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Monday, July 29, 2013

Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948= A proceeding under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as “the Act”, was initiated by one Rama Dattu Naikwade, predecessor-in-interest of the respondents, for determination of price of the land on the plea that he shall be deemed to have purchased the land.=The Additional Tahsildar & ALT, Radhanagari, at the first instance, held that the land in question was leased out for growing sugarcane and, accordingly, dropped the proceeding. = Section 43A of the Bombay Tenancy Act was exempting certain categories of the cultivation of the land and the persons cultivating it for growing sugarcane, for making improvement in the financial and social status of the peasants using the land for growing sugarcane, fruits or flowers or for the breeding of livestock. The words which are used in sub-clause (b) of Section 43A(1) clearly provide that such exemption was available to the leases of land granted by "any bodies" or "persons" other than those mentioned in clause (a) for cultivation of sugarcane or the growing of fruits or flowers or for breeding of livestock. The words used in sub-clause (b) "any bodies" or "persons" cannot be made applicable to a single person. Such an attempt would be throttling the spirit of enacting Section 43A of the Bombay Tenancy Act…………..”= INTERPRETATION OF WORD " PERSONS " = “Section 13 - Gender and number. In all Bombay Acts or Maharashtra Acts, unless there is anything repugnant in the subject or context, - (a) words importing the masculine gender shall be taken to include females; and (b) words in the singular shall include the plural, and vice versa.”= It is relevant here to state that the High Court has not come to the conclusion that there is anything repugnant in the subject or context so as to come to the conclusion that the plural will not include the singular. We have examined the use of the plural word “persons” from that angle and we do not find that there is anything repugnant in the subject or context so that it may not be read as singular. It is worth mentioning here that sub-section (b) of Section 43A(1) of the Act has also used the plural expression “leases” and if we accept the reasoning of the High Court, the aforesaid provision shall cover only such cases where there is more than one lease. This, in our opinion, will defeat the very purpose of the Act. Thus, the impugned judgment of the High Court is vulnerable on both the counts and, hence, cannot be sustained. In the result, the appeal is allowed, impugned judgment of the High Court is set aside and that of the Tribunal is restored. In the facts and circumstances of the case, there shall be no order as to costs.

           PUBLISHED IN    http://judis.nic.in/supremecourt/imgst.aspx?filename=40605   
       REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1675 OF 2004


GOVINDA BALA PATIL (D) BY LRS.               APPELLANTS

                                   VERSUS

GANPATI RAMCHANDRA NAIKWADE (D) BY LRS. RESPONDENTS


                                  JUDGMENT


CHANDRAMAULI KR. PRASAD,J.


      This appeal arises out of a proceeding under Section 32G of the Bombay
Tenancy and Agricultural Lands Act, 1948.
One  Govinda  Bala  Patil,  since
deceased,  the  predecessor-in-interest  of  the   appellants,   hereinafter
referred to as “the landlord”, owned land being R.S. No. 51  admeasuring  35
gunthas at Village Pandewadi within Taluka Radhanagari in  the  District  of
Kolhapur.
A  proceeding  under  Section  32G  of  the  Bombay  Tenancy  and
Agricultural Lands Act, 1948, hereinafter referred  to  as  “the  Act”,  was initiated  by  one  Rama  Dattu  Naikwade,  predecessor-in-interest  of  the respondents, for determination of price of the land  on  the  plea  that  he shall be deemed to have purchased the  land.   
The  Additional  Tahsildar  &
ALT, Radhanagari, at the first instance, held that the land in question  was leased out for growing sugarcane and, accordingly, dropped  the  proceeding.
However, in appeal, the said order was set aside and the  matter  ultimately
remitted back to him to hold fresh  inquiry.  
Accordingly,  the  Additional
Tahsildar held fresh inquiry and again by its order dated 10th of  December,
1981 reiterated its earlier finding and held that the land  was  leased  out
for  growing  sugarcane  and  the  proceeding  was  dropped.  
The   tenant
thereafter preferred appeal which was heard by the  Sub-Divisional  Officer,
Shahuwadi Division, Kolhapur who allowed the appeal and set aside the  order
of the Additional Tahsildar on its finding that the landlord has  failed  to
prove the specific purpose  of  the  lease.  
The  landlord  then  preferred
revision before the  Maharashtra  Revenue  Tribunal,  Kolhapur,  hereinafter
referred to as “the Tribunal”,  which  set  aside  the  order  of  the  Sub-
Divisional Officer and restored that of  the  Additional  Tahsildar.   While
doing so, the Tribunal held as follows:

                 “In the instant case as I have  stated  earlier  there  is
           sufficient evidence on record to show on the basis of entries in
           the “E” Patrak that suit land was continuously growing sugarcane
           crop from the  year  1946  and  this  particular  fact  is  also
           corroborated  to  some  extent  by  two  independent   witnesses
           examined by the applicant-landlords.  So in this case it  cannot
           be said that no agreement of lease was established  between  the
           parties and in as much as sugarcane crop was grown in  the  suit
           land since the year 1946, there are reasons to believe that  the
           main purpose of lease was for growing sugarcane crop.”


      The tenant assailed the aforesaid order before the  High  Court  in  a
writ petition.
The High Court by the impugned order set aside the order  of
the Tribunal and held that the Tribunal erred in setting aside  the  finding
of the Sub-Divisional Officer that the land in question was not  leased  out
for  sugarcane  cultivation.  
The  High  Court,  in  this  connection,  has
observed as follows:
           “12. While toppling the judgment and order passed  by  the  Sub-
           Divisional Officer, Shahuwadi, the learned Member of M.R.T.  has
           dislodged the findings of facts recorded by the said  authority.
           After examining the judgment and  order  passed  by  the  S.D.O.
           Shahuwadi, this Court comes to the conclusion that the  findings
           recorded by  the  S.D.O.  Shahuwadi  were  consistent  with  the
           evidence on record. The approach adopted  by  him  was  correct,
           proper  and  legal.  When  that  was  so,  it  was  beyond   the
           jurisdiction of the learned Member of M.R.T. to dislodge  it  in
           the revision. The findings of facts consistent with evidence and
           law cannot be dislodged by revisional authority.”

      The High Court has further held that Section 43A of the Act  will  not
govern the field as the lease in question was not given  to  more  than  one
person.  At this juncture, we  consider  it  appropriate  to  reproduce  the
reasoning of the High Court in this regard:
           “11. Section 43A of the Bombay Tenancy Act was 
exempting certain
 categories of the  cultivation  of  the  land  and  
the  persons
 cultivating it for growing sugarcane, for making improvement  in
  the financial and social status of the peasants using  the  land
 for growing sugarcane, fruits or flowers or for the breeding  of
 livestock. 
The words which are used in sub-clause (b) of Section
43A(1) clearly provide that such exemption was available to  the
 leases of land granted by "any bodies" or "persons"  other  than
 those mentioned in clause (a) for cultivation  of  sugarcane  or
 the growing of fruits or flowers or for breeding  of  livestock.
 The words used in  sub-clause  (b)  "any  bodies"  or  "persons"
 cannot be made applicable to a single person. 
Such  an  attempt would be throttling the spirit of enacting Section  43A  of  the Bombay Tenancy Act…………..”

