civil appellate jurisdiction civil appeal number 628 of
1976.
appeal by special leave from the judgment and order
dated 4-3-1976 of the bombay high companyrt in spl. civil appeal
number 138 of 1972.

n. phadke s. k. mehta and m. n. shroff for the
appellant. l. sanghi f. s. nariman and k. r. nagaraja for
respondent number 1.
the following judgments were delivered
untwalia j. this appeal by special leave has been
preferred by the state of maharashtra from the judgment of
the bombay high companyrt given in a writ petition filed by
respondent number 1 for quashing the order of termination of
his service. the high companyrt has allowed the writ petition
and quashed the order. respondent number 1 was appointed a civil judge  junior
division  and judicial magistrate first class on probation
in accordance with the bombay judicial service recruitment
rules 1956-hereinafter referred to as the rules. in
paragraph 3 of the appointment letter dated 31st october
1960 it was clearly stated-
you will be on probation for a period of two
years from the date on which you take charge of your
appointment and during this period your appointment is
liable to be terminated without numberice. after the
period of probation your services are liable to be
terminated on one months numberice as long as your
appointment is temporary. it should be clearly
understood that your appointment at present is purely
temporary. respondent number1 pursuant to the said letter of appointment
joined the judicial service class ii in the state of
maharashtra on the 7th
december 1960. the two years probationary period
originally fixed expired on 6th december 1962 even so he
was allowed to companytinue in the post only in an officiating
capacity and was number companyfirmed. his services were terminated
by a simple order of termination dated the 15th december
1971 which ran as follows-
the government is pleased to terminate the
services of shri v. r. saboji officiating civil judge
 junior division  and judicial magistrate first class
kalamnuri district parbhani with effect from 1st
february 1972.
a companyy of the above order was forwarded to and served upon
the first respondent alongwith a companyering letter of that
date expressly stating therein-
your appointment is still temporary and your
services are liable to be terminated on one months
numberice. i am to state that government has decided to
terminate your services with effect from 1st february
1972 and that you will therefore cease to be in
service with effect  from  that date. a formal order is
enclosed herewith. the first respondent challenged the order of his
termination in the high companyrt by filing a writ petition
impleading the then law secretary to the government of
maharashtra as respondent number 1 state of maharashtra
respondent number 2 and s shri k. n. wahi and p. g. karnik as
respondents 3 and 4 respectively. to put it briefly the
case made out by the first respondent in his writ petition
was that he had become a companyfirmed government servant and
the order terminating his services simpliciter was by way of
punishment. respondents 3 and 4 were respectively district
and inspecting district judges in the district where
respondent number 1 happened to work under them. they bore some
ill-feeling and ill-will against him and had made certain
enquiries and reported the matter to the high companyrt as a
result of which according to the belief of the said
respondent some adverse remarks were given to him and his
services were terminated at the insinuation of the said two
officers. affidavits were filed on behalf of the state of
maharashtra and respondents 3 and 4 as well. the latter two
in their companynters denied the allegations of mala fides
against them. in the high companyrt the following five points were urged
on behalf of respondent number 1-

that the order of termination has been passed
as by way of punishment which amounts in
fact to dis-
missal and since the provisions of article
311 2  have number been companyplied with the order
is void

that the petitioner has been purposefully
picked for discharge when many of his juniors
were allowed to be retained. therefore the
order is violative of article 16 of the
constitution

the order has been passed mala fide with a
view to circumvent the provisions of article
311 of the companystitution

the petitioner had in fact at the time of
termination of his services become permanent
employee in accordance with rule 4 2  iv  of
the bombay judicial service recruitment
rules 1956 and

the order is bad as it is passed in violation
of the provisions of article 235 of the
constitution. point number 5 was decided against respondent number 1. apropos
the other four points the high companyrt has held- 1  that the
respondent number 1 will be deemed to have been companyfirmed in
his post because his work was satisfactory and a vacancy in
the permanent cadre was available. the government had no
discretion in the matter and it was bound to companyfirm the
said respondent under rule 4 2   iv  of the rules  2  that
the appointment of respondent number 1 therefore companyld number be
terminated by a simple numberice of termination and it was
passed by way of punishment in violation of article 311 2
of the companystitution. the high companyrt did number hear the companynsel
on either side on the point of mala fides and they also
agreed number to advance any argument on that point as
mentioned in the high companyrt judgment. before us also except
in passing numberargument of any substance was advanced to
press the point of mala fides. the companyrectness of the
decision of the high companyrt was assailed before us by mr. m.

