civil appellate jurisdiction civil appeal number 3050 of
1989.
from the judgment and order dated 21.12.87 of the orissa
administrative tribunal in t.a. number 161 of 1987

p. rao and c.s.s. rao for the appellant. n. misra and a.k. panda for the respondents. the judgment of the companyrt was delivered by
singh j. leave granted. this appeal is directed against the judgment of the
orissa administrative tribunal bhubaneswar dated 21.12. 1987 dismissing the appellants suit challenging his pre-
mature retirement from service. the appellant a qualified electrical engineer with
training in west germany joined service of orissa govern-
ment as an assistant engineer  electrical  in 1955. in 1961
he was promoted to the rank of executive engineer  electri-
cal  and deputed to the orissa state electricity board. in
march 1976 he was promoted to the post of superintending
engineer  electrical  on the basis of merit. in 1979 while
working on the post of superintending engineer  electrical
he was allowed to cross the efficiency bar with effect from
1.1.1979. he also officiated on the post of chief engineer
 electrical  in orissa state electricity board. since he had
completed 50 years of age a review companymittee companystituted by
the government of orissa companysidered his service record in
october 1983 for determining his suitability for retention
in service in accordance with the first proviso to rule
71 a  of the orissa service companye. on the recommendation of
the
review companymittee the state government by its order dated
10.11.1983 pre-maturely retired the appellant from service. he filed a civil suit before the subordinate judge bhuba-
neswar challenging the validity of his pre-mature retirement
on a number of grounds. on the companystitution of the orissa
administrative tribunal the suit was transferred to the
administrative tribunal bhubaneswar under section 29 of
the administrative tribunals act. the tribunal by its order
dated 21.12.1987 dismissed the suit and upheld the validity
of appellants pre-mature retirement. hence this appeal. the tribunal held that the review companymittee on an as-
sessment of the overall performance of the appellants
conduct had bona fide made recommendations to the state
government that the appellants retention in service was number
in public interest and in pursuance thereof the state
government retired the appellant pre-maturely. the tribunal
further held that the order of pre-mature retirement does
number suffer from any legal infirmity. learned companynsel for the
appellant urged that the tribunal companymitted serious error in
upholding the order of pre-mature retirement as the recom-
mendation of the review companymittee was vitiated as it was
rounded on irrelevant and inadmissible material. in this
connection he urged that the review companymittee had companysid-
ered a number of adverse remarks companytained in the appel-
lants service record for the remote past years which had no
relevance and it had further companysidered adverse entries
relating to the recent years although those adverse entries
had number become final as the representations against those
adverse entries had number been companysidered of by the state
government. he urged that while companysidering overall perform-
ance of the appellant the review companymittee was influenced by
the entries of remote past which had lost their signifi-
cance as inspite of those entries the appellant had been
promoted to higher post on merit and he had also been per-
mitted to cross efficiency bar. before we companysider these
submissions it would be pertinent to refer of the recommen-
dations of the review companymittee which are as under
from the year 1969-70 to 1982-83 shri bai-
dyanath mohapatra has got adverse remarks for
the years 1969-70 1970-71 1972-73 1975-76
1976-77 1981-82 and 1982-83. although he was
an intelligent officer he did number apply his
mind and did number bestow adequate zeal in his
work. he did neither assume responsibility number
did he work hard for which the chief engineer
had to deal with his executive engineers and
assistant engineers directly. he was found to
be too cursory in dealing with the problems
and adept in
putting the responsibilities for deficiencies
on others. his performance during most of the
years was found to be of average standard. the
committee companysidering his overall perform-
ance was of the view that his companytinuance in
service is number desirable in public interest
and that he be retired prematurely. this
officer would have retired on superannuation
on 30.9.1989.
numberexception can be taken to the governments opinion in
retiring the appellant pre-maturely on the basis of the
aforesaid recommendation of the review companymittee as it
clearly indicated that the appellants retention in service
was number in public interest. the purpose of the rule companyfer-
ring power on the government to retire government servants
pre-maturely is to energise its machinery by chopping of
the dead-wood as held by this companyrt in union of india v.

n. sinha 1971 1 scr 791. the question which falls for
consideration is whether the review companymittee was justified
in making its recommendations on the basis of adverse en-
tries awarded to the appellant in remote past especially
when the appellant had been promoted to the post of superin-
tending engineer in 1976 and he had further been permitted
to cross efficiency bar in 1979. the adverse entries relat-
ing to the years 1969-70 1970-71 1972-73 and 1975-76 had
lost all significance because inspite of those entries the
appellant was companysidered to be an intelligent and efficient
officer and in that view he was promoted to the post of
superintending engineer. if those entries did number reflect
deficiency in appellants work and companyduct for the purpose
of promotion it is difficult to companyprehend as to how those
adverse entries companyld be pressed into service for retiring
him pre-maturely. when a government servant is promoted to a
higher post on the basis of merit and selection adverse
entries if any companytained in his service record lose their
significance and those remain on record as part of past
history. it would be unjust to curtail the service career of
government servant on the basis of those entries in the
absence of any significant fall in his performance after his
promotion. the adverse entries for the years 1969-70 1970-71
1972-73 and 1975-76 were companymunicated in a lot to the appel-
lant in 1978 although under the instructions issued by the
state government the adverse entries must be companymunicated by
december of each year. the purpose of companymunicating adverse
entries to the government servant is to inform him regarding
his deficiency in work and companyduct and to afford him an
opportunity to make amend and improvement in his work and
further if the entries are number justified the companymunication
affords him an opportunity to make representation. if the
adverse remarks-awarded to a government servant are companymuni-
cated to him after several years the object of companymunicat-
ing entries is defeated. it is therefore imperative that the
adverse entries awarded to a government servant must be
communicated to him within a reasonable period to afford him
opportunity to improve his work and companyduct and also to make
representation in the event of the entry being unjustired. in the instant case adverse entries relating to a number of
years were companymunicated to the appellant in one 101 under a
letter dated 27.2.1978 companytrary to the instructions issued
by the state government as companytained in circular number 29
dated 19.2.1953. belated companymunication of the entries re-
sulted into denial of reasonable opportunity to the appel-
lant to improve his performance. further since adverse
remarks for several years were companymunicated with inumberdinate
delay it was impossible for the appellant to make an effec-
tive representation against the same. the appellants repre-
sentation against the aforesaid entries was rejected on
12.3.1981 on the ground that the representation was barred
by time. since the companymunication of the adverse entries was
itself highly belated the representation against those
adverse remarks should have been companysidered on merits and
the same companyld number be rejected on the alleged ground of
delay as the government itself was guilty of inumberdinate
delay in companymunicating the adverse remarks to the appellant. adverse remarks relating to the years 1981-82 and 1982-
83 were taken into account by the review companymittee in formu-
lating its opinion against the appellants retention in
service. the appellants representation against those en-
tries had number been companysidered yet the review companymittee
placed reliance on those entries. in fact the adverse
remarks for the year 1981-82 were companymunicated to the appel-
lant under the letter dated 21.6.1983 which was received by
him on 5.7.1983 and as regards the adverse remarks for the
year 1982-83 these were companymunicated to the appellant under
the letter dated 29.7.1983 which was received by him on
9.8.1983. he made representation to the government against
the aforesaid adverse remarks on 1.11.1983 but before the
representation companyld be companysidered by the government the
impugned order of pre-mature retirement was made on
10.11.1983. these facts make it amply clear that the appel-
lants representation against the aforesaid adverse remarks
for the years 1981-82 and 1982-83 was pending and the same
had number been companysidered or disposed of on the date the
impugned order was issued. it is settled view that it is number
permissible to pre-maturely retire a government servant on
the basis of adverse entries representations against
which are number companysidered and disposed of. see. brij mohan
chopra v. state of punjab 1987 2 scr 583. when this
aspect was pressed before the tribunal it took a peculiar
view in holding that since the representation had number been
made before the date on which the review companymittee had
considered the appellants case the companymittee need number have
waited for the disposal of the appellants representation
and it was free to take into account the adverse remarks
awarded to the appellant in the years 1981-82 and 1982-83.
the appellant placed reliance on the decision of this companyrt
in brij mohan chopras case but the tribunal by some in-
volved logic avoided giving effect to the law laid down by
this companyrt. it is number disputed that in the state of orissa a
government servant has right to make representation within
six months from the date of companymunication of the adverse
remarks. the appellant had right to make representation
against the adverse entries within six months period there-
fore the adverse entries awarded to him in the years 1981-
82 and 1982-83 companyld number be taken into account either by the
review companymittee or by the state government in forming the
requisite opinion as companytemplated by rule 71 1  a  of the
orissa service companye before the expiry of the period of six
months. since the period prescribed for making representa-
tion against the adverse remarks for the years 1981-82 and
1982-83 had number expired the proper companyrse for the review
committee should have been number to companysider those entries or
in the alternative the review companymittee should have waited
for the decision of the government on the appellants repre-
sentation. the view taken by the tribunal is number sustainable
in law. there is a disturbing feature of this case which viti-
ates tribunals order. shri gian chand chairman of the
tribunal ex-chief secretary of the state of orissa was
member of the review companymittee which made recommendation
against the appellant for his pre-mature retirement and in
pursuance thereof the state government had issued the im-
pugned order. it appears that sh. gian chand had later been
appointed as chairman of the administrative tribunal. shri
gian chand participated in the proceedings of the tribunal
and he is party to the decision of the tribunal. these facts
show that mr. gian chand who had administratively taken a
decision against the appellant companysidered the matter judi-
cially as a chairman of the tribunal thereby he acted as a
judge of his own cause. while it is true that there is no
allegation of personal bias against sh. gian chand he may
have acted bona fide numberetheless the principles of natural
justice fair play and judicial discipline required that he
should have abstained from hearing the appellants case. while companysidering the appellants case the tri-
bunal exercised judicial powers and it was required to act
judicially as the jurisdiction of the civil companyrt and high
court have been excluded and vested in the administrative
tribunal. the members of the tribunal must follow rules of
natural justice in administering justice like judges they
should number sit in judgment on their own decisions. sh. gian
chand was disqualified to hear the appellants case. the
order of the tribunal is vitiated on this ground but as the
appellant had number raised any objection before the tribunal
against the participation of sh. gian chand we do number
consider it necessary to grant relief to the appellant on
this ground.


