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Mrs. Sujata V. Manohar, J. Delay companydoned. Leave granted. Heard both sides. This is an appeal from the judgment and order of the Delhi High Court dated 15.7.1996 in Civil Writ Petition No. 3469 of 1994, and from an order dated 19.3.1997 in a Contempt Petition filed in companynection with the order of 15.7.1996, being Contempt Petition No. 340 of 1996 before the Delhi High Court. The respondent had filed four Bills of Entry bearing No. 102619 dated 29.1.1991 2 No. 102815 dated 15.2.1991 3 No. 102878 dated 20.2.1991 and 4 No. 103166 dated 19.3.1991. The Bills of Entry were in respect of Synthetic waste soft quality imported by the respondent. The respondent claimed release of the goods free of duty in terms of valid import export pass-book. The goods were examined and samples were drawn for testing. According to the appellants, the goods imported were prime fibre and number soft waste. The value according the appellants was number companymensurate with the quality of goods under import. Hence a show-cause numberice was issued to the respondent in each case. In the meanwhile, since the goods were number being released and were incurring heavy demurrage charges as also companytainer charges, the respondent filed a writ petition in the Delhi High Court in respect of two Bills of Entry No. 102815 and No. 102878 being Civil Writ Petition No. 802 of 1991. In the interim application taken out by the respondent in the said petition bearing C.M. No. 1587 of 1991, learned companynsel for the appellants asked fr further time for testing the samples. He also made a statement which is recorded by the High Court in its order of 3.4.1991, that in case after inspection, the goods are found to be synthetic waste, the entire demurrage and companytainer charges will be borne by the Customs Department and the Customs Department shall issue the requisite certificate. Thereafter by another interim order, the High Court also directed the Principal Collector to adjudicate the issue within a time bound programme. Accordingly the Collector, by his order dated 28.6.1991, decided the issue an d imposed a redemption fine of Rs. 11,00,000/- and personal penalty of Rs. 1,32,00.000/- with a direction to clear the goods on payment of duty at enhanced price f Rs. 28.14 per kg. CIF. This was in respect of Bill of Entry No. 102815. A separate order to a similar effect was also passed in respect of Bill of Entry N. 102878 imposing a different redemption fine and penalty. The respondent filed appeals. In the meanwhile, because the Departmental remedies were available to the respondent, the High Court dismissed Civil Writ Petition No. 802 of 1991 by its order dated 24.7.1991. Ultimately the dispute went up to the Customs, Excise and Gold Control Appellate Tribunal, which remanded the matter pertaining to all the four Bills of Entry to the Principal Collector, subsequently designated as Chief Commissioner, for a fresh adjudication. The Chief Commissioner, by his order dated 11.8.1995, ordered the unconditional release of goods under all the four Bills of Entry. In the meanwhile, in August 1994, because of the delay in disposal f Departmental proceedings, the respondent filed a fresh writ petition before the Delhi High Court being Civil Writ Petition N. 3469 of 1994 for release of goods under the four Bills of Entry. In the interim applications being C.M. Nos. 5113 of 1995 and 6401 of 1994, learned companynsel for the respondent stated that the demurrage charges were so enormous that they were far in excess of the price of goods by that time. He also drew the attention of the Court to the order of 3rd of April, 1991 in Civil Writ Petition No. 802 of 1991 where, under similar circumstances, the Customs Department had stated that if the goods were found to be synthetic waste, the entire demurrage and companytainer charges would be borne by the Customs Department and the Customs Department would issue the requisite detention certificate. Counsel for the appellants wanted instructions in that regard. The interim applications were thereupon adjourned from 24th of August, 1995 to 6th of September, 1995. The documents before us do number indicate what happened thereafter in the interim applications. In the meanwhile, on 23rd of June, 1993 an order of detention was issued by the Assistant Collector of Customs, Bombay, for detention of any goods imported by the respondent. The detention order was for recovery of a sum of Rs. 1,15,21,249/- claimed as due and payable by the respondent to the Customs in respect of certain companysignments imported by them in 1983. In respect of these companysignments a writ petition had been filed by the respondent before the Bombay High Court being Writ Petition No. 2463 of 1983. According to the Customs Department, the Bombay High Courts order which had been passed in this writ petition, which is dated 31.7.1991, was number companyplied with in so far as payment of interest was companycerned, by the respondent. Hence the detention order was made. This detention order was in force when Civil Writ Petition No. 3469 of 1994 was filed by the respondent in the Delhi High Court. Writ Petition No. 3469 of 1994 was disposed of by the Delhi High Court by the impugned judgment and order of 15.7.1996. Under the said judgment and order, the Delhi High Court allowed the writ petition. The High Court examined the plea of the appellants that the goods were number being released because of the detention order of 23.6.1993. The High Court in this companynection, referred to an earlier detention order passed by the Customs authorities on 14.2.1992 was withdrawn on 11.3.1992 by the Customs Department. The order of 11.3.1992 withdrawing the detention order of 14.2.1992, in terms, stated that all the arrears of revenue in respect of writ Petition No. 2463 of 1983 as per the terms and companyditions of the Bombay High Courts order dated 31.7.1991, including interest for one year as stated in the above referred interim order, had been realised by the Customs House. The point whether the party the present respondent was required to pay interest from the date of clearance of the gods till the final disposal of the writ petition was yet to be got clarified from the Bombay High Court. Therefore, the detention order was being withdrawn from that date until the clarifications were obtained. It would appear that without obtaining any subsequent clarification, the fresh detention order of 23.6.1993 had been issued for the recovery of the same alleged amount under the same order of the Bombay High Court dated 31.7.1991 in Writ Petition No. 2063 of 1983. The Delhi High Court, therefore, came to the companyclusion that there was numberjustification for detention of the companysignments companyered by the four Bills of Entry. It also held that when the Chief Commissioner had ordered unconditional release of the goods on 11.8.1995, there was numberjustification for detaining the goods. The High Court also numbered the statement earlier made in Civil Writ Petition No.802 of 1991 in the interim order dated 3.4.1991 and directed that the goods should be released without recovery of any demurrage or companytainer charges. The present appellants were directed to issue the requisite certificate in terms of the undertaking given by it on 3rd of April, 1991 within a period of four weeks so that the present respondent companyld get the goods released. Pursuant to this order, a detention certificate was issued on 15.10.1996. However, although the Container Corporation of India had waived 96 of their charges, the Shipping Corporation of India, out of a total amount of Rs. 13,11,00,4.63 said to be due to it, waived a substantial amount but was insisting upon payment of Rs, 56,43,470/-. Therefore, the entire demurrage and companytainer chargers were number being waived. In view, therefore, the companytempt petition was taken out by the respondent being Contempt Petition No. 340 of 1996. By the impugned order of 19.3.1997 the Court gave one more chance to the present appellants to carry out its directions given in the order of 15.7.1996. It directed that the present appellants should sort out the question of payment of charges as between itself, the Container Corporation of India and the Shipping Corporation of India and the Shipping Corporation of India. The goods should be released to the respondent within three weeks. After the order of 19.3.1997, the present appellants, in companypliance with the directions companytained in the said two impugned orders, addressed a letter to the respondent dated 5.4.1997 informing them that the matter had since been resolved with the Shipping Corporation of India. They had agreed to revalidate the delivery order without insisting on any payment of detention charges from the respondent. M s. Container Corporation of India had also agreed to give the delivery of the goods companytained in the 38 companytainers companytaining the goods imported under the said four Bills of Entry, against a valid delivery order without insisting on payment of any demurrage charges. The letter also recorded that the Customs authorities had already released the said goods and hence the respondent companyld obtain delivery. Despite this letter the respondent has number taken delivery of the goods. It seems that there was a dispute inter se between the partners of the respondent. In respect of these disputes a suit was filed in the Delhi High Court by on of the partners being Suit No. 748 of 1997 in which initially on 11.4.197, and again on 27.1.1998, there was an order of injunction obtained preventing the other partners from taking delivery of the said goods. In the present appeal the appellants have challenged the impugned order of the High Court dated 15.7.1996 and the second order in the companytempt petition dated 19.3.1997. They have companytended that they should number have been asked to issue a detention certificate or to bear demurrage and companytainer detention charges. Obviously, both the orders of the Delhi High Court turn entirely upon the special facts of this particular case. It has numbered that test reports companyfirmed the companytention of the present respondent that the companysignments imported by them under the four Bills of Entry were of synthetic waste soft quality and number prime fibre. Despite the test reports, on one pretext or the other, the goods were number being released by the Customs authorities. The respondent had companyplained of mala fides on the part of the Customs officers companycerned with the handling of the four Bills of Entry in question. The respondent had even companyplained to the then Finance Minister about the Customs officers in question demanding a large amount as illegal gratification for releasing the goods. Since this was a serious allegation we had directed the appellants to file an affidavit to explain what steps they had taken in companynection with this companyplaint. They have number filed a detailed affidavit setting out that in accordance with the directions of the then Honble Finance Minister as recorded on 19.10.1996 by the Chairman, Central Board of Excise and Customs, action against the officers responsible for delay in clearance of companysignments was being companytemplated. The affidavit sets out the companysiderable time taken in ascertaining the names of the officers companycerned with the handling of these companysignments. After a long search extending over one year and three months, the appellants have finally located the name of the officers. They have number called upon the officers to give their explanation. Looking to the totality of circumstances pertaining to the import of the companysignments under the four Bills of Entry and the inordinate delay of about six years for their release, the High Court has passed the impugned orders directing the appellants to issue a detention certificate and bear the demurrage and companytainer detention charges. They are obviously orders passed in the special circumstances of the present case, and particularly the companyduct of the Customs authority in number releasing the goods even after the order of unconditional release dated 11.8.1995 passed by their own Chief Commissioner. The companyduct of the Customs officers companycerned is also under investigation. We do number think that this is a case were any investigation at our hands is required. The apprehension of the appellants that this will companystitute a precedent is number justified because it is clearly an order which is meant to do justice to the respondent looking to the totality of circumstances and the companyduct of the appellants. Obviously, for any delay on the part of the respondent in taking delivery of the goods after 5.4.1997, the respondent will have to bear the companysequences. For the period prior to 5.4.1997, however, the order of the High Court does number require any intervention from us.

civil appellate jurisdiction civil appeal number 182 of 1956. appeal by special leave from the judgment and order dated numberember 23 1955 of the labour appellate tribunal of india bombay in appeal number 224 of 1953 arising out -of an award part ii dated june 4 1953 of the bombay industrial tribunal in reference number i.t.a. number 18 of 1951. c. setalvadattorney-general for indian. c. chatterji b. dadachanji s. n. andley and rameshwar nath of rajinder narain company for the appellant. purshottam tricumdas h. r. gokhale k. r. choudhury and m. rangaswamy for the respondents. 1956. numberember 13. the judgment of the companyrt was delivered by k. das j.-this is an appeal by special leave from a decision of the labour appellate tribunal at bombay dated numberember 23 1955. the baroda borough municipality is the appellant and the respondents are the workmen employed in the electricity department of the said municipality represented mostly by the baroda state electric workers union hereinafter called the respondent union . the substantial question for determination in this appeal is if the respondents workers in a municipal department engaged in the generation supply and sale of electric energy are entitled to the bonus claimed out of the surplus earnings of the said department called profits by the respondents after allowing for all outgoings including necessary expenditure of the department and deductions for all prior charges. the question is a short one but has an importance and consequences reaching beyond the limits of the particular case in which it has arisen. we may first state the relevant facts. before may 1 1949 on which date the former state of baroda was merged in and integrated with the then province of bombay number the bombay state the baroda electric supply companycern was owned and managed by the state of baroda. on april 19 -1949 the state government of baroda decided to hand over the said concern as a gift to the baroda municipality and communicated an order to that effect in which it was stated inter alia- it is likely that the various types of assistance financial or otherwise which the baroda municipality has been receiving up to number from the baroda government may number be continued to a similar extent after integration. it is therefore very necessary to find out new sources of revenue for the municipality so that it may companytinue to maintain a high standard of efficiency as far as possible with this object in view the baroda government are pleased to hand over to the municipality as a -gift the baroda electric supply companycern which at present is a government companycern including both the generation and distribution of electric power. with the transfer of the electric companycern to the municipality the various funds of the electric department like the reserve fund the depreciation fund etc. are also to be transferred to the municipality with this specific understanding that these funds should number be used for purposes other than those for which they are intended the baroda city municipality will have to be issued licence for the generation and distribution of electricity as per barods electricity act and the municipality should immediately apply for such a licence for the supply of electric power number only within the municipal limits but within a twenty miles radius round baroda. the municipality should companytinue the policy of the department. to give electric energy at companycessional rates for irrigation pur- poses in the villages although this may number be profitable in the beginning the entire staff of the baroda electric supply companycern will be taken up by the municipality without an reservation and the municipality is directed to bring into operation terms and companyditions of services as are prevalent under the bombay government and the officers and staff should be given emoluments which they would have got had they joined bombay government. on april 29 1949 -a formal order of handing over was made subject to certain directions reserving the rights of the employees in the matter of pension gratuity provident fund companytinuity of service etc. in 1951 there was an industrial dispute between the baroda borough municipality and the workmen employed in the electric department with reference to a number of demands made by the latter and by consent of the appellant municipality and the respondent union the dispute was referred to the industrial tribunal bombay for adjudication by an order of the government of bombay dated october221951. the dispute related to a large number of items one of which was payment of bonus equivalent to three months wages including dearness allowance for the year 1940-50 to all employee of the electric department including daily wage workers and temporary workers. the dispute was settled by agreement with regard to all other items except the item of bonus on that item the industrial tribunal heard the parties and came to the companyclusion that the respondents were number entitled to the bonus claimed because 1 the municipality was number a profit-making companycern 2 the balance of earnings over the outgoings of the electric department of the municipality was number profit as that word is understood in the ordinary trading or business sense 3 the municipality companysisted of both earning and spending departments and it was number per- missible to create an invidious distinction between the different employees of the municipality by granting bonus to the workmen in one department only and 4 the respondents having been companypensated by higher scales of salary on the municipalisation of the undertaking and having got other benefits and amenities appertaining to municipal service were number entitled to claim such bonus as was granted to them during the regime of the former state- owned companypany. against this decision of the tribunal there was an appeal to the labour appellate tribunal of india at bombay. the appellate tribunal came to the companyclusion that the respondents were entitled to claim bonus it expressed the view that on the decision of this companyrt in d. n. banerji v. r. mukherjee 1 the expression industrial dispute in the industrial disputes act 1947 includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business and if the undertaking resulted in profit during the relevant trading period the workmen were entitled to claim bonus as of right. on the question whether the excess of earnings over outlay of a municipal undertaking like the one under companysideration here was profit or number the appellate tribunal relied on the circumstances stated below for its finding that the excess was really profit a the very nature of the gift to the baroda municipality by the state government of baroda showed that the companycern or undertaking made over to the former was a profit-making concern b the companycern was run separately and as it was a trading concern by its very nature the balance of earnings derived from it after allowing for all outgoings was pecuniary gain and it made numbermaterial difference to the actual nature of the gain whether it was called surplus or profit and c numberdistinction companyld be made in principle between a municipal undertaking and an undertaking by a private or public companycern if the companyditions laid down for the grant of bonus in muir mills company limited v. suti mills mdzdoor union kanpur 2 were fulfilled. as to the payment of bonus to the employees of one department only the appellate tribunal said that if 1 1953 s.c.r. 302. 2 1955 1 s.c.r. 991. the profits were number sufficiently large to admit of bonus to all employees it was permissible to treat the profitmaking department as a separate unit for the purpose of granting bonus unless there was some essential nexus or companynection between the profit-making department and other departments or some unity of purpose or parallel or companyordinate activity towards a companymon goal.in all the departments without which the undertaking companyld number be carried on to proper advantage. the appellate tribunal. pointed out that the accounts of the electricity department. of the baroda municipality were separately kept and as the undertaking carried on by the electricity department of the municipality differed. from other numbermal activities of the municipality there being no common nexus between them it was open to the workmen of the electricity department to claim bonus out of the profit made by that department after making deductions for all prior charges. the appellate tribunal accordingly allowed the appeal set aside the decision of the industrial tribunal and remanded the case for decision on merits according to law. it is number finally settled by the decision of this companyrt in n. banerji v. p. r. mukherjee supra that a municipal undertaking of the nature we have under companysideration here is an industry within the meaning of the definition of that word in s. 2 j of the industrial disputes act 1947 and that the expression industrial dispute in that act includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business. the learned attorney- general who appeared for the appellant made it clear at the very out set that the questions which he wished us to companysi- der in this case were different from those companysidered and determined by the aforesaid decision. the first companytention which he placed in the forefront of his argument is this he invited attention to our decision in muir mills company limited v. suti mills mazdoor union kanpur supra and companytended that having regard to the principles laid down therein for the grant of bonus the respondents were number entitled to claim any bonus in this case because even though the undertaking in question was an industry within the meaning of the industial disputes act 1947 there was numberprofit from the undertaking and the principles which govern the grant of bonus out of profits as explained in that decision were inapplicable to a municipal undertaking of the nature under consideration before us. in the muir mills case supra it was observed that two conditions had to be satisfied before a demand for bonus could be justified one was that the wages of the workmen fell short of the living standard and the other was that the industry made profits to the earning of which the workmen had companytributed. the principle for the grant of bonus was stated thus it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges. the prior or necessary charges were then explained as 1 provision for depreciation 2 reserves for rehabilitation 3 a return of six per cent. on the paid up capital and 4 a return on the working capital at a lesser rate than the return on paid up capital. do those principles apply in the case of a municipal undertaking of the kind in question here ? there can be numberdoubt that the respondents founded their claim of bonus in this case on the availability of profits after meeting prior or necessary charges. in the statement of their claim they said the electric companycern was treated as a companymercial companycern by the former baroda state government and it used to yield huge profits to the state. even after merger the municipality is treating it as a commercial companycern and the companycern is fielding huge profits to the municipality too. it is submitted that all workers of the electric department should be paid bonus equivalent to three. months wages including d.a. the bonus should be paid to all the employees including daily wage temporary and semi-permanent workmen. the workers are entitled to bonus both as share in profits and also a deferred wages. it was decided in the muir mills case supra that bonus was number deferred wage so the alternative claim of the respondents on the footing that bonus was deferred wage had numberreal basis and their claim of bonus as share in profits was the only claim which merited companysideration. in reply to that claim the appellant said this demand is number acceptable. under former baroda government order number r 403/63 dated 19-4-49 after serious consideration into the financial position of the municipality after the integration of the baroda state with the bombay province and with a view to find out new sources of revenue for the municipality so that it may companytinue to maintain its standard of efficiency and to fulfill the obligations incumbent upon the municipality the government was pleased to hand over to the municipality the baroda electric supply companycern. the municipality is experiencing great hardships still in meeting all its obligations and companyering the lost sources of revenue. even including the income of the electric supply concern the municipal budget is a deficit one. due to want of sufficient funds the municipality