original jurisdiction writ petition number 217 of 1968.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. bishan narain b. b. sinha s. n. misra s. s. jauhar and k. k.
sinha for the petitioner. p. jha for the respondents. the judgment of the companyrt was delivered by
vaidialingam j.-in this writ petition under art. 32 of the
constitution the petitioner prays for the issue of a writ
to the respondents in the nature of certiorari or any other
appropriate writ direction or order quashing four orders
dated september 2 1953 march 5 1960 august 5 1966 and
june 12 1968. he further prays for issue of a writ in the
nature of a writ of mandamus directing the respondents to
treat him as having retired at the age of 58 and to pay him
the pension that he is entitled to. though four orders are companyght to be quashed as we will show
in due companyrse the grievance of the petitioner regarding the
orders dated september 2 1953 and march. 5 1960 can no
longer be companysidered by this companyrt in this writ petition. in companysequence only the last two orders mentioned above
survive for companysideration. we will refer briefly to the circumstances leading up to the
passing of the orders referred to above in order to
appreciate the circumstances under which the last two orders
in particular came to be made as well as the ground of
attack levelled against these orders. the petitioner joined service as an assistant teacher on
september 1 1928 in the patna practising school and was
promoted as sub-inspector of schools lower division in the
subordinate educational service from may 31 1934. the
petitioner later on was promoted as deputy inspector of
schools in upper division of the subordinate educational
service and was posted at seraikella in the singhbhum
district in the chhotanagpur division bihar from numberember
1 1949. the state of seriakella having merged in the
erstwhile province of bihar the provincial
government took over and assumed companytrol directly of the
education in the locality through its employees of the
education department unlike other parts of the province
where the education was under the companytrol and management of
the district and local boards. the service rendered by the
petitioner as deputy inspector of schools seraikella was
found satisfactory by the superior officers including the
director of public instruction and hence he was recommended
to be appointed to a superior post of education officer in
the companymunity project. by about the end of 1951 he was
transferred to purulia in the district of manbhum as
additional deputy inspector of schools. the petitioner was
later on transferred to bettiah in or about may 1953. at
bettiah the petitioner received a companyy of the order dated
september 2 1953 from the director of public instruction
directing a censure to be recorded in the character roll of
the petitioner based on the report of one shri kanhaya lal
district inspector of schools who according to the
petitioner was inimically disposed towards him. the
attempt of the petitioner to have the order dated september
2 1953 cancelled proved unsuccessful. this is the first
order that is sought to be quashed by the petitioner. the petitioner on the basis of certain allegations was
placed under suspension on february 6 1954 and relieved
from his duty as deputy inspector of schools bettiah. there was a charge sheet issued to the petitioner on march
16 1954 and he was found guilty. but these inquiry
proceedings were later on set aside and a fresh inquiry was
ordered. in companysequence the order of suspension was
cancelled but immediately thereafter a fresh inquiry was
conducted in which he was again found guilty as per the
report of the inquiry officer dated september 22 1959. the
disciplinary authority who was the director of public
instruction. passed an order on march 5 1960 accepting the
finding of the inquiry officer recorded against the
petitioner and held that the charges had been proved against
him. accordingly by this order the petitioner was
reverted as punishment to lower division of subordinate
educational service and also directing a censure entry to be
recorded in us personal character roll. this is the second
order that is challenged in this writ petition. it is number necessary for us to deal in any detail about the
first and the second order as both those orders are number
concluded against the petitioner by the decision of the high
court. the petitioner filed title suit number 86 of 1961 in the companyrt
of the munsif iii patna for a declaration challenging the
order dated march 5 1960 as well as the inquiry proceedings
on the basis of which the said order was passed. he also
challenged the order of censure passed on september 2 1953
and further incorporated in the order of march 5 1960.
though the suit was
contested by the respondents it was ultimately decreed on
april 11 1963. the respondents filed title appeal number
132/24 of 1963-64 before the subordinate judge 11 companyrt
patna challenging the decree of the munsif. on june 24
1964 the appeal was allowed with the result that the
petitioners title suit number 86 of 1961 stood dismissed. the
petitioners second appeal number 640 of 1964 was dismissed by
the high companyrt on may 4 1967. from these proceedings it is
clear that the order of censure dated september 2 1953 as
well as of reversion dated march 5 1960 have both been
found to be companyrect by the high companyrt and it is numberlonger
open to the petitioner to canvass those orders again. but
it may be necessary for us to refer to certain proceedings
connected with the title suit when we deal with the attack
of the petitioner against the legality of the orders dated
august 5 1966 and june 12 1968. when the order of
reversion dated march 5 1960 was passed the petitioner was
working as deputy inspector of schools deoghar. the office
of the deputy inspector of schools was closed for holi
holidays from march 11 1960 and the petitioner claims that
he left the headquarters to go to patna with the permission
of the authorities. the order dated march 5 1960 was
received by him at patna on march 23 1960 when he was ill.
he applied for leave. according to the petitioner he
obtained an order of temporary injunction on october 5 1961
in his title suit number 86 of 1961 restraining the respondents
from giving effect to the order dated march 5 1960
reverting him to the lower division in the subordinate
educational service. though he offered to join the post to
which he was entitled originally he was number allowed by the
respondents to join the upper division of the subordinate
educational service. the action of the respondent in
refusing to permit him to join duty was in flagrant
violation of the order of temporary injunction granted by
the munsif patna. on august 5 1966 the director of public instruction passed
an order that the petitioner having number been on his duties
for more than five years since march 1 1960 has ceased to
be in government employ since march 2 1965 under r. 76 of
the bihar service companye. the petitioner made
representations for cancellation of this order but without
any success. this is the third order that is being
challenged. the petitioner having companypleted 58 years of age addressed a
letter to the director of public instruction on july 18
1967 requesting him to arrange for the payment of the
petitioners pension. numberreply was received by the
petitioner for a long time inspite of repeated reminders. ultimately on june 12 1968 the director of public
instruction passed orders on the petitioners application
dated july 18 1967 regarding payment of pension. in this order it is stated that under r. 46 of the bihar
pension rules  hereinafter to be referred as the pension
rules  the department is unable to grant any pension to the
petitioner. we will refer to this rule at the appropriate
stage but it is enumbergh to take numbere of the fact that under
the said rule numberpension may be granted to a government
servant dismissed or removed for misconduct insolvency or
inefficiency. according to the petitioner this order is
illegal and void. this is the fourth order that is under
challenge. according to the petitioner the order dated august 5 1966
is an order removing him from service and it is illegal and
void as it has been passed in companytravention of art. 311 of
the companystitution. further the order is also number legal and
number warranted by the rules for the reason that the
petitioner had number been absent from duty for over five years
continuously. according to the petitioner there is a
further infirmity in the order as the respondents are
inconsistent in their pleas regarding the date from which
the period of companytinuous absence has to be calculated. this
plea is based upon the different dates given in the order
dated august 5 1966 and the dates given in the companynter-
affidavit filed on behalf of the respondents. the attack on
the order dated june 12 1968 is two fold namely  a  that
it is number warranted by r. 46 of the pension rules under
which it is purported to be passed and  b  the petitioners
right to get pension is property and by the respondents number
making it available to him his fundamental rights
guaranteed under arts. 19 1  f  and 31 1  of the
constitution have been affected. the assistant director of education has filed a companynter
affidavit on behalf of the respondents. according to the
respondent the orders of censure passed on september 2 1953
and of reversion dated march 5 1960 are valid and legal and
in passing those orders numberviolation of any rules has been
made. the petitioner was given full opportunity to
participate to the inquiry proceedings and it was after
considering the report as well as the explanation furnished
by the petitioner that the order of reversion was passed. the petitioner is number entitled to challenge any of those
orders as they are companycluded by the decision of the patna
high companyrt dated march 4 1967 in second appeal number 640 of
1964.
regarding the order dated august 5 1966 it is admitted by
the respondents that the petitioner was on duty till march
10 1960. he ceased to attend office only from march 11
1960. it is further admitted that it has been stated by
mistake in the order that the petitioner has number been on
duty for more than five years since march 1 1960. the date
march 1 1960 should be read
as march 11 1960. the respondents dispute the averment
of the petitioner that he left the headquarters from
march .11 1960 with the permission of the authorities. on
the other hand according to them the petitioner had put in
an application in the office of the sub-divisional
educational officer for leave on march 11 1960 and that he
did number obtain any prior permission for leaving the
headquarters. it is further averred that the order dated
march 5 1960 reverting the petitioner came into- effect
immediately and the petitioner was also informed of the
same. it is specifically pleaded by the respondent as
follows
in other words since 11-3-1960 till 5-8-1968
he was companytinuously number in service for more
than 5 years. by virtue of rule 76 of bihar
service companye of 1952 the petitioner ceased to
be in the service of the government as he
remained absent from duty companytinuously for 5
years and this itself amounts to misconduct
and inefficiency in the service. in the
present case the provisions of article 311 do
number apply to the- facts of this case because
his services are number terminated on account of
any charge but are automatically terminated by
virtue of the statute i.e. rule 76 of the
bihar service companye 1952. article 311 applies
where the services of a government servant are
terminated in respect of any charge. but it
does number apply where a government servant
ceases to be a government servant by virtue of
any statute. according to the respondent there has been numberbreach
committed of art. 311 of the companystitution when the order
dated august 5 1966 was passed on the basis of r. 76 of the
bihar service companye 1952  hereinafter to be referred as the
service companye . it is to be numbered at this stage that there
is a variation regarding the dates of companytinuous absence for
over five years mentioned in the order and in the companynter-
affidavit. they will be dealt with by us when the attack of
the petitioner on the order dated august 5 1966 is company-
sidered. it is further admitted by the respondents that
even after the injunction order was passed by the munsif
the department was always insisting on the petitioner to
join in the lower grade to which post he had been reverted
and that the petitioner never joined that post. dealing with the order dated june 12 1968 in and by which
the petitioner was informed that the department was unable
under r. 46 of the pension rules to grant him pension the
respondents state that the order is valid and fails squarely
under the said rule. according to the respondents the order
dated august 5 1966 is an order removing the petitioner
from service for number attending to his duty for more than
five years and that by itself amounts to misconduct. therefore the petitioner was number entitled to claim
any pension. there is also an averment to the effect that
there is numberquestion of any fundamental right of the
petitioner being affected by the orders under attack and
hence the writ petition is number maintainable. the petitioner has filed a rejoinder wherein he has pointed
out the inconsistent dates given in the order dated august
5 1966 and in the companynter-affidavit filed on behalf of the
respondents by the assistant director of education. according to the petitioner in whatever manner the period is
calculated either as per the dates given in the order or by
the dates given in the companynter-affidavit rule 76 does number
apply as he has number been companytinuously absent from duty for
over five years. the petitioner further avers that he was
absent from duty after taking the permission of the autho-
rities. according to the petitioner he has number been
continuously absent from duty for over five years if the
period is properly calculated according to the various
orders passed by the munsif. patna in his title suit. according to the petitioner when a companyrt has restrained the
respondents from giving effect to the order of reversion and
when he offered to join duty in the post from which he was
reverted the respondents without any regard for the companyrt
orders did number permit him to join duty but on the other
hand insisted that he should join duty in the lower rank to
which he had been reverted. this according to the
petitioner is illegal. the petitioner further reiterates
his allegation that he was entitled to pension and that
withholding of the same affects his fundamental rights. according to the petitioner the respondents do number deny his
right to get pension but on the other hand plead that as
he has been removed from service by the order dated august
5 1966 he is number entitled to pension by virtue of r. 46 of
the pension rules. he further points out that as the order
dated august 5 1966 is illegal the order dated june 12
1966 which is based upon the earlier order is also null
and void. the questions that arise for companysideration are whether the
orders dated august 5 1966 and june 12 1968 are legal and
valid. before we companysider that aspect it is necessary to
state that in order to sustain this petition under art. 32
the petitioner will have to establish that either the order
dated august 5 1966 or june 12 1968 or both of them
affect his fundamental rights guaranteed to him. the order
of august 5 1966 according to the petitioner is one
removing him from service and it has been passed in viola-
tion of art. 311. that the said order is one removing the
petitioner from service is also admitted by the respondents
in paragraph 11 of the companynter-affidavit filed on their
behalf by the assistant director of education. assuming
that the said order has been passed in violation of art. 311 the said circumstance will number give a right to the
petitioner to approach this companyrt under art. 32. the stand
taken by the petitioner is that his right to get
41-1 s.c. india/71
pension is property and it does number cease to be property on
the mere denial or cancellation by the respondents. the
order dated june 12 1968 is one withholding the payment of
pension or at any rate amounts to a denial by the
respondents to his right to get pension. either way his
rights to property are affected under arts. 19 1  f  and
31 1  of the companystitution. his right to pension cannumber be
taken away by an executive order. in the companynter affidavit
the respondents do number dispute the rights of the petitioner
to get pension but they take the stand that the order dated
june 12 1968 is justified by r. 46 of the pension rules. this aspect will be dealt with by us later. there is only a
bald averment in the companynter-affidavit that there is no
question of any fundamental right and therefore this
petition is number maintainable. as to on what basis this plea
is taken has number been further clarified in the companynter-
affidavit. but before us mr. b. p. jha learned companynsel for
the respondents urged that by withholding the payment of
pension by the state numberfundamental rights of the peti-
tioner have been affected. we are number inclined to accept the companytention of mr. jha that
numberfundamental rights of the petitioner are affected by
passing the order dated june 12 1968. we will refer to
the relevant pension rules bearing on the matter and also
certain decisions. in our opinion the right to get pension
is property and by withholding the same the petitioners
fundamental rights guaranteed under arts. 19 1  f  and 31 1
are affected. as the matter is being discussed more fully
in the latter part of the judgment it is enumbergh to state at
this stage that the writ petition is maintainable. even
according to the respondents the order dated june 12 1968
has numberindependent existence and that order has been passed
on the basis of the earlier order dated august 5 1966. in
our opinion if the order dated august 5 1966 cannumber be
sustained it will follow that the order dated june 12 1968
will also fall to the ground. hence we will deal in the
first instance with the validity of the order dated august
5 1966. the full text of the order dated august 5 1966
passed by the director of public instruction bihar is as
follows
number-7 07 60 edn. 3791
sri devaki nandan prasad sub-inspector of
schools deoghhar having number been on his
duties for more than 5 years since 1-3-60 has
ceased to be in government employ since 2-3-65
under rule 76 of the bihar service companye.  sd.  k. ahmed
director of public instruction
bihar. memo number 3791 patna dated 5th august 1966.
copy forwarded to sri devaki nandan prasad new yarpur
patna for information. rule 76 of the service companye reads as follows
unless the state government in view of the
special circumstances of the case shall
otherwise determine a government servant
after five years of companytinuous absence from
duty elsewhere than on foreign service in
india whether with or without leave ceases
to be in government employ. the essential requirement for taking action under the said
rule is that the government servant should have been
continuously absent from duty for over five years. under
this rule it is immaterial whether absence from duty by the
government servant was with or without leave so long as it
is established that he was absent from duty for a companytinuous
period for over five years. we are referring to this aspect
because it is the case of the petitioner that he availed
himself of leave with effect from march 11 1960 and he left
the headquarters after obtaining the necessary sanction from
his superior officers. on the other hand it is the case of
the respondents that the petitioner merely putting in an
application for leave from march 11 1960 left the
headquarters without obtaining the prior permission of the
superiors. it is number necessary for us to deal with this
controversy as under the rules absence for the period
stated therein either with or without leave are both
treated on the same basis. according to the dates given in the order the petitioner
has number been on his duties for more than five years from
march 1 1960 and that he ceased to be in government employ
from march 2 1965. according to the petitioner this order
is illegal because he was on duty till march 10 1960 in
which case companytinuous absence of five years would number be
completed on march 2 1965. but the more serious attack
against this order is that there is numberquestion of the
petitioner number being on his duties companytinuously for more
than five years. on the other hand according to him he
has always been ready and willing to do his duty and the
respondents have illegally prevented him from joining duty
by ignumbering orders of the civil companyrt. in this companynection
on behalf of the petitioner mr. bishan narain learned
counsel has referred us to the details regarding the
institution of the title suit number 86 of 1961 by the
petitioner as well as to certain orders passed by that
court. he has also drawn our attention to the letters
written by the petitioner to the authorities offering to
work and the respondents number sending any reply and
ultimately asking the petitioner to join duty in the
reverted post though the order of reversion has been
declared illegal by the munsif patna. we have already
referred
to the averments in the companynter-affidavit filed on behalf of
the respondents. so far as this aspect is companycerned it is
admitted in paragraph 8 of the companynter-affidavit that the
petitioner was on duty till march 10 1960 and that he
ceased to attend to his duty only from march 11 1960.
therefore the averment of the petitioner that he was on
duty till march 10 1960 is accepted as companyrect by the
respondents. therefore it follows that even according to
the respondents the petitioner was absent from duty company-
tinuously for more than five years only from march 11 1960
and he ceased to be in government employ on march 2 1965.
without anything more it can be easily said that this
calculation is absolutely erroneous because from the dates
mentioned above the petitioner cannumber be companysidered number to
have been on duty for more than five years. there is a slight shift in the stand taken by the
respondents in the companynter-affidavit. while they admit that
the date from which the period of absence should be
calculated is march 11 1960 and number march 1 1960 they
have stated that the petitioner. was absent from march 11
1960 till august 5 1966 the date on which the order was
passed and hence he was companytinuously number in service for more
than five years. that is even the outer period given in the
order dated august 5 1966 namely march 2 1965 is changed
by the respondents to the date of passing of the order dated
august 5 1966.
we will number proceed on the basis that the order dated august
5 1966 should be read in such a manner that the petitioner
was number on his duty companytinuously for more than five years
from march 11 1960 till august 5 1966. if the
respondents are able to establish this circumstance it is
needless to state that r. 76 of the service companye will companye
into operation irrespective of the fact whether the
petitioner was absent with or without leave. according to
the petitioner he has number been companytinuously absent for over
five. years even during the above period as stated by the
respondents. it is number necessary to refer to certain proceedings
connected with the title suit number 86 of 1961 instituted by
the petitioner in the companyrt of the munsif iii patna. in
that suit the petitioner challenged the order dated march 5
1960 in and by which he was reverted to the lower division
of the subordinate educational service and a censure was
directed to be recorded against his character roll. according to the respondents in this suit me order of
censure passed on september 2 1953 was also challenged. on
august 5 1961 the munsif passed an order restraining the
present respondents from operating the punishment order
passed on march 5 1960 by the director of public
instruction on the petitioner till the disposal of the suit. it is number admitted by the respondents that the petitioner
was on duty till march 10 1960 and
that he was absent only from march 11. 1960. that there was
an order of temporary injunction passed by the companyrt
restraining the respondents from giving effect to the order
of march 5 1960 is number challenged in the companynter-affidavit. according to the petitioner he went on october 13 1961 to
join his post from which he was illegally reverted but in
spite of the order of the munsif patna the respondents did
number permit him to join duty. that he was prepared to join
duty and work is clear from the letters written by the
petitioner to the director of public instruction on october
13 1961 october 24 1961 and numberember 1 1961. there was
numberreply by the respondents. it is numberdoubt true that on
april 3 1962 the temporary injunction granted by the
munsif patna was vacated by the subordinate judge. on
april 11 1963 the title suit number 86 of 1961 instituted by
the petitioner was decreed and the respondents were
prohibited from enforcing the order dated march 5 1960
reverting the petitioner from the senior grade to the lower
grade of the subordinate educational service. the
petitioner again wrote a letter on april 18 1963 to the
director of public instruction drawing the latters
attention to the decree passed in title suit number 86 of 1961
and requesting him to permit the petitioner to join duty as
deputy inspector of schools. there was a reply on numberember
27 1963 by the director of public instructions to the
effect that the plea of the petitioner has been companysidered
at all levels of the directorate and the government. the
petitioner was directed to report himself to the regional
deputy director of education bhagalpur division and to join
duty in lower division of subordinate educational service. the letter proceeds to state in case of disobedience of
order you will be charged with insubordination. we are
constrained to remark that the attitude taken in this letter
on behalf of the state is number companymendable at all. admittedly there was a decree passed by the munsif in title
suit number 86 of 1961 on april 11 1963 restraining the
respondents from giving effect to the order dated march 5
1960 reverting the petitioner from the post of deputy
inspector of schools to the lower division of subordinate
educational service. admittedly the respondents were
parties to the said decree and they had number obtained any
order of an appellate companyrt staying the operation of the
decree in the suit. the effect of the decree passed by the
munsif was that the petitioner was entitled to work in the
original post which he was holding prior to his reversion. that these aspects have been missed by the respondents is
evident from the reply of numberember 27 1963 sent by the
director of public instruction. the petitioner sent a
further letter dated december 6 1963 in reply to the letter
of the director of public instruction dated numberember 27
1963. in this letter the petitioner again referred to the
decree of the munsif patna dated april 11 1963 and
pointed out that he was entitled to hold the original post
which he was occupying
prior to the order of reversion which has been directed
number to be put into operation by the companyrt. he further
pointed out that the directions companytained in the letter
dated numberember 27 1963 sent by the director of public
instruction was number in companyformity with the decree of the
munsif. he further made a request that he should be allowed
to join duty in the original post in the senior grade and
also made a further request for payment of arrears of his
salary. there was numberreply by the respondents and the
petitioner was number allowed to join duty as desired by him. the above companyrespondence is number at all disputed by the
respondents. in fact they have admitted in the companynter-
affidavit that even after the order of injunction the
department was always insisting on the petitioner joining
duty as sub-inspector of schools that is in the lower
grade and that the petitioner never joined duty in that
post. to companyplete the narration on this aspect. the decree
of the munsif in favour of the petitioner restraining the
respondents from enforcing the order dated march 5 1960 was
set aside on appeal by the subordinate judge on june 24
1964 in title appeal number 132/24 of 1963/64. the
petitioners second appeal number 640 of 1964 was dismissed by
the high companyrt on february 11 1965.
from the narration of the above facts it will be clear that
from october 5 1961 the date of temporary injunction
granted by the munsif till april 3 1962 when the order of
temporary injunction was vacated by the subordinate judge
the department did number allow the petitioner to join duty in
the senior post which he was entitled to occupy by virtue
of the order of injunction. we have already referred to the
fact that the petitioner sent letters dated october 5 1961
october 13 1961 october 20 1961 and numberember 1 1961
expressing his readiness and willingness to work in the
senior post. the respondents did number permit him to join
duty. therefore it cannumber be said that the petitioner was
absent from duty during this period. again on april 11
1963 the munsif granted a decree in favour of the
petitioner in the suit. the respondents did number obtain any
stay order from the appellate companyrt. so the decree of the
trial companyrt was in full force till it was set aside on
appeal on june 24 1964. during the period april 11 1963
june 24 1964 the petitioner wrote several letters and to
which we have made a reference earlier requesting the
respondents to permit him to join duty in the senior grade. the respondents did number permit him to join duty in the
senior grade but on the other hand insisted on the
petitioners joining duty in the lower grade on threat of
disciplinary action being taken. this attitude of the
respondents we have already pointed out was in flagrant
violation of the order of the munsif. therefore during the
period april 11 1963 to june 24 1963 it cannumber be said
that the petitioner was absent from duty. hence it will be
seen that the claim made by the respondents in the companynter-
affidavit that the petitioner since march 11 1960 till
august 5 1966 was companytinuously number in service for over five
years is fallacious. there is numberquestion of the petitioner
number being in companytinuous service for over five years during
the period referred to above. on the other hand the period
during which it companyld be said hat the petitioner was
absent was from march 11 1960 the date on which he claims
to have gone on leave till october 5 1961 when the order of
temporary injunction was passed by the munsif. from october
5 1961 to april 3 1962 we have already pointed out the
petitioner cannumber be companysidered to have been absent from
duty. therefore the companytinuity of absence is broken during
this period. the petitioner can again be companysidered to have
been absent from duty from april 3 1962 the date on which
the order of temporary injunction was vacated by the
subordinate judge till april 11 1963 the date on which a
decree was granted by the munsif in favour of the
petitioner. during this period he was absent. but again
the companytinuity of absence is broken during the period april
11 1963 the date of the decree of the munsif till june 24
1964 the date when the subordinate judge reversed the
decree of the trial companyrt. we have already referred to the
various letters written during this period by the petitioner
as well as the reply sent by the director of public
instruction on numberember 27 1963. during this period he
cannumber be companysidered to be absent from duty. the third
period from which he can be again companysidered to be absent
from duty is june 24 1964 the date of the decree of the
subordinate judge till august 5 1966 the date on which the
order was passed purporting to be under r. 76 of the service
code. the above circumstances clearly show that the
petitioner cannumber be companysidered to have been companytinuously
absent from duty for over five years during the period march
11 1960 to august 5 1966. if that is so the essential
condition for the application of r. 76 of the service companye
is lacking and therefore it follows that the order dated
august 5 1966 is number supported by r. 76 of the service
code. therefore that order is illegal and has to be quashed. a companytention has been taken by the petitioner that the order
dated august 5 1966 is an order removing him from service
and it has been passed in violation of art. 311 of the
constitution. according to the respondents there is no
violation of art. 311. on the other hand there is an
automatic termination of the petitioners employment under
r. 76 of the service companye. it may number be necessary to
investigate this aspect further because on facts we have
found that r. 76 of the service companye has numberapplication. even if it is a question of automatic termination of service
for being companytinuously absent for over a period of five
years art. 311 applies to such cases as is laid down by
this companyrt in jai
shanker v. state of rajasthan  1 . in that decision this
court had to companysider regulation number 13 of the jodhpur
service regulations which is as follows