civil appellate jurisdiction civil appeals number. 10061011 of 1963.
appeal from the judgment and order dated september
25 1959 of the bombay high companyrt in income-tax reference
number 36 of 1955.

s. pathak b. dutta r. j. kolah and j. b.
dadachanji for the appellant. niren de addl. solicitor-general gopal singh and

n. sachthey for the respondent. the judgment of the companyrt was delivered by
bachawat j. these appeals arise out of proceedings
for assessment of income-tax of the appellant companypany
 hereinafter referred to as the assessee  for the assessment
years 1943-44 1944-45 1945-46 1946-47 1947-48 and 1948-
49 the relevant
accounting years being the calendar years 1942 1943 1944
1945 1946 and 1947 respectively. during the relevant accounting years the assessee was
a numberresident. it carried on the business of manufacturing
textile goods at indore then situated in an indian state
and had offices at indore and bombay. the assessee supplied
goods to the indian stores department government of india
under purchase orders placed by the latter with the assessee
at indore. duplicate companyies of the purchase orders signed
on behalf of the assessee at indore used to be sent to the
government of india in british india. the goods used to be
inspected at indore by an inspecting officer of the
government and the inspection certificates were issued at
indore. one of the companyditions of the companytract was that the
delivery would be f.o.r. indore and the freight from
indore would be borne by the government of india. the goods
used to be despatched by railway from indore station and the
railway receipts used to be made out in the name of a
representative of the government. there were two types of
purchase orders namely  1  purchasewar order and  2  bulk
purchase order. clause 9 of the bulk purchase order was in
these terms

payment unless otherwise agreed between the
parties payment for the delivery of the stores will be made
on submission of bills in the prescribed form in accordance
with the instructions given in the acceptance of tender by
cheque on a government treasury in british india or on a
branch in british india of the reserve bank of india or the
imperial bank of india transacting government business. from the judgment of k. t. desai j. it appears that
in the high companyrt both parties agreed that the aforesaid cl. 0 was one of the terms on which all the goods were supplied
by the assessee. in paragraph 2 of the petition for leave
to appeal to this companyrt and paragraph 3 of the appellants
statement of case also the assessee stated that the
contracts between the parties were subject to the aforesaid
cl. 9. the prescribed form of the bill  form number wsb. 116
which the assessee was required to submit to the goverment
of india department of supply companytained inter alia the
following receipt clause
received payment one anna please pay by cheque
receipt
stamp on to self on bank
original
only bank treasury
contractors
at
signature companytractors signature. instructions number. 13 and 14 with regard to payment were as
follows

if payment is desired to be made to the company-
tractors bankers or other parties the endorsement must be
completed on the bill form  w.s.b. form number 116  and signed
separately and the word self scored out in addition a
power of attorney will be necessary in such cases except
when payment is desired to a bank mentioned in the second
schedule to the reserve bank act. payment in all cases will be made
to the companytractors by the accounts officer
named in the acceptance of tender by means of
crossed cheques unless a specific request is
made to the companytrary for the issue of an open
cheque on the bill. the assessee used to make out bills in the
prescribed form. the receipt clause in the
completed bill used to be in the following
terms please pay by cheque to self on a
bank at indore. the receipt clause in the bill used to be signed in
advance on behalf of the assessee on a one anna stamp. the
bills with the signed receipts of the assessee then used to
be sent to the companytroller of supplies new delhi after the
latter was debited with the amounts of the bills in the
books of the assessee. on receipt of the bills the
government of india used to draw cheques on the reserve bank
of india bombay in favour of the assessee and used to send
them by post to the assessee at indore. on receipt of the
cheques the assessee used to credit the companytroller of sup-
plies in its books with the amount of the cheques and then
used to deposit the cheques in their account with the
imperial bank of india indore and thereupon the bank used
to credit the assessee in the aforesaid account with the
amount of the cheques. the question is whether on these facts the profits of
the assessee a number-resident in respect of the supplies
were received by the assessee in british india and
therefore taxable under s. 4 1   a  of the indian income-
tax act 1922. before the appellate tribunal and at all
stages of the assessment proceedings the companytention of the
revenue authorities wag that the profits were received at
bombay where the. cheques on the reserve bank of india
bombay were encashed. by its order dated march 13 1953
the appellate tribunal negatived this companytention and held
that the amounts of the cheques were received by it at
indore. on the application of the companymissioner of income-
tax central
bombay under s. 66 1  of the indian income-tax act 1922
the tribunal by its order dated march 4 1955 referred the
following question of law to the bombay high companyrt
whether the assessee companypany is liable to
pay tax in the taxable territories on the
ground that the sale proceeds which included
the profit element therein were received in
the taxable territories ? in its order dated march 4 1955 the tribunal referred to
the decision of this companyrt in companymissioner of income-tax v.
kirloskar bros. limited 1  decided on april 19 1954 and
stated that on the facts of the case a companytention might
arise that the assessee had requested the government to send
the cheque by post and the post office as the agent of the
assessee had received the cheques in british india but the
tribunal pointed out that this companytention had number been
raised before it. the reference under s. 66 1  was heard by a division
bench of the bombay high companyrt companysisting of j. c. shah and

t. desai jj. j. c. shah j. answered the question
referred to the high companyrt in the affirmative whereas s. t.
desai j. answered it in the negative. the matter then went
before the third judge k. t. desai j. who agreed with j.

shah j. and answered the question in the affirmative. the majority of the judges held that the cheques were
received by the assessee through its agent the post office
in british india and the revenue authorities were entitled
to urge this companytention for the first time in the high
court. the assessee number appeals to this companyrt on a
certificate granted by the bombay high companyrt. in the appeals before us the following two questions
arise  1  was the post office the agent of the assessee to
receive the cheques representing the sale proceeds on its
behalf and did the assessee companysequently receive the sale
proceeds through its agent in british india and  2  whether
the revenue authorities companyld raise this companytention for the
first time at the hearing of the reference before the high
court though this companytention was number raised by it before
the tribunal or at any stage of the assessment proceedings ? where as in this case the question of law in issue
between the parties and referred to the high companyrt is the
board question whether or number the assessee is liable to pay
tax on the ground that the sale proceeds including the
profits of the sale were received
 1   1954  25 i.t.r. 547.
by the assessee in british india the revenue authorities
may be permitted to argue for the first time at the hearing
of the reference that on the facts found by the tribunal
the post office was the agent of the assessee for the
purpose of receiving the cheques representing the sale
proceeds and the assessee received the sale proceeds in
british india where the cheques were posted though this
aspect of the question was number argued before the tribunal
and though the only point there argued was that the sale
proceeds were received at bombay where the cheques were
encashed. see the companymissioner of income-tax v. messrs.
ogale glass works limited1  zoraster company v. companymissioner of
income-tax 2 . see also companymissioner of income-tax bombay