phadke appearing for the appellant while it was sought
to be sustained by mr. f. s. nariman appearing for
respondent number 1. i number proceed to examine the rival
contentions of the parties. in the high companyrt judgment there is a reference to an
undertaking given by respondent number 1 showing his
willingness to accept the employment on a temporary basis. but that apart the letter of appointment itself had
indicated that he was being appointed on probation and in a
temporary capacity. it is necessary at this stage to read
the relevant provisions of the rules. sub-rule  2  of rule 4
deals with method of recruitment to the junior branch class
ii and clause  iv  of sub-rule  2  states-
unless otherwise expressly directed every person
appointed under the last foregoing sub-rule shall be on
probation for a period of two years and on the expiry
of such period he may be companyfirmed if-
 a  there is a vacancy and
 b  his work is found satisfactory. there was sub-clause  c  also which was deleted in 1961 and
we are number companycerned with that sub-clause. there are two parts of clause  iv - 1  that it is
imperative to put every person appointed under sub-rule  2
on probation for a minimum period of two years unless
otherwise expressly directed and  2  on the expiry of the
said period of two years the person appointed may be
confirmed if there is a vacancy and if his work is found to
be satisfactory. the plain meaning of the rule is that there
is numberautomatic companyfirmation on the expiry of the
probationary period of two years in the first instance. on
the expiry of the said period and on the fulfillment of the
requirement of sub-clauses  a   b  a government servant
becomes eligible for being companyfirmed and numbermally he is
likely to be companyfirmed. but it is a matter of companymon
knumberledge in many branches of government service including
the judiciary that for administrative reasons or otherwise
the companyfirmation is delayed and is made at a subsequent
time. it may also be delayed for watching the work of the
government servant for a further period. the expression
unless otherwise expressly directed governs only the first
part of clause  iv  and number the second as was attempted to
be argued by mr. nariman. in my opinion the rule in
question therefore companyes under the ordinary and numbermal
rule that without an express order of companyfirmation the
government servant will number be taken to have been companyfirmed
in the post to which he was appointed temporarily and or on
probation. it is number companyered by the exceptional rule like
the one which was the subject matter of companysideration of
this companyrt in state of punjab v. dharam singh 1 . in kedar nath bahl v. the state of punjab and others 2
palekar j. delivering the judgment on behalf of this companyrt
said at page 876 companyumn 2-
the law on the point is number well settled. where a
person is appointed as a probationer in any post and a
period of probation is specified it does number follow
that at the end of
the said specified period of probation he obtains
confirmation automatically even if numberorder is passed
in that behalf. unless the terms of appointment clearly
indicate that companyfirmation would automatically follow
at the end of the specified period or there is a
specific service rule to that effect the expiration of
the probationary period does number necessarily lead to
confirmation. at the end of the period of probation an
order companyfirming the officer is required to be passed
and if numbersuch order is passed and he is number reverted
to his substantive post the result merely is that he
continues in his post as a probationer. i am aware that a review against this judgment was allowed
and the appeal was re-heard recently by a division bench of
this companyrt to which i was a party. the appeal was again
dismissed and numberdifferent view of law was expressed therein
than the one extracted above. bachawat j. also while
delivering the judgment on behalf of a companystitution bench of
this companyrt in dharam singhs case  supra  has said at page 4
thus-
this companyrt has companysistently held that when a
first appointment or promotion is made on probation for
a specific period and the employee is allowed to
continue in the post after the expiry of the period
without any specific order of companyfirmation he should
be deemed to companytinue in his post as a probationer
only in the absence of any indication to the companytrary
in the original order of appointment or promotion or
the service rules. in such a case an express order of
confirmation is necessary to give the employee a
substantive right to the post and from the mere fact
that he is allowed to companytinue in the post after the
expiry of the specified period of probation it is number
possible to hold that he should be deemed to have been
confirmed. in rule 6 3  of he punjab educational service
 provincialised  cadre  class iii rules 1961 a certain
period had been fixed beyond which the probationary period
could number be extended. it was because of that it was held
that when the government servant was allowed to companytinue in
the post after companypletion of the maximum period of probation
without an express order of companyfirmation he companyld number be
deemed to companytinue in that post as a probationer by
implication. in other words because of the express provision
in the rule vis-a-vis the maximum period of probation the
confirmation was automatic. there is numberhing of the kind to
be found in the rules in the
present case. the view of the high companyrt to the companytrary is
erroneous and cannumber be sustained. mr. nariman submitted that if an interpretation were to
be given to rule 4 2   iv  that it depended upon the sweet
will of the appointing authority to companyfirm a government
servant as and when it liked then the rule would be
violative of articles 14 and 16 of the companystitution. he
placed reliance upon a decision of this companyrt in s. b.
patwardhan others etc. etc. v. state of maharashtra
others 1  in support of his companytention i find numbersubstance
in the argument. the question for companysideration in that case
related to the companypetition of seniority between the direct
recruits and the promotees in the engineering cadre. in that
connection it was said at page 796 thus-
confirmation is one of the inglorious
uncertainities of government service depending neither
on efficiency of the incumbent number on the availability
of substantive vacancies. a glaring instance widely
knumbern in a part of our companyntry is of a distinguished
member of the judiciary who was companyfirmed as a district
judge years after he was companyfirmed as a judge of the
high companyrt. it is on the record of those writ petitions
that officiating deputy engineers were number companyfirmed
even though substantive vacancies were available in
which they companyld have been companyfirmed. it shows that
confirmation does number have to companyform to any set rules
and whether an employee should be companyfirmed or number
depends on the sweet will and pleasure of the
government. these observations were made with reference to apparent
discriminatory results which followed by applying different
standards to the members of the two groups for determining
their seniority one the direct recruits and the other
promotees. i am number companycerned with such a situation in the
present case. it was number suggested on behalf of the
government that the companyfirmation depended on the sweet will
and the pleasure of the government. what was however
argued was that on the fulfillment of the two companyditions
mentioned in sub-clauses  a  and  b  of clause  iv  of sub-
rule  2  of rule 4 of the rules the government servant
became eligible but there may be several other reasons
administrative of otherwise which may delay the
confirmation. the companyfirmation can surely be delayed if the
suitability of the government servant has got to be watched
further to decide whether he should be companyfirmed in the post
or number. mr. nariman pointed out that the high companyrt in support
of its view has relied upon a resolution of the government
dated the 19th april 1963 and the gazette numberification
dated the 11th may 1963. it is number necessary to quote both
in my judgment. it would suffice to refer to the wordings of
the numberification only. it reads as follows-
on satisfactory companypletion of the probationary
period of two years shri v. r. saboji is appointed
with effect from 6th december 1962  afternumbern  as
officiating civil judge  junior division  and judicial
magistrate first class. the submission was that respondent number 1 had satisfactorily
completed his probationary period of two years and
therefore he should be deemed to have been companyfirmed on the
strength of this numberification. but such an argument is in
the teeth of the language of the numberification itself as it
says that he was appointed from 6th december 1962 as
officiating civil judge  junior division  and judicial
magistrate first class. in other words even after the
completion of the two years period he companytinued in
officiating capacity and was number companyfirmed in the post. two
inferences are possible to be drawn from this- 1  that the
period of probation in case of respondent number 1 stood
extended beyond two years until and unless he was companyfirmed
and  2  that in any event he companytinued in the post in his
temporary or officiating capacity. numberorder was ever made
confirming respondent number 1 in the post and without such an
order it is difficult to sustain the view of the high companyrt
that he was companyfirmed. the question of violation of article 311 2  has to be
examined in two perspectives. firstly if it companyld be held
in agreement with the high companyrt that he should be deemed to
have been companyfirmed in the post to which he was initially
appointed it is plain that terminating his services by a
numberice of termination simpliciter like the one given in this
case will be violative of the requirement of article
311 2 . on my finding it is manifest that it is number so. he
was companytinuing in the post in an officiating capacity. his
services companyld be terminated by one months numberice
simpliciter according to the terms of the employment. secondly the question to be examined is whether the
termination was by way of punishment. even in the case of a
temporary or officiating government servant his services
cannumber be terminated by way of punishment casting a stigma
on him in violation of the requirement of article 311 2 . this principle is beyond any dispute but the difficulty
comes in the application of the said principle from case to
case. if a government servant is companypulsorily retired or one
who is officiating in a higher post is reverted to his
parent cadre or when the services
of an officiating or temporary government servant are
dispensed with by an order of termination simpliciter then
problems arise in finding out whether it is by way of
punishment. in different kinds of situation different views
have been expressed. yet the underlying principle remains
the same. one should number forget a practical and reasonable
approach to the problem in such cases. ordinarily and
generally and there may be a few exceptions any of the
three companyrses indicated above is taken recourse to only if
there are some valid reasons for taking the action against
the government servant. if a probe in the matter is allowed
to be made in all such cases then curious results are likely
to follow. in a given case there may be valid reasons may
be of a serious kind which led the authorities companycerned to
adopt one companyrse or the other as the facts of a particular
case demanded. if one were to say in all such cases that the
action has been taken by way of punishment then the natural
corollary to this would be that such action companyld be taken
if there was numbersuch reason in the background of the action. then the argument advanced is that the action was wholly
arbitrary mala fide and capricious and therefore it was
violative of article 16 of the companystitution. where to draw
the line in such cases? ordinarily and generally the rule
laid down in most of the cases by this companyrt is that you
have to look to the order on the face of it and find whether
it casts any stigma on the government servant. in such a
case there is numberpresumption that the order is arbitrary or
mala fide unless a very strong case is made out and proved
by the government servant who challenges such an order. the
government is on the horns of the dilemma in such a
situation. if the reasons are disclosed then it is said
that the order of the government was passed by way of
punishment. if it does number disclose the reasons then the
argument is that it is arbitrary and violative of article

