(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.” In view of the aforesaid, the amount determined/awarded by the Claims Tribunal was Rs.5,81,000/- along with 6 per cent interest from the date of filing of the petition till the date of realization of the amount is upheld as no appeal for its enhancement was filed before the High Court by the claimants. It would be open to the claimants to recover the entire amount from any of the respondents, that is from owner, driver and insurer of the Maruti car or respondent No.4, driver of the tempo as their liability is joint and several with respect to claimants. It would be open to the respondents to settle their inter se liability as per the aforesaid decision of this Court. Appeal is allowed. No order as to costs.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8879  OF 2015

                   [Arising out of SLP [C] No.24685/2013]

Kamlesh & Ors.                               … Appellants

Vs.

Attar Singh & Ors.                                 … Respondents

                               J U D G M E N T

ARUN MISHRA, J.

1.    Leave granted.

2.    The appeal has been  preferred  by  the  claimants  aggrieved  by  the

dismissal of their claim petition and setting  aside  award  passed  by  the

Motor Accidents Claims Tribunal,  Sonepat  on  5.8.2005  in  Claim  Petition

No.217/2002/2004 by the High Court of Punjab & Haryana  at  Chandigarh  vide

judgment and order dated 4.9.2009 in FAO No.345/2007.

3.    The claimants Kamlesh, widow of deceased Rishi  Parkash,  three  minor

sons and mother of the deceased  filed  a  claim  petition  as  against  the

driver, owner and insurer of Maruti Car No.DL4CC -5172 and driver of  three-

wheeler Tempo No.HRH-3572. The compensation of Rs.12  lakhs  was  prayed  on

account of the death of Rishi Parkash in the accident dated 8.5.2003  caused

due to the collision between Maruti car and tempo. Maruti car was driven  by

Rajinder Singh whereas the tempo  was  driven  by  Attar  Singh,  respondent

No.4. Deceased Rishi Parkash was travelling in  the  tempo  towards  village

Naina Tatarpur. As per the claimant Attar Singh was  driving  the  tempo  on

his right side at a normal speed in due observance  of  the  traffic  rules.

When he reached about 1.5 km. from  Barwashni  towards  Gohana,  Maruti  car

came from the opposite side and struck the tempo inbetween near footstep  as

a result of which Rishi Parkash received injuries and succumbed to  them  on

the way to the hospital. Postmortem was conducted. Respondent No.1  Rajinder

filed an  FIR  No.77  under  section  279-304-A  IPC  against  Attar  Singh.

Deceased was aged 36 years and was working as a Supervisor in  Emkay  &  Co.

He was receiving a salary of Rs.4,500 per month. Maruti  car  was  owned  by

Hukam Chand and insured with Oriental Insurance Co. Ltd.

4.    The owner and driver of the Maruti car  contended  that  the  accident

was the outcome of rash and negligent driving of Attar Singh, driver of  the

tempo.  Police  had  found  on  due  investigation  that  Attar  Singh   was

negligent. Chargesheet was also filed against Attar Singh.  The  insurer  in

its separate written statement also contended that the accident was  due  to

rash and negligent driving of Attar Singh, respondent No.4.

5.    Attar Singh, respondent No.4, in his reply contended that  Police  had

fabricated the case against him in collusion with Rajinder Singh, driver  of

the Maruti car. A criminal complaint  has  been  filed  by  respondent  No.4

against Rajinder Singh, driver of Maruti Car  before  the  Additional  Chief

Judicial Magistrate, Sonepat for rash and negligent driving.

6.    Claims Tribunal came to the  conclusion  that  Ram  Parshad,  Claimant

Witness PW-2 has admitted that after investigation Police  has  found  Attar

Singh to be  negligent  and  he  was  chargesheeted.  Attar  Singh  examined

himself and his statement has not been relied  upon  mainly  on  the  ground

that as he has admitted that  he  was  facing  criminal  trial.  The  Claims

Tribunal found  that  Attar  Singh  driver  of  the  tempo,  was  negligent,

determined the quantum of compensation at  Rs.5,81,000/-  with  interest  at

the rate of 6% per annum from the date of filing application,  liability  to

pay the same has been fastened upon Attar Singh.