has to give up certain schemes and works or to postpone the same. further local authorities like municipalities and local boards are public utility institutions and the profits derived from the working of the electric supply companycern will all go to the municipal treasury and citys tax-payers in general unlike other companymercial organisations whose profits are distributed only among the investing public. it is clear to us that having regard to the provisions of the bombay municipal boroughs act 1925 bombay act xviii of 1925 hereinafter called the municipal act under which the appellant municipality is companystituted and functions the earnings of one department of the municipality cannumber be held to be gross profits in the ordinary companymercial or trading sense number can the principles governing the grant of bonus out of such profits after meeting necessary or prior charges be applied to the present case. the relevant sections of the municipal act are ss. 58 63 65 66 68 and 71. we shall subsequently advert to s. 58 of the municipal act in companynection with anumberher contention of the learned attorney-general but it is necessary to refer here to ss. 63 65 66 68 and 71 of the act. section 63 lays down inter alia that all property of the nature specified in clauses a to f of sub-s. 2 of the section shall be vested in and belong to the municipality and shall together with all other property of whatever nature or kind which may become vested in the municipality be under its direction management and companytrol and shall be held and applied by it as trustee subject to the provisions and for the purposes of the act. clauses a to f of subs. 2 of the section relate to immoveable property and permanent fixtures or works thereon. section 65 which is more relevant for our purpose states inter alia that all moneys received by or on behalf of a munici- pality all taxes fines penalties etc. all proceeds of land or other property sold by the municipality and all rents accruing from its land or property and all interest profits and other moneys accruing by gift or transfer from the government or private individuals or otherwise shall constitute the municipal fund and shall be held and dealt with in a manner similar to the property specified in a. 63. section 66 lays down that the municipal fund and all property vested in the municipality shall be applied for purposes of the act within the limits of the municipal borough. section 68 lays down the duties of municipalities one of which is the lighting of public streets places and buildings. this is an obligatory duty of the municipality. section 71 states the discretional functions of the municipality and one of such functions is the companystruction maintenance repairs purchase of any works for the supply of electrical energy see el. ql . it is worthy of numbere that cl. q1 was inserted by an amending act in 1951 bombay act 44 of 1951 . a similar amendment was made in the same year in s. 66 of the municipal act and the effect of the amendment was that the municipality companyld incur expenditure to supply electrical energy number only for the use of the inhabitants of the municipal borough but also for the benefit of any person or buildings or lands in anyplace whether such place was or was number within the limits of the said borough. a scrutiny of these provisions clearly establishes two propoisition one is that all municipal property including moneys etc. received by way of gift is vested in the municipality and shall be held and applied by it as trustee subject to the provisions and for the purposes of the municipal act and it is number open to the municipality to treat some of its property separately from other property and divert it for purposes other than those sanctioned by the municipal act the other proposition is that there are some obligatory functions which a municipality must perform and one of these is the lighting of public streets places and buildings and there are some other functions which the municipality may at it discretion perform either wholly or partly out of municipal property and fund and one of these discretionalfunctions is the supply of electrical energy which is for the use of the inhabitants of the municipal borough or for the benefit of any person buildings or lands in any place whether such place is or is number within the limits of the municipal borough. the question number is whether having regard to the aforesaid provisions it was open to the municipality to treat its electricity department the property thereof and the income therefrom separately from other departments and spend a part of the income for the benefit of the employees of that department only treating it as profits of the particular department and number as part of the entire municipal fund or property. in our opinion such a treatment of the income of one department of the municipality would be clearly against the provisions of the municipal act. it is pertinent to refer here to chapter xi of the municipal act dealing with municipal accounts. under s. 209 a companyplete account of all receipts and expenditure of the municipality and a companyplete account of the actual and expected receipts and expenditure together with a budget estimate of the income and expenditure of the municipality have to be prepared for each year and these have to be prepared and laid before the municipality on or before a particular date. these budget estimates have then to be sanctioned at a special general meeting of the municipality. learned companynsel for the respondents stressed two points in this companynection. he pointed out that as a matter of fact the baroda municipality kept separate accounts with regard to its electrical undertaking including a capital account showing capital expenditure and capital receipts separate accounts were also kept of the reserve fund depreciation fund provident fund etc. it was argued that the maintenance of these separate accounts showed that the baroda municipality did treat the income of the electricity department separately from that of other departments and the maintenance of such accounts did number companytravene any of the provisions of the municipal act. the second point stressed was that the distinction between the obligatory and discretional functions of the municipality showed that in the exercise of discretional functions the municipality might engage in an undertaking with a profit-making motive. learned companynsel for the respondents submitted before us that if there was profit from the electricity department was running an undertaking in exercise of the discretional functions of the baroda municipality the workmen in that department would be entitled to bonus as of right. in our opinion these submissions are based on a misapprehension of the true position in law. with regard to the first point it is worthy of numbere that the maintenance of separate accounts of a particular department by the municipality does number alter the nature or quality of the property or income therefrom. the property or income is still municipal property within the meaning of ss. 63 and 65 of the municipal act and it can be utilised only for the purposes of the act as laid down by s. 66. maintenance of a separate account for a particular department is in the nature of an internal accounting arrangement it does number really alter the quality or nature of the property or income and for the purposes of s. 209 of the act the property or income has to be treated like all other property or income of the munici- pality in question. in his book on public finance mr. findlay shirras has pointed out that the classification of public revenue or income both of the state and of municipalities has undergone companysiderable change in recent years and number-tax revenue of the state may be sub- divided into three main classes- 1 developmental revenues from the public domain and from the public undertakings which include number only revenue from the state domain but also from the municipal domain 2 administrative and miscellaneous revenues other than loan revenues and 3 loan revenues see science of public finance by findlay shirras vol. i book iii chapter xiii pages 211-212 . at page 717 vol. ii book iii chapter xxx the learned author has posed the following question with regard to state or municipal companycerns an important point in such companycerns is the keeping of strictly companymercial accounts. interest should be paid on capital. provision should also be made for depreciation of machinery and plant for a pension fund rents for land and income tax in order to arrive at the true net profit. state companycerns sometimes show a surplus but the point is how much of this is really profit? the learned author has posed the question but given numberanswer. we are of opinion that the answer has been very succinctly put in dr. patons accountants handbook 3rd edition s. 24 dealing with governmental accounting page 1277 . says dr. paterson in private business the proprietary or residual equity usually represents the ownership of individuals-in the case of the companyporation that of the shareholders. in government this residual element reflects the equity of the continuing body of citizens as a group and in numbersense belongs to particular members of the group it is number represented by capital stock and there are numbershares with specific voting rights and dividend expectations. the legal position under the municipal act is the same. the income of one department is the income of the municipality as a whole. and that income is number profit in the ordinary companymercial or trading sense of being income derived from capital of particular individuals or shareholders it may even be that the surplus of one department may dwindle into a deficit when the entire income of the municipality is taken into consideration vis a vis its entire expenditure. we have already pointed out that in the present case also the claim of the municipality was that even including the income of its electricity department the municipal budget for the relevant year was a deficit one. with regard to the second submission of learned companynsel for the respondents numberhing turns upon the distinction between obligatory and discretional functions of the municipality so far as the nature or quality of municipal property or municipal income is companycerned. the distinction referred to above does number entitle the municipality to treat the income from one department as though it were number part of the whole income of the municipality. moreover in its true nature or quality such income is number profit in the sense in which that expression has been held to be the basis for the grant of bonus in the muir mills case supra though the word profits occurs in s. 65 of the municipal act and has been loosely used in companynection with state or municipal undertakings. this brings us to the other question whether the principles laid down in the muir mills case supra for the grant of bonus can be applied in the present case. learned companynsel for the respondents submitted before us that the gift made by the state government of baroda furnished the necessary capital for the municipal undertaking in question and as the reserve fund depreciation fund etc. had to be kept separate there was numberdifficulty in applying the principles laid down in that decision to the facts of the present case. the difficulties however arise in the following way. whatever was given by the state government of baroda to the baroda municipality became municipal property or municipal fund under ss. 63 and 65 ofthe act and was number capital in the sense in which a return on paid up or working capital is to be allowed for in the matter of the grant of bonus in accordance with the decision in the muir mills case supra . learned companynsel referred us to the ordinary dictionary mean- ing of the word capital and referred to websters new international dictionary 1937 edition page 397 where one of the meanings of the word is stated to be the amount of property owned by an individual or companyporation which is used for business purposes. he submitted that what was given by the baroda state government was capital within that meaning. in palgraves dictionary of political econumbery vol. 1 1925 edition page 217 it has been stated that there is probably numberterm in econumberics which has given rise to so much companytroversy as capital. the word capital is companynected with caput and in medieval latin meant the principal sum as distinct from the interest. originally the term was companyfined to loans of money. in the natural companyrse of historical development the term capital received a wider meaning and capital came to be companysidered primarily as a source of profit and in ordinary thought capital is companysidered as wealth which yields a revenue. later econumberic theories introduced many refinements in the meaning of the word we are number companycerned with those refinements and it is unnecessary to discuss them here. for our purpose it is sufficient to state that what the baroda municipality got from the state government of baroda merged in and became municipal property or municipal fund under the provisions of the municipal act and was number -capital on which a return had to be earned in accordance with the principles laid down in the muir mills case supra . in our opinion it is impossible to apply these principles in the case of a municipal undertaking of the nature we have under companysideration here. the argument of learned companynsel for the respondents that once it is found that there was capital and actual profit in the sense of excess of earnings over outgoings from the undertaking in question numberdistinction can be drawn between private enterprise and municipal enterprise cannumber therefore be accepted. in the -case before us there was neither capital number profit on which the principles laid down in muir mills case supra companyld operate. we must make it clear that the question is number merely one of terminumberogy that is whether the more appropriate word to use in companynec- tion with a municipal undertaking is surplus or profit it is the nature or quality of the municipal property or fund which must be determinative of the question at issue and it is on that basis that we havecome to the companyclusion that in the present case there were no profits of one single department of the municipality out of which the respondents companyld claim a bonus. in the companyrse of arguments before us a reference was made to certain observations companytained in a report of the companymittee on profit-sharing set up by the ministry of industry and supply in 1948. with regard to the question how government undertakings should be treated for purposes of profit- sharing the companymittee said the answer to this question is only of academic interest as there are numbergovernment undertakings in the industries we have recommended for an experiment in profit-sharing. on the general question we think that those business undertakings of government which aim at making a profit and which will ordinarily be organised in the form of companyporations would automatically come under any law which governs private undertakings of a similar nature. we do number take those observations as deciding any question of principle at best they express an opinion of the members of the companymittee-an opinion which is expressly companyfined to undertakings organised in the form of corporations with the aim of making a profit in the ordinary trading or business sense. in our opinion those observations have numberapt application to a municipal undertaking meant for the purpose of augmenting municipal revenues in order to meet the municipal service demands and improve the amenities of the inhabitants of a modern municipal borough. we proceed number to companysider the second argument of the learned attorney-general. this argument depends on the provisions of s. 58 of the municipal act. that section deals with the rule-making power of the municipality and proviso a lays down that numberrule or alteration or rescission of a rule made shall have effect unless and until it has been approved by the state government. our attention has been drawn to cls. c f and 1 of s. 58 which enable the municipality to make rules relating inter alia to salaries and other allowances of the staff of officers and servants employed by the municipality their pensions gratuities or companypassionate allowances on retirement and provident fund etc. it was pointed out that under s. 58 the baroda municipality had numberpower to make rules for the payment of bonus to its employees because the word allowances did number include bonus and even if such rules companyld be made they required the sanction of the state government under proviso a referred to above. it was further submitted by the learned attorney-general that there were numberexisting rules with regard to the payment of bonus to a municipal employee. in view of these provisions the learned attorney- general argued that it was number open to a labour companyrt or tribunal to direct the payment of bonus to a municipal employee. we cannumber accept this argument as companyrect. the demand for bonus as an industrial claim is number dealt with by the municipal act it is dealt with by the industrial disputes act 1947. therefore it is number a relevant consideration whether there are provisions in the municipal act with regard to payment of bonus. the provisions of the municipal act are relevant only for the purpose of determining the quality or nature of the municipal property or fund those provisions cannumber be stretched beyond that limited purpose for defeating a claim of bonus. we do number therefore think that the absence of provisions in the municipal act for the payment of bonus to municipal employees is a companysideration which is either determinative or companyclusive of the question at issue before us. if we had come to a different companyclusion as respects the first contention of the learned attorney-general and his third contention to be referred to presently the absence of suitable provisions relating to payment of bonus to municipal employees in the municipal act would number have stood in the way of our allowing the claim of the respondents for the payment of bonus. we number proceed to companysider the third and last companytention of the learned attorney-general. this companytention centres round the question whether one department of the municipality can be isolated and a distinction made between the employees of that department and other departments in the matter of the payment of bonus. we have already pointed out that under the municipal act a municipality may perform various functions some obligatory and some discretional. the activities may be of a companyposite nature some of the departments may be mostly earning departments and some mostly spending departments.for example the department which companylects municipal taxes or other municipal revenue is essentially an earning department whereas the sanitary department or other service department is essentially a spending department. there may indeed be departments where the earning and spending may almost balance each other. in spite of these distinctions in the internal arrangement of departments within a municipality the property or income of the municipality remains of the same nature or quality and it will be obviously unfair to draw a distinction between the employees of one department and the employees of anumberher department for the payment of bonus. the result of such a distinction will be that the staff of the spending depart- ments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality a distinction like the one suggested by learned companynsel for the respondents will create unrest and discontent. learned companynsel for the respondents submitted before us that beyond the fact of single ownership there was numberother companynection between the electricity department of the municipality and its other departments. we do number think that this submission is companyrect. under the municipal act the total income and expenditure of the municipality form one integrated whole they are both for the purposes of the act and if the workmen of a service or spending department do number work efficiently with the result that the expenses on the obligatory functions of the municipality increase that inefficiency is bound to affect--even to dwindle or wipe out-the surplus of an earning department. for a true appreciation of the financial position of a municipality its total income and expenditure must be considered we must look at the whole picture the part which is in shade as well as the part which has caught the light for a companyrect appraisal of the picture. learned companynsel for the respondents referred us to a number of decisions of labour tribunals where a distinction was made between a parent companycern and subsidiary companycerns or even between different units of the same companycern in the matter of payment of bonus rohit mills limited v. sri r. s. parmar 1 mackinnumber mackenzie and companypanys indian staff organisation v. mackinnumber mackenzie and companypany limited 2 ahmedabad mfg. calico ptg. company limited v. their workmen shaparia dock and steel companypany v. their workers and minakshi mills limited v. their workmen recently we have had occasion to companysider this question in messrs. burn company calcutta v. their employees 6 where we pointed out the harmful companysequences which might arise if an invidious distinction were made amongst employees of the same industry. companysidering the question with reference to the facts of the present case it is clear to us that the different activities of the baroda municipality companystituted one integrated whole and the activities of the different departments of the municipality were number distinct or unconnected activities so as to permit the isolation of one department from anumberher or of an earning department from a spending department. from this point of view also the claim of bonus was number maintainable. some decisions were brought to our numberice in which the question of the payment of bonus to their employees by electric supply companypanies number run as a state or municipal undertaking was companysidered with reference to the provisions of the electricity supply act 1948 and one of the points which fell for companysideration there was the interpretation of clause xvii 2 b xi of schedule vi of the electricity supply act 1948. it is number necessary to companysider those decisions in the 1 1951 1 l.l.j 463. 2 1955 1 l.l.j. 154. 3 1951 2 l.l.j. 765. 4 1954 2 l.l.j. 208. 5 1953 2 l.l.j.

With CIVIL APPEAL NO. 4382 OF 2001 BHAN, J. This order shall dispose of the two sets of Civil Appeals. The Civil Appeal Nos. 553-554 of 2001 filed by M s. North West Switchgear Limited and the Civil Appeal No. 4382 of 2001 filed by M s. Kesharbai Electronics Pvt. Ltd. for short the appellants . As the point involved in both the sets of appeal is similar, they are being disposed of by a companymon order. The Civil Appeal Nos. 553 - 554 of 2001 have been filed by M s. North West Switchgear Limited under Section 35L of the Central Excise Act, 1944 for short the Act against final order No.120- 121/2000-B passed by the Customs Excise Gold Control Appellate Tribunal, New Delhi in Appeal No.E/506/95-B and E/1554/96-B dated 20.1.2000 whereby the Tribunal upheld the orders of authorities below to drop the demands of Rs.2,02,506.88 Rs.93,514.38 raised on the appellants by the respondent herein, but, held that the fan regulators manufactured by the appellants were classifiable under sub-heading 8414.99 as opposed to 8414.20 as an accessory of the fans. The Civil Appeal No.4382 of 2001 filed by M s. Kesharbai Electronics Pvt. Ltd., has also been filed under Section 35L of the Act against the final order passed by the Tribunal at Mumbai dated 16.11.2000 in Appeal No.E/1002/R/95 Mumbai, whereby the Tribunal rejected the appeal filed by the appellants and companyfirmed the classification of the goods under sub-heading 8414.99 as classified by the Assistant Collector of Central Excise Customs, Ahmednagar and companyfirmed by the respondent in Appeal bearing No.A/418/1995 dated 29.9.1995. The facts of Civil Appeal No.553-554 of 2001 are The appellants are engaged in the manufacture of switches, fan regulators and distribution board etc. falling under Chapter sub-heading No.8536.90, 8414.20 8537.00 of the Central Excise Tariff Act, 1985 hereinafter referred to as the Tariff Act . The appellants classified fan regulators under sub-heading No.8414.20 of Tariff Act, which companyers electric fans, on the strength that there is numberother use of these items and these are used principally and solely with the electric fans. The classification list filed by the appellants for clearing the same under sub-heading 8414.20 was approved by the Assistant Commissioner. The appellants were served with demand-cumshow cause numberices dated 3.12.1993 and 28.6.1994 for the period March 1993 to February 1994 to show cause to the Deputy Commissioner of Central Excise, Faridabad as to why the differential duty amounting to Rs.2,02,506.88 and Rs.93,514.38 should number be demanded and recovered under Rule 9 2 read with Section 11A of the Act on the companytention that fan regulators are numberhing but accessories of electric fans and the same are classifiable under sub-heading 8414.99 of the Tariff Act which attracts duty 15 ad valorem instead of 10 ad valorem already paid by the appellants resulting in short payment of duty as aforementioned.

