the accused-appellant was not armed with any weapon or a firearm. As already noticed the evidence do not disclose in any manner that the appellant had come with a pre-meditated mind to kill his wife, but it was only in course of hot exchange of words and abuses which mindlessly drove him to take the extreme step of beating his wife with a log of wood with such force and intensity that she sustained head injury, profusely bled and finally died on the spot. 23. We are, therefore, of the considered view that although the conviction and sentence of the appellant might not be sustainable under Section 302 I.P.C., it cannot also be scaled down to Section 304 Part-II I.P.C. But we are surely of the view that the appellant is fit to be convicted and sentenced under Section 304 Part-I of the I.P.C.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                        CRIMINAL APPEAL NO. 1091/2010




    ATTAR SINGH                               ..Appellant


                                   Versus


    STATE OF MAHARASHTRA                         ..Respondent



                       J U D G M E N  T




    GYAN SUDHA MISRA, J.
                 This appeal has been preferred against the  judgment   and
    order dated  26.6.2008 passed by   the  High  Court  of  Judicature  at
    Bombay, Bench at Aurangabad in Criminal Appeal No. 7/2007  whereby  the
    High Court  upheld the  judgment  and  order  passed  by  the  Sessions
    Judge, Dhule in Sessions Case No. 90/2005 by which  the appellant   had
    been convicted for an offence  under Section  302,  Indian  Penal  Code
    (I.P.C. for  short)  and was  sentenced to  undergo  life  imprisonment
    along with a fine of Rs.1,000/-.  In default of payment of fine, he was
    ordered to undergo simple imprisonment for three months.
    2.           The appellant was initially   charged  and  tried  for  an
    offence under Section 302 and 498-A of the I.P.C. for killing  his wife
    by hitting her on her head   with a woodenlog as he was  suspecting her
    loyalty  and character.
    3.           The specific case of the prosecution which was  registered
    under Section 302 and 498-A of  the  I.P.C.   is  that  the  appellant-
    Attarsingh  Barakya Pawara was residing  along  with  his  wife  and  9
    children at village  Majanipada  in    Shirpur  Taluk.   On  22.6.2005,
    the complainant-Khandu Kalu Ahire   who is  also  the   village  Kotwal
    received  an  information  from  one   Ramesh   Pawara,   resident   of
    Majanipada  and Appa Shahada Pawara,  resident   of   Fattepur  village
    that  the  appellant  Attarsing has committed   murder of his wife   by
    hitting her  with  a  woodenlog  on  her  head.   On  receipt  of  this
    information, the village Kotwal along with the  Sarpanch   Bhatu  Ditya
    and one Rattan Lalsing  went to the appellant’s house   and  found  the
    dead body of Nagibai (deceased wife of  the  appellant)  lying  on  the
    floor of the house which indicated that the deceased had sustained head
    injury  and had bleeded  profusely.    The  woodenlog   was found  near
    her dead body and the appellant was also found sitting  in  the  house.
    The village Kotwal enquired  about  the  incident  and  questioned  the
    appellant as to how his wife had died.  The appellant replied that  his
    wife was of a loose character and, therefore,  he had   killed  her  by
    hitting woodenlog on her  head.  He  narrated  the  incident  to  other
    persons accompanying the village Kotwal.
    4.           The village Kotwal  thereafter came to the police  station
    at Shirpur and lodged the report of the incident (Exh.15) on the  basis
    of which the offence was  registered  vide  crime  No.  161/2005  under
    Section 302 of  the  I.P.C.     The  police  thereafter  completed  the
    usual legal formality  by reaching on the spot  and  as  the  body  was
    found there, inquest was also conducted and  spot  panchnama  was  also
    prepared whereby the clothes of the  accused  containing  blood  stains
    were seized.   Woodenlog (Article No.3)   which  was  found   lying  on
    the spot was also seized  at the time of preparation of spot panchnama.
     The body of the deceased was then sent to  the   Government  Hospital,
    Shirpur where post-mortem  was conducted.
    5.             The  accused-appellant  was  subsequently  arrested  and
    taken  to the police station.  Investigation  thereafter  followed   in
    course of  which it transpired that it  was   the  appellant   who  had
    killed his wife Nagibai as he was suspecting  her  character.   Charges
    were then framed   against the appellant  under Section 498-A and   302
    of the I.P.C.  to which  the appellant pleaded not guilty  and  claimed
    to be tried.
    6.           In course of trial, the prosecution examined 12  witnesses
    on the question as to whether the appellant  had subjected his wife  to
    cruelty by giving her  beating and abuses from time to time  suspecting
    her character.  The trial court  further examined the question   as  to
    whether the accused had committed the  murder of his  wife  Nagibai  in
    his  house at village Majanipada  and thirdly as to  what other offence
    he has committed.
    7.           The defence story set up on behalf  of  the  appellant  is
    that  his wife had fallen down on the floor of the house due  to  which
    she sustained severe head injury which resulted  in her death.
    8.            The trial court on a scrutiny  of the evidence  and other
    materials on record rejected the defence story on the basis of the post-
    mortem  report  as   Dr.  Gohil    who   had   conducted    post-mortem
    categorically expressed that the head injury which the deceased Nagibai
    has sustained were not possible  due to fall on the ground.
    9.           Insofar as the charge under Section 498-A of  Indian Penal
    Code was concerned, the trial court  held that  none of the prosecution
    witnesses deposed that the accused-appellant was  subjecting  his  wife
    Nagibai to cruelty by giving her beating and abuses from time  to  time
    as alleged by the prosecution.  The  learned  Sessions  Judge  recorded
    that the evidence on record  indicates  that   it  was  only  a  single
    incident in which  accused-appellant  had assaulted  his  wife  Nagibai
    suspecting her fidelity and character as the evidence is missing   that
    the accused-appellant  was subjecting   his wife  to cruelty by abusing
    and assaulting her from time to time.  The learned Sessions Judge  thus
    was pleased to hold that the prosecution had failed to prove the charge
    under Section 498-A of the I.P.C.  against  the  accused-appellant  and
    hence acquitted him of this charge.
    10.          Insofar as the second charge is concerned  as  to  whether
    the accused-appellant is  the  author  of  the  head  injury   of   the
    deceased, the testimony of the daughter  of accused-appellant  Mangibai
    was held to be  significant  for    even  though  Mangibai  had  turned
    hostile, her testimony revealed that  on the day of the  incident,  her
    father was running behind her mother with a woodenlog for beating  her.
    On  witnessing  this  incident,  she  started  weeping  and  came  out.
    Thereafter, her father closed the door and only her father  and  mother
    were inside the house.  Immediately thereafter, her mother Nagibai  was
    found lying injured in a pool of blood inside the house and the accused
    also was there.  It  was,  therefore,   held   that  this  circumstance
    indicated that it is the accused-appellant who had assaulted  his  wife
    and caused her death.  It was further  held,  that   though  the  panch
    witness Mangibai  is a  hostile witness, such  portion of  the  hostile
    witness which is worth  believing  and  which  is  supported  by  other
    circumstances can be used and relied upon by the prosecution in view of
    well-settled legal position.    The Sessions Court thus on  a  scrutiny
    and analysis of the evidence accepted the  prosecution  version   based
    on the evidence  on record that the   accused-appellant  had  committed
    the murder of his wife by hitting her with a woodenlog  in  his   house
    and recorded a finding in the affirmative to the effect that it is  the
    accused-appellant who committed the murder of his wife-Nagibai  in  his
    house at village Majanipada. Thus, the appellant succeeded in  securing
    an  order of acquittal in his favour in so far as  the  charge    under
    Section 498-A of the Indian  Penal  Code  is  concerned,  but  suffered
    conviction and sentence of  imprisonment for  life  for  offence  under
    Section 302  of the I.P.C. for the  charge of murder of his wife.
    11.           The appellant  feeling aggrieved    with  the  conviction
    and sentence preferred an appeal before the High Court of Bombay  Bench
    at Aurangabad, but the High Court confirmed the view taken by the trial
    court  on all aspects including  the charge under Section  302  of  the
    I.P.C.
    12.          Assailing the  judgment and order  passed by the  Sessions
    Court as also the High Court which concurrently upheld  the  conviction
    of the appellant  under  Section  302  I.P.C.,   the  counsel  for  the
    appellant  first  of  all   attempted  to  demolish  the  case  of  the
    prosecution in its entirety  by  submitting  that  the  conviction  and
    sentence imposed on the appellant was not fit to be sustained   on  the
    testimony of the daughter  Mangibai   as  she  had  not  supported  the
    prosecution  version totally due to  which  she     had  been  declared
    hostile.  Hence, it was first of all contended that  the  testimony  of
    the hostile witness could not  have  been  relied  upon  for  recording
    conviction of the appellant.
    13.            We  have meticulously considered the arguments  advanced
    on this vital aspect  of  the matter   on  which  the  conviction   and
    sentence  imposed on the appellant  is   based.   This  compels  us  to
    consider as to whether the conviction  and sentence   recorded  on  the
    basis of the testimony of the witness who  has  been  declared  hostile
    could be relied upon for recording conviction of the accused-appellant.
     But it was difficult to  overlook  the  relevance  and  value  of  the
    evidence  of  even  a hostile witness while  considering   as  to  what
    extent their evidence could be allowed to be relied upon  and  used  by
    the prosecution.  It   could  not be ignored  that when  a  witness  is
    declared hostile and when his testimony  is not  shaken   on   material
    points in the cross-examination, there  is no ground   to  reject   his
    testimony in toto as it is  well-settled   by  a  catena  of  decisions
    that the  Court    is  not  precluded  from  taking  into  account  the
    statement of a hostile witness altogether and it is not  necessary   to
    discard  the same  in toto and can be relied   upon  partly.   If  some
    portion of the statement of  the hostile witness  inspires  confidence,
    it can be relied upon.  He cannot be thrown out as  wholly  unreliable.
    This was the view expressed by this court in the case  of   Syed  Akbar
    vs. State of Karnataka   reported in  AIR  1979  SC  1848  whereby  the
    learned Judges of the  Supreme  Court  reversed  the  judgment  of  the
    Karnataka High Court which had discarded  the  evidence  of  a  hostile
    witness in its entirety.  Similarly, other High Courts in the matter of
    Gulshan Kumar vs.  State (1993) Crl.L.J. 1525 as also Kunwar vs.  State
    of U.P. (1993) Crl.L.J. 3421 as also Haneefa vs. State (1993)  Crl.L.J.
    2125  have held  that it is not necessary to discard the   evidence  of
    the hostile witness in toto and can be relied upon partly.    So  also,
    in the matter of State of U.P. vs. Chet Ram reported  in  AIR  1989  SC
    1543 = (1989) Crl.L.J. 1785; it was held  that   if some portion of the
    statement of the hostile witness inspires confidence it can  be  relied
    upon and  the witness cannot be termed as  wholly  unreliable.  It  was
    further categorically  held  in the  case of Shatrughan  vs.  State  of
    M.P. (1993) Crl.L.J. 3120 that hostile witness  is  not  necessarily  a
    false witness.   Granting of a permission by the Court to cross-examine
    his own  witness does not amount to adjudication by the Court as to the
    veracity  of a witness.  It only means a declaration that  the  witness
    is adverse or unfriendly to the party calling  him  and  not  that  the
    witness is untruthful.   This was the view  expressed by this Court  in
    the matter of Sat Paul vs. Delhi Administration AIR 1976 SC 294.  Thus,
    merely because a  witness  becomes  hostile  it  would  not  result  in
    throwing out the prosecution case, but the Court must see the  relative
    effect  of his  testimony.  If the evidence of a  hostile   witness  is
    corroborated by other evidence, there  is no legal bar to  convict  the
    accused.  Thus testimony  of a hostile witness is   acceptable  to  the
    extent  it is corroborated by that  of  a  reliable  witness.   It  is,
    therefore, open to the Court  to consider the evidence and there is  no
    objection to a part of that evidence being made use of  in  support  of
    the prosecution or in support of the accused.
    14.          While examining  the instant matter on the  anvil  of  the
    aforesaid   legal  position  laid  down  by  this  Court   in   several
    pronouncements, we have  noticed that  the  support  rendered  by   the
    daughter  Mangibai  approving   the  incident  should  be  accepted  as
    reliable part of evidence in spite of she being a hostile witness.  The
    witness Mangibai’s evidence  pushes the accused  with his  bag  to  the
    wall and the accused is obliged to explain because her  evidence  shows
    that the accused  was the only  person in the company of  the  deceased
    soon before the death.  The defence of the accused     that   Nagibai’s
    injury was a result of fall is ruled out by medical  evidence  and  the
    details available of the location in the  panchnama  of  offence.   The
    courts below thus have  rightly  drawn some support from  the   reports
    of the chemical  analysis  since  all the  articles of the victims  and
    clothes of the accused are found  having blood stains  of  human  blood
    group A.  This was in view of the fact that the results of the analysis
    for determination of the blood group of the victim  and  accused   were
    conclusive  when  blood  sent  to  phial   was   analysed.   Thus,  the
    evidence  of the daughter of the deceased  coupled with other  material
    as also  evidence of other witnesses i.e.  Ramesh,  Khandu,  Bhatu  and
    Makhan,  provided a complete chain  and  the  prosecution  successfully
    proved that the incident occurred in the manner and the place which was
    alleged.  In fact, the accused in answer to questions under Section 313
    Cr.P.C.  has admitted his presence  at the place  of  occurrence  where
    his  wife Nagibai was  lying injured and dead on the  floor.   However,
    we do not wish to be understood that the failure of the defence   could
    be treated as success of the prosecution since the conviction cannot be
    based only on the replies given by the accused, but these  replies  may
    be considered as  support  to the special knowledge of  the accused and
    this lends sufficient  weight to the evidence of the  daughter  of  the
    deceased and other attending circumstances.   The trial Judge,  in  our
    view,  has rightly  placed reliance upon the evidence of Mangibai,  the
    daughter of the victim and the accused when she candidly supported  the
    prosecution story when she stated as follows:-