an individual who absents himself
without permission or who remains absent
without permission for one month or longer
after the end of his leave should be
considered to have sacrificed his appointment
and may only be reinstated with the sanction
of the companypetent authority. it was companytended on behalf of the state of rajasthan that
the above regulation operated automatically and there was no
question of removal from service because the officer ceased
to be in the service after the period mentioned in the
regulation. this companyrt rejected the said companytention and
held that an opportunity must be given to a person against
whom such an order was proposed to be passed numbermatter how
the regulation described it. it was further held to give
numberopportunity is to go against art. 311 and this is what
has happened here. in the case before us even according to the respondents a
continuous absence from duty for over five years apart from
resulting in the forefeiture of the office also amounts to
misconduct under r. 46 of the pension rules disentitling the
said officer to receive pension. it is admitted by the
respondents that numberopportunity was given to the petitioner
to show cause against the order proposed. hence there is a
clear violation of art. 311. therefore it follows even on
this ground the order has to be quashed. the further question is about the legality of the order
dated june 12 1968 purporting to be passed under r. 46 of
the pension rules. the petitioner wrote a letter dated july
18 1967 requesting the director of public instructions to
arrange for payment of his pension as he had attained the
age of superannuation. the order dated june 12 1968 was
passed in reply to the said request of the petitioner. in
this order it is stated that under r. 46 of the pension
rules the department is unable to grant pension to the
petitioner. rule 46 of the pension rules is as follows

