Criminal Appeal Nos 7 18 7 1981  205 2 12 2 13 2 17  204 of 1990
From the Judgments and Order dated 2941981 2251981  294
1981 of the Punjab and Haryana High Court in Crl
WP Nos 38  46 80 84 86 88  40 of 1981
RS Suri Mr Mohan Pandey and RP Singh for the Appel lants
SSrinivasan and CL Sahu Amicus Curiae for the Respond ents
The Judgment of the Court was delivered by AHMADI J
Special leave granted in all the above matters
These appeals involve the interpretation of paragraphs 516 B and 631 of the Manual for the Superintendence and Management of 150 Jails in the Punjab
The preface to the Manual shows that those paragraphs of the Manual against which a black line appears are in substance either quotations from the law or from the Rules having the force of law the authority having been indicted on the upper right hand margin of each paragraph whereas the paragraphs which have not been black lined are executive instructions issued from time to time by the Government of India or the Local Government or the Inspector General with the sanction and approval of the Local Government
It may at once be mentioned that paragraph 5 16 B contained in Chapter XV entitled Release of Prison ers  is not blacklined while paragraph 631 contained in Chapter XX entitled Remission System  is blacklined
The note in the upper right hand margin of paragraph 516B refers to G of I Resolution No 159 167 dated 6th September 1905 and PG No 18608 Jails dated 28th June 1920
There is no dispute that this paragraph contains an executive instruc tion only
Paragraph 631 contains a note on the upper right hand margin referring to the G of I Resolution No 161 172 of 2nd May 1908 and PG Letter No 1669 S Home of 31st July 1908
At the foot of paragraph 631 is a Note  in small type with a right hand marginal note See para 5 16B 
While there can be no controversy that paragraph 631 which is blacklined has statutory force the question is whether the Note at the foot thereof which is not blacklined also has statutory force
Paragraph 5 16 B provides that the case of every con victed prisoner except females and males below 20 years at the date of the commission of the crime sentenced to im prisonment for life or imprisonment aggregating to over 14 years and who has undergone a period of detention in Jail amounting together with remission earned to 14 years shall be  submitted to the State Government through the Inspector General of Prisons for orders
In the case of female prisoners or prisoners who were below 20 years on the date of commission of the crime reference is required to be similarly made to the State Government on their completing a detention period of 10 years inclusive of remissions
Clause v however provides that notwithstanding anything con tained in the earlier part of the paragraph a Superintend ent of jail may  in his discretion refer at any time for the orders of the State Government the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent s opinion be suitably commuted to a term of imprisonment
It would appear from a plain reading of this paragraph that in the case of a prisoner who has com pleted 14 years of detention in jail
inclusive remissions earned it is imperative on the part of the Superintendent of 151 the Jail to submit his case through the IG of Prisons to the State Government for consideration
The use of the words shall be submitted  bring out this intention when we con trast them with the word may  and the words in his discre tion  used in clause v thereto which begins with a non obstante clause
Therefore where the intention was to confer a mere discretion on the Superintendent of Jail it was made manifest by the use of the expression may  fol lowed by the words in his discretion  and where the inten tion was to cast a duty to submit the case of the State Government it was brought out by the word shall  preceding the words be submitted   for the orders of the State Government 
We have therefore no doubt in our minds that paragraph 5 16B though an executive instruction has been couched in language which clearly shows that in the former type of cases where the prisoner has completed 14 years of detention in jail inclusive of remissions his case must be referred to the State Government for consideration
Notwith standing this limitation of completion of 14 years clause v confers a discretion on the Superintendent of the jail to refer or submit the case of a prisoner to the State Government even before he has completed 14 years if in his opinion the case is fit for commuting the sentence
Paragraph 631 is indisputably a statutory one as it is blacklined
But the blacklined portion of the paragraph merely defines certain expressions including the expression life convicts  which means a person whose sentence amounts to 20 years imprisonment
Then appears the Note which reads as follows Note The case of all life convicts and of all prisoners sentenced to more than 14 years imprisonment or to transpor tation and imprisonment for terms exceeding in the aggregate 14 years shall when the term of imprisonment undergone together with any remission earned under the rules amounts to 10 or 14 years as the case may be submitted for the orders of the Local Government in accordance with the in structions contained in the Home Department Resolution No 159 167 Jails dated the 6th September 1905 See para 516B It will be seen that the note merely reproduces the gist of paragraph 5 16 B Even the right side marginal note says see para 5 16 B  and is based on the same Resolution of 6th September 1905 on which paragraph 5 16 B is based
The note is not blacklined as in the case of 152 the Note below paragraph 633