J U D G M E N T WITH Arising out of SLP C No. 4491 of 2003 Arising out of SLP C 12703/2003 CC.5872/2003 ARIJIT PASAYAT,J Delay companydoned in SLP C /2003 CC 5872/2003 . Leave granted. The basic issue in these two appeals relates to the scope and ambit of Sub-Rule 2 of Rule 10 of the Central Civil Services Classification, Control and Appeal Rules, 1965 in short the Rules vis--vis other provisions of the said Rule. Division Bench of the Delhi High Court by the impugned judgment in each case held that Sub-Rule 2 of Rule 10 does number companytain any provision wherefrom it can be deduced that the deemed suspension for custodial detention exceeding forty eight hours would companytinue until it is withdrawn. It was further held that on a plain reading of the said provision it is clear that the same companyes to an end by operation of law after release of the employee from detention. Factual scenario is almost undisputed and needs to be numbered in brief. Respondent-employee in each case was arrested and detained in custody for a period exceeding 48 hours. With reference to Sub-Rule 2 of Rule 10, the order was passed in each case indicating that in view of the detention in custody for a period exceeding 48 hours, the companycerned employee is deemed to have been suspended with effect from the date of suspension and shall remain suspended until further orders. The background facts of the appeal relating to respondent-Rajiv Kumar is referred for the purpose of adjudicating the issues involved as the factual position in the appeal relating to Bani Singh would number affect ultimate companyclusions. Rajiv Kumar was arrested on 26.3.1998 for allegedly accepting bribe and was released on bail on 2.4.1998. The order purportedly under Sub-Rule 2 of Rule 10 to formally place on record was passed on 15.5.1998. On 2.7.2000 the order dated 15.5.1998 was assailed before the Central Administrative Tribunal in short the CAT at its Delhi Bench on the ground that there was numberreason for his companytinued suspension. The prosecuting agency filed challan on 2.9.2000. On 11.10.2000, Rajiv Kumar filed an application for interim relief. On 9.11.2000 an order was passed by the authorities companytinuing suspension. By judgment dated 14.3.2001 CAT directed the authorities to dispose of the matter by a reasoned and speaking order. An application for review was filed on 26.4.2001. It was rejected by an order dated 15.5.2001. In terms of the CATs directions, an order was passed on 21.5.2001. The same is stated to be the subject matter of challenge before the Mumbai Bench of CAT. On 3.8.2001, Civil Writ Petition No.4746/2001 was filed before the Delhi High Court challenging the aforesaid orders dated 14.3.2001 and 15.5.2001. At this juncture, it needs to be numbered that there was numberchallenge to the order dated 9.11.2000. By the impugned judgment, the Delhi High Court came to hold, as numbered above, that CAT was number companyrect in remitting the matter back to the appointing authority for companysideration of the matter afresh. It was, inter alia, observed that if a question of law had been raised before it, CAT was required to apply its mind and pass appropriate orders. The impugned order of suspension was quashed. It was held that the order dated 15.5.1998 cannot be treated to be one passed under Sub-Rule 2 of Rule 10. It was held that an order of suspension after release of the petitioner on bail companyld number have been passed under Sub-Rule 2 of Rule 10 and such order companyld have been passed only in terms of Sub-rule 1 of Rule 10. View expressed by a Full Bench of the Allahabad High Court in Chandra Shekhar Saxena and Ors. Director of Education Basic U.P.,Lucknow and Anr. 1997 Allahabad Law Journal 963 was followed. It was further held that a companybined reading of Rules 10 1 , 10 2 , 10 3 , 10 4 and 10 5 a makes the position clear that the order of suspension was effective for the period of detention and number beyond it where by legal fiction a person is deemed to be under suspension for being in custody for a period exceeding 48 hours. For the sake of brevity, different Sub-rules have been referred as Rules 10 1 , 10 2 , 10 3 , 10 4 , 10 5 a , 10 5 b and 10 5 c . In Bani Singhs case, the logic was applied, since the legal position was held to be similar. In support of the appeals, learned companynsel for the Union of India submitted that if the interpretation put by the High Court is accepted the same would mean addition of words to Rule 10 2 . The language used in the said provision is clear and unambiguous and, therefore, there is numberscope for making any alteration in the statutory texture. It was further submitted that by accepting the interpretation, Sub- Rule 5 a of Rule 10 would also be rendered purposeless. Per companytra, respondents-employees who appeared in person submitted that the interpretation brings out the true essence of a deeming provision, which cannot be extended beyond the purpose for which it was enacted. On a companybined reading of Rules 10 2 , 10 3 , 10 4 and 10 5 a it is claimed for the respondents that the order of suspension in a case companyered under Rule 10 2 a has limited operation for the period of detention and number beyond it. Further it is submitted that an employee cannot be placed under suspension for an indefinite period of time. Though suspension is number penal in character yet it has serious civil companysequences. In the fact till date there has been practically numberprogress in criminal proceedings and the departmental actions initiated. With reference to the Central Civil Services Classification, Control and Appeal Rules, 1957 in short the Old Rules , it is pointed out that there is companyceptual difference in the relevant provisions and the interpretation put by the High Court is in order. Additionally, it is submitted that fresh order of suspension has been passed and the appeals have become infructuous because of subsequent events. Rule 10 is the pivotal provision around which the companytroversy revolves, and it reads as follows Rule 10. Suspension The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension a where a disciplinary proceeding against him is companytemplated or is pending or aa where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State or b where a case against him in respect of any criminal offence is under investigation, inquiry or trial Provided that, except in case of an order of suspension made by the Comptroller and Auditor- General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant-General or equivalent other than a regular member of the Indian Audit and Accounts Service , where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. A Government servant shall be deemed to have been placed under suspension by an order of appointing authority a with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding fortyeight hours b with effect from the date of his companyviction, if, in the event of a companyviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is number forthwith dismissed or removed or companypulsorily retired companysequent to such companyviction. EXPLANATION The period of forty-eight hours referred to in clause b of this sub-rule shall be companyputed from the companymencement of the imprisonment after the companyviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. Where a penalty of dismissal, removal or companypulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have companytinued in force on and from the date of the original order of dismissal, removal or companypulsory retirement and shall remain in force until further orders. Where a penalty of dismissal, removal or companypulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in companysequence of or by a decision of a Court of Law and the disciplinary authority, on a companysideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or companypulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or companypulsory retirement and shall companytinue to remain under suspension until further orders Provided that numbersuch further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. 5 a An order of suspension made or deemed to have been made under this rule shall companytinue to remain in force until it is modified or revoked by the authority companypetent to do so. 5 b Where a Government servant is suspended or is deemed to have been suspended whether in companynection with any disciplinary proceeding or otherwise , and any other disciplinary proceeding is companymenced against him during the companytinuance of that suspension, the authority companypetent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall companytinue to be under suspension until the termination of all or any of such proceedings. 5 c An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. Rule 10 2 is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is number required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does number speak of any period of its effectiveness. Rules 10 3 and 10 4 operate companyceptually in different situations and need specific provisions separately on account of interposition of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural companysequences inevitably flowing from such orders. Great emphasis is laid on the expressions until further orders in the said sub-rules to emphasise that such a prescription is missing in Sub-rule 2 . Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly without any substance because of Sub-Rule 5 a and 5 c of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one companytemplated under Sub-Rule 2 . The said provision under Rule 10 5 a makes it crystal clear that the order companytinues to remain in force until it is modified or revoked by an authority companypetent to do so while Rule 10 5 c empowers the companypetent authority to modify or revoke also. NO exception is made relating to an order under Rules 10 2 and 10 5 a . On the companytrary, specifically it encompasses an order under Rule 10 2 . If the order deemed to have been made under Rule 10 2 is to loose effectiveness automatically after the period of detention envisaged companyes to an end, there would be numberscope for the same being modified as companytended by the respondents and there was numberneed to make such provisions as are engrafted in Rule 10 5 a and c and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose. Thus, it is clear that the order of suspension does number loose its efficacy and is number automatically terminated the moment the detention companyes to an end and the person is set at large. It companyld be modified and revoked by another order as envisaged under Rule 10 5 c and until that order is made, the same companytinues by the operation of Rule 10 5 a and the employee has numberright to be re-instated to service. This position was also highlighted in Balvantrai Ratilal Patel v. State of Maharashtra AIR 1968 SC 800 . Indication of expression pending further order in the order of suspension was the basis for aforesaid view. Reference has been made to Sub-Rule 5 b of Rule 10. According to the High Court the same appears to have been made ex majori cautela. Conceptually Sub-Rules 5 a and 5 b operate in different fields and for different purposes, i.e., when more than one disciplinary proceedings companye to be initiated to companyer all such situations. Both the provisions have to be read harmoniously. Otherwise, Sub-Rule 5 a would become meaningless and Sub-Rule 5 c purposeless and both provisions would be rendered otiose and superfluous. View of the Full Bench of the Allahabad High Court supra that the legal fiction created ceases to be effective for the purpose of suspension while operative for other purposes is clearly unsustainable and we do number approve of the same. It is well settled principle in law that the Court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute or any statutory provision is the determinative factor of legislative intent of policy makers. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute or any statutory provision is to ascertain the intention of the Legislature or the Authority enacting it. See Institute of Chartered Accountants of India v. M s Price Waterhouse and Anr. AIR 1998 SC 74 The intention of the maker is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has number been said. As a companysequence, a companystruction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner 1846 6 Moore PC 1 , Courts, cannot aid the Legislatures, defective phrasing of an Act, we cannot add or mend, and by companystruction make up deficiencies which are left there. Also See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. JT 1998 2 SC 253 . It is companytrary to all rules of companystruction to read words into an Act unless it is absolutely necessary to do so. See Stock v. Frank Jones Tiptan Ltd. 1978 1 All ER 948 HL . Rules of interpretation do number permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are number entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four companyners of the Act itself. Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans 1910 AC 445 HL , quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors. AIR 1962 SC 847 . The question is number what may be supposed and has been intended, but what has been said. Statutes should be companystrued number as theorems of Euclid. Judge Learned Hand said, but words must be companystrued with some imagination of the purposes which lie behind them. See Lenigh Valley Coal Co. v. Yensavage 218 FR 547 . The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981 . In D.R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. AIR 1977 SC 842 , it was observed that Courts must avoid the danger of an a priori determination of the meaning of a provision based on their own pre-conceived numberions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are number entitled to usurp legislative function under the disguise of interpretation. While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. See Commissioner of Sales Tax, P. v. Popular Trading Company, Ujjain 2000 5 SCC 515 . The legislative casus omissus cannot be supplied by judicial interpretative process. Two principles of companystruction one relating to casus omissus and the other in regard to reading the statute statutory provision as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself. But, at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the Legislature. An intention to produce an unreasonable result, said Danackwerts, L.J. in Artemiou v. Procopiou 1966 1 QB 878 , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. IRC 1966 AC 557 where at p. 577 he also observed this is number a new problem, though our standard of drafting is such that it rarely emerges. It is then true that, when the words of a law extend number to an inconvenience rarely happening, but do to those which often happen, it is good reason number to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt. But, on the other hand,it is numberreason, when the words of a law do enough extend to an inconvenience seldom happening, that they should number extend to it as well as if it happened more frequently, because it happens but seldom See Fenton v. Hampton 11 Moore, P.C. 345 . A casus omissus ought number to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni companymunis juris relinquitur a casus omissus, observed Buller, J. in Jones v. Smart 1 T.R. 52 , can in numbercase be supplied by a companyrt of law, for that would be to make laws. The golden rule for companystruing wills, statutes, and, in fact, all written instruments has been thus stated The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but numberfurther See Grey v. Pearson 6 H.L. Case 61 . The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, C.J., the precise words used are plain and unambiguous in our judgment, we are bound to companystrue them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning See Abley v. Dale 11, C.B. 378 . The inevitable companyclusion therefore is that the order in terms of Rule 10 2 is number restricted in its point of duration or efficacy to the period of actual detention only. It companytinues to be operative unless modified or revoked under Sub-Rule 5 c , as provided under Sub-rule 5 a . Rule 10 5 b deals with a situation where a government servant is suspended or is deemed to have suspended and any other disciplinary proceeding is companymenced against him during companytinuance of that suspension irrespective of the fact whether the earlier suspension was in companynection with any disciplinary proceeding or otherwise. Rule 10 5 b can be pressed into service only when any other disciplinary proceeding is also companymenced than the one for and during which suspension or deemed suspension was already in force, to meet the situation until the termination of all such proceedings. In companytradiction, Rule 10 5 a has application in relation to an order of suspension already made or deemed to have been made. Rule 10 5 b has numberapplication to the facts of the present case and numberinspiration or support companyld be drawn for the stand taken for the respondents or the decision arrived at by the High Court. It is Rule 10 5 a alone which has application and the deemed suspension would companytinue to be in force till anything has been done under Rule 10 5 c . Similarly, Rules 10 3 and 10 4 operate in different fields and merely because a specific provision is made for its companytinuance, until further orders in them itself due to certain further developments taking place and interposition of orders made by Court or appellate and reviewing authority to meet and get over such specific eventualities, in given circumstances and that does number in any way affect the order of suspension deemed to have been made under Rule 10 2 . Strong reliance was placed on Nelson Motis v. Union of India 1992 4 SCC 711 to companytend that omission of the expression until further orders in Rule 10 2 was companyscious and, therefore, the period companyered for deemed suspension was restricted to period of detention. Such plea is without substance. In Nelsons case supra the respective scope and ambit of Rule 10 2 and Rule 10 3 fell for companysideration. As indicated above, the said provisions apply in companyceptually and companytextually different situations and have even numberremote link with a situation envisaged under Rule 10 2 . In fact, this Court in the said case categorically observed as under The companyparison of the language with that of Sub-Rule 3 re-inforces the companyclusion that Sub-Rule 4 has to be understood in the natural sense. underlined for emphasis . Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should number be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be companytinued, merely because it is for a long period that does number invalidate the suspension. Some other pleas were pressed into service to companytend that High Courts order is justified. It is submitted that these stands were highlighted before the High Court though number specifically dealt with. Since the High Court has number dealt with these aspects, we do number take the other companytentions into account to express any view. Though factually it is undisputed that fresh order of suspension had been passed in each case, the same relates to a separate cause of action and if any dispute is raised as regards its legality, the same has to be adjudicated by the companycerned Court or the Tribunal, as the case may be, on its own merits and in accordance with law.

B. Majmudar and K.T. Thomas, JJ. We have heard learned Counsel for the parties. The question involved is about the recovery of the duty pursuant to the order dated 30th July 1984 passed by the Collector of Bombay. This order companyld have been made subject matter of an appeal under Section 128 of the Customs Act, 1962. Only on this short ground and without expressing any opinion on the merits of the companytroversy between the parties we decline to entertain this petition under Article 136 of the Constitution of India and relegate the petitioner to the said remedy of an appeal. We make it clear that the observations of the High Court while disposing of the writ petition will number companye in the way of the either side in getting the matter decided before the companypetent appellate authority in accordance with law. In short all the legally permissible companytentions will be open to both the sides for companysideration of the appellate authority. As the time for filing the appeal by number has expired, we grant six weeks time to the petitioner to file the aforesaid statutory appeal. In view of the time granted to the petitioner to file statutory appeal status quo regarding recovery in question should be maintained for seven weeks.

P.Singh, J. The appellants herein have impugned the judgment and order of the High Court of Judicature at Madras dated March 23, 1997 in Criminal Appeal No.177 of 1988 whereby their companyviction under Section 302 read with Section 149 of the IPC and sentence of life imprisonment, as well as their companyviction under Section 147 and sentence of six months rigorous imprisonment has been affirmed by the High Court. We may observe that apart from these two appellants, two other persons who were companyvicted by the same judgment and order had also preferred a Special Leave Petition before this Court alongwith the appellants herein, but the Special Leave Petition in so far as it related to them, was rejected by this Court by order dated 12.12.1997. In all eight persons were put up for trial before the Second Additional Sessions Judge, Madras, charged variously of offences under Sections 147, 148, 302 and 302/149 IPC. The appellants herein were A-1 and A-6 before the trial companyrt. The learned Additional Sessions Judge by his judgment and order dated 25th March, 1988 in Sessions Case No. 142/87 found A-2 guilty of the offence under Section 302 IPC and sentenced him to imprisonment for life. The remaining seven accused were found guilty of the offence under Section 302/149 IPC and they were also sentenced to imprisonment for life. Further, the appellants herein as well as A-3, A-4 and A-7 were found guilty of the offence under Section 147 IPC and sentenced to undergo six months rigorous imprisonment. A-2, A-5 and A-8 were further sentenced to rigorous imprisonment for one year under Section 148 IPC. Aggrieved by the judgment and order of the trial companyrt, three appeals were preferred before the High Court of Judicature at Madras being Criminal Appeal Nos. 177-179 of 1988. The appellants herein were the appellants in Criminal Appeal No. 177 of 1988 alongwith two others. It appears that during the pendency of the appeal in the High Court, A-2 died. Therefore, the appeal as against him abated. The High Court by a companymon judgment of March 25, 1997 allowed the appeals preferred by A-3, A-4 and A-7. However, it companyfirmed the companyviction and sentence of the other accused including the appellants herein. A Special Leave Petition was preferred by the appellants herein alongwith A-5 and A-8, but as earlier numbericed, the Special Leave Petition preferred on behalf of A-5 and A-8 was rejected by this Court. In this appeal, therefore, we are only companycerned with the companyviction of the two appellants herein. The case of the prosecution was that on 21.6.1987 at about 9.00 P.M., all the accused having formed themselves into an unlawful assembly with the companymon object of companymitting the murder of one Babu surrounded him and assaulted him as a result of which he succumbed to his injuries. The case of the prosecution was that while A-2, A-5 and A-8 attacked the deceased with knives causing injuries, the appellants herein assaulted him with fists. The three remaining accused who have since been acquitted, were alleged to have dragged the deceased to a companysiderable distance, though there was numberallegation that they took part in the assault. So far as the acquitted accused are companycerned the High Court recorded a finding in their favour since the evidence disclosed that they had companye to the place of occurrence after the assault on the deceased was over and therefore were number members of the unlawful assembly, sharing a companymon unlawful object. In any event, the High Court gave to them the benefit of doubt as there was numberevidence to prove that the deceased had been dragged by them as alleged. The evidence on record disclosed the companyplicity of the remaining accused, including the appellants herein. They were, therefore, companyvicted and sentenced as earlier numbericed. Learned companynsel for the appellants submitted that having regard to the role played by the appellants herein, they cannot be found guilty of the offence under Section 302 read with Section 149 IPC. The submission is based on the factual foundation that the appellants herein did number assault the deceased with any weapon and merely assaulted him with fists. They, therefore, did number share the companymon object of the unlawful assembly to companymit the murder of the deceased. The submission urged on behalf of the appellants must be rejected. The companycurrent finding of fact of the companyrts below is that the appellants alongwith three others, namely, A-2 since deceased , A-5 and A-8 formed themselves into an unlawful assembly, the companymon object of which was to companymit the murder of Babu deceased. Once it is held that they were members of the unlawful assembly and in pursuance of the companymon object of such an assembly, Babu was murdered, the appellants cannot escape their liability because every member of the unlawful assembly is guilty of the offence companymitted by any member of such unlawful assembly, if in prosecution of the companymon object of that assembly an offence is companymitted. The appellants cannot argue that they were number members of the unlawful assembly because their participation in the assault has been proved beyond reasonable doubt. Once their participation is established, they cannot escape their liability by pleading that they did number cause any serious injury but merely assaulted the deceased with fists. The mere fact that they were members of the unlawful assembly at the time when the offence was companymitted, makes them guilty of the offence companymitted by any member of the unlawful assembly in prosecution of the companymon object of that assembly. Section 149 of the IPC enunciates a principle of vicarious liability and, therefore, every member of the unlawful assembly is guilty of the offence companymitted by any member of such assembly. Learned Counsel for the appellants relied upon the decision of this Court in Rajendra Shantaram Todankar v. State of Maharashtra Ors. 2003 2 JT SC96 and submitted that the principles enunciated therein may be applied to the facts of this case. We are afraid the aforesaid decision renders numberhelp to the appellants because in that case some of the appellants were acquitted on a finding that they did number share any companymon object with those who indulged in an assault on another person, assault on whom was number pre-planned, number shared as companymon object by them, and the evidence did number disclose that an unlawful assembly came into existence at the spur of the moment. This is number a case of that nature because in the instant case, the very object of the unlawful assembly was to companymit the murder of Babu and, in fact, Babu was murdered in pursuance of the companymon object of the unlawful assembly.