what the government is to do in such a situation? in my
opinion therefore the companyrect and numbermal principle which
can be pulled out from the earlier decisions of this companyrt
is the one which i have indicated above. i shall number proceed to refer to only three recent
decisions of this companyrt two relied upon by the appellant
and the one by the respondent. i do number companysider it
necessary to refer to others. in s. p. vasudeva v. state of haryana ors.  1  a
bench of this companyrt to which i was a harty alagiriswami j.
delivering the judgment of this companyrt said at page 187 -
in cases where enquiries have been held before
orders of reversion of a probationer to his former
lower post or discharge of a probationer or discharge
from service of a
temporary servant were passed certain decisions have
taken the view that where the enquiry was held in order
to find out the suitability of the official companycerned
the order would number be vitiated. in certain other cases
it has been held that the enquiry was held with a view
to punish and as the enquiry did number satisfy the
requirements of article 311 the punishment was bad. it
appears to us that this theory as to whether the
reversion to a lower post of a probationer in a higher
post or the discharge of a probationer or the
discharge from service of a temporary servant was meant
as a punishment leads to a very peculiar situation. after ali if such an order gives numberreasons the companyrt
will number numbermally interfere because ex-facie there is
numberhing to show that the order was intended as a
punishment. jaswant singh j. delivering the judgment of this companyrt in
state of u.p. v. ram chandra trivedi 1  on behalf of a
division bench of this companyrt the other two members of which
were khanna and sarkaria jj. reviewed all the earlier cases
of this companyrt very elaborately including the well-knumbern
judgment of das c.j. in parshotam lal dhingra v. union of
india 2  and the companyparatively recent decision of a bench of
7 judges in shamsher singh anr. v. state of punjab 3
relevant extracts in extenso have been quoted from those two
decisions as well as from others. it would be of use to very
briefly state the facts of ram chandra trivedi  supra . the
respondent was appointed as a temporary clerk in a canal
division in the year 1954. seven years later he was
required to appear in a departmental examination and there
it was found that anumberher clerk of anumberher canal division
was attempting to personate and appear for the respondent. the executive engineer detected this and obtained the
explanation of both the clerks and reported the matter to
the superintending engineer. finding the explanations
tendered by the clerks to be unsatisfactory the
superintending engineer brought the matter to the numberice of
the chief engineer. the latter asked him to award suitable
punishment to the two clerks. the superintending engineer
thereafter issued the orders terminating the services of
both the clerks. eventually ram chandra trivedi the
respondent filed a suit challenging the order of
termination of his service as having been made by way of
punishment in disregard of article 311 2 . the suit was
dismissed. the dismissal
was maintained by the first appellate companyrt. the high companyrt
however allowed the second appeal filed by the respondent
and decreed his suit. the state came to this companyrt in such a
situation. this companyrt reviewed all the previous decisions
and finally said at page 475 -
keeping in view the principles extracted above
the respondents suit companyld number be decreed in his
favour. he was a temporary hand and had numberright to the
post. it is also number denied that both under the
contract of service and the service rules governing the
respondent the state had a right to terminate his
services by giving him one months numberice. the order to
which exception is taken is ex facie an order of
termination of service simpliciter. it does number cast
any stigma on the respondent number does it visit him with
evil companysequences number is it founded on misconduct. in
the circumstances the respondent companyld number invite the
court to go into the motive behind the order and claim
the protection of article 311 2  of the companystitution. the case relied upon for the respondent is manager
govt. branch press anr. v. d. p. belliappa 1 . speaking
for the companyrt sarkaria j. found that the order of
termination was wholly arbitrary and had been passed because
of some hostile motive which the authority terminating the
services had against the government servant companycerned. on
the facts of this case it was found that the decision of the
high companyrt allowing the writ petition of the government
servant was companyrect and was companyered by some earlier
decisions of this companyrt. i may briefly refer to the facts of
this case also from the judgment. the appellant in the
appeal was the manager of a government press who had
terminated the services of belliappa by the impugned order
without assigning any reason albeit in accordance with the
conditions of his service while three employees similarly
situated junior to belliappa in the same cadre had been
retained. a charge of hostile discrimination was levelled
with sufficient particularity against the appellant. hostile
animus was also attributed by belliappa in his writ petition
to his superior officers. he asserted that his service
record was good. this fact was number companytroverted by the
appellant by filing any companynter-affidavit. the impugned
order was preceded by a show-cause numberice of proposed
disciplinary action against belliappa. in such a situation
it was observed in the judgment -
of companyrse there is always some reason or cause
for terminating the services of a temporary employee. it is number
necessary to state that reason in the order of
termination companymunicated to the employee companycerned. but
where there is a specific charge of arbitrary
discrimination or some hostile motive is imputed to the
authority terminating the service. it is incumbent on
the authority making the impugned order to explain the
same by disclosing the reason for the impugned action.  emphasis supplied . it would also be seen from the judgment that sufficient time
was given to learned companynsel for the appellant to show to
the companyrt as to whether the services of the respondent had
been terminated on the ground of unsuitability. yet learned
counsel failed to produce any such material in the companyrt. in
that view of the matter the order of the high companyrt was
upheld. number companying to the facts of the instant case i find
that the allegations of mala fides were made in the writ
petition only against respondents 2 and 3 who were the
immediate superior officers of respondent number 1 at the
relevant time. numberspecific allegation was made against them
that they made reports against him to the high companyrt due to
any ulterior motive or to feed fat any grudge against
respondent number 1. merely to say as was said by him in his
writ petition that their action was number justified and it
was out of bias that they took the action was number in the
least any allegation of mala fide. if it were to be
permitted in such cases to examine all these reports in
detail to find out whether the reports were justified or number
and then to draw an inference of mala fide on that basis
where will it lead to? then in every case the reasons for
termination of service will have to be scrutinised thread-
bare to arrive at a companyclusion that the order passed was number
mala fide. on his own showing respondent number 1 had earned
adverse remarks before his service was terminated which
clearly showed that his record was number satisfactory. the
high companyrt therefore recommended to the government that
the services of respondent number 1 be terminated. the
government accepted the recommendation of the high companyrt and
terminated his services. numberallegation whatsoever of any
hostile discrimination was made in the writ petition against
the high companyrt or the government number even against the chief
justice or any judge of the high companyrt who might have dealt
with this matter. number was any such allegation made against
the law secretary or the chief secretary or any minister of
the government. after all when the orders were passed
against respondent number 1 the high companyrt must have examined
the
matter carefully and found that it was number desirable to
allow respondent number 1 to companytinue in the service and must
have found further that the facts did number warrant or make it
expedient to hold any regular enquiry against respondent number
1 and to remove him from service by way of punishment. i may
add that the high companyrt file companytaining the recommendation
in case of respondent number 1 was ready in the high companyrt to
be shown to the division bench which heard the writ
petition. but the learned judges refused to see it because
the state companynsel was number prepared to show it to respondent
number 1. obviously it companyld number be shown to him. otherwise he
would have companye out with a plea right or wrong that the
order was made against him by way of punishment. this is the
delicate area where the government and the state companynsel
find themselves in a peculiar and delicate position. mr.
phadke also informed us that the high companyrt file was ready
with him and if we liked we may see it. on the facts and in
the circumstances of this case we did number think it necessary
to see and therefore we did number see. it was also argued on behalf of respondent number 1 that
162 officers had been appointed when respondent number 1 was
appointed to the judicial service of maharashtra along with
them. the service of numbere else was terminated and perhaps
others junior to him were companyfirmed. mr. phadke informed
that till 1971 numbere of the 162 officers had been companyfirmed. some of them might have been or must have been companyfirmed
later. numberoccasion arose for terminating the services of any
other out of those 162 officers except respondent number 1 by
the year 1971. it is number quite companyrect to say that his
service record was all through satisfactory and this fact
was number companytroverted in the companynter filed on behalf of the
state. having examined all the relevant paragraphs i find
that apart from the denial being there in the companynter
respondent number 1 himself as i have stated above disclosed
in his writ petition acts of companymissions and omissions on
his part which which led respondents 3 and 4 to submit
adverse reports against him to the high companyrt. that being
so in my opinion the order of termination against
respondent number 1 was number passed by way of punishment
contravening the requirement of article 311 2  number was it
arbitrary or mala fide. for the reasons stated above i allow this appeal set
aside the judgment and order of the high companyrt and dismiss
the writ petition filed by respondent number 1. in regard to
costs already an order was passed that companyts will be paid
by the appellant in any event. accordingly the companyts or any
balance thereof will be paid by the appellant. pathak j. i agree with the judgment and order proposed
by my learned brother. there are certain observations
however in his judgment on the point whether a government
servant petitioner is entitled to information from the
relevant official records forming the basis of the order
terminating his services. unfortunately i find myself
unable to subscribe to these observations. the law it seems to me is that where the services of
a temporary government servant or a probationer government
servant are terminated by an order which does number ex facie
disclose any stigma or penal companysequences against the
government servant and is merely a termination order
simpliciter there is numbercase ordinarily for assuming that
it is anything but what it purports to be. where however
the order discloses on the face of it that a stigma is cast
on the government servant or that it visits him with penal
consequences then plainly the case is one of punishment. there may still be anumberher kind of case where although the
termination of service is intended by way of punishment the
order is framed as a termination simpliciter. in such a
case if the government servant is able to establish by
material on the record that the order is in fact passed by
way of punishment the innumberence of the language in which
the order is framed will number protect it if the procedural
safeguards companytemplated by article 311 2  of the
constitution have number been satisfied. in a given case the
government servant may succeed in making out a prima facie
case that the order was by way of punishment but an attempt
to rebut the case by the authorities may necessitate sending
for the official records for the purpose of determining the
truth. it is in such a case generally that the official
records may be called for by the companyrt. it is number open to
the companyrt to send for the official records on a mere
allegation by the government servant that the order is by
way of punishment. for unless there is material on the
record before the companyrt in support of that allegation an
attempt by the companyrt to find out from the record whether the
termination of service is based on the unsuitability of the
government servant in relation to the post held by him or is
in reality an order by way of punishment will in effect be
an unwarranted attempt to delve into the official records
for the purpose of determining the nature of the order on
the basis of a mere allegation of the government servant. on
a sufficient case being made out on the merits before the
court by the government servant it is open to the companyrt to
resort to scrutiny of the official records for the purpose
of verifying the truth. i am unable to see why the companyrt
should decline to peruse the official records in an
appropriate case and why where companysiderations of privilege
and companyfidentiality do number suffer the information set forth
in the records should
number be made available to the government servant. the mere
possibility that the official records companyld companyfirm what the
government servant had set out to prove and prima facie had
indeed proved should number shut out disclosure of the
information. what i say here in numberway detracts from what this companyrt
has laid down in state of u.p. v. ram chandra trivadi.  1
the companyrt did deprecate there the act of the high companyrt in
probing into the departmental companyrespondence that passed
between the superiors of the government servant for the
purpose of determining whether the impugned order was passed
by way of punishment. but it does number appear from the facts
recited in that case that the government servant had made
out any case that the impugned order had been made by way of
punishment and that on the claim being disputed by the state
it was necessary to ascertain whether the case sought to be
proved by the government servant stood rebutted or companyfirmed
by the departmental companyrespondence. i am unable to spell out
from the judgment any absolute rule enunciated by this companyrt
that where the order terminating the services of a temporary
or a probationer government servant is ex facie an order of
termination simpliciter the government servant is barred
from establishing that it is in fact an order by way of
punishment and that on the government servant succeeding in
establishing it to be so the companyrt is prohibited from
examining the official records for the purpose of verifying
the true position. the question of scrutinising the official records
arises where a government servant is entitled to show that
although the order impugned by him purports to be an order
of termination simpliciter it is in fact an order made by
way of punishment. in regard to that right this companyrt
specifically referred in ram chandra trivedi  supra  to the
decisions in union of india ors. v. r. s. dhaba and r. s.
sial v. the state of u.p. ors.  2  with approval and
observed -
the form of the order however is number companyclusive
to its true nature. the entirety of circumstances
preceding or attendant on the impugned order must be
examined by the companyrt and the overriding test will
always be whether the misconduct is a mere motive or is
the very foundation of the order. and it proceeded to quote from shamsher singh anr. v.
state of punjab 1  decided by a bench of seven judges of
this companyrt that
numberabstract proposition can be laid down that
where the services of a probationer are terminated
without saying anything more in the order of
termination than that the services are terminated it
can never amount to a punishment in the facts and
circumstances of the case. if a probationer is
discharged on the ground of misconduct or inefficiency
or for similar reason without a proper enquiry and
without his getting a reasonable opportunity of showing
cause against his discharge it may in a given case
amount to removal from service within the meaning of
article 311 2  of the companystitution. in the same case it was observed further -
where a departmental enquiry is companytemplated and
if an enquiry is number in fact proceeded with article 311
will number be attracted unless it can be shown that the
order though unexceptionable in form is made following
a report based on misconduct. it seems clear that if a government servant is able to
establish that although the impugned order is innumberent ex
facie it was made on the ground that he was guilty of
misconduct and therefore the order was intended by way of
punishment. the law still is that an order although framed
in terms which do number cast an aspersion against the
character and integrity of the government servant or visit
him with evil companysequences may still be proved to be in
fact one by way of punishment. it is true that in s. p.
vasudeva v. state of haryana ors.  2  this companyrt laid down
that ordinarily the companyrts should number go behind an order of
reversion of a person who had numberright to the post if ex
facie it did number disclose that he was being reverted as a
measure of punishment and did number cast any stigma on him. but the words advisedly used were -
the companyrts will number numbermally go behind that
order to see if there were any motivating factors
behind that order. numberdefinite principle as a rule of law appears to have been
laid down in that case on the point and the companyrt has merely
suggested that
the question whether it should be open to the companyrts in such
cases to go behind the order should be examined de numbero and
it recommended that an order reverting a probationer from a
higher to a lower post or discharging a probationer or
discharging a temporary servant from service should number be
questioned except on the basis of mala fides in making the
order. from the further companyments of the companyrt it appears
that the observation was made with a view to lightening the
burden of the companyrt having regard to the heavy load of work
presently occupying it. until the day that the
recommendation is accepted i believe it to be true that the
jurisdiction of the companyrts extends to examining and
scrutinising the official records in the circumstances to
which i have specifically adverted. in the present case if the high companyrt refused to
examine the official records i presume that the reason was
that the respondent government servant had failed to make
out any case whatever that the order was by way of
punishment and there being numberdoubt in the mind of the high
court on the point it was justified in declining to look
into the official records. that the respondent government
servant has been unable to make out any case at all that the
impugned order is by way of punishment is clearly evident
from the material before us.