It was therefore urged that when paragraph 516 B is not blacklined this note below
paragraph 63 1 which too is not blacklined can not be construed to be statutory in character merely because para graph 631 incorporates a statutory rule
Since the source of paragraph 5 16 B and the Note at the foot of paragraph 631 is the same namely the Resolution of 6th September 1905 counsel for the State of Punjab submit ted that the learned Judge in the High Court was not right in concluding that the Note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and if there is a conflict between the two the note which is statutory in character must prevail
The difficulty arises because the State Government has issued instructions in 1971 which has the effect of modify ing the executive instructions in paragraph 5 16 B in that it is now provided that a convict must have undergone 8 12 years of substantive sentence before his case for premature release can be submitted to the State Government for consid eration
A further change was made by an executive instruc tion issued in 1976 whereby it was provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment will not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment
The High Court has taken the view that while paragraph 5 16 B would stand amended or modified by the subsequent executive instructions the statutory rule con tained in the Note below paragraph 631 cannot be touched by mere executive instructions and hence it still holds the field and the Superintendent for the jail is bound to submit the case to the State Government ignoring the change brought about by the executive instructions of 1971 and 1976
In other words according to the High Court the executive instructions of 1971 and 1976 being in conflict with the statutory Note must give way to the latter
Before we deal with the above question it may be advan tageous to refer to Sections 432433 and 433A of the Crimi nal Procedure Code which have a bearing on the question of premature release
Section 432 confers on the appropriate Government the power to suspend the execution of the sen tence or remit the whole or part of the sentence with or without conditions
Section 433 confers power on the appro priate Government to commute a a sentence of death for any other punishment provided under the Penal Code b a sen tence of imprisonment for life for imprisonment for a term not exceeding 14 years or 153 fine c a sentence of rigorous imprisonment for simple imprisonment or fine or d a sentence of simple imprison ment for fine
Section 433A provides that where an offender is visited with a sentence of imprisonment for life for an offence for which death is one of the punishments or where a sentence of death is commuted under Section 433 into one of punishment for life such persons shall not be released from prison unless he has served atleast 14 years of imprison ment
It will thus seen that Section 432 and 433 confer powers of suspension remission and commutation of sentences on the appropriate Government an expression defined in Sub section 7 of Section 432 of the Code
In Gopal Vinayak Godse vs State of Maharashtra   this Court held that a sentence of transportation for life or imprisonment for life must be treated as trans portation or imprisonment for the whole of the remaining period of the convict s normal life unless the said sen tence is commuted or remitted by the appropriate Government
Dealing with the Rules framed under the  this Court held that even though they were statutory in character they did not confer an indefeasible right on a prisoner sentenced to transportation for life an uncondi tional release on the expiry of a particular term including remissions
It held that the rules framed under the enabled a prisoner to earn remissions ordinary special and State the said remissions were to be given credit to wards his term of imprisonment and for the purpose of work ing out the remissions the sentence of transportation for life was equated with a definite period but it is only for the particular purpose and not for any other purpose
Lastly it observed that the question of remission was exclusively within the province of the appropriate Government
In Maru Ram vs Union of India  this Court repelled the challenge to Section 433A both on the question of competence of Parliament to enact the provision and its constitutional validity
While interpreting Sections 432433 and 433A of the Code this Court pointed out that wide powers or remission and commutation of sentences were conferred on the appropriate government but an exception was carved out for the extreme category of convicts who were sentenced to death but whose sentence had been commuted under Section 433 into one of imprisonment for life
Such a prisoner is not to be released unless he has served atleast 14 years of imprisonment
The Court refused to read down Section 433A to give overriding effect to the Remission Rules of the State
It categorically ruled that Remission Rules and like provisions stand excluded so far as lifers  punished for capital offences are concerned
Remissions by way of 154 reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Code or in exer cise of constitutional power under Article 72161 of the Constitution
Remission cannot detract from the quantum and quality of the Judicial sentence except to the extent per mitted by Section 432 of the Code subject of course to Section 433A or where the clemency power under the Consti tution is invoked
But while exercising the Constitutional power under Article 72161 the President or the Governor as the case may be must act on the advice of the Council of Ministers