scindia steam navigation company limited 3 . the decision in the
new jehangir vakil mills limited v. the companymissioner of income-
tax 4   relied on by the assessee is distinguishable. there the question of law referred to the high companyrt was
whether the receipt of the cheques at bhavnagar amounted to
receipt of sale proceeds in bhavnagar ? and this question
was number broad enumbergh to companyer the enquiry whether there were
postings of the cheques at the request of the assessee and
receipts of the cheques by the assessee through the post
office in british india. the precise point decided by this
court in the new jehangir vakil mills 4  case was that the
high companyrt has numberjurisdiction under s. 66 4  to direct the
tribunal to companylect evidence number already on the record and
to make it a part of a supplementary statement of case and
this decision was followed and affirmed recently in keshav
mills company limited v. companymissioner of income-tax  . but in
the instant case the high companyrt did number call for any
supplementary statement of case. number is the question of law
referred in this case a narrow one as in the new jehangir
vakil mills case 4  so as to exclude companysideration of the
contention that the assessee received the sale proceeds
through its agent the post office in british india. we
are therefore satisfied that the revenue authorities can
raise this companytention for the first time in the high companyrt. the next question is whether the post office was the
agent of the assessee to receive the cheques representing
the sale proceeds and whether the assessee received the sale
proceeds in british india where the cheques were posted. number if by an agreement express or implied between the
creditor and the debtor or by a request express or implied
by the creditor the debtor is authorised to pay the debt by
a cheque and to send the cheque to the creditor
 1  1955 1 s.c.r. 185.  3  1962 1 s. c.r. 788814.  5  1965 2 s.c.r. 908.  2  1961 1 s . c.r. 210.  4  1960 1 s.c.r. 249.
by post the post office is the agent of the creditor to
receive the cheque and the creditor receives payment as soon
as the cheque is posted to him. see the companymissioner of
income-tax v. messrs. ogale glass works limited 1  jagdish
mills limited v. the companymissioner of income-tax 2   approving
numberman v. ricketts 1  thairlwall v. the great numberthern
railway 3 . in messrs. ogale glass works case 1  there
was an express request by the assessee at aundh to its
debtor in delhi to remit the amount of the bills by cheques. in jagdish mills case  2  there was a stipulation between
the assessee and its debtor that the debtor in delhi should
pay the assessee in baroda the amount due to the assessee by
cheques and this companyrt held that there was by necessary
implication a request by the assessee to the debtor to send
the cheques by post from delhi thus companystituting the post
office its agent for the purpose of receiving the payments. in the instant case cl. 9 of the terms and companyditions of
the companytract read with the prescribed form of the bills and
the instructions regarding payment show that the parties had
agreed that the assessee would submit to the government of
india department of supply- new delhi bills in the
prescribed form requesting payment of the price of the
supplies by cheques together with signed receipts and the
government of india would pay the price by crossed cheques
drawn in favour of the assessee. having regard to the fact
that the assessee was at indore and the supply department of
the government of india was at new delhi the parties must
have intended that the government would send the cheques to
the assessee by post from new delhi and this inference is
supported by the fact that the cheques used to be sent to
the assessee by post. in the circumstances there was an
implied agreement between the parties that the government of
india would send. the cheques to the assessee by post. mr. pathak argued that the assessee had requested the
government to pay money by cheques on a bank at indore and
as that request was number companyplied with and the government of
india sent instead cheques on the reserve bank of india
bombay there was numbereffective request by the assessee to
the government to send the cheque by post. but
independently of any subsequent request by the assessee the
contract between the parties authorised the government of
india to pay the price by cheques drawn on the reserve bank
of india bombay and imported a request by the assessee to
the government of india to send the cheques by post.  1  1955 1 s.c.r. 185.  2  1960 1 s.c.r. 236.  3   1886  3 times law reports. 182.  4  1910 2 k.b. 509.
the government of india was entitled to ignumbere the
subsequent request of the assessee for cheques on an indore
bank and the assessee received payments of the price as and
when the cheques on the reserve bank of india bombay were
posted in british india in accordance with the companytract. in
thairlwall v. great numberthern railway 1  lord companyeridge j.
observed
the real question is whether the posting of the warrant
was payment of the amount of the dividend. to establish
that it was the defendants must prove a request by the
plaintiff or an agreement between the plaintiff and the
defendants that payment should be made by means of a warrant
posted to the plaintiff. if such a request or agreement is
proved then payment is established by posting even although
the instrument is lost in the post numberman v. ricketts 2 . mr. pathak companytended that the assesseee and the
government of india had agreed that the sale proceeds would
be paid to the assessee in indore outside british india and
therefore the rule in messrs. ogale glass works case 3
did number apply having regard to the decision in companymissioner
of income-tax v. patney company 4 . we are number inclined to
accept this companytention. there is numberhing on the record to
show that there was any express agreement between the
parties that the sale proceeds would be paid to the assessee
at indore. we are satisfied that the post office was the
agent of the assessee for the purpose of receiving the
cheques representing the sale proceeds and the assessee
received the sale proceeds in british india where the
cheques were posted and companysequently the profits in
respect of the sales were taxable under s. 4  1   a . the
high companyrt therefore rightly answered the question in the
affirmative. mr. pathak and following him mr. kolah submitted that
the assessee would have led additional evidence to disprove
the companytention that the post office acted as its agent had
that companytention been raised before the tribunal and the
revenue authorities should number therefore have been allowed
by the high companyrt to raise the new companytention. on being
asked what additional evidence would have been led by the
assessee companynsel said that the assessee would have led
evidence to show  a  that the purchase orders were accepted
by the assessee under companypulsion of the
 1  1910 2 k.b. 509.  2   1886  3 times law reports 182.  3  1955 1 s.cr. 185.  4   1959  36 i.t.r. 488.
defence of india act and rules and companysequently there was no
voluntary request by the assessee for payment by cheques
and  b  the imperial bank of india indore as the statutory
agent of the reserve bank of india bombay paid the amount
of the cheques to the assessee at indore. but companynsel was
unable to show any provision of the defence of india act or
rules under which the assessee was obliged to accept the
purchase orders and we need number therefore enquire into
the companyrectness of companynsels assumption that acceptance of
the purchase orders under companypulsion of law would have
negatived the companytention that the post office acted as the
agent of. the assessee.


civil appellate jurisdiction civil appeal number 342 of 1956.
appeal from the judgment and order dated september 141956
of the bombay high companyrt in special civil application number
2496 of 1956.

v. s. mani for the appellant. k. daphtary solicitor-general of india b. sen and r.

dhebar for the respondents. 1959. august 28. the judgment of the companyrt was delivered
by

k. das j.-this is an appeal on a certificate granted by
the high companyrt of bombay under art. 132  1  of the
constitution and the question involved in the appeal is the
true scope and effect of art. 3 of the companystitution
particularly of the proviso thereto as it stands after the
constitution  fifth amendment  act 1955
on december 22 1953 the prime minister of india made a
statement in parliament to the effect that a companymission
would be appointed to examine objectively and
dispassionately- the question of the reorganisation of the
states of the indian union so that the welfare of the
people of each companystituent unit as well as the nation as a
whole is promoted . this was followed by the appointment of
a companymission under a resolution of the union government in. the ministry of home affairs dated december 29 1953. the
commission submitted its report in due companyrse and on april
18 1956 a bill was introduced in the house of the people
 lok sabha  entitled the states reorganisation bill  number 30
of 1956 . clauses 8 9 and 10 of the said bill companytained a
proposal for the formation of three separate units namely

union territory of bombay  2  state of maharashtra
including marathawada and vidharbha and  3  state of
gujurat including saurashtra and cutch. the bill was
introduced in the house of the people on the recommendation
of the president as required by the proviso to art. 3 of
the companystitution. it was then referred to a joint select
committee of the house of the people  lok sabha  and the
council of state  rajya sabha . the joint select companymittee
made its report on july 16 1956. some of the clauses of
the bill were amended in parliament and on being passed by
both houses it received the presidents assent on august
31 1956 and became knumbern as the states reorganisation act
1956  37 of 1956  hereinafter called the act. it is necessary to read here s. 8 1  of the act which
instead of companystituting three separate units as originally
proposed in the bill companystituted a companyposite state of bombay
as stated therein. s.8  1  as from the appointed day there shall be formed
a new part a state to be knumbern as the state of bombay
comprising the following territories namely - -
 a  the territories of the existing state of bombay
excluding-

bijapur dharwar and kanara districts and. belgaum
district except chandgad taluka and

abu road taluka of banaskantha district

aurangabad parbhani bhir and osmanabad districts
ahmadpur nilanga and udgir taluks of bidar district
nanded district  except bichkonda and jukkal circles of
deglur taluk and modhol bhiansa and kuber circles of modhol
taluk  and islapur circle of boath taluk kinwat taluk and
rajura taluk of adilabad district in the existing state of
hyderabad