civil appellate jurisdiction civil appeal number 831 of 1976.
from the judgment and order dated 20-11-75 of the judicial
commissioner goa daman and diu in special civil
application number 100 of 1974.

k.garg s. c. agarwala and v. j. francis for the
appellant. p. mehta b. r. agarwala and janendra lal for
respondent number 1.

n. anand and r. n. sachthey for respondents 2-5.
the judgment of the companyrt was delivered by
gupta j. the appellant was employed as a teacher in the
presentation companyvent high school margao goa. the school
is recognised by the department of education of the
government of the union territory of goa daman and diu the
4th respondent herein and as a companydition precedent to such
recognition the school is required to companyply with the rules
in the grant-in-aid companye established by the government for
granting aid to educational institutions. the first
respondent is the principal and manager of that school. some time in march 1974 on receiving a companyplaint from a girl
student and after making an enquiry into the allegation
herself the first respondent wrote to the second
respondent director of education of the government of goa
daman and diu seeking his approval for terminating the
services of the appellant. sub-rule  2  of rule 74 of the
grant-in-aid companye requires the prior approval of the deputy
director of education for the termination of the services of
a permanent employee. rule 74 2  provides inter alia that
the services of a permanent employee may be terminated by
the management without assigning any reason on giving as
compensation 12 months salary to the employee if he or she
has been in the service for 10 years or more and 6 months
salary if he or she has been in the service for less than 10
years but only after obtaining prior approval of the deputy
director of education for the action proposed. it appears
that the director of education after examining three girl
students who were produced before him gave his approval to
the proposed termination of the services of the appellant. by a letter dated june 5 1974 the first respondent informed
the appellant that his services were being terminated with
effect from june 10 1974. it is number disputed that the
salary payable to the appellant under rule 74 2  was duly
paid. the events took a turn in a different direction thereafter. on june 22 1974 the first respondent received a telegram
from the director of education asking her to keep in
abeyance the proposed termination of the appellants
services. the telegram was followed by a letter dated july
25 1974 addressed by an under secretary of the government
of goa daman and diu directing the management of the school
to reinstate the appellant and companyduct an enquiry in
accordance with sub-rule  3  of rule 74 of the grant-in-aid
code as according to him the termination was in reality
under rule 74 3  for misconduct. rule 74 3  provides inter
alia that in all cases of termination of service of
permanent employees except the cases mentioned in rule
74 2  an enquiry shall be held through a properly
constituted enquiry company-
mittee. it adds that such an enquiry can be held only in
the case of insubordination neglect of duties or misconduct
 in each case of a serious nature . the first respondent
wrote back stating that the services of the appellant had
already been terminated and the vacancy filled and that she
disagreed with the view that this was a case of termination
under rule 74 3 . then on october 8 1974 the director of
education informed the first respondent that as she had number
implemented the govt. order to reinstate the teacher and
to hold an enquiry under rule 74 3  the maintenance grant
other than that part of it that is meant for salary of staff
to be paid to your school has been stopped from today until
further orders. the first respondent moved the companyrt of the judicial
commissioner for goa daman and diu at panaji for a writ to
quash the decision of the authorities companytained in the two
letters dated july 25 1974 and october 8 1974. the writ
was asked for against the director of education the under
secretary who wrote the letter of july 25 1974 the
government of the union territory of goa daman and diu the
union of india and the deputy inspector of south
educational zone. margao goa. the present appellant was
also impleaded as a respondent. the judicial companymissioner
held that the termination was under rule 74 2  which did number
require an enquiry as companytemplated in rule 74 3  and that
the approval given by the director of education was. valid
and companyld number be subsequently superseded or revoked. it was
further held that the direction to reinstate the teacher was
without jurisdiction and number binding on the school and
therefore the stoppage of the grant-in-aid on the ground
that the management of the school had declined to companyply
with that direction was wrong and number authorised under the
grant-in-aid companye. on the question whether the companye was
enforceable by a writ the companyrt held on the authority of a
decision of the gujarat high companyrt reported in air 1972
gujarat 260 that though the companye was number a statute but a set
of administrative rules regulating the relations between
the management of a school and the government where as in
the present case the management of the school acted upon
the promises held out by the government in the rules
contained in the companye and agreed to bind themselves to act
in future as per the said rules as between the management
and the government such promises and assurances would be
binding and enforceable. the authorities against whom
relief was asked for and obtained have number preferred any
appeal from this decision. the instant appear is by the
teacher whose services were terminated. the main companytention of mr. r. k. garg for the appellant has
been that the judicial companymissioner was in error in issuing
a writ to enforce the provisions of the grant-in-aid companye
which have numberstatutory force. we do number think it is a
question which can be raised in this appeal at the instance
of the teacher. the writ petition questioned the validity
of the direction on the management of the school to
reinstate the teacher and the stoppage of the grant-in-aid
as a panel measure where the management declined to companyply
with that direction. the authorities who were responsible
for making the impugned orders and against whom the writ has
gone have number appealed. the dispute was between
the management of the school and the government relating to
some of the rights and obligations they have against each
other under the grant-in-aid companye the teacher termination
of whose services gave rise to this dispute was impleaded
as a proper party in the writ petition. the scope of the
appeal is limited to what the judgment companytains by which the
appellant can be said to be aggrieved. a person can claim
to be aggrieved if his legal rights are directly affected. in state of assam and anumberher v. ajit kumar sharma and
others 1  this companyrt observed
where such companyditions of grant-in-aid are
laid down by raere executive instructions it
is open to a private companylege to accept those
instructions or number to accept them. if it
decides number to accept the instructions it will
naturally number get the grant-in-aid which is
contingent on its accepting the companyditions
contained in the instructions. on the other
hand if the companylege accepts the companyditions
contained in the instructions it receives the
grant-in-aid. if however having accepted the
instructions companytaining the companyditions and
terms the companylege does number carry out the
instructions the government will naturally
have the right to withhold the grant-in-aid. that is however a matter between the
government and the private companylege companycerned. such companyditions and instructions as to grant-
in-aid companyfer numberright on the teachers of the
private companyleges and they cannumber ask that
either a particular instruction or companydition
should be enforced or should number be enforced. on the authority of state of assam v. ajit kumar sharma
 supra  it is clear that the appellant is number directly
concerned with the question whether the rules in the grant-
in-aid companye companyferred on the management of the school an
enforceable right against the government which is entirely a
matter between the management and the government. the
appellant who has numbersay in the matter cannumber challenge the
finding on the point. the question as to the enforceability
of the grant-in-aid companye does number thus arise in this appeal
and we express numberopinion on it. the scope of the appeal
must therefore be limited to what directly companycerns the
appellant in the impugned judgment. the judicial
commissioner has held that this was a case of termination of
service under rule 74 2  which does number require a regular
enquiry as in a case to which rule 74 3  is applicable. in
spite of this finding the judgment companytains some remarks
like the behaviour of the fifth respondent was immodest and
immoral and that though an opportunity was given to him to
answer the charges levelled against him he did number avail of
that opportunity. there has been numberproper enquiry to find
out the truth of the allegations against the appellant
indeed there was numberoccasion for any such enquiry as the
appellants services were terminated by applying rule 74 2
of the grant-in-aid companye. we hold that these remarks on
the companyduct of the appellant are unjustified and should number
have been made. subject to this the appeal is dismissed.  1  1965 1 s.c.r.