      We have  heard  Dr.  Rajeev  B.  Masodkar,  learned  counsel  for  the
appellants whereas  respondents  are  represented  by  Mr.  Kailash  Pandey,
Advocate.

      Dr.  Masodkar contends that the finding recorded by the Tribunal  that
the lease was for cultivation of sugarcane has been set aside  by  the  High
Court without assigning any reason and it merely stated  “that  the  finding
recorded by the SDO Shahuwadi is consistent with  the  evidence  on  record”
and “the approach adopted by him was correct, proper and legal” and in  such
circumstances “it was beyond the jurisdiction” of the Tribunal “to  dislodge
it in the revision”.  He points out  that  the  Sub-Divisional  Officer  had
jumped to a finding without assigning any reason and hence it was  open  for
the Tribunal to upset the same and record  its  own  finding.   Mr.  Pandey,
however, submits that the Tribunal, which is a  court  of  revision,  cannot
act as a court of appeal and, hence, the High Court  was  right  in  setting
aside its finding.

      We have considered the rival submission and we find substance  in  the
submission  of  Dr.  Masodkar.   True  it  is  that  the  revisional   court
ordinarily does not reappraise the evidence but in case  it  is  found  that
the finding  recorded  by  the  appellate  authority  is  perverse,  nothing
prevents it from upsetting the finding of the appellate authority.   If  the
appellate authority records a finding without consideration of the  relevant
material or on consideration of irrelevant material or the  finding  arrived
at is such that no person duly instructed in law can reach at that  finding,
such finding in law is called perverse and in such  a  contingency,  in  our
opinion, it is within the jurisdiction of the revisional court to set  aside
the said finding.


       Bearing in mind the principles aforesaid, when we consider the  facts
of the present case we are of the opinion that the finding recorded  by  the
Sub-Divisional Officer is patently  perverse.   The  Sub-Divisional  Officer
has referred to the statement of the landlord and  his  witnesses  that  the
land was leased out for growing sugarcane but rejected the evidence  on  the
ground that the “landlord and his witnesses have not been able to prove  the
purpose of lease beyond reasonable doubt”  and  ultimately  held  that  “the
landlord has failed to prove the specific  purpose  of  the  lease.”   While
doing so, the Sub-Divisional Officer, in our opinion, has lost sight of  the
basic principle that  the  nature  of  the  proceeding  is  decided  on  the
preponderance of probability and the principle of  proof  beyond  reasonable
doubt does  not  apply  in  such  proceeding.  Further,  the  Sub-Divisional
Officer, without assigning any reason, has  rejected  the  evidence  of  the
landlord and his witnesses and  jumped to a conclusion without reference  to
the evidence.  We have quoted the observations of  the  Tribunal  which  has
recorded the finding that it was leased  out  for  the  purpose  of  growing
sugarcane.  The Tribunal has referred to the evidence of  the  landlord  and
his witnesses and further to the record of rights and from that it has  come
to the aforesaid conclusion.


      In the face of what we have observed  above,  the  Tribunal  was  well
within its right in setting aside the finding of the Sub-Divisional  Officer
and holding that the  land  was  leased  out  for  the  purpose  of  growing
sugarcane.  That being so, we are of the opinion that the High  Court  erred
in setting aside the finding of the Tribunal.  Accordingly, we  restore  the
finding of the Additional Tahsildar as affirmed by  the  Tribunal  and  hold
that the land was leased out for cultivation of sugarcane.


      Dr. Masodkar, then submits that  the  High  Court  committed  a  grave
error in coming to the conclusion that Section 43A  of  the  Act  would  not
govern the field and cannot be made  applicable  to  a  single  person.   He
submits that in law, the plural  covers  the  singular  also.   Mr.  Pandey,
however, submits that the High Court is right in holding  that  in  view  of
the use of the expression “any bodies or  persons”  in  sub  clause  (b)  of
Section 43A(1) of the Act, the same cannot be made applicable  to  a  single
person. He points out that in the present case, it is an  admitted  position
that the land in question was given on lease to a single person.   In  order
to appreciate the rival submissions,  we  deem  it  expedient  to  reproduce
Section 43A(1)(b) of      the Act:

           “43A.Some of the provisions not  to  apply  to  leases  of  land
           obtained by industrial or commercial undertakings,  certain  co-
           operative societies or for cultivation of sugarcane or fruits or
           flowers

           (1) The provision of sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14,
           16, 17A, 17B, 18, 27, 31 to 31D  (both  inclusive),  32  to  32R
           (both inclusive), 33A, 33B, 33C, 43, 63, 63A, 64 and  65,  shall
           not apply to-


           (a) xxx          xxx         xxx


           (b) leases of land granted to any bodies or persons  other  than
           those mentioned in clause (a) for the cultivation  of  sugarcane
           or the growing of fruits or  flowers  or  for  the  breeding  of
           livestock;


           (c) xxx          xxx         xxx”


      Section 43A excludes the application of various provisions of the  Act
including 33C in respect of “leases” granted  to  “any  bodies  or  persons”
inter alia for the purpose of cultivation of sugarcane.   However,  in  view
of the plural expression “any bodies”  or  “persons”,  the  High  Court  has
come to the conclusion that it shall cover only those cases in  which  lease
has been given to more than one person and not singular  person.   It  seems
that the attention of the Court was not drawn to Section 13  of  the  Bombay
General Clauses Act, 1904 which  inter  alia  provides  that  words  in  the
singular shall include the  plural  and  vice  versa.   Section  13  of  the
aforesaid Act reads as follows:

           “Section 13 - Gender and number.

           In all Bombay Acts or Maharashtra Acts, unless there is anything
           repugnant in the subject or context, -


                 (a) words importing the masculine gender shall be taken  to
                 include females; and


                 (b) words in the singular shall  include  the  plural,  and
                 vice versa.”





      It is relevant here to state that the High Court has not come  to  the conclusion that 
there is anything repugnant in the subject or context so  as
to come to the conclusion that the plural will  not  include  the  singular.
We have examined the use of the plural word “persons” from  that  angle  and
we do not find that there is anything repugnant in the  subject  or  context so that it may not be read as singular.  
It is worth  mentioning  here  that
sub-section (b) of Section 43A(1) of  the  Act  has  also  used  the  plural expression “leases” and 
if we accept the reasoning of the  High  Court,  the aforesaid provision shall cover only such cases where  there  is  more  than one lease.  
This, in our opinion, will defeat the very purpose of  the  Act.



      Thus, the impugned judgment of the High Court is  vulnerable  on  both
the counts and, hence, cannot be sustained.
      In the result, the appeal is allowed, impugned judgment  of  the  High
Court is set aside and that of the Tribunal is restored.  In the  facts  and
circumstances of the case, there shall be no order as to costs.