             “When my mother had sustained head injury, my father was  there
             only i.e. near my mother.   He  was  near  the  oven.   He  was
             talking loudly.


             It is true that my  father  hit  her  with  a  wooden  log  and
             therefore she ran to the kitchen.  It is true  that  my  father
             immediately ran after her.  I started weeping.  It is true that
             thereafter my father closed the door from inside.”…………………




    15.          Thus, we are of the view  that the  evidence  of  Mangibai
    who was declared hostile supported the prosecution case in  her  cross-
    examination and, therefore,  the courts below do      not  appear    to
    have fallen into any  error    in accepting     part of the evidence of
    Mangibai  and the retracted confession of  the witness Mangibai  cannot
    be accepted to  the  extent  that   her  evidence  in  support  of  the
    prosecution version was fit to be ruled out.  The  retracted  statement
    of Mangibai  stands fully supported by the evidence of other witnesses.
     Thus,  the  material  on  record  along  with  the   evidence  of  the
    prosecution witnesses  leads  to only one inference that  the  accused-
    appellant  was the author  of the injury  suffered by the victim and we
    have rightly been convinced that the  accused  and  the  accused  alone
    inflicted fatal injuries upon the  person of victim Nagibai.   We  are,
    therefore,  clearly of the view  that  in so far as  the  incident   of
    killing  of the deceased Nagibai is concerned, the  courts  below  have
    rightly held that she was killed by her husband-appellant in the manner
    which has been alleged by the prosecution.
    16.          However, learned counsel for the appellant  next submitted
    that the offence  alleged  to  have  been  committed  by  the  accused-
    appellant ought to be brought down within the ambit of Section 304 Part
    II of the I.P.C.  as there was  only  a single  blow inflicted  by  the
    accused-appellant which is clear    from the narration of  incident  by
    the daughter of the accused and deceased-Nagibai  which shows that  the
    accused was alone  with the  victim within the house  and  the  accused
    did not kill his wife with a pre-meditated   mind   but   the  incident
    took place  in a fit of anger due to the fact that  he was   suspecting
    his wife.  It was, therefore, submitted that the accused  in  fact  had
    no intention to kill his wife as the  death had occurred    on  account
    of  a single blow which was not the  result  of  a   pre-plan  or  pre-
    meditation.  In support of the submission, he relied upon  the judgment
    and   order of this Court  in  the  case  of  State  of  Punjab     vs.
    Bakhshish Singh & Ors. (2008) 17 SCC 411 which also had relied  on  the
    judgment  in the case of Anil Sharma & Ors.  vs.  State  of  Jharkhand,
    (2004) 5 SCC 679, Harbans Kaur vs. State of Haryana, (2005) 9 SCC  195,
    Amitsingh Bhikamsingh Thakur vs. State of Maharashtra, (2007) 2 SCC 310
    and this Court had been pleased to hold  that :


             “In all cases, it cannot be stated that when only a single blow
             is given, Section 302, IPC is made out,  yet  it  would  depend
             upon the  factual scenario of each case, more particularly  the
             nature of the offence, the background facts, the  part  of  the
             body where injuries were inflicted and  the   circumstances  in
             which the assault is made” that the offence under  Section  302
             IPC is not made out.”






    In view of the aforesaid observation, learned counsel  submitted   that
    offence under Section 302 I.P.C. in the instant matter also  cannot  be
    held to  have been made out  as the deceased  had  sustained  a  single
    blow  alleged to  have  been  inflicted   by  the  appellant.   Learned
    counsel  for  the  appellant   taking   further  assistance  from   the
    observation of the Supreme Court  in the matter of State of Punjab  vs.
    Bakhshish Singh (supra)    submitted further  that  the   past  history
    about the relations between the appellant and  the  deceased   goes  to
    prove that they did not have  any strained relations.   In  fact,  they
    had absolutely  normal relations and had  nine  children  out  of   the
    wedlock  and it was only  on  the  spur   of   the  moment   when   the
    appellant  abused suspecting   the character of deceased  Nagibai   and
    beat her with a stick unintentionally that the incident  happened.   In
    support of his argument, he relied on the case of Pannayar   vs.  State
    of Tamil Nadu  by Inspector of Police  (2009) 9 SCC  152  wherein  this
    Hon’ble Court held  that absence of motive  in case of   circumstantial
    evidence is more favourable to defence.
    17.           The  arguments  advanced   by  learned  counsel  for  the
    appellant-accused  when tested in the light  of the evidence led by the
    prosecution while considering  whether the  charge  under  Section  302
    could be  scaled  down  to  Section  304  Part-II,   we   have  already
    examined  the  circumstances in which the deceased had been killed  and
    hence it could be noticed that  the   deceased  Nagibai   and  accused-
    appellant although had been leading  a  so-called  normal  family  life
    along with their nine children, the fact remains  that  the  appellant-
    husband  had been suspecting  his wife’s character  and nurturing  deep
     rooted grudge  over a period of  time.   However,  the  evidence  does
    further  indicate  that  on  the  date   and  time  of  incident,   the
    appellant  had not  indulged    in pre-planning  the  incident  in  any
    manner  so as to eliminate  his wife by killing her.  The  evidence  of
    other witnesses also  indicated that the incident of beating   had  not
    happened  in the past and the   daughter of the  accused  and deceased-
    Mangibai  also  deposed  that  there  were  heated  exchange  of  words
    between the couple  on the date of incident and  the  appellant-accused
    heaped  abuses on his wife and then picked up a   woodenlog in a fit of
    anger by which  he  hit  the   deceased  as  a  result  of   which  she
    sustained head injury and bleeded   profusely which lead to her  death.