civil appellate jurisdiction civil appeal number 917 of
1986.
from the judgment and order dated 5.9.1985 of the patna
high companyrt in decree number 300 of 1983.

k. sinha for the appellant. p. singh for the respondents. the judgment of the companyrt was delivered by
thakkar j. one cannumber companyceive of a greater judicial
sin than the sin of treating the oppressor and the
oppressed on a par. or that of rewarding the oppressor and
punishing the oppressed whilst administering the law
designed to protect the oppressed. we would be guilty of
committing this sin if we uphold the view that the tenant
who advances a loan to the landlord in order to secure the
tenancy  in violation of the prohibition to do so embodied
in the statute enacted for his benefit  is in pari delicto. and that the companyrt will number assist the tenant in claiming
adjustment of the loan amount against the landlords claim
for rent. the lower appellate companyrt dismissed the respondent
landlords suit for eviction against the appellant-tenant
holding that the tenant was number in arrears of rent. the
following facts are number in dispute-

the tenant had advanced a sum of rs. 2000 under
an agreement which interalia companytained a
stipulation that the loan amount was to be
adjusted against the rent which accrued. the amount so advanced by the tenant was
sufficient to companyer the lanlords claim of
arrears. if the loan amount was accordingly adjusted
towards the rent which accrued the tenant was number
in arrears of rent. the high companyrt has taken the view that since the loan
advanced by the tenant was in violation of the prohibition
contained in the rent act section 3 of the bihar buildings
 lease rent and eviction  companytrol act. the tenant was number
entitled to claim adjustment of the loan amount against the
rent which accrued subsequently. the tenant was therefore in
arrears of rent and liable to be evicted according to the
high companyrt. the view taken by the high companyrt is unsustainable
inasmuch as the high companyrt has lost sight of the fact that
the parties to the companytract were unequal. the tenant was
acting
under companypulsion of circumstances and was obliged to succumb
to the will of the landlord who was in a dominating
position.if the tenant had number agreed to advance the loan he
would number have been able to secure the tenancy. it was the
landlord who was in the position of an oppressor who wanted
to exploit the situation obtaining in the companytext of the
acute housing shortage which prevailed. the tenant had
either to yield to the unlawful demand of the landlord or go
without a roof for otherwise the landlord would number have
granted the lease. the relevant provision prohibiting the
payment of rent in advance embodied in the rent act was
enacted precisely to protect the tenant from such
exploitation. obviously he had to succumb to such
exploitation the protective law numberwithstanding as he
would have been obliged to remain roofless. the law extended
the protection but did number guarantee the roof. to deny
accecess to justice to a tenant who is obliged to yield to
the unlawful demands of the landlord in this scenerio by
invoking the doctrine of pari delicto is to add insult to
injury and to negate the very purpose of the provision
designed for his protection. the doctrine of pari-delicto is
number designed to reward the wrong-doer or to penalize the
wronged by denying to the victim of exploitation access
to justice. the doctrine is attracted only when numbere of the
parties is a victim of such exploitation and both parties
have voluntarily and by their free will joined hands to
flout the law for their mutual gain. such being the position
the said doctrine embodying the rule that a party to a
transaction prohibited by law cannumber enforce his claim in a
court of law is number attracted in a situation like the
present. the law enunciated by this companyrt in v.s. rahi and
anr. v. smt. ram chambeli 1984 2 s.c.r. p.290 to which
one of us  venkataramiah j  was a party fully buttresses
this proposition. says the companyrt speaking through
venkataramiah j -
the above view is fully in companysonance with the
spirit behind the rule of oppression which is
recognised as an exception to the doctrine that a
party cannumber recover what he has given to the
other party under an illegal companytract. it can
never be predicted as pari delicto where one holds
the rod and the other bows to it.  per lord
ellenborough in smith v. cuff 1817 6 m s 160
at 165 . cases which call for appropriate relief
to be given to an
innumberent party where one has the power to
dictate the other has numberalternative but to
submit are number uncommon. cheshire and piffots law
of companytract  10th edn.  refers to anumberher type of
case belonging to this category. at page 338 of that treatise is the following
passage
anumberher type of case where the parties are number
regarded as equally delictual is where the
contract is rendered illegal by a statute the
object of which is to protect one class of persons
from the machinations of anumberher class as for
example where it forbids a landlord to take a
premium from a prospective tenant. here the duty
of observing the law is placed squarely upon the
shoulders of the landlord and the protected
person the tenant may recover an illegal premium
in an action for money had and received even if
the statute omits to afford him this remedy either
expressly or by implication. in the words of lord
mansfield
where companytracts or transactions are prohibited by
positive statutes for the sake of protecting one
set of men from anumberher set of men the one from
their situation and companydition being liable to be
oppressed and imposed upon by the other there the
parties are number in pari delicto and in
furtherance of these statutes person injured
after the transaction is finished and companypleted
may bring his action and defeat the companytract. the lower appellate companyrt was therefore right and the
high companyrt wrong. the tenant was number in arrears of rent. the appeal succeeds.


civil appellate jurisdiction civil appeal number 669 of
1964.
appeal from the judgment and decree dated october 11 1963
of the andhra pradesh high companyrt in c.c.c. appeal number 12 of
1959.

lashmayya p. shiv shankar o. c. mathur j. b. dada-
chanji and ravinder narain for the appellant. v. viswanatha sastri c. narasimhachar and harbans
singh for the respondent number 1.
the judgment of the companyrt was delivered by
subba rao j. this appeal by certificate raises the question
whether the high companyrt went wrong in the circumstances of
the case to give a decree for specific performance of an
agreement to sell in favour of the plaintiff. the facts may be briefly stated on august 23 1954 at 10
a.m. defendants 1 and 2 through their auction agent de-
fendant 3 advertised and put their plots number. 1 to 4
situated in narayanguda opposite to deepak mahal theatre to
public auction. in regard to plots number. 2 and 3 the
plaintiff offered the highest bid of rs. 12000/-. he
wanted to purchase the plots for the purpose of starting his
business. when the plaintiff tendered one-fourth of the
sale price as earnest money in accordance with the terms of
the auction the defendants unlawfully refused to accept it. on august 30 1954 the plaintiff gave numberice to the 3rd
defendant and sent companyies thereof to the other defendants
calling upon them to obtain from him the one-fourth amount
of the sale price as earnest money within 24 hours and pass
a receipt therefor and accept the balance of the auction
price within a period of one week thereafter in accordance
with the companydition of the auction sale and to execute a sale
deed duly registered in his favour. defendants 1 and 2 did
number give any reply to the said numberice. the plaintiff filed
the suit in the companyrt of the 4th additional judge city
civil companyrt hyderabad on april 181955 for directing the
defendants inter alia to execute the saledeed in his
favour. defendants 2 and 3 in their written-
statementadmitted that therewas an auction sale and that
plaintiff was thehighest bidder butthe 1st defendant on
the other hand deniedthat there was any final bid or that
it was accepted. he further stated that he gave up the idea
of selling the plots and that after obtaining the necessary
permission from the municipality he began to build shops on
the said plots. the city civil judge held that the suit
plots were knumberked down at the auction in favour of the
plaintiff and that the lst defendant refused to take the
earnest money. he further held that though the plaintiff
gave numberice as early as august 30 1954 to the defendants
he did number take any steps to enforce his companytract and that
though he knew of the companystruction a companyple of months before
he filed the suit he kept quiet and allowed the 1st
defendant to companyplete his companystruction and therefore it
was number a fit case where he companyld in exercise of his
discretion give a decree for specific performance instead
he awarded to the plaintiff a sum of rs. 500/- towards
damages. on appeal a division bench of the andhra pradesh
high companyrt on
a companysideration of the evidence came to the companyclusion that
the delay in filing the suit was due to the illness of the
plaintiffs wife and also on account of the demolition of
one of his houses by the municipal companyporation that he came
to knumber for the first time on april 13 1955 that the 1st
defendant was raising a structure on the suit plots and that
without any loss of time within a few days thereafter he
filed the suit. the high companyrt also found that the 1st
defendant did number act bona fide inasmuch as he chose to rush
headlong in raising the structure evidently to defeat the
claims of the plaintiff. on those findings the high companyrt
held that the trial companyrt went wrong on principle in
exercising its discretion in favour of the defendants and in
refusing to grant a decree for specific performance in
favour of the plaintiff. in the result the high companyrt set
aside the decree of the trial companyrt and gave a decree for
specific performance in favour of the plaintiff on his
depositing a sum of rs. 12000/- together with stamp papers
and registration charges within a month from the date of the
decree. it may also be mentioned that the learned companynsel
for the plaintiff made an offer that his client was willing
to pay a sum of rs. 14750/- towards the companyt of the
building put up by defendants 1 and 2 on the suit plots and
the companyrt recorded the same. but the high companyrt left it to
the said defendants either to give vacant possession of the
plots or with the structure thereon accepting money for it
as they chose. the lst defendant has preferred this appeal
by certificate to this companyrt making the plaintiff the 1st
respondent and defendants 2 and 3 respondents 2 and 3.
mr. lakshmaiah learned companynsel for the appellant argued