                                  ………………………………………………………………J
                                                             (CHANDRAMAULI
                                  KR. PRASAD)






                                                    ………..……….………………………………..J
                                       (V.GOPALA GOWDA)



NEW DELHI,
JULY 29, 2013.
-----------------------
13


Doctrine of Equality in awarding punishment in departmental proceedings , is applicable or not has to be decided by the appellant authority but not by High court as the High court has no power to issue such a directions = Doctrine of Equality = The principles discussed above can be summed up and summarized as follows: (a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities; (b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority; (c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; - (d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. (e) The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. Applying these principles to the facts of the present case, we may observe that, no doubt the charges in respect of two sets of employees were identical. Though the other set of employee accepted the charges on the first day of enquiry, a factor which is to be kept in mind, that even those employees had denied the charges in the first instance and accepted these charges only in the departmental enquiry, that too after realizing that similar charges had been proved against the respondents herein in the departmental enquiry. Therefore, it was not a case where those employees had expressed the unconditional apology in the first instance. This may be a mitigating circumstance for the appellants herein. At the same time, we are of the opinion that all these aspects are to be considered by the appellate authority. The High Court did not look into all these aspects and mandated the appellate authority to pass orders imposing a specific penalty only. This direction of the High Court is, accordingly, set aside and the matter is remitted back to the appellate authority to take a decision imposing - appropriate penalty on the respondents herein. We are confident that the mitigating circumstances pointed out by the respondents herein would be given due consideration by the appellate authority, keeping in view the ratio of Rajendra Yadav’s case as well. It would be open to the respondents herein to make representation in this behalf to the appellate authority on the basis of which the respondents want to contend that they should be given same treatment as meted out to other three employees. Such a representation will be given 15 days from today. Appellate Authority shall pass appropriate orders deciding the appeals afresh within 2 months from today. 19. Appeals are allowed in the aforesaid terms. No costs.

                            published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40604                       
         (REPORTABLE)




                          IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                         CIVIL APPEAL NOs…6142/2013
      (Arising out of Special Leave Petition (Civil) No.10025 of 2012)




      Lucknow K.Gramin Bank  (Now
      Allahabad,U.P.Gramin Bank) & Anr.                 …..Appellant (s)


                                                 Vs.

      Rajendra Singh                                          …..Respondent
      (s)

      With

      C.A.Nos. 6143 & 6144/2013 (@ SLP (C) Nos.11211 of 2012 & 11451 of 2012





                                  J U D G M E N T

      A.K.Sikri, J.




      1.    Leave granted.

      2.    These appeals arise out of the decision dated 19th December 2011
      rendered by High Court of Judicature at Allahabad, whereby three  Writ
      Petitions filed by the respondents in these appeals have been disposed
      of with certain directions.

      -

      3.    Before we point out the directions of  the  High  Court  in  the
      impugned judgment and the grievance of the appellant thereto, it would
      be proper to traverse the seminal facts which are largely undisputed.

      4.    The appellant-Bank had  issued  separate  charge-sheets  to  six
      employees leveling identical charges. 
 Three respondents before us  in
      these appeals were the three employees out of those six  employees  to
      whom  these  charge-sheets  were  issued.   
All  the  six   employees,
      including the respondents herein, filed their replies to  the  charge-
      sheets denying the charges.

      5.    For certain unknown reasons, the appellant-Bank initially  chose to proceed and conduct the enquiry only against the respondents herein and appointed an enquiry officer.  
After conducting the enquiry,  the
      enquiry officer submitted his enquiry report, returning  the  findings
      that charges leveled against  the  respondents  stood  proved.  
After
      giving the opportunity to the respondents to file their  response  and
      objections to the enquiry report, the Disciplinary  Authority  imposed
      the punishment  of  dismissal  from  service  vide  order  dated  15th
      February 2008 in respect of all the three respondents,  though  orders
      were passed separately in each case.
These -

      respondents filed departmental appeals which were  also  dismissed  by
      the Appellate Authority vide orders dated 28th April, 2008.

      6.    Aggrieved by the orders of the Disciplinary Authority as well as
      the Appellate Authority, the respondents approached the High Court  by
      way of Writ Petitions.

      7.    It so happened that
though 
the other three employees had  denied
      the charges and the enquiry officer was also appointed in their  cases
      (of course after the finding of guilt  was  recorded  by  the  enquiry
      officer in the case of the respondents) before  the  enquiry  officer,
      the  said  three  employees  admitted   the   charges   and   tendered
      unconditional apology.  
They also gave undertaking that they would not
      commit any such misconduct in future.  
The enquiry  officer  recording
      this, forwarded his report to the Disciplinary Authority  and  keeping
      in view that those employees had tendered unconditional apologies with
      the assurance, as aforesaid,
all three  of  them  were  inflicted  the
      penalty of reduction of his basic pay by one stage for one  year  with
      cumulative effect” under Regulation 38(1)(b)(ii)  by  separate  orders
      dated 25th June 2008, 26th June 2008 and 30th June 2008.  This is a -

      major penalty as per the aforesaid Regulations though in the  impugned
      order, 
High Court has termed it as “minor punishment”

      8.    Be that as it may, when the three Writ Petitions  filed  by  the
      respondents herein came up for hearing  before  the  High  Court,  the
      counsel who appeared on behalf of  the  respondents  pointed  out  the
      orders of punishment passed by the Disciplinary Authority in the  case
      of aforesaid three employees and made a statement that the respondents
      were  also  willing  to  tender  unconditional  apologies  for   their
      misconduct with assurance that they would  not  repeat  the  same  and
      would not give any cause of grievance to the Bank in future.
The High
      Court directed the counsel for the Bank to  seek  instructions  as  to
      whether the Appellate Authority (which is the Board  of  Directors  in
      these cases) was willing to reconsider the  unconditional  apology  of
      the respondents and award the same punishment which had  been  awarded
      to other persons charged for the same  misconduct.  
Counsel  for  the
      Bank took the instructions and on the next date  of  hearing  informed
      the High Court that he had received a letter  from  the  Bank  to  the
      effect that since the Appellate Authority was the Board  of  Directors
      which had also decided  their  appeals  and  confirmed  the  order  of
      punishment, it could reconsider the matter only if  the  Court  issues
      such a direction.
Taking note of the aforesaid -

      instructions which the appellant-Bank had given to  its  counsel,  the
      High Court disposed of the Writ Petitions by setting aside  the  order
      of  the  punishment  passed  by  the  Appellate  Authority  with   the
      directions that these appeals  of  the  respondents  be  reconsidered.
      However, while giving the  directions  for  reconsideration  the  High
      Court also specifically ordered that  the  Appellate  Authority  shall
      take a decision and award “minor punishment” as had been done  in  the
      case of other three employees.
Exact nature of this  direction  given
      by the High Court in the impugned order reads as under:

                 “The petitioners shall file before the appellate authority
           the notarized affidavits, tendering unconditional apology in the
           same terms as has been filed before this Court and the appellate
           authority shall take a  decision  and  pass  appropriate  orders
           accordingly awarding minor punishments, as has been done in  the
           case of other office-bearers of the Bank’s Union.  This shall be
           done in the first meeting of the Boards of Directors,  which  is
           to take place hereinafter or in any case within next two months,
           whichever is earlier.”




           It is this specific direction to the Appellate Authority,  which
      is the bone of contention.