    18.           Thus the appellant although do not appear to have  killed
    his wife by planning out the whole incident in a methodical manner, yet
    the evidence disclosed that he was nurturing a grudge against  the wife
    over a long period of time  and on the date of the  incident  when  the
    husband started to abuse his deceased wife alleging her  of loose moral
    and character, the accused-husband  gave vent   to  his  deep    seated
    grudge by hitting her  with  such intensity  that  he  did  not  bother
    about the  consequence of his action. But  it cannot be  overlooked  or
    ignored that  the intensity with which  he hit his wife  after  abusing
    her is  indicative  of  the fact  that he was  not  oblivious  of   the
    consequence  which would  have  resulted  from  his   violent   act  of
    beating his wife with a log of  wood.     Thus,  it  will  have  to  be
    inferred  that he had sufficient  knowledge  about the  consequence  of
    his heinous  act at least to the extent  that  it was sufficient in the
    ordinary  course  of nature  to cause death of his wife.  He  was  thus
    fully aware of the consequence  that  this would result  in  a  serious
    consequence and in fact  it did result  in the said  manner  since  the
    wife  died as a result of the injury inflicted on her.  In  fact,  when
    the village Kotwal  reached the incident, the deceased  did  not   even
    expressed any remorse  for  what  he  had  done  to  his  wife  nor  he
    appeared to  be repentant   of  the incident.  This  clearly   reflects
    his state of mind  that he committed the crime with full  knowledge  to
    kill his wife Nagibai on account of his deep seated  grudge  which   he
    was carrying  since long.  Therefore, the  submission  of  the  counsel
    for the appellant that the charge under Section 302  I.P.C.  should  be
    converted into one under  Section 304 Part-II  I.P.C.   is  fit  to  be
    rejected and  accordingly  we do so.
    19.            The matter, however, do not set at rest at this stage as
    the evidence on record and the surrounding circumstances compels us  to
    consider further, whether the offence  would be made out  under Section
    302 I.P.C. or the same would fall under  Section  304  Part-I  of   the
    I.P.C. since  the  appellant-accused  and  his  wife-Nagibai  had  been
    married for a long time and were  having  nine  children  as  also  the
    manner of occurrence and the  circumstance  under  which  the  incident
    happened does indicate that the  incident  of  hot  exchange  of  words
    between the accused-appellant and his  deceased-wife  got  precipitated
    and  as  the appellant was already aggrieved  of his  wife   suspecting
    her character, he  hit his wife severely with  whatever  was  available
    without caring for the consequence.  Thus, the intention  to  kill  his
    wife and the knowledge  that she would be killed  due to the  hard  hit
    blow  by the log of wood   surely  cannot   be  ruled  out.    We  take
    assistance from the observations of this Court quoted  hereinabove that
    in all cases it cannot be  said that when only a single blow is  given,
    Section 302 I.P.C.  is made out.  Yet it would depend upon  the factual
    scenario of  each  case  more  particularly  nature  of  the   offence,
    background facts and the part of the body where  injury   is  inflicted
    and the circumstances in which the assault is made.
    20.           Taking  assistance   from   these   apt    and   relevant
    considerations when we examined the case  of  the  appellant,  we  have
    noticed  that the appellant was  living with his deceased wife  day  in
    and day out, but none of the  witness  has deposed that she was  abused
    and beaten earlier.  Thus, there is lack  of  evidence   that   on  the
    fateful day  the appellant-husband   had the pre-meditated intention to
    kill the  deceased  with a log of wood due to  which he inflicted   the
    fatal blow on the deceased. The anger  and  frustration  no  doubt  was
    acute in the mind of the appellant on account of  his  suspicion  which
    aggravated  due to hot exchange  of words  and  abuses  resulting  into
    loss of mental  balance  as a  consequence  of  which he hit  his  wife
    with such intensity that she died on the spot itself.  In view of  this
    the appellant will have to be attributed with the  knowledge  that  his
    act was sufficient in the ordinary course of nature to kill the victim-
    wife.
    21.           Thus, in our view, the accused-appellant although   might
    not be attributed with the intention   to  kill  his  wife,  sufficient
    knowledge   that  his  act   would  result  into   killing   her    was
    definitely there in the appellant’s mind and he in fact  gave  vent  to
    his  feeling  by   finally  killing  her   when  he  hit  her  with   a
    woodenlog to take revenge for her alleged  infidelity without realising
      that suspicion of her  fidelity was not proved  and even if  it  did,
    that gave no right  to him to kill his wife  in  a   brutal  manner  by
    hitting her  hard  enough with a  log  of  wood  with   such  intensity
    which was sufficient  in the ordinary course  of  nature  to  kill  the
    victim.
    22.          There are no dearth of incidents referred in the case laws
    where the husband  has gone to the extent of shooting his wife and many
    a times a paramour  shoots  the  husband  or  the  husband  shoots  the
    paramour on account of  suspicion founded or unfounded.   But  if   the
    evidence discloses that  the  accused  killed  the  victim  in  a  pre-
    meditated manner  as for instance    by using a firearm, the same might
    be  a clear case under Section 302 of the I.P.C.  But   the  facts  and
    circumstances   of the  incident   in  which  the  appellant  has  been
    convicted,  indicate that the  accused-appellant was not armed with any
    weapon or a firearm.  As already noticed the evidence do  not  disclose
    in any manner that the  appellant  had come with a  pre-meditated  mind
    to kill  his wife,  but it was only in course  of   hot  exchange    of
    words  and abuses which mindlessly  drove him to take  the extreme step
    of beating  his wife with a log of wood with such force and   intensity
    that  she   sustained head injury, profusely bled  and  finally    died
    on the spot.
    23.          We are, therefore, of the considered view   that  although
    the conviction and sentence of the appellant might not  be  sustainable
    under Section 302 I.P.C., it cannot also be scaled down to Section  304
    Part-II I.P.C.   But we are surely of the view  that the  appellant  is
    fit to be convicted and sentenced  under  Section  304  Part-I  of  the
    I.P.C. in view of the evidence on record, the surrounding  circumstance
    and the   factual  scenario  in  which   the  incident  occurred.   We,
    therefore, set aside the  conviction  and  sentence  of  the  appellant
    recorded under Section 302 I.P.C.  but convert the same  under  Section
    304  Part-I   I.P.C.    Thus,  we  deem   it  fit  and  appropriate  to
    substitute  the sentence of life imprisonment with  a  sentence  of  10
    years imprisonment.  The appeal thus, is   partly  allowed.   We  order
    accordingly.
                                                               …………………………….J
                                                           (Swatanter Kumar)



                                                               …………………………….J
                                                          (Gyan Sudha Misra)
    New Delhi,
    December 14, 2012
-----------------------
21

All the attributable defaults of a Central or State Public Information Officer have to be without any reasonable cause and persistently. In other words, besides finding that any of the stated defaults have been committed by such officer, the Commission has to further record its opinion that such default in relation to receiving of an application or not furnishing the information within the specified time was committed persistently and without a reasonable cause. =the appellant had shown that the default, if any on his part, was not without reasonable cause or result of a persistent default on his part. On the contrary, he had taken steps within his power and authority to provide information to respondent No.2. It was for the department concerned to react and provide the information asked for. In the present case, some default itself is attributable to respondent No.2 who did not even care to respond to the letter of the department dated 11th April, 2007. The cumulative effect of the above discussion is that we are unable to sustain the order passed by the State Information Commission dated 26th February, 2008 and the judgment of the High Court under appeal. Both the judgments are e set aside and the appeal is allowed. We further direct that the disciplinary action, if any, initiated by the department against the appellant shall be withdrawn forthwith.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.  9095          OF 2012
                   (Arising out of SLP(C) No.7529 of 2009)

Manohar     s/o Manikrao Anchule             ... Appellant
                                   Versus
State of Maharashtra & Anr.                  ... Respondents




                               J U D G M E N T

Swatanter Kumar, J.


1.    Leave granted.
2.    The present  appeal  is  directed  against  the  judgment  dated  18th
December, 2008 of the High Court of Bombay  at  Aurangabad  vide  which  the
High Court declined to interfere with the order dated  26th  February,  2008
passed by the State Information Commissioner under  the  provisions  of  the
Right to Information Act, 2005 (for short ‘the Act’).
3.    We may notice the facts in brief giving rise to  the  present  appeal.
One Shri Ram Narayan, respondent No.2, a political person belonging  to  the
Nationalist Congress Party, Nanded filed  an  application  on  3rd  January,
2007, before the appellant who was a nominated authority under Section 5  of
the Act and was responsible for providing  the  information  sought  by  the
applicants. This application was moved under Section 6(1) of the Act.
4.    In the application, the said  respondent  No.2  sought  the  following
information:

           “a.   The persons those who  are  appointed/selected  through  a
                  reservation  category,  their  names,   when   they   have
                  appointed on the said post.

           b.    When they have joined the said post.

           c.    The report of the  Caste  Verification  Committee  of  the
                  persons those who  are/were  selected  from  the  reserved
                  category.

           d.    The persons whose caste certificate is/was  forwarded  for
                  the verification to the caste verification committee after
                  due date.  Whether  any  action  is  taken  against  those
                  persons?  If  any  action  is  taken,  then   the   detail
                  information should be given within 30 days.”



