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><><><><><><><><><><><><><>>>>>> <<<<<<<><><><><><><><><><><><><><> From: ILR (1976) Kant 1478 The key word is 'distribute' and the genius of the Article cannot but he given full play as it fulfils the basic purpose of restructuring the economic order. Each word in the Article has a strategic role and the whole article a social mission. It embraces the entire material resources of the community. Its task is to distribute such resources. Its goal is so to undertake distribution as best to subserve the common good. It re-organizes by such distribution the ownership and control. 'Resources' is a sweeping expression and covers not only cash resources but even ability to borrow (credit resources). Art. 39 (b) is ample enough to rope in buses. The motor vehicles are part of the material resources of the operators. Nationalisation can have nexus with distribution. To classify and allocate certain industries or services or utilities or articles between the private and the public sectors of the national economy is to distribute those resources. Socially conscious economists will find little difficulty in treating nationalisation of transport as a distributive process for the good of the community. One cannot condemn the concept of nationalisation in our Plan on the score that Article 39 (b) does not envelope it. It is a matter of public policy left to legislative wisdom whether a particular scheme of take-over should be undertaken.
(Paras 80, 81, 82) = 1978 LAB. I. C. 467
From : (1) Karnataka; (2) Andhra Pradesh; (3) Industrial Tribunal Gujarat; (4) Madhya Pradesh; (5) Industrial Tribunal West Bengal; (6) Industrial Tribunal Delhi; (7) Labour Court Delhi; (8) Industrial Tribunal (II) U. P. Lucknow; (9) Industrial Tribunal (I) U. P. Allahabad (on behalf of himself, Bhagwati and Desai JJ.) :- 25. The rather zigzag course of the landmark cases and the tangled web of judicial thought have perplexed one branch of Industrial Law, resulting from obfuscation of the basic concept of 'industry' under the Industrial Disputes Act, 1947 (for short, the Act). This bizarre situation, 30 years after the Act was passed and industrialization had advanced on a national scale, could not be allowed to continue longer. So, the urgent need for an authoritative resolution of this confused position which has survived - indeed, has been accentuated by - the judgment of the six-member bench in Management of Safdar Jung Hospital, New Delhi v. Kuldip Singh Sethi (1971) 1 SCR 177 :
(1970 SC 1407), if we may say so with deep respect, has led to a reference to a larger bench of this die-hard dispute as to what an 'industry' under Section 2 (j) means.26. Legalese and logomachy have the genius to inject mystique into common words, alienating the laity in effect from the rule of law. What is the common worker or ordinary employer to do if he is bewildered by a definitional dilemma and is unsure whether his enterprise - say, a hospital, a university, a library, a service club, a local body, a research institute, a pinjarapole, a chamber of commerce, a Gandhi Ashram - is an industry at all? Natural meaning is nervous of acceptance in court, where the meaning of meanings is lost in uncertain erudition and cases have even cancelled each other out while reading meaning. M.H. BEG, C.J.I., Y.V. CHANDRACHUD*, P.N. BHAGWATI, V.R. KRISHNA IYER, JASWANT SINGH, V.D. TULZAPURKAR AND D.A. DESAI, JJ. The judgments delivered by Beg, C. J. and Bhagwati, Krishna Iyer and Desai, JJ. in this case appear on pp. 548 to 597 of 1978 SC (April). At the end of the judgment Chandrachud, J. (as he then was) and Jaswant Singh and Tulzapurkar, JJ. had stated that they agreed with the view of Krishna Iyer, J. that the appeal should be dismissed but that they would give their reasons later indicating the area of concurrence and divergence if any on the various points in controversy on which Krishna Iyer, J. had dwelt. They have now, by these judgments, given their reasons. Chandrachud, C. J. generally agrees with the majority view stated by Krishna Iyer, J. Jaswant Singh and Tulzapurkar, JJ. have, however, taken a contrary view. _________ Ed. M.H. BEG, C.J.I., V.R. KRISHNA IYER AND P.S. KAILASAM, JJ. The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or @page-SC728 unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offences. (Para 27)The second principle must be to harmonise the constitutional values of free criticism, the forth estate included, and the need for a fearless curial process and its presiding functionary, the Judge. A happy balance has to be struck, the benefit of the doubt being given generously against the judge slurring over marginal deviations but severely proving the supremacy of the law over pugnacious, vicious, unrepentant and malignant
contemners, be they the powerful press, gang-up of vested interests, veteran columnists of Olympian establishmentarians. (Para 28)The third principle is to avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound. Because the law of contempt exists to protect public confidence in the administration of justice, the offence will not be committed by attacks upon the personal reputation of individual judges as such.