      9.    Mr. Dhruv Mehta, learned senior counsel for the Bank,  submitted
      that once the matter was referred back to the Appellate Authority  for
      reconsideration, it was to be left to the discretion of the  Appellate
      Authority -

      to take an appropriate view in the matter and it was not open  to  the
      Court to spell out and suggest the exact nature of penalty  which  the
      Appellate Authority is supposed to pass.
His submission was  that  by
      issuing such a direction, the Court itself assumed  the  role  of  the
      Appellate Authority which was  impermissible.
 He  further  submitted
      that  even  when  the  charges  leveled  against  six  employees  were
      identical, the circumstances under which the penalty  was  imposed  on
      the  other  three  employees   were   totally   different   than   the
      circumstances of the three respondents herein.  
In  this  behalf,  he
      pointed out that whereas the  said  three  employees  who  were  given
      lesser punishment, had accepted the charges  on  the  very  first  day
      before the enquiry officer and tendered unconditional apology as well.
     
On the other hand, in so far as these respondents are concerned, they
      denied the charges even  in  the  enquiry  proceedings  which  led  to
      conduct full-fledged departmental enquiry.
Not only this, even  after
      the findings of the enquiry officer the respondents adopted  the  same
      posture of denial and took the matter  further  before  the  Appellate
      Authority.
Pointing out this distinction Mr. Mehta’s  submission  was
      that case of the respondents could not be treated at  par  with  other
      three officials and it was permissible for the Appellate Authority  to
      consider these circumstances and take a decision to -

      impose penalty at variance with  the  punishment  imposed  upon  those
      employees who had accepted the  charges  at  the  outset.  
Mr.  Mehta
      referred to the judgment of this Court in the case of Obettee (P) Ltd.
      Vs. Mohd. Shafiq Khan (2005) 8 SCC 46
wherein identical  features,  as
      prevailing in  this  case,  were  held  as  distinctive  features  and
      different and higher punishment  was  held  to  be  justified  in  the
      following manner:

                 “On consideration of the rival stands  one  thing  becomes
           clear that Chunnu and Vakil stood on a different footing so  far
           as the respondent workman is concerned. He had, unlike the other
           two, continued  to  justify  his  action.  That  was  clearly  a
           distinctive feature which the High Court unfortunately failed to
           properly  appreciate.  The  employer  accepted  to  choose   the
           unqualified apology given and regrets expressed  by  Chunnu  and
           Vakil. It cannot be said that the employer had discriminated  so
           far as the respondent workman  is  concerned  because  as  noted
           above he had tried to justify his action for which  departmental
           proceedings were initiated.  It is not  that  Chunnu  and  Vakil
           were totally exonerated. On the contrary, a  letter  of  warning
           dated 11.4.1984 was issued to them.

                      In Union of India vs. Parma Nanda the  Administrative
           Tribunal had modified the punishment  on  the  ground  that  two
           other persons were let off with  minor  punishment.  This  Court
           held that
when all  the  persons  did  not  stand  on  the  same footing, the same yardstick cannot be applied.  Similar  is  the position in the present case.  

Therefore, the High Court’s order
           is clearly unsustainable and is set aside.”




      -

      10.        Per contra Mr. Rajeev Singh, the learned counsel  appearing
      for  the  respondent  in  one  of  these  appeals  argued   that   the
      circumstances of the two sets  of  cases  were  almost  identical  and
      therefore in the facts of this case, the directions of the High  Court
      were perfectly  in  order.   He  pointed  out  that  the  other  three
      employees had also denied the charges in the first instance, in  their
      replies to the charge  sheets  served  upon  them.  For  some  curious
      reasons the appellant-Bank did not hold any common enquiry  even  when
      the charges leveled in all six charge-sheets were  identical.  Instead
      the Bank first picked up only the respondents  herein,  and  held  the
      enquiry against them.  It is only after in  the  enquiry  the  charges
      were  established  against  the  respondents  and  the  punishment  of
      dismissal was imposed on them, that  the  enquiry  against  the  other
      three employees was commenced. At this  stage,  knowing  the  fate  of
      their cases, those three employees accepted the charges  and  tendered
      unconditional apologies.  The learned counsel argued that the Bank had
      given definite advantage to those three employees by  deferring  their
      enquiries enabling them to make up their mind after knowing the result
      in the case of the respondents.  He, thus, argued that  it  cannot  be
      said that those three  employees  had  accepted  the  charges  at  the
      outset.  His  submission  was  in  such  circumstances  imposition  of
      different and higher -

      penalty to the respondents herein would clearly  amount  to  invidious
      discrimination, as held by this Court in Rajendra Yadav vs.  State  of
      M.P. & Ors. 2013 (2) SCALE 416.  
 In  that  case  two  employees  were
      served with charge sheets who were involved in the same  incident.   A
      person who had more serious role was inflicted comparatively a lighter
      punishment than the appellant in the said case.  This was held  to  be
      violative of doctrine of Equality Principles enshrined  under  Article
      14 of the Constitution of India.
The discussion which  ensued,  while
      taking this view, reads as under:

                 “We have gone through the inquiry report placed before  us
           in respect of the appellant as well as Constable  Arjun  Pathak.
           The inquiry clearly reveals the role of  Arjun  Pathak.  It  was
           Arjun Pathak who had demanded and received the money, though the
           facit approval of the appellant was proved in the  inquiry.  The
           charge leveled against Arjun Pathak was more  serious  than  the
           one charged against the appellant.  Both  appellants  and  other
           two persons as well as Arjun Pathak were involved  in  the  same
           incident.  After having found  that  Arjun  Pathak  had  a  more
           serious role and, in  fact,  I  was  he  who  had  demanded  and
           received the money, he was  inflicted  comparatively  a  lighter
           punishment.  At the  same  time,  appellant  who  had  played  a
           passive role was inflicted with a  more  serious  punishment  of
           dismissal from service which, in our view, cannot be sustained.

                 We are of the view the principle laid down  in  the  above
           mentioned judgments also would apply to the facts of the present
           case.  We  have  already  indicated  that  the  action  of   the
           Disciplinary  Authority   imposing   a   comparatively   lighter
           punishment to the co-delinquent Arjun Pathak and at the same -

           time, harsher punishment to the appellant cannot be permitted in
           law,  since  they  were  all  involved  in  the  same  incident.
           Consequently, we are inclined to allow  the  appeal  by  setting
           aside the punishment of dismissal from service  imposed  on  the
           appellant and order that he be reinstated in service  forthwith.
           Appellant is, therefore, to be  re-instated  from  the  date  on
           which Arjun Pathak was re-instated and be given  all  consequent
           benefits as was given  to  Arjun  Pathak.  Ordered  accordingly.
           However, there will be no order as to costs.”




                Learned counsel for the respondents made a fervent plea that
      the respondents herein were also entitled to the same treatment.

      11.   The question that falls for determination is as to
whether  the
      High Court is justified in giving such a mandamus or  it  should  have
      referred the matter back to the Bank with  the  direction  to  take  a
      fresh decision in the matter?