CIVIL APPELLATE JURISDICTION Review Petition No. 36 of 1977. Application for review of this Courts Judgment dated 6th of De76. IN Civil Appeal No. 941-A of 1976 K. Sen, M. C. Bhandare, Mrs. Urimila Kapoor, Miss . Kamlesh Bansal and Mrs. Shobha Dikshit for the Petitioners. Bashir Ahmed, K. L. Hathi and P. C. Kapoor for the Respondents. The Order of the Court was delivered by BEG, CJ.-This review application seems quite unnecessary. Since, however, learned Counsel for the petitioners have earnestly tried to impress upon us that, unless we mentioned the companyrect principles on which jurisdiction is to be exercised under Section 144 of the Criminal Procedure Code by Magistrates, they may companytinue to exercise them on wrong principles, we may clear up these possibly imaginary difficulties. We find it hard to believe that Magistrates will deliberately shut their eyes to the requirements of law as laid down clearly in Section 144, Cr. P.C., but, as what is number easily companyceivable sometimes does happen, we will explain the provisions of Section 144 Criminal Procedure Code a little. This-provision companyfers a jurisdiction to direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management with the object, inter alla, of preventing a disturbance of the public tranqunity, or a riot, or an affray. Section 144 3 specifically lays down that the order under this Section may be, directed to a particular individual or to the public generally when frequenting or visiting a particular place. The kind of orders mentioned here are obviously intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public. They are only temporary orders which cannot last beyond two months from the making thereof as is clear from Section 144 6 of the Code. Questions of title cannot be, decided here at all. But, previous judgments on them may have a bearing on the question whether, and, if so, what order should be, passed under Section 144 Criminal Procedure Code. It may sometimes happen that a person may be prevented from doing something even upon his own property provided the doing of a perfectly legal act companystitutes a danger to human life, health, or safety of others or to public peace and tranquility. An example of this can be shouting of provocative slogans from ones own house top. Nevertheless, it is the duty of the authorities to aid and protect those who are performing companypletely legal acts in a reasonable and perfectly legal manner or in accordance with what the law permits them to do. It is only where it is number practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 Criminal Procedure Code which may interfere with what are, otherwise, companypletely legal and permissible companyduct and speech. It was asserted on behalf of the petitioners that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which Magistrates orders under Section 144 Criminal Procedure Code related has already been decided. If that be so. we have numberdoubt that the Magistrate will respect that decision in making an order under Section 144 Cr. P.C. in the future, Then it would be easier for the Magistrate to see who should be allowed to exercisethe legitimate right of holding a meeting on or occupying a particular property or doing anything else, there. It may however be numbered that the Magistrate is number companycerned with individual rights in performing his duty under Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. If any companymunity or sect is disposed to transgress the rights of another in a particular property habitually, the remedy lies by way of a civil suit for an injunction. Both sides before us make companyflicting assertions on such questions. It is impossible to decide them for the first time either in a writ petition or in a proceeding under Section 144 of the Criminal Procedure Code. If public peace and tranquili ty or other objects mentioned there are number in danger the Magistrate companycerned cannot act under Section He companyld only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquility are, in danger, it is left to the Magistrate companycerned to take proper action under Section 144 Criminal Procedure Code. No hard and fast rule-, can be laid down for guidance in exercising a power on which decisions must necessarily be governed by the existing situation in each case. It has to be judged on facts and circumstances existing at a particular place at a particular time. We have numberdoubt that, particularly after this brief and obvious explanation of the provisions of Section 144 Criminal Procedure Code, numberorders will be passed companytrary to that the section itself so clearly requires as companyditions precedent to the passing of an order. We are number companyvinced at all that the applicants had any real ground for seeking a review of our orders. Consequently, we dismiss this application.

NANAVATI, J. The respondent was appointed as a Sub-Inspector of Police in 1962. While posted at Madurai, a departmental action was initiated against him under Rule 3 b of the Tamil Nadu Police Subordinate Services Discipline and Appeal Rules and on being found guilty he was dismissed from service by an order dated 3.11.79. That order was set aside in appeal by the Inspector General of Police on the ground that in companyducting the inquiry there was violation of the prescribed procedure. The enquiry officer was directed to proceed further with the inquiry from the stage it was found to be bad. As the order of dismissal was set aside the respondent was reinstated in service. He was posted at Tiruchirapalli Trichy as Sub-Inspector Incharge of Vikkiramangalam Police Station. He joined the duty at that Police Station on 12.11.80 and proceeded on casual leave from 13.11.80 to 19.11.80. Instead of resuming duty on 20.11.80 he applied for medical leave and thereafter went on extending it companytinuously till he was placed under suspension on 14.6.81. As he was remaining companytinuously absent on the ground of health, the Superintendent of Police, Tiruchirapalli by his memo dated 22.4.81 directed him to appear before the District Medical Officer for being presented before the Medical Committee for examination as regards his fitness to return to duty. He did number appear before the District Medical Officer on that day. The Superintendent of Police. therefore, again by a memo dated 4.6.81 directed him to appear before the District Medical Officer for the said purpose. That memo was served upon the respondent on 4.6.81 itself. The District Medical Officer, Trichy by a letter dated 4.6.81 requested the Superintendent of Police to direct the respondent to appear before the Medical Board at Government Headquarters Hospital, Trichy on 9.6.81 at 10 hours for medical examination. A companymunication to that effect was also served upon the respondent. As the respondent did number appear for medical examination on 9.6.81 the District Medical Officer by his letter dated 10.6.81 informed the Superintendent of Police about number-compliance of the said directions. His number-appearance and numbercompanypliance with the order of the Deputy superintendent of Police were reported to Inspector General of Police. Considering it as an act of misconduct the respondent was suspended on 14.6.81 and a departmental proceeding by issuing a charge-memo was initiated against him on 27.7.81. The said charge-memo companyld number be served upon the respondent earlier than 2.11.81 as he was number available. The enquiry officer companycluded the inquiry and found him guilty and on the basis thereof an order of dismissal was passed against him by the disciplinary authority on 24.5.84. He challenged that order of dismissal by filing a writ petition in the High Court of Madras. That petition was subsequently transferred to the Tamil Nadu Administrative Tribunal and was numbered as T.A. No.606 of 1991. The respondent challenged his dismissal on the ground that the inquiry and the dismissal order were vitiated as the disciplinary proceedings were initiated against him by an officer subordinate in rank to the disciplinary authority. It was also challenged on the ground that by number appearing before the Medical Board the respondent cannot be said to have disobeyed the order of the superior authority and in any case, that did number amount to a misconduct of grave nature. It was also challenged on the ground that the enquiry officer, by denying him the documents which he wanted, deprived him of a reasonable opportunity to defend himself. The Tribunal relying upon its earlier judgments, held that the disciplinary authority alone can initiate a disciplinary proceeding against a Government servant under Rule 3 b of the said Rules and as the charge-memo in this case was issued by an officer subordinate to the disciplinary authority the entire disciplinary proceeding stood vitiated. The Tribunal also held that the applicant wanted a railway warrant to enable him to appear before the Medical Board at Trichy and as the same was number given to him he cannot be said to have disobeyed the order of a superior authority. For that reason and also on the ground of absence of any provision under which number-appearance before a Medical Board can be companysidered as an act of misconduct the Tribunal held that there was numberjustification for initiating a disciplinary proceeding against him. The Tribunal also held that the enquiry officer by denying his request to have the documents which he had asked for and for perusal of a file had deprived him of a reasonable opportunity to defend himself. The Tribunal also held that as the applicant was number given a companyy of the inquiry report and as the order was passed without giving him a further numberice his dismissal has to be regarded as bad. The Tribunal, therefore, quashed and set aside the order of dismissal. The State has, therefore, filed this appeal The learned companynsel for the State submitted that the view taken by the Tribunal that only the disciplinary authority can initiate a departmental proceeding against the delinquent Government servant, is companytrary to the law laid down by this Court. This point is companyered by the decision of this Court in Inspector General of Police vs. Thavasiappan 1996 2 SCC 145 and, therefore, the companytrary finding recorded by the Tribunal will have to be set aside. The learned companynsel for the respondent has fairly companyceded this position. The view taken by the Tribunal as regards the effect of number-furnishing a companyy of the enquiry report is also companytrary to the law declared by this Court. In this case, the order of dismissal was passed on 24.5.84. Therefore, the Tribunal companyld number have nullified the order of dismissal in view of the judgments of this Court in Union of India vs. Mohd. Ramzan Khan 1991 1 SCC 588 and Managing Director. ECIL. Hyderabad vs. B. Karunakar 1993 4 SCC 727. The law laid down in Mohd. Ramzan Khans case supra has prospective operation only. The third reason given by the Tribunal that there was numberjustification for initiating a disciplinary proceeding against the respondent is also number sustainable. The proceeding was initiated against the respondent for his indisciplined companyduct in disobeying a lawful order passed by his superior officer who was companypetent to pass such an order. The respondent was transferred from Madras to Trichy and was posted as Sub Inspector Incharge of the Vikkiramangalam Police Station. After joining duty there on 12.11.80 he proceeded on leave from 13.11.80 and companytinuously remained on leave till he was called upon by the Superintendent of Police, by passing an order On 4.6.81. to appear before the Medical Board at Trichy on 9.6.81. As he was remaining absent on medical grounds and had produced certificates from different Medical Officers the Superintendent of Police becoming suspicious about the genuineness of the ground on which he was remaining absent had passed that order. The fact that he did number companyply with that order is number disputed. His explanation that he had numbermoney to travel from Madras to Trichy and, therefore, he had requested the Superintendent of Police on 8.6.1981 to issue a railway warrant and as a railway warrant was number given to him he companyld number remain present before the Medical Board on 9.6.81 as directed, was number accepted by the companycerned authorities. We will hereafter point out that there were good reasons for the authorities number to accept the said explanation. Such an act of insubordination or disobedience of an order by a police officer has to be viewed seriously as higher degree of discipline is expected of a member belonging to the Police Force. Therefore, it cannot be said that there was numbergood and sufficient reason or a valid justification for initiating the disciplinary proceedings against him. What was, however, companytended on behalf of the respondent was that in absence of any Rule treating numbercompliance with an order of a superior police officer or number-appearance before a Medical Board as an act of misconduct numberdisciplinary proceedings should have been initiated against him for the said act of delinquency. In support of this submission the learned companynsel relied upon the decision of this Court in A.L. Kalra vs. Project and Equipment Corporation of India Ltd. 1984 3 SCC 316. In that case, disciplinary proceedings were initiated against L. Kalra by the Corporation for companymitting an act of misconduct under service rule 4 1 i and iii which prescribed that every employee of the Corporation shall at all times maintain absolute integrity and do numberhing which is unbecoming of a public servant. Rule 5 prescribed various misconducts for which action companyld be taken against an employee governed by the rules. Taking numbere of the fact that rule 4 was given the heading General and rule 5 was given the heading Misconduct this Court took the view that the draftsmen of the Rules made a clear distinction about what would companystitute misconduct. It was under these circumstances this Court observed that failure to keep such high standard of moral, ethical or decorous behaviour befitting an officer of the companypany by itself cannot companystitute misconduct unless the specific companyduct falls in any of the enumerated misconduct in Rule 5. Rule 4 was regarded as vague and of general nature and in that companytext it was further observed that where misconduct when proved entails penal companysequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may number be camouflaged as misconduct. Construing the rules this Court held that Rule 4 styled as General specifies a numberm of behaviour but does number specify that its violation will companystitute misconduct. Rule 4 was thus companystrued as number specifying a misconduct. Thus the decision in that case turned upon the scheme of those rules and the companystruction placed upon rules 4 and 5 of those rules. This Court in that case has number laid down as a general principle that if an act is number specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for companymitting such an act. The observations made by this Court in Ranjit Thakur vs. Union of India and, Ors. 1987 4 SCC 611 support the view that we are taking. In that case the question which arose for companysideration was whether a disregard of an order to eat food by itself amounted to disobedience to a lawful companymand for purposes of section 41 of the Army Act 1950. This Court observed that the question has to be examined in the companytext of the imperatives of the high and rigorous discipline to the maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere inaction need number always necessarily be neutral. Serious acts of calumny companyld be done in silence. A disregard of a direction to accept food might assume the companyplexion of disrespect to, and even defiance of authority. The Rules applicable in this case do number specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the companypetent authorities to impose upon members of the Service penalties specified therein for good and sufficient reason. Therefore, the decision of this Court in A.L. Kalras case supra is clearly distinguishable. Before holding that there was numberjustification to initiate disciplinary proceeding against the respondents, the Tribunal ought to have companysidered whether there was good and sufficient reasons for initiating such proceedings against him. It was number at justified in taking that view on the ground that such an act of delinquency has number been specified in the Rules as an act of misconduct. Not obeying a legitimate order of his superior by a member of the Police Force has to be regarded as an act of indiscipline and would certainly provide a good and sufficient reason for initiating a disciplinary proceeding. It was next companytended by the learned companynsel for the respondent that the intention of the respondent was number to flout the order passed by the Suprintendent of Police and number-compliance was due to bona fide reason, namely, that he did number have sufficient money for travelling from Madras to Trichy and he was denied a railway warrant for that purpose. In support of his companytention that mere number-compliance with an order of a superior officer should number be regarded as an act of misconduct unless there is an intention to flout the same, the learned companynsel relied upon the decision in Union of India and Ors. vs. Giriraj Sharma reported in 1994 Supp SCC 755. In that case the employee was deputed to undergo a companyrse as an electrician. He sought leave and then applied for extension of leave. That request was rejected. For overstaying the period of leave his services were terminated. The said order was challenged in the High Court by filing a writ petition. The High Court having set aside the order, the Union of India preferred an appeal to this Court. While dismissing the appeal this Court observed that the punishment of dismissal for overstaying the period of 12 days in the circumstances of the case was really harsh as the said circumstances showed that it was number his intention to wilfully flout the order, but the circumstances had forced him to do so. As against that, it was submitted by the learned companynsel for the appellants that in this case the respondent had started remaining absent on medical grounds immediately after he was transferred to Trichy from Madras and that clearly indicated that he did number like the transfer and wanted to remain at Madras to carry on activities of the Association of which he was the Secretary. We find some force in this companytention. The certificates produced by the respondent for obtaining medical leave clearly show that he was number all the times at Madras but had gone and stayed for quite a long period at Dindigul and Madurai. This circumstance was sufficient to raise a suspicion in the mind of the authorities that the ground given by the respondent for remaining absent at Trichy was really an excuse and he was number genuinely sick. It was under these circumstances that he was directed on 24.4.81 to appear before the Medical Board. Without assigning any reason he did number do so. Therefore, he was again directed by an order dated 4.6.81 to appear before the Board on 9.6.81. This companymunication was received by the respondent. On 8.6.81 he addressed a letter to the Superintendent of Police expressing his inability to appear before the Medical Board on 9.6.81 on the ground that he had numbermoney to travel from Madras to Trichy and that he would appear before the Board only on companypletion of his leave. He had also stated therein that a railway warrant for the journey may be granted to him. What we find from the material on record is that respondent was already in Trichy on 4.6.81 when the said order was personally served upon him. Even though he knew on that day that he was required to appear before the Madical Board at Trichy on 9.6.81 he went away to Madras and from there sent a letter on 8.6.81. The learned companynsel for the respondent companyld number point out any provision requiring the police authorities to provide a railway warrant to a member of the Service under such circumstances. Mr. R. Balakrishnan, Deputy Superintendent of Police has filed an additional affidavit stating clearly that there is numbersuch provision. This statement made in the affidavit has number been companytroverted. It, therefore, clearly appears to us that the reason given by him for number remaining present before the Medical Board was a false excuse. It was his intention number to companyply with the said order. His number appearing before the Medical Board was with a view to avoid an enquiry regarding his true state of health so that he was number companypelled to resume duty. It was thus an act of disobedience and indiscipline. Therefore, in the facts and circumstances of the case it cannot be said that there was numbergood and sufficient reason for initiating a disciplinary proceeding against the respondent. During the enquiry the respondent had asked for companyies of certain documents and had also requested the Enquiry Officer to peruse the file in C.No.A1/861/81 of D.I.G. The Tribunal has held that as a result of the refusal the respondent was deprived of a reasonable opportunity of defending himself. From the additional affidavit filed by R. Balakrishnan it appears that the relevant record was made available to the respondent for his perusal and he had perused the same. Thereafter by his letter dated 18.1.82 he had asked for 1 a companyy of the D.O. letter dated 20.6.81 written by the Superintendent of Police, Trichy 2 a companyy of the proceedings of the Deputy Superintendent of Police, Trichy in companynection with establishing a police association at Trichy 3 companyies of the daily diaries dated 4.6.81 and 4 companyies of the letters written in 1980 and 1981 to the Home Secretary requesting permission of the Government to place him under suspension for taking part in formation of police association and the reply given by the Home Secretary. Enquiry Officer by his order dated 12.5.82 rejected the requests made by respondent by his letters dated 18.1.82 and 5.2.82 on the ground that the file of the S.P. which the respondent wanted to peruse was number at all relevant to the charge. Similarly, the request for the letters was rejected on the ground that were also number relevant and calling for such records would result in abnormal delay in disposal of the enquiry. It also appears that the request for companyies of the daily diaries of the said three police officers was also rejected on the ground that they were number relevant. The Tribunal without companysidering how those documents were relevant upheld the companytention of the respondent that by number supplying companyies of those documents he was denied a reasonable opportunity to defend himself. The file of the D.I.G. which the respondent wanted to peruse was with respect to suspension of the respondent. Similarly, the two letters addressed to the Home Secretary and the replies thereto also appeared to be in companynection with his suspension earlier in 1980 and 1981 for a different reason. The respondent had number even stated in his letter as to who had written those letters and on which dates they were written. The respondent had number stated why he wanted companyies of the diaries dated 4.6.81 of those police officers but it appears from the letter dated 18.1.82 that possibly the diaries companytained some information about the police meeting held on that day. It is difficult to appreciate how any of those documents and the proceedings in companynection with establishing a police association at Trichy companyld have helped the respondent in establishing his case that he companyld number remain present at Trichy on 9.6.81 because he did number have sufficient money to travel from Madras to Trichy.

Jagannatha Shetty, J. Special leave granted. We must first express our disapproval of the way in which the department of Director General Border Road DGBR has behaved in this pitiable case. Ram Kumar was working as Storekeeper in the Department of Director General Border Road DGBR . In October 1982, he died in harness leaving behind the appellants. Appellant No. 1-Sushma Gosain is his widow and appellant Nos. 2 and 3 are their minor children. In November 1982, Sushma Gosain sought appointment in DGBR as Lower Division Clerk on companypassionate grounds. In January 1983, she was called for the written test and later on for interview. She was said to have passed the trade test. But numberetheless she was number appointed. Whenever she approached DGBR, she was told that her case was under companysideration. In September 1985, Sushma Gosain filed writ petition in the High Court of Delhi for a direction against DGBR to appoint her in a suitable post. She was entitled to appointment in terms of Government Memorandum O.M. No. 14034/1/77/Estt. d dated 25.11.1978 issued by the Ministry of Home Affairs. DGBR however, resisted the writ petition with a primary companytention that the appointment of ladies in the establishment was prohibited. In support of the companytention, DGBR relied upon a numberification dated January 25, 1985 issued by the Central Government under Sub-sections 1 and 4 of Section 4 of the Army Act, 1950. The DGBR however, mercifully stated that it approached other departments to get an employment to Sushma Gosain in order to mitigate her hardship, but every one regretted. Interestingly, it was also stated that if Sushma Gosain numberinates a male member of her family, he companyld be companysidered for appointment. This was number without the knowledge that she has only a minor son. The High Court dismissed the writ petition by a brief order which reads as under An affidavit has been filed on behalf of the respondents setting out all the relevant facts and the attempts made by them to provide employment to the petitioner. It is apparent from the said affidavit that it has number been possible to do anything for the petitioner. Counsel for the petitioner has told us that her client is number able to provide the name of a male relation to whom employment companyld be offered. In these circumstances, even this alternative is number possible. Since we cannot give any relief to the petitioner, this petition is dismissed. Sd - P.S. Chawla Chief Justice Sd - K. Sabharwal Judge. The appellants appeal to this Court. We heard companynsel on both sides and gave our anxious companysideration to the Problem presented. It seems to us that the High Court has made the order in a mechanical way and if we may say so, the order lacks the sense of justice. Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November 1982. She had then a right to have her case companysidered for appointment on companypassionate ground under the aforesaid Government Memorandum. In 1983, she passed the trade test and the interview companyducted by the DGBR.

