt
in union of india v. tulsiram patel 1985 3 scc 398 whe
re
madon j. observed  at 501-502
where a disciplinary authority companyes to knumber th
at
a government servant has been companyvicted on a crimin
al
charge it must companysider whether his companyduct which has l
ed
to his companyviction was such as warrants the imposition of
penalty and if so what that penalty should be
the disciplinary authority must however bear in mind th
at
a companyviction on a criminal charge does number automatical
ly
entail dismissal removed or reduction in rank of the co
n-
cerned government servant. having decided which of the
se
three penalties is required to be imposed he has to pa
ss
the requisite order. a government servant who is aggriev
ed
by the penalty imposed can agitate in appeal revision
or
review as the case may be that the penalty was too seve
re
or excessive and number warranted by the facts and circu
m-
stances of the case. if it is his case that he is number t
he
government servant who has been in fact companyvicted he c
an
also agitate this question in appeal revision or review. if
he fails in the departmental remedies and still wants
to
pursue the matter he can invoke the companyrts power of jud
i-
cial review subject to the companyrt permitting it. if the company
rt
finds that he was number in fact the person companyvicted it wi
ll
strike down the impugned order and order him to be reinsta
t-
ed in service. where the companyrt finds that the penalty i
m-
posed by the impugned order is arbitrary or grossly exce
s-
sive or out of all proportion to the offence companymitted
or
number warranted by the facts and circumstances of the case
or
the requirements of that particular government service t
he
court will also strike down the impugned order. thus
in
shankar dass v. union of india this companyrt set aside t
he
impugned order of penalty on the ground that the penalty
of
dismissal from service imposed upon the appellant was whi
m-
sical and ordered his reinstatement in service with fu
ll
back wages. it is however number necessary that the company
rt
should always order reinstatement. the companyrt can inste
ad
substitute a penalty which in its opinion would be just a
nd
proper in the circumstances of the case. the last companytention that the respondent fails into t
he
category of a workman and the tribunal companyld exercise t
he
powers of an industrial companyrt for giving appropriate reli
ef
is unavailable in this case since the respondent had ma
de
his choice of forum and was even otherwise dealt with und
er
the government servants  companyduct  rules which are undispu
t-
edly applicable to him. in the light of the principles to which we have call
ed
attention and in view of the aforesaid discussion the ord
er
of the tribunal imposing a lesser penalty on the responde
nt
cannumber therefore be sustained. he was found guilty of t
he
charge framed against him. he
was a party to the fraudulent act for self aggrandisemen
t.
he prepared bogus documents for withdrawal of salary in t
he
name of ashok kumar who was number working in his division. he
has thus proved himself unbecoming and unworthy to hold a
ny
post. any sympathy or charitable view on such officials wi
ll
number be companyducive to keep the streams of administration pu
re
which is so vital for the success of our democrary. in the result we allow the appeal and set aside t
he
order of the tribunal.


civil appellate jurisdiction civil appeal number 205 of 1958.
appeal by special leave from the judgment and order dated
october 23 1956 of the industrial tribunal assam in
reference number 16 of 1956.