      12.  Indubitably, the well ingrained principle of law is  that  it  is
      the Disciplinary Authority, or  the  Appellate  Authority  in  appeal,
      which is to  decide  the  nature  of  punishment  to  be  given  to  a
      delinquent employee keeping in view the seriousness of the  misconduct
      committed by such an employee.
Courts cannot  assume  and  usurp  the
      function of the Disciplinary Authority.
 In  the  matter  of  Apparel
      Export Promotion Council vs. -

      A.K.Chopra reported in 1999 (1) SCC 759 this principle  was  explained
      in the following manner:

           “22   …….The  High  Court  in  our  opinion  fell  in  error  in
                 interfering with the punishment, which  could  be  lawfully
                 imposed by the departmental authorities on  the  respondent
                 for his proven misconduct.   …..The High Court  should  not
                 have substituted its own discretion for that the authority.
                 What punishment was required to be imposed,  in  the  facts
                 and circumstances of the case,  was  a  matter  which  fell
                 exclusively  within  the  jurisdiction  of  the   competent
                 authority and did not warrant any interference by the  High
                 Court.  The entire approach of  the  High  Court  has  been
                 faulty. The impugned order of  the  High  Court  cannot  be
                 sustained on this ground alone. …..”




           Yet again, in the case of State of Meghalaya &  Ors.  Vs.  Mecken
      Singh N.Marak reported in 2008 (7) SCC 580, this Court reiterated  the
      law by stating:

           “14.  In the matter of imposition  of  sentence,  the  scope  of
                 interference is very limited and restricted to  exceptional
                 cases. The jurisdiction of the  High  Court,  to  interfere
                 with the quantum of punishment is  limited  and  cannot  be
                 exercised  without  sufficient  reasons.  The  High  Court,
                 although has jurisdiction in appropriate case, to  consider
                 the question in regard to the quantum of punishment, but it
                 has a limited role to play. It is now well settled that the
                 High Courts, in exercise of powers under  Article  226,  do
                 not interfere with the quantum of punishment  unless  there
                 exist sufficient reasons therefor. The punishment -

           imposed by the disciplinary authority or the appellate authority
                 unless shocking to the conscience of the court,  cannot  be
                 subjected to judicial review. In the impugned order of  the
                 High Court no reasons whatsoever have been indicated to why
                 the punishment was considered disproportionate. Failure  to
                 give  reasons  amounts  to  denial  of  justice.  The  mere
                 statement that it is disproportionate  would not suffice.




           15&16  xxxxxxxxxxxxxxxx




           17.    Even  in  cases  where  the  punishment  imposed  by  the
                 disciplinary authority is  found  to  be  shocking  to  the
                 conscience  of  the  court,   normally   the   disciplinary
                 authority or the appellate authority should be directed  to
                 reconsider the question of imposition of penalty. The  High
                 Court in  this  case  has  not  only  interfered  with  the
                 punishment imposed  by  the  disciplinary  authority  in  a
                 routine  manner  but  overstepped   its   jurisdiction   by
                 directing the  appellate  authority  to  impose  any  other
                 punishment short of removal. By fettering the discretion of
                 the appellate authority to  impose  appropriate  punishment
                 for serious misconducts committed by  the  respondent,  the
                 High Court  totally  misdirected  itself  while  exercising
                 jurisdiction under Article 226. Judged in  this  background
                 the conclusion of the Division  Bench  of  the  High  Court
                 cannot be regarded as proper at all.  The  High  Court  has
                 interfered with the punishment  imposed  by  the  competent
                 authority in a casual manner  and,  therefore,  the  appeal
                 will have to be accepted.”




      13.   As is clear from the above  that  the  Judicial  Review  of  the
      quantum of punishment is available with a very limited scope.   It  is
      only when the -

      penalty imposed appears to be shocking disproportionate to the  nature
      of misconduct that the Courts would frown upon. Even in such  a  case,
      after setting aside the penalty  order,  it  is  to  be  left  to  the
      disciplinary/Appellate Authority to take a decision afresh and  it  is
      not for the court  to  substitute  its  decision  by  prescribing  the
      quantum of punishment.   In the present case, however,  we  find  that
      the High Court has, on the one hand directed the  appellate  authority
      to take a decision and in the same breath, snatched the discretion  by
      directing the Appellate  Authority  to  pass  a  particular  order  of
      punishment.   In  normal  course,  such  an  order  would  clearly  be
      unsustainable, having regard to the legal position outlined above.

      14.   The peculiar feature, however, is that the High Court  has  done
      so proceeding on the presumption  that  these  three  respondents  are
      equally and identical placed as the  other  three  employees  who  had
      admitted the charges, though this parity is not  spelled  out  in  the
      impugned order. Whether this approach of the High  Court  is  tenable,
      looking into the facts of this case, is the moot question.

       15.  If there is a complete parity in the two sets of cases  imposing
      different  penalties  would  not  be  appropriate  as  inflicting   of
      any/higher penalty in one -

      case would be discriminatory and would amount  to  infraction  of  the
      doctrine of Equality enshrined in Article 14 of  the  Constitution  of
      India. That is the ratio of Rajendra Yadav’s case, already taken  note
      above.  On the other hand, if  there  is  some  difference,  different
      penalty can be meted out and what should be the quantum is to be  left
      to  the  appellate  authority.   However,  such   a   penalty   should
      consumerate with the gravity of misconduct and  cannot  be  shockingly
      disproportionate. As per the ratio of Obettee (P) Ltd.  Case  even  if
      the nature of misconduct committed by the two  sets  of  employees  is
      same, the conduct of one set  of  employee  accepting  the  guilt  and
      pleading for lenient view would justify lesser punishment to them than
      the other employees who remained adopted the mode of denial, with  the
      result that charges stood proved ultimately in a full-fledged  enquiry
      conducted against them.  In that event, higher penalty can be  imposed
      upon such delinquent employees. It would follow that choosing to  take
      a chance to contest the charges such employees thereafter cannot  fall
      back and say that the penalty in their cases cannot be more  than  the
      penalty which is imposed upon those employees who accepted the charges
      at the outset by tendering unconditional apology.

      -

      16.   This, according to  us,  would  be  the  harmonious  reading  of
      Obettee (P) Ltd. and Rajendra Yadav cases.

            The principles discussed above can be summed up  and  summarized
      as follows:

  (a)   When charge(s) of misconduct is proved in an  enquiry  the quantum of punishment to be imposed in a particular case is
  essentially the domain of the departmental authorities;

(b)     The   Courts   cannot    assume    the    function    of
   disciplinary/departmental authorities  and  to  decide  the
      quantum of punishment and nature of penalty to be  awarded, as this function is exclusively within the jurisdiction  of the competent authority;

           (c)  Limited judicial review is available to interfere with  the
 punishment imposed by the disciplinary authority,  only  in
  cases where such penalty is found to  be  shocking  to  the
conscience of the Court;

           -

           (d)   Even in such a case when the punishment is set  aside   as shockingly disproportionate to the nature of charges framed
 against the  delinquent employee, the appropriate course of
  action is to remit the  matter  back  to  the  disciplinary
authority or the appellate authority with direction to pass
 appropriate order of penalty. 
The Court  by  itself  cannot mandate as to what should be the penalty in such a case.

           (e)   The only exception to the  principle stated  in  para  (d)
                 above, would be  in those cases where the co-delinquent  is  awarded lesser punishment  by  the  disciplinary  authority
  even when the charges of misconduct was identical or the co-
  delinquent was foisted with  more  serious  charges.   This
  would be on the Doctrine of Equality when it is found  that
  the concerned employee and the  co-delinquent  are  equally
      placed.  
However, 
there has to be a complete parity between
                 the two, not only  in  respect  of  nature  of  charge  but
                 subsequent conduct as well  after  the  service  of  charge
                 sheet in the  two  cases.   If  co-delinquent  accepts  the
                 charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.