5.    The appellant, at the relevant time, was working as Superintendent  in
the State Excise Department and was designated  as  the  Public  Information
Officer.  Thus,  he  was  discharging  the  functions  required  under   the
provisions of the Act.  After  receiving  the  application  from  Respondent
No.2, the appellant forwarded the application to  the  concerned  Department
for collecting the information. Vide letter dated 19th  January,  2007,  the
appellant had informed respondent No.2 that action on  his  application  has
been taken and the information asked for has been called from the  concerned
department and as and when the  information  is  received,  the  application
could be answered accordingly.  As  respondent  No.2  did  not  receive  the
information in furtherance to his application dated 3rd  January,  2007,  he
filed an appeal within the prescribed period before  the  Collector,  Nanded
on 1st March,  2007,  under  Section  19(1)  of  the  Act.  In  the  appeal,
respondent No.2 sought the  information  for  which  he  had  submitted  the
application. This appeal was forwarded to the office of the appellant  along
with the application given by respondent No.2.  No hearing was conducted  by
the office of the Collector at Nanded. Vide letter dated 11th  April,  2007,
the then Superintendent, State Excise, Nanded,  also  designated  as  Public
Information Officer, further wrote to respondent No.2 that since he had  not
mentioned the period for  which  the  information  is  sought,  it  was  not
possible to supply the information and requested him to furnish  the  period
for which such information was required.  The letter dated 11th April,  2007
reads as under :
           “... you have not mentioned the period of the information  which
           is sought by you. Therefore, it is not possible  to  supply  the
           information.  Therefore,  you  should  mention  the  period   of
           information in your application so that it will be convenient to
           supply the information.”


6.    As already noticed there was no hearing before the Collector  and  the
appeal before the Collector had not been decided.  It is  the  case  of  the
appellant that the communication  from  the  Collector's  office  dated  4th
March, 2007 had not been received in the office of  the  appellant.  Despite
issuance of the letter dated 11th April, 2007, no information  was  received
from respondent No.2 and, thus, the information could not  be  furnished  by
the appellant. On 4th  April,  2007,  the  appellant  was  transferred  from
Nanded to Akola District and thus was not  responsible  for  performance  of
the functions of the post that he was earlier holding at Nanded and so  also
the functions of Designated Public Information Officer.
7.    Respondent No.2, without awaiting the decision of the First  Appellate
Authority (the Collector), filed an  appeal  before  the  State  Information
Commission at Aurangabad regarding non-providing of  the  information  asked
for.  The  said  appeal  came  up  for  hearing  before  the  Commission  at
Aurangabad who directed issuance of the notice to the office  of  the  State
Excise at Nanded. The Nanded office informed the  appellant  of  the  notice
and that the hearing was kept for  26th  February,  2008  before  the  State
Information Commission at Aurangabad.  This was informed  to  the  appellant
vide  letter  dated  12th  February,  2008.  On  25th  February,  2008,  the
applicant forwarded an application through fax to the office  of  the  State
Information Commissioner bringing to their notice that for official  reasons
he was unable to appear before the Commissioner on that date  and  requested
for grant of extension of time  for  that  purpose.  Relevant  part  of  the
letter dated 25th February 2008 reads as under:
           “...hearing is fixed before the Hon'ble Minister,  State  Excise
           M.S.Mumbai in respect of licence of  CL-3  of  Shivani  Tq.  and
           Dist.  Akola.  For  that  purpose  it  is  necessary   for   the
           Superintendent,  State  Excise,  Akola  for  the  said  hearing.
           Therefore, it is not possible for  him  to  remain  present  for
           hearing on 26.2.2008  before  the  Hon'ble  Commissioner,  State
           Information Commission, Aurangabad. Therefore, it  is  requested
           that next date be given for the said hearing.”


8.    The State Information Commission, without considering the  application
and even the request made by the Officer who was present  before  the  State
Information Commission at the time of hearing, allowed the appeal  vide  its
order dated 26th  February,  2008,  directing  the  Commissioner  for  State
Excise to initiate action against the appellant as  per  the  Service  Rules
and that the action should be taken within two months and the same would  be
reported within one month thereafter to the  State  Information  Commission.
It will be useful to reproduce the relevant part of  the  order  dated  26th
February, 2008, passed by the State Information Commissioner:
           “The applicant has prefer First appeal before the  Collector  on
           1.3.2007, the said application was received to the State  Excise
           Office on 4.3.2007 and on  11.4.2007  it  was  informed  to  the
           applicant,  that  he  has  not  mentioned  the  specific  period
           regarding the information. The Public Information Officer, ought
           to have been informed to the applicant after receiving his first
           application regarding the specific period  of  information  but,
           here the public information officer has not consider positively,
           the application of the applicant and not taken any decision.  On
           the application given by the applicant, the  public  information
           officer ought to have been  informed  to  the  applicant  on  or
           before 28.1.2007 and as per the said Act, 2005 there is delay 73
           days for informing the applicant and this shows that, the Public
           Information Officer has not perform his  duty  which  is  casted
           upon him and he is negligent it reveals after going through  the
           documents by the State Commission. Therefore, it is order  that,
           while  considering  above  said  matter,  the  concerned  Public
           Information Officer, has made delay of 73 days for informing  to
           the applicant and therefore he has shown  the  negligence  while
           performing  his  duty.  Therefore,  it   is   ordered   to   the
           Commissioner  of  State  Excise  Maharashtra   State   to   take
           appropriate action as  per  the  Service  Rules  and  Regulation
           against the concerned Public Information Officer within the  two
           months from this order and  thereafter,  the  compliance  report
           will be submitted within  one  month  in  the  office  of  State
           Commission. As the applicant  has  not  mentioned  the  specific
           period  for  information  in  his   original   application   and
           therefore, the Public Information Officer was unable  to  supply
           him information. There is no order  to  the  Public  Information
           Officer  to  give  information  to  the  applicant  as  per  his
           application. It is necessary for all  the  applicant  those  who
           want the information under the said Act, he should fill  up  the
           form properly and it is confirmed that,  whether  he  has  given
           detail information while submitting the application as  per  the
           proforma and this would be confirm while making the application,
           otherwise the Public Information Officer will not in position to
           give expected information to  the  applicant.  At  the  time  of
           filing the application, it is necessary for  the  applicant,  to
           fill-up the form properly and it  was  the  prime  duty  of  the
           applicant.
           As per the above mentioned,  the  second  appeal  filed  by  the
           applicant is hereby decided as follows:
                                  O R D E R
           1.    The appeal is decided.

           2.    As the concern Public Information Officer  has  shown  his
                 negligence  while  performing  his  duty,  therefore,   the
                 Commissioner of State Excise, State of Maharashtra  has  to
                 take appropriate action as per the service rules within two
                 months from the date of order and  thereafter,  within  one
                 month they should submit their  compliance  report  to  the
                 State Commission.”



9.    The legality and correctness of the above order was challenged by  the
appellant before the High Court by filing the writ  petition  under  Article
226 of the Constitution of India. The appellant had  taken  various  grounds
challenging the correctness of this order. However,  the  High  Court,  vide
its order dated 18th December, 2008, dismissed the writ  petition  observing
that the appellant ought to  have  passed  the  appropriate  orders  in  the
matter rather than keeping respondent No.2 waiting.   It  also  noticed  the
contention that the application was so general and vague in nature that  the
information sought for could not be provided.  However, it  did  not  accept
the same.
10.   It is contended on behalf of the  appellant  that  the  order  of  the
State  Information  Commission,  as  affirmed  by  the  High  Court,  is  in
violation of the principles of natural justice and is contrary to  the  very
basic provisions of Section 20 of the Act. The order does  not  satisfy  any
of the ingredients spelt out in the provisions of Section 20(2) of the  Act.
The State  Information  Commission  did  not  decide  the  appeal,  it  only
directed action to be taken against  the  appellant  though  the  appeal  as
recorded in the order had been decided. It can, therefore, be inferred  that
there is apparent non-application of mind.
11.   The impugned orders do not take the  basic  facts  of  the  case  into
consideration that after a short  duration  the  appellant  was  transferred
from the post in  question  and  had  acted  upon  the  application  seeking
information within the prescribed  time.  Thus,  no  default,  much  less  a
negligence, was attributable to the appellant.
12.   Despite service, nobody appeared on behalf of  the  State  Information
Commission. The State filed no counter affidavit.
13.   Since  the  primary  controversy  in  the  case  revolves  around  the
interpretation of the provisions of Section  20  of  the  Act,  it  will  be
necessary for us to refer to the provisions of Section  20  of  the  Act  at
this stage itself. Section 20 reads as under:
           “Section  20:  Penalties:-(1)  Where  the  Central   Information
           Commission or the State Information Commission, as the case  may
           be, at the time of deciding any complaint or appeal  is  of  the
           opinion that the Central Public Information Officer or the State
           Public Information Officer, as the case may be, has, without any
           reasonable  cause,  refused  to  receive  an   application   for
           information or has not furnished  information  within  the  time
           specified under sub-section  (1)  of  section  7  or  malafidely
           denied the request for information or knowingly given incorrect,
           incomplete or misleading information  or  destroyed  information
           which was the subject of the request or obstructed in any manner
           in furnishing the information, it shall impose a penalty of  two
           hundred and fifty rupees each day till application  is  received
           or information is furnished, so however,  the  total  amount  of
           such penalty shall not exceed twenty-five thousand rupees:
           Provided that the Central  Public  Information  Officer  or  the
           State Public Information Officer, as the case may be,  shall  be
           given a reasonable opportunity of being heard before any penalty
           is imposed on him:
           Provided further that  the  burden  of  proving  that  he  acted
           reasonably  and  diligently  shall  be  on  the  Central  Public
           Information Officer or the State Public Information Officer,  as
           the case may be.
           (2) Where  the  Central  Information  Commission  or  the  State
           Information Commission, as the case  may  be,  at  the  time  of
           deciding any complaint or appeal is  of  the  opinion  that  the
           Central  Public  Information  Officer  or   the   State   Public
           Information Officer,  as  the  case  may  be,  has  without  any
           reasonable  cause  and  persistently,  failed  to   receive   an
           application for information or  has  not  furnished  information
           within the time specified under sub-section (1) of Section 7  or
           malafidely denied the request for information or knowingly given
           incorrect, incomplete or  misleading  information  or  destroyed
           information which was the subject of the request  or  obstructed
           in any manner in, furnishing the information, it shall recommend
           for disciplinary action against the Central  Public  Information
           Officer or the State Public Information Officer, as the case may
           be, under the service rules applicable to him.”