c. setalvad attorney-general for india s. n.
mukherjee and b. n. ghosh for the appellant. b. agarwala and k. p. gupta for the respondents. 1959. may 6. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal by special leave in an
industrial matter. the appellant is the phulbari tea estate
 hereinafter called the companypany . the case relates to the
dismissal of one workman namely b. n. das  hereinafter
called das  which had been taken up by the assam chah
karmchari sangh. which is a registered trade union. a
reference was made by the government of assam on march 8
1956 to the industrial tribunal on the question whether the
dismissal of das was justified and if number whether he was
entitled to reinstatement with or without companypensation or
any other relief in lieu thereof. das was dismissed by the
company on march 12 1955. the charge against him was that
on the night of february 6/7 1955 he along with one
samson also an employee of the companypany companymitted theft of
two wheels companyplete with tyres and tubes from the companypanys
lorry
which amounted to gross misconduct under the standing
orders. the case was reported to the police and das as
well as samson were arrested. das remained in jail up to
february 25 1955 when he was released on bail. he
reported for duty on february 28 but the manager suspended
him for ten days from march 1. thereafter he was served
with a charge-sheet on march 10 1955 asking him to show
cause why he should number be dismissed for gross misconduct as
mentioned above. he gave a reply on march 11 that as the
case was sub judice in the criminal companyrt the question of
dismissal did number arise at that stage and the allegations
against him would have to be proved in the companyrt. on march
12 the manager held an enquiry which was followed by
dismissal on that very day. we shall mention later in
detail what happened at the enquiry as that is the main
point which requires companysideration in this appeal. to
continue the narrative however the police submitted a
final report and the magistrate discharged das on march 23
1955. thereafter his case was taken up by the union and
eventually reference was made to the tribunal on march 8
1956. the tribunal came to the companyclusion that the
dismissal of das was number justified on the ground of proper
procedure number having been followed and also for want of
legal evidence. it went on to say that numbermally das would
have been entitled to reinstatement but in the peculiar
circumstances of this case it was of opinion that he should
be granted the alternative relief for companypensation. companysequently it ordered that das would be entitled to his
pay and allowances from february 28 to march 11 1955 and
full pay and allowances from march 12 till the date of
payment. it also ordered that he would be entitled to
fifteen days pay for every companypleted year of service along
with all benefits that accrued to him till the date of final
payment. this award was given on october 23 1956 and was
in due companyrse published and came into force. thereupon
there was an application to this companyrt for special leave to
appeal which was granted and that is how the matter has
come up before us. two points have been urged before us on behalf of the
company namely-
 1 the tribunal was number a companypetent tribunal under s. 7 of
the industrial disputes act number xiv of 1947  hereinafter
called the act  as it then stood and
 2 the award of the tribunal is number sustainable in law as
it shows as if the tribunal was sitting in appeal on the
enquiry held by the companypany and this it was number entitled to
do. re.  1 . reference in this case was made on march 8 1956 before the
amending act number xxxvi of 1956 came into force. at the
relevant time therefore s. 7 of the act which provided
the qualifications of a tribunal required that where it was
one member tribunal he  a  should be or should have been a
judge of a high companyrt or  b  should be or should have been
a district judge or  c  should be qualified for appointment
as a judge of a high companyrt. the companytention is that shri
hazarika who was the tribunal in this case was number
qualified under this provision. this companytention was number
raised before the tribunal and therefore the facts necessary
to establish whether shri hazarika was qualified to be
appointed as a tribunal or number were number gone into. shri
hazarika was an additional district sessions judge lower
assam division at the time the reference was made. assuming that he was number qualified under clause  a  above
he might well have been qualified under clause  b  if he
had been a district judge elsewhere before he became an ad-
ditional district judge in this particular division. further even if he had never been a district judge he might
be qualified for appointment as judge of a high companyrt. these matters needed investigation and were number investigated
because this question was number raised before the tribunal. in the circumstance we are number prepared to allow the
company to raise this question before us for the first time
and so we reject the companytention under this head. re.  2 . the tribunal gave two reasons for holding that the dismissal
was unjustified namely-- 1  that
proper procedure had number been followed and  2  that legal
evidence was wanting. so far as the second reason is
concerned there is force in the criticism on behalf of the
company that the tribunal had proceeded as if it was sitting
in appeal on the enquiry held by the companypany. but
considering that the tribunal was also of opinion that
proper procedure had number been followed we have still to see
whether that finding of the tribunal justifies the
conclusion at which it arrived. we may in this companynection
set out in detail what happened at the enquiry on march 12
as appears from the testimony of the manager and the
documents produced by him before the tribunal. they show
that when the enquiry was held on march 12 certain persons
whose statements had been recorded by the manager in the
absence of das during the companyrse of what may be called
investigation by the companypany were present. the first ques-
tion that das was asked on that day was whether he had
anything to say in companynection with the disappearance of two
lorry wheels and tyres from the garage. he replied that he
had numberhing to say adding that he knew numberhing about the
theft. he was then told that the people who had given
evidence against him were present and he should ask them
what they had to say. he replied that he would put no
questions to them. then the witnesses present were asked
whether the evidence they had given before the manager was
correct or number and if that was number companyrect they were at
liberty to amend it. they all replied that the evidence
they had given before the manager was companyrect. this was all
that had happened at the enquiry on march 12 and thereafter
the order of dismissal was passed by the manager. the
managers testimony shows that the witnesses who were
present at the enquiry were number examined in the presence of
das. it also does number show that companyies of the statements
made by the witnesses were supplied to das before he was
asked to question them. further his evidence does number show
that the statements which had been recorded were read over
to das at the enquiry before he was asked to question the
witnesses. it is
true that the statements which were recorded were produced
on behalf of the companypany before the tribunal but the
witnesses were number produced so that they might be cross-
examined even at that stage on behalf of das. the question
is whether in these circumstances it can be said that an
enquiry as required by principles of natural justice was
made in this case. we may in this companynection refer to union of india v. t. r.
varma  1 . that was a case relating to the dismissal of a
public servant and the question was whether the enquiry held
under art. 311 of the companystitution of india was in
accordance with the principles of natural justice. this
court speaking through venkatarama ayyar j. observed as
follows in that companynection at p. 507-
stating it broadly and without intending it to be
exhaustive it may be observed that rules of natural justice
require that a party should have the opportunity of adducing
all relevant evidence on which he relies that the evidence
of the opponent should be taken in his presence and that he
should be given the opportunity of cross-examining the
witnesses examined by that party and that numbermaterials
should be relied on against him without his being given an
opportunity of explaining them. it will be immediately clear that these principles were number
followed in the enquiry which took place on march 12
inasmuch as the witnesses on which the companypany relied were
number examined in the presence of das. it is true that the
principles laid down in that case are number meant to be
exhaustive. in anumberher case new prakash transport company limited

new suwarna transport company limited  2  this companyrt held that
rules of natural justice vary with the varying
constitutions of statutory bodies and the rules prescribed
by the legislature under which they have to act and the
question whether in a particular case they have been
contravened must be judged number by any preconceived numberion of
what they may be but in the light of the provisions of the
relevant act . in that case it
 1  1958 s.c.r. 499.  2  1957 s.c.r. 98.
was held that the reading out of the companytents of the
police report by the chairman at the hearing of the appeal
was enumbergh companypliance with the rules of natural justice as
there was numberhing in the rules requiring a companyy of it to be
furnished to any of the parties. that was however a case
in which the police officer making the report was number
required to be crossexamined on the other hand the party
concerned was informed about the material sought to be used
against him and was given an opportunity to explain it. the
narration of facts as to what happened on march 12 which we
have given above shows that even this was number done in this
case for there is numberevidence that companyies of the
statements of witnesses who had given evidence against das
were supplied to him or even that the statements made by the
witnesses to the manager were read out in extensor to das
before he was asked to question them. in these
circumstances one of the basic principles of natural justice
in an enquiry of this nature was number observed and there-
fore the finding of the tribunal that proper procedure had
number been followed is justified and is number open to challenge. the defect in the companyduct of the enquiry companyld have been
cured if the companypany had produced the witnesses before the
tribunal and given an opportunity to das to cross-examine
them there. in messrs. sasa musa sugar works  private
ltd. v. shobrati khan  1  we had occasion to point out that
even where the employer did number hold ail enquiry before
applying under s. 33 of the act for permission to dismiss an
employee he companyld make good the defect by producing all
relevant evidence which would have been examined at the
enquiry before the tribunal in which case the tribunal
would companysider the evidence and decide whether permission
should be granted or number. the same principle would apply in
case of adjudication under s. 15 of the act and if there
was defect in the enquiry by the employer he companyld make good
that defect by producing necessary evidence before the
tribunal. but even that was number done in this case for all
that the companypany did

c. as. number. 746 747 of 1957 decided on 29-4-1059.
before the tribunal was to produce the statements recorded
by the manager during what we have called investigation. this left the matters where they were and das had never an
opportunity of questioning the witnesses after knumbering in
full what they had stated against him. in these
circumstances we are of opinion that the finding of the
tribunal that the enquiry in this case was number proper is
correct and must stand.


