ION Criminal Appeal No 60 of 1955
Appeal from the judgment and order dated the 2nd February 1955 of the Calcutta High Court in Criminal Revision No 1113 of 1954 against the judgment and order dated the 14th November 1953 of the Court of the Sessions Judge Howrah in Criminal Appeal No 185 of 1953 arising out of the judgment and order dated the 8th September 1953 of the Municipal Magistrate Second Class Howrah in Case No 1407C1952
Sukumar Ghose for the appellant
B Sen and P K Ghosh for P K Bose for the respondent 1957
October 29
The following Judgment of the Court was delivered by SINHA J
This appeal on a certificate of fitness granted by the Calcutta High Court under article 134 1 c of the Constitution is directed against the judgment and order of a Single Judge of that Court in its criminal revisional jurisdiction convicting the appellant under section 488300 of the Calcutta Municipal Act 1923 which will hereinafter be referred to as the Act and sentencing him to a fine of Rs 50 in substitution of the order of conviction under section 488299 of the Act of a fine of Rs 75 passed by the lower courts
The facts found by the courts below which are necessary to be stated for the purpose of this appeal are as follows The appellant who is the owner of the premises No 103 Swarnamoyee Road Howrah encroached upon an area of 57  x 3  of the road side land of the Howrah Municipality to which the 776 provisions of the Act have been extended
A notice the terms of which we shall set out hereinafter was served on the appellant to remove the encroachment aforesaid and as he failed to carry out the terms of the notice within the specified time the prosecution leading up to this appeal was instituted before the magistrate who under section 531 is called Municipal Magistrate 
The Municipal Magistrate who tried the appellant in the first instance convicted him but on appeal the learned Sessions Judge acquitted him on the ground that the prosecution had been launched beyond three months which was the prescribed period of limitation under section 534 of the Act
The Municipality moved the High Court of Calcutta in its revisional jurisdiction and a Division Bench of that Court J P Mitter and section K Sen JJ set aside the order of acquittal and directed the appeal to be re heard after giving the Municipality an opportunity of formally bringing on record certain official documents showing the date of the institution of the complaint
The relevant documents were proved and exhibited on behalf of the prosecution in the Sessions Court and the learned Additional Sessions Judge confirmed the conviction and the sentence and dismissed the appeal
Thereupon the appellant moved the High Court in its revisional jurisdiction
His application in revision was heard and disposed of by PN Mukherjee J by his order dated February 2 1955 which is the subject matter of this appeal
Before him the appellant as petitioner urged at the forefront of the arguments the question of limitation and the learned Judge took the view that the matter was now concluded in view of what had taken place in the High Court and in the court of Session in pursuance of the order of remand passed by the High Court
The learned Judge agreed with the appellate court that the complaint was not barred
The High Court also agreed with the lower courts on their findings on the merits that is to say it affirmed the finding that the appellant had encroached upon the road side land of the Municipality
The High Court accepted the argument raised on behalf of the appellant that on the facts found namely that the 777 offending structure was a compound wall and not something which was a part and parcel of the main building the offence if any would come under section 300 and not section 299 read with section 488 of the Act
The High Court further took the view that as the accused was fully aware of the nature of the accusation against him it would not cause any prejudice to him if the conviction and the sentence were altered into those under section 300 read with section 488 of the Act the sentence being reduced to the statutory limit of 50 rupees
The appellant moved the High Court and obtained the necessary certificate from the Bench presided over by the learned Chief Justice who observed while granting the certificate It seems to me to be arguable and arguable with some force that such alteration of the conviction could not possibly be correct in law 
It would therefore be arguable that a notice under section 299 to remove a compound wall unattached to any building could not be a notice lawfully given  or a requisition lawfully made  within the meaning of section 4881c of the Calcutta Municipal Act 1923
It appears to me that the alteration of the conviction by this Court does raise a question of law which makes the case a fit case for further appeal to the Supreme Court
 In this Court the learned counsel for the appellant has placed at the forefront of his arugments the points suggested in the portion of the learned Chief Justice s order quoted above but in our opinion there is absolutely no substance in those contentions
The alteration of the conviction from section 299 to section 300 read with section 488 of the Act was no alteration in the substance of the accusation but only in the section more properly applicable to the facts found
A similar question was raised before their Lordships of the Judicial Committee of the Privy Council in the case of Begu vs The King Emperor 1
It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under section 201 Indian Penal Code without a charge under that section was a serious departure from the procedure laid down in the Code of Criminal Procedure
In that 778 case the initial conviction was for murder under section 302 of the Indian Penal Code but the High Court had set aside that conviction and substituted a conviction under the lesser section 201
After discussing the provisions of sections 236 and 237 of the Code of Criminal Procedure their Lordships made the following observations which fully cover the present controversy  A man may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made