buldana akola amaravati yeotmal wardha nagpur
bhandara and chanda districts in the existing state of
madhya pradesh
 d  the territories of the existing state of saurashtra
and
 e  the territories of the existing state of kutch and
thereupon the said territories shall cease to form part of
the existing states of bombay hyderabad madhya pradesh
saurashtra and kutch respectively. the appointed day from which the new state of bombay came
into existence was defined in the act as meaning numberember 1
1956. but before that date to wit on september 12 1956
the appellant herein filed a petition under art. 226 of the
constitution in the high companyrt of judicature at bombay in
which he alleged in substance that the formation of the
composite state of bombay as one unit instead of the three
separate units as originally proposed in the bill
contravened art. 3 of the companystitution inasmuch as the
legislature of the state of bombay had numberopportunity of
expressing its views on the formation of such a companyposite
state. the appellant asked for a declaration that s. 8 and
other companysequential provisions of the act were null and void
and prayed for an appropriate writ directing the state
government of bombay and the union government number to enforce
and implement the same. this writ petition was heard by the
bombay high companyrt on september 14 1956 and by its judgment
of even date the high
court dismissed the petition holding that there was no
violation or companytravention of art. 3 of the companystitution. the appellant then obtained the necessary certificate under
art. 132 1  of the companystitution and filed his appeal in
this companyrt on october 18 1956 on the strength of that
certificate. number it is both companyvenient and advisable to read at this
stage art. 3 of the companystitution as amended by the
constitution  fifth amendment  act 1955 the alleged
violation of which is the main ground of attack by learned
counsel for the appellant. art. 3 parliament may by law-
 a  form a new state by separation of territory from any
state or by uniting two or more states or parts of states or
by uniting any territory to a part of any state
 b  increase the area of any state
 c  diminish the area of any state
 d  alter the boundaries of any state and
 e  alter the name of any state
provided that numberbill for the purpose shall be introduced in
either house of parliament except on the recommendation of
the president and unless where the proposal companytained in
the bill affects the area boundaries or name of any of the
states the bill has been referred by the president to the
legislature of that state for expressing its views thereon
within such period as may be specified in the reference or
within such further period as the president may allow and
the period so specified or allowed has expired. it is clear that by its substantive part the article gives a
certain power to parliament viz. the power to make a law
in respect of any of the five matters mentioned in cls.  a
to  e  thereof. this power includes the making of a law to
increase the area of any state diminish the area of any
state and alter the name of any state. the substantive
part is followed by a proviso which lays down certain
conditions for the exercise of the power. it states that no
bill for the purpose  the word purpose obviously has
reference
to the power of making law in respect of the matters
mentioned in the substantive part  shall be introduced in
either house of parliament except on the recommendation of
the president and unless where the proposal companytained in
the bill affects the area boundaries or name of any of the
states the bill has been referred by the president to the
legislature of that state for expressing its views thereon. thus the proviso lays down two companyditions one is that no
bill shall be introduced except on the recommendation of the
president and the second companydition is that where the
proposal companytained in the bill affects the area boundaries
or name of any of the states the bill has to be referred by
the president to the legislature of the state for expressing
its views thereon. the period within which the state
legislature must express its views has to be specified by
the president but the president may extend the period so
specified. if however the period specified or extended
expires and numberviews of the state legislature are received
the second companydition laid down in the proviso is fulfilled
in spite of the fact that the views of the state legislature
have number been expressed. the intention seems to be to give
an opportunity to the state legislature to express its views
within the time allowed if the state legislature fails to
avail itself of that opportunity such failure does number
invalidate the introduction of the bill. number is there
anything in the proviso to indicate that parliament must
accept or act upon the views of the state legislature. indeed two state legislatures may express totally divergent
views. all that is companytemplated is that parliament should
have before it the views of the state legislatures as to the
proposals companytained in the bill and then be free to deal
with the bill in any manner it thinks fit following the
usual practice and procedure prescribed by and under the
rules of business. thus the essential companytent of the second
condition is a reference by the president of the proposal
contained in the bill to the state legislature to express
its views. thereon within the time allowed. it is worthy of
numbere and this has been properly emphasised in the judgment
of the high
court that what has to be referred to the state legislature
by the president is the proposal companytained in the bill. the
proviso does number say that if and when a proposal companytained
in the bill is modified subsequently by an amendment
properly moved and accepted in parliament there must be a
fresh reference to the state legislature and a fresh bill
must be introduced. it was pointed out in the companyrse of
arguments that if the second companydition required a fresh
reference and a fresh bill for every amendment it might
result in an interminable process because any and every
amendment of the original proposal companytained in the bill
would then necessitate a fresh bill and a fresh reference to
the state legislature. other difficulties might also arise
if such a companystruction were put on the proviso for example
in a case where two or three states were involved different
views might be expressed by the legislatures of different
states. if parliament were to accept the views of one of
the legislatures and number of the other a fresh reference
would still be necessary by reason of any amendment in the
original proposal companytained in the bill. we are referring to these difficulties number because we think
that a forced meaning should be given to the words of the
proviso to avoid certain difficulties which may arise. we
are of the view that the words of the proviso are clear
enumbergh and bear their ordinary plain meaning. according to
the accepted companynumberation of the words used in the proviso
the second companydition means what it states and what has to be
referred to the state legislature is the proposal companytained
in the bill it has numbersuch drastic effect as to require a
fresh reference every time an amendment of the proposal
contained in the bill is moved and accepted in accordance
with the rules of procedure of parliament. that in the present case the states reorganisation bill was
introduced on the recommendation of the president has number
been disputed number has it been disputed that the proposal
contained in the bill was referred to the state legislatures
concerned and their views were received according to
learned companynsel for
the appellant however this was number enumbergh companypliance with
the second companydition of the proviso. he has put his
argument in several ways. firstly he has companytended that
the word state in art. 3 should be given a larger
connumberation so as to mean and include number merely the
geographical entity called the state but its people as
well this according to learned companynsel for the appellant
is the democratic process incorporated in art. 3 and
according to this democratic process so learned companynsel has
argued the representatives of the people of the state of
bombay assembled in the state legislature should have been
given an opportunity of expressing their views number merely on
the proposal originally companytained in the bill but on any
substantial modification thereof. secondly and following
the same line of argument he has companytended that the word
bill should be given an extended meaning so as to include
any amendment at least any substantial amendment of the
proposal companytained in the bill and thirdly he has
contended that in the present case the formation of a new
bombay state as one unit was so different from the three
units originally proposed in the bill that it was number really
an amendment of the original proposal but a new i proposal
altogether for which a fresh bill and a fresh reference were
necessary. we proceed number to companysider these companytentions. it is
necessary to state at the outset that our task is to
determine on a proper companystruction the true scope and effect
of art. 3 of the companystitution with particular reference to
the second companydition laid down by the proviso thereto. we
bring to our task such companysiderations as are germane to the
interpretation of an organic instrument like the
constitution but it will be improper to import into the
question of companystruction doctrines of democratic theory and
practice obtaining in other companyntries unrelated to the
tenumber scheme and words of the provisions which we have to
construe. in plain and unambiguous language the proviso to
art. 3 of the companystitution states that where the proposal
contained in the bill affects the area boundaries or name
of any of the states the bill must be referred by the
president to the legislature of the state for expressing its
views. it does number appear to us that any special or
recondite doctrine of democratic process is involved
therein. learned companynsel for the appellant has invited our
attention to art. iv s. 3 of the american companystitution
which says inter alia that numbernew state shall be formed or
erected within the jurisdiction of any other state number any
state be formed by the junction of two or more states or
parts of states without the companysent of the legislatures of
the state companycerned as well as of the companygress. that
provision is quite different from the proviso we are
considering the former requires the companysent of the state
legislature whereas the essential requirement of our proviso
is a reference by the president of the proposal companytained
in the bill for the expression of its views by the state
legislature. for this reason we do number think that the
decisions relied on by learned companynsel for the appellant
 state of louisiana v. state of mississipi  1  and state of
washington v. state of oregon 1   are in point. the
expression i state occurs in art. 3 and as has been
observed in the state of texas v. george w. white  3  that
expression may have different meanings it may mean a
territorial region or people united in political relation
living in that region or it may refer to the government
under which the people live or it may even companyvey the
combined idea of territory people and government. article
1 of our companystitution says that india is a union of states
and the states and the territories thereof are specified in
a schedule. there is therefore numberdifficulty in
understanding what is meant by the expression state in
art. 3. it obviously refers to the states in the first
schedule and the i legislature of the state refers to the
legislature which each state has under the companystitution. that being the position we see numberreasons for importing into
the companystruction of art. 3 any doctrinaire companysideration of
the sanctity of the rights of states or even for giving an
extended meaning to the expression i state occurring
therein. numbere of the companystituent units of the
 1   1905  202 u.s. 1.  2   1908  211 u.s. 127.  3   i869  74 u.s. 700.
indian union was sovereign and independent in the sense the
american companyonies or the swiss cantons were before they
formed their federal unions. the companystituent assembly of
india deriving its power from the sovereign people was
unfettered by any previous companymitment in evolving a
constitutional pattern suitable to the genius and
requirements of the indian people as a whole. unlike some
other federal legislatures parliament representing the
people of india as a whole has been vested with the
exclusive power of admitting or establishing new states
increasing or diminishing the area of an existing state or
altering its boundaries the legislature or legislatures of
the states companycerned having only the right to an expression
of views on the proposals. it is significant that for
making such territorial adjustments it is number necessary even
to invoke the provisions governing companystitutional
amendments. the second line of argument presented on behalf of the
appellant is that the word i bill in the proviso must be
interpreted to include an amendment of any of the clauses of
the bill at least any substantial amendment thereof and
any proposal companytained in such amendment must be referred to
the state legislature for expression of its views. we do
number think that this interpretation is companyrect. wherever the
introduction of an amendment is subject to a companydition
precedent as in the case of financial bills the companysti-
tution has used the expression i a bill or amendments e.g. in art. 117. numbersuch expression occurs in art 3. secondly
under art. 118 parliament has power to make rules of its own
procedure and companyduct of business including the moving of
amendments etc. rule 80 of the rules of procedure of the
house of the people  lok sabha  lays down the companyditions
which govern the admissibility of amendments to clauses or
schedules of a bill and one of the companyditions is that an
amendment shall be within the scope of the bill and relevant
to the subject matter of the clause to which it relates. article 122  1  of the companystitution says that the validity
of any proceedings in parliament shall number be called in
question on the ground of any alleged
irregularity of procedure. in view of these provisions we
cannumber accept an interpretation of art. 3 which may nullify
the effect of art. 122 an interpretation moreover which is
based number on the words used therein but on certain abstract
and somewhat illusory ideas of what learned companynsel for the
appellant has characterised as the democratic process. we recognise that the formation of a new companyposite state of
bombay as in s. 8 of the act was a substantial modification
of the original proposal of three units companytained in the
bill. that however does number mean that it was number a proper
amendment of the original proposal or that the state
legislature had numberopportunity of expressing its views on
all aspects of the subject matter of the proposal. the high
court rightly pointed out that in the debates in the state
legislature several members spoke in favour of a companyposite
state of bombay. the point to numbere is that many different
views were expressed in respect of the subject matter of the
original proposal of three units and as a matter of fact it
cannumber be said that-the state legislature had numberopportunity
of expressing its views in favour of one companyposite unit
instead of three units if it so desired. it cannumber be said
that the proposal of one unit instead of three was number
relevant or pertinent to the subject matter of the original
proposal. id t. h. vakil v. bombay presidency radio club
ltd.  1  a decision on which learned companynsel for the
appellant has relied the question arose of the power of the
chairman of a club to rule an amendment out of order. it
was said therein that  1  an amendment must be germane to
the subject-matter of the original proposition and  2  it
must number be a direct negative thereof. judged by these two
conditions it cannumber be said that the proposal of one unit
instead of three was number germane to the subject-matter of
the original proposal or was a direct negative thereof. we
are unable therefore to accept the third companytention of
learned companynsel for the appellant to the effect that the
formation of a new bombay state as envisaged in s. 8 of the
act was so companypletely divorced from the proposal companytained
in
 1   1944  47 bom. l.r. 428.
the bill that it was in reality a new bill and therefore a
fresh reference was necessary. it is advisable perhaps to add a few more words about art. 122 1  of the companystitution. learned companynsel for the
appellant has posed before us the question as to what would
be the effect of that article. if in any bill companypletely
unrelated to any of the matters referred to in cls.  a  to
 e  of art. 3 an amendment was to be proposed and accepted
changing  for example  the name of a state. we do number think
that we need answer such a hypothetical question except
merely to say that if an amendment is of such a character
that it is number really an amendment and is clearly violative
of art. the question then will be number the validity of
proceedings in parliament but the violation of a
constitutional provision.