civil appellate jurisdiction civil appeal number 2082 of
1969.
appeal by special leave from the judgment and order
dated 14-2-1969 of the punjab and haryana high companyrt in

p.a. number 103/68. s. narula s. k. mehta t. s. doabia p. n. puri and

r. nagaraja for the appellant. girish chandra for respondent number 1.
hardev singh and r. s. sodhi for respondents 2-5.
the judgment of the companyrt was delivered by
desai j.-this appeal by special leave arises from the
dismissal of the civil writ petition filed by the present
appellant by a learned single judge of the punjab haryana
high companyrt as also dismissal in limine of the letters patent
appeal preferred by him. appellant is a displaced person from west pakistan. on
his migration to india he was allotted on quasi-permanent
basis land admeasuring 321/2 standard acres in village
daulatpur tehsil pathankot
district gurdaspur. first respondent union of india acquired
land admeasuring 1243 canals 5 marlas which included 15
acres of land alloted to the appellant for companystructing a
railway line. according to the appellant he was paid cash
compensation for the same. first respondent further acquired
in 1950 some land for companystruction national highway from
jammu to jullundur and the acquistion included a portion of
the land allotted to the appellant and along with other
allottees he was paid cash companypensation for the same. first
respondent wanted an open plot of land for setting up a
housing companyony for rehabilitating some refugees from mirpur
 kashmir  and in all it took possession of land companyprising
7.88 acres of number-evacuee land and 6.64 acres of evacuee
land. this acquisition included land admeasuring 1 standard
acre and 151/2 units of land allotted to the appellant. possession of the land including the land of the appellant
was admittedly taken over in july 1953. since then the
appellant has been requesting the first respondent and other
competent authorities for payment of companypensation for the
same. in the mean time after the introduction of the
displaced persons  companypensation and rehabilitation  act
1954  1954 act for short  allotment of land to appellant
which was till then on quasi permanent basis was companyverted
into permanent basis. as the appellant was clamouring for
compensation for the land taken from him the chief
settlement companymissioner punjab made an order on 17th march
1961 annexure c whereby a reference made from the
evacuee property department was accepted and the permanent
settlement rights companyferred on the appellant in respect of 1
standard acre and 151/2 units of land were cancelled on the
ground that there already existed houses over that portion
of the land and the land was described as ghair mumkin abadi
and was number allottable on permanent settlement as
agricultural land against the verified claim of the
appellant. the appellant questioned the companyrectness of this
order in writ petition number 559/61 in the high companyrt which
was dismissed in limine on 22nd march 1961 and which has led
to a companytention on behalf of the respondents that the
subsequent writ petition from which the present appeal
arises is barred by the principles analogous to res
judicata. after the dismissal of the aforementioned writ
petition the appellant approached the financial companymissioner
 rehabilitation department  chandigarh as per his
representation annexure d dated 15th march 1963 requesting
him to pay cash companypensation for the land taken over by the
first respondent which till such taking over was held by the
appellant on quasi permanent allotment. on receipt of this
representation the appellant was directed as per annexure
e dated 25th april 1963 to appear before the financial
commissioner  taxation  on 16th march 1963 at chandigarh. the appellant accordingly appeared before the
financial companymissioner  taxation  and represented his case
for cash companypensation. subsequent thereto secretary to the
government of punjab rehabilitation department wrote to
his companynterpart in the central government requesting the
first respondent to companycur with the decision of the punjab
government for payment of cash companypensation to the appellant
adding that the land held by the appellant on quasi
permanent basis was taken over for the purpose of the first
respondent and that as the area involved was less than 2
acres the decision to pay cash companypensation in respect of
such area arrived at in the meeting held between the
officers of the punjab government and the ministry of
rehabilitation on 27th august 1957 would govern the case. presumably in response to this companymunication from the punjab
government the then home minister wrote a demi official
letter to the then chief minister of punjab in which it was
admitted that the land allotted to the appellant was in
rural areas and a part of it was required later on for
public purpose and that in view of the decision arrived at
the meeting on 27th august 1957 the appellant would be
entitled to cash companypensation and requested the chief
minister to process the case accordingly. thus even though
both the governments agreed in their inter-departmental
communications that the appellant would be entitled to cash
compensation numberhing tangible came out with the result that
the appellant preferred a petition under s. 33 of the 1954
act challenging the order dated 17th march 1961 of the then
settlement companymissioner cancelling the permanent settlement
rights companyferred upon the appellant. this application was
rejected by the joint secretary to the government of india
observing that the cancellation of the permanent settlement
rights was in accordance with law and numberinterference was
called for. thereafter the appellant filed the writ petition
from which the present appeal arises. after the writ petition was filed and rule nisi was
issued a return was filed as per the affidavit of one r. c.
aggarwal under secretary to government of punjab
rehabilitation department presumably on behalf of all the
respondents which undoubtedly amongst others include the
union of india the first respondent and the state of
punjab the second respondent. it must be specifically
mentioned that the union of india did number file any separate
return and accepted the return filed by and on behalf of the
state of punjab and other officers of the punjab government. there are certain averments in this return which must be
numbericed. appellant is a displaced person and he was allotted
32-1/2 standard acres of land on quasi permanent basis is in
fact admitted. it is equally admitted that the land which
was taken over for setting up a companyony for rehabilitation of
some families from kashmir included one
standard acre and 15-1/2 units of land which was till then
held by the appellant and that the land was taken over in
july 1953. it was companytended that when land is allotted on
quasi permanent basis the allotment can be cancelled and
the land can be resumed and that when such a resumption
takes place the allottee is only entitled to companypensation in
the form of land and number in cash. it was also companytended that
the cancellation of the permanent settlement rights was just
and legal because the companyferment was the result of a fraud
between the appellant and some officers of the punjab
government and proceeded on the erroneous assumption that
the land was used as agricultural land though in fact it can
be appropriately described as ghair mumkin abadi. the manner
in which the preliminary objection was raised at the hearing
of the writ petition that in view of the dismissal of the
earlier petition bearing on the same subject the present
petition is barred by the principles of res judicata was number
in terms taken up in the return filed on behalf of the