7.    Aggrieved thereby Attar Singh preferred appeal before the High  Court.

The High Court on the ground that in the claim petition  the  negligence  of

Attar Singh has not been pleaded and the  claimants  have  relied  upon  the

evidence of Ram Parshad PW2 and Devender PW3 to prove the negligence of  the

driver of the Maruti car; whereas Rajinder driver  of  the  Maruti  car  had

lodged the first information report. As the claimants have not  set  up  the

case of negligence against Attar Singh. As such the High Court  has  allowed

the appeal filed by Attar Singh driver of the tempo and  has  dismissed  the

claim petition. Aggrieved thereby the  appeal  has  been  preferred  by  the

claimants.

8.    We have heard learned counsel  for  the  parties  and  perused,  inter

alia, the evidence on record of Ram  Parshad  PW2  and  Devender  PW.3.  The

method and manner in which the accident has taken place leaves no  room  for

doubt that it was a case of composite negligence  of  drivers  of  both  the

vehicles, that is the driver of Maruti  car  and  driver  of  tempo.  Though

Police has registered a case against driver of the  tempo  Attar  Singh  and

has filed a chargesheet but the  same  cannot  be  said  to  be  conclusive.

Though, Attar Singh has stated that it was in order to oblige the driver  of

the Maruti car, a case was registered against him.  Be that as it  may.   It

appears both the drivers have  tried  to  save  their  liability.   In  such

circumstances,  the  version  of  eye-witnesses,  PW.2  and   PW.3   assumes

significance. The fact remains that car had dashed the tempo on  the  middle

portion near footstep. Thus the method and manner in which the accident  has

taken place leaves no room for doubt that both the drivers  were  negligent.

Man may lie but the circumstances  do  not  is  the  cardinal  principle  of

evaluation of evidence. No effort  has  been  made  by  the  High  Court  to

appreciate the evidence and method and manner  in  which  the  accident  has

taken place.  Both the aforesaid witnesses have stated  Maruti  Car  was  in

excessive speed.  However, it appears driver of tempo also could not  remove

his vehicle from the way  of  Maruti  Car.   Thus,  both  the  drivers  were

clearly negligent.  It appears from the facts and  circumstances  that  both

the drivers were equally responsible for the accident. Thus, it was  a  case

of composite negligence.  Both the drivers were joint ‘tort-feasors’,  thus,

liable to make payment of compensation.

9.    The  law  in  the  case  of  an  accident  arising  out  of  composite

negligence has been considered by  a  3  Judges’  bench  of  this  Court  in

Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015  SC  2261)  wherein

following propositions have been laid down :

“(i)  In the case of composite negligence,  plaintiff/claimant  is  entitled

to sue both or any one of the joint tort feasors and to recover  the  entire

compensation as liability of joint tort feasors is joint and several.

(ii)  In the case of composite  negligence,  apportionment  of  compensation

between  two  tort  feasors  vis  a  vis  the  plaintiff/claimant   is   not

permissible.  He can recover at his option whole damages from any of them.

(iii) In case all the joint tort feasors have been  impleaded  and  evidence

is sufficient, it is open  to  the  court/tribunal  to  determine  inter  se

extent of composite negligence of the  drivers.  However,  determination  of

the extent of negligence between the joint tort  feasors  is  only  for  the

purpose of their inter se liability so that one may  recover  the  sum  from

the other after making whole of payment to  the  plaintiff/claimant  to  the

extent it has satisfied the liability of the other.  In case  both  of  them

have been impleaded and the apportionment/ extent of  their  negligence  has

been determined by the court/tribunal, in main case one  joint  tort  feasor

can recover the amount from the other in the execution proceedings.

(iv)  It would not be appropriate for the court/tribunal  to  determine  the

extent of composite negligence  of  the  drivers  of  two  vehicles  in  the

absence of impleadment  of  other  joint  tort  feasors.  In  such  a  case,

impleaded joint tort feasor should be left, in case he so  desires,  to  sue

the other joint tort feasor in independent proceedings after passing of  the

decree or award.”