14.   State Information Commissions exercise very wide and  certainly  quasi
judicial powers. In fact their functioning is akin to  the  judicial  system
rather than the executive decision making process.
15.   It is a settled principle of law and does not require  us  to  discuss
this principle with any elaboration that  adherence  to  the  principles  of
natural justice is mandatory for such Tribunal or  bodies  discharging  such
functions.
16.   The State Information Commission has  been  vested  with  wide  powers
including imposition of penalty or taking  of  disciplinary  action  against
the employees. Exercise of such power is bound to adversely affect or  bring
civil consequences to the  delinquent.  Thus,  the  provisions  relating  to
penalty or to penal consequences have to be construed strictly. It will  not
be open to the Court to give them such liberal construction  that  it  would
be beyond the specific language of the statute or would be in  violation  to
the principles of natural justice.

17.   The State Information Commission is performing adjudicatory  functions
where  two  parties  raise  their  respective  issues  to  which  the  State
Information Commission is expected to apply  its  mind  and  pass  an  order
directing disclosure of the information asked for  or  declining  the  same.
Either way, it affects the rights of  the  parties  who  have  raised  rival
contentions before the Commission.  If there were no rival contentions,  the
matter would rest at the level of the designated Public Information  Officer
or immediately thereafter.  It comes to  the  State  Information  Commission
only  at  the  appellate  stage  when   rights   and   contentions   require
adjudication.  The adjudicatory process essentially has to be in  consonance
with the principles of natural  justice,  including  the  doctrine  of  audi
alteram partem.  Hearing the parties, application of mind and  recording  of
reasoned decision are the basic elements of  natural  justice.   It  is  not
expected of the Commission to breach any of these  principles,  particularly
when its orders are open to judicial review.   Much  less  to  Tribunals  or
such Commissions, the Courts have even made compliance to the  principle  of
rule of natural justice obligatory in the class  of  administrative  matters
as well. In the case of A.K. Kraipak  &  Ors.  v.  Union  of  India  &  Ors.
[(1969) 2 SCC 262], the Court held as under :


           “17.  … It is not necessary to examine those decisions as  there
           is a great deal of fresh thinking on the subject. The horizon of
           natural justice is constantly expanding…


           The aim of the rules of natural justice is to secure justice  or
           to put it negatively to prevent miscarriage  of  justice.  These
           rules can operate only in areas not covered by any  law  validly
           made. In other words they do not supplant the law  of  the  land
           but supplement it…. The concept of natural justice has undergone
           a great deal of change in recent  years.  In  the  past  it  was
           thought that it included just two rules namely: (1) no one shall
           be a judge in his own case (Nemo debet esse judex propria causa)
           and (2) no decision shall  be  given  against  a  party  without
           affording him a reasonable hearing (audi alteram  partem).  Very
           soon thereafter a third rule was  envisaged  and  that  is  that
           quasi-judicial enquiries must be held  in  good  faith,  without
           bias and not arbitrarily or unreasonably. But in the  course  of
           years many more subsidiary rules came to be added to  the  rules
           of natural justice. Till very recently it was the opinion of the
           courts that unless the authority concerned was required  by  the
           law under which it functioned to act  judicially  there  was  no
           room for the application of the rules of  natural  justice.  The
           validity of that limitation is now questioned. If the purpose of
           the rules of  natural  justice  is  to  prevent  miscarriage  of
           justice one  fails  to  see  why  those  rules  should  be  made
           inapplicable to administrative enquiries. Often times it is  not
           easy to draw the line that demarcates  administrative  enquiries
           from quasi-judicial enquiries. Enquiries which  were  considered
           administrative at one time are now being  considered  as  quasi-
           judicial in character. Arriving at a just decision is the aim of
           both  quasi-judicial  enquiries  as   well   as   administrative
           enquiries. An unjust decision in an administrative  enquiry  may
           have more far reaching  effect  than  a  decision  in  a  quasi-
           judicial enquiry. As observed by  this  Court  in  Suresh  Koshy
           George v. University of Kerala the rules of natural justice  are
           not embodied rules. What  particular  rule  of  natural  justice
           should apply to a given case must depend to a  great  extent  on
           the facts and circumstances of that case, the framework  of  the
           law under which the enquiry is held and the constitution of  the
           Tribunal or body of persons appointed for that purpose. Whenever
           a complaint is made  before  a  court  that  some  principle  of
           natural justice had been contravened the  court  has  to  decide
           whether the observance of that rule was  necessary  for  a  just
           decision on the facts of that case.


18.   In the case of Kranti Associates (P) Ltd. & Ors. v. Masood Ahmed  Khan
& Ors. [(2010) 9 SCC 496], the Court dealt with the question of  demarcation
between  the  administrative  orders  and  quasi-judicial  orders  and   the
requirement of adherence to natural justice.  The Court held as under :

           “47. Summarising the above discussion, this Court holds:

           (a)   In India the judicial trend  has  always  been  to  record
                 reasons,  even  in  administrative   decisions,   if   such
                 decisions affect anyone prejudicially.

           (b)   A quasi-judicial authority must record reasons in  support
                 of its conclusions.

           (c)   Insistence on recording of reasons is meant to  serve  the
                 wider principle of justice that justice must  not  only  be
                 done it must also appear to be done as well.

           (d)   Recording of reasons also operates as a valid restraint on
                 any possible arbitrary  exercise  of  judicial  and  quasi-
                 judicial or even administrative power.

           (e)   Reasons reassure that discretion has been exercised by the
                 decision-maker on  relevant  grounds  and  by  disregarding
                 extraneous considerations.

           (f)   Reasons have virtually become as indispensable a component
                 of a decision-making process  as  observing  principles  of
                 natural justice by judicial,  quasi-judicial  and  even  by
                 administrative bodies.

           (g)   Reasons facilitate  the  process  of  judicial  review  by
                 superior courts.

           (h)   The ongoing judicial trend in all countries  committed  to
                 rule of law and constitutional governance is in  favour  of
                 reasoned  decisions  based  on  relevant  facts.  This   is
                 virtually  the  lifeblood   of   judicial   decision-making
                 justifying  the  principle  that  reason  is  the  soul  of
                 justice.

           (i)   Judicial or even quasi-judicial opinions these days can be
                 as different as the  judges  and  authorities  who  deliver
                 them. All these decisions serve one common purpose which is
                 to demonstrate by reason that  the  relevant  factors  have
                 been  objectively  considered.  This   is   important   for
                 sustaining the litigants' faith  in  the  justice  delivery
                 system.

           (j)   Insistence on reason is a requirement  for  both  judicial
                 accountability and transparency.

           (k)   If a judge or a quasi-judicial  authority  is  not  candid
                 enough about his/her decision-making  process  then  it  is
                 impossible to know whether the person deciding is  faithful
                 to  the  doctrine  of  precedent  or   to   principles   of
                 incrementalism.

           (l)   Reasons in support of decisions must be cogent, clear  and
                 succinct. A pretence of reasons or  “rubber-stamp  reasons”
                 is not to be equated with a valid decision-making process.

           (m)   It cannot be doubted that transparency is the sine qua non
                 of restraint on abuse of judicial powers.  Transparency  in
                 decision-making not only makes  the  judges  and  decision-
                 makers less prone to errors but also makes them subject  to
                 broader scrutiny. (See David Shapiro in Defence of Judicial
                 Candor.)

           (n)   Since the requirement to record reasons emanates from  the
                 broad doctrine of fairness  in  decision-making,  the  said
                 requirement is now virtually a component  of  human  rights
                 and was considered part of  Strasbourg  Jurisprudence.  See
                 Ruiz Torija v. Spain EHRR, at  562  para  29  and  Anya  v.
                 University of Oxford, wherein the Court referred to Article
                 6  of  the  European  Convention  of  Human  Rights   which
                 requires,

                 “adequate  and  intelligent  reasons  must  be  given   for
                 judicial decisions”.

           (o)   In all common law jurisdictions  judgments  play  a  vital
                 role in setting up precedents for  the  future.  Therefore,
                 for development of law, requirement of giving  reasons  for
                 the decision is of the essence and is virtually a  part  of
                 ‘due process’.”



19.   The Court has also taken the view that even  if  cancellation  of  the
poll were an administrative act that per se does not repel  the  application
of  the  principles  of  natural  justice.   The  Court  further  said  that
classification of functions as judicial or administrative is  a  stultifying
shibboleth discarded in India as in England.  Today, in  our  jurisprudence,
the advances made by the natural justice far exceed  old  frontiers  and  if
judicial creativity blights penumbral areas, it is also  for  improving  the
quality of Government in injecting fair play into its wheels.  Reference  in
this  regard  can  be  made  to  Mohinder  Singh  Gill  v.  Chief   Election
Commissioner [(1978) 1 SCC 405].