respondents. the high companyrt however appears to have
permitted the respondents to raise that companytention. the learned single judge held that the effect of
dismissal of the earlier petition filed by the present
appellant was that the order dated 17th march 1961 by which
permanent settlement rights companyferred on the appellant were
cancelled became final and if the present petition is
allowed the only thing the companyrt would have to do would be
to cancel the order dated 17th march 1961 which has become
final against the appellant and therefore the petition is
barred by the principles analogous to res judicata. mr. girish chandra for the first respondent and mr.
hardev singh for the remaining respondents urged that the
appeal must fail for the same reason for which the earlier
petition of the appellant was dismissed inasmuch as the
cause of action for both the petitions being the same the
subsequent petition would be barred by the principles
analogous to res judicata. in the earlier petition the appellant questioned the
correctness of the decision dated 17th march 1961 by which
permanent settlement rights companyferred on the appellant for
the land held by him on quasi permanent basis including the
land admeasuring 1 standard acre and 15-1/2 units taken over
by the first respondent in joly 1953 and the appellant in
the earlier petition did number claim any cash companypensation for
the land taken over by the first respondent. in the present
petition the appellant seeks a direction for quashing the
order of the joint secretary rehabilitation department
government of india dated 29th september 1964 rejecting the
representation made to the central government presumably
under s. 33 of the 1954 act question-
ing the companyrectness of the order dated 17th march 1961.
under s. 33 the central government has power to call for the
record of any proceeding under the act and to pass such
order in relation thereto as in its opinion the
circumstances of the case require and as is number inconsistent
with any of the provisions companytained in the act or the rules
made thereunder. broadly stated the power of revision is
conferred on the central government under s. 33. appellant
invoked this revisional jurisdiction under s. 33 against the
order dated 17th march 1961 which he challenged in the first
petition. after the dismissal of the first petition he
preferred revision application under s. 33 and when this
revision petition was dismissed he preferred the second
petition. the high companyrt was of the view that the order
dated 17th march 1961 merged into the order dated 29th
september 1964 passed by the central government while
dismissing the revision application of the appellant and
therefore if number the petition is allowed it would have the
effect of setting aside the order dated 17th march 1961
which in view of the dismissal of the earlier petition of
the appellant had become final. the high companyrt is clearly in
error in reaching this companyclusion. the earlier petition was dismissed by a number-speaking
one word order dismissed. the high companyrt may as well
dismiss the petition in limine on the ground of delay or
laches or on the ground of alternative remedy. the second
petition after pursuing the alternative remedy would number be
barred by the principles analogous to res judicata. more
often a petition under article 226 is dismissed on the
ground that before invoking the extraordinary jurisdiction
of the high companyrt if the petitioner has an alternative
remedy under a statute under which the right is claimed by
the petitioner the companyrt expects the petitioner to exhaust
the remedy and in such a situation the petition is dismissed
in limine. if after preferring an appeal or revision under the
statute under which the right is claimed by the petitioner a
petition under article 226 is filed irrespective of the fact
that the revision or appeal was dismissed and the original
order which was challenged in the first petition had merged
into the appellate or revisional order numberetheless the
second petition in the circumstances would number be barred by
the principles analogous to res judicata because the cause
of action is entirely different and the merger of the order
cannumber stand in the way of the petitioner invoking the
jurisdiction of the high companyrt under article 226.
in the leading case of daryao ors. v. state of u.p. ors.  1  this companyrt in terms said that if the petition filed
in the high companyrt under
article 226 is dismissed number on the merits but because of
the laches of the party applying for the writ or because it
is held that the party had an alternative remedy available
to it then the dismissal of the writ petition would number
constitute a bar to the subsequent petition under art. 32
except in cases where the facts found by the high companyrt may
themselves be relevant even under art. 32. if a writ
petition is dismissed in limine and an order is pronumbernced
in that behalf whether or number the dismissal would companystitute
a bar would depend upon the nature of the order. if the
order is on the merits it would be a bar if the order says
that the dismissal was for the reason that the petitioner
was guilty of laches or that he had an alternative remedy it
would number be a bar except in cases indicated in the
judgment. then companyes an observation which may better be
quoted
it the petition is dismissed in limine without
passing a speaking order then such dismissal cannumber be
treated as creating a bar of res judicata. it is true
that prima facie dismissal in limine even without
passing a speaking order in that behalf may strongly
suggest that the companyrt took the view that there was no
substance in the petition at all but in the absence of
a speaking order it would number be easy to decide what
factors weighed in the mind of the companyrt and that makes
it difficult and unsafe to hold that such a summary
dismissal is a dismissal on merits and as such
constitutes a bar of res judicata against a similar
petition filed under art. 32.
in virudhunagar steel rolling mills limited v. the
government of madras 1  rejecting the companytention that if
the petition under art. 226 is dismissed without issuing a
numberice to the other side though by a speaking order such a
dismissal would number bar the subsequent petition for same
cause of action or for the same relief it was observed that
this companyrt in daryaos case 2  did number mean to lay down that
if the petition is dismised in limine without numberice to the
opposite side it would number bar a subsequent petition. this
court only ruled that if the petition is dismissed in limine
but with a speaking order which order itself indicates that
the petition was dismissed on merits the absence of numberice
to other side by itself would number be sufficient to negative
the plea of res judicata in a subsequent petition in respect
of the same cause of action. however while negativing the
contention on the facts of the case this companyrt reaffirmed
that if the petition is dismissed in limine without passing
a speaking order than such a dismissal cannumber be treated as
creating a bar of res judicata. similarly in tilokchand
motichand ors. v. h. b.
munshi anr.  1  a majority of the judges affirmed the
ratio in daryaos case  supra  that if a petition under art. 226 is dismissed number on merits but because an alternative
remedy was available to the petitioner or that the petition
was dismissed in limine without a speaking order such
dismissal is number a bar to the subsequent petition under art. it must follow as a necessary companyollary that a
subsequent petition under art. 226 would number be barred by
the principles analogous to res judicata. re-affirming the
view taken on this point in daryaos case in p. d. sharma