10.   In view of the aforesaid, the amount determined/awarded by the  Claims

Tribunal was Rs.5,81,000/- along with 6 per cent interest from the  date  of

filing of the petition till the date of realization of the amount is  upheld

as no appeal for its enhancement was filed before  the  High  Court  by  the

claimants. It would be open to the claimants to recover  the  entire  amount

from any of the respondents, that is from owner, driver and insurer  of  the

Maruti car or respondent No.4, driver of the tempo  as  their  liability  is

joint and several with respect  to  claimants.  It  would  be  open  to  the

respondents to  settle  their  inter  se  liability  as  per  the  aforesaid

decision of this Court. Appeal is allowed. No order as to costs.

                                                              ……………………..CJI.

                       (H.L. Dattu)

New Delhi;                              ………………………..J.

October 27, 2015.                                       (Arun Mishra)

whether the High Court was justified in passing the impugned judgment without formulating any substantial question of law

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8909 OF 2015
                    Arising out of SLP(C) No.1120 of 2015

ASHOK RANGNTH NAGAR                       ….APPELLANT(S)

                                   VERSUS

SHRIKANT GOVINDRAO SANGVIKAR     …..RESPONDENT(S)

WITH

C.A.No.8910/2015 (Arising out of SLP(C) No.1121/2015)
C.A.No.8911/2015 (Arising out of SLP(C) No.1122/2015)


                                  O R D E R
Leave granted.
2.    We have heard Mr. Vatsalya Vigya, learned counsel  appearing  for  the
appellant  and  Ms.  Chandrakant  Giri,  learned  Amicus  Curiae   for   the
respondents and  perused  the  common  impugned  judgment  dated  13.02.2014
passed by the Bombay High Court.
3.    The short question that arises for consideration in these  appeals  is
as to whether the High Court was justified in passing the impugned  judgment
without formulating any substantial question of law.
4.    The  facts  of  the  case  in  a  nutshell  are  that  the  plaintiff-
respondents  filed  a  civil  suit  for  perpetual  injunction  against  the
defendant-appellant seeking a decree restraining  him  from  alienating  the
suit property.
5.    After a full-fledged trial, the suit was dismissed.   As  against  the
judgment and decree passed by the trial court, the  plaintiff  preferred  an
appeal before the District Judge which was also dismissed by  upholding  the
judgment of  the  trial  court.   Aggrieved  by  the  same,  the  plaintiff-
respondents filed second appeals in the High Court.  The High Court  without
formulating substantial question of law heard the appeals and  reversed  the
judgment and decree passed by the trial  court  as  also  of  the  appellate
court.  Consequently,  the  suit  was  decreed.   Hence,  these  appeals  by
special leave.
6.    Without expressing any opinion on the merits of the case  prima  facie
we are of the view that the matter need to be remitted to the High Court  to
decide the second appeal afresh.  The High Court, in fact, failed to  notice
the mandate of Section 100 CPC while deciding a  second  appeal.   Time  and
again this Court has held that unless  the  High  Court  is  satisfied  that
there is a substantial question of law, jurisdiction under  Section  100  of
the Code cannot be exercised.
7.    Although not necessary but to remind  ourselves  the  law  settled  by
this Court we may refer some of the decisions hereinafter.
8.    In the case of Shiv Cotex vs. Tirgun Auto Plast  (P)  Ltd.,  (2011)  9
SCC 678, against the concurrent judgment and decree of  the  two  courts,  a
Second Appeal was filed before the High Court, which  has  been  allowed  by
the Single Judge and the suit had been  remanded  to  the  trial  court  for
fresh decision in accordance  with  law.   While  deciding  the  appeal  and
reversing the judgment  and  decree  of  the  two  courts,  the  High  Court
proceeded without formulating any substantial question  of  law.   On  these
facts, this Court observed that