The power under Article 72 and 161 of the Consti tution is absolute and cannot be lettered by any statutory provision such as Sections 432433 and 433A of the Code
This power cannot be altered modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules
Now paragraph 5 16 B requires that the case of every convict sentenced to imprisonment for life or imprisonment aggregating to more than 14 years and who has undergone a period of detention in jail amounting together with remis sion to 14 years shall be submitted to the State Govern ment for orders
The State Government s instruction issued in 1971 provides that the convict must have undergone 8 12 years of substantive sentence before his case could be submitted to the Government
The other instruction issued in 1976 provides that the case of a convict who was sentenced to death and whose sentence was subsequently commuted to life imprisonment will not be submitted unless he has under gone atleast 14 years of substantive imprisonment
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences if the sentences is of imprisonment for life
ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years
In the case of other lifers  the insistence under the 1971 amendment is that he should have a period of atleast 812 years of incarceration before release
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code
Since Section 433A is prospective so also would be the 1971 and 1976 amendments
155 But the High Court has come to the conclusion that Paragraph 5 16 B as amended by the executive instructions of 1971 and 1976 cannot override the statutory rule con tained in Paragraph 631 read with the note appended thereto
Counsel for the State argued that the Note at the foot of Paragraph 631 merely reproduces Paragraph 5 16 B the mar ginal note thereto says to in no uncertain terms and there fore the Note cannot be ascribed a statutory character
We think there is considerable force in this submission
In the first place it must be realised that according to the pref ace only those paragraphs which are blacklined have statuto ry character
The Note in question is not so blacklined
Where the note is intended to be given statutory character it is blacklined see the note at the foot of Paragraph 633
Secondly the source of paragraph 5 16 B and the Note is the very same Resolution No 159 167 of the Government of India dated 6th September 1905
It is difficult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in another part of the same Manual
Thirdly the marginal note to the Note in question in terms refers to Paragraph 5 16 B which means it was merely a reproduction of the latter paragraph
In the circumstances if the Note was intended to be conferred a statutory charac ter it would have been blacklined in keeping with the scheme of the Manual
These are clear indicators which support the submission of the learned counsel for the State
Lastly Paragraph 631 classifies prisoners and fixes the duration of their sentences eg 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers
The Note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule Paragraph 5 16 B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under Paragraph 5 16 B It therefore seems clear to us that the Note is neither an integral part of Paragraph 631 nor does it have statutory flavour as held by the High Court
We therefore find it difficult to uphold the view taken by the High Court in this behalf
We may make it clear that Paragraph 516B insofar as it stands amended or modified by the 1971 and 1976 executive orders is prospective in character
We allow these appeals and set aside the judgment and Order of the High Court in each of these appeals
GN Appeals allowed


Summary:
The writ petitions preferred by the appellants before the High Court were sought to be resisted by the State on the preliminary objection that they had an alternative remedy available before the Public Services Tribunal set up under the UP Act 17 of 1976
The appellants took the plea that filing of a claim in the Tribunal was not an adequate alternate relief inasmuch as it did not have power to make any interim order
The High Court declined to exercise its power under article 226 of the Constitution
Remitting the case to the Public Services Tribunal for disposal on merits the Court HELD 1
The Uttar Pradesh Public Services Tribunal which functions under a State Act does not have power to make any interim order
Under the 
which is a legislation in terms of article 323 A of the Constitution the jurisdiction of the High Court in regard to service matter is intended to be taken away and vested in the Tribunal
It is open to the State to also set up Tribunals for adjudication of service disputes in regard to its employees
Several States have already set up their own Tribunals under that Act
170B 169H 170C SP Sampath Kumar vs Union of India  Ors   referred to 2
It is commended to the State to consider the feasi bility of setting up of an appropriate tribunal under the Central Act in place of the Services Tribunal so that apart from the fact that there would be uniformity in the matter of adjudication the High Court would not be burdened with service litigations and the Tribunal with plenary powers 169 can function to the satisfaction of everyone
1701 3
In case the existing Services Tribunal is continued the State should change its manning so that a sufficient number of people qualified in Law could be on the Tribunal to ensure adequate dispensation of justice and plan out diversification of the location of the Benches for the Tribunal
170E G