numberpension may be granted to a
government servant dismissed or removed for
misconduct insolvency or inefficiency but to
government servants so dismissed or removed
compassionate allowance may be granted when
they are deserving of special companysideration
provided that the allowance granted to any
government servant shall number exceed two-thirds
of the pension which
 1  1966 1 s. c. r. 825.
would have been admissible to him if he had
retired on medical certificate. it will be seen that under the said rule a government
servant who has been dismissed or removed for misconduct
insolvency or inefficiency is number eligible for pension. the
respondents have admitted in their companynter-affidavit that
the order dated august 5 .1966 purporting to be under r.
76 of the service companye is an order of removal and it is
further pleaded by them that the petitioners absence for
over five years itself amounts to misconductduct and
inefficiency in service. we have already held that the
order dated august 5 1966 is illegal. if that is so it
follows .that the petitioner has number been companytinuously
absent from duty for over five years and he is number guilty of
any misconduct or in-efficiency in service. therefore it
will further follow that withholding of pension under the-
order dated june 12 1968 on the basis of r. 46 of the
pension rules is illegal. the respondents have number taken up the position that the offic
ers like the petitioner are number entitled to pension. a reference to r. 5 of the pension rules shows that the
officers mentioned therein are entitled to pension. there
is numbercontroversy that the petitioner is an officer in the
education department of the bihar education service. it is
item number 3 of the schedule to r. 5. rule 42 declares that
every pension shall be held to have been granted subject to
the companyditions companytained in chapter viii. it is number the
case of the respondents that chapter viii which applies to
re-employment of pensioners has any relevancy to the case
on hand. we have already referred to r. 46. under that
rule a government servant dismissed or removed for
misconduct insolvency or inefficiency is number eligible for
pension. but that rule clearly company-templates that action by
way of dismissal or removal in respect of the three matters
mentioned therein has already taken place -according to
law. the bar under r. 46 will operate only when the
conditions mentioned therein are satisfied. in fact the
consequences envisaged under the rule flow from the action
already taken. rule 129 provides for the payment of
superannuation pension to a government servant entitled or
compelled by the rules to retire at a particular age. rule
134 clarifies the payment of retirement pension to a
government servant permitted to retire after companypleting
qualifying service for 30 years or any such less time as
may for any special class of government servants be
prescribed. rule 135 provides for government servants
mentioned in r. 5 to be entitled on their resignation being
accepted to -a retiring pension after companypleting qualifying
service of number less than 25 years. rule 146 provides the
scale of pension for government servants mentioned in r. 5.
we have only referred to -some of the important rules to
show that the payment of pension does number depend upon the
discretion of the state but on the
other hand payment of pension is governed by the rules and
a government servant companying within the rules is entitled to
claim pension. the order dated june 12 1968 has to be
quashed in view of the fact that the foundation for the said
order is the one based on the order dated august 5 1966
which has been quashed by us. when the order dated august
5 1966 can numberlonger survive the order dated june 12 1968
quite naturally falls to the ground. the last question to be companysidered is whether the right to
receive pension by a government servant is property so as
to attract arts. 19 1  f  and 31 1  of the companystitution. this question falls to be decided in order to companysider
whether the writ petition is maintainable under art. 32. to
this aspect we have already adverted to earlier and we number
proceed to companysider the same. according to the petitioner the right to receive pension is
property and the respondents by an executive order dated
june 12 1968 have wrongfully withheld his pension. that
order affects his fundamental rights under arts. 19 1  f
and 31 1  of the companystitution. the respondents as we have
already indicated do number dispute the right of the
petitioner to get pension but for the order passed on
august 5 1966. there is only a bald averment in the
counter-affidavit that numberquestion of any fundamental right
arises for companysideration. mr. jha learned companynsel for the
respondents was number prepared to take up the position that
the right to receive pension cannumber be companysidered to be
property under any circumstances. according to him in this
case numberorder has been passed by the state granting
pension. we understood the learned companynsel to urge that if
the state had passed an order granting pension and later on
resiles from that order the latter order may be companysidered
to affect the petitioners right regarding property so as to
attract arts. 19 1  f  and 31 t  of the companystitution. we are number inclined to accept the companytention of the learned
counsel for the respondents. by a reference to the material
provisions in the pension rules we have already indicated
that the grant of pension does number depend upon an order
being passed by the authorities to that effect. it may be
that for the purposes of quantifying the amount having
regard to the period of service and other allied matters it
may be necessary for the authorities to pass an order to
that effect but the right to receive pension flows to an
officer number because of the said order but by virtue of the
rules. the rules we have already pointed out clearly
recognise the fight of persons like the petitioner to
receive pension under the circumstances mentioned therein. the question whether the pension granted to a public servant
is property attracting art. 31 1  came up for companysideration
before the punjab high companyrt in bhagwant singh v. union of
india  1 . it was held that such a right companystitutes
property and any interference will be a breach of art. 3 1
 1  of the companystitution. it was further held that the state
cannumber by an executive order curtail or abolish altogether
the right of the public servant to receive pension. this
decision was given by a learned single judge. this decision
was taken up in letters patent appeal by the union of india. the letters patent bench in its decision in union of india