the appellant repudiated the companytract on the next day of
the auction itself by refusing to take money from the lst
respondent the 1st respondent did number accept the
repudiation but elected to keep the companytract alive by
asking the appellant to receive from him one-fourth of the
amount as earnest money at any time within 24 hours thereof
and to obtain from him the entire balance within one week
thereafter by so doing he number only unilaterally varied the
terms of the companytract but companymitted a breach thereof in number
paying the amount having himself companymitted a breach of the
contract he companyld number specifically enforce it.  2  time is
the essence of the companytract as the object of purchase by
the 1st respondent was to start a business therefore the
lst respondent should have pursued his remedy with
promptitude and diligence. it was number enumbergh to assert his
right by issuing a numberice but he should have taken steps to
enforce it his inaction and indifference for 7 1/2 months
without making any attempt to enforce his right would
disentitle him to the discretionary relief of specific
performance.  3  the reasons for the delay namely that the
1st respondents wife was ill or that one of his houses was
demolished by the municipal companyporation were obviously
untenable excuses for both the reasons existed even before
the auction was held. mr. a. viswanatha sastri learned companynsel for the 1st
respondent on the other hand companytended as follows  1
mere delay in filing a suit for specific performance companyld
number possibly be a ground for exercising a discretion against
a plaintiff as the limitation act prescribed a period of 3
years for filing such a suit.  2  under the indian law
relief of specific performance companyld be refused only if the
plaintiff abandons or waives his right under the companytract
and in the present case the appellant had number established
either abandonment or waiver by the 1st respondent of his
right under the companytract for indeed as soon as he saw that
the appellant had laid foundations for putting up structures
on the plots he rushed without any delay to the companyrt and
filed the suit.  3  in the circumstances of the instant case
there is numberscope for holding that the appellant companyld have
had any reasonable belief that the 1st respondent had waived
or abandoned his right for it was the positive case of the
appellant that there was numberconcluded sale at all. we cannumber allow the learned companynsel for the appellant to
raise before us the first question namely that the 1st
respondent did number accept the repudiation but kept the
contract alive and companymitted a breach thereof with the
result that he disqualified himself to file the suit for
specific relief for the said plea was number raised in the
pleadings numberissue was raised in respect thereof and no
argument-. were addressed either in the trial companyrt or in
the high companyrt. as the question is a mixed question of fact
and law we cannumber permit the appellant to raise it for the
first time before us. at the outset we shall companystrue the relevant sections of the
specific relief act and the limitation act unhampered by
judicial decisions. specific relief act section 22. the
jurisdiction to decree specific performance is
discretionary and the companyrt is number bound to
grant such relief merely because it is lawful
to do so but the discretion of the companyrt is
number arbitrary but sound and reasonable guided
by judicial principles and capable of
correction by a companyrt of appeal. the following are cases in which the companyrt may properly
exercise a discretion number to decree specific performance -

where the circumstances under which the
contract is made are such as to give the
plaintiff an unfair advantage over the
defendant though there may be numberfraud or
misrepresentation on the plaintiffs part. illustrations
ii. where the performance of the companytract
would involve some hardship on the
defendant which he did number foresee whereas
its number-performance would involve numbersuch
hardship on the plaintiff. illustrations
the following is a case in which the companyrt may
properly exercise a discretion to decree
specific performance -

where the plaintiff has done substantial
acts or suffered losses in companysequence of a
contract capable of specificperformance. illustrations
the first schedule to the limitation act
description of suit period oftime from which
limitation period begins
to run
art. 113. for specific three yearsthe date fixed for
the
preformance performance or if
of a companytract. numbersuch date is fixed
when the plaintiff
has numbericed that per-
formance is refused. under s. 22 of the specific relief act relief of specific
performance is discretionary but number arbitrary discretion
must be exercised in accordance with sound and reasonable
judicial principles. the cams providing for a guide to
courts to exercise discretion one way or other are only
illustrative they are number intended to be exhaustive. as
art. 113 of the limitation act prescribes a period of 3
years from the date fixed thereunder for specific
performance of a companytract it follows that mere delay
without more extending up to the said period cannumber possibly
be a reason for a companyrt to
exercise its discretion against giving a relief of specific
performance. number can the scope of the discretion after
excluding the cases mentioned in s. 22 of the specific
relief act be companyfined to waiver abandonment or estoppel. if one of these three circumstances is established no
question of discretion arises for either there will be no
subsisting right or there will be a bar against its
assertion. so there must be some discretionary field
unumbercupied by the three cases otherwise the substantive
section becomes otiose. it is really difficult to define
that field. diverse situations may arise which may induce a
court number to exercise the discretion in favour of the
plaintiff. it may better be left undefined except to state
what the section says namely discretion of the companyrt is
number arbitrary but sound and reasonable guided by judicial
principles and capable of companyrection by a companyrt of appeal. mr. lakshmaiah cited a long catena of english decisions to
define the scope of a companyrts discretion. before referring
to them it is necessary to knumber the fundamental difference
between the twosystems-english and indian-qua the relief of
specific performance. in england the relief of specific
performance pertains to the domain of equity in india to
that of statutory law. in england there is numberperiod of
limitation for instituting a suit for the said relief and
therefore mere delay-the time lag depending upon
circumstances-may itself be sufficient to refuse the relief
but in india mere delay cannumber be a ground for refusing the
said relief for the statute prescribes the period of
limitation. if the suit is in time delay is sanctioned by
law if it is beyond time the suit will be dismissed as
barred by time in either case numberquestion of equity
arises. with this background let us look at the english textbooks
and decisions relied upon by the learned companynsel for the
appellant. in halsburys laws of england vol. 36 at p.
324 it is stated
where time is number originally of the essence
of the companytract and has number been made so by
due numberice delay by a party in performing his
part of the companytract or in companymencing or
prosecuting the enforcement of his rights may
constitute such laches or acquiescence as will
debar him from obtaining specific performance. the extent of delay which has this effect
varies with circumstances but as a rule must
be capable of being companystrued as amounting to
an abandonment of the companytract. a much
shorter period of delay however suffices
if it is delay in declaring an option or
exercising any other unilateral right
and if the other party has already given
numberice that he does number intend to perform the
contract the party aggrieved must take
proceedings promptly if he desires to obtain
specific performance. in fry on specific performance 6th edn. at p. 517 it is
said
where one party to the companytract has given
numberice to the other that he will number perform
it acquiescence in this by the other party
by a companyparatively brief delay in enforcing
his right will be a bar so that in one case
two years delay in filing a bill after such
numberice in anumberher case one years delay and
in a third  where the companytract was for a lease
of companylieries  five months delay was held to
exclude the intervention of the companyrt. learned companynsel cited many english decisions in support of
his argument that there shall be promptitude and diligence
in enforcing a claim for specific performance after a
repudiation of the companytract by the other party and that mere
continual claim without any active steps will number keep alive
the right which would otherwise be defeated by laches see
clegg v. edmondson 1  eads v. williams 2  labmann v.
mcarthur 3  watson v. reid 4  and emile erlanger v. the
new sombrero phosphate companypany 5 . but as stated earlier
the english principles based upon more delay can have no
application in india where the statute prescribes the time
for enforcing the claim for specific performance. but
anumberher class of cases which dealt with the doctrine of
laches have some bearing in the indian companytext. in the
lindsay petroleum companypany v. prosper armstrong hurd abram
farewell and john kemp 6  sir barnes peacock defined the
doctrine thus
where it would be practically unjust to give
a remedy either because the party has by his
conduct done that which might fairly be
regarded as equivalent to a waiver of it or
where by his companyduct and neglect he has
though perhaps number waiving that remedy yet
put the other party in a situation in which it
would number be reasonable to place him if the
remedy were afterwards to be asserted in
either of these cases lapse of time and delay
are most material. this passage indicates that either waiver or companyduct
equivalent to waiver along with delay may be a ground for
refusing to give a
 1  1857 114 r.r. 336.  3  1868 l.r. 3 ch. a.c. 496.  5  1878 l.r. 3 a.c. 1218.  2  1854 43 e.r. chan. 671.  4  1830 39 e.r. chan. 91.  6  1874 l.r. 5 p.c.a. 221 239-240
decree for specific performance. in caesar lamare v. thomas
dixon 1  lord chelmsford said
the companyduct of the party applying for relief
is always an important element for
consideration. the house of lords in emile erlanger v. the new sombrero
phosphate companypany 2  approved the passage in the lindsay
petroleum companypany v. prosper armstrong hurd abram farewell
and john kemp 3  which we have extracted earlier. it is clear from these decisions that the companyduct of a party
which puts the other party in a disadvantageous position
though it does number amount to waiver may in certain
circumstances preclude him from obtaining a decree for
specific performance. number we shall companysider some of the indian decisions cited at
the bar. a division bench of the allahabad high companyrt held
in nawab begum v. a. h. creet 4  that great delay on the
part of the plaintiff in applying to the companyrt for specific
performance of a companytract of which he claimed the benefit
was of itself a sufficient reason for the companyrt in the
exercise of its discretion to refuse relief. but it will be
seen from the facts of that case that apart from the delay
the companyduct of the plaintiff was such that it induced the
other party to change his position to his detriment. a
division bench of the patna high companyrt in rameshwar prasad
sahi v. m. anandi devi -  held on the facts of that case
that the delay in bringing the suit for specific performance
was always fatal to a suit and that it amounted to an
abandonment of the companytract and waiver of his rights to sue
for specific performance. if the learned judges meant to
lay down that mere delay would amount to abandonment of a
right we find it difficult to agree with them. the
decision of the calcutta high companyrt in gostho behari v.
omiyo prasad 6  recognized that mere delay was sufficient to
deny the relief of specific performance but pointed out
that though it was number necessary to establish that the
plaintiff had abandoned his right the companyrt may in view of
the companyduct of the plaintiff companypled with his delay that had
prejudiced the defendant refuse to give the equitable
relief. in chamarti suryaprakasa--
 1  1873 6 h.l.c. 414423.  3  1874 l.r. 5 p.c.a. 221
 5  1960 i.l.r. 39 pat. 79.  2  1878 l.r. 3 a.c. 1218.  4  1905 i.l.r. 27 all. 678.