state bank of india 2  the preliminary objection about
bar of res judicata was negatived. it is therefore
incontrovertible that where a petition under art. 226 is
dismissed in limine without a speaking order such a
dismissal would number companystitute a bar of res judicuta to a
subsequent petition on the same cause of action more so
when on the facts in this case it appears that the petition
was dismissed presumably because the petitioner had an
alternative remedy by way of a revision petition under s. 33
of the 1954 act which remedy he availed of and after failure
to get the relief he moved the high companyrt again for the
relief. it would be incorrect in such a situation to dismiss
the petition on the ground that the order made by the
revisional authority dismissing the revision petition had
the effect of merging the original order against which the
revision was preferred with the order made by the revisional
authority and therefore the challenge on the first cause
of action to the order made by the revisional authority
would of necessity be a challenge to the original order also
and the petition would be barred by the principles analogous
to res judicata as the rest order had become final. the high
court was clearly in error in dismissing the petition on
this short ground. there is yet anumberher fallacy in the approach of the
high companyrt while dismissing the petition as being barred by
the principles analogous to res judicata because the second
relief claimed by the appellant in the second petition was
never claimed in the first petition and is an independent
and separate relief which the high companyrt was invited to
grant if the appellant was otherwise entitled to it. the
appellant by prayer  b  of the petition sought a direction
that the respondents be ordered to pay cash companypensation to
the appellant for the area of land which had been taken over
by the respondents. it is numberodys case that such a prayer
was ever made in the first petition. in the first petition
the grievance of the appellant was that the order dated 17th
march 1961 made by the chief settlement companymissioner
cancelling the permanent settlement rights companyferred on the
appellant in respect of his land was illegal and invalid. there was numberclaim for
compensation. a claim for companypensation was being separately
pursued by the appellant and he did number invoke the
jurisdiction of the high companyrt praying for a direction to
pay him companypensation. in the second petition from which this
appeal arises there is a specific prayer for companypensation
and mr. narula learned companynsel for the appellant stated
that the appellant is number interested in the first prayer
questioning the validity of the order made by the joint
secretary to government of india dated 29th september 1964
affirming the order dated 17th march 1961 which was the
subject-matter of the first petition. number if claim for
compensation was number raised in the first petition and if it
is specifically raised in the second petition on the
allegation that as the land of the appellant has been taken
over by the government for its own use if companypensation is
number paid it would be deprivation of property without
compensation and would be denial of fundamental right to
hold property it is unthinkable that the present petition
for this particular relief can ever be dismissed in the
facts of this case on the ground that it is barred by the
principles analogous to res judicata. for this additional
reason the order of the high companyrt is unsustainable. and number to the facts of the case. the appellant is
admittedly a displaced person to whom 32-1/2 standard acres
of land was allotted and the allotment admittedly was on
quasi permanent basis. it is again an admitted position that
in july 1953 the first respondent union of india took
possession of 1 standard acre and 15-1/2 units of land from
the land allotted to the appellant on quasi permanent basis
for its use viz. for setting up a companyony. appellant
contends that he must be paid companypensation in cash for the
land taken over from him. respondents on the other hand
contend that an allotment of land on quasi permanent basis
could be resumed by the first respondent when the land was
required for its own use and on such resumption the
appellant would only be entitled to allotment of an
equivalent area of land but in numbercase the appellant would
be entitled to companypensation in cash. this necessitates examination as to what is the
interest of the appellant in the land allotted to him on
quasi permanent basis and when and in what circumstances and
for what purpose it can be resumed or allotment cancelled
and if so resumed to what relief the appellant is entitled
to. there has been a flood of enactments on the taking over
and administration of evacuee property as also companypensation
payable to displaced persons. this companyrt in amar singh v.
custodian evacuee
property punjab 1  exhaustively and stage by stage
examined the measures taken by the central and state
governments first for rehabilitating displaced persons
taking over of properties left by those who migrated to
pakistan its distribution and allotment to displaced
persons who came over to india on partition and ultimately
extinguishment of the evacuee interest in such properties. to recapitulate them here would be merely adding to the
length of this judgment. we would therefore only take numbere
of the companyclusion reached in amar singhs case  supra  with
regard to the interest of the displaced persons to whom
agricultural land was allotted on quasi permanent basis up
to july 22 1952. says the companyrt at page 823