“11. The judgment of  the  High  Court  is  gravely  flawed  and  cannot  be
sustained for more than one reason. In the  first  place,  the  High  Court,
while deciding  the  second  appeal,  failed  to  adhere  to  the  necessary
requirement of Section 100 CPC and interfered with the  concurrent  judgment
and decree of the courts below without formulating any substantial  question
of law. The formulation of substantial question of law is a must before  the
second appeal is heard and finally disposed  of  by  the  High  Court.  This
Court has reiterated and restated the legal  position  time  out  of  number
that formulation of a substantial question of law is a  condition  precedent
for entertaining and deciding a second  appeal.  Recently,  in  Umerkhan  v.
Bismillabi decided by us on 28-7-2011, it has been held  that  the  judgment
of the High Court is rendered patently illegal, if a second appeal is  heard
and  the  judgment  and  decree  appealed  against   is   reversed   without
formulating a substantial question of law.”


9.    In the case of Umerkhan vs. Bismillabi, (2011) 9  SCC  684,  the  High
Court had allowed the second appeal and set aside the  judgment  and  decree
of the First Appellate Court.  While allowing the appeal and  reversing  the
judgment of  the  Appellate  Court,  no  substantial  question  of  law  was
formulated.  On these facts, this Court observed as under:

“11. In our view, the very jurisdiction of  the  High  Court  in  hearing  a
second appeal is founded on the formulation of  a  substantial  question  of
law. The judgment of the High Court  is  rendered  patently  illegal,  if  a
second appeal is heard and judgment and decree appealed against is  reversed
without formulating a substantial question  of  law.  The  second  appellate
jurisdiction of the High  Court  under  Section  100  is  not  akin  to  the
appellate jurisdiction under Section 96 of the Code;  it  is  restricted  to
such substantial question or questions  of  law  that  may  arise  from  the
judgment and decree appealed against. As a matter of law,  a  second  appeal
is entertainable by the  High  Court  only  upon  its  satisfaction  that  a
substantial question of law is involved in the matter  and  its  formulation
thereof. Section 100 of the Code provides that the second  appeal  shall  be
heard on the question so formulated. It is, however, open to the High  Court
to reframe substantial question of law or frame substantial question of  law
afresh or hold that no substantial question of law is involved at  the  time
of hearing the second appeal but reversal of the judgment and decree  passed
in appeal by a court subordinate to it in  exercise  of  jurisdiction  under
Section 100 of the Code is  impermissible  without  formulating  substantial
question of law and a decision on such question.
12. This Court has been bringing to  the  notice  of  the  High  Courts  the
constraints of Section 100 of the Code and the mandate of the law  contained
in Section 101 that  no  second  appeal  shall  lie  except  on  the  ground
mentioned in  Section  100,  yet  it  appears  that  the  fundamental  legal
position concerning jurisdiction of the  High  Court  in  second  appeal  is
ignored and overlooked time and again. The present appeal  is  unfortunately
one of such matters where the High Court interfered with  the  judgment  and
decree of the first appellate court in total disregard of  the  above  legal
position.”