(Paras 29, 30)The fourth functional canon which channels discretionary exercise of the contempt power is that the Fourth estate which is an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest Court. (Para 31)The fifth normative guideline for the judges to observe in this jurisdiction is not be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude. (Para 32)The sixth consideration is that, after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. (Para 33)It is disturbing development in our country that the media and some men in the trade of traducement are escalatingly scandalizing judges with flippant or motivated write-ups wearing a pro bono publico veil and mood of provocative mock-challenge. The Court shall not mediate nor hesitate but shall do stern justice to such 'professional' contemners not shrink because they are scurrilous influential or incorrigible. Even so, to be gentle is to be just @page-SC729 and the quality of mercy is not strained. So, it is that a benign neglect, not judicial
genuflexion, is often the prescription, and to inhibit haphazardness or injustice it is necessary that the Bar and the Press evolve a dignified consensus on the canons of ethics in this area with due regard to the Constitution and the laws, so that the Bench may give it a close look and drawn the objective line of action. (Para 57) From : 1972 Ker LT 1031 (A) Interpretation of Statutes - Constitutional law - Duty of Courts: Courts should interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic, rather than rigid. 1961 SC 1602 Followed. (Para 5) From: Allahabad The Supreme Court is more than a Court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal but the final court of the nation. Therefore, even if legal flaws may be electronically detected, we cannot interfere sans manifest injustice on substantial question of public importance. By this token, the petitioner has missed the bus. Dismissed. Y.V. CHANDRACHUD, CJI, V.R. KRISHNA IYER, S. MURTAZA FAZAL ALI, P.N. SHINGHAL & D.A. DESAI, JJ Constitutional deference to the Legislature and the democratic assumption that people's representatives express the wisdom of the community lead courts into interpretation of statutes which preserves and sustains the validity of the provision. That is to say, Courts must, with intelligent imagination, inform themselves of the values of the Constitution and, with functional flexibility, explore the meaning or meanings to adopt that construction which humanely constitutionalizes the statute in question. (1909) 54 L Ed 793 and Harward Law review Vol. 24 (1970-71) PP. 54-55, Ref. to. (Para 38) Y.V. CHANDRACHUD, C.J.I., P.N. BHAGWATI, V.R. KRISHNA IYER, R.S. SARKARIA, N.L. UNTWALIA, S. MURTAZA FAZAL ALI AND P.N. SHINGHAL, JJ. Not a note of absonance but a stroke of emphasis is my main intent in appending this separate opinion confined to a few fundamentals. It is fair to make clear at the outset that all the legal conclusions reached by the learned Chief Justice command my concurrence but, on certain key issues. my ratiocination diverges, sounding harsher and striking harder, maybe. However, the final confluence and considerable consonance cut down my coverage. The price of unanimity is not taciturnity where individual articulation may make distinctive contribution. From : Allahabad (for himself and on behalf of P. N. Shinghal and D. A. Desai J.) (Majority view) : - Exordially @page-SC747 speaking, the point for decision is short but its legal import and human portent are deep, sounding in constitutional values and meriting incisive examination. Where the question wears a simple look but its answer strikes at life and liberty we must proceed on the inarticulate major premise of human law as the solemn delivery system of human justice. In formal terms, the problem to be resolved is the vires of O. From: 1 & 3 Allahabad; 2 Kerala (Desai, J. agreeing) (Sen, J. Dissenting):- When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to S. 302, I. P. C. But if legislative undertaking is not in sight Judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to possess the flavour of law-making. (Para 16) (Desai J. agreeing) (Sen, J. Dissenting): - The criminal law of the Raj vintage has lost some of its vitality, notwithstanding its formal @page-SC917 persistence in print in the Penal Code so far as S. 302, I. P. C. is concerned. In the post-Constitution period Sec. 302, I.P.C. and S. 354 (3) of the Code of Criminal Procedure have to be read in the humane light of Parts III and IV, further illumined by the Preamble to the Constitution. (Desai J. agreeing):- S. 235 (2)
provision should be construed to mean that where the Court has to choose one or
the other sentence and if with a view to inflicting a certain sentence, special
reasons are required to be recorded, obviously the State which is the
prosecutor, must be called upon to state to the Court which sentence as
prosecutor it would consider appropriate in the facts and circumstances of the
case. (Para 92) Where the accused is convicted for an
offence under S. 302, I. P. C., the Court should call upon the Public Prosecutor
at the stage of S. 235 (2) to state to the Court whether the case is one where
the accused as a matter of justice should be awarded the extreme penalty of law
or the lesser sentence of imprisonment for life. If the Public Prosecutor
informs the Court that the State as prosecutor is of the opinion that the case
is not one where extreme penalty is called for and if the Sessions Judge agrees
with the submission, the matter should and there.
(Para 93) If on the other hand the Public
Prosecutor states that the case calls for extreme penalty prescribed by law, the
Court would be well advised to call upon the Public Prosecutor to state and
establish, if necessary, by leading evidence, facts for seeking extreme penalty
prescribed by law. Those reasons and the evidence in support of them would
provide the special reasons according to the State which impel capital
punishment. It would be open to the accused to rebut this evidence either by
submissions or if need be, by leading evidence. At that stage the only
consideration relevant for the purpose of determining the quantum of punishment
would be the consideration bearing on the question of sentence alone and not on
the validity of the verdict of guilty. After considering the submissions
and evidence it would be for the Court with its extreme judicious approach and
bearing in mind the question that the extreme penalty is more an exception, to
determine what would be the appropriate sentence.