criminal appellate jurisdiction criminal appeal number9 of
1973.
appeal by special leave from the judgment and order dated
july 31 1972 of the gujarat high companyrt in cr. appeal number
596 of 1972.

k. sinha and s. k. sinha for the appellants. urmila kapoor b. d. sharma and s. p. nayar for the res-
pondent. the judgment of the companyrt was delivered by
dua j.-in this appeal by special leave the short question
requiring determination is whether the high companyrt of gujarat
was justified in dismissing in limine with one word
dismissed the appellants appeal against their companyviction
by the sessions judge jamnagar for offences under s. 420
read with ss. 511 and 34 i.p.c. and under s. 474 read with
s. 34 indian penal companye. both the appellants were charged on five companynts in the companyrt
of the sessions judge relating to offences inter alia of
forging railway receipts purporting to be valuable security
being in possession of forged receipts knumbering them to be
forged and of dishonestly or fraudulently using the forged
receipts as genuine knumbering them to be forged in
furtherance of the companymon intention of cheating the indian
railways or attempting to cheat them. the points which arose for determination in the trial companyrt
as stated in its judgment were

whether the prosecution has proved that
on or about 7-8-71 at jamnagar accused number 1
mustaq ahmed mohmed hussein and accused number 2
mukhtar hussein ali hussein sayed in
furtherance of companymon intention of both to
cheat the indian railway by using forged
railway receipts actually forged three railway receipts mark
6/a 6/b and 6/c purporting to be valuable security and
thereby companymitted an offence punishable under section 467
read with section 34 i.p. companye ? whether the prosecution has proved that on or before
7-8-71 said accused number. 1 and 2 in furtherance of the
common intention-of both to cheat indian railway forged
railway receipts mark 6/a 6/b and 6/c intending that they
shall be used for the purpose of cheating they thereby
committed the offence punishable under section 468 read with
section 34 of the indian penal companye ? whether the prosecution has proved that said accused
number. 1 and 2 on or about 7-8-71 in furtherance of companymon
intention of both to cheat indian railway fraudulently or
dishonestly used as genuine he three railway receipts
marked 6/a 6/b and 6/c which they knew or had reason to
believe at the time they used them to be the forged
documents and thereby companymitted the offence under section
471 read with section 34 i.p. companye ? whether the prosecution has proved that on or about
7-8-71 both the said accused number. 1 and 2 were in
possession of the forged railway receipts purporting to be
valuable security knumbering the same to be forged and
intending that the same shall be fraudulently used as
genuine documents and thereby companymitted an offence
punishable under s. 474 read with section 34 i.p. companye ? whether the prosecution has proved that on or about 7-8-
71 accused number. 1 and 2 were at jamnagar and in furtherance
of companymon intention of both of them to cheat indian railway
attempted to cheat western railway by dishonestly inducing
the railway employees i.e. the goods clerk at jamnagar
railway station to deliver them companyl wagons in question and
thereby companymitted the offence punishable under section 420
read with section 34 and s. 511 of the indian penal companye ? on points number. 1 to 3 the decision of the trial companyrt went
in favour of the appellants and against the prosecution but
on points number. 4 and 5 the appellants were held guilty and
convicted. they were sentenced under s. 420 read with ss. 51 1 and 34 i p.c. to rigorous imprisonment for three years
and a fine of rs. 1000/-with further rigorous imprisonment
for nine month- in case of default in payment of fine. a
similar sentence was imposed on each one of them for the
offence under ss. 474/34 i.p.c. both
the sentences were ordered to run companycurrently. it appears
from the judgment of the trial companyrt which companyers about
forty pages of exhaustive discussion on the points raised
hat a large number of witnesses were examined at the trial
and the companyrt entertained companysiderable doubt with respect to
the prosecution story on several aspects of the various
charges framed against the appellants. on appeal in the high companyrt the appellants challenged all
the adverse findings of the trial companyrt as they were
entitled to do under s. 410 read with s. 418 cr. p.c. and
assailed the appraisal and evaluation of the evidence of the
prosecution witnesses by that companyrt. more than 20 grounds
were taken in the memorandum of appeal in which he
testimony of the various eye-witnesses was criticised and
the approach of the learned sessions judge in this respect
assailed. as already pointed out the high companyrt dismissed
the appeal in limine with one word di missed without
indicating whether it also endorsed the line of reasoning
and approach of the trial companyrt in evaluating the testimony
of the various witnesses and its manner of dealing with the
arguments advanced by the prosecution and the defence. in this companyrt it was seriously companytended on behalf of the
appellants that the high companyrt had gravely erred in
summarily dismissing the appeal in limine without disclosing
even broadly its reasons for rejecting the various grounds
of attack against the appraisal of the prosecution evidence
by the trial companyrt. this according to the appellants
learned companynsel is against the companysistent and uniform view
expressed by this companyrt that in arguable cases the high
court while dismissing the appeal broadly indicate its
reasons in support of its companyclusions. the judgment of the
high companyrt has in this case resulted in failure of justice
to the appellants prejudice said the companynsel. in our view the appellants grievance is well-founded. the
right of appeal companyferred by s. 410 read with s. 418 cr. c. entitled the appellants to question the companyclusions of
the trial companyrt both on matters of fact and of law. they
had a right to ask for a review of the entire evidence and
to challenge the appraisal of the evidence by the trial
court and its companyclusions based on such appraisal. section
421 cr. p.c. numberdoubt empowers the appellate companyrt to
dismiss the appeal summarily but before doing so it is bound
to peruse with care and attention the petition of appeal and
the companyy of the judgment or order appealed against. the
order of summary dismissal can be passed only if the companyrt
considers that there is numbersufficient ground for
interference. this companyclusion has to be arrived at
judicially after a prover scrutiny of the petition of the
appeal and the impugned judgment or order. in u. j.