      -

      17.   It is made clear that such a comparison is permissible only when
      the  other  employee(s)  who  is  given  lighter  punishment  was  co- delinquent. 
Such a comparison is not permissible by citing  the  cases of  other  employees,  as  precedents,  in  all   together  different departmental  enquiries.

      18.   Applying these principles to the facts of the present  case,  we
      may observe that, no doubt the charges  in  respect  of  two  sets  of
      employees were identical.
Though the other set of  employee  accepted
      the charges on the first day of enquiry, a factor which is to be  kept
      in mind, that even those employees had denied the charges in the first
      instance and accepted these charges only in the departmental  enquiry,
      that too after realizing that similar charges had been proved  against
      the respondents herein in the departmental enquiry.
Therefore, it  was
      not a case where  those  employees  had  expressed  the  unconditional
      apology in the first instance.
This may be a mitigating  circumstance
      for the appellants herein.  
At the same time, we are of  the  opinion
      that  all  these  aspects  are  to  be  considered  by  the  appellate
      authority.
The High Court did not look  into  all  these  aspects  and
      mandated the appellate authority to pass orders  imposing  a  specific
      penalty only.
This direction of the High Court  is,  accordingly,  set
      aside and the matter is remitted back to the  appellate  authority  to
      take a decision imposing - appropriate penalty on the respondents herein.
We are confident  that
      the mitigating circumstances pointed out  by  the  respondents  herein
      would be given due consideration by the appellate  authority,  keeping
      in view the ratio of Rajendra Yadav’s case as well.
 It would be  open
      to the respondents herein to make representation in this behalf to the
      appellate authority on the basis of  which  the  respondents  want  to
      contend that they should be given same treatment as meted out to other
      three employees.  Such a representation will be  given  15  days  from
      today.  Appellate Authority shall pass appropriate orders deciding the
      appeals afresh within 2 months from today.

      19.   Appeals are allowed in the aforesaid terms.  No costs.




                                                   …………………….J.
                                                   (Anil R. Dave)






                                                   …………………….J.
                                                   (A.K.Sikri)




      New Delhi,

      Dated:  July 29, 2013






Stamp duty and penalty = Whether the sale deed executed by Aditya Mills Ltd. in favour of respondent No.1 could be treated as lease deed for the purpose of stamp duty is the question = unable to do so because neither party has placed on record copy of deed dated 29.9.1978 and without examining that document, it is not possible for us to record a firm finding about the nature and character of deed dated 3.5.1995. In this scenario, the only appropriate course is to remit the case to the Collector for fresh determination of the issue relating to valuation of the building and the land purchased by respondent No.1. Ordered accordingly.= The appeal is disposed of with a direction that the Collector shall call upon respondent No.1 to produce deed dated 29.9.1978, to which reference has been made in the deed executed in its favour by Aditya Mills Ltd. and then decide whether it is a lease deed simpliciter or a sale deed for the purpose of stamp duty. While disposing of the appeal, we consider it necessary to make it clear that if the Collector comes to the conclusion that the deed executed by Aditya Mills Ltd. in favour of respondent No.1 is a lease deed then the latter shall have to surrender the land to the Government of India on 9.3.2021, i.e., the date on which term of the lease would expire.

                                       published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40595 
                  NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.6086 OF 2013.
                  (Arising out of SLP(C) No. 3749 of 2012)


      State of U.P. now Uttarakhand
      and another                                  ...Appellants
                                   Versus


      Vinit Traders and Investment Ltd.
      and another                                        ...Respondents




                                  O R D E R

            Leave granted.

            Whether the sale deed executed by Aditya Mills Ltd. in favour of respondent No.1 could be treated as lease  deed  for  the  purpose  of stamp duty is the question, 
which arises  for  consideration  in  this
      appeal filed against order dated 4.7.2011 passed by the learned Single
      Judge of the Uttarakhand High Court in Writ Petition No.1987/2001.

            For the sake of reference, the relevant  portions  of  the  sale
      deed are reproduced below:

           “This Indenture made this 3rd  day  of  May  One  Thousand  Nine
           hundred Ninety Five  between  Aditya  Mills  limited  a  Company
           incorporated under the Companies Act, 1956 having its Registered
           Office at Madanganj Kishangarh (Rajasthan)  through  their  duly
           constituted attorney Sri Kishan Singh Kothari S/o  Sri  Tej  Raj
           Kothari,  R/o  Old  Kotwali  Road,  Kishangarh,   Distt.   Ajmer
           (Rajasthan) hereinafter  called  the  VENDOR  (which  expression
           shall unless excluded by or repugnant to the context, be  deemed
           to    include    his    heirs,    executors,     administrators,
           representatives, etc.) of the  ONE  PART  AND  Vinit  Traders  &
           Investment Ltd. a Company incorporated under the Companies  Act,
           1956, having its registered office at 135, Canning Street, Clive
           Row Entrance, Calcutta, hereinafter  called  the  VENDEE  (which
           expression shall unless excluded by or repugnant to the  context
           be deemed to  include  their  heir,  executors,  administrators,
           representative, liquidators and assigns) of the OTHER PART.


           WHEREAS the VENDOR has represented that he is the absolute owner
           of law premises known as "MANAK" (Adhikari Lodge) being  Bunglow
           No.60 (Sixty), situated at  Nehru  Road  within  the  limits  of
           Ranikhet  Cantonment,  Distt.  Almora,   Uttar   Pradesh,   more
           particularly described in Schedule I hereto.


           AND WHEREAS the  VENDOR  has  also  represented  that  the  said
           premises is  built  on  land  (more  particularly  described  in
           Schedule II hereto) held on  lease  for  99  years  expiring  on
           9.3.2021 by the VENDOR under the President of India by virtue of
           a lease deed in Form "D" of the Cantonment Code, 1912.


           AND WHREAS  the  VENDOR  has  also  represented  that  the  said
           premises and the said lease hold rights were  purchased/acquired
           by the VENDOR from Shri Sita Ram Mehra son of  Shri  Bhagat  Ram
           Mehra, resident of B-317, New Friends Colony,  New  Delhi-110014
           vide sale deed, dated 29.9.1978 registered at  Book  No.I  (One)
           Volume 333, on pages 147 (One hundred forty seven) to  170  (One
           hundred  seventy)  at  Serial  No.768  in  the  office  of  Sub-
           Registrar,  Ranikhet,  District   Almora,   Uttar   Pradesh   on
           29.9.1978.


           AND WHEREAS the  VENDOR  has  also  represented  that  the  said
           purchase/acquisition has been duly entered in the records of the
           Cantonment authority by mutating the said land in  the  name  of
           the VENDOR who has been and is paying the ground rent and  house
           tax to the authorities concerned.


           AND WHEREAS the VENDOR has agreed to sell and the VENDEE, acting
           on the aforesaid representations, have agreed  to  purchase  the
           said property and the lease-hold rights in the said land  as  an
           absolute estate at or for the price of Rs.2,85,000/- (Rupees Two
           Lacs eighty five thousand) only.”