 It will be noticed that in the case before the Privy Council the alteration was not only in respect of the section but also of the substance of the accusation but as the lesser offence under section 201 had been made out by the evidence led on behalf of the prosecution which was primarily for an offence of murder their Lordships ruled that sections 236 and 237 of the Code of Criminal Procedure authorize the Court to alter the conviction and the sentence to be passed in respect of the offence made out in the evidence
In the case in hand it is manifest that the facts sought to be proved and found by the courts below remained the same even after the alteration of the conviction from section 299 to section 300 read with section 488 of the Act
There was therefore no illegality in the alteration of the conviction under one section to the other
It was next argued that the notice served upon the appellant was not lawful within the meaning of section 4881c of the Act which runs as follows 4881 Whoever commits any offence by a          b          c failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections sub sections clauses provisos or rules shall be punished       The substantive portion of the notice is in these terms Take notice that you are hereby required by the Municipal Commissioners of Howrah within 779 thirty days from the date of service of this notice to remove the encroachment caused by a compound wall measuring 57  0 x 3  0 upon Swarnamoyee Road attached to premises No 103 and that in default the provisions of the above Act will be enforced
 This notice is headed as under section 299 of the Act
It is no more in controversy as found by the courts below that the offending part of the structure comes under section 300 which refers to a wall etc not being a portion of a building or fixture as contemplated in section 299
The contention now has narrowed down to this that the notice having been headed as under section 299 of the Act the conviction under section 300 is illegal because it is further argued the requisition had not been lawfully made 
According to this argument the requisition would have been lawfully made  if the notice had been headed as under section 300
Hence the label given to the notice makes all the difference between a requisition lawfully made  and a requisition not so made
In our opinion this argument has only to be stated to be rejected
It is the substance and not the form of the notice that has to be regarded
The effective part of the notice quoted above leaves no doubt in the mind of the parties concerned that the requisition is to remove the encroachment caused by the compound wall
As it has not been contended that the appellant had not received the notice and it is common ground that the appellant had not carried out the terms of the notice there cannot be the least doubt that the appellant has incurred the penalty under section 4881c read with section 300
It must therefore be held that notwithstanding the label given to the notice the requisition bad been lawfully made in the sense that the appellant had made the encroachment complained of and that the Municipality was entitled to call upon him to remove the encroachment
The appellant was bound to carry out the terms of the requisition and as he admittedly failed therein he had incurred the penalty of the law
It was next sought to be contended that there was substantial prejudice to the appellant inasmuch as if 99 780 the conviction were under section 299 and not section 300 read with section 488 he may have been entitled to claim compensation
There are several answers to this contention
In the first instance he himself invited the High Court to interfere with the order of conviction passed by the lower courts
If the High Court has set right the technical defect as it was bound to do when the matter had been brought to its notice the appellant has no just grievance keeping in view the fact that the amount of fine has been reduced as a result of the alteration in the section
Secondly if he has any rights to claim compensation in a civil court the judgment and order of the criminal court is wholly irrelevant and thirdly the prejudice must have reference to any irregularity in the trial of the case
It has not been shown that the appellant had in any way been prejudiced in the trial of the case as a result of the alteration in the section that is to say that he was deprived of some opportunity to make a proper defence to the prosecution if the right section had been named in the notice or in the charge if any
Nor has he been able to show that he was misled as a result of any such technical error
Lastly it was sought to be made out that the prosecution itself was beyond time
This contention was attempted to be made good with reference to the additional evidence adduced at the appellate stage as a result of the direction of the High Court when the case came before it on the first occasion as mentioned above
In our opinion there is no substance in this contention because as pointed out by the learned Additional Sessions Judge the additional evidence placed before the Court puts the matter beyond all reasonable doubt that the complaint had been lodged in time before the relevant authority
In view of these considerations it must be held that there is no merit in this appeal
It is accordingly dismissed
Appeal dismissed


Summary:
 A number of the princely States situated within the territories of the present State of Orissa were merged with effect from January 1 1948 with the Province of orissa as it then existed
On such merger the High Schools within the said princely States came under the juries diction of the Province of Orissa
The Schools belonged to two categories A  type schools which were full fledged High schools sending candidates for the Matriculation examination and B  type schools which were incomplete schools not sending candidates for the Matriculation examination
On the said schools being taken over by the Province of orissa the teachers of the schools came under the control of the Government of orissa
The orissa Government issued a letter dated 511949 to the Director of Public Instruction in connection with the subject of regulation of the services of the teachers