20.   Referring to the requirement of adherence  to  principles  of  natural
justice in adjudicatory process, this Court in the case of Namit  Sharma  v.
Union of India [2012 (8) SCALE 593], held as under:

           “97.  It is not only appropriate but is a solemn duty  of  every
           adjudicatory body, including the tribunals, to state the reasons
           in support of  its  decisions.   Reasoning  is  the  soul  of  a
           judgment and embodies one of the three pillars on which the very
           foundation  of  natural  justice  jurisprudence  rests.   It  is
           informative to the claimant of the basis for  rejection  of  his
           claim, as well as provides the grounds for challenging the order
           before the higher authority/constitutional court.  The  reasons,
           therefore, enable the  authorities,  before  whom  an  order  is
           challenged, to test the veracity and correctness of the impugned
           order.  In the present times, since the fine line of distinction
           between the functioning of the administrative and quasi-judicial
           bodies is gradually  becoming  faint,  even  the  administrative
           bodies are required to pass reasoned orders.   In  this  regard,
           reference can be made to the judgments  of  this  Court  in  the
           cases of Siemens Engineering & Manufacturing Co. of  India  Ltd.
           v. Union of India & Anr.  [(1976)  2  SCC  981];  and  Assistant
           Commissioner,  Commrcial  Tax  Department  Works  Contract   and
           Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785].”




21.   We may notice that proviso to Section 20(1) specifically  contemplates
that before imposing the  penalty  contemplated  under  Section  20(1),  the
Commission shall give  a  reasonable  opportunity  of  being  heard  to  the
concerned  officer.   However,  there  is  no  such  specific  provision  in
relation  to  the  matters  covered  under  Section  20(2).   Section  20(2)
empowers the Central or the State Information Commission, as  the  case  may
be, at the time of deciding a complaint or appeal for the reasons stated  in
that section, to recommend for disciplinary action to be taken  against  the
Central Public Information Officer or the State Public Information  Officer,
as the case may be, under the relevant service rules.   Power  to  recommend
disciplinary  action  is  a  power  exercise  of  which  may  impose   penal
consequences.  When such a  recommendation  is  received,  the  disciplinary
authority would conduct the disciplinary proceedings in accordance with  law
and  subject  to  satisfaction  of  the  requirements  of  law.   It  is   a
‘recommendation’   and   not   a   ‘mandate’   to   conduct   an    enquiry.
‘Recommendation’  must  be  seen  in  contradistinction  to  ‘direction’  or
‘mandate’.   But  recommendation  itself   vests   the   delinquent   Public
Information Officer or State Public Information  Officer  with  consequences
which are of serious nature and can ultimately produce  prejudicial  results
including misconduct within the relevant  service  rules  and  invite  minor
and/or major penalty.

22.   Thus, the principles of natural justice  have  to  be  read  into  the
provisions of Section 20(2).  It is a settled canon of  civil  jurisprudence
including  service  jurisprudence  that  no  person  be  condemned  unheard.
Directing disciplinary action is an order  in  the  form  of  recommendation
which has far reaching civil consequences.  It will not  be  permissible  to
take the view that compliance with principles of natural justice  is  not  a
condition precedent to passing of a recommendation under Section 20(2).   In
the case of Udit Narain Singh  Malpharia  v.  Additional  Member,  Board  of
Revenue, Bihar [AIR 1963 SC 786], the Court stressed  upon  compliance  with
the  principles  of  natural   justice   in   judicial   or   quasi-judicial
proceedings.  Absence of such  specific  requirement  would  invalidate  the
order.  The Court, reiterating the principles stated in the English  Law  in
the case of King v. Electricity Commissioner, held as under :

           “The following classic test laid down by Lord Justice Atkin,  as
           he then was, in King v. Electricity Commissioners  and  followed
           by this Court in more than one decision clearly brings  out  the
           meaning of the concept of judicial act:

                 “Wherever anybody of  persons  having  legal  authority  to
                 determine questions affecting the rights of  subjects,  and
                 having the duty to act judicially, act in excess  of  their
                 legal  authority  they  are  subject  to  the   controlling
                 jurisdiction of the  King's  Bench  Division  exercised  in
                 these writs.”

           Lord Justice Slesser in King v. London County Council  dissected
           the concept of judicial act laid down by Atkin, L.J.,  into  the
           following heads in his judgment: “Wherever any body  of  persons
           (1) having legal authority (2) to determine questions  affecting
           rights of subjects and (3) having the duty to act judicially (4)
           act in excess of their legal authority — a  writ  of  certiorari
           may issue.” It will be seen from the ingredients of judicial act
           that there must  be  a  duty  to  act  judicially.  A  tribunal,
           therefore, exercising a judicial or  quasi-judicial  act  cannot
           decide against the rights  of  a  party  without  giving  him  a
           hearing or an opportunity to represent his case  in  the  manner
           known to law. If the provisions of a particular statute or rules
           made thereunder do not provide for  it,  principles  of  natural
           justice demand it. Any  such  order  made  without  hearing  the
           affected parties would be void. As a writ of certiorari will  be
           granted to remove the  record  of  proceedings  of  an  inferior
           tribunal or  authority  exercising  judicial  or  quasi-judicial
           acts, ex hypothhesi it follows that the High Court in exercising
           its jurisdiction shall also act judicially in disposing  of  the
           proceedings before it.”







23.   Thus, the principle is clear and settled that right of  hearing,  even
if not provided under a specific statute, the principles of natural  justice
shall so demand, unless by specific law, it is  excluded.   It  is  more  so
when exercise of authority is likely to vest the  person  with  consequences
of civil nature.

24.   In light of the above principles, now we will  examine  whether  there
is any violation of principles of natural justice in the present case.

25.   Vide letter dated 12th February, 2008, the appellant was  informed  by
the Excise Department, Nanded, when he was posted at Akola that hearing  was
fixed for 25th February, 2008.   He  submitted  a  request  for  adjournment
which, admittedly, was received and placed before the office  of  the  State
Information  Commission.   In  addition  thereto,  another  officer  of  the
Department had appeared, intimated  the  State  Information  Commission  and
requested for adjournment,  which  was  declined.    It  was  not  that  the
appellant  had  been  avoiding  appearance  before  the  State   Information
Commission.  It was the first date of hearing and in the letter  dated  25th
February, 2008, he had given a reasonable cause for his absence  before  the
Commission on 25th February, 2008.  However, on  26th  February,  2008,  the
impugned order was passed.  The appellant was entitled to a  hearing  before
an order could be passed against him under the provisions of  Section  20(2)
of the Act.   He  was  granted  no  such  hearing.   The  State  Information
Commission not only recommended  but  directed  initiation  of  departmental
proceedings against the appellant and even asked for the compliance  report.
 If such a harsh order was to be passed against  the  appellant,  the  least
that was expected of the Commission was to grant  him  a  hearing/reasonable
opportunity to put forward his case. We are of the considered view that  the
State Information Commission should have granted an  adjournment  and  heard
the appellant before passing an order Section under 20(2) of  the  Act.   On
that ground itself, the impugned order is liable to be set  aside.   It  may
be usefully noticed at this stage that the appellant had a genuine  case  to
explain before the State Information Commission and to  establish  that  his
case did not call for any action within the  provisions  of  Section  20(2).
Now, we would deal with the other contention  on  behalf  of  the  appellant
that the order itself does not satisfy the  requirements  of  Section  20(2)
and, thus, is unsustainable in law.  For this purpose, it is  necessary  for
the Court to analyse the requirement and scope of Section 20(2) of the  Act.
 Section 20(2) empowers  a  Central  Information  Commission  or  the  State
Information Commission :

(a)   at the time of deciding any complaint or appeal;

(b)   if it is of the opinion that the Central  Public  Information  Officer
      or the State Public Information Officer,  as  the  case  may  be,  has
      without any reasonable cause and persistently, failed  to  receive  an
      application for information or has not  furnished  information  within
      the time specified under sub-section (1) of Section 7 (i.e. 30 days);

(c)   malafidely denied the request for information or  intentionally  given
      incorrect, incomplete or misleading information; or

(d)   destroyed  information  which  was  the  subject  of  the  request  or
      obstructed in any manner in furnishing the information;

(e)   then it shall recommend for disciplinary  action  against  the  stated
      persons under the relevant servicerules.

26.   From the above dissected language of the provision, it is  clear  that
first of all an opinion has to be formed by the  Commission.   This  opinion
is to be formed at the time  of  deciding  any  complaint  or  appeal  after
hearing the person concerned.  The opinion  formed  has  to  have  basis  or
reasons and must be relatable to any of the defaults of the  provision.   It
is a penal provision as it vests the delinquent with civil  consequences  of
initiation of and/or  even  punishment  in  disciplinary  proceedings.   The
grounds stated in  the  Section  are  exhaustive  and  it  is  not  for  the
Commission to add other grounds which are not  specifically  stated  in  the
language  of  Section  20(2).   The  section  deals   with   two   different
proceedings.  Firstly, the appeal or complaint filed before  the  Commission
is to be decided and, secondly, if the Commission  forms  such  opinion,  as
contemplated under the provisions, then it can recommend  that  disciplinary
proceedings be taken against the said delinquent Central Public  Information
Officer  or  State  Public  Information  Officer.   The   purpose   of   the
legislation in requiring both these proceedings  to  be  taken  together  is
obvious not only from the language of the section but even by  applying  the
mischief rule wherein the provision is examined from the  very  purpose  for
which the provision has been enacted.  While deciding the complaint  or  the
appeal, if the Commission finds that the appeal  is  without  merit  or  the
complaint is without substance, the information need not  be  furnished  for
reasons  to  be  recorded.   If  such  be  the  decision,  the  question  of
recommending disciplinary action under Section 20(2) may not arise.   Still,
there may be another situation that upon perusing the records of the  appeal
or the complaint, the Commission may be of the  opinion  that  none  of  the
defaults contemplated under Section 20(2) is satisfied  and,  therefore,  no
action is  called  for.   To  put  it  simply,  the  Central  or  the  State
Commission have no jurisdiction to add to the exhaustive grounds of  default
mentioned in the provisions of Section 20(2).   The  case  of  default  must
strictly fall within the specified grounds  of  the  provisions  of  Section
20(2).  This provision has to be construed and applied strictly.  Its  ambit
cannot be permitted to be enlarged at the whims of the Commission.