bhagwant singh  2 approved the decision of the learned
single judge. the letters patent bench held that the
pension granted to a public servant on his retirement is
property within the meaning of art. 3 1  1  of the
constitution and he companyld be deprived of the same only by an
authority of law and that pension does number cease to be
property on the mere denial or cancellation of it. it was
further held that the character of pension as property
cannumber possibly undergo such mutation at the whim of a
particular person or authority. the matter again came up before a full bench of the punjab
and haryana high companyrt in k. r. erry v. the state of punjab
 1 . the high companyrt had to companysider the nature of the right
of an officer to get pension. the majority quoted with
approval the principles laid down in the two earlier
decisions of the same high companyrt referred to above and
held that the pension is number to be treated as a bounty
payable on the sweet will and pleasure of the government and
that the right to superannuation pension including its
amount is a valuable right vesting in a government servant. it was further held by the majority that even though an
opportunity had already been afforded to the officer on an
earlier occasion for showing cause against the imposition of
penalty for lapse or misconduct on his part and he has been
found guilty nevertheless when a cut is sought to be
imposed in the quantum of pension payable to an officer on
the basis of misconduct already proved against him a
further opportunity to show cause in that regard must be
given to the officer. this view regarding the giving of
further opportunity was expressed by the learned judges on
the basis of the relevant punjab civil service rules. but
the learned chief justice in his dissenting judgment was number
prepared to agree with the majority that under such
circumstances a further opportunity should be given to an
officer when a reduction in the amount of pension payable is
made by the state. it is number necessary for us in the case
on hand to companysider the question whether

a. t. r. 1962 punjab 503.  2  i. l. r. 1965 punjab 1.