D. Dua, J. Five persons were tried in the Court of the Additional Sessions Judge, First Court, Monghyr for charges Under Sections 395, 307 and 398, I.P.C. All of them were companyvicted Under Section 395, IPC and acquitted of the charge Under Section 398, IPC. Accused, Akal Yadav, was in addition companyvicted Under Section 307, IPC and was sentenced to undergo rigorous imprisonment for life under each companynt. The other accused persons were sentenced to undergo rigorous imprisonment for ten years each Under Section 395, IPC. On appeal the High Court set aside the companyvictions of Akal Yadav, Anandi Yadav and Ashique Mian and allowing their appeals acquitted them. The companyvictions and sentences of Sheikh Habib alias Tabarak, the appellant in this Court and of Sheikh Quddua alias K.hudwa were maintained Sheikh Hasib alias Tabarak alone has appealed to this Court with Special leave under Article 136 of the Constitution. According to the prosecution case on January 28, 1963 at about 7.45 p.m. several dacoits had companylected on P.W.D. road near Telia Talab, Monghyr police station mofassil and companymitted dacoity in respect of the properties of a number of passers by. Ganesh Prasad P.W. 1 and his brother Kamaleshwar Tanti P.W. 2 who were going together on a cycle from Mong-hyr to their village Nawagarhi, were held up by about 15 dacoits and were deprived of several valuable articles like watch, cycle, shirt, muffler and money. Those articles were forcibly snatched from them on threat of violence. They were then made to sit on one side, away from the main road. When they were sitting there, Thakur Prasad Choudhary P.W. 6 , resident of village Garhi Rampur and Mukhia of the village Panchayat and Ram Baran Mandal P.W. 3 also happened to companye on a rickshaw from Monghyr side and while passing by the place of occurrence they too were intercepted by the dacoits and deprived of their properties. A woman named Dayabati Devi P.W. 4 and one Prayag Narain Gupta P.W. 5 , a homeopath doctor, who also happened to pass that way in a rickshaw were also attacked by the dacoits and forcibly deprived of their belongings. In the meantime Ram Baran Mandal P.W. 3 and Thakur Prasad Choudhary P.W. 6 somehow managed to escape in their rickshaw. When they reached Telia Talab crossing from where one road goes towards Jamalpur, another towards Bariarpur and the third one to-wards. Monghyr, they saw a jeep car standing there with three police officers in uniform, a Sub Inspector of police Deo Dutt Prasad Varma, P.W 8, and an Inspector of police Jadunandan Singh, P.W. 10 along with driver-constable Bansidhar Singh, P.W. 9 . Thakur Prasad Choudhary, Mukhia, narrated to them the occurrence of dacoity and the loss of his property and told them that the dacoits were still busy in their nefarious activities. After giving this information he accompanied those officers in the jeep to the place of occurrence. Ram Baran P W. 3 went away towards his village. Thakur Prasad Choudhary pointed out to the police officers the place of occurrence as soon as it became visible in the light flashed by the headlights of the jeep. The jeep stopped near the place of occurrence and it is alleged that more than eight dacoits were found present at the spot. The Inspector P.W 10 ordered the companystable to get down and arrest the dacoits. Pursuant to this order Bansidhar, companystable, got down from the jeep but one of the dacoits aimed a lathi blow at him. When the other occupants of the jeep tried to get down one of the dacoits fired at them hitting both the Inspector and the Sub-Inspector causing them bleeding injuries. The jeep then drove away towards Monghyr in order to get the Sub-Inspector and the Inspector P.Ws. 8 and 10 treated in the hospital. While passing in front of the police station of Monghyr on their way to the Sadar Hospital, the Sub-Inspector and the Inspector informed the policemen at the police station about the dacoity in question near the Telia Talab and said that since they themselves had sustained injuries at the hands of the dacoits they were on their way to the hospital The dacoits had apparently disappeared in the meantime and numberody was caught at the spot. It is number necessary to state any more facts for the purpose of the present appeal. Suffice it to say that the fate of the entire prosecution case depends on the evidence regarding the identification of the persons charged So far as the present appellant is companycerned the only evidence against him it that of his identification by Jadunandan Singh, Inspector of police P.W. 10 . The question, therefore, arises whether his testimony relating to the identification of the appellant provides evidence which, according to the settled principles, can be companysidered sufficient for sustaining his companyviction. Now, according to the High Court it was mentioned in the fard beyan Ex. I which is treated as first information report, that the Inspector P.W. 10 had identified two dacoits as belonging to village Banoudha. These two dacoits are Hasib and Ashique Mian, the companyviction of both of whom was upheld by the High Court. Exhibit 1 was the statement made by S.I. Deo Dutt Prasad Varma P.W. 8 to the police in the hospital. The exact words used therein so far as relevant may herein be read The Inspector said that among the recognized dacoits he had recognized two dacoits well that they belonged to Banaudha a nearby village. He did number remember their names. He also said that the dacoits seemed to belong to the neighbouring villages and almost all of them were young. The evidence of P.W. 8 has number been relied upon by the High Court for companyvicting the appellant What is relied upon is the statement in Court of P.W. l0 because the High Court felt that it was companyroborated by Ex. 1. This is what the High Court has said Appellant Hasib and Ashique Mian both belong to village Banaudha, and it was mentioned in the fard beyan ext. 1 that the Inspector P.W. 10 had identified two dacoits well as belonging to village Banaudha. This description as to the residence of two of the dacoits was given before Hasib and Ashique Mian came to be arrested in companynection with this case. Therefore, it is manifest that the evidence of P.W. 10 against appellant Hasib finds sufficient companyroboration from the description of the culprits given in the fard-ebayan. That being so, I am of the opinion that the evidence of P.W. 10 against appellant Hasib can be safely acted upon It is true that appellant Hasib had been remanded to police custody for nearly 48 hours after his production before the Sub divisional Magistrate on 29-1-1963 But all the while P W. 10 was companyfined to the Hospital and as such be companyld number have the opportunity of seeing this appellant while he was in police custody. The companyplicity of this appellant in the crime has thus been established beyond all reasonable doubts. Here the High Court appears to have clearly gone wrong in law. The legal position as to the object, value and use of first information report is well settled. The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does number companystitute substantive evidence though its importance as companyveying the earliest information regarding the occurrence cannot be doubted It can, however, only be used as a previous statement for the purpose of either companyroborating its maker Under Section 157 of the Indian Evidence Act or for companytradicting him Under Section 145 of that Act. It cannot be used for the purpose of companyroborating or companytradicting other witnesses. The High Court was, therefore, in error in seeking companyroboration of the testimony of P.W. 10 from the F.I.R. of which he was number the maker. P.W. 10 is said to have later identified the present appellant in Court, as the person whom he had identified at the second test identification parade on the first day when he went for identifying the accused persons. That was on February 14, 1963. This is what he said in Court I attended T.I. parade for two days. I attended the T.I. parade twice on the first day and once on the second day. On the first day and at the first time I identified this accused points to accused who gives out his name as Akal Jadav .He had opened fire at the time of occurrence. I identified at the second time this accused points to accused who gives out his name as Mohammad Hasib, alias Tabarak . On the second day I identified this accused points to one accused who gives out his name as Shekh Quddus, alias Knudwa . It is numbere worthy that in the trial Court the witness did number identify the appellant as one of the dacoits whom he had seen at the time and place of the occurrence. If that is so then the question arises if the evidence of the test identification parade can from legal basis for the appellants companyviction. As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh the substantive evidence is the statement of a witness in Court and the purposes of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires companyroboration in the form of an earlier identification proceedings. If there is numbersubstantive evidence about the appellant having been one of the dacoits when P W. 10 saw them on January 28, 1963 then the T.I. parade as against him cannot be of any assistance to the prosecution. But otherwise too the identification proceedings in the present case do number inspire companyfidence. It appears that several test identification parades were held for identifying the accused persons. So far as the present appellant is companycerned P.W. 10 appears to have identified him on February 14, 1963 though the appellant had been arrested as early as January 29, 1963 at about 4.15 a.m. Now, identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been companycerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimize the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by hose responsible for holding them against the identifying witness having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused companycerned. In the present case the first identification parade was held on February 6, 1963 when several accused persons were included for identification in the parade. The present appellant was number included in the parade on that day. The identification parade with respect to him was held on February 14, 1963, the reason given for this delay that P.W. 10 was till then in the hospital. According to his own evidence in the trial Court, however, P.W. 10 admits to have been discharged from the hospital on February 9, 1963 In his statement before the companymitting magistrate which was read as evidence by the trial Court Under Section 288, Cr.P.C. he had stated that he had companye out of the hospital 7 or 8 days after his admission. It may be recalled that he was out of the hospital on Februarys, 1963. But even if he was discharged on February 9, 1963 it is wrong to say that the test identification parade companyld number be held before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this apart, it is number shown that this witness even though in the hospital for treatment of his injuries to his hand and face was number in a position to be taken from the hospital for identification as soon as the appellant was arrested or at least on February 6, 1963 when identification of a number of accused persons was held. We are also number satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on February 6, 1963. Ft. however, appears that because the result of this parade was number companysidered satisfactory by the investigating agency an application was made to the Court of the magistrate stating that the identifying witnesses had got companyfused and, therefore, a fresh test identification parade should be held. Thereafter several identification parades were held on 14, 21st and 28th February, 1963. This procedure only serves to give rise to grave suspicion about the bona fides of the investigating agency. And then we find from the evidence of Jhari Lal Mahto, Sub Deputy Magistrate P.W. 13 who had held the T.I. parade on February 14, 1963 that two identification parades were held on that day within half an hour of each other one at 5 p.m. and the other at 5.30 p.m. At both these parades P.W. 10 was present. In the first parade the appellant is stated number to have been included in the suspects to be identified. No reason is shown for his number-inclusion in that parade. It may be recalled that both the parades were held in the sub-jail in which all the accused persons were lodged. The evidence of P W. 13 is also somewhat unsatisfactory and we are far from impressed by his testimony with respect to the precautions taken by him for fair test identification parades. In his cross-examination a suggestion was thrown that there was some kind of interpolation in his report of the first T.I. parade held at 5 p.m. from which it companyld be suspected that the appellant was present in that parade but was number identified by P.W. 10, Whether or number the appellant was included in the suspects to be identified at 5 p.m. in either case we are unable to attach much value to his identification parade. The High Court has in its judgment accepted the argument raised on behalf of the accused that they were produced in Court on February 13, 1963, and has expressed its opinion that the possibility of P.W. 8 P.W.10 seeing the accused persons in Court companyld number be entirely eliminated. This circumstance, in our view, further weakens the value of the appellants identification held on February 14, 1963. There is, however, also another aspect which requires to be numbericed. Now, if P.W. 10 had recognised the appellant at the time and place of the occurrence as one of the two dacoits hailing from village Banaudha then clearly the identification test of the appellant by this witness can be of little value because the accused was already known to the witness. In that event there is numberquestion of the identification parade dated February 14, 1963 being used as companyroborative evidence supporting his identification in Court.

civil appellate jurisdiction civil appeal number 135 of 1955. appeal by special leave from the judgment and order dated october 30 1952 of the labour appellate tribunal of india allahabad in misc. case number c-146 of 1952. r. biswas for the appellant.sukumar ghose amicus curiae for the respondents. 1956. numberember 28. the judgment of the companyrt was delivered by k. das j.-this is an appeal by special leave from the judgment and order of the labour appellate tribunal of india at allahabad dated october 30 1952. the relevant facts are these. the banaras ice factory limited the appellant before us was incorporated on september 13 1949 as a private limited companypany and was carrying on the business of manufacturing ice in the city of banaras though its registered office was in calcutta. the factory worked as a seasonal factory and had in its employment about 25 workmen at all material times. these workmen were employed from the month of march to the month of september year. the appellant companypany got into financial difficulties on account of trade depression rise in the price of materials and increase in the wages and emoluments of workmen. it tried to secure a loan of rs. 10000/- from a bank but met with numbersuccess. thereupon it decided to close down the factory and on january 15 1952 a numberice was given to its workmen saying that the factory would be closed down with effect from january 17 1952 and the services of the workmen would number be necessary for two months from that date. the work. men received their wages up to january 16 1952. on march 18 1952 they were again taken into service but this temporary closing of the factory gave rise to an industrial dispute and the workmen companyplained that they were wrongfully laid off with effect from january 17 1952. the dispute was referred to the regional companyciliation officer allahabad for adjudication. in the meantime that is on june 6 1952 the workmen gave a strike numberice and as there was numbercoal in the factory the appellant also gave a numberice of closure on june 12 1952. a settlement was however arrived at between the parties on june 15 1952 at the house of the companylector of banaras. the terms of that settlement inter alia were 1 the management would withdraw its numberice of closure dated june 12 1952 2 the workmen would withdraw their strike numberice dated june 6 1952 3 there being numbercoal the workers would remain on leave for a period of thirty days with effect from june 16 1952 and would report for duty on july 16 1952 at 8 a.m. and 4 after the workers had resumed their duty on july 16 1952 the appellant would number terminate the services of any workmen or lay them off in future without obtaining the prior permission of the regional companyciliation officer allahabad. on june 28 1952 the regional companyciliation officer allahabad gave his award in the matter of the industrial dispute between the appellant and its workmen with regard to the alleged wrongful laying off of the workmen from january 17 1952 to march 18 1952 referred to above. by his award the regional companyciliation officer gave full wages to the workmen for the period in question. on july 16 1952 numbere of the workmen reported for duty in accordance with the terms of the agreement referred to above and on that date the appellant gave a numberice to its workmen to the effect that the appellant found it difficult to run the factory and had decided to close it down the workmen were informed that their services would number be required and would be terminated upon the expiry of thirty days from july 16 1952. the workmen it is stated accepted the numberice and took their pay for one month from july 16 to august 15 1952 without any protest. against the award of the regional companyciliation officer dated june 28 1952 the appellant filed an appeal to the labour appellate tribunal on july 25 1952. on august 31 1952 a companyplaint was made on behalf of the workmen to the labour appellate tribunal under s. 23 of the industrial disputes appellate tribunal act 1950 hereinafter referred to as the act. the gravamen of the complaint was that the appellant had companytravened the provisions of s. 22 of the act. because the appellant had discharged all the workmen with effect from august 15 1952 without the permission in writing of the labour appellate tribunal during the pendency before it of the appeal filed on july 25 1952 against the award of the regional conciliation officer. the labour appellate tribunal dealt with this companyplaint by its order dated october 30 1952. before the labour appellate tribunal it was urged on behalf of the appellant that there was numbercontravention of a. 22 because on july 16 1952 when the numberice of discharge was given by the appellant numberappeal was pending before it the appellants appeal having been filed several days later namely on july 25 1952. this companytention was number accepted by the labour appellate tribunal on the ground that though the numberice of discharge was given on july 16 1952 the termination of service was to companye into operation after one month that is from august 15 1952 on which date the appeal before the labour appellate tribunal was certainly pending. as learned companynsel for the appellant has number again pressed this point before us it is number necessary to say anything more about it. a second point uroed before the labour appellate tribunal was that the appellant had the right to close down the factory when the appellant found that it was number in a position any longer to run the factory. the agreement of june 15 1952 did number stand in the appellants way as the workmen themselves did number report for duty on july 16 1952. the closure being a bona fide closure it was number necessary to obtain the permission of the labour appellate tribunal and there was therefore numbercontravention of s. 22 of the act. the labour appellate tribunal apparently accepted the principle that the appellant had the right to close its business but took the view that permission should have been obtained before the closure. it referred to the agreement of june 15 1952 and held that though the appellant had the right to close its business permission was still necessary and in the absence of such permission the appellant was guilty of companytravening cl. b of s. 22 of the act and directed that the appellant should pay its workmen full wages as companypensation for the period of involuntary unemployment up to the date of its award that is during the period from august 16 1952 to october 30 1952. relying on the decision in j. k. hosiery factory v. labour appellate tribunal of india 1 learned companynsel for the appellant has urged three points before us. his first point is that the termination of the services of all workmen on a real and bona fide closure of business is number discharge within the meaning of cl. b of s. 22 of the act. his second point is that if the word discharge in cl. b aforesaid includes termination of services of all workmen on bona fide closure of business then the clause is an unreasonable restriction on the fundamental right guaranteed in el. g of art. 19 1 of the companystitution. his third point is that in any view the labour appellate tribunal was number entitled to grant companypensation to the workmen because s. 23 of the act did number in terms entitle the labour a.i.r. 1956 all. 498. appellate tribunal to pass an order of companypensation. we may state here that if the appellant succeeds on the first point it becomes unnecessary to decide the other two points. for a companysideration of the first point we must first read ss. 22 and 23 of the act. section 22 during the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this act numberemployer shall- a alter to the prejudice of the workmen companycerned in such appeal the companyditions of service applicable to them immediately before the filing of such appeal or b discharge or punish whether by dismissal or otherwise any workmen companycerned in such appeal save with the express permission in writing of the appellate tribunal. section 23 where an employer companytravenes the provisions of section 22 during the pendency of proceedings before the appellate tribunal any employee aggrieved by such contravention may make a companyplaint in writing in the prescribed manner to such appellate tribunal and on receipt of such companyplaint the appellate tribunal shall decide the complaint as if it were an appeal pending before it in accordance with the provisions of this act and shall pronumbernce its decision thereon and the provisions of this act shall apply accordingly. the short question before us is whether the word discharge occurring in cl. b of s. 22 includes termination of the services of all workmen on a real and bona fide closure of his business by the employer. it is true that the word discharge is number qualified by any limitation in cl. b . we must however take the enactment as a whole and companysider s. 22 with reference to the provisions of the industrial disputes act 1947 xiv of 1947 which is in pari materia with the act under our companysideration. we have had occasion to companysider recently in two cases the general scheme and scope of the industrial disputes act 1947. in burn company calcutta v. their employees 1 this companyrt observed that the object of all labour legislation was firstly to ensure fair terms to the workmen and secondly to prevent disputes between employers and employees so that production might number be adversely affected and the larger interests of the public might number suffer. in pipraich sugar mills limited v. pipraich sugar mills mazdoor union 2 it was observedthe objects mentioned above can have their fulfilment only in an existing and number a dead industry. we accepted the view expressed in indian metal and metallurgical companyporation v. industrial tribunal 3 and k. m. padmanabha ayyar v. the state of madras 4 that the provisions of the industrial disputes act 1947 applied to an existing industry and number a dead industry. the same view was reiterated in hariprasad shivshankar shukla v. a. d. divikar 5 where we held that retrenchment in cl. oo of s. 2 and s. 25f did number include termination of the services of workmen on bona fide closure of business. turning number to s. 22 of the act it is clear enumbergh that el. a applies to a running or existing industry only when the industry itself ceases to exist it is otiose to talk of alteration of the companyditions of service of the workmen to their prejudice because their service itself has companye to an end. the alteration referred to in cl. a must therefore be an alteration in the companyditions of service to the prejudice of the workmen companycerned in an existing or running industry. similarly the second part of cl. b relating to punishment can have application to a running or existing industry only. when the industry itself ceases to exist there can be numberquestion of punishment of a workman by dismissal or otherwise. we are then left with the word discharge. unqualified though the word is it must we think be interpreted in harmony with the general scheme and scope of the industrial disputes act 1947. our attention has been drawn to 1 1956 s.c.r. 781. 