(Para 94) (for himself and on behalf of Desai J. - Majority view):- THE DEADLY QUANDARY: To be or not to be: that is the question of lethal import and legal moment, in each of these three appeals where leave is confined to the issue of the propriety of the impost of capital penalty against which the brutal culprits desparately beseech that their dear life be spared by the Summit Court and the incarceratory alternative be awarded instead. There is, as here, a judicial dimension to the quasi-Hamletian dilemma when "a murder most foul" demands of sentencing justice punitive infliction of death or the lesser punishment of life imprisonment, since the Penal Code leaves the critical choice between physical liquidation and life-long incarceration to the enlightened conscience and sensitized judgment of the Court. From: Bombay The provisions of the Life Insurance Corporation of India (Staff) Regulations (1960), define the terms and conditions of service of the staff. The sole and whole object of
Regn. 25, read with Regn. 39, is to lay down a rule of conduct for the Life Insurance Corporation employees,
Regn. 25 while it does mandate that the employee shall not participate in an election to a local authority cannot be read as nullifying the election or disqualifying the candidate. The contravention of the Regulation invites disciplinary action, which may range from censure to dismissal. (Para 10) = 1979 LAB. I. C. 599 In the light of the decision of this Court in (1978) 3 SCR 207 : (1978 SC 548) counsel on both sides agree that the appellant comes within the definition of 'industry.' The appeals, on this point, therefore, fail. The consequence is that the Industrial Tribunal has to take up the proceedings and continue to @page-SC1211 adjudicate on the dispute and give its award. No costs. From: Punjab and Haryana What constrains us to explain at some length our reasons for rejection of leave to appeal in this case is the desideratum that every executive challenge to justice-in-action is a call to the court to strengthen public confidence by infusing functional freshness into the relevant law sufficient to overpower the apprehended evil. V.R. KRISHNA IYER AND R.S. PATHAK, JJ. This is a hard case which cannot persuade us to make bad law: therefore, the petition has to fail. The petitioners are Central employees of the Customs Department who complain that they find themselves below Customs Officers employed by the Tripura Princely State, who came into the service of the Central Government (Customs Department), on the Princely State being integrated with the Union of India. The reason for the former employees of the Tripura State being given seniority over the petitioners is that they have longer 'confirmed' service. The petitioners' contention is that continuous officiating service should be the guideline and not the length of service after confirmation. These are matters of policy which Government must have discretion to adopt. Indeed, Government did change its policy from time to time after making an assessment of the situation with reference to administrative exigencies and overall justice. Unless something arbitrary, perverse, mala fide or extraneous or like factor, is imported into the policy of the Government, the Court cannot predicate a breach of Article 16. We are unable to see any such vitiating factor. We may also add that somewhat similar challenges were made in Amrit Lal Berry v. Collector of Central Excise, New Delhi (1975) 2 SCR 960 and repelled. We are unable to accede to the contentions of the petitioners and dismiss the writ petition. From : Andhra Pradesh These two sister appeals have gained access to this Court by certificate under Article 133 and project a 'service dispute' between the Army and civilian wings (both engineers) of the Survey of India. The constitutional missiles used, with success, in the encounter in the High Court by the 'civilians' to shoot down the 'military men's preferential claims under the relevant service rules, are Articles 14 and 16. And here, in this Court, the Army wing is fighting back to repulse the civilian wing by defusing the warhead of these two fundamental rights. Military imagery vivifies the litigative havoc when sectors of our public services go to battle against each other, though there is so much else to wage war against in the service of the people. From : Kerala This litigation has secured special leave from us because it involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicised preoccupation has forsaken the civil debtor whose personal libraty is imperilled by the judicial process itself, thanks to Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code. Here is an appeal by judgment-debtors - the appellants - whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non-payment of an amount due to a bank - the respondent, which has ripened into a decree and has not yet been discharged. Is such deprivation of liberty illegal? From: Delhi Industrial Tribunal This Civil Appeal springs from an award by the Delhi Industrial Tribunal which is challenged by a small category of workmen who are 200 in number, the only financial impact whereof would be around Rs.6,000. The industrial dispute which led to the award relates to the year 1967 and it is unfortunate that the final adjudication of this dispute is being rendered as late as 1979. This provokes the comment that litigation is far too longlived to hold any realistic promise of fruits to the parties to the dispute. Form: Madras Writes A. G. Gardiner*, if we may start off with a strange flourish, that 'the supreme art is to achieve the maximum result with the minimum..... effort. It is the art of the great etcher who with a line reveals infinity. It is the art of the great dramatist who with a significant word shakes the soul. Schiller, said
Coleridge, burns a city to create his effect of terror: Shakespeare drops a handkerchief and freezes our blood". For this requisite reason, brevity is the soul of art and
justicing, including judgment-writing. must practise the art of brevity, especially where no great issue of legal moment compels long exposition, Therefore, we mean to be brief to the bare bones with a few facts here and a brief expression of law there, by adopting the technique which 'is simply the perfect economy of means to an end'. For another reason also the need for parsimony exists. The court is in crisis, docket logged and fatigued. A judgment can be brief but not a blank and there is no reason to repeat the details of a case where there is an exhaustive statement in the judgment under appeal, as in this case. We adopt those long pages of judicial manuscript and abbreviate our conclusion in a few pages. V.R. KRISHNA IYER AND R.S. PATHAK, JJ. This appeal by special leave raises a short question as to whether the appellant, who was retired under Rule 56 (j) of the Fundamental Rules was so retired by a competent authority contemplated by the rule. Admittedly he was appointed by the Comptroller and Auditor General. The only point that arises or, at any rate, we are concerned with is as to whether the retirement order is in conformity with Rule 56 (j) of the C.C.S.