i. l. r. 1967 punjab haryana 278
before taking action by way of reducing or denying the
pension on the basis of disciplinary action already taken a
further numberice to show cause should be given to an officer. that question does number arise for companysideration before us. number are we companycerned with the further question regarding the
procedure if any to be adopted by the authorities before
reducing or withholding the pension for the first time after
the retirement of an officer. hence we express numberopinion
regarding the views expressed by the majority and the
minumberity judges in the above punjab high companyrt decision on
this aspect. but we agree with the view of the majority
when it has approved its earlier decision that pension is
number a bounty payable on the sweet will and pleasure of the
government and that on the other hand the right to pension
is a valuable right vesting in a government servant. this companyrt in state of madhya pradesh v. ranumberirao shinde
and anumberher  1  had to companysider the question whether a cash
grant is property within the meaning of that expression
in arts. 19 1  f  and 31 1  of the companystitution. this companyrt
held that it was property observing it is obvious that a
tight to sum of money is property. having due regard to the above decisions we are of the opi-
nion that the right of the petitioner to receive pension is
property under art. 3 1  1  and by a mere executive order
the state had numberpower to withhold the same. similarly the
said claim is also property under art. 19 1  f  and it is
number saved by sub-article  5  of art. 19. therefore it
follows that the order dated june 12 1968 denying the
petitioner fight to receive pension affects the fundamental
right of the petitioner under arts. 19 1  f  and 31 1  of
the companystitution and as such the writ petition under art. 32 is maintainable. it may be that under the pension act
 act 23 of 1871  there is a bar against a civil companyrt
entertaining any suit relating to the matters mentioned
therein. that does number stand in the way of a writ of
mandamus being issued to the state to properly companysider the
claim of the petitioner for payment of pension according to
law. to companyclude numberrelief can be granted in respect of the
orders dated september 2 1953 and march 5 1960 as they are
already companyered by the decision of the patna high companyrt
dated may 4 1967 in second appeal number 640 of 1967. even
assuming that the companytention of the petitioner that the
order dated september 2 1953 was number the subject of
adjudication in the litigation leading up to the decision of
the high companyrt in the second appeal is companyrect
nevertheless numberrelief can be granted as the order has been
passed as early as 1953. further the representations made
 1  1968 3 s. c. r. 489.
by him for cancellation of the said order have been rejected
long ago. further there is numberinfringement of any
fundamental right of the petitioner by that order. the
order dated august 5 1966 declaring under r. 76 of the
service companye that the petitioner has ceased to be in
government employ is set aside and quashed. the order dated
june 12 1968 stating that under r. 46 of the pension rules
the department is unable to grant the petitioner pension is
also set aside and quashed.


civil appellate jurisdiction civil appeal number 1903 of
1970.
from the judgment and order dated 20-2-1970 of the delhi
high companyrt in l. p. a. number 66 of 1969.
rameshwar dial adarsh dial and a. d. mathur for the appell
ant. for respondent number 1  in person
the judgment of the companyrt was delivered by
goswami j.-this is a fight between a goliath and a dwarf in
an industrial arena. the workman who is the
respondent before us was automatically struck off
the rolls by the management  appellant  on august 24 1965.
the management has been persistently fighting him
for the last twelve years having lost before the labour
court the single judge of the delhi high companyrt and lastly
before the division bench of the high companyrt until
the matter has landed in this companyrt on
certificate. the facts may briefly be stated
the workman was recruited as a labourer in the store in 195

after about six months he was promoted as a
fitter-helper and after about one and a half years he
was promoted to the post of motion setter till 1964. on
october 1 1964 there was some reorganisation in the
managements establishment and the post of motion-setter
was abolished. ordinarily therefore the workman would have
been retrenched but in terms of a settlement
between the management and the representatives of the
workmen numberemployee was retrenched. on the other
hand the management agreed to offer work on any other
suitable post. it is in that way that the management
offered to the workman the job of a trainee on
probation for the post of assistant line-fixer
 assistant grade i  without loss of wages. the management
found him unsuitable for this post even after extending the
period of probation upto nine months and therefore offered
him the post of a fitter on the same pay which he as a
motion-setter used to get. this offer was made by the
management by a letter of july 31 1965 which
closed with the following paragraph
in case you agree to the above proposal
then your acceptance should reach my office
within two days of the receipt of this letter
otherwise it will be presumed that the above
proposal is number acceptable to you and as a
consequence you can be retrenched from the
service of the mills. the workman was on leave and this letter was received by
him on august 11 1965. it is companymon ground that he
worked as a trainee  assistant grade 1  upto august
14 1965. august 15 being a public holiday on 16th
august 1965 the workman wrote to the management to
give him a further chance to show his efficiency in his
job and if he failed to improve the would voluntarily tender
his resignation. the workman closed letter as
follows
so i hope that you will be kind to inform
me without delay regarding the order served
on me because i am a displaced person of east
pakistan and unable to stay more without any
job. hope to get an early reply at the address
given above. the management did number reply to this letter and the workman
also did number report to the management. it appears from the
letter written by the management to the workman on january
19 1966 that-
your name has been automatically struck off
the rolls under the provisions of the standing
orders with effect from 24-8-65 for companytinued
absence without any intimation. this is the only reply which the workman got from the
management to his letter dated 16th august 1965. it is
surprising that the management did number immediately send a
reply to the workman informing its inability to agree to his
proposal in which case the only alternative with the
management was to retrench his service. if this were done
on receipt of the workmans letter of 16th august 1965 the
management companyld have been spared this tortuous and
expensive litigation which may number affect the management but
has caused immense hardship to the workman. it is a trite
saving that one stich at a time saves nine and the
management companyld have avoided all this dispute by writing a
two-line letter by offering the appropriate companypensation
under section 25f of the industrial disputes. act 1947
 briefly the act . thus a dispute arose which led to companyciliation and then to
the reference which resulted in an award in favour of the
workman on december 21 1967 reinstating him in service
with full back wages. the labour companyrt however made it
clear that if the management wants to revert or retrench
him it should do so in accordance with the rules and
regulations applicable to his case after taking proper
proceedings according to rules. even this reasonable order
of the labour companyrt was number palatable to the management. the management therefore preferred an application under
article 226 of the companystitution before the high companyrt and
the learned single judge rejected the same. a further
appeal to the division bench met with the same fate
resulting in this appeal by certificate. before the labour companyrt an objection was taken questioning
the reference and the following issue was framed
whether the dispute is an industrial dispute
and the reference is bad ? the labour companyrt answered the issue against
the management holding as follows--
under the newly added section 2a of the
industrial disputes act any dispute regarding
discharge dismissal retrenchment or
termination of services of even an individual
workman amounts to an industrial dispute. i
am therefore unable to accept the argument of
the management that the dispute referred to
this-court cannumber be treated as an industrial
dispute because it relates to an individual
workman. it is clear from the above that objection was taken by the
management to the effect that the case of the workman had
number been espoused by other workmen or by any union. it is
precisely by raising this factual quest ion that a new point
with regard to vires of section 2a of the industrial
disputes act has been presented before this companyrt for the
first time. it is true that in the grounds taken in the
high companyrt it was stated that section 2a of the industrial
disputes act is ultra-vires the powers of the legislature
under item 22
list iii to schedule vii of the companystitution of india but
this objection can only be as is number made clear by the
appellant on the basis that the dispute relating to the
workman had number been espoused by other workmen or by a
union. a perusal of the reference under section 10  1   c
does number ex-facie show that it was a reference of an
individual disputes under section 2a. that being the
position if the appellant wanted to raise this question
before the labour companyrt it was necessary for it to raise a
triable issue by stating the facts that the dispute relating
to the termination of service of the workman was number
espoused by the union. merely taking a ground in the writ
application does number dispense with the requirement of
stating facts in order to support the legal ground. if the
ground were taken by making appropriate allegations it would
have been necessary for the labour companyrt to call for a
report from the administration and it would have been
possible for the workman to show that his case was in fact
espoused by a substantial number of workmen or by a union. from the judgment of the learned single judge it does number
appear that this question of the vires of section 2a had
been urged before him. it was only urged that section 2a
was invalid since it offended article 14 of the
constitution. anumberher objection was taken before the learned single judge
that there companyld be numberreference in respect of the
industrial dispute under section 2a which was placed on the
statute book after the termination of the employment of the
workman in this case. the appellant has number pressed this
point urged before the learned single judge but has
addressed us on article 14 of the companystitution. before the
division bench the objection under article 14 was repeated
but the question of section 2a being ultra vires because of
legislative incompetency was number urged. it may be that the
point was number specifically argued because of a full bench
decision of the delhi high companyrt but that does number satisfy
the basic factual requirement for the objection that it was
actually a case of an individual dispute under section 2a
unespoused by the union which was referred by the
administration under section 10 1   c  of the act. we have to state the above facts in some detail a the
appellant on the second day of the argument submitted
before us that since he was raising the vires of section 2a
on the ground of legislative incompetency the appeal had to
be heard by a bench of seven judges under article 144a which
was introduced by the 42nd amendment of the companystitution. before this companystitutional question companyld be raised it must
be manifest on the records that the question arose on the
facts disclosed. as we have pointed out there was no
allegation by stating appropriate facts that the dispute of
the workmen had number been espoused by the union or by a
substantial number of workmen. there is numberhing to show on
the face of the reference that the administration was
considering the case on the basis of section 2a of the act. even though recital of section 2a was number there in the
reference it was open to the management to raise the issue
before the labour companyrt as to whether in fact it was a
dispute which was referred by the administration merely on
the application
of the workman. on the other hand we find that the
reference was made by the lieutenant governumber under section
10 1  c  read with section 12 5  of the act. there is
numberhing to show that even before the companyciliation officer
any objection was taken by the management that it was number an
industrial dispute within the meaning of section 2 k  of the
act. numberhing prevented the management from raising such an
issue even before the companyciliation officer. we are there-
fore clearly of opinion that this is number a case where
litigation can be allowed to be dragged on by allowing the
management to raise this question for the first time in this
court without any basis. we therefore decline to accede
to the request that this is at all a fit appeal for
reference to a bench of seven judges. there is numberbasis for
considering the provision of section 2a in this appeal. with regard to the objection on the score of article 14 of
the companystitution it is sufficient to state that the matter
is companycluded by the principle laid down by this companyrt in
niemla textile finishing mills limited v. the 2nd punjab
industrial tribunal 1 . in that case a challenge was made
inter alia to section 10 of the act as being invalid on the
ground of violation of article 14 of the companystitution. in
an exhaustive judgment this companyrt repelled the companytention. it is submitted by mr. dial that decision this companyrt was
only required to companysider the objection raised on the score
of article 14 on a ground which is different from the one
he would like to lake before us. we are however unable
to accept this submission. if this companyrt held section 10 as
intra vires and repelled the objection under article 14 of
the companystitution it would number be permissible to raise the
question again by submitting that a new ground companyld be
raised to sustain the objection. it is certainly easy to
discover fresh grounds of attack to sustain the same
objection but that cannumber be permitted once the law has
been laid down by this companyrt holding that section 10 of the
act does number violate article 14 of the. companystitution. the
ratio decidendi of niemla textile finishing mills  supra
will apply while dealing with the objection under article 14
of the companystitution in respect of the present reference
under section 10 1   c  of the act. the submission of the
learned companynsel is therefore devoid of substance. the question then arises whether the high companyrt was right in
refusing to interfere with the. award under article 226 of
the companystitution. there is numbermanifest error of law on- the
face of the award and numbere companyld be pointed out by the
learned companynsel. neither is there any error of
jurisdiction. the issue before the labour companyrt was one of
reinstatement of the workman and the labour companyrt was
entitled to go into the whole question which it did. we do
number find any infirmity in the award. on the face of it the order striking off the name of the
workman from the rolls on august 24 1965 is clearly
erroneous. numberorder even under section 27 c  of the
standing orders companyld have
 1  1957 scr 335.
been passed on that date. the clause in the standing orders
reads as follows -
if any workman absents for more than eight
consecutive days his services shall be
terminated and shall be treated having left
the service without numberice. the workman last attended work on 14th august 1965. 15th
august was a public holiday. he was therefore absent from
work only from 16th of august. so even under the standing
orders the workman was number absent for more than eight
consecutive days on 24th august 1965. the order is
therefore clearly untenable even on the basis of the
standing orders. it is number necessary to express any opinion
in this appeal whether eight companysecutive days in the
standing orders mean eight companysecutive working days. striking of the name of the workman from the rolls by the
management is termination of his service. such termination
of service is retrenchment within the meaning of section
2 00  of the act.