4 1954 1 l.l.j. 469. 2 1956 s.c. r. 87 2. 5 1957 s.c. r.121. a.i. r. 1953 mad. 98. the definition of workman in cl. s of a. 2 which says- for the purposes of any proceeding under this act in relation to an industrial dispute the definition includes any person who has been dismissed discharged or retrenched in companynection with or as a companysequence of that dispute or whose dismissal discharge or retrenchment has led to that dispute. in the said definition clause also the word discharge means discharge of a person in a running or continuing business-number discharge of all workmen when the industry itself ceases to exist on a bona fide closure of business. the true scope and effect of ss. 22 and 23 of the act were explained in the automobile products of india limited v. rukmaji bala 1 . it was pointed out there that the object of s. 22 was to protect the workmen companycerned in disputes which formed the subject-matter of pending proceedings against victimisation and the further object was to ensure that proceedings in companynection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that numberemployer should during the pendency of these proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relations between the employer and the workmen. those objects are capable of fulfilment in a running or companytinuing industry only and number a dead industry. there is hardly any occasion for praying for permission to lift the ban imposed by s. 22 when the employer has the right to close his business and bona fide does so with the result that the industry itself ceases to exist. if there is numberreal closure but a mere pretence of a closure or it is mala fide there is numberclosure in the eye of law and the workmen can raise an industrial dispute and may even companyplain under a.23 of the act. for these reasons we must uphold the first point taken before us on behalf of the appellant. the appellate tribunal was in error in holding that the 1 1955 1 s.c.r. 1241. appellant had companytravened cl. b of s. 22 of the act. the appellate tribunal did number find that the closure of the appellants business was number bona fide on the companytrary in awarding companypensation it proceeded on the footing that the appellant was justified in closing its business on account of the reasons stated by it. as to the agreement of june 15 1952 the workmen themselves did number abide by it and the appellants right cannumber be defeated on that ground. in view of our decision on the first point it becomes unnecessary to decide the other two points.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 236 of 1955. Appeal from the judgment and order dated August 3, 1953, of the Punjab High Court in Civil Reference No. 7/1952. C. Setalvad, Attorney-General for India, K. N. Rajagopal Sastri and D. Gupta, for the appellant. C. Chatterjee and S. K. Sekhri, for the respondent. 1960. July 27. The Judgment of the Court was delivered by K. DAS J.-This is an appeal on a certificate of fitness granted under the provisions of sub-s. 2 of s. 66A of the Indian Income-tax Act, 1922, by the High Court of Judicature for the State of Punjab then sitting at Simla. The certificate is dated December 28, 1953, and was granted on an application made by the Commissioner of Income-tax, Punjab, appellant herein The relevant facts are shortly stated below. For the assesment year 1946-47, one Pandit Thakurdas Bhargava, an advocate of Hissar and respondent before us, was assessed to income tax on a total assessable income of Rs. 58,475/- in the account year 1945-46. This sum included the amount of Rs. 32,500/stated to have been received by the respondent in July, 1945 for defending the accused persons in a case known as the Farrukbnagar case. The assessee claimed that the said amount of Rs. 32,500/- was number a part of his professional income, because the amount was given to him in trust for charity. This claim of the assessee was number accepted by the Income-tax Officer, number by the Appellate Assistant Commissioner who heard the appeal from the order of the Income-tax Officer. Both these officers held that the assessee had received the amount of Rs. 32,500/- as his professional income and the trust which the assessee later created by a deed of Trust dated August 6, 1945, did number change the nature or character of the receipt as professional income of the assessee they further held that the persons who paid the money to the assessee did number create any trust number impose any obligation in the nature of a trust binding on the assessee, and in fact and law the trust was created by the assessee himself out of his professional income therefore, the amount attracted tax as soon as it was received by the assessee as his professional income, and its future destination or application was irrelevant for taxing purposes. From the order of the Appellate Assistant Commissioner a further appeal was carried to the Income-tax Appellate Tribunal, Delhi Branch. We shall presently state the facts which the Tribunal found, but its companyclusion drawn from the facts found was expressed in the following wordsThe income in this case did number at any stage arise to the assessee. Keeping in mind the express stipulation made by the assessee when he accepted the brief there was a voluntary trust created, which had to be and was subsequently reduced into writing after the money was subscribed. The payments received from the accused and other persons were received on behalf of the trust and number by the assessee in his capacity as an individual. In this view, we delete the sum of Rs. 32,500/- from the assessment. The appellant then moved the Tribunal for stating a case to the High Court on the question of law which arose out of the order of the Tribunal. The Tribunal was of the opinion that a question of law did arise out of its order, and this question it formulated in the following terms Whether the sum of Rs. 32,500/- received by the assessee in the circumstances set out in the trust deed later executed by him on August 6, 1945, was his professional income taxable in his hands, or was it money received by him on behalf of a trust and number in his capacity as an individual. It appears that in stating a case the Tribunal framed an additional question as to whether the trust was created at or before the payment of Rs. 32,500/-, but expressed the view that this additional question was implicit in the principal question formulated by it. A case was accordingly stated to the High Court under s. 66 of the Indian Incometax Act, and the High Court by its judgment dated August 3, 1953, answered the question in favour of the assessee, holding that the sum of Rs. 32,500/- received by the assessee was number received by him as his professional income but was received on behalf of the trust and number in his capacity as an individual . The appellant then moved the High Court and obtained the certificate of fitness referred to earlier in this judment. We shall presently state the facts found by the Tribunal in companynection with the receipt of the sum of Rs. 32,500/- by the assessee, from which the Tribunal drew its inference. But the question as framed by the Tribunal and answered by the High Court, was whether in the circumstances set out in the trust deed dated August 6, 1945, the amount of Rs. 32,500/received by the assessee was professional income in his hand. It is, therefore, appropriate to refer first to the recitals in the trust deed. The respondent stated in the trust deed that he had decreased his legal practice for the last few years and had reserved his professional income accruing after June 1944 for payment of taxes and charity. He then said accordingly, I have been acting on that. In the Farrukh- Dagar, district Gurgaon case, Crown v. Chuttan Lal etc., the relatives and the accused expressed a strong desire to get the case companyducted by me during its trial. At last on their persistence and promise that they would provide me with Rs. 40,000/- for charitable purposes and I would create a public charitable trust thereof I agreed to companyduct the case. The case is number over. The accused and their relatives have given me Rs. 32,500/- for charity and creating a trust. The said amount has been deposited in the Bank. If they pay any other amount that will also be included in that. Accordingly, I create this trust with the following companyditions and with the said amount and any other amount which may be realized afterwards or included in the trust. then followed the name and objects of the trust, etc. . The Tribunal accepted as companyrect the statements of the respondent that he was at first unwilling to accept the brief in the Farrukhnagar case he was then persuaded to accept it at the request of some members of the Bar and some influential local people on the understanding, as the respondent put it, that the accused persons of that case would-provide Rs. 40,000/- for a charitable trust which the respondent would create. Eventually, the sum of Rs. 32,500/- was paid by or on behalf of the accused persons, and as the Tribunal has put it, a charitable trust was created by the respondent by the trust deed dated August 6, 1945, the recitals whereof we have q numbered above. The question before us is what is the proper legal inference from the aforesaid facts found by the Tribunal. Both the Tribunal and the High Court have drawn the inference that a charitable trust was created by the persons who paid the money to the assessee, and all that the assessee did under the deed of trust dated August 6, 1945, was to reduce the terms of the trust to writing. The High Court, therefore, applied the principle laid down by the Privy Council in Raja Bejoy Singh Dudhuria v. Commissioner of Income-tax, Bengal 1 and observed that by the overriding obligation imposed on the assessee by the persons who paid the money, the sum of Rs. 32,500/ never became the income of the assessee and the amount became trust property as soon as it was paid, there being numberquestion of the application of part of his income by the assessee. On behalf of the appellant it has been companytended that the inference which the Tribunal and the High Court drew is number the proper legal inference which flows from the facts found, and according to the learned Attorney-General who appeared for the appellant the proper legal inference is that the amount was received by the assessee as his professional income in respect of which he later created a trust by the deed of trust dated August 6, 1945. He has submitted that there was numbertrust number any legal obligation imposed on the assessee by the persons who paid the money, at the time when the money was received, which prevented the amount from becoming the professional income of the assessee. He has also companytended that even the existence of a trust will make numberdifference, unless it can be held that the money was diverted to that trust before it companyld become professional income in the hands of the assessee. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/- paid to the assessee was his professional income at the time when it was paid and numbertrust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property. If that is the true companyclusion as we hold it to be, then the principle laid down 1 1933 1 I.T.R. 135. by the Privy Council in Bejoy Singh Dudhurias case 1 has numberapplication. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and numbertechnical words are necessary. A trust may even be created by the use of words which are primarily words of companydition, but such words will companystitute a trust only where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject-matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes. The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did number use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945. The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received. The clear statement in the trust deed, a statement accepted as companyrect by the Tribunal, is that the assessee created a trust on certain companyditions etc. It is number stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would number be used for any private and personal purposes. Even in this affidavit there is numbersuggestion that the persons who paid the money created the 1 1933 1 I.T.R. 135. trust or imposed any obligation on the assessee. It was the assessees own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case. Such a voluntary desire on the part of the assessee created numbertrust, number did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it companyld, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was numberindication anywhere. In our opinion the view taken by the Appellate Assistant Commissioner was the companyrect view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the companyrect answer to the question referred to the High Court is that the amount of Rs. 32,500/- received by the assessee was professional income taxable in his hands. Learned Counsel for the respondent has referred us to a number of decisions where the principle laid down in Bejoy Singh Dudhurias Case 1 was applied, and has companytended that where there is an allocation of a sum out of revenue as a result of an overriding title or obligation before it becomes income in the hands of the assessee, the allocation may be the result of a decree of a companyrt, an arbitration award or even the provisions of a will or deed. In view of the companyclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to companysider them. Our companyclusion is that there was numberoverriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him. 1 1933 1 I.T.R. 135. Accordingly, we allow this appeal and set aside the judgment and order of the High Court. The answer to the question is in favour of the appellant, namely, that the sum of Rs. 32,500/- received by the assessee was his professional income taxable in his hands.

P.MOHAPATRA ,J. LITTTTTTTJ On analysis of the case of the parties and the companytentions raised by learned companynsel on their behalf, the question that arises for determination is whether the appellant has established a case for declaring the marriage null and void under section 12 1 b read with Section 5 ii of the Hindu Marriage Act, 1955 ? The appellant is the husband of the respondent. They were married according to Hindu rites and rituals on 1-11- 1987. It is relevant to numbere here that it was an arranged marriage and the decision was taken after the appellant had met the respondent and talked with her. After staying together for about 25 days the companyple parted companypany. Thereafter the appellant filed a petition under section 5 ii read with section 12 1 b on 12.2.1988 seeking a declaration that the marriage is null and void as the respondent suffers from chronic and incurable mental disorder and is number in a fit mental state to lead a married life. In support of his case the appellant alleged inter alia that on the night of the marriage he found respondent to be drowsy she refused to have companyabitation on being questioned by him she said that she has been suffering from mental disorder since her childhood she did number want to have any marriage relationship, but under pressure from her parents the marriage with the appellant was performed. The appellant further alleged that when father of the respondent was informed about her physical and mental companydition he disclosed that his daughter has been under treatment for some mental disease and gave the prescription given by the doctor. The appellant pleaded that he and his father made attempts for curing the respondent of the ailment suffered by her but such attempts proved futile. Under such companypelling circumstances he filed the petition seeking the declaration that the marriage was null and void. Respondent in her written statement refuted the allegations made in the petition plaint. She denied that she suffered from any mental disorder, far less of a chronic and incurable nature. She also denied that she had numbercohabitation with her husband or that she had expressed that she was number interested in leading married life. She asserted that immediately after the marriage she and her husband lead a happy married life they went to different places and visited temples. She also asserted that she has all along been ready and willing to lead a numbermal marital life with the appellant but the appellant is interested in having a second marriage so that he may get more dowry. According to the respondent the reason for which she has number been able to lead a numbermal family life is on account of refusal of the appellant to share the marital relationship with her. The trial companyrt on assessing the evidence on record dismissed the petition filed by the appellant holding, inter alia, that he had failed to establish that the respondent was suffering from any mental disorder or that there was numbercohabitation or that the respondent was number in a fit mental state to lead a married life. The trial companyrt which had the privilege of observing the respondent as a witness and watching her demeanor made the following observations in the judgment The respondent was examined in this companyrt from 11.25 a.m. to 1.25 p.m. During the enquiry, it did number appear from her activities that her mental companydition and activities had been affected. She has given answer very clearly to the questions posed by the petitioners advocate. This companyrt is number a medical expert. But there was an opportunity to watch the activities and movements of the respondent. Since it is number proved from the activities and the letters of the respondent that she had incurable mental disease and since the marital relationship is fulfilled by the companyabitation between the petitioner and the respondent, it is decided that the respondent is fit for marital relationship and she is number affected by mental disease Since the petition is filed within a year from 1.11.1987, the date of marriage, this petition is number sustainable under law and it is decided that this marriage is number fit to be declared null and void. On appeal by the appellant the appellate companyrt found fault with the judgment of the trial companyrt on the ground that the trial judge had number companysidered the documentary evidence in the case including the prescription issued by Dr. Papa Kumari of Chennai. The Court held that within a few days of the marriage the spouses had parted companypany and thereafter there has been numbermeeting between them. The appellate companyrt accepted the case of the appellant that there was numbercohabitation between the parties to the marriage. Taking numbere of certain statements made by the respondent in her evidence the appellate companyrt found that she has admitted that she has been suffering from a mental disorder from her childhood that she was given injection once in a month and used to take drugs whenever she had headache. On such findings the appellate companyrt reversed the judgment of the trial companyrt and allowed the petition filed by the appellant. The second appeal filed by the respondent was allowed by the High Court, the judgment of the first appellate companyrt was reversed and the judgment of the trial companyrt was restored. The High Court, as appears on perusal of the judgment, mainly companysidered the question whether the appellant was aware of the physical and mental disorder of the respondent before the marriage. The High Court held that the marriage was number vitiated by fraud or misrepresentation. The appellant husband had opportunity to meet the respondent wife and to know her physical and mental companydition. The Court did number accept the case of the appellant that the respondent was suffering from chronic and incurable mental disorder and that there was numbercohabitation between the parties. The appellant husband has filed this appeal by special leave under Article 136 of the Constitution, assailing the judgment of the High Court. Since the decision in the case depends on interpretation of sections 5 ii a and b and section 12 1 b the said sections are quoted hereunder for companyvenience of reference Conditions for a Hindu marriage A marriage may be solemnized between any two Hindus, if the following companyditions are fulfilled, namely- Xxx xxx xxx at the time of the marriage, neither party a is incapable of giving a valid companysent to it in companysequence of unsoundness of mind or b though capable of giving a valid companysent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children Voidable Marriages 1 Any marriage solemnized, whether before or after the companymencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds , namely xxx xxx xxxx b that the marriage is in companytravention of the companyditions specified in clause ii of section 5. Section 5 provides that a marriage may be solemnized between any two Hindus if the companyditions specified in the section are fulfilled. Amongst the other companyditions stated therein in sub-section ii it is laid down that at the time of marriage neither party is incapable of giving a valid companysent to it in companysequence of unsoundness of mind or though capable of giving a valid companysent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the companyditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and section 12 1 b refers that any marriage shall be voidable and may be annulled if the marriage is in companytravention of the companydition specified in clause ii of section 5. On a plain reading of the said provision it is manifest that the companyditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is number per se void but voidable under the clause. Such companyditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnized. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As numbered earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The companyrt will examine the matter with all possible care and anxiety. Bearing in mind the principles which flow from a fair reading of the statutory provisions numbered above we proceed to examine whether the appellant has succeeded in establishing the case for declaring the marriage null and void on the ground of mental incapacity of his wife at the time of marriage. Even accepting the findings recorded by the first appellate companyrt which decided the case in favour of the appellant as companyrect then the position that emerges is that the respondent has been under treatment for some mental problem before the marriage and that there was numbercohabitation between the parties during the period of about one month during which they stayed together. On these findings can it be held that a case for declaring the marriage to be invalid under section 12 1 b read with section 5 ii b has been established. It is number the case of the appellant that the respondent was incapable of giving valid companysent to the marriage in companysequence of unsoundness of mind at the time of marriage. From the facts found by the appellate companyrt it cannot be held that the respondent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. To draw such an inference merely from the fact that the spouses had numbercohabitation for a short period of about a month, is neither reasonable number permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a numbermal married life. This is the requirement of the law as appears on fair reading of the statutory provisions. The appellate companyrt has also number specifically given such a finding. Merely giving a finding that the respondent was suffering from some mental disorder and she did number have companyabitation with her husband during the period they stayed together is number sufficient to companyply with the companydition prescribed under section 5 ii b of the Act. We deem it relevant to numbere here that the observations in the judgment of the trial companyrt about the physical and mental companydition of the respondent which have been numbered earlier indicates the position that the requirement of section 5 ii b are far from satisfied from the materials placed by the appellant. In the circumstances the High Court cannot be faulted for having dismissed the petition filed by the appellant under section 12 1 b read with section 5 ii b of the Act. The judgment of the High Court is numberdoubt far from satisfactory. The High Court has number formulated any question of law in the judgment which is a mandatory requirement under section 100 C.P.C. The High Court has also number companysidered the relevant aspects of the matter other than fraud and misrepresentation about mental companydition of the respondent on the part of her parents at the time of the marriage. We have companysidered the submission made by learned companynsel for the appellant to remit the matter to the High Court for fresh disposal. We however, in the facts as above, do number feel it expedient to do so.Our attention has number been drawn to any material on record which, if companysidered, would have tilted the balance in favour of the appellant.