10.   In the case of Rameshwar Dayal Mangala v. Harish Chand, (2009)  4  SCC
800, a suit for mandatory injunction was filed and the same was  decreed  by
the trial court.  Challenging the judgment and decree of  the  trial  court,
first appeal was preferred, which was eventually allowed.   Questioning  the
judgment and decree passed by the First Appellate  Court,  a  second  appeal
was filed and the same was allowed by the High Court and  the  judgment  and
decree passed by the Appellate Court was reversed  without  formulating  any
substantial question of law.  On these facts, this Court held that the  High
Court, exercising jurisdiction under  Section  100  of  the  Code  of  Civil
Procedure,  cannot  interfere  with  or   reverse   the   judgment   without
formulating any substantial question of law.
11.   Also in the case of B.C. Shivashankara vs.  B.R.  Nagaraj,  (2007)  15
SCC 387, learned Single Judge of the Karnataka  High  Court  allowed  second
appeal and set aside the  judgment  and  decree  without  first  formulating
substantial  question  of  law.   This  Court,  therefore,  after  referring
earlier decisions of this Court, held that the judgment of  the  High  Court
cannot be sustained in law and the matter was remitted  to  the  High  Court
for its disposal in accordance with law.
12.   In the case of Patrick JJ. Saldanha vs. Antony M. Saldanha, (2007)  11
SCC 148, the High  Court  allowed  the  second  appeal  and  set  aside  the
judgment and decree passed by the courts below.  While allowing  the  appeal
and reversing the judgment, no substantial question of  law  was  framed  by
the High Court.  In that context, this Court reiterated as under:
“3. In view of Section 100 of the Code of Civil Procedure,  1908  (in  short
“the Code”) the memorandum  of  appeal  shall  precisely  state  substantial
question or questions of law involved in the appeal as required  under  sub-
section (3) of Section 100. Where the High Court is satisfied  that  in  any
case any substantial question of law is involved, it  shall  formulate  that
question under sub-section (4) and the second appeal has to be heard on  the
question so formulated as stated in sub-section (5) of Section 100.”


13.   In the  case  of  Mahavir  vs.  Lakhmi,  (2007)  9  SCC  208,  it  was
reiterated by this Court that while reversing the  judgment  and  decree  in
second appeal by the High Court, Section  100,  CPC  mandates  to  formulate
substantial question of law before allowing the second appeal and  reversing
the judgment and decree of the lower court.
14.   In the case of Hardeep Kaur vs. Malkiat Kaur, (2012) 4  SCC  344,  the
second appeal was allowed by the High Court  and  the  judgment  and  decree
passed by the appellate Court was set aside.  The short question  considered
by this Court was whether  a  second  appeal  lies  only  on  a  substantial
question of law and is it essential  for  the  High  Court  to  formulate  a
substantial question of law before interfering with the judgment and  decree
of the lower appellate court.  This Court, after considering almost all  the
earlier judgments, held as under:
“18.  The  law  consistently  stated  by  this  Court  that  formulation  of
substantial question of law is a sine qua non for exercise  of  jurisdiction
under Section 100 CPC admits of no ambiguity and permits  no  departure.  In
the present case, the High Court has  allowed  the  second  appeal  and  set
aside  the  judgment  and  decree  of  the  first  appellate  court  without
formulating any substantial question of  law,  which  is  impermissible  and
that renders the judgment of the High Court unsustainable.

15.   In Shah Mansukhlal Chhaganial vs. Gohil  Amarsing  Govindbhai,  (2006)
13 SCC 113, and Boodireddy Chandraiah  vs.   Arigela  Laxmi,  (2007)  8  SCC
155, this Court reiterated the same view that the second  appeal  cannot  be
allowed by the High Court without formulating any  substantial  question  of
law.
16.   In the case of Joseph Severance v. Benny Mathew,  (2005)  7  SCC  667,
this Court again took the view that the High Court would  not  be  competent
to reverse the finding recorded by the trial court or  the  first  appellate
court without formulating substantial question of law.
17.   In State of Kerala vs. Puthenkavu  N.S.S.  Karayogam,  (2001)  10  SCC
191, a second appeal was filed against the concurrent  finding  recorded  by
both the trial court and the  first  appellate  court.   However,  the  High
Court, exercising jurisdiction under Section 100, CPC  interfered  with  the
concurrent finding of facts and allowed the appeal.  This  Court  set  aside
the order holding that the judgment of the High Court  cannot  be  sustained
inasmuch  as  it  reverses  the  judgment  without  formulating  substantial
question of law.  The Court observed, thus:

“5. Both sides have advanced several contentions in the appeal  petition  as
also in the counter-affidavit filed. We refrain from expressing any  opinion
on the merits of the case as we propose  to  remit  the  second  appeal  for
disposal afresh. We have  noted  that  the  learned  Single  Judge  has  not
formulated any question of law, much less any substantial question  of  law,
which alone would have  clothed  the  High  Court  with  jurisdiction  under
Section 100 CPC to deal with a second appeal. This  Court  has  stated  time
and again  that  unless  the  High  Court  is  satisfied  that  there  is  a
substantial question of  law,  jurisdiction  for  second  appeal  cannot  be
exercised. It is unnecessary to cite the authorities on that  aspect  as  it
has now become well-nigh settled. Both  sides  agreed  that  no  substantial
question of law has been formulated by the learned Single Judge. If so,  the
learned Single Judge ought to have proceeded further.”