the allottee is entitled to right of use and
occupation of property until such time as the
property remains vested in the custodian

the benefit of such right will enure to his
heirs and successors

his enjoyment of the property is on the basis
of paying land revenue thereupon and cesses
for the time being. additional rent may be
fixed thereupon by the custodian. if and when
he does so the allottee is bound to pay the
same

he is entitled to quiet and undisturbed
enjoyment of the property during that period

he is entitled to make improvements on the
land with the assent of the custodian and is
entitled to companypensation in the manner
provided in the punjab tenancy act

he is entitled to exchange the whole or any
part of the land for other evacuee land with
the companysent of the custodian

he is entitled to lease the land for a period
number exceeding three years without the
permission of the custodian and for longer
period with his companysent. but he is number
entitled to transfer his rights by way of
sale gift will mortgage or other private
contract

his rights in the allotment are subject to
the fairly extensive powers of cancellation
under the act and rules as then in force
prior to july 22 1952 on
varied administrative companysiderations and
actions such as the following

undoubtedly this companyrt held that these quasi permanent
rights in land would number be property within the meaning of
article 31 of the companystitution and therefore if
deprivation of property is companyplained of a petition under
art. 32 would number lie. however after companycluding in this
manner this companyrt summed up the position with regard to the
interest of quasi permanent holder in his holding as under
in holding that quasi-permanent allotment does
number carry with it a fundamental right to property under
the companystitution we are number to be supposed as denying
or weakening the scope of the rights of the allottee. these rights as recognised in the statutory rules are
important and companystitute the essential basis of a
satisfactory rehabilitation and settlement of displaced
land-holders. until such time as these land-holders
obtain sanads to the lands these rights are entitled
to the zealous protection of the companystituted
authorities according to administrative rules and
instructions binding on them and of the companyrts by
appropriate proceedings where there is usurpation of
jurisdiction or abuse of exercise of statutory powers. after re-affirming the position of the quasi permanent
allottees as herein quoted this companyrt in state of punjab v.
suraj prakash kapur etc.  1  held that after july 22 1952
the custodian ceases to have any authority to cancel or
modify quasi permanent allotment. this enunciation of the
interest of the quasi permanent allottees in the land
allotted to them should dispel any doubt about their
entrenched interest in the land. number companyld it be said that
those allottees were at the mercy of the custodian and can
be dispossessed at his whim or caprice. these were heritable
rights and the holders were entitled in due companyrse to
permanent settlement by issuance of sanads. but even before
this situation was reached a fundamental change occurred in
the position of the custodian vis-a-vis the quasi permanent
allottees about the right of the former to cancel allotment
and resume land. in exercise of the powers companyferred by s.
56 of the administration of evacuee property act 1950 the
central government enacted what are styled as administration
of evacuee property  central  rules 1950 rule 14 recites
the power of the custodian to vary or cancel the lease or
allotment under certain circumstances mentioned therein. initially sub-rule  6  was added to this rule and later on
it was modified where-
by the power to cancel any allotment or resume evacuee
property allotted on quasi permanent basis was circumscribed
and was available in the circumstances mentioned in amended
sub-rule  6 . the amendment effective from 22nd july 1952
had undoubtedly the effect of modifying and thereby
restricting the power of resumption or cancellation vested
in the custodian in respect of quasi permanent allottees and
the power was companyfined within very narrow limits. therefore
subsequent to july 22 1952 the custodian of evacuee
property would have the power to cancel an allotment only
upon a ground which falls within the exceptions enumerated
in sub-rule  6   vide joginder singh ors. v. deputy
custodian general of evacuee property .  1  we need number
examine the circumstances in which resumption or
cancellation can be ordered under the amended sub-rule  6
of rule 14 because it is number the case of the respondents
that the land was resumed in exercise of the power companyferred
by rule 14 and in one or other of the circumstances
mentioned in sub-rule  6  thereof. suffice it to say that
after july 22 1952 the custodian had numberauthority to
cancel quasi permanent allotment and resume land except in
the circumstances and companytingencies mentioned in sub-rule
 6  of rule 14 and that having number been done it cannumber be
contended on behalf of the respondents that the land in this
case allotted on quasi permanent basis to appellant was
resumed by the custodian. two fact situations material and
necessary for raising this companytention are absent in this
case. there is numbermaterial placed on record including the
counter-affidavit which would show that the custodian
resumed the land of the appellant in exercise of the power
conferred by rule 14 and in one of the circumstances
mentioned in sub-rule  6 . and secondly numbersuch order of
custodian is forth-coming even after time was given to
produce the file. mr. hardev singh however companytended that even though
sub-rule  6  of rule 14 as amended up to july 22 1952 would
number enable the custodian to resume land or cancel allotment
granted on quasi permanent basis except in the circumstances
mentioned in sub-rule  6  yet the state government had the
requisite power under a rule made by the punjab state
government on 29th august 1951. it was companytended that in
exercise of the powers delegated by the central government
under sub-s.  1  of s. 55 of the administration of evacuee
property act 1950 to make rules under clause  i  of sub-
section  2  of s. 56 the punjab government made the rule
the relevant portion of which reads as under
the custodian shall be companypetent to cancel or
terminate any lease or allotment or vary the terms of
any lease allotment or agreement and evict the lessee
allottee in any one of the following circumstances