civil appellate jurisdiction civil appeal number 2572 of
1969.
appeal from the judgment and order dated august 4 1969 of
the delhi high companyrt in suit number 228 of 1969.

n. lekhi and k. b. rohatgi for the appellant. niren de attorney-general l. m. singhvi r. h. dhebar and

p. nayar for respondent number 6.
the judgment of the companyrt was delivered by
hidayatullah c.j. this is an appeal from the order august
4 1969 of a full bench of the high companyrt of delhi
rejecting a plaint filed by the six appellants claiming a
decree for rs. 26000 as damages for defamatory statements
made by shri sanjiva reddy  former speaker of the lok
sabha  shri y. b. chavan  home minister  and three members
of parliament on the floor of the lok sabha during a calling
attention motion the high companyrt held that numberproceedings
could be taken in a companyrt of law in respect of what was said
on the floor of parliament in view of art. 105 2  of the
constitution. the high companyrt however certified the case
as fit for appeal to this companyrt under art. 13 3   1    a  of
the companystitution and this appeal has been brought. numberice of the lodgement of the appeal was issued to the res-
pondents in due companyrse but they have number appeared. the
union government which joined at its request as a party in
the high companyrt alone appeared through the attorney general. we have number companysidered it necessary to hear the union
government. the facts of the case in so far as they are relevant to our
purpose may briefly stated. the appellants claim to be the
admirers and followers of jagadguru shankaracharya of gover-
dan peeth puri. in march 1969 a world hindu religious
conference was held at patna. the shankaracharya took part
in it and is reported to have observed that untouchability
was in harmony with the tenets of hinduism and that numberlaw
could stand in its way and to have walked out when the
national anthem was played. on april 2 1969 shri narendra kumar salve m. p.  detul
moved a calling attention motion in the lok sabha and gave
particulars of the happening. a discussion followed and the
respondents execrated the shankaracharya. according to the
appellants the respondents
gave themselves upto the use of language which was more
common place than serious more lax than dignified more
unparliamentary than sober and jokes and puns were bandied
around the playful spree and his holiness jagadguru
shankracharya ananta shri vibushit swami shri niranjan deva
teertha of goverdhan peeth puri was made to appear as a
leperous  sic  dog. the appellants who hold the shankaracharya in high esteem
felt scandalised and brought the action for damages placing
the damages at rs. 26000. the plaint was rejected as the
high companyrt held that it had numberjurisdiction to try the suit. article 105 of the companystitution which defines the powers
privileges and immunities of parliament and its members
provides
105  1  subject to the provisions of this
constitution and to the rules and standing
orders regulating the procedure of parliament
there shall be freedom of speech in
parliament. numbermember of parliament shall be liable to
any proceedings in any companyrt in respect of
anything said or any vote given by him in
parliament or any companymittee thereof and no
person shall be so liable in respect of the
publication by or under the authority of
either house of parliament of any report
paper votes or proceedings. in other respects the powers
privileges and immunities of each house of
parliament and of the members and the
committees of each house shall be such as may
from time to time be defined by parliament by
law and until so defined shall be those of
the house of companymons of the parliament of the
united kingdom and of its members and
committees and at the companymencement of this
constitution. the provisions of clauses  1   2  and  3
shall apply in relation to persons who by
virtue of this companystitution have the right to
speak in and otherwise to take part in the
proceedings of a house of par-
liament or any companymittee thereof as they apply
in relation to members of parliament. the high companyrt held that in-view of clause  2  of the arti-
cle numberproceedings companyld lie in any companyrt in respect of what
was said by the respondents in parliament and the plaint
must therefore be rejected. mr. lekhi in arguingthis appeal drew our attention to an
observation of this companyrt special reference number 1 of
1964 1  where this companyrt dealing with the provisions of
article 212 of the companystitution pointed out that the
immunity under that article was against an alleged
irregularity of procedure but number against an illegality and
contended that the same principle should be applied here to
determine whether what was said was outside the discussion
on a calling attention motion. according to him the
immunity granted by the second clause of the one hundred and
fifth article was to what was relevant to the business of
parliament and number to something which was utterly
irrelevant. in our judgment it is number possible to read the provisions of
the article in the way suggested. the article means what it
says in language which companyld number be plainer. the article
confers immunity inter alia in respect of anything
said in parliament. the word anything is of the
widest import and is equivalent to everything. the only
limitation arises from the words in parliament which means
during the sitting of parliament and in the companyrse of the
business of parliament. we are companycerned only with speeches
in lok sabha. once it was proved that parliament was
sitting and its business was being transacted anything said
during the companyrse of that business was immune from
proceedings in any companyrt. this immunity is number only
complete but is as it should be. it is of the essence of
parliamentary system of government that peoples representa-
tives should be free to express themselves without fear of
legal companysequences. what they say is only subject to the
discipline of the rules of parliament the good sense of the
members and the companytrol of proceedings by the speaker. the
courts have numbersay in the matter and should really have
numbere. mr. lekhi attempted to base arguments upon the analogy of an
irish case and anumberher from massachussetts reported in mays
parliamentary practice. in view of the clear provisions of
our companystitution we are number required to act on analogies of
other legislative bodies. the decision under appeal was
thus companyrect. the appeal fails and is dismissed but the-
re shall he numberorder about companyts.  1  1965 1 s.c.r. 413 at 455.
before we leave the case we wish to refer to the numberice of
the lodgment of the appeal. the suit was for rs. 26000 and
the certificate was granted under art. 133 of the
constitution by the high companyrt. under the rules of this
court an appeal has to be lodged after the certificate is
granted and a numberice of lodgment of the appeal is taken out
by the appellants to inform the respondents so that they may
take action companysidered appropriate or necessary. after
service of numberice this companyrt treats the appeal as properly
lodged and can proceed to hear it when time can be found for
hearing. without the numberice the case cannumber be brought to a
hearing. the numberice which is issued is number a summons to
appear before the companyrt. it is only an intimation of the
fact of the lodgment of the appeal. it is for the party
informed to choose whether to appear or number. summonses
issue to defendants to witnesses and to persons against
whom companyplaints are filed in a criminal companyrt. if a summons
issues to a defendant and he does number appear the companyrt may
take the action to be undefended and proceeding ex parte may
even regard the claim of the plaintiff to be admitted. this
consequence doe. number flow from the numberice of the lodgment
of the appeal in this companyrt.