18.   In the case of Ellangallur vs. Gopalan, (2000) 2        SCC  11,  this
Court, considering a case where the High Court  in  second  appeal  reversed
the finding of the first appellate court on the re-appreciation of  evidence
without formulating any substantial question of law, held that the  judgment
passed by the High Court cannot be  sustained  in  view  of  the  prescribed
procedure of Section 100 of the Code of  Civil  Procedure.   Same  view  has
been reiterated by this Court in  the  case  of  H.G.  Venkataramanaiah  vs.
Subba Pujari, (2000) 10 SCC 412.
19.    Similar  view  has  been  reiterated  in  the  case  of   Ramavilasom
Grandhasala vs. N.S.S. Karayogam, (2000) 5 SCC 64, wherein it was held  that
the High Court without  formulating  any  substantial  question  of  law  as
required under sub-section (4) of Section  100  of  the  Code  cannot  allow
second appeal and set aside the judgment of the lower court.
20.   In the light of the provision contained in Section  100  CPC  and  the
ratio decided by this Court, we come to the following conclusion:-
      (i)   On the day when the second  appeal  is  listed  for  hearing  on
admission if the High Court is satisfied that  no  substantial  question  of
law  is  involved,  it  shall  dismiss  the  second  appeal   without   even
formulating the substantial question of law;
      (ii)  In cases where the High Court after  hearing  the  appellate  is
satisfied that the  substantial  question  of  law  is  involved,  it  shall
formulate that question  and  then  the  appeal  shall  be  heard  on  those
substantial question of law, after giving notice and opportunity of  hearing
to the respondent;

      (iii) In no circumstances the High Court can reverse the  judgment  of
the trial court and  the  first  appellate  court  without  formulating  the
substantial question of law and complying with  the  mandatory  requirements
of Section 100 CPC.

21.   Admittedly, the High  Court  by  the  impugned  judgment  allowed  the
appeal and reversed the judgment passed by the trial  court  and  the  first
appellate court.  We have,  therefore,  no  option  but  to  set  aside  the
impugned judgment passed by the High Court and remit the matter back to  the
High Court to first formulate the  substantial  question  of  law  and  then
decide all these appeals in accordance with law.
22.   Hence, we allow these appeals and remit  these  matters  back  to  the
High Court to first formulate substantial question of law  and  then  decide
all these appeals in accordance with law accordingly.
23.   Since the plaintiff-respondents are old  persons  aged  more  than  75
years and they have been fighting the litigation since 1992, we request  the
High Court to give preference of hearing to these  appeals  and  decide  the
same as expeditiously as possible preferably within a period of four  months
from today.
24.   However, interim order passed by this Court shall continue only for  a
period of four months from today.
25.   After hearing the respondents, who  appeared  in  person  before  this
Court today and informed  about  their  financial  status,  we  request  the
Maharashtra Legal Services Authority to  provide  all  legal  assistance  to
them and to meet all legal expenses in defending the second appeals  in  the
High Court.
26.   In the peculiar facts and circumstances of the  case  and  considering
the helplessness of the respondents who are old aged persons, we direct  the
appellant to pay a sum of Rs.25,000/- (Rupees  Twenty  Five  thousand  only)
towards the legal expenses incurred by them in pursuing  the  case  in  this
Court.
27.   Mr. Vigya, learned counsel for  the  appellant,  very  fairly  submits
that the appellant be allowed some time to pay the aforesaid amount  to  the
respondents.

28.   As prayed for, two weeks’ time is allowed to the appellant to pay  the
aforesaid amount to the respondents.
29.   The Registry is directed to communicate this Order to the Bombay  High
Court forthwith.