(C.C.A.) Rules 1965. The appointing authority according to R. 56 (j) is the competent authority. Who, then, is the appointing authority in the context of this case? The answer is to be sought under Rule 2 (a) which reads thus : From : Madhya Pradesh From : Rajasthan From : Madras The main issue raised in this appeal turns on a construction of S. 32 (5) of the payment of Bonus Act and its application to the facts of the present case.The Tirumala Tirupathi Devasthanam has a very wide circle of devotees who come from all over the country. The Devasthanam caters to their needs and provides the amenities since pilgrims flock to the shrine. One of those facilities is stated to be offering transport services for pilgrim to come to Tirupathi from distant places. Inevitably the Transport Department is operating under the Devasthanam and employs a large number of transport workers. These workmen raised an industrial dispute making a demand for bonus for the years 1965-73. The reference was duly made to the Tribunal which considered inter alia the question as to whether S. 32 of the Act excluded from the operation of the bonus obligation, the respondent-institution. The plea was upheld and the reference was held to be invalid From: Madhya Pradesh Sublime titles of cinematograph films may enchant or entice and only after entry into the theatre the intrinsic worth of the picture because-the picture dawns on the viewer. The experience may transfer because the picture is great or the audiencee may lose lucre and culture in the bargain. Mere titles may not, therefore, attest the noxious or noble content of the film. Sometimes the same film may produce contrary impacts and what one regards as lecherous another man may consider elevating. Be that as it may, a well publicised film Satyam, Sivam, Sundaram became the subject-matter of a prosecution, presumably a pro bona publico proceeding, by the respondent against the petitioner and other who are the producer, actor, photographer, exhibitor and distributor of that film. The complaint alleged that the fascinating title was misleading, foul and beguiled the guileless into degeneracy. If the gravament of this accusation were true, obscenity, indecency and vice are writ large on the picture, constituting an offence under S.292 I.P.C. The Magistrate, after examining some witnesses, took cognisance of the offence and issued notice to the accused. Thereupon, the producer, namely, the present petitioner, moved the High Court under S. 482 Cr, P. C. on the score that the criminal proceeding was an abuse of the judicial process and engineered by ulterior considerations and that no prosecution could be legally sustained in the circumstances of the case, the film having been duly certified for public show by the Board of Censors. The High Court, however, dismissed the petition, ignoring the contention that the film had been given 'A' certificate by the Central Board of Film Censors and finding in the prosecution nothing frivolous or vexatious nor any material to quash the proceedings.The aggrieved film producer has arrived in this Court hopefully, and pressed before us on principal objection founded on S. 292 I.P.C. We do not find this contention apparent in the High Court's judgment, but since the facts are admitted and the question of law is of some moment, we have chosen to hear the petitioner on the invalidatory plea that once a certificate sanctioning public exhibition of a film has been granted by the competent authority under the Cinematograph Act, 1952 (for short, the Act),there is a justification for its display thereafter, and by virtue of the antidotal provisions in S. 79 of the Penal Code, the public exhibition, circulation or distribution or the production of the film, even if it be obscene, lascivious or tending to deprave or corrupt public morale, cannot be an offence, S. 292 I.P.C. notwithstanding. The absolution is based upon the combined operation of S. 5A of the Act and S. 79 of the Penal Code. V.R. KRISHNA IYER AND P.N. SHINGHAL, JJ. Shri G. L. Sanghi, counsel for the petitioner, has raised a neat point of law, as he described it, that Act 13 of 1972, by which new buildings constructed during the period of 10 years would be given exemption from the operation of the Act, does not apply to buildings constructed prior to the amendment. His contention is that @page-SC636 ordinarily a stature like this is prospective in operation unless there is clear legislative intent to the contrary. We are inclined to agree with him that this legislation is not retrospective and would have gone further to give him relief on that basis. But Shri Rana has pointed out that this specific question of law has not been raised not considered by the courts below and that the indulgence of this Court for raising the point of law should not be extended to the petitioner. The further reason given is that an undertaking had been given to the High Court to surrender vacant possession and a period of six months was secured from that court for that purpose. That period was however, used for coming to this Court and for declining to give possession. In a sense this is perilously near a breach of the word given to the Court and for this reason Shri Rana rightly submits indulgence should not be given to the party to raise a new point. From : Delhi The common appellant in both these appeals is a teenaged student turned criminal adventurer in the elitist area of car-lifting and scooter-poaching current in our fashionable cities, including Delhi. While he was a college student and but 19 years old, the appellant tried his hand at stealing a scooter way back in 1971. He was arrested but bailed out and while on bail was accused of committing a car theft. Both these cases were tried and he was found guilty. The scooter offence resulted in a sentence of two years' @page-SC637 imprisonment and a fine of Rs. 2,000. The car theft case got converted into an offence under Section 411 I.P.C. and, consequently, a reduced sentence of imprisonment for six months and a fine of Rs. 500. V.R. KRISHNA IYER, V.D. TULZAPURKAR AND