CIVIl, APPELLATE JURISDICTION Civil Appeal No. 2294 1968. Appeal from the Judgment and Order dated 25-9-1967 of the Madhya Pradesh High Court in Misc. Petition No. 595/66. N. Sinha, Sol. Genl, B. Datta and Girish Chandra for the Appellants. K. Gambhir, amicus curiae, for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.--If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would number have ended the erroneous way it did in the High Court. Judges must never forget that every law has a social purpose and engineering process without appreciating which justice to the law cannot be done. Here, the socio-legal situation we are faced with is a companyliery, an explosive, an accident, luckily number lethal, caused by violation of a regulation and companysequential cancellation of the certificate of the delinquent shot-firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari. We may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrongly laid down by the High Court, were set aside and declared a right and he was number insisting on the formal reversal of the order affecting the respondent who is unrepresented before us . We proceed on that footing. The few necessary facts may be narrated to bring up the legal issue in its real setting. The respondent was a shot-firer in a companyliery and being a risky, technical job, had to possess a certificate for it. He handed over an explosive to an unskilled hand who fired it, an accident occurred and one Bhadu, employed in the mine, was injured. The Regional Inspector of Mines immediately enquired into the cause of the accident and found, on the respondents virtual admission, qualified by some prevarication, that the shots were fired number by himself but by a cutter, an unauthorised person for shot-firing to whom the respondent had wrongfully entrusted the work. Thereby he companytravened the relevant Coal Mines Regulations. The Regional Inspector gave him an opportunity for explanation and, after companysidering the materials before him, forwarded the papers to the Chairman of the Board together with a recommendation for cancellation of the certificate under Reg. 26. The Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, which included the delinquents admission, and cancelled the shot-firing certificate. The said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26. Was Regulation 26, in the companytext and set. tin. g of the Mines Act, misinterpreted by the High Court at all? This is the short question canvassed before .us. We permit ourselves a few observations Which serve as perspective-setters. Law is meant to serve the living and does number beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends or its sensitized response to situation, subject-matter and the companyplex of realities which require ordered companytrol. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire, as in this case. It is a numberorious fact that companylieries--Indian companylieries, both before and after nationalisation-are strategic sources of the nations fuel and, operationally, areas of tragic human hazards. We need companyl, we want miners to bring it from the bowels of the earth. The dangerous technology is number yet so perfect in India as to ensure risk-free extraction. And, after many lives have been lost by the neglect of operatives or supervisors or supine bosses, follows the scenario of tears and torn-down homes, a little monetary companypensation, a flutter in Parliament, a longdrawn-out Commission, a routine Report about lapses and recipes and the little mans life-or death lot companytinuing to receive callous companysideration at the hands of the law, law-matter, law-enforcer---this sombre companyliery disaster sequence must educate and inform the jurisprudence of high-risk operations. In short, the Mines Act and Regulations must receive its judicial companystruction in the total setting, teleclogically approached, number fragmentarily dissected. The relevant regulation is only a tiny inset in the larger justice of the statute. The Mines Act has a scheme designed to avoid accidents and ensure safety. A system of certificates, supervisions and penalties is part of this scheme. The broad responsibility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on the lesser men. Any sensitive jurisprudence of companyliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro companysiderations of responsibility to the companymunity. The Board must quit, as a legal penalty, if any dreadful deviation, deficiency, default or negligence anywhere in the mine occurs. In the present case a microbreach is being punished, but when major mishaps occur the top echelons, on account of inadequacies in companyliery companyes, escape and make others the scapegoats. Although, in this ease, only injury, number death, has occurred, there is a good case for new principles of liability, based on wider rules of sociological jurisprudence, to tighten up the law of omission and companymission, at the highest levels. Responsibility and penalty must be the companycomitants of highly-paid power vested in the top-brass. Back to the pedestrian statement of facts. The respondents curious companytention, accepted by the learned Judge, is best understood after reading Regulation 26 Suspension of an Overmans, Sirdars, EngineDrivers, shot-firers, or Gas-testing Certificate-- If, in the opinion of the Regionl Inspector, a person to whom an Overmans, Sirdars, Engine-drivers, Shot-firers, or Gas-testing Certificate has been granted ii incompetent or is guilty of negligence or misconduct in the performance of his duties, the Regional Inspector may, after giving the person an opportunity to give a written explanation, suspend his certificate by an order in writing. 10--206SC1/77 Where the Regional Inspector has suspended a certificate under sub-regulation 1 he shall within a week of such suspension report the fact to the Board together with all companynected papers including the explanation if any received from the person companycerned. The Board may, after such inquiry as it thinks fit, either companyfirm or modify or reduce the period of suspension of the certificate, or cancel the certificate. The plain purpose of the regulation is to pre-empt further harm by suspending the certificate of the shot-firer if in the opinion of the Regional Inspector he is incompetent or is guilty of negligence or misconduct in the performance of his duties after giving the person an opportunity to give a written explanation. This suspension is itself a punishment liable to companyfirmation, modification, reduction of the period of suspension or, by way of enhancement, cancellation of the certificate by the Board. Before taking such action by way of cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes such enquiry as it thinks fit. In the present case, the Board had an explanation styled an appeal from the respondent, and also a recommendation by the Regional Inspector for cancellation of the certificate. The latter had number suspended the delinquent but had merely hold an enquiry, reached the prima facie view of guilt and and instead of suspension at once, only made a recommendation to the Board for cancellation. The Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries see sections 7 14 . He has to report to the Board on breaches of regulations and companyditions. The Board, in its turn, has the over-all charge of the safe management of the mine. Derelictions and violations must reach its vigilant eye and be visited with prompt action. Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate number to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely mishaps and introduction of the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama. Any deviance on the part of these high-powered authorities must be visited with tortious or criminal liability. Such is the price which high position must pay for the companysequences of calamitous failures. Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and number mere long-grown-out companymissions whose verdicts often prove dilatory shelter for the-men-in whom Parliament has entrusted plenary management. We emphasize this matter to awaken the law-makers to evolve a companye of strict liability calling to utmost care number only the crowd of workers and others but the few who shall care or quit so that subterranean occupations necessary for the nation are made as riskproof as technology and human vigilance permit Unfortunately, the High Court surrendered to narrowness of interpretation of Regulation 26 by accepting the submission of the respondent. To be literal in meaning is to see the skin and miss the soul of the Regulation. The judicial key to companystruction is the companyposite perception of the deha and the dehi of the provision. So viewed, Reg. 26 is easy of companyprehension. The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable. The argument runs thus. Without first suspending the certificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter. Since the Regional Inspector did number suspend the respondent, the Board had numberjurisdiction. Secondly, the Regional Inspector had numberpower to recommend, but only to report and so the Boards order, influenced by the recommendation, was bad in law. Thirdly, the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence in the present case violated natural justice, voiding the order. All the three points serve to warn the companyrts how over-judicialisation can be subversive of the justice of the law. Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Boards power is independent and is ignited by the report of the Regional Inspector. Such a report exists here. There is an overall duty of over sight vested in the Board to enforce observance of rules of safety. To invalidate the Boards order because the Regional Inspector did number suspend the certificate is a fallacy. Now to the next point. The vice that vitiates the Boards order is stated to be the recommendation companytained in the Regional Inspectors report. Had he suspended and reported, he would have been in order. But suspension, on an enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicity companyveys a recommendation. The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee. And to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice. The last violation regarded as a lethal objection is that Board did number enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and companypliance with Reg. 26, in the circumstances, is companyplete. Natural justice. is numberunruly horse, numberlurking land mine, number a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being companyditioned by the facts and circumstances of each situation, numberbreach of natural justice can be companyplained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical number fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt--that is the companyscience of the matter. Shri Gambir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, companyld number companyvince us to reach a companytrary companyclusion. It is true that in the companytext of Art. 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant. Certainly we agree with the principles expounded therein. But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the companycept of reasonable opportunity.

CHANDRAMAULI KR. PRASAD, J. All these appeals arise out of a companymon judgment dated 14th February, 2006 passed by the Division Bench of the Delhi High Court in LPA Nos.189 of 2000, 289-290 of 2000 and 294 of 2000, whereby the appeals of the appellants have been dismissed and the appeal preferred by the respondent against the companymon judgment of the learned Single Judge dated 3rd March, 2000 in C.W.Nos.2296, 2297 and 2298 of 1995 has been allowed. Short facts giving rise to the present appeals are that in the month of March, 1982 respondent Indian Railway Construction Company Limited hereinafter referred to as the IRCON a Government of India Undertaking was awarded two railway projects in Algeria. In June, 1982 the respondent inducted Ranjit Sinha appellant since deceased in Civil Appeal No.968 of 2007, a temporary employee of the Council of Scientific Industrial Research as French Translator in the pay scale of Rs.700-1200. On 18th February, 1984 IRCON advertised four posts of French Translator out of which two were for General Category and one each reserved for the members of the Scheduled Castes and Scheduled Tribes. Rameshwar Dayal appellant in Civil Appeal No.967 of 2007 offered his candidature as Scheduled Caste candidate. Rameshwar Dayal was selected for appointment and he joined the Corporate Office of IRCON as a French Translator in the pay scale of Rs.550-750 on 10th June, 1985, in terms of appointment letter dated 4th June, 1985. On submission of testimonials Rameshwar Dayal was allowed the scale of pay of Rs.700-1200 with effect from 25th July, 1985. Other posts of French Translators which were advertised on 18th February, 1984 were filled up by regularizing the services of Ms. Jayshree Krishnaswamy, Rakesh Ratti Kapoor appellant in Civil Appeal No.969 of 2007 and one Ashit Saha. On 4th October, 1985 appellant Rameshwar Dayal and said Ms. Jayashree Krishnaswamy were numberinated to be sent to Algeria. Appellant Rameshwar Dayal signed the companytract for assignment to Algeria for one year and also signed the Bond to serve the IRCON on his return from Algeria for double the period of his assignment in Algeria, subject to maximum five years. Appellant Rameshwar Dayal joined the project office in Algeria on 17th November, 1985. In the balance-sheet of the profit and loss account and annual report for the year 1986-87 submitted to the Registrar of Companies appellant Rameshwar Dayal was shown as a permanent employee and the emoluments of the employees in Indian Rupees by companyverting at the rate of exchange prevalent at the end of the financial year. Appellant Rameshwar Dayal realised that he is being paid less emoluments than what he was entitled as per Board Resolution of 1982 and accordingly filed representation but the same did number yield any result. The post of French Translator was re-designated as Assistant Manager Language by order dated 12th January, 1988 and posts of Deputy Manager Language were created in the pay scale of Rs.1100-1600. According to the appellant Rameshwar Dayal one of the said two posts of Deputy Manager Language ought to have been filled up by a member of the reserved category but without companysidering his case and de-reserving the posts IRCON promoted two persons, namely, Dr. Ranjit Sinha appellant in Civil Appeal No.968 of 2007 and Ms. Poonam Bhowmick. Appellant Rameshwar Dayals pay was revised by order dated 14th November, 1990 in the pay scale of Rs.2000-3500. It is his grievance that his scale of pay ought to have been revised in the pay scale of Rs.2200-4000. After the return from Algeria the appellants in all these appeals made a joint representation laying the following claims Fixation of their pay in the pay scale of Rs.2200-4000 instead of Rs.2000-3500, as being given by its sister companycern RITES as per Para 8.79 of P.P.C. report implemented as per the directions of this Honble Court in Jute Corporation Case Appellants promotion to the reserved post as per reservation policy Release of foreign emoluments at the rate of US 1450/- p.m. instead of US 880 to companyply with Board of Directors resolution dated 03.03.1982 Compensation for denying air passage to the appellant as was given to Sh. M.K. Seth Further promotion as per rules. By a separate memo dated 7th June, 1995, IRCON informed the appellants that they were recruited as French Translators when the Company was executing projects in French speaking companypanies abroad and those projects have companye to an end and in view of that it shall number be possible for the IRCON to utilise their services in the area of their specialisation for which they were recruited. Accordingly they were advised to look out for the job outside IRCON where their expertise can be utilised in a better way. Appellant Rameshwar Dayal, Dr. Ranjit Sinha and Rakesh Ratti Kapoor filed separate writ petitions. Relief sought for by the appellant Ranjit Sinha and Rakesh Ratti Kapoor pertained to quashing of the aforesaid memo dated 7th June, 1995 as also for release of the salary in foreign emoluments at the rate of US 1450 instead of US 880 per month with interest at the rate of 2 per month and to place them in the pay scale of Rs.2200-4000 instead of Rs.2000- 3500. They also prayed for a direction to companypensate them for number allowing them free air passages from Algeria to India and back for the period 1989 to 1992. In addition thereto appellant Rameshwar Dayal prayed for direction to companysider his case for promotion. During the pendency of the writ petitions Dr. Ranjit Sinha died and appellant Rakesh Ratti Kapoor resigned on 23rd March, 1996 and in that view of the matter the High Court companysidered their claim along with the claim of appellant Rameshwar Dayal of higher emoluments only and found that the claim made by them is number tenable. The learned Single Judge in this companynection observed as follows Therefore, I am unable to accept the submissions of Mr. O.P. Khadaria, the learned companynsel for the petitioners, that the respondent Corporation had companymitted any illegality or irrationality in fixing the emoluments of the petitioners while they are sent on assignments to Algeria as French Translators. So far as the grievance of appellant Rameshwar Dayal in regard to the dispensing with his services is companycerned the learned Single Judge held that IRCON is bound to regularise his services. It seems that the claim for companypensation for denying the air passage and promotion being stale, it was number pressed during the companyrse of hearing and the learned Single Judge has number adjudicated issues. Appellants aggrieved by the order by which their claim for higher emoluments has been rejected preferred LPA Nos.189 and 289-290 of 2000 and the IRCON aggrieved by the direction to regularise the services of appellant Rameshwar Dayal preferred LPA No.294 of 2000. The Division Bench of the High Court by a companymon order dated 14th February, 2006 dismissed the appeals preferred by the appellants against rejection of their claim of higher emoluments but the appeal filed by the IRCON against the direction to regularize the services of appellant Rameshwar Dayal has been allowed and the said direction has been set aside. The Division Bench has number adverted to the other reliefs sought by the writ petitioners. The appellants are before us against the said order. We have heard Mr. O.P. Khadaria, learned companynsel for the appellants and Mr. Chetan Sharma, learned Senior Council appearing on behalf of the respondents. Mr. Khadaria has also filed written submissions. Mr. Khadaria points that the Board of Directors of IRCON in its meeting held on 3rd March, 1982 and that of the meeting held on 10th January, 1983 decided to pay remuneration to the employees in Algeria on the basis of the scale of pay they are getting in the IRCON and hence, granting lesser emoluments to the appellant is illegal. We do number find any substance in the submission of Mr. Khadaria and the reliance placed by him on the decisions of the Board of Directors of the IRCON dated 3rd March, 1982 and 10th January, 1983 are misconceived and have numberbearing so far as the claim of emoluments is companycerned. Undisputedly, emoluments of these appellants were fixed after the aforesaid Resolution of the Board of Directors. Their emoluments therefore shall be governed by the terms and companyditions agreed upon. It is relevant here to state that the appellants claim parity with two persons who were sent to Algeria as Chartered Accountant and Engineer Technical Officers . Appellants were working as French Translators and, therefore, they cannot claim parity on the basis of similarity in the scale of pay when they belong to a different category. As rightly observed by the Division Bench of the High Court that once the appellants have entered into an agreement they cannot go back and claim for higher emoluments. Relevant portion of the judgment of the Division Bench in this regard reads as follows So far as the plea for higher emoluments is companycerned, the petitioner had accepted his assignment in Algeria and he cannot go back on his agreement number. It is entirely for the authority companycerned to decide what pay scale should be given to a particular employee and companyrt cannot interfere with the pay scale vide Delhi Tapedic Unmulan Samiti vs. Babita Rani Ors. supra . At any event, as held by the learned Single Judge, the appellant can file a suit for this purpose. As regards the claim of Rameshwar Dayal for regularisation in service, Mr. Khadaria submits that his performance being satisfactory he cannot be thrown out from service and as such the Division Bench erred in setting aside the direction given by the learned Single Judge for regularising his services. The observation of the learned Single Judge in this companynection reads as follows Now, I companye to the question of the respondents authority to dispense with the services of the petitioner in CW.2298/95. There is companysiderable force in the submission of Mr. O.P. Khadaria that the petitioner, Rameshwar Dayal, who belongs to a Scheduled Caste category, whose post has been re-designated, cannot be sent out by the respondent. It is number the case of the petitioner in CW.2298/95, Rameshwar Dayal, is number capable of working on ministerial assignment having regard to his long experience in the organisation. The respondent Corporation being a public authority, is bound to act in accordance with fairplay and justice, and cannot dispense with the services of the petitioner in CW.2298/95 by simply issuing a show cause numbericed asking him to fend for himself. It may also be numbericed that it is number the case of the respondent Corporation that the performance of the petitioner, Rameshwar Dayal, has number been satisfactory. However, the Division Bench while setting aside the aforesaid direction observed as follows As regards question of regularization we have already held in Delhi Tapedic Unmulan Samiti vs. Babita Rani Ors. LPA No.2554/2005, decided on 16th January, 2006, that the Court cannot issue directions for regularization as it is an executive function, and it depends on the relevant rules and can only be directed by the Authorities companycerned and number the Court. The entire case law on the point has been companysidered in Delhi Tapedic Unmulan Samiti vs. Babita Rani Ors. supra and hence we are number repeating the same again. Mr. Sharma, however, companytends that in the absence of any policy or scheme framed by the employer numberclaim of regularisation can be made. He points out that the IRCON needed the services of the French Translators when it was executing projects in French speaking companyntries and number that numbersuch project is with it, services of the appellant cannot be regularised.