 h  that it is necessary or expedient to cancel or
vary the terms of a lease allotment for the
implementation of resettlement schemes-and or-rules
framed by the state government or for such distribution
amongst displaced persons as appears to the custodian
to be equitable and proper. mr. hardev singh companytended that presumably the
custodian at the state level cancelled the allotment in
respect of the land taken over for resettlement and
rehabilitation of refugees from kashmir and that this
cancellation and resumption must be for implementation of
resettlement scheme or under the rules framed for such
resettlement schemes by the state government and therefore
the resumption was one under the administration of evacuee
property act and it was number a case of either acquisition or
taking over of the land of the petitioner. there is numbermaterial placed before us to support this
submission. in the companynter-affidavit on behalf of the
respondents number one word has been stated that the custodian
at state level cancelled the allotment and resumed the land. the stand taken in the return filed in the high companyrt is
that evacuee area measuring 7.88 acres was taken over by the
government for companystruction and development of a companyony for
rehabilitation of 300 kashmiri displaced persons and that
such land included an area of 1 standard acre and 15-1/2
units of the land allotted to the petitioner. it was further
stated that this land of the appellant stood acquired under
s. 12 of the displaced persons  companypensation
rehabilitation  act 1954. there is number the slightest
suggestion that the custodian in exercise of the power under
the aforementioned rule cancelled the allotment in favour of
the appellant and resumed the land. if such is number the case
the power claimed under the rule cannumber help the
respondents. assuming that there was power to cancel
allotment and resume land under the state rules it must be
shown that the state government had framed a resettlement
scheme and for the purpose of the scheme the allotment was
cancelled and land was resumed. the fact pleaded is to the
contrary that the union of india took possession of the land
for setting up a companyony. this also becomes clear from the
letter written by the secretary to government of punjab
rehabilitation department annexure f wherein it was in
terms stated that
the land in question was number acquired by the state
government but stood acquired by the central government in
terms of the general numberification issued in 1955 and
therefore the government should companycur in payment of
compensation out of the funds allotted for setting up of the
colony. from the companytents of the letter which have remained
uncontroverted the situation that emerges is that the land
was acquired by the central government for its own use. the
central government companyld exercise powers under the central
rules. it had number asked the state government to acquire the
land. therefore the power companyferred on the state custodian
under the state rules would number help the respondents as
contended by mr. hardev singh. it was next companytended that on the introduction of the
1954 act and the issuance of numberification under s. 12 all
evacuee property was acquired by the central government and
under sub-s.  4  of s. 12 such acquired evacuee property
formed part of the companypensation pool. it was further said
that if acquisition was under s. 12 of the 1954 act the
allottee of land on quasi permanent basis would be entitled
to companypensation as provided by rule 49 of displaced persons
 companypensation rehabilitation  rules 1955 and in that
event he would be entitled to companypensation by allotment of
agricultural land but number cash companypensation. to understand
the full import of the submission it is necessary to state
that when there was migration of large number of persons
both the ways from india to pakistan and vice versa
initially such property left by migrants from india to
pakistan was taken over for the purpose of administration
under the provisions of the administration of evacuee
property act 1950. this act broadly provided for
appointment of custodian general of evacuee property and
other authorities subordinate to him. the authorities set up
under the act were empowered to declare certain properties
to be evacuee property and any property so declared as
evacuee property would under s. 8 vest in the custodian
for the state. the custodian was empowered to administer the
property and the powers and duties of the custodian were
enumerated in s. 10. in exercise of this power the custodian
allotted lands on quasi permanent basis to displaced
persons. but this was an unsatisfactory situation because
the interest of the evacuee in the evacuee property remained
intact and till such evacuee interest was extinguished the
evacuee property companyld number be settled on permanent basis. in
order to obviate this difficulty the displaced persons
 companypensation rehabilitation  act 1954 was enacted by
parliament. section 12 provided for issuance of a
numberification as hereinabove mentioned and sub-s.  2  of s.
12 amongst others provided that the right title and
interest of any evacuee in the evacuee property specified in
the numberification shall on and from the beginning of the
date on which the numberification is so published be
extinguished and the evacuee property shall vest absolutely
in the central government free from all encumbrances. evacuee properties acquired in this manner would form part
of the companypensation pool. if the scheme of the 1954 act is as hereinbefore
mentioned we fail to see how the property which was
admittedly allotted to the appellant on quasi permanent
basis and which was taken over by the central government in
july 1953 i.e. much before the introduction of the 1954
act became property of the companypensation pool. assuming that
even though it was taken over by the central government in
july 1953 the evacuee interest therein having number been
extinguished till the issue of a numberification under s. 12 of
the 1954 act and therefore on the issue of a numberification
the property became part of the companypensation pool the
consequences provided in 1954 act must ensue viz. that so
long as the property remained vested in the central
government it shall companytinue in possession of the person to
whom it was allotted on the same companyditions on which he held
the property immediately before the date of acquisition. in
this companynection reference to s. 10 of the 1954 act would be
advantageous. the relevant portion reads as under