R.S. PATHAK, JJ. A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. I agree with my learned brother Pathak J. both on the restrictive review jurisdiction and the rejection of the prayer in this case - subject to the qualifications made below. From : Rajasthan These three petitions for special leave relate to a road tragedy where many lost their limbs while travelling in a bus belonging to the nationalised transport system of Rajasthan. A flimsy plea was put forward by the operator to escape liability for compensation that the lights of the bus accidentally failed and thus the unfortunate episode occurred. Other embellishments were also set up for the purpose of ex-oneration. The Accidents Tribunal was not taken in and, having disbelieved the evidence, awarded compensation in sums far lower than were claimed by the victims. V.R. KRISHNA IYER AND D.A. DESAI, JJ. Constitution of India, Art.32(2), Art.14, Art.12 and Art.298 - @page-SC739 Delhi Development Act (61 of 1957), S.3 - Delhi Development Authority - Petition under Art. 32 against authority - Petitioners grievance that authority was not entitled to give discriminatory treatment by collecting surcharge as component of price in sale of flats constructed under MIG Scheme - While determining price of flats authority acts purely in executive capacity - State or its agents entering into contractual field - Relations are not governed by constitutional provisions - No question arises of violation of any constitutional provision including Art. 14 - Jurisdiction of Supreme Court under Art. 32 - Not intended to facilitate avoidance of obligations voluntarily incurred. From : Punj & Har Settled law point vide 1979 SC 621. Hence Judgment not Reported - Ed. = 1980 Cri. L. J. 426
From : Bombay "No one shall be subjected to torture or to cruel, @page-SC786 inhuman or degrading treatment or punishment" is a part of the Universal Declaration of Human Rights. The content of Art. 21 of our Constitution, read in the light of Art. 19, is similarly elevating. But romance about human rights and rhetoric about constitutional mandates lose credibility if, in practice, the protectors of law and minions of the State become engines of terror and panic people into fear. We are constrained to make these observations as our conscience is in consternation when we read the facts of the case which have given rise to the order challenged before us in this petition for special leave. From : Allahabad An order draped in relative brevity is sufficient since we are refusing leave to appeal although the issue raised is the vires of a provision. V.R. KRISHNA IYER, S. MURTAZA FAZAL ALI, D.A. DESAI, R.S. PATHAK AND A.D. KOSHAL, JJ.* (with Murtaza Fazal Ali & D. A. Desai, JJ.): - Tersely expressed, this bunch of cases challenges the vires of a recent amendment made by the Supreme Court under Article 145 in the matter of review petitions whereby the judges will decide in circulation, without the aid of oral submissions whether there is merit in the motion and, in their discretion, choose to hear further arguments in Court. V.R. KRISHNA IYER, R.S. PATHAK AND O. CHINNAPPA REDDY, JJ.* The primary imperative of Articles 14 and 15 is equal opportunity for all across the nation to attain excellence. What is fundamental, as an enduring value of our polity, is guarantee to each of equal @page-SC821 opportunity to unfold the full potential of his personalities. 'Each according to his ability', is of pervasive validity, and it is a latent, though radical, fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak. The philosophy and pragmatism of universal excellence through universal equal opportunity is part of our culture and constitutional creed. (Para 16) V.R. KRISHNA IYER AND
R.S. PATHAK, JJ. The petitioner, an aspirant for admission to the M.B.B.S. course in one or other of the medical colleges in Kerala, has failed to qualify for selection from the Kerala University pool, not having secured high enough marks, and has failed to fall within the Calicut University pool, not having been a student of that University. From : Punjab &
Haryana Constitution of India, Art.136 - Appellant, a lecturer in Government College, dismissed from service on having found guilty of insubordination - Considering serious hardship and inequity that would result from dismissal, Court directed, after obtaining consent of the State, reinstatement with payment of half the amount of salary from date of dismissal. (Para 2) No law point - Hence judgment not reported - Ed: @page-SC847 V.R. KRISHNA IYER, A.C. GUPTA AND