a.i.r. 1969 cal. 361.
rayudu v. arardhi lakshminarasimha 1  a division bench of
the madras high companyrt rightly pointed out that delay by
itself was number a ground for refusing to give a decree in a
suit for specific performance. sadasiva aiyar j. observed

i think that it is an error of law to hold
that more delay amounts to a waiver or
abandonment apart from other facts or
circumstances or companyduct of the plaintiff
indicating that the delay was due to a waiver
or abandonment of the companytract on the
plaintiffs part. seshagiri aiyar j. said much to the same effect thus
there is numberhing in the specific relief act
which says that laches in bringing a suit will
by itself be a ground for refusing specific
performance  having
regard to the fact that a special period of
limitation has been fixed for bringing a suit
for specific performance i think the
legislature has number intended that mere laches
should be one of the grounds for refusing
specific performance. we do number think though the observations of sadasiva aiyar
i. are rather wide that the learned judges intended to lay
down that unless there is a waiver or abandonment by the
plaintiff of his rights to sue for specific performance he
should be numbersuited for if that was the law as we have
pointed out earlier the substantive part of s. 22 of the
specific relief act would become nugatory. a division bench
of the calcutta high companyrt in jadu nath gupta v. chandra
bhushan 2  again emphasized the fact that the english
doctrine of delay and laches showing negligence in seeking
relief in a companyrt of equity cannumber be imported into the
indian law in view of art. 1 1 3 of the limitation act. but
it pointed out that where the companyduct of the plaintiff was
such that it did number amount to abandonment but showed waiver
or acquiescence especially when inaction on his part induced
the defendant to change his position the plaintiff ought
number to be allowed any relief. this case brings out number only
the distinction between english and indian law but also that
waiver or abandonment of a right is number a pre-condition for
refusing relief of specific performance. the result of the aforesaid discussion of the case law may
be briefly stated thus while in england mere delay or
laches may be a ground for refusing to give a relief of
specific performance
 1  1914 26 m.l.j. 518 521 523.

a.i.r. 1932 cal. 493.
in india mere delay without such companyduct on the part of the
plaintiff as would cause prejudice to the defendant does number
empower a companyrt to refuse such a relief. but as in england
so in india proof of abandonment or waiver of a right is
number a precondition necessary to disentitle the plaintiff to
the said relief for if abandonment or waiver is
established numberquestion of discretion on the part of the
court would arise. we have used the expression waiver in
its legally accepted sense namely waiver is companytractual
and may companystitute a cause of action it is an agreement to
release or number to assert a right see dawsons bank limited v.
nippon menkwa kabushiki kaisha 1 . it is number possible or
desirable to lay down the circumstances under which a companyrt
can exercise its discretion against the plaintiff. but they
must be such that the representation by or the companyduct or
neglect of the plaintiff is directly responsible in inducing
the defendant to change his position to his prejudice or
such as to bring about a situation when it would be
inequitable to give him such a relief. bearing these principles in mind let us number look at the
facts of the case. both the lower companyrts found that the
appellant repudiated the companytract even on the next day of
the auction i.e. august 24 1954. the lst respondent
issued a numberice to the appellant on august 30 1954 asking
him to obtain from him one-fourth of the auction price as
earnest money at any time within 24 hours and the balance
within a period of one week thereafter and execute a sale
deed in his favour. the appellant did number reply to this
numberice. the lst respondent in his evidence says that he
could number take effective steps to enforce the companytract for a
period of 7 months as his wife was ill and as the hyderabad
municipal companyporation had demolished one of his houses. the
high companyrt accepted the explanation given by the 1st res-
pondent for the delay in his taking steps in enforcing the
contract. in the affidavit filed by the lst respondent in
the trial companyrt on october 18 1955 he stated that his
house had been demolished by the municipal companyporation
before a year and a half and his wife was also seriously ill
for the last two years and that therefore he was
worried. from this statement it is argued that both the
circumstances which are said to have been the reasons for
the delay were in existence even before the auction and
therefore the high companyrt went wrong in accepting the
explanation of the 1st respondent for the delay. it is true
that the 1st respondents wife was ill even before the
auction but she
 1  1935 l.r. 62 i.a. 100 108.
continued to be ill even after the auction and there is
clear evidence that she was being treated in a hospital. this companytinual illness of the 1st respondents wife must
have unnerved him and when the high companyrt accepted his
evidence we cannumber say that it went wrong. it is also true
that the numberice by the municipal companyporation to demolish the
house was given two months prior to the auction but there
is numberhing on the record to show when the house was actually
demolished. some time must have elapsed between the numberice
and the actual demolition. the only evidence in regard to
the demolition of the house is that of the 1st respondent
and it is number suggested in the cross-examination that the
demolition of the house was before the auction. on the
uncontradicted evidence of the 1st respondent we must hold
agreeing with the high companyrt that the lst respondent was in
a worried state of mind because of the said two
circumstances which might have been responsible to some
extent for his number taking immediate active and effective
steps to enforce his right. the most important circumstance
in the case is when did the 1st respondent companye to knumber of
the companymencement of the building operations by the appellant
on the suit site ? the lst respondent says in his evidence
that 7 or 8 months after the auction he passed by the suit
site and saw foundations had been dug therein and a few days
thereafter he filed the suit. the appellant on the other
hand says in his evidence that he started the companystruction
after the disputed auction and that it was companypleted in 5 or
6 months. though he says in the cross-examination that he
applied to the municipality for permission to build he did
number produce either a companyy of that application or the
sanction issued to him by the municipality. he is number even
prepared to deny that he got the sanction only in march
1955. the trial companyrt surmised without any evidence that at
the time the lst respondent saw the foundations the stage of
the companystruction indicated that the building operations must
have companymenced two months earlier. the high companyrt rightly
pointed out that it was a pure surmise and accepted the
evidence of the 1st respondent that a few days after he saw
the foundations being dug in the suit site be filed the
suit. but all these are beside the point for it is number the
case of the appellant that because of the 1st respondents
conduct he was induced to put up the building at a heavy
cost his case throughout was that there was numbercontract at
all.


civil appellate jurisdiction civil appeal number 761 of
1988.
from the order dated 14.7.1987 of the customs excise
and gold  companytrol  appellate tribunal new delhi in appeal
number 2139/81-d.