            At the time of registration, the value of the land and  building
      was shown as Rs.2,85,000/- and stamp duty of Rs.35,625/- was paid. Sub-
      Registrar, Almora did not agree with the valuation  of  the  property,
      i.e., the land and building by respondent No.1 and its vendor and made
      a reference to the Collector under Section 47A(2) of the Indian  Stamp
      Act, 1899, as applicable to the State of Uttarakhand, (for short, ‘the
      Act’). The latter got conducted an inquiry through the Tahsildar,  who
      submitted valuation report dated 23.5.1995 with the finding that value
      of the property was Rs.47,25,200/-.

            After considering the report of  the  Tahsildar,  the  Collector
      issued show cause notice  to  respondent  No.1  for  recovery  of  the
      deficit stamp duty. Respondent No.1 contested the notice by  asserting
      that its vendor was a lessee  of  the  Government  of  India  and  the
      property was rightly valued at Rs.2,85,000/- for the purpose of  stamp
      duty. The Collector did not accept the plea  of  respondent  No.1  and
      passed order dated 16.1.1997,  the  relevant  portions  of  which  are
      extracted below:


           “The statement of the vendee that he purchased only building  is
           not correct because according to provisions of  the  Stamp  Act,
           the stamp duty is payable on the basis of contents mentioned  in
           the deed. In  the  deed  the  vendor  sold  66  nalis  land  and
           building. The value of the building was assessed  Tehsildar  was
           Rs.4,00,000/-. Annual rent  of  the  building  was  assessed  as
           Rs.2,214/-. According to the multiplier given in Rule 341  (111)
           of Stamp Rules the value come to Rs.55,350/-. On the other  hand
           the Sub-Registrar, Ranikhet said the rent of building taken  for
           office of the City Municipal Officer, Ranikhet as  Rs.l125/-  as
           decided  by  Naib-Tehsildar,  Ranikhet.  The  meaning  of   this
           incident is that in Ranikhet  value  of  old  building  is  also
           increasing and annual income of buildings is also increasing. In
           deciding value of buildings their usefulness cannot be  ignored.
           On this basis if monthly rent of the entire banglow be taken  as
           Rs.2000/- and rent of each other  room  (four  rooms)  be  taken
           Rs.l00/- per month then also the  value  of  property  comes  to
           Rs.2400/- x 12 x 25 = Rs.7,20,000/-. Therefore, the valuation of
           the property seems to  be  appropriate  on  the  basis  of  this
           incident.  Accordingly  the  value  of  building  is  decide  as
           Rs.7,20,000/-.


           The value of 66 nali land  transferred  in  the  deed  comes  to
           Rs.39,60,000/- at the present rate of Rs.60,000/- per nali.  The
           same value was also assessed by the  Tehsildar.  Therefore,  the
           value  of  the  66  nalis  transferred  land   is   decided   as
           Rs.39,60,000/-. The Tehsildar Ranikhet also told 48 fruit giving
           piece and 131 building trees in  the  land  and  assessed  their
           value as Rs.45,200/-. Therefore, the value  of  property  entire
           comes  to  Rs.7,20,000/-  +   39,60,000/-   +   45,200/-   total
           Rs.47,25,200/-.  On  which  stamp  duty  of  Rs.5,90,687.50   is
           payable. The vendee paid Rs.35,625/- and the  deficiency  is  of
           Rs.5.55,062.50.   Therefore,  recovery  of  stamp   deficit   of
           Rs.5,55,062.50 be assured from the vendee within one month.”



            The revision filed by respondent No.1 was dismissed by the Chief
      Controlling Authority vide order dated 7.3.2000.

            Respondent No.1 challenged the orders of the Collector  and  the
      Chief Controlling Authority in Writ Petition No.1987/2001. The learned
      Single Judge accepted the  contention  of  respondent  No.1  that  the
      provisions of Article 63 of Schedule IB of the Act  are  attracted  in
      the case and the Collector committed an error by ordering recovery  of
      Rs.5,55,062.50 as deficient stamp duty.

            We have heard learned counsel  for  the  parties  and  carefully
      perused the record.  A reading of sale deed dated 3.5.1995  leaves  no
      room for doubt that the vendor had transferred its ownership over  the
      property constructed on the land specified in Schedule-II to the deed,
      which was held by the vendor on 99 years lease.  The sale deed further
      shows that the vendor had  purchased/acquired  the  premises  and  the
      leasehold rights from Shri Sita Ram Mehra,  son  of  Shri  Bhagat  Ram
      Mehra, resident of B-317, New Friends  Colony,  New  Delhi  vide  deed
      dated 29.9.1978.  Unfortunately, neither the Collector and  the  Chief
      Controlling  Authority  nor  the  learned  Single  Judge  called  upon
      respondent No.1 to produce deed dated 29.9.1978 and decided the  issue
      relating to the stamp duty without having the benefit of going through
      the contents of deed dated 29.9.1978, which would have helped them  to
      determine true nature of the transaction between Aditya Mills Ltd. and
      respondent No.1.

            In our considered view, the Collector could have decided whether
      deed dated 3.5.1995 was a lease deed simpliciter or sale deed for  the
      purpose of stamp duty only after going through the  contents  of  deed
      dated 29.9.1978 but he did not bother to undertake that exercise.  The
      learned Single Judge also committed the same mistake and  straightaway
      recorded a finding that it was a lease  deed.  He  should  have  first
      examined  the  terms  and  conditions  incorporated  in   deed   dated
      29.9.1978, referred to the judgments in Byramjee Jeejeebhoy  (P)  Ltd.
      v. State  of  Maharashtra  AIR  1965  SC  590  and  Residents  Welfare
      Association, Noida v. State of Uttar Pradesh (2009)  14  SCC  716  and
      then decided whether the Collector was right in  demanding  additional
      stamp duty from respondent No.1.

            We may have finally decided the controversy but are
  unable to do
      so because neither party has placed  on  record  copy  of  deed  dated
      29.9.1978 and without examining that document, it is not possible  for
      us to record a firm finding about the nature  and  character  of  deed
      dated 3.5.1995.  
In this scenario, the only appropriate course  is  to
      remit the case to the Collector for fresh determination of  the  issue
      relating to valuation of  the  building  and  the  land  purchased  by
      respondent No.1. Ordered accordingly.

            The appeal is disposed of 
with a direction  that  the  Collector
      shall call upon respondent No.1 to produce deed  dated  29.9.1978,  to which reference has been made in the deed executed in  its  favour  by Aditya Mills  Ltd.  and  then  decide  
whether  it  is  a  lease  deed
 simpliciter or a sale deed for the purpose of stamp duty.

   While disposing of the appeal, 
we consider it necessary to  make it clear that 
if the Collector comes to the conclusion that  the  deed executed by Aditya Mills Ltd. in favour of respondent No.1 is a  lease deed then  the  latter  shall  have  to  surrender  the  land  to  the Government of India on 9.3.2021, i.e., the date on which term  of  the lease would expire.


                                              .........................J.
                                              (G.S. SINGHVI)






                                              .........................J.
                                              (V. GOPALA GOWDA)
      New Delhi;
      July 26, 2013.