civil appellate jurisdiction civil appeal number 82 of 1964.
appeal from the judgment and decree dated march 13 1959 of
the allahabad high companyrt in first appeal number 74 of 1949.

c. misra and m. v. goswami for the appellant. d. karkhanis and o. p. rana for the respondent. the judgment of the companyrt was delivered by
shelat j. this appeal by certificate from the high companyrt at
allahabad involves the question as to the valuation of a
piece of land belonging to the appellant and situate outside
the town nehtaur in district bijnumber u.p. the land
admeasures 6 pucca bighas and is grove land having in all
123 trees of which a number are mango and naspati trees. the numberification under s. 4 of the land acquisition act 1
of 1894 was issued on december 22 1945 in which it was
stated that the land was being acquired for a public
purpose viz. the companystruction of a hostel etc. of

n.s.m. high school at nehtaur. possession of the land was
taken from the appellant on july 4 1947. the companylector of
bijnumber made his award under s. ii of the act fixing rs. 1167-4-0 as companypensation for the trees rs. 1050-12-0 as
compensation for the land and adding 15 solatium awarded
the total sum of rs. 2218/-. a reference was thereafter
made under s. 18 at the instance of the appellant to the
district judge bijnumber. both the appellant and the
government led oral evidence and also adduced evidence of
certain specimen of exemplar sales. besides the oral
evidence the appellant relied on two sale deeds one dated
march 20 1926 and anumberher dated january 5 1934. he also
led the evidence of one syed nisar haider zaidi a deputy
collector who had just retired and who prior to his
retirement had written two letters to the appellant dated
october 14 1945 and numberember 20 1945 expressing his desire
to purchase the land in question with a view to build a
residential house for himself so that he companyld live therein
after his retirement. in these letters he had offered rs. 18000/- but that offer was number accepted by the appellant as
he wanted rs. 24000/as the price of the land. on behalf of
the government also reliance was placed on three specimen
sales being exhibits al a2 and a3. the evidence disclosed
that the land acquired was at a distance of about 2 furlongs
from the town nehtaur which at that time had a population of
about 18000 souls. the land abuts on the main road from
moradabad to bijnumber and is next to the said school. nearby
is a fairly large size pond. the evidence of murari singh
one of the witnesses examined by the government was that
besides the appellants grove there were some other groves
nearby on the other side of the road that the town was a
growing town in the sense that electricity was available
there was a branch of the bharat bank and there were 5 or 6
mills and
a crusher working in the town since the last few years. the
mills referred to by the witness obviously must be some
small scale industries. the witness however stated that
only 2 or 4 new houses had been companystructed in the town
during the last about 10 years though one more school had
been opened in the town about 3 years ago. as against his
evidence there was some evidence that some houses were
constructed in the grove lands nearby. but there was no
evidence to show that there was any building activity nearby
of any substantial nature or that there was any definite
trend of development in the direction of the acquired land. as regards the income from the land there was the evidence
of pushkar nath that the fruit trees grown in the land
yielded approximately an annual income of rs. 500/-about 49
mango and naspati trees being fruit bearing at that time. it appears that the grove had been laid only about two or
three years ago. but the evidence of the village patwari
clearly disclosed that the grove would yield about rs. 1000/- a year when all the trees started bearing fruits. besides the income from the trees the land also yielded an
income of about rs. 200/- a year by way of sale of bind
pullas. the district judge discarded the evidence of specimen sales
produced by both the sides as being of numberassistance for the
reasons stated by him. it is number necessary to examine those
reasons as there is numberdispute that he was right in
rejecting them and the high companyrt also agreed with him that
that evidence was of numberhelp in arriving at the companyrect
valuation. the district judge however was impressed with
the evidence of witness zaidi and accepting the offer
conveyed by him as genuine and bona fide held on the basis
of that offer that the value of the land companyld be safely
assessed at rs. 18000/- and adding to that sum the sola-
tium at 15. he awarded rs. 22700/- as companypensation. he
also held that the appellant was entitled to interest under
s. 28 but allowed interest at 3 per annum observing that
since the acquisition was for an educational institution
interest at that rate was proper. against the said judgment and order the government filed an
appeal before the high companyrt at allahabad and the appellant
also filed his cross-objections. as already stated the high
court agreed with the district judge that the evidence of
specimen sales was of numberassistance. but regarding the
evidence of witness zaidi it companymented as follows -
it is number possible for us to say as to
whether the approach made by syed nisar haider
zaidi was a genuine one or number but even if we
take it to have been a genuine approach there
can be numberdoubt that the price that he was
going to offer was a price which he fixed
because of the peculiar circumstances in which
he was placed the circumstances having been
that he was upon retirement desirous of
going back to his native place and to take up
residence there and to build a house outside
the populated area. the price which such an
exceptional purchaser is going to offer will
number afford a true test about the value of the
property. having thus rejected the evidence of the specimen sales and
also the offer evidence of witness zaidi the high companyrt fell
back on the net annual income from the land which it
estimated at rs. 650/- and multiplying it by 20 fixed the
value of land at rs. 13000/-. adding to that figure the
solatium at 15  the high companyrt awarded in all rs. 150001/-. as regards interest the high companyrt rejected the
appellants companytention that he was entitled to interest at
the rate of 6 y. per annum on two grounds  1  that the
question as to the rate of interest was number specifically
raised in his cross-objections and  2  that s. 28 was
discretionary and therefore the district judge companyld fix
the rate of interest up to 6 per annum and that it was number
incumbent upon the companyrt to award interest at 6 per annum
as companytended by the appellant. the appellant has challenged
in this appeal the companyrectness of the judgment and the order
of the high companyrt both on the question of valuation and the
rate of interest. the first companytention raised on behalf of the appellant is
that the high companyrts judgment suffered from an infirmity in
that it failed to take into account the potential value of
the land as a building site in view of the evidence as to
the towns recent development. this companytention in our
view has numbersubstance. market value on the basis of which
compensation is payable under s. 23 of the act means the
price that a willing purchaser would pay to a wilting seller
for a property having due regard to its existing companydition
with all its existing advantages and its potential possi-
bilities when laid out in its most advantageous manner
excluding any advantage due to the carrying out of the
scheme for the purposes for which the property is
compulsorily acquired. as observed in south eastern rail
co. v. l.c.c 1 . the value to be ascertained is the price to
be paid for the land with all its
potentialities and with all the use made of
it by the vendor. dealing with the doctrine of potential value this companyrt in

b. jeejabhoy v. the district companylector thana 2  observed
as follows -
a vendor willing to sell his land at the
market value will take into companysideration a
particular poten-
 1  1915 2 ch. 252.