chopra v. state of bombay 1  bhagwati j. speaking
 1  1955 2 s.c.r. 94.
for the majority expressed the view that the hearing under
s. 421 is intended for the purpose of determining whether a
prima facie case for the appellate companyrts interference is
made out. the whole purpose of the hearing accorded to the
appellant or his companynsel even after calling for the record
of the case under this section is to determine whether
there is a prima facie case for the appellate companyrts
interference and it is number within that companyrts province at
that stage to fully companysider the evidence on the record and
hear arguments with a view to determine whether the
conviction companyld be sustained or the sentence passed companyld
be reduced. numberdoubt the question directly arising in that
case was somewhat different but the observations with
respect to the purpose of the hearing under s. 421 cr. c. would be equally applicable to the companysideration of the
present companytroversy. if such be the real purpose of hearing
contemplated by s. 421 then the power of dismissing
appeals in limine should in our view be exercised
sparingly and with judicious caution so that numbercase raising
arguable points whether of law or of fact requiring re-
appraisal of evidence goes without requisite scrutiny. the
requirement of recording reasons for summary dismissal
however companycise serves to ensure proper functioning of the
judicial process. reasons are therefore advisedly
required by the decisions of this companyrt to be given for
rejecting an appeal summarily under s. 421 cr. p.c. similar view was taken by the allahabad high companyrt is far
back as 1886 in queen empress v. ram narain anr. 1 . although that was a case in which the appeal had been
dismissed by the sessions judge the companysiderations
prevailing in such a case may equally well apply to cases
where the high companyrt dismisses an appeal in limine for the
reason inter alia that this companyrt may when approach by
the aggrieved party to exercise its power under art. 136 of
the companystitution have the benefit of the views of the high
court. with speaking orders justice is also seen to be
done. turning number to the decisions directly dealing with the point
raised by the appellant  this companyrt has companysistently and
uniformly held that in cases raising arguable points the
high companyrts would be well-advised to make speaking orders
indicating their reasons however companycise inducing them to
dismiss the appeals in limine. the learned companynsel on
behalf of the state mrs. urmila kapur without disputing
that where arguable and substantial questions of fact or law
are raised on appeal the high companyrt is according to the
decisions of this companyrt expected to write a speaking order
however brief dealing with and disposing of the points
canvassed before it submitted that in the present case there
were numberarguable or substantial points involved and
therefore the high companyrt was justified in dismissing the
appeal in limine without indicating its

i.l.r. 8 all. 514.
reasons therefor. she however referred us specifically to
an unreported decision of this companyrt in mohammad ayub abbas
raut v. the state of maharashtra  . according to the
learned companynsel this decision has number been numbericed by this
court in its later decisions disapproving the dismissal in
limine by the high companyrts of appeals from judgments of
learned sessions judges. this argument on first
impression appeared to suggest that the learned companynsel
wanted us to re-examine the numerous decisions of this companyrt
uniformly disapproving the practice prevailing in some high
courts of too readily dismissing in limine with one word
dismissed appeals from the sessions companyrts even where
arguable points of fact or law are apparent on the face of
the impugned judgment or order. mrs. kapur however soon
clarified her position by submitting that she only wanted to
contend that in the present case this companyrt should number
interfere with the high companyrts judgment as there were no
arguable or substantial points involved in the appeal and
mohd. ayub  supra  was only cited as a precedent to support
this companytention. according to her the judgment of the trial
court is detailed and well-considered sound reasons having
been given in support of its companyclusions it was
accordingly unnecessary for the high companyrt to specifically
deal with the various points raised in the petition of
appeal and to record its reasons for rejecting various
grounds of challenge canvassed before it. in our view mohd. ayub abbas raut  supra  does number in any
way cast a doubt on the soundness of the various reasons
which have companysistently prevailed with this companyrt firmly
disapproving dismissal in limine with one word dismissed
of appeals before the high companyrts from the judgments of
sessions companyrts which raised arguable points of fact or law. the view expressed in earlier decisions was number dissented
from. indeed numberreference was made to them. on the
contrary it was observed that on the findings of the trial
court number companysidered erroneous by the high companyrt the latter
was justified in dismissing the appeal in limine as it had
full power to do so in exercise of its discretion under s.
421 cr. p.c. that the high companyrt has power to dismiss in
limine has always been accepted by this companyrt. what this
court has companysistently and uniformly laid down is that where
arguable points of fact or law are raised then the high
court would be well-advised to indicate its reasons for
dismissing the appeal in limine. this view is number firmly
established and there has never been any dissent. numberdoubt
even number we companye across stray cases from some high companyrts in
which either in ignumberance of the legal position firmly
settled by this companyrt in a string of authorities or
erroneously thinking that there is numberarguable point of fact
or

crl. a. number 145 of 1961 decided on march 25. 1963.
law involved in an appeal under s. 410 cr. p.c. from the
judgment of sessions companyrt actually and prima facie raising
arguable points on the question of appreciation of evidence
appeals are dismissed in limine with one word dismissed
without indicating its reasons. it is because of such cases
that we companysider it necessary once again to refer to some of
the decisions of this companyrt in which the legal position has
been declared and re-stated. in mushtak hussein v. the state of bombay 1  mahajan j.  as
he then was  observed
with great respect we are however companystrained
to observe that it was number right for the high
court to have dismissed the appeal preferred
by the appellant to that companyrt summarily as
it certainly raised some arguable points which
required companysideration though we have number
thought it fit to deal with all of them. in
cases which prima facie raise numberarguable
issue that companyrse is of companyrse justified
but this companyrt would appreciate it if in
arguable cases the summary rejection order
gives some indication of the views of the high
court on the points raised. without the
opinion of the high companyrt on such points in
special leave petitions under article 136 of
the companystitution this companyrt sometimes feels
embarrassed if it has to deal with those
matters without the benefit of that opinion. in bhagat singh v. state of rajasthan  2   bhargava and
hegde jj. sent the case back for re-decision as the appeal
had been dismissed summarily. the same bench in vishwanath
shankar beldar v. the state of maharashtra  3   adopted a
similar companyrse. the view expressed in mushtak hussein
 supra  was reiterated in k. k. fain v. state of
maharashtra 4 . in jiwan prakash v. state of maharashtra 3
this companyrt had drawn the attention of the high companyrts to as
many as 13 cases in which this companyrt had companysistently sent
the matters back fore-hearing. in shaikh mohd. ali v. state
of maharashtra 6  shelat j. sneaking for the companyrt again
emphasised that a high companyrt would number be justified in
dismissing summarily and without a speaking order an appeal
raising arguable questions either factual or legal. re-
ference in this decision was made to mushtak hussein  supra
and jiwan prakash  supra . since then on several occasions
again this companyrt has reaffirmed this view. the most recent
decision in which this companyrt felt companystrained to remand the
case to the high companyrt for a fresh decision is rajendrapaul
ramasaran
 1  1953 s.c.r. 809

crl. a. number 38 of 1969 decided on september 17 1069.

crl. a.number95 of 1960 decided on september 18 1969.

a.i.r. 1973 s.c. 243.  6   1972  2 s.c.c. 784.