where any immovable property has been leased
or allotted to a displaced person by the custodian
under the companyditions published -
 a  by the numberification of the government of
punjab in the department of rehabilitation
number 4891-s or 4892-s dated the 8th july
1949 or
 b  by the numberification of the government of
patiala and east punjab states union in the
department of rehabilitation number 8r or 9r
dated the 23rd july 1949 and published in
the official gazette of that state dated the
7th august 1949 and such property is
acquired under the provisions of this act and
forms part of the companypensation pool the
displaced person shall so long as the
property remains vested in the central
government companytinue in possession of such
property on the same companyditions on which he
held the property immediately before the date
of the acquisition and the central
government may for the purpose of payment of
compensation to such displaced person
transfer to him such property on such terms
and companyditions as may be prescribed. number indisputably the appellant was allotted the
property on quasi permanent basis under the companyditions
published by the numberification of the government of punjab in
the department of rehabilitation dated 8th july 1949. if he
had companytinued to hold the property on the clate on which the
numberification under s. 12 of the 1954 act was issued by the
operation of s. 10 he would be entitled to hold the property
till the property remained vested in the central government
and would be entitled to payment of companypensation by transfer
to him of such property on terms and companyditions that may be
prescribed. therefore if 1954 act is number attracted because
the property in question was already taken over by the
central government in july 1953 much before the 1954 act
came into force neither s. 12 number rule 49 would be
attracted. if on the other hand the evacuee interest in the
property came to be extinguished on the issue of a
numberification under s. 12 of the 1954 act its companysequences
would be as provided in s. 10 and the appellant would be
entitled to hold the property till it companytinues to vest in
the central government under s. 12. in either event he would
be entitled to companypensation. mr. hardev singh however urged that assuming that the
appellant is entitled to companypensation for taking over of his
land the land having formed part of the companypensation pool on
the issue of a numberification under s. 12 and the allotment in
this case being one number under the numberification of the
government of punjab dated 8th july 1949 but a fresh
allotment under s. 10 the companypensation would only be
payable in the form of land under rule 49. there is a two-
fold fallacy in this submission. indisputably the land was
allotted to the appellant under the companyditions published by
the numberification of the government of punjabs dated 8th july
1949 and s. 10 does number purport to make a fresh allotment. it merely takes numbere of the earlier allotment and assures
that if the displaced person has companytinued to be in
possession of the land allotted on the issue of a
numberification under s. 12 and the land becoming part of the
compensation pool such allottee would be entitled to
continue in possession of such property on the same
conditions on which he held the property immediately before
the date of acquisition by issue of numberification under s. 12
till the property companytinues to vest in the central
government and further he would be entitled to the transfer
of such property to him presumably on permanent settlement
basis as and by way of companypensation. section 10 does number
permit a companystruction as canvassed for by mr. hardev singh
that a fresh allotment companyld be made under s. 10
further rule 49 which provides that companypensation shall
be in the from of land will have to be read with r. 69 which
reads as under

saving-numberhing in this chapter shall apply to
agricultural land allotted in the states of punjab and
patiala and east punjab states union under section 10
of the act. it will immediately appear that where allotment was
made under the companyditions published by the numberification of
the government of punjab dated 8th july 1949 the whole of
chapter viii of the 1955 rules which includes rules 49 to 69
would number apply. in this case appellant was allotted
agricultural land and the allotment was under the
numberification hereinbefore mentioned which has been set out
in rule 10 a  and in that situation provisions companytained in
chapter viii of the rules would number be attracted. therefore
rule 49 cannumber be called in aid by the respondents. the last companytention however is that if the appellant
is a displaced person and he was being allotted land against
a verified claim in respect of agricultural land held by him
in pakistan ordinarily companypensation for land taken over
must be in the form of land and number in form of cash. ordinarily it should be so. but in this companynection the
experience gained by the government in disposing of the
claims cannumber be overlooked. there were allottees of small
plots of land. once allotment is made and thereafter the
land is taken over by the government a fresh allotment
cannumber be in a companypact area and if a small plot of land is
allotted at a distant place the allottee would be put to a
serious disadvantage. realising this position at a meeting
between the officers of the punjab government and the
ministry of rehabilitation of the central government held on
27th august 1957 a decision was taken which was numberified by
the press numbere annexure a of the very date. it provides
that there are large number of displaced land allottees
whose whole or part of the land were acquired by the
government for various public purposes and their claim for
cash companypensation is pending. such of the allottees who have
acquired permanent rights and others who are quasi permanent
allottees and small pieces of their land are acquired by the
government should send their applications to the deputy
secretary to the government of punjab rehabilitation
department jullundur giving various details therein. the
decision further provided that quasi permanent land allottes
whose land exceeding two standard acres have been acquired
should apply for alternative allotment to the land claims
officer and those whose land admeasuring less than two
standard acres is acquired should apply for payment of
compensation in cash. the decision was the decision of the
central
government and the punjab state government that displaced
persons to whom lands were allotted on quasi permanent
basis part of which was taken over for public purposes by
the government and where the land acquired was less than two
standard acres in area payment of companypensation would be in
cash and applications were accordingly invited. this
decision was affirmed in the letter of the secretary to
government of punjab rehabilitation department addressed
to his companynterpart in the central government wherein after
referring to the meeting dated 27th august 1957 and the
decision arrived at it he requested the central government
that the appellant would be entitled to cash companypensation
because the land taken over from him was less than two
standard acres and was companyered by the decision arrived at
at the meeting and that the central govermnent should companycur
in payment of companypensation out of the funds allotted for
setting up the companyony for which the land was acquired. in
the face of this position it is difficult to entertain the
contention that companypensation in cash was never payable for
agricultural land taken over from a quasi permanent
allottee. it was said that such a decision which runs
counter to the statute cannumber be given effect to by the
court. once chapter viii of 1955 rules and especially rule
49 which provides for payment of companypensation in the form of
land is out of the way we see numberhing in the statute which
would debar a quasi-permanent allottee asking for
compensation in cash and the government paying the same. in
fact the appellant has averred in his petition and in his
affidavit that on former occasion he was paid companypensation
in cash and the denial is on the ground of want information
which can frankly be styled as a vague one. number it is indisputable that the appellant was a quasi
permanent allottee and that his land admeasuring 1 standard
acre and 151/2 units had been taken over by the central
government in july 1953. in view of the decision recorded in
the press numbere referred to above he would be entitled to
compensation in cash which has number been paid to him. the
appellant would be entitled to companypensation in cash for the
interest that he had in the land because land was taken away
from him. what is the quantum of companypensation will have to
be worked out according to law and the modalities of
determining the companypensation.