                                                                   …………………J.
                                                                (M.Y. EQBAL)


                                                                  ………………….J.
                                                               (C. NAGAPPAN)

NEW DELHI,
OCTOBER 27, 2015

Arbitral Tribunal was not competent to determine the price ?.=The submission that the Arbitral Tribunal was not competent to determine the price is also not well founded. It is a finding of fact by the learned Arbitral Tribunal that the price quoted was more than the price at which the same products/tools were supplied by the same supplier in Andhra Pradesh and therefore, after considering the relevant evidence, the Arbitral Tribunal determined a particular price i.e. Rs. 115 per kg. It cannot be said that determination of said price by the Tribunal in the aforestated circumstances was improper. The suppliers were bound as per the undertakings executed by them and as they had not acted as per their undertaking, it was open to the learned Tribunal to find out the correct lower price at which the tools of the same specifications, which were manufactured by the suppliers were available in the State of Andhra Pradesh and if in the aforestated circumstances, the Arbitral Tribunal determines the price, in our opinion, it cannot be said that the Arbitral Tribunal had exceeded its jurisdiction. - no fraud had been committed as alleged. If higher price had been charged by the suppliers in the contract than the price at which their products were sold in the State of Andhra Pradesh, it cannot be said that the suppliers had committed any fraud while entering into the contract. The parties may determine the price in the manner agreed upon by them. In the instant case, there was an undertaking in the nature of a proviso that if the price fixed in the contract is more than the price at which tools of same specifications manufactured by the same supplier were available in the State, the supplier would be entitled to the lesser rate. In our opinion, the manner of price determination by the Arbitral Tribunal, in the light of the undertakings executed by the suppliers, cannot be said to be irrelevant, incorrect or beyond jurisdiction.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.8918 OF 2015
             (@ Special Leave Petition (Civil) No.15187 of 2010)



M/s. Chebrolu Enterprises

Rep. by its Proprietor Smt. Ch. Lakshmi Sesha Kumari

                                                   ….Appellant

                                VERSUS

Andhra Pradesh Backward Class Cooperative
Finance Corporation Ltd.                                …..Respondent



                                    WITH
                    C.A.No.8919/2015 @ SLP© No.15408/2010
                    C.A.No.8920/2015 @ SLP© No.15719/2010
                    C.A.No.8921/2015 @ SLP© No.15734/2010
                                     AND
                    C.A.No.8922/2015 @ SLP© No.18290/2010




                               J U D G M E N T

ANIL R. DAVE, J.



1.    Leave granted.
2.    In all these appeals validity of a common judgment delivered in  Civil
Misc. Appeal Nos. 973-995 of 2005 and 539, 674 and 675 of  2006  dated  14th
December, 2009 has been challenged.

3.    The aforestated Civil Miscellaneous Appeals  had  been  filed  in  the
High Court of Judicature, Andhra Pradesh at Hyderabad under  Section  37  of
the Arbitration and Conciliation Act, 1996 (hereinafter referred to as  ‘the
Act’) against a common order dated 14.03.2005 passed in  different  original
petitions, by the XIV  Additional  Chief  Judge,  City  Civil  Court  (FTC),
Hyderabad, dismissing the  original  petitions.  The  High  Court  vide  its
common judgment dated 14.12.2009 dismissed the aforestated appeals.

4.    Being aggrieved by the  said  common  judgment,  the  appellants  have
approached this Court by way of these appeals.