27.   Now, let us examine if any one or more of  the  stated  grounds  under
Section 20(2) were satisfied in the present case  which  would  justify  the
recommendation by the Commission of taking disciplinary action  against  the
appellant.  The appellant had received the application from respondent  No.2
requiring the information sought for on 3rd January, 2007.    He  had,  much
within the  period  of  30  days  (specified  under  Section  7),  sent  the
application to the  concerned  department  requiring  them  to  furnish  the
requisite information.  The information  had  not  been  received.   May  be
after the expiry of the prescribed period, another  letter  was  written  by
the department to  respondent  No.2  to  state  the  period  for  which  the
information was asked for.  This letter was written  on  11th  April,  2007.
To this letter, respondent No.2 did not respond at all.  In  fact,  he  made
no further query to the office of the designated Public Information  Officer
as to the fate of his application and instead  preferred  an  appeal  before
the  Collector  and  thereafter  appeal   before   the   State   Information
Commission.  In the meanwhile, the appellant had  been  transferred  in  the
Excise Department from Nanded to Akola.  At this stage, we may  recapitulate
the relevant dates.  The application was filed on 3rd  January,  2007,  upon
which the appellant had acted and vide his letter dated 19th  January,  2007
had forwarded the application for requisite  information  to  the  concerned
department.  The appeal was filed by respondent no.2 under Section 19(1)  of
the Act before the Collector, Nanded on 1st  March,  2007.   On  4th  March,
2007, the appeal was forwarded to the office of the Excise  Department.   On
4th April, 2007, the appellant had been transferred from  Nanded  to  Akola.
On 11th April, 2007, other officer from the Department had asked  respondent
no.2 to specify the period for which the information was required.   If  the
appellant was given an opportunity and had appeared before  the  Commission,
he might have been able to explain that there was reasonable  cause  and  he
had taken  all  reasonable  steps  within  his  power  to  comply  with  the
provisions.  The Commission is expected to formulate an  opinion  that  must
specifically record the finding as to which part of Section 20(2)  the  case
falls in.  For instance, in relation to failure to  receive  an  application
for information or failure to furnish  the  information  within  the  period
specified in Section 7(1),  it  should  also  record  the  opinion  if  such
default was persistent and without reasonable cause.

28.   It appears that the facts have not been correctly noticed and, in  any
case, not in their entirety by the State  Information  Commission.   It  had
formed an opinion that the appellant was negligent  and  had  not  performed
the duty cast upon him.  The Commission  noticed  that  there  was  73  days
delay in informing the applicant  and,  thus,  there  was  negligence  while
performing duties.  If one examines  the  provisions  of  Section  20(2)  in
their entirety then it becomes obvious that every default  on  the  part  of
the concerned officer may not result in issuance  of  a  recommendation  for
disciplinary action.  The case must fall in any of  the  specified  defaults
and reasoned finding has to be recorded by the Commission while making  such
recommendations.  ‘Negligence’ per se  is not a ground on which  proceedings
under Section 20(2) of the Act can be invoked.  The Commission  must  return
a finding that such negligence, delay or default is persistent  and  without
reasonable cause.  In our considered view, the Commission,  in  the  present
case, has erred in not  recording  such  definite  finding.   The  appellant
herein had not failed to receive any application,  had  not  failed  to  act
within the period of 30 days  (as  he  had  written  a  letter  calling  for
information), had not malafidely denied the  request  for  information,  had
not furnished any incorrect or misleading  information,  had  not  destroyed
any information and had not obstructed the furnishing  of  the  information.
On the  contrary,  he  had  taken  steps  to  facilitate  the  providing  of
information by writing the stated letters.  May be  the  letter  dated  11th
April, 2007  was  not  written  within  the  period  of  30  days  requiring
respondent No.2 to furnish details of the period for which such  information
was required but  the  fact  remained  that  such  letter  was  written  and
respondent No.2 did not even bother to respond  to  the  said  enquiry.   He
just kept on filing appeal after appeal.  After  April  4,  2007,  the  date
when the appellant was transferred to Akola, he was not responsible for  the
acts of omissions and/or commission of the office at Nanded.

29.   Another aspect of this case which needs to be examined  by  the  Court
is that the appeal itself has  not  been  decided  though  it  has  so  been
recorded in the impugned order.  The entire impugned order does  not  direct
furnishing of the information asked for by respondent  No.1.   It  does  not
say whether such information was required to be furnished or not or  whether
in the facts of the case, it was required of respondent No.2 to  respond  to
the letter dated 11th April, 2007 written by the  Department  to  him.   All
these matters were requiring decision of  the  Commission  before  it  could
recommend the disciplinary action against the  appellant,  particularly,  in
the facts of the present case.

30.    All  the  attributable  defaults  of  a  Central  or   State   Public
Information  Officer  have  to  be  without   any   reasonable   cause   and
persistently.  In other words,  besides  finding  that  any  of  the  stated
defaults have been committed by such officer, the Commission has to  further
record its opinion  that  such  default  in  relation  to  receiving  of  an
application or not furnishing the information within the specified time  was
committed  persistently  and  without  a  reasonable  cause.   Use  of  such
language by the  Legislature  clearly  shows  that  the  expression  ‘shall’
appearing before ‘recommend’ has to be read and construed as  ‘may’.   There
could be cases where there is reasonable cause  shown  and  the  officer  is
able to demonstrate that there was no persistent default on his part  either
in receiving the application or furnishing the  requested  information.   In
such  circumstances,  the  law   does   not   require   recommendation   for
disciplinary proceedings to be made.  It  is  not  the  legislative  mandate
that irrespective of the facts and circumstances of a  given  case,  whether
reasonable  cause  is  shown  or  not,   the   Commission   must   recommend
disciplinary action merely because the  application  was  not  responded  to
within 30 days.  Every case has to be examined on its own facts.   We  would
hasten to add here that wherever  reasonable  cause  is  not  shown  to  the
satisfaction of the Commission and the Commission is  of  the  opinion  that
there is default in terms of the Section it  must  send  the  recommendation
for disciplinary action in accordance with law to the  concerned  authority.
In such circumstances, it will have no choice  but  to  send  recommendatory
report.  The burden of forming an opinion in accordance with the  provisions
of  Section  20(2)  and  principles  of  natural  justice  lies   upon   the
Commission.

31.   We are of the considered opinion that the  appellant  had  shown  that
the default, if any on his part, was not without reasonable cause or  result
of a persistent default on his part.  On the contrary, he  had  taken  steps
within his power and authority to provide information  to  respondent  No.2.
It was for the department concerned to react  and  provide  the  information
asked for.  In the present case, some  default  itself  is  attributable  to
respondent No.2 who did not even care  to  respond  to  the  letter  of  the
department dated 11th April, 2007.   The  cumulative  effect  of  the  above
discussion is that we are unable to sustain the order passed  by  the  State
Information Commission dated 26th February, 2008 and  the  judgment  of  the
High Court under appeal. Both the judgments are e  set aside and the  appeal
is allowed.  We  further  direct  that  the  disciplinary  action,  if  any,
initiated by  the  department  against  the  appellant  shall  be  withdrawn
forthwith.

32.   Further, we direct the State  Information  Commission  to  decide  the
appeal filed by respondent No.2 before it on merits and in  accordance  with
law.  It will also be open to the Commission to hear the appellant and  pass
any orders as contemplated  under  Section  20(2),  in  furtherance  to  the
notice issued to the appellant.  However, in the facts and circumstances  of
the case, there shall be no orders as to costs.

                                                             …………………………….,J.
                                                           [Swatanter Kumar]




                                                             …………………………….,J.
                                                            [Madan B. Lokur]
New Delhi;
December 13, 2012

SERVICE MATTER, “The word `lien’ is a generic term and, standing alone, it includes lien acquired by way of contract, or by operation of law.”= “Lien” connotes the civil right of a Government servant to hold the post “to which he is appointed substantively.” The necessary corollary to the aforesaid right, is that such appointment must be in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed, and when he has been made permanent to the said post.= she had any lien with respect to the post. Respondent no.1 voluntarily abandoned her job in the Society and joined another post, in another department on 29.7.2003. Therefore, her temporary employment in the Society came to an end automatically. She had chosen better employment under the Government of Madhya Pradesh, as opposed to continuing her employment in the Society on a project. Her employment in the Government of Madhya Pradesh was terminated after serving therein for a period of eight months, vide order dated 29.3.2004. In such a fact-situation, the Society was not bound to permit respondent no.1 to join the post of Project Director. As a consequence thereof, she has no right to challenge the advertisement dated 16.5.2005. At the most, if respondent no.1 was eligible for appointment as per the said advertisement, she can apply for fresh appointment. In case respondent no.1 felt that she had a right to join the services of the Government of Madhya Pradesh and that her service from there was wrongly terminated, she could have challenged the said order dated 29.3.2004, which has in fact, never been challenged by her, for reasons best known to her. 11. In view of the above, the learned Single Judge, as well as the Division Bench have misdirected themselves with respect to the actual issues involved in the case, and have decided the case upon totally irrelevant issues. The appeal therefore, succeeds, and is allowed. The judgment and order of the learned Single Judge, as well as that of the Division Bench, are hereby set aside. No costs.