R.S. PATHAK, JJ. No constitution nor Code nor Court can interdict illegal incarceration where conscientized agencies of the law at the grass-roots level are absent. Such is the only explanation for the lawless lot of the two prisoners who are petitioners before us. These two humans sojourning for long years in some jail or other in Bihar since 1972 found their personal liberty subverted by the police, prison officials and the magistracy that they wrote letters to the Hon'ble Chief Justice in reparation. The above habeas corpus petition is a legal incarnation of those letters. Sensitized by the prima facie hideous facts disclosed the court directed a rule to issue. Somehow, despite several adjournments the State did not even furnish the basic facts about the imprisonment of the petitioners, the offences for which they were kept in judicial custody, for how long and at what stage were the proceedings and the like. This gross indifference of the Bihar State in regard to citizens deprived of their liberty for indefinite and prolonged spells is an unconscionable aspect of that State's unconcern for human rights. Indeed, counsel for the State did his level best to get relevant information. Being at the end of our patience and finding a helpless counsel, we had to pass an order in the following terms: It is noticed that an order dated 17-12-1979 directed jail authorities and District Magistrate under whose jurisdiction the petitioners are kept in confinement to explain before 14-1-80 the nature of the charges against the petitioners, the stage of trial of each of these cases and the reason for the delay in proceeding with the trial. It is surprising that despite communication having been made to them through the State, counsel for the State represents that telex message to the concerned District Magistrate and jail authorities had been sent, but no information has yet been furnished in compliance with this court's order. We are constrained therefore to issue notice to the jail authorities and the District Magistrate to show cause why action for violation of this Court's direction should not be taken against them. The court will issue notice to be personally served on these authorities with a direction that they shall appear in court in person on 25-2-1980. Counsel for the State undertakes to furnish the names of the District Magistrate concerned and jail authorities by 12-2-1980. Post the matter on 13-2-1980 with office report whether the counsel has submitted names and addresses of the authorities concerned as directed above. V.R. KRISHNA IYER, S. MURTAZA FAZAL ALI, D.A. DESAI, R.S. PATHAK AND A.D. KOSHAL, JJ.* It is apparent that there is no statutory provision which creates a right of appeal in favour of a stranger enabling him to challenge an acquittal by the High Court. The Criminal Procedure Code does not create such a right of appeal and, speaking generally, a right of appeal is the creature of statute. In express terms, Art. 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the Court and it spells by implication, a
fair procedure contemplated by Art. 21. Article 136 is a special jurisdiction. It is residuary power, it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. It is manifest that Art. 136 is of composite structure, is power-cum-procedure - power in that it vests jurisdiction in the Supreme Court, and procedure is that it spells a mode of hearing. It obligates that exercise of judicial discretion and the mode of @page-SC857 hearing so characteristic of the Court process. In short, there is an in-built prescription of power and procedure in terms of Art.136 which meets the demand of Art.21.(Paras 4,7,8) From : Bombay These two civil appeals revolved round the appointment to the post of Deputy Municipal Commissioner in the Municipal Corporation of Greater Bombay. The appellant in C.A. No.1954 of 1978 was one of the applicants for the post. By way of an aside we mention that the other appeal, C.A. No.1955 of 1978 does not call for any adjudication or other consideration in the view we are taking and the order we are passing in this appeal. The other one is by the Public Service Commission and relates to certain observations which hurt the Commission. From: Allahabad Civil P.C. (5 of 1908), S.115 (as amended in U. P. in 1978) - Revisional Order of District Court under Sec. 115 - Revision against order under Sec. 115 in High Court, not maintainable. From : 1978 Lab. I. C. 463
(Delhi) Two government servants have been retired from service in exercise of the powers vested in the Central Government by Rule 56 (j) (i) of the Fundamental Rules. They have successfully challenged compulsory retirement by petitions under Article 226 of the Constitution and the Union of India has come up in appeal to this Court by special leave. The sole question to be decided is whether a government servant officiating in a Class I or Class II service or post can be retired compulsorily by exercising the power under Rule 56 (j) (i) after he has attained the age of 50 years. From : (1) Madras, (2 to 4) Andhra
Pradesh The main appeal with which we are concerned in this batch of civil appeals (and special leave petitions whose fate will depend on the decision in the civil appeals) is one where a Railway employee successfully challenged the refusal to pay certain emoluments by the Union of India in the Madras High Court. His writ petition in the Madras High Court was in the wake of similar one in the Andhra Pradesh High Court a few years prior thereto. The decision of the Andhra Pradesh High Court had become final, especially because the special leave petition filed by the Union of India challenging it had been dismissed by this Court. The Madras High Court considered the reasoning given in the Andhra Pradesh decision and was inclined to dissent from it, but felt that the consequences of divergent decisions in the two High Courts might lead to anomalies and should, therefore, be avoided. The High Court expressed itself thus: "With respect to the view of the Andhra Pradesh High Court, we are unable to agree with in.......... But the decision of the Andhra Pradesh High Court has created a peculiar situation. The result of giving effect to it, as the Department is bound to give effect to that judgment which has become