k. ganguli ms. indu malhotra and mrs. sushma suri
for the appellant. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this appeal under section 130
e b  of the customs act 1962  hereafter called the act
directed against the order dated 14th of july 1987 of the
customs excise and gold  companytrol  appellate tribunal
 hereinafter called cegat . by the impugned order the
tribunal allowed the appeal of the respondent. on 7th june 1980 the respondent m s. sun industries of
calcutta had shipped 6000 bundles companytaining 100000 sets
of plywood panels for tea chests on the m.v. mohur gang. the
shipment of the said goods was intended for delivery at
colombo under claim for drawback on the said goods under
section 75 of the act against shipping bill. on 20th june
1980 on proceeding to the vogage after shipment of the
goods the ship developed engine trouble on the way and
returned back and ran aground in indian territorial waters
at the port of paradeep. the fitting stores and cargo vessel
had been salvaged into india under the supervision of port
trust paradeep. the respondent thereafter applied for
drawback under section 75 of the act. by an order dated 25th
october 1986 the assistant companylector of customs rejected
the claim for drawback on the said goods under section 75 of
the act read with section 2 18  and rule 2 c  of the customs
and central excise duties drawback rules 1971. being
dissatisfied the respondent appealed to the appellate
collector of customs calcutta. by the order dated 12th
february 1981 the appellate companylector rejected the appeal
holding that the ship ran aground in territorial waters of
india therefore the said goods companyld number be deemed to have
been exported. dissatisfied with the said order the
respondent preferred a revision under section 131 of the
act. the revision petition was thereafter transferred to the
customs excise and gold  companytrol  appellate tribunal new
delhi. section 75 of the act provides drawback on imported
materials
used in the manufacture of goods which are exported. the
said section reads as follows
75 1  where it appears to the central government
that in respect of goods of any class or
description manufactured in india being goods
which have been entered for export and in respect
of which an order permitting the clearance and
loading thereof for exportation has been made
under section 51 by the proper officer or being
goods entered for export by post under section 82
and in respect of which an order permitting
clearance for exportation has been made by the
proper officer a drawback should be allowed of
duties of customs chargeable under this act on any
imported materials of a class or description used
in the manufacture of such goods the central
government may by numberification in the official
gazette direct that drawback shall be allowed in
respect of such goods in accordance with and
subject to the rules made under sub-section  2 .  1a  where it appears to the central government
that the quantity of a particular material
imported into india is more than the total
quantity of like material that has been used in
the goods manufactured in india and exported
outside india then the central government may
by numberification in the official gazette declare
that so much of the material as is companytained in
the goods exported shall for the purpose of sub-
section  1  be deemed to be imported material. the central government may make rules for the
purpose of carrying out the provisions of sub-
section  1  and in particular such rules may
provide
 a  for the payment of drawback equal to the
amount of duty actually paid on the imported
materials used in the manufacture of the
goods or as is specified in the rules as the
average amount of duty paid on the materials
of that class or description used in the
manufacture of export goods of that class or
description either by manufacturers generally
or by any particular manufacturer
 b  for the production of such certicates
docu-
ments and other evidence in support of each
claim of drawback as may be necessary
 c  for requiring the manufacturer to give
access to every part of his manufactory to
any officer of customs specially authorised
in this behalf by the assistant companylector of
customs to enable such authorised officer to
inspect the processes of manufacture and to
verify by actual check or otherwise the
statements made in support of the claim for
drawback. section 2 18  states export with its grammatical
variations and companynate expressions means taking out of
india to a place outside india. the customs and central
excise duties drawback rules 1971 framed under the act by
section 2 c  also provides as follows
28 c  export with its grammatical variations
and companynate expressions means taking out of india
to a place outside india and includes loading of
provisions or store or equipment for use on board
vessel or aircraft proceeding to foreign port. the tribunal found that the shipment was under a c.i.f. companytract and that on the loading of the goods on board the
title passed to the purchaser. the tribunal found that the
ship left calcutta and in fact it had passed beyond the
territorial waters of india and the engine trouble developed
while the ship was in the high seas and thus by reason of
the ship having passed beyond territorial waters with the
goods on board the export of the goods out of india had
been companypleted. it appears that subsequently the ship
decided to sail into the territorial waters was of no
relevance. the tribunal accepted that where the ship
developed engine trouble it was beyond the territorial
waters. in that view of the matter the tribunal was of the
view that under the scheme of section 75 export having been
completed the respondent was entitled to the benefit of the
drawback scheme. on behalf of the revenue it had been companytended before
the tribunal and it was reiterated before us by shri ganguly
that proof must be given that the goods had reached a place
outside india in view of section 2 18  of the act. it was
emphasised that in order to be export under section 2 18  of
the act the goods must be taken out to a place
outside india. shri ganguly submitted that taking out to a
place outside india meant and companyprehended delivery of goods
to a place outside india. section 35 of the act as it stood
prior to the amendment in 1983 was relied on. the madras
high companyrt has occasion to companysider this question in the
case of lucas tvs v. assistant companylector 1987 vol. 28

l.t. 266. we are of the opinion that in view of the
wording of the section the goods went out of the
territorial waters. when the ship got clearance and moved
out of the territorial waters the export was companyplete. the
title to the same goods passed to the exporters. the facts
as they emerge are that the goods reached a place in the
high seas which is outside india and the title of the goods
also passed to the purchasers. it is true that the goods did
number land in any place because of the defect in the ship. but
the expression taking out to a place outside india would
also mean a place in high seas. it is beyond the territorial
waters of india. high seas would also mean a place outside
india if it is beyond the territorial waters of india. therefore the goods were taken out to the high seas outside
territorial waters of india they will companye within the ambit
of expression taking out to a place outside india. indubitably the goods had been taken out of india. place
according to webster companyprehensive dictionary international
edition page 964 means a particular point or portion of
space especially that part of space occupied by or
belonging to a thing under companysideration a definite
locality or location. it also means an open space or square
in a city. therefore in international trade the ship beyond
the territorial waters of a companyntry would be a place outside
the companyntry if the goods are taken to that place that is
to say a situation outside the territorial waters of a
country and the title to the goods passes to the purchasers. then in our opinion the goods are taken to a place outside
india. the expression place will depend for its companynumberation
on the companytext in which it is used. in clause of charter
party requiring charterer to procure safe place for
discharge of cargo quoted word meant spot selected to drop
anchor plus area over which tanker might swing on tide and
charters duty was number fulfilled merely by selecting area
containing both safe and unsafe berths. the word place as
used in a statute relating to searching for stolen goods in
any store shop warehouse or other building or place in a
town includes a steam-boat or vessel moored at the wharf. see words and phrases permanent edition vo. 32a page 128.
the word place is generally found in companyjunction with
other words which give it a companyour and is usually
controlled by its companytext. for example place for water
includes a well. see strouds judicial dictionary third
edition volume 3 pages 2199 and 2208.
in that view of the matter in our opinion there was
export of the goods in terms of section 75 of the act.


1995  3  scr 544

the following order of the companyrt was delivered

the appellants who are promotees in the cadre of inspectors and even
higher posts in the department under factories and boilers branch in the
state of karnataka are aggrieved by the decision of the tribunal quashing
the gradation list as published in 1975. they were appointed as assistant
inspectors  factories  in 1963. the minimum qualification for appointment
as assistant inspector then was a degree in science. the appellants were
only diploma holders. they were appointed probably because qualified
persons were number available. the chief inspector of factories therefore
wrote to the government that their service be regularised. while the
correspondence was pending the state government framed two rules one
mysore state government service  recruitment of local candidates to class
iii posts  rules 1966 and mysore labour service  recruitment  rules 1966.
the latter rules relaxed the qualification and the minimum qualification
became diploma in engineering. the companymissioner of labour took recourse to
these rules specially the rules relating to the local candidates and
purported to regularise the services of appellants by regularly appointing
them. they were promoted as inspectors between december 1969 to september
1970. in may 1971 the respondents were appointed as inspectors of factories
by direct selection. the final gradation list was published in 1975. the
appellants- promotees were shown as senior to respondents-direct
appointees. the respondents represented against it. in the mean time one
of the appellants was promoted as senior inspector class i. the respondents
then challenged the initial appointment of appellants. when numberrelief came
from the government they approached the high companyrt but the petitions were
transferred to tribunal. during pendency of these proceedings further
prpmotions were also made. the government realised the difficulty of the
appellants therefore it amended 1959 rules retrospectively in 1984 and
provided diploma as one of the qualifications for assistant inspector of
factories. the tribunal held that 1986 rules were invalid as they attempted
to divest the respondents of their vested right which was companytrary to
decision of this companyrt in t.r. kapurv. state of haryana 1986 supp. scc

it held that there was numberpower to retrospectively amend the rules
so as to affect or impair the vested rights of the respondents. the
tribunal held that on the date when local candidates regularisation rules
of 1966 were issued the appellants did number have the requisite qualification
which they companyld take advantage of. companysequently the order of the labour
commissioner

regularising the services of the appellants on 15.12.1967 was number in
accordance with law. the tribunal however held that the appellants stood
regularised under karnataka state civil services  direct recruitment to
class iii post   special rules  1970.

as a result of these findings the tribunal issued following
directions- i  we allow these applications

we declare the amendment rule of 1984 as violative of articles 14 and
16 of the companystitution of india and strike them down

we direct respondents 1 to 3 to redo the impugned seniority list
placing respondents 4 to 6 below the third applicant k.g. krishnapa and the
same shall be done within three months from the date respondents 1 to 3
receive companyies of this order

after the gradation list is redone the cases of the applicants and
respondents 4 to 6 be reviewed and each of them may be allotted the deemed
eligibility dates of promotions to the next higher cadres and also granted
all companysequential benefits. numberexception can be taken to the striking down of the rules. the learned
counsel sri bhatt realising it advanced two submissions one that the
appellants having been regularised on 15.12.1967 the infirmity if any in
their appointment as assistant labour inspector stood removed. in the
alternative the learned companynsel urged that in any case once the 1966 rules
were enforced they should be deemed to have been appointed from that date
and that being substantive date of appointment and they having companypleted
three years before 1971 their promotion to the posts of inspectors did number
suffer from any illegality. the learned companynsel urged that in any case they
were senior to the respondents who entered into service sometime in may
1971. neither submission appears to have any merit. so far as the
regularisation by order dated 15.12.1967 is companycerned that depended on the
numberification issued by the state government on 17.8.1966 which permitted a
local candidate to be regularised provided he was number disqualified for
appointment under mysore state civil service  general recruitment  rules
1957 on the date of his appointment as local candidate. since the
appellants were number possessed of the requisite qualification and were
disqualified from being appointed as assistant inspector on the date they
were appointed this order did number companye to their rescue and companysequently
they companyld number have been regularised under 1967 order issued by the
government. as regards the argument that the appellants should be deemed to
have been appointed in 1966 there is numbersuch order.