                                                          REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                           Civil Appeal No.9028 of 2012
                 (Arising out of SLP (C) No. 18983 of 2009)




      State of Madhya Pradesh & Ors.               … Appellants


                  Vs.


      Ku. Sandhya Tomar & Anr.                     … Respondents




                             J U D G M E N T


      Dr. B.S. Chauhan, J.


      1.    Leave granted.


      2.    This appeal has been preferred against the  judgment  and  order
      dated 5.11.2008, passed by the High Court of  Madhya  Pradesh  (Indore
      Bench) in Writ Appeal No.86 of 2007, by  which  it  has  affirmed  the
      judgment and order of the learned Single Judge dated 17.7.2006, passed
      in Writ Petition No.1007 of 2006, by which the  learned  Single  Judge
      quashed the advertisement dated 16.5.2005, inviting  the  applications
      for appointment on the post of Project Director.
      3.    Facts and circumstances giving rise to this appeal are:-


      A.    That the Central Government introduced a scheme for  elimination
      of child labour  with  respect  to  which,  the  Director  General  of
      Employment and  Training  wrote  a  letter  dated  15.7.1995,  to  the
      Collector, Khargone (West Nimar) to implement  the  aforesaid  Scheme.
      In order to give  effect,  i.e.,  to  implement  the  said  Scheme,  a
      society, namely, the Child Labour Elimination & Rehabilitation Society
      (hereinafter referred to as the, “Society”), was formed  on  12.4.1996
      and the Collector became the ex-officio Chairman of the said  Society.
      It appears that in order to  appoint  the  Project  Director,  certain
      names requisitioned from the Employment Exchange, were considered  and
      respondent no.1 was selected and appointed  temporarily,  vide  letter
      dated 8.11.1996 on a fixed salary of Rs.4,000/- per  month.     Salary
      of respondent no.1 was increased from  Rs.4,000/-  to  Rs.8,000/-  per
      month vide Order dated 16.7.1999.
      B.     Respondent  no.1  joined  a  post  in  the  Panchayat  &  Rural
      Development Department in Zila Panchayat, Indore in pursuance  of  the
      order dated 29.7.2003, passed by the  Government  of  Madhya  Pradesh.
      Her services in the Panchayat & Rural Development Department were  not
      required, and she was repatriated vide order dated  29.3.2004  to  her
      parent department.  However, respondent no.1 was not permitted to join
      the  Society.   The  post  of  Project  Director  was  advertised   on
      16.5.2005. Thus, respondent no.1 filed a writ petition  on  26.5.2005,
      challenging the advertisement dated 16.5.2005, claiming her  right  to
      join the said post.
      C.    The appellants contested the writ petition on  various  grounds,
      however, the writ petition was allowed by  the  learned  Single  Judge
      vide order dated 17.7.2006.  Aggrieved, the appellants  filed  a  writ
      appeal, which stood dismissed vide impugned judgment and  order  dated
      5.11.2005.  Hence, this appeal.
      4.    Shri B.S.  Banthia,  learned  counsel  for  the  appellants  has
      submitted that the High Court committed an error in allowing the  said
      writ petition as respondent no.1 was merely a temporary employee,  and
      had joined another post under the alleged order of deputation, and had
      worked there for a period of 9-10 months.  She could  not  join  as  a
      Project Director in the Society as she had no lien therein.   She  had
      also left the Society without obtaining any previous sanction from the
      appointing Authority, i.e., the District Collector.  She had  further,
      voluntarily abandoned the services of the  Society  on  29.7.2003  and
      thereafter, she filed  the  said  writ  petition  on  26.5.2005,  only
      challenging advertisement dated 16.5.2005.   Hence,  even  though  her
      services  in  the  Panchayat  &  Rural  Development  Department   were
      terminated on 29.3.2004, she approached  the  High  Court  only  after
      lapse of a period of one year and two  months.   Thus,  the  iHHkkHigh
      Court ought not to have entertained the writ  petition  at  all.   The
      appeal deserves to be allowed.
      5.    Per contra, Shri Niraj Sharma,  learned  counsel  appearing  for
      respondent no.1 has strived to defend the impugned order passed by the
      High Court, contending that she had been sent  on  deputation  by  the
      Government, and over this, she had no control.  Therefore, she  had  a
      right to join the said Society.  Thus, the  appeal  is  liable  to  be
      dismissed.
      6.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.
      7.    Initial appointment of respondent no.1 was not made on the basis
      of any advertisement in any newspaper whatsoever.  Hence, applications
      for the post were not invited.  It is a settled legal proposition that
      considering the candidature of persons by mere calling of  names  from
      the Employment Exchange does not meet the requirement of  Articles  14
      and 16 of the Constitution  of  India.  (Vide:  Excise  Superintendent
      Malkapatnam, Krishna District, A.P., (1996) 6 SCC  216;   Veer  Kunwar
      Singh University Ad Hoc Teachers Association &  Ors.  v.  Bihar  State
      University (C.C.) Service Commission & Ors., (2009) 17 SCC 184;  Union
      of India & Ors. v. Miss. Pritilata Nanda, AIR 2010 SC 2821; and  State
      of Orissa & Anr. V. Mamata Mohanty, (2011) 3 SCC 436).
            Thus, in view of the above, we are  of  the  considered  opinion
      that  respondent  no.1  was  not  appointed  following  the  procedure
      mandatorily required by law, and that such appointment was  admittedly
      in violation of Articles 14 and 16 of the Constitution  of  India,  as
      several other eligible candidates have been deprived of their right to
      be considered for the post.
      8.    There can be no  dispute  with  respect  to  the  settled  legal
      proposition that in the event that a person  is  not  appointed  on  a
      regular basis, and if his service is not  governed  by  any  Statutory
      Rules, he shall be bound by the terms and conditions  that  have  been
      incorporated in his appointment letter.  (Vide :  State  of  Punjab  &
      Ors. v. Surinder Kumar  &  Ors.,  AIR  1992  SC  1593).   In  such  an
      eventuality, there can be no reason with respect to why the terms  and
      conditions incorporated  in  the  appointment  letter  should  not  be
      enforced against such an employee.  In the  instant  case,  respondent
      no.1 was temporarily appointed in a project and thus, she  had  at  no
      point of time, been appointed on a regular basis, owing to which,  she
      cannot claim any lien with respect to the said post.
      9.    “Lien” connotes the civil right of a Government servant to  hold
      the post “to which  he  is  appointed  substantively.”  The  necessary
      corollary to the aforesaid right, is that such appointment must be  in
      accordance with law. A person can be said to  have  acquired  lien  as
      regards  a  particular  post  only  when  his  appointment  has   been
      confirmed, and when he has been made permanent to the said post.
            “The word `lien’ is a  generic  term  and,  standing  alone,  it
      includes lien acquired by way of contract, or by operation of law.”
            Whether a person has lien, depends  upon  whether  he  has  been
      appointed in accordance with law, in substantive capacity and  whether
      he has been made permanent or has been confirmed  to  the  said  post.
      (Vide: Parshotam Lal Dhingra v. Union of India, AIR  1958  SC  36;  S.
      Pratap Singh v. State of Punjab, AIR  1964  SC  72;   T.R.  Sharma  v.
      Prithvi Singh & Ors., AIR 1976 SC 367;  Ramlal  Khurana  v.  State  of
      Punjab & Ors., AIR 1989 SC 1985; Triveni Shankar Saxena  v.  State  of
      U.P. & Ors., AIR 1992 SC 496; Dr. S.K. Kacker v. All  India  Institute
      of Medical Sciences & Ors., (1996) 10 SCC 734;   S. Narayana  Vs.  Md.
      Ahmedulla Khan & Ors., AIR 2006 SC 2224; and State of Rajasthan & Anr.
      v. S.N. Tiwari & Ors., AIR 2009 SC 2104).
      10.   It is not the case of the learned counsel  for  respondent  no.1
      that she had any lien with respect to the post.
            Respondent no.1 voluntarily abandoned her job in the Society and
      joined another post, in another department on  29.7.2003.   
Therefore,
      her temporary employment in the Society came to an end  automatically.
      She had chosen  better  employment  under  the  Government  of  Madhya
      Pradesh, as opposed to continuing her employment in the Society  on  a
      project.  Her employment in  the  Government  of  Madhya  Pradesh  was
      terminated after serving therein for a period of  eight  months,  vide
      order dated 29.3.2004. 
 In such a fact-situation, the Society was  not
      bound to permit respondent no.1 to join the post of Project  Director.
      As  a  consequence  thereof,  she  has  no  right  to  challenge   the
      advertisement dated 16.5.2005. 
 At the most, if  respondent  no.1  was
      eligible for appointment as per the said advertisement, she can  apply
      for fresh appointment. 
 In case respondent no.1 felt  that she  had  a
      right to join the services of the Government  of  Madhya  Pradesh  and
      that her service from there was wrongly  terminated,  she  could  have
      challenged the said order dated 29.3.2004, which has  in  fact,  never
      been challenged by her, for reasons best known to her.
      11.   In view of the above, the learned Single Judge, as well  as  the
      Division Bench have misdirected themselves with respect to the  actual
      issues involved in the case, and have decided the  case  upon  totally
      irrelevant issues.  
The appeal therefore, succeeds,  and  is  allowed.
      The judgment and order of the learned Single Judge, as well as that of
      the Division Bench, are hereby set aside. No costs.


                      …………………………..………………………J.
                          (Dr. B.S. CHAUHAN)


                      …..…………………….….………………………J.
                        (FAKKIR MOHAMED IBRAHIM KALIFULLA)


      New Delhi,
      December 13, 2012







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