The appellant was an assistant teacher in one of the B  type schools on June 15 1q953 after the commencement of the Constitution of India and continued to work as such in the B  type school till August 1 1964 when the State Government of Orissa published a rationalisation scheme for integrating the services of the teachers in the different types of High Schools in the State
Aggrieved by the terms of the Scheme relating to i the seniority of the teachers working in the B  type High Schools and ii
The contributory Provident Fund the appellant filed a writ petition in the High Court
The High Court upheld the validity of the Scheme and dismissed the Petition while recommending however to the Government to modify the terms relating to the Provident Fund Scheme applicable to the teachers of B  type High Schools
The appellant then moved this Court by special leave against the decision of the High Court
Disposing of the appeal the Court 651  HELD It is true that till the commencement of the Constitution of India the position of the B  type High Schools and the teachers working in them was being regulated in accordance with the terms contained in the order dated 511949
But on the commencement of the Constitution of India all the territories which immediately before the commencement of the Constitution were either comprised in the Province of Orissa or were being administrated as if they formed part of that Province became and constituted the State of Orissa
The State Government was under obligation to discharge its executive functions with respect to education in respect of all the schools including B  type High Schools
A High school which once belonged to a princely state became a Government High School with effect from the commencement of the Constitution and it could not be anything else and the teachers working therein became teachers holding posts under the Government
It is well settled that the doctrine of an act of State cannot be pleaded by a State as a defence against its own citizens
An act of State  is an act done in relation to a foreigner by a Sovereign power of a country
Such an act cannot be questioned in any court of law but such a situation would not arise between the State Government and a citizen like the appellant who joined service after the commencement of the Constitution
The High Court was in error in upholding the plea that the order dated 511949 could not be questioned by the appellant who had joined service after the commencement of the institution
657A E GH 658A There is also no rational basis for refusing to give the benefit of the service rendered by a teacher working in a B  type High school after January 26 1950 either for purposes of seniority or for purposes of computing the retirement benefits
It may be open to the State Government while integrating the services of teachers working in different kinds of institutions to introduce a scheme of rationalisation which may have the effect of modifying the conditions of service of different groups of government servants
But the Government cannot by a stroke of pendeny the benefit of the entire past service rendered by one group of such government servants
The effect of the government scheme was that all the teachers who had been in Government Schools immediately prior to June 1 1964 the date of coversion of the High Schools to government schools became senior to the teachers working in the B  type High Schools Ex District Board High Schools and Ex Anchal High Schools
The scheme appears to be an irrational one
The High Court was in error in upholding the terms of the scheme in so far as the question of the seniority was concerned
The judgment of the High Court
in so far as the validity of the terms of the scheme pertaining to 652 seniority of the teachers in the schools referred to in it is concerned is reversed
the clause in the scheme which reads But for the purpose of reckoning their seniority in Government service their services will be counted from the date of conversion of the schools into Government schools is void
The State government is directed to treat on and after January 26 1950 the service of the teachers of the B  type High schools ex District Board High Schools and ex Anchal High Schools as the service under the State Government
It is open to the State Government to evolve a reasonable formula for integrating the cadres of these teachers with the cadres of the teachers in the High Schools which have been under the Government all along
Before bringing about such an integration the government may formulate reasonable principles for equating the posts in the Government High Schools with the posts in the B  type High Schools ex District Board High Schools and ex Anchal High Schools having regard to the minimum qualification for the posts pay responsibilities etc
In the light of the said principles the government shall prepare a seniority list whereafter it shall proceed to make promotions of the teachers to the higher cadre
In view of the stand taken by counsel for the appellant and other teachers in B  type High schools ex District Board High Schools and the ex Anchal High schools regarding their not insisting upon promotions with retrospective effect etc the State government shall promote these teachers to the higher posts as and when the vacancies arise hereafter on the basis of their rank in the seniority list if they are found fit for such promotion
The government is at liberty if it finds it convenient to treat as submitted by the teachers  counsel the two groups of teachers as belonging to separate cadres and reserve certain percentage of posts for being filled up only by the teachers of B  type High Schools ex District Board High Schools and ex Anchal High schools as was the case in State of Punjab vs Joginder Singh 1963 Supp 2 SCR 169
The order of the High Court is modified to the above extent and the State Government shall prepare the seniority list and make promotions accordingly within six months in the light of the above observations
659C G 660C H 661A D No opinion is expressed on the question of Contributory Provident Fund Scheme the same having been satisfactorily settled by the state
661D E Johnstone vs Pedlar   referred to