final is that employees like the petitioners in the Railway service in the Andhra Pradesh Area will be treated differently from the petitioners, who are in every way similar to them except for the region in which they happen to work, in the matter of pay scales and other matters." Having regard to this odd potential consequence, the High Court of Madras fell in line with the Andhra Pradesh High Court and upheld the writ petitioners' claim. V.R. KRISHNA IYER, R.S. PATHAK AND A.D. KOSHAL, JJ. This big bunch of writ petitions shows how litigation has a habit of proliferation in our processual sytem since cases are considered in isolation, not in their comprehensive implications and docket management is an art awaiting its Indian dawn. The facts, being admitted, obviate debate. All these appellants and writ petitioners had paid market fees at the increased rate of 3 per cent (raised from the original 2 per cent) under Haryana Act No. 22 of 1977. Man dealers challenged the levies as unconstitutional, and this Court, ina series of appeals, C. A. No. 1083 of 1977 etc., Kewal Krishna v. State of Punjab, decided on May 4, 1979: (reported in
AIR 1980 SC 1008 ruled that the excess of 1% over the original rte of 2% was ultra vires. This cast a consequential liability on the market committees to refund the illegal portion. They were not so ordered probably because they could not so ordered probably because they could not straightway be quantified. The petitioners who has, under mistake, paid larger sums which, after the decision of this Court holding the levy illegal, have become refundable, demand a direction to that effect to the market committees concerned. There cannot be any dispute about the obligation or the amounts since the market committees have accounts of collections and are willing to disgorge the excess sums. Indeed,if they file suits within the limittion period, decrees must surely follow. What the period of limitation is and whether Art. 226 will apply are moot as it evident from the High Court's judgment, but we are not called upon to pronounce on either point in the view we take. Where public bodies, under colour of public laws, recover people's money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of'alternative remedy' since the root principle of law married to justice, is ubi jus ibi remedium. Long ago Dicey wrote: From : Punjab and
Haryana The Criminal scenario with a tragic crescendo which has been unfurled in this Special Leave Petition starts with a bunch of 'suspects' being brought up to the police post which was in the charge of the petitioner, an Assistant Sub-Inspector. A case of theft in some officer's house had been reported to the police the previous night and so as part of the investigation the suspects were picked up and suffered, as part of the process of 'investigation'. severe flagellation, Chhabila, one of those so tortured, succumbed to his injuries. This triggered off investigation @page-SC1088 into the murderous conduct of the investigation, the petitioner, and another. Medical examination revealed the cruel cause of death as asphyxiation. One of the injuries which, according to the doctor, made the deceased unconscious was torture on both the soles of the foot of the victiom. A trial for murder followed, a conviction under Section 302, was entered and eventually the High Court confirmed the conviction and sentence of life imprisonment so far as the petitioner was concerned. A false explanation of suicidal hanging was set up by the police officer-accused but this was rejected and eventually, on a study of the circumstances and the incontrovertible facts of flagellation and asphyxiation within police premises and the testimony of eyewitnesses about nocturnal detention within the police station and beating up of the victim, the courts below concurrently found the guilt of the petitioner proved beyond reasonable doubt. Strenuous submissions have been made to us by Shri Mulla to discredit the prosecution version of murder but we are not in the least convinced that there is any error in the appreciation or the conclusion. From : 1 and 2 -
Allahabad U.P. Kshetra Samitis and Zilla Parishads Adhiniyam (33 of 1961), S.119 - Constitution of India, Art.276, Art.277 and Sch.7, List 2, Entry 49, Entry 60 and Entry 58, List 1, Entry 97 - Levy of circumstance and property tax - It is not tax on income - It is valid and falls under Items 49, 60 and 58 - Arts. 276 and 277 do not apply. From : Bombay Silver is a precious metal and policy decision that the silver resources of the nation shall be conserved may well be wise policy. But public morality is more precious than silver and gold for individual and nation and to honour the plighted word of a public body is proof of this higher policy. The relevance of this observation, about the link-up of law and morality is basic to the decision of this case. What then, is the morality of the law vis a vis Government policy on export of silver? This is the question, in its jural dimensions, which has been ably argued by counsel. Such a capsulated statement, we know, is but an oversimplification, and we will proceed to unfold in fuller detail the facts and the law, the conflict and its resolution. From: Calcutta V.R. KRISHNA IYER AND
A.P. SEN, JJ. These two appeals and the sister writ petition raise the same point of law, seeking to derive succour from a ruling of this Court in @page-SC1186 the State of Gujarat v. C.G. Desai, (1974) 2 SCR 255 :