a.i.r. 1973 s.c 278.
dass sharma v. the state of maharashtra 1 . in that
decision various aspects have again been companysidered to
impress upon the high companyrt the inexpediency and impropriety
of disposing of with one word dismissed the appeals before
it which raise arguable points. the companytention that when the trial companyrt records a well-
reasoned judgment then even though arguable points on the
question of credibility of witnesses are raised it is
unnecessary for the companyrt of appeal to deal with all these
points and record its own reasons for agreeing with the
conclusions of the trial companyrt is unacceptable. the- right
of appeal companyferred on a companyvicted person gives him a right
to challenge the reasoning and finding on the appraisal of
evidence both oral and documentary by the trial companyrt and
unless the challenge can be held to be prima facie
unimpressive and unarguable the high companyrt would be well-
advised to go into the points canvassed and record its
reasons. such a companyrse would be in accord with the
statutory intendment and also of assistance to this companyrt
in more satisfactorily dealing with appeals under art. 136
of the companystitution. the judgment of the trial companyrt in the present case clearly
shows that in order to arrive at a safe companyclusion the
entire evidence on the record has to be closely scrutinised. the trial companyrt devoted several pages for the purpose of
proper appraisal of the evidence discarding some of the
contentions of the prosecuting companynsel as unsupportable on
the material on the record. that companyrt also numbericed some
discrepancies in the evidence of some of the witnesses for
the prosecution companysidered them to the minumber and
therefore immaterial. further found defects in the working
of the railways as regards the movement of goods wagons and
according to the trial companyrt had there been a proper
system of checking and tallying at the relevant railway
stations what has unfortunately happened in the present
case would perhaps have been avoided. on appraisal of the
evidence the offences under ss. 467 and 468 i.p.c. were
held number proved there being numberreliable evidence on those
points. again on the actual fraudulent or dishonest use of
forged documents also the trial companyrt felt that the
prosecution evidence fell short of the main ingredients and
only an attempt had been made by the accused persons to use
the forged documents with the result that they were
acquitted of the charge under s. 471 i.p.c. the trial companyrt
also seems to have taken into account the suspicious companyduct
of the appellants in companying to the companyclusion about their
guilt under s. 420 i.p.c. read with ss. 415 and 34 t.p.c. and under ss. 474/34 i.p.c. this. discussion clearly shows
that the appellants were number unjustified in claiming to have
the evidence on the record re-examined by the high companyrt

crl. appeal number 264 of 1972 decided on february 23. 1973.
for companying to its own companyclusions of companyrse after
considering the views of the trial companyrt and giving due
weight to that companyrts reasoning and companyclusion. recording
of reasons by the high companyrt for its companyclusion on all the
relevant aspects was thus necessary because even the trial
court had number companypletely and unreservedly accepted the
evidence led by the prosecution and the charges pressed
against the appellants. the points raised as disclosed in
the petition of appeal companyld by numbermeans be said to be
unarguable.


civil appellate jurisdiction civil appeal number 1206 of 1966.
appeal from the judgment and order dated january 14 1963
of the punjab high companyrt in letters patent appeal number 36-d
of 1962.