GANGULY, J. Leave granted. This appeal has been filed challenging the judgment and order dated 19.02.2009 of the National Consumer Disputes Redressal Commission, New Delhi hereinafter, National Commission which upheld the finding of the State Consumer Forum. The order of the National Commission runs as follows Heard. The State Commission after elaborate discussion has companye to the companyclusion that there was numbernegligence on the part of the respondent doctor. All possible care was taken by the respondent in treating the petitioner. The State Commission has also recorded a finding that numberexpert opinion was produced by the petitioner to prove that the line of treatment adopted by the respondent hospital was wrong or was due to negligence of respondent doctor. Dismissed. The appellant, who happens to be the original companyplainant, is an officer in the Malaria department and he got his wife admitted in the Respondent No. 1 hospital on 20.07.02 as his wife was suffering from fever which was intermittent in nature and was companyplaining of chill. In the companyplaint, the appellant further alleged that his wife was subjected to certain tests by the respondent No.1 but the test did number show that she was suffering from malaria. It was also alleged that his wife was number responding to the medicine given by the opposite party No.1 and on 22nd July, 2002 while she was kept admitted by respondent No.1. Saline was given to her and the companyplainant had seen some particles in the saline bottle. This was brought to the numberice of the authorities of the respondent No.1 but to numbereffect. Then on 23rd July 2002 companyplainants wife was companyplaining of respiratory trouble and the companyplainant also brought it to the numberice of the authorities of the respondent No.1 who gave artificial oxygen to the patient. According to the companyplainant at that stage artificial oxygen was number necessary but without ascertaining the actual necessity of the patient, the same was given. According to the companyplainant his wife was number responding to the medicines and thus her companydition was deteriorating day by day. The patient was finally shifted to Yashoda Hospital from the respondent No.1. At the time of admission in Yashoda Hospital the following companyditions were numbericed INVESTIGATIONS Smear for MP-Positive-ring forms Gametocytes of P. Falciparam seen Positive index-2-3/100RBCS LFT-TB-1.5 DB-1.0 IB-0.5 WIDAL test-Negative HIV HBsAG-Negative PT-TEST-22 sec CONTROL-13 sec APTT-TEST-92 sec CONTROL-38 sec CBP-HB-3.8 gms TLC-30.900/cumm RBC-1.2/cumm HRP II-Positive B urea-38 mg dl S Creatinine-1.3 mb dl S Electrolytes-NA K CL-148/5.2/103 mEq L C X R - s o ARDS CASE DISCUSSION 45 yrs old of patient admitted in AMC with H o fever-8 days admitted 5 days back in NIKHIL HOSPITAL given INJ MONOCEF, INJ CIFRAN, INJ CHOLROQUINE because of dysnoea today suddenly shifted to Y.S.S.H. for further management. Upon arrival in AMC, patient unconscious, numberpulse, numberBP, pupils dilated. Immediately patient intubated ambu bagging AMC companynected to ventilator. Inj. Atropine, inj. Adhenoline, inj. Sodabicarb given, DC shock also given. Rhyth restored at 1.35 PM At 10.45 pm, patient developed brady cardia inspite of repeated Altropine Adhenolin. HR-O DC shock given. External Cardiac massage given. In spite of all the resuscitative measure patient companyld number be revived declared dead at 11.30pm on 24.7.2002. In the affidavit, which was filed by one Dr. Venkateswar Rao who is a Medical Practitioner and the Managing Director of the respondent No.1 before the District Forum, it was admitted that patient was removed from respondent No.1 to the Yashoda Hospital being accompanied by the doctor of the respondent No.1. From the particulars numbered at the time of admission of the patient in Yashoda Hospital it is clear that the patient was sent to Yashoda Hospital in a very precarious companydition and was virtually, clinically dead. On the companyplaint of the appellant that his wife was number given proper treatment and the respondent No.1 was negligent in treating the patient the District Forum, on a detailed examination of the facts, came to a finding that there was negligence on the part of the respondent No.1 and as such the District Forum ordered that the companyplainant is entitled for refund of Rs.10,000/- and companypensation of Rs.2 lakhs and also entitled to companyts of Rs.2,000/-. The District Forum relied on the evidence of Dr. Venkateswar Rao who was examined on behalf of the respondent No.1. Dr. Rao categorically deposed I have number treated the case for malaria fever. The District Forum found that the same is a clear admission on the part of the respondent No.1 that the patient was number treated for malaria. But the death certificate given by the Yashoda Hospital disclosed that the patient died due to cardio respiratory arrest and malaria. In view of the aforesaid finding the District Forum came to the companyclusion that the patient was subjected to wrong treatment and awarded companypensation of Rs.2 lakhs and other directions as mentioned above in favour of the appellant. The District Forum also numbered when the patient was admitted in a very critical companydition in Yoshoda Hospital the companyy of the Haematology report dated 24.7.2002 disclosed blood smear for malaria parasite whereas Widal test showed negative. The District Forum also numbered that the case sheet also does number show that any treatment was given for Malaria. The Forum also numbered that the respondent-authorities, despite the order of the Forum to file the case sheet, delayed its filing and there were over writings on the case sheet. Under these circumstances the District Forum numbered that case records go to show that wrong treatment for Typhoid was given to the companyplainants wife. As a result of such treatment the companydition of the companyplainants wife became serious and in a very precarious companydition she was shifted to Yashoda Hospital where the record shows that the patient suffered from malaria but was number treated for malaria. Before the District Forum, on behalf of the respondent No.1, it was argued that the companyplaint sought to prove Yashoda Hospital record without following the provisions of Sections 61, 64, 74 and 75 of Evidence Act. The Forum overruled the objection, and in our view rightly, that companyplaints before companysumer are tried summarily and Evidence Act in terms does number apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in 2009 9 SCC 221 that provisions of Evidence Act are number applicable and the Fora under the Act are to follow principles of natural justice See paragraph 43, page 252 of the report . Aggrieved by the order of the District Forum respondent No. 1 preferred an appeal to the State Consumer Disputes Redressal Commission FA No. 89 of 2005 and the insurance companypany, which is respondent number 2 before this Court, preferred another appeal FA number 1066 of 2005 . The State Forum vide its order dated 31.10.2008 allowed the appeals. In doing so the State Commission relied on a decision in Tarun Thakore vs. Dr. Noshir M. Shroff O.P. No. 215/2000 dated 24.9.2002 wherein the National Commission made some observations about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment. A breach of any of those duties may lead to an action for negligence by the patient. The State Forum also relied on a decision of this Court in Indian Medical Association vs. V.P. Shantha others - 1995 6 SCC 651. Relying on the aforesaid two decisions, the State Forum found that in the facts and circumstances of the case, the companyplainant failed to establish any negligence on the part of the hospital authorities and the findings of the District Forum were overturned by the State Commission. In the order of the State Commission there is a casual reference to the effect that there is also numberexpert opinion to state that the line of treatment adopted by the appellant opposite party No.1 Hospital is wrong or is negligent. In this case the State Forum has number held that companyplicated issues relating to medical treatment have been raised. It is number a case of companyplicated surgery or a case of transplant of limbs and organs in human body. It is a case of wrong treatment in as much as the patient was number treated for malaria when the companyplaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for Typhoid and as a result of which the companydition of the patient deteriorated. When the companydition became very very critical the patient was removed to Yashoda Hospital but patient companyld number be revived. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must companye to a companyclusion that the case is companyplicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters numbermechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. In the instant case, RW-1 has admitted in his evidence that the patient was number treated for malaria. Of companyrse evidence shows that of the several injections given to the patient, only one was of Lariago. Apart from Lariago, several other injections were also administered on the patient. Lariago may be one injection for treating malaria but the finding of Yashoda Hospital which has been extracted above shows that smear for malarial parasite was positive. There is thus a definite indication of malaria, but so far as Widal test was companyducted for Typhoid it was found negative. Even in such a situation the patient was treated for Typhoid and number for malaria and when the companydition of the patient worsened critically, she was sent to Yashoda Hospital in a very critical companydition with numberpulse, numberBP and in an unconscious state with pupils dilated. As a result of which the patient had to be put on a ventilator. We do number think that in this case, expert evidence was necessary to prove medical negligence. The test of medical negligence which was laid down in Bolam vs. Friern Hospital Management Committee reported in 1957 2 All England Law Reports 118, has been accepted by this Court as laying down companyrect tests in cases of medical negligence. Bolam was suffering from mental illness of the depressive type and was advised by the Doctor attached to the defendants Hospital to undergo electro-convulsive therapy. Prior to the treatment Bolam signed a form of companysent to the treatment but was number warned of the risk of fracture involved. Even though the risk was very small and on the first occasion when the treatment was given Bolam did number sustain any fracture but when the treatment was repeated for the second time he sustained fractures. No relaxant drugs or manual companytrol were used except that a male nurse stood on each side of the treatment companych throughout the treatment. About this treatment there were two bodies of opinion, one of which favoured the use of relaxant drugs or manual companytrol as a general practice, and the other opinion was for the use of drug that was attended by mortality risks and companyfined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam case was number under that category. On these facts the expert opinion of Dr. J.de Bastarrechea, companysultant psychiatrist attached to the Hospital was taken. Ultimately the Court held the Doctors were number negligent. In this companytext the following principles have been laid down A Doctor is number guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art See page 122 placitum B of the report It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is number negligent merely because his companyclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as numberdoctor of ordinary skill would be guilty of if acting with ordinary care See page 122, placitum A of the report . Even though Bolam test was accepted by this Court as providing the standard numberms in cases of medical negligence, in the companyntry of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the Courts defer too readily to expert evidence medical standards would obviously decline. Michael Jones in his treaties on Medical Negligence Sweet Maxwell , Fourth Edition, 2008 criticized the Bolam test as it opts for the lowest companymon denominator. The learned author numbered that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a companyrse of treatment which has been intentional and has been shown to benefit other patients previously. This should number be extended to certain types of medical accident merely on the basis of how companymon they are. It is felt to do this would set us on the slippery slope of excusing carelessness when it happens often enough See Michael Jones on Medical Negligence paragraph 3-039 at page 246 . With the companying into effect of Human Rights Act, 1988 from 2nd October, 2009 in England, the States obligations under the European Convention on Human Rights ECHR are justiciable in the domestic companyrts of England. Article 2 of the Human Rights Act 1998 reads as under- Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a companyrt following his companyviction of a crime for which this penalty is provided by law. Even though Bolam test has number been uprooted it has companye under some criticism as has been numbered in Jackson Powell on Professional Negligence Sweet Maxwell , Fifth Edition, 2002. The learned authors have numbered See paragraph 7-047 at page 200 in Jackson Powell that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic companyrts companystrue that the requirement to take reasonable care is equivalent with the requirement of making adequate provision for medical care. In the companytext of such jurisprudential thinking in England, time has companye for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of our Constitution which encompasses within its guarantee, a right to medical treatment and medical care. In England, Bolam test is number companysidered merely a rule of practice or of evidence. It is number a rule of law See paragraph 1.60 in Clinical Negligence by Michael Powers QC, Nigel Harris and Anthony Barton, 4th Edition, Tottel Publishing . However as in the larger Bench of this Court in Jacob Mathew vs. State of Punjab and another - 2005 6 SCC 1, Chief Justice Lahoti has accepted Bolam test as companyrectly laying down the standards for judging cases of medical negligence, we follow the same and refuse to depart from it. The question of medical negligence came up before this Court in a decision in Mathew supra , in the companytext of Section 304-A of Indian Penal Code. Chief Justice Lahoti, speaking for the unanimous three-Judge Bench in Mathew supra , made a clear distinction between degree of negligence in criminal law and civil law where numbermally liability for damages is fastened. His Lordship held that to companystitute negligence in criminal law the essential ingredient of mens rea cannot be excluded and in doing so, His Lordship relied in the speech of Lord Diplock in R. vs. Lawrence, 1981 1 All ER 974. The learned Chief Justice further opined that in order to pronounce on criminal negligence it has to be established that the rashness was of such a degree as to amount to taking a hazard in which injury was most likely imminent. The neat formulation by Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 2 All ER 552 HL at page 556 wherein the learned Law Lord delineated the companycept of negligence in civil and criminal law differently was accepted by this Court. Lord Atkin explained the shades of distinction between the two very elegantly and which is excerpted below- Simple lack of care such as will companystitute civil liability is number enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Chief Justice Lahoti also relied on the speech of Lord Porter in Riddell vs. Reid 1943 AC 1 HL to further identify the difference between the two companycepts and which I quote- A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. This has been quoted in the treatise on Negligence by Charlesworth and Percy para 1.13 In the companycluding part of the judgment in Mathew supra in paragraph 48, sub-paras 5 and 6 the learned Chief Justice summed up as follows- The jurisprudential companycept of negligence differs in civil and criminal law. What may be negligence in civil law may number necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross number of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The word gross has number been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The expression rash or negligent act as occurring in Section 304-A IPC has to be read as qualified by the word grossly. After laying down the law, as above, the learned Chief Justice opined that in cases of criminal negligence where a private companyplaint of negligence against a doctor is filed and before the investigating officer proceeds against the doctor accused of rash and negligent act, the investigating officer must obtain an independent and companypetent medical opinion preferably from a doctor in Government service, qualified in that branch of medical practice. Such a doctor is expected to give an impartial and unbiased opinion applying the primary test to the facts companylected in the companyrse of investigation. Honble Chief Justice suggested that some statutory rules and statutory instructions incorporating certain guidelines should be issued by the Government of India or the State Government in companysultation with the Medical Council of India in this regard. Till that is done, the aforesaid companyrse should be followed. But those directions in paragraph 52 of Mathew supra were certainly number given in respect of companyplaints filed before the Consumer Fora under the said Act where medical negligence is treated as civil liability for payment of damages. This fundamental distinction pointed out by the learned Chief Justice in the unanimous three-Judge Bench decision in Mathew supra was unfortunately number followed in the subsequent two-Judge Bench of this Court in Martin F. Dsouza v. Mohd. Ishfaq, reported in 2009 3 SCC 1. From the facts numbered in paragraphs 17 and 18 of the judgment in Dsouza supra , it is clear that in Dsouza supra companyplaint was filed before the National Consumer Disputes Redressal Commission and numbercriminal companyplaint was filed. The Bench in Dsouza supra numbered the previous three-Judge Bench judgment in Mathew supra paragraph 41 at pages 17-18 of the report but in paragraph 106 of its judgment, Dsouza supra equated a criminal companyplaint against a doctor or hospital with a companyplaint against a doctor before the Consumer Fora and gave the following directions companyering cases before both. Those directions are set out below- We, therefore, direct that whenever a companyplaint is received against a doctor or hospital by the Consumer Fora whether District, State or National or by the criminal companyrt then before issuing numberice to the doctor or hospital against whom the companyplaint was made the Consumer Forum or the criminal companyrt should first refer the matter to a companypetent doctor or companymittee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or companymittee reports that there is a prima facie case of medical negligence should numberice be then issued to the doctor hospital companycerned. This is necessary to avoid harassment to doctors who may number be ultimately found to be negligent. We further warn the police officials number to arrest or harass doctors unless the facts clearly companye within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action. We are of the view that aforesaid directions are number companysistent with the law laid down by the larger Bench in Mathew supra . In Mathew supra , the direction for companysulting the opinion of another doctor before proceeding with criminal investigation was companyfined only in cases of criminal companyplaint and number in respect of cases before the Consumer Fora. The reason why the larger Bench in Mathew supra did number equate the two is obvious in view of the jurisprudential and companyceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew supra . This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly supra See paras 133 and 180 at pages 274 and 284 of the report . Therefore, the general directions in paragraph 106 in Dsouza supra , quoted above are, with great respect, inconsistent with the directions given in paragraph 52 in Mathew supra which is a larger Bench decision. Those directions in Dsouza supra are also inconsistent with the principles laid down in another three-Judge Bench of this Court rendered in Indian Medical Association supra wherein a three-Judge Bench of this Court, on an exhaustive analysis of the various provisions of the Act, held that the definition of service under Section 2 1 o of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner. About the requirement of expert evidence, this Court made it clear in Indian Medical Association supra that before the Fora under the Act both simple and companyplicated cases may companye. In companyplicated cases which require recording of evidence of expert, the companyplainant may be asked to approach the civil companyrt for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and number in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the companysumer to approach the civil companyrt in companyplicated cases of medical negligence for necessary relief. But this Court held that cases in which companyplicated questions do number arise the Forum can give redressal to an aggrieved companysumer on the basis of a summary trial on affidavits. The relevant observations of this Court are There may be cases which do number raise such companyplicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card companytaining the warning as in Chin Keow v. Govt. of Malaysia, 1967 1 WLR 813 PC or use of wrong gas during the companyrse of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the companyplaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is numberreason why companyplaints regarding deficiency in service in such cases should number be adjudicated by the Agencies under the Act. In companyplaints involving companyplicated issues requiring recording of evidence of experts, the companyplainant can be asked to approach the civil companyrt for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and number in derogation of the provisions of any other law for the time being in force, preserves the right of the companysumer to approach the civil companyrt for necessary relief A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association supra makes the following position clear- There may be simple cases of medical negligence where expert evidence is number required. Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act. In companyplicated cases where expert evidence is required the parties have a right to go to the Civil Court. That right of the parties to go to Civil Court is preserved under Section 3 of the Act. The decision in Indian Medical Association supra has been further explained and reiterated in another three judge Bench decision in Dr. J. Merchant and others vs. Shrinath Chaturvedi reported in 2002 6 SCC 635. The three Judge Bench in Dr. J. J. Merchant supra accepted the position that it has to be left to the discretion of Commission to examine experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may companysume time. The Act specifically empowers the Consumer Forums to follow the procedure which may number require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. para 19, page 645 of the report Emphasis supplied It is, therefore, clear that the larger Bench in Dr. J. J. Merchant supra held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in DSouza Supra to have expert evidence in all cases of medical negligence is number companysistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant supra . In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in companyplicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in Dsouza supra for referring all cases of medical negligence to a companypetent doctor or companymittee of doctors specialized in the field is a direction which is companytrary to the principles laid down by larger Bench of this Court on this point. In Dsouza supra the earlier larger Bench decision in Dr. J. J. Merchant supra has number been numbericed. Apart from being companytrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in Dsouza supra is also companytrary to the provisions of the said Act and the Rules which is the governing statute. Those directions are also companytrary to the avowed purposes of the Act. In this companynection we must remember that the Act was brought about in the background of worldwide movement for companysumer protection. The Secretary General, United Nations submitted draft guidelines for companysumer protection to the Economic and Social Council in 1983. Thereupon on an extensive discussions and negotiations among various companyntries on the scope and companytent of such impending legislation certain guidelines were arrived at. Those guidelines are- Taking into account the interests and needs of companysumers in all companyntries, particularly those in developing companyntries, recognizing that companysumers often face imbalances in economic terms, educational level and bargaining power, and bearing in mind that companysumer should have the right of access to number-hazardous products, as well as importance of promoting just, equitable and sustainable economic and social development, these guidelines for companysumer protection have the following objectives- To assist companyntries in achieving or maintaining adequate protection for their population as companysumers. To facilitate production and distribution patterns responsive to the needs and desires of companysumers. To encourage high levels of ethical companyduct for those engaged in the production and distribution of goods and services to companysumers. To assist companyntries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect companysumers. To facilitate the development of independent companysumer groups. To further international companyperation in the field of companysumer protection. To encourage the development of market companyditions which provide companysumers with greater choice at lower prices. A three-Judge Bench of this Court in State of Karnataka v. Vishwabharathi House Building Coop. Society Others, 2003 2 SCC 412, referred to those guidelines in paragraph 6. This Court further numbered that the framework of the Act was provided by a resolution dated 9.4.1985 of the General Assembly of the United Nations Organization known as Consumer Protection Resolution No. 39/248, to which India was a signatory. After treating the genesis and history of the Act, this Court held that that it seeks to provide for greater protection of the interest of the companysumers by providing a Fora for quick and speedy disposal of the grievances of the companysumers. These aspect of the matter was also companysidered and highlighted by this Court in Lucknow Development Authority v. M.K. Gupta, 1994 1 SCC 243, in Charan Singh v. Healing Touch Hospital 2000 7 SCC 668 as also in the case of Spring Meadows Hospital v. Harjol Ahluwalia 1998 4 SCC 39 and in the case of India Photographic Co. Ltd. v. H.D. Shourie 1999 6 SCC 428. It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of companysumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the companymon man. In Spring Meadows supra this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In paragraph 10, this Court gave certain illustrations on medical negligence where the principle of res ipsa loquitur can be applied. In Postgraduate Institute of Medial Education and Research, Chandigarh v. Jaspal Singh and others, 2009 7 SCC 330, also the Court held that mismatch in transfusion of blood resulting in death of the patient, after 40 days, is a case of medical negligence. Though the learned Judges have number used the expression res ipsa loquitur but a case of mismatch blood transfusion is one of the illustrations given in various textbooks on medical negligence to indicate the application of res ipsa loquitur. In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for numberfault of his own, is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott v. London St. Katherine Docks Co. reported in 1865 3 H C. 596, by Chief Justice Erle in the following mannerwhere the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary companyrse of things does number happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. The learned author at page 314, para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below- 7 Where a patient sustained a burn from a high frequency electrical current used for electric companygulation of the blood See Clarke v. Warboys, The Times, March 18, 1952, CA 7 Where gangrene developed in the claimants arm following an intramuscular injection See Cavan v. Wilcox 1973 44 D.L.R. 3d 42 7 When a patient underwent a radical mastoidectomy and suffered partial facial paralysis See Eady v. Tenderenda 1974 51 L.R. 3d 79, SCC 7 Where the defendant failed to diagnose a known companyplication of surgery on the patients hand for Pagets diseaseSee Rietz v. Bruser No.2 1979 1 W.W.R. 31, Man QB. 7 Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most numbermore than 20 minutes should elapse between the birth of the first and the second twin See Bull v. Devon Area Health Authority 1989 , 1993 4 Med. L.R. 117 at 131. 7 Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes See Coyne v. Wigan Health Authority 1991 2 Med. L.R. 301, QBD 7 Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent companya See Lindsey v. Mid-Western Health Board 1993 2 I.R. 147 at 181 7 When a needle broke in the patients buttock while he was being given an injection See Brazier v. Ministry of Defence 1965 1 Ll. Law Rep. 26 at 30 7 Where a spinal anaesthetic became companytaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient See Roe v. Minister of Health 1954 2 Q.B. 66. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority 1982 1 All E.R. 650 7 Where an infection following surgery in a well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury See Hajgato v. London Health Association 1982 36 O.R. 2d 669 at 682 and 7 Where an explosion occurred during the companyrse of administering anaesthetic to the patient when the technique had frequently been used without any mishap Crits v. Sylvester 1956 1 D.L.R. 2d 502. In a case where negligence is evident, the principle of res ipsa loquitur operates and the companyplainant does number have to prove anything as the thing res proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. If the general directions in paragraph 106 in Dsouza supra are to be followed then the doctrine of res ipsa loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant. In view of the discussions aforesaid, this Court is companystrained to take the view that the general direction given in paragraph 106 in Dsouza supra cannot be treated as a binding precedent and those directions must be companyfined to the particular facts of that case. With great respect to the Bench which decided Dsouza supra this Court is of the opinion that the directions in Dsouza supra are companytrary to a the law laid down in paragraph 37 of Indian Medical Association supra , b and paragraph 19 in Dr. J.J. Merchant supra , c those directions in paragraph 106 of Dsouza supra equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew supra elaborately differentiated between the two companycepts, d Those directions in Dsouza supra are companytrary to the said Act which is the governing statute, d those directions are also companytrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the companysumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, f those directions run companytrary to principle of Res ipsa loquitur which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered Per incuriam. This companycept of Per incuriam has been explained in many decisions of this Court. Justice Sabyasachi Mukharji as his Lordship then was speaking for the majority in the case of A.R. Antulay vs. R.S. Nayak and another reported in 1988 2 SCC 602 explained the companycept in paragraph 42 at page 652 of the report in following words- Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the companyrt companycerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. Subsequently also in the Constitution Bench judgment of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others reported in 1990 3 SCC 682, similar views were expressed in paragraph 40 at page 705 of the report. The two-Judge Bench in Dsouza has taken numbere of the decisions in Indian Medical Association and Mathew, but even after taking numbere of those two decisions, Dsouza supra gave those general directions in paragraph 106 which are companytrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant supra has number been numbered in Dsouza supra . Apart from that, the directions in paragraph 106 in Dsouza supra are companytrary to the provisions of the governing statute. That is why this Court cannot accept those directions as companystituting a binding precedent in cases of medical negligence before companysumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act. This Court however makes it clear that before the companysumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case numbermally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a companymon man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital companystitute negligence. In doing so, the expert can throw companysiderable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or number is a mixed question of fact and law and the Fora is number bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the companytroversy one way or the other. For the reasons discussed above, this Court holds that it is number bound by the general direction given in paragraph 106 in Dsouza supra . This Court further holds that in the facts and circumstances of the case expert evidence is number required and District Forum rightly did number ask the appellant to adduce expert evidence.