AIR 1974 SC 246 which we are inclined to think is distinguishable because unlike in that decision the weightage which is objected to as violative of Article 14 is based upon a rule framed under proviso to Article 309 which we regard as reasonable and in the circumstances fair. V.R. KRISHNA IYER, D.A. DESAI AND A.D. KOSHAL, JJ. The definition of Joint Hindu Family is wide enough to include the Cochin royal family and, prima facie, Section 4 (2) spells a division in status and substitutes a tenancy-in-common in the place of jointness vis-a-vis the Cochin royal family also. This consequence can be obviated only if there is something in Section 7 which compels a contrary conclusion. The omission in the repealing section of 1961 Act. by itself, does not render inapplicable Sec. 4 (2) which creates the division in status. It admits of no doubt that, until Act 30 of 1976 was passed, there was no partition effected by any decision of the Maharaia pursuant to the 1961 Act. Thus, one of the Joint Hindu Families which subsisted at the time of the 1976 Act was the Cochin royal family and Sec. 4 (2) could, and, therefore, did operate on it. Nor is the rule of per capita division provided for in the 1976 Act contrary to the shares prescribed in the 1961 Act. The survival of the 1961 Act, because of its omission from the Schedule of Acts repealed, has one effect and that is that the Board alone has the power to divide the properties. Section 3 of the 1961 Act provides for it and must prevail despite the 1976 Act in view of Section 7 of the later Act read with the Schedule thereto. The nonrepeal of the 1961 Act also leads to the conclusion that child in the womb is entitled to a share. (Section 4 of the 1961 Act) whatever the meaning of Sec. 4 (2) of the 1976 Act may be. Thus, if we take a close-up of the statutory scene, vis-a-vis the Cochin royal family, in 1976, we get the position that the family is divided in status with shares for every member including a per capita share for a child in the womb and such partition is to be worked out by metes and bounds only by the Board and not by the civil court. (Para 19) From : Bombay Cantonments (Extension of Rent Control Laws) Act (46 of 1957), S.3 - Amendment by Act 22 of 1972 introducing S. 3 (4) - Retrospective effect - Validation of pre-existing decrees and their execution - Decree for possession and arrears of rent made on 12-7-1957 by wrong application of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, saved by sub-sec. (4) of S. 3 of amended Act. From : Himachal Pradesh East Punjab Urban Rent Restriction Act (3 of 1949), S.13(3)(a)(i) - Eviction on ground that landlord requires residential building for his own occupation - Absence of any evidence or any averment in compliance with the other two conditions of clause (i) that the landlord is not occupying any other residential building and that he has not vacated such a building without sufficient cause - Held there was not merely inadequacy of pleadings sufficient to make out a cause of action but total absence of proof of two vital requirements - A mere affidavit at a late stage of litigative process can hardly be adequate to meet mandate of Sec. 13 (3). From : Award of Central Govt. Ind. Tri.-cum-Labour Court, New
Delhi The expression "termination of service for any reason whatsoever" in Section 2 (oo) covers every kind of termination of service except those not expressly included in Section 25F or not expressly provided for by other provisions of the Act such as 25FF and 25FFF. 1979 Lab IC 1399 (Ker) (FB);
AIR 1962 Bom 152 (FB), (1967) 1 Lab LJ 545 (Punj) and AIR 1966 Raj 56, Overruled. (Paras 5, 13) From : Punjab &
Haryana Wife burning - that atrocious species of murder horrendously escalating in some parts of this country - is the shocking crime proved, according to two courts, by the prosecution in this case. Concurrent findings of fact cannot be disturbed save on enormity of improbability which we are unable to see in the present case. The three dying declarations corroborated by other circumstances are sufficient in our view to bring home the offence. Counsel has sought to discredit these declarations relevant under Section 32 of the Evidence Act forgetting that they are the groaning utterances of a dying woman in the grip of dreadful agony which cannot be judged by the standards of fullness of particulars which witnesses may give in other situations. To discredit such dying declarations for shortfalls here or there or even in many places is unrealistic, unnatural and unconscionable if basically there is credibility. The terrible in this case has taken place in the house and in the presence of the husband who has been convicted. We hardly see any reason for interfering with this conviction, would have been shocked ourselves if any other course had been adopted either by the trial court or by the High Court. Gender justice has a high place in Indian criminal jurisprudence. Dismissed. From : 1980 Ker LT 144 The Universities in the country are often among the contributories to the flood of litigation in the higher courts of the country. This pathological condition, to which the present bunch of appeals bears testimony, must claim the healing attention of the nation's educational leadership. The four appeals before us present challenges to the scheme of admission to post-graduate courses in medicine in the college of the Kerala State. But since that State is not alone in the tendency to temporise with constitutional values and writ petitions for college admissions are almost a hardy annual, we deem it our duty to permit ourselves a few preliminary observations before proceedings to the fact-situation and conflict-resolution. top || back Read Article: A "Brief Biography" - by Vinod Sethi |
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