      -----------------------
7


right to receive pension as per the revised formula.= under the Statute 16 (which has been in force from 1982), it is specifically provided that any change in the rate of pension or relief therein into the service conditions of the State Government employees would be extended to the University. = Therefore, in our view, the Division Bench cannot be faulted for taking the view that the reading of Statute read with the resolution passed by the State Government, University employees will be entitled to include 50% of the D.A. into their basic pay for the purposes of calculating their pension.= It is interesting to note that the University was a party to the Writ Petition but the University did not challenge the decision rendered either by the Single Judge or by the Division Bench. 12. In view of this position, in our view, there is no reason to entertain this appeal. The Civil Appeal is, accordingly, dismissed. No costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40601
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 200 OF 2011


STATE OF BIHAR & ORS.                             APPELLANTS

                 VERSUS

SUDHIR CHANDRA KUMAR & ORS.                      RESPONDENTS

WITH C.A.NO.205/2011,  206/2011,  207/2011,  208/2011,  209/2011,  210/2011,
202/2011, 203/2011, 201/2011 AND 204/2011.


                                  O R D E R


      1.         We have heard Mr.Manish Kumar,  learned  counsel  appearing
      for the appellant State of Bihar  and  Mr.P.N.Mishra,  learned  senior
      counsel appearing for the respondent no.1  and  Mr.Atul  Jha,  learned
      counsel appearing for respondent nos.2 to 6 in C.A.No.200 of 2011 etc.
      and other respective counsel in the connected appeals.


      2.         Since the facts arising from all these appeals are similar,
      we take Civil Appeal No.200 of 2011 as the lead case.


      Civil Appeal No.200/2011:


      3.         This appeal, by  special  leave,  seeks  to  challenge  the
      judgment and order dated 23rd July, 2008 passed by the High  Court  of
      Judicature at Patna in L.P.A.No.439 of 2008.   This  judgment  allowed
      the appeal filed by the respondents concerning their
right to  receive
      pension as per the revised formula.
                 The short facts leading to this appeal are this-wise:


                                    : 2 :
      4.         The respondents are the teachers working  in  T.M.Bhagalpur
      University.  Their case was that the State of Bihar had merged 50%  of
      the Dearness Allowance (for short 'D.A.') into the basic pay  for  the
      purposes  of  calculating  the  pension,  vide  its  resolution  dated
      11.04.2005  and  which  resolution  was  to  be  given   effect   from
      01.01.2005.  It was pointed out by them that in spite  of  passing  of
      this resolution, the benefit thereof was not being given to  them.  In
      this  regard,  it  may  be  pertinent  to  quote  Statute  16  of  the
      University, which reads as follows :
           “16.  An  employee  eligible  for  pension  under  any  of   the
           categories mentioned above, shall be granted  pension  according
           to the scales given in schedule 'A' (I) if he ceased  to  be  in
           University service between  1-4-72  and  31-12-72  and  schedule
           A(ii) if he ceased to be in University  service  between  1-1-73
           and 30-3-79. For those who ceased to be  in  University  service
           from 31-3-79 onwards, the scales given in Schedule  A(iii)  will
           be applicable.  Any further change in the rate  of  pension   as
           also relief in pension under the  Bihar  (Govt.)  Pension  Rules
           will be equally applicable to the University employees (emphasis
           supplied)”


      5.         It was their submission that  the Statute  was specifically
      enacted for the purposes  of  calculating  the  pension.  Any  further
      change in the rate of pension as also  relief  in  pension  under  the
      Bihar Government  Pension  Rules  will,  therefore,  be  automatically
      applicable to the University employees. The learned Single  Judge  had
      disposed of their Writ Petition in  the light of the orders passed  by
      the Court in an earlier Writ Petition bearing No.CWJC 13925  of  2006,
      dated 31.10.2007.  The effect   of that would be that only those who
                                    : 3 :
      retire subsequent to 1st January, 2005 would be getting  the  benefits
      of this changed formula. The respondents, therefore, filed  an  L.P.A.
      wherein the aforesaid  submission,  based  on  Statute  16,  has  been
      accepted by the Division Bench.


      6.         Being aggrieved by this judgment and order,  present  Civil
      Appeal has been filed by the State of Bihar.


      7.          Mr.Manish  Kumar,  learned  counsel  appearing   for   the
      appellant-State, submitted that the State Government cannot be made to
      bear the burden which will arise  out  of  this  responsibility.   His
      submission is that this resolution of the State Government  was  meant
      only for the State Government employees  and  not  for  anybody  else.
      There is no dispute that under this resolution of  11th  April,  2005,
      the State Government has decided that 50% of the D.A. will  be  merged
      in the basic pay for the purposes of calculating the pension, and this
      will be with effect from 1st January, 2005.  This was in the back-drop
      of the Central Government taking a similar decision earlier  from  1st
      March, 2004. Obviously, there must have been similar demands from  the
      State Government employees and,  therefore,  this  decision  from  the
      State Government.


      8.          Mr.Manish  Kumar,  submits  that  the  University  is  not
      supposed to create financial liabilities for the  government  and  his
      submission  has  been  that    wherever   there   is   any   financial
      implication    under  any   of   the  statutes, those financial
                                    : 4 :
      implications are not enforceable unless prior approval  of  the  State
      Government has been obtained.  He has  relied  upon  Statute  No.36(6)
      and, particularly, the proviso thereof.   The  Statute  36(6)  proviso
      reads as follows :
           “...36(6).....
           “Provided that if there be any financial implication  which  may
           arise under the statute, it  shall  not  be  enforceable  unless
           prior approval of State Government has been obtained.”




      9.         He also pointed out that as far  as  the  creation  of  the
      posts and payment to the teachers and the employees in the  University
      are concerned, though the decisions are taken by the  University,  the
      responsibility with respect to the payment of salaries etc. is on  the
      State Government and that is why the above provision is made into  the
      proviso in Statute No36(6).
      10.        It is, however, material to  note  that,  as  far  as  this
      proviso is concerned, it has been substituted by Act No.16 of 2008.
As
      far as present resolution of the State Government is concerned, it  is
      dated 11th April, 2005, which is much prior to the coming  into  force
      of this proviso to Statute 36(6).
That apart, as we have seen,
under
 the Statute 16 (which has been in force from 1982), it is specifically provided that any change in the rate  of  pension  or  relief  therein  into the service conditions of the State Government employees would be extended to the University.  
Therefore,  in  our  view,  the  Division Bench cannot be faulted for  taking  the  view  that  the  reading  of Statute read with the  resolution  passed  by  the  State  Government,University   employees will be entitled to include
                                    : 5 :
      50% of the D.A. into their basic pay for the purposes  of  calculating their pension.


      11.        It is interesting to note that the University was  a  party
      to the Writ Petition but the University did not challenge the decision rendered either by the Single Judge or by the Division Bench.


      12.        In view of this position, in our view, there is  no  reason
      to entertain this appeal. The Civil Appeal is, accordingly, dismissed.
      No costs.


      C.A.NO.205/2011, 206/2011,  207/2011,  208/2011,  209/2011,  210/2011,
      202/2011, 203/2011, 201/2011 AND 204/2011.


      13.        In view of the order passed in Civil Appeal No.200 of 2011,
      all the appeals stand disposed of with similar order.




                                                   .......................J.
                                                              (H.L. GOKHALE)






                                                   .......................J.
                                                            (J. CHELAMESWAR)


      NEW DELHI;
      JULY 23, 2013