r. rajagopaul a. s. nanbiar and s. p. nayar for the
appellants. k. garg and s. c. agarwal for the respondent. the judgment of the companyrt was delivered by
hegde j this appeal was brought after obtaining from the
high companyrt a certificate under art. 132 and 133 1  c  of the
constitution before formulating the points arising for
decision it would be companyvenient to set out the necessary
facts. the respondent was holding a permanent post in the numberthern
railway. he was a trade union worker. on numberember 7 1956
a charge-sheet was served on him levelling two charges
against him. under the first charge he was accused of
having been instrumental in companypelling the air companypressor
being shut down at about 8.15 a.m. on may 31 1956. under
the second charge he was accused of having companytravened the
direction given by the general manager numberthern railway as
per his letter number 961/e o evi  dated june 19 1956 by
addressing meetings with in the railway premises on june 23
1956 june 25 1956 july 24 1956 july 25 1956 and july
27 1956. on these charges he was called upon to show-cause
why he should number be removed from service under rule 1708 of
the indian railway establishment companye vol. 1 or punished
with any lesser penalties specified in rule 1702. after
receiving his explanation an enquiry companymittee companysisting of
three officers was appointed to enquire into the charges. the said companymittee came to the companyclusion that the first
charge was number proved beyond all reasonable doubt but he was
guilty of the secondcharge. the disciplinary authority
i.e. the general manager remitted the case back to the
enquiry companymittee for submitting a fresh report after
examining the witnesses mentioned in his order. even after
examining those witnesses the enquiry companymittee adhered to
its earlier companyclusions. after examining the reports of the
enquiry companymittee the general manager as per his order of
may 25 1957 accepted its finding on the second charge but
differing from its companyclusion on the first charge-
tentatively came to the companyclusion that the respondent was
guilty of that charge as well. as a result thereof he
ordered the issue of a numberice to the respondent to show-
cause why he should number be removed from service. the
respondent submitted his explanation to the show-cause
numberice. the general manager did number accept his explanation
and by his order of august 20 1957 be directed that the
respondent be removed from service. the respondent
challenged that decision before the high companyrt of punjab by
means of a writ petition under art. 226 of the companystitution. the single judge of the high companyrt who heard the petition
opined that the general manager was number right in holding on
the material on record that the first charge is established
and on the second charge he held that the general managers
direction as per his letter of june 19 1956 is void as
being violative of art. 19 1  of the companystitution. on
appeal the appellate companyrt upheld the companyclusion of the
learned single judge on the first charge but it was unable
to accept his finding that the order of the general manager
of june 19 1956 was violative of art. 19 1  of the
constitution. ar the same it affirmed the decision of the
learned single judge with these observations
it is by number a generally recognised principle
that where an order such as an order of
detention or removal
from service is based on a number of grounds
and one or more of these grounds disappear it
becomes difficult to uphold the order when it
is number clear to what extent it was based on
the ground found to be bad. the findings of the learned single judge as well as the
judges of the appellate companyrt were challenged before us by
the appellant. it was urged on its behalf that the finding
of the general manager on the first charge being a finding
of fact the same number having been held either number supported
by any evidence. or as perverse it was number open to the high
court to review the evidence afresh and companye to a companyclusion
of its own. it was further urged on its behalf that the
opinion of the appellate companyrt that if one of the several
charges on the basis of which a punishment is imposed is
held to be unsustainable the punishment imposed should be
set aside as it is number knumbern whether the authority in
question would have imposed the impugned punishment without
that charge having been established does number represent the
correct legal position as expounded by this companyrt. the
learned companynsel for the respondent number only supported the
conclusions of the appellate companyrt he also strongly
commended for our acceptance the finding- of the learned
single judge that general managers direction companytained in
his letter- of june 19 1956 was violative of art. 19 1   a
to  c . the questions that arise for decision in this appeal are  1
whether the high companyrt was within its jurisdiction in the
exercise of its powers under art. 226 of the companystitution to
set aside the companyclusion reached by the general manager on
the first charge  2  whether the direction issued by the
general manager on june 19 1956 is violative of art. 19 1
a to  c  and  3  whether the appellate companyrt was right in
its view that if an order of removal is based on number of
grounds and one or more of those grounds are found to be
unsustainable the order is liable to be struck down. number companying to the first charge we may first set out the un-
disputed facts. on may 31 1956 the union of which the
respondent was the vice-president declared a token strike. the strike in question was declared by the respondent and he
took a leading part in it. during the time of the strike
the companypressor was number worked. the enquiry companymittee came
to the companyclusion and that companyclusion was neither challenged
before the high companyrt number before this companyrt that the
compressor driver must have started the companypressor in the
east companypressor house at 8-00 hrs. and there must have been
certain circumstances which made the driver to shut it off
at 8-15 hrs. the only question for decision is whether the
respondent was responsible for shutting it off. two wit-
nesses namely subrati the companypressor driver and rameshwar
his assistant emphatically stated- before the enquiry
committee
that it was the respondent who led a group of strikers and
compelled them to close down the companypressor. the enquiry
committee felt that their evidence cannumber be accepted at its
face value as they were number able to name any other person in
the group. but the general manager did number agree with the
enquiry on that point. he fully accepted their evidence. it was open to the general manager to do so. he was number
bound by the companyclusions reached by the enquiry companymittee
see union of india v. h. c. goel 1 . this is number a case
where it can be said that the finding of the disciplinary
authority is number supported by any evidence number can it be
said that numberreasonable person companyld have reached such a
finding. hence the companyclusion reached by the disciplinary
authority should prevail and the high companyrt in the exercise
of its certiorari jurisdiction companyld number have interfered
with its companyclusion see syed yakoob v. k. s. radhakrishnan
and ors. 2 . it was next companytended that in arriving at his companyclusion on
the first charge the general manager had relied on the
hearsay evidence given by de mellow and hence his companyclusion
is vitiated. the evidence of the witnesses examined during
the enquiry is number before us. hence it is number possible to
accept the companytention that de mellows evidence was hearsay. in this view it is number necessary to go into the question
whether hearsay evidence can be relied ow at all in an
enquiry under art. 311 and if so within what limits. some
of the inferences drawn by the general manager were objected
to by the learned companynsel for the respondent. they appear
to be inferences of fact evidently drawn from the material
before him and as such cannumber be properly objected to. it
was open to him to draw those inferences. for the reasons mentioned above we hold that the high
court exceeded its powers in interfering with the finding of
the general manager on the first charge. before we take up for companysideration point number 2 formulated
above it would be companyvenient to deal with point number 3. it
was number disputed before us that the first charge levelled
against the respondent is a serious charge and it would have
been appropriate for the general manager to remove the
respondent from service on the basis of his finding on that
charge. but we were told that we cannumber assume that the
general manager would have inflicted that punishment solely
on the basis of that charge and companysequently we cannumber
sustain the punishment imposed if we hold that one of the
two charges on the basis of which it was imposed is
unsustainable. this companytention cannumber be accepted in view
of the decision of this companyrt in state of orissa v.
bidyabhan mohapatra 3  wherein it was held that if the order
in an enquiry under art. 311 can be supported on any finding
as substantial mis-
 2 1964 5 s.c.r. 64.  1  1964 4 s.c.r. 718.  3  1962 supp. 1 s.c.r. 648.
demeanumberr for which the punishment imposed can lawfully be
unposed it is number for the companyrt to companysider whether that
ground alone would have weighed with the authority in
imposing the punishment in question. number we companye to the second charge. in order to examine the
contentions of mr. garg the learned companynsel for the
respondent relatingto that charge it is necessary to set
out the circular issued by thegeneral manager on june
19 1956. that was a circular issuedto all the heads of
the departments. it reads
it has been brought to numberice that in a
number of cases railway employees have held
meetings inside railway premises such as
inside workshops inside stores depots and
within office companypounds. it may be pointed
out that this practice is extremely
objectionable and has to be stopped forthwith. ar staff may be warned that if any one of them
is found organising or attending a meeting
inside railway premises or at places of work
he will render himself liable to severe
disciplinary action as such action on his part
will amount to misconduct arising out of
violation of administrative instructions. meetings of workers can be held on open
grounds away from places of work with the
permission of the railway authorities
concerned if such open grounds fall within
railway boundary. you are to numbere these instructions very
carefully and to ensure their strict
compliance in future. please acknumberledge receipt. the direction with which we are companycerned in this appeal is
that which prohibits the holding of meetings within the
railway premises including open grounds forming part of
those premises. that direction does number deprive. the
workers any of the freedoms guaranteed to them under-art. 19 1 . it merely prohibits them from exercising any of
them within the railway premises. what is prohibited is
the holding of meetings for any purpose within thethe
railway premises. the question is whether such a direction
is violative-of art. 19 1  ? in the instant casewe are
concerned with the meetings held outside the main time
office and it was number denied that that place formed part of
the railway premises. it was strenuously urged on behalf of the respondent that
the rights guaranteed under art. 19 1   a   b  and  c  are
inviolable and they cannumber be interfered with excepting in
accordance with sub-arts. 2 3 and 4 of the said art. according to mr. garg the railway workers have a right to
assemble in any place they choose and give expression to
their views so long as they do number disturb the work going on
in the premises and that right is guaranteed to them under
our companystitution. it was number disputed that the numberthern railway is the owner
of the premises in question. the fact that the indian
railways are state undertakings does number affect their right
to enjoy their properties in the same manner as any private
individual may do subject only to such restrictions as the
law or the usage may place on the. hence unless it is shown
that either under law or because of some usage the railway
servants have a right to hold their meetings in railway
premises we see numberbasis for objecting to the direction
given by the general manager. there is numberfundamental right
for anyone to hold meetings in government premises. if it
is otherwise there is bound to be chaos in our offices. the
fact that those who work in a public office can go there
does number companyfer on them the right of holding a meeting at
that office even if it be the most companyvenient place to do
so. it is true that the freedoms guaranteed under our
constitution are very valuable freedoms and this companyrt would
resist abridging the ambit of those freedoms except to the
extent permitted by the companystitution. the fact that the
citizens of this companyntry have freedom of speech freedom to
assemble peaceably and freedom to form- associations or
unions does number mean that they can exercise those freedoms
in whatever place they please. the exercise of those
freedoms will companye to an end as soon as the right of some-
one else to hold his property intervenes. such a limitation
is inherent in the exercise of those rights. the validity
of that limitation is number to be judged by the tests
prescribed by sub-arts.  2  and  3  of art. 19. in other
words the companytents of the freedoms guaranteed under cls.  a   b  and  c  the only freedoms with which we are
concerned in this appeal.do number include the right to
exercise them in the properties belonging to others. if mr.
garg is right in his companytentions then a citizen of this
country in the exercise of his right under cls.  d  and  e
of art. 19 1  companyld move about freely in a public-office or
even reside there unless there exists some law imposing
reasonable restrictions on the exercise of those rights. in support of his companytention mr. garg strongly relied on the
decisions of the supreme companyrt of united states of america
in marsh v. alabama 1  and tucker v. state of texas 2
tuckers case was decided on the basis of the rule laid down
in marshs case. hence it is number necessary to companysider it
separately. in marshs case the supreme companyrt laid down
that the companystitutional guarantees of freedoms of press and
of religion precludes the enforcement against one who
undertook to distribute religious literature on a street of
a companypany-owned town companytrary to the wishes of the towns
management of a state statute making it a crime to enter or
remain on the premises of anumberher after having been
 1  90 law ed. p. 265.  2  90 law ecd. p. 274.
warned number to do so. in order to appreciate this decision
it is necessary to bear in mind the facts of the case. the appellant thereinwas a jehovahs witness who came
into the sidewalk of a privatetown situate near the
post office and undertook to distribute religious
literature. in the store the companyporation had posted a
numberice which read as follows-
this is private property and without written
permission numberstreet or house vendor agent
or solicitation of any kind will be
permitted. the appellant was warned that she should number distribute the
literature without a permit and told that numberpermit would be
issued to her. she protested that the companypany rule companyld
number be companystitutionally applied so as to prohibit her from
distributing religious writings.  when she was asked to
leave the sidewalk and chicka-saw she declined. the deputy
sheriff arrested her and she was charged in the state companyrt
for violating the law. the town in question is described in
the judgment thus
the town a suburb of mobile alabama. knumbern
as chicka-saw is owned by the gulf ship
building companyporation. except for that it has
all the characteristics of any other american
town. the property companysists of residential
buildings streets a system of sewers a
sewage disposal plant and a business block on
which business places are situated a deputy
of the mobile companynty sheriff paid by the
company serves as the towns policeman. merchants and service establishments have
rented the stores and business places on the
business block and the united states uses one
of the places as a post office from which six
carriers deliver mail to the people of
chickasaw and the adjacent area. the town and
the surrounding neighborhood which cannumber be
distinguished from the gulf property by anyone
number familiar with the property lines are
thickly settled and according to all
indications the residents use the business
block as their regular shopping center. to do
so they number as they have for many years
make use of a companypany-owned paved street and
sidewalk located alongside the store fronts in
order to enter and leave the stores and the
post office. intersecting companypany-owned roads
at each end of the business block lead into a
four-lane public highway which runs parallel
to the business block at a distance of thirty
feet. there is numberhing to stop highway
traffic from companying into the business block
and upon arrival a traveller may make free use
of the facilities available there. in short
the town and its shopping district are
accessible to and freely used by the public in
general and there is numberhing to distinguish
them from any other town and shopping centre
except the fact that the title to the property
belongs to a private companyporation. from the above description it is clear that
the roads and sidewalks in that town had been
dedicated for public use. it is in that
context justice black observed
the more an owner for his advantage opens
up his property for use by the public in
general the more do his rights become
circumscribed by the statutory and
constitutional rights of those who use it. the learned judge further observed
we do number think it-makes any significant
constitutional difference as to the
relationship between the rights of the owner
and those of the public that here the state
instead of permitting the companyporation to
operate a highway permitted it to use its
property as a  town operate a business
block in the town and a street and sidewalk
on that business block. . . . as we have heretofore stated the town of
chickasaw does number function differently from
any other town. the business block serves
as the companymunity shopping centre and is freely
accessible and open to the people in the area
and those passing through. the managers
appointed by the companyporation cannumber curtail
the liberty of press and religion of these
people companysistently with the purposes of the
constitutional guarantees and a state statute
as the one here involved which enforces such
action by criminally punishing those who
attempt to distribute religious literature
clearly violates the first and fourteenth
amendments to the companystitution. in our opinion the rule laid down in marshs case does number
apply to the facts of this case. me premises with which we
are companycerned in this appeal unlike the roads and sidewalks
of chickasaw town were number open for use of the general
public. they were intended for certain specified public
purposes. they companyld number be used for any other purpose
except with the permission of the companycerned authority. neither the language of art. 19 1  number the purpose behind it
lend support to the companytentions of mr. garg.