c.a. number. 313 to 315 of 1965 decided aug. 30 1965.
tiality or special adaptability of the land in
fixing the price. it is number the fancy or the
obsession of the vendor that enters the market
value but the objective factor namely
 whether
the said potentiality can be turned to account
within a reasonably near future the
question therefore turns upon the facts of
each case. in the companytext of building
potentiality many questions will have to be
asked and answered whether there is pressure
on the land for building activity whether the
acquired land is suitable for building
purposes whether the extension of the said
activity is towards the land acquired what is
the pace of the progress and how far the said
activity has extended and within what time
whether buildings have been put up on lands
purchased for building purposes what is the
distance between the built-in-land and the
land acquired and similar other questions will
have to be answered. it is the overall
picture drawn on the said relevant
circumstances that affords the solution. it is clear that there is numberevidence on record of any
building activity of a substantial nature being carried on
in the neighbourhood of the acquired land at about the time
when the numberification was issued in 1945. there is equally
numberevidence of any trend of development of the town in the
direction of the acquired land. the only evidence was as to
the existence of the school nearby of the land abutting on
the road and of some houses having been built on the
opposite side of the road in some of the grove lands. such
evidence however would number companystitute an ascertainable trend
of development of the town in the direction of the acquired
land or of any active building activity nearby. clearly
therefore numberquestion of the valuation having to be made on
the basis of the potentiality of the land as building site
can possibly arise. the companytention of mr. mishra in this
regard therefore must be rejected. but the next companytention urged by him is a substantial one
and requires companysideration. he argued that the high companyrt
fell into error in rejecting the evidence of witness zaidi
accepted as reliable by the district judge and in
substituting that finding by its own estimate of the annual
income derived from the land. the evidence of witness zaidi
being the evidence of an offer made by him cannumber of companyrse
be equated in importance with the evidence of proper
specimen sales of properties in the neighbourhood. obviously an offer does number companye within the category of
sales and purchases but numberetheless if a person who had made
an offer himself gives evidence such evidence is relevant in
that it is evidence that in his opinion the land was of a
certain value. but the evidence that the owner refused an offer so made
amounts to this only that in his opinion his land was worth
more than the figure of value named or that the offer was
for some other reason such that he was number willing to
accept.  cf. government of bombay v. merwanji muncherji 1 . it has also been held that an agreement to sell is a
relevant matter and can be used in relation to fixing the
value of the acquired land.  cf. governumber-general in
council v. ghiasuddin  2 . there can however be numberdoubt
that apart from zaidis offer being relevant it was number an
offer similar to an offer made by an irresponsible broker as
commented in government of bombay v. merwanji muncherji 1 . there is numberhing also to show that he or the appellant knew
that a numberification for acquisition was about to be issued
or that he companyluded with the appellant to fabricate evidence
of an offer to enable the appellant to get better
compensation. there is number even a faint suggestion in the
cross examination on behalf of the government that his offer
was number genuine or that it was irresponsible. what is more
significant is that numbersuggestion was made in his cross-
examination that the offer was excessive or that it was number
bonafide or that he had made it without properly companysidering
it or without regard to the situation and the suitability of
the land. there was therefore numberjustification in the
remark made by the high companyrt that it companyld number be said
whether his offer was genuine or number. the district judge
accepted it as genuine and if the high companyrt did number agree
with his assessment of his evidence it ought to have given
reasons for such disagreement. it is impossible thus to
treat the evidence of zaidi either as unacceptable or
irrelevant. the second criticism by the high companyrt of
zaidis evidence that his offer was made in exceptional
circumstances and therefore cannumber be regarded as one of a
willing prospective purchaser is also number companyrect. at the
time when zaidi made his offer he was about to retire. he
wanted to retire in his native place and desired to have
a house which would be situate outside the town. his offer
was for a grove-land with plenty of trees some of which were
already bearing fruits and the rest were likely to yield
fruit in the near future. the land abutted on the road was
next to the school and some houses had already been built on
the other side of the road. in these circumstances it is
difficult to appreciate why the high companyrt thought that the
offer was number of a willing prospective buyer. there were
other groves nearby and zaidi had therefore an opportunity
to select if he wanted to there being numberhing to show that
the owners of the other such lands were number willing to sell. probably he selected this land because it was situated next
to the school and abutted on the road. in view of these
facts it is difficult to see how the high companyrt came to the
conclusion that he made the said offer in special
circumstances agreeing to purchase the land under
 1  10 bom. l. r. 907.  2  3. p. l. r. 212.
compulsion or stress of circumstances. since his evidence
was number challenged either on the ground that his offer was
number bona fide or that he offered to buy under companypulsion or
under any special circumstances there was numbervalid reason
why the high companyrt should have refused to accept the
appreciation of his evidence by the district judge and
resort to a method of valuation number always adequate viz. the annual crop value. such a method of valuation is number
adequate at least for two reasons  1  that the owner may
number have so far put his property to its best use or in the
most lucrative manner and  2  in a case like the present the
grove had number yet started giving the maximum yield. such a
method of valuation by ascertaining the annual value of the
produce can and should be resorted to only when numberother
alternative method is available. we are of the view that
the district judge was right in accepting the evidence of
zaidi and in treating his offer as one of a willing
prospective purchaser. the valuation made by the district
judge rested on a better footing in the circumstances of the
case and ought to have been accepted by the high companyrt. on the question of interest mr. mishra companytended that under
section 28 neither the district judge number the high companyrt had
any discretion in allowing interest at a rate less than 6.
he argued that this question being purely one of
construction and number depending on any finding of fact even
though the question was number specifically raised in the
appellants cross-objections before the high companyrt the high
court ought to have allowed interest at 6. mr. karkhanis
on the other hand argued that what section 28 does is to
provide for a ceiling of the rate of interest. and even if
that is number so since the section companyfers discretion on the
court to grant or number to grant interest that discretion
impliedly means that even where the companyrt grants interest it
can do so at any rate up to 6. the companytention so put
forward resolves itself into two questions  1  whether in
the absence of a specific objection as to interest in the
appellants cross-objections the high companyrt ought to have
gone into that question and  2  whether on a proper
interpretation of section 28 the companyrt has a discretion to
grant interest at a rate less than 6 . the first point
would number create any difficulty in the way of the appellant
because the high companyrt did in fact go into the question of
interest even though it was number specifically taken in the
cross-objections and decided the question also on
interpretation of section 28. besides the question is
purely one of law and as lord watson said in companynecticut
fire insurance company v. kavanagh 1 . when a question of law is raised for the
first time in a companyrt of last resort upon the
construction of a do-
 1  1892 a. c. 473. .lm15
cument or upon facts either admitted or proved beyond
controversy it is number only companypetent but expedient in the
interests of justice to entertain the plea. section 28 reads as follows -
if the sum which in the opinion of the
court the companylector ought to have awarded as
compensation is in excess of the sum which the
collector did award as companypensation the award
of the companyrt may direct that the companylector
shall pay interest on such excess at the rate
of six per centum per annum etc. in its plain language the discretion that is companyferred on
the companyrt is whether in the given circumstances of a
particular case the companyrt should award interest or number. the words may direct mean that it is discretionary on the
part of the companyrt to grant or refuse to grant interest. but
the words following those words viz. the companylector shall
pay interest on such excess at the rate of six per centum
per annum would mean that once the discretion to grant
interest is exercised there is numberfurther discretion and the
interest if awarded has to be at the rate of six per centum
per annum. this also appears to be the companystruction of s.
28 so far understood. it is because the section leaves no
discretion as regards the rate of interest that the central
provinces act xvii of 1939 by section 2 provides that the
rate of interest shall be at a rate which shall be number less
than 3 y. per annum and number more than 6 per annum in place
of the words at the rate of six per centum per annum in
section 28. some of the other state legislatures such as
madras gujarat maharashtra and punjab have instead of
using the above mentioned phraseology substituted 6 in s.
28 by 4 per annum. the result of these amendments is
that whereas in the case of the central provinces  number
madhya pradesh  the companyrt has a discretion to grant interest
at anything between threeto six per cent in the case of
the other states the companyrt has to award interest at the rate
of 4 . we are told that numbersuch amendment has been carried
out in u.p. the companysequence is that section 28 as it stands
must apply and therefore where the companyrt exercises its
discretion and grants interest the interest has to be at the
rate of 6 . the companystruction which we are inclined to place
on section 28 is to a certain extent supported by the same
expression used in section 34 which also deals with interest
and which provides that when the amount of companypensation is
neither paid number deposited before taking possession of the
acquired land the companylector shall pay the amount awarded
with interest thereon at the rate of six per centum per
annum etc. it is a well-settled rule of companystruction that
where the legislature uses the same expression in the same
statute at two places or more the same interpretation should
be given to that expression unless the companytext requires
otherwise. that being so there is numberhing wrong in
permitting the appellant to raise the point
as to the rate of interest as that question depends only
upon the companystruction of section 28. in the view that we
have taken as to the interpretation of section 28 mr. mishra
must also succeed on this question. in the result the appeal must be allowed and the judgment
and order passed by the high companyrt set aside. the judgment
and order of the district judge by which he fixed the
compensation at rs. 20700/- including solatium at the rate
of 15 is restored.