5.    The circumstances which gave rise to the present litigation in a  nut-
shell are as under:-

       The  Government  of  Andhra  Pradesh  had  launched  a  scheme  named
‘ADARANA’ under which certain tools  of  trade  necessary  for  Blacksmiths,
Carpenters, Dhobis etc. were to be  supplied  to  the  rural  artisans.  The
Government  was  to  purchase  the  tools  through  A.P.  Backward   Classes
Cooperative Financial Corporation Limited, a corporation set up for  welfare
of  the  persons  belonging  to  downtrodden  classes,  controlled  by   the
Government and  the  ‘State’  within  the  meaning  of  Article  12  of  the
Constitution of India. The  Respondent-Corporation  had  invited  quotations
for supplying iron boxes, iron  ring  used  for  placing  the  iron;  boxes,
buckets and bannas required in the  process  of  washing  clothes  etc.  The
present appellants had agreed to supply the “Razaka tools” at  a  particular
rate.  We do not go into the details as to  how  the  rates  were  finalized
after several meetings held  among  the  suppliers  of  the  tools  and  the
officers of the Respondent-Corporation. Suffice is to state  at  this  stage
that the suppliers, after several meetings and bargaining on both the  sides
had agreed to supply the tools at the rate of Rs.165 per kg in  six  coastal
districts   of   Andhra   Pradesh    namely,    Srikakulam,    Vizianagaram,
Visakhapatnam, East Godavari, West Godavari and  Krishna,  whereas  for  the
other remaining districts, the rate had been fixed at Rs.189.75 per  kg  and
the above rates were exclusive of sales tax.

6.    It is pertinent to note that when the agreement had been entered  into
with regard to supply of the tools by  the  appellants  to  the  Respondent-
Corporation, it was also agreed among the parties that  the  rate  at  which
the tools were offered was the lowest  rate  at  which  the  suppliers  were
selling the tools of the same specification in the State of Andhra Pradesh.

7.     Each  appellant  (who  has  been  referred  to  hereinafter  as  ‘the
supplier’) had also filed an undertaking stating that the prices quoted  for
supply of the tools were the lowest possible  prices  and  that  nowhere  in
Andhra Pradesh, the supplier was selling  those  products  at  prices  lower
than the price quoted. They had also undertaken to refund the difference  of
amount arising on account of any price difference in  the  price  quoted  by
them and lower price offered by them in the open market  in  Andhra  Pradesh
in respect of the tools.  One such undertaking  dated  22.04.1999  given  by
one of the suppliers is reproduced herein below:

                             “UNDERTAKING

“…..I, Smt. CHEBROLU  LAKSHMI  SESHA  KUMARI  Proprietor  of  M/s.  CHEBROLU
ENTERPRISES, hereby declare that the prices quoted for  the  supply  of  our
Products under ADARANA Project being implemented by Andhra Pradesh  Backward
Classes Cooperative Finance Corporation are the lowest possible  prices  and
nowhere in Andhra Pradesh,  we  are  selling  our  products  with  the  same
specifications at prices lower than the prices  we  have  quoted  under  the
said project.

I also  undertake  to  refund/authorizes  Andhra  Pradesh  Backward  Classes
Cooperative Finance Corporation to  deduct  excess  amount  paid  to  us  on
account of any price differential between higher prices quoted by  us  under
ADARANA  Project  and  lower  prices  offered  in  open  markets  in  Andhra
Pradesh……”



8.    Ultimately, the tools had  been  supplied  by  the  suppliers  to  the
respondent-Corporation but it was  found  that  the  rates  which  had  been
charged by the suppliers were neither reasonable  nor  were  the  lowest  at
which the suppliers had sold their products similar to the  one  which  they
had supplied to the Respondent-Corporation  and  therefore,  a  dispute  had
arisen among the parties and the dispute had been referred  to  an  Arbitral
Tribunal, as agreed upon by the parties in the agreement  dated  22.04.1999.
The aforestated facts are not in dispute.

9.    The learned Arbitral Tribunal ultimately came to the  conclusion  that
the amount charged by the suppliers was excessive  and  therefore,  made  an
Award dated 11.03.2002  in  favour  of  the  Respondent-Corporation  to  the
effect that the suppliers were entitled to only Rs.115 per kg towards  price
of the tools supplied by them and the claim exceeding the  said  amount  had
been rejected.  It was also provided in the Award that the  amount  be  paid
with interest @ 6% per annum with effect from the  date  of  claim  petition
i.e. 26th April, 2001 till the date of the payment.

10.   The suppliers, being aggrieved by the Award, challenged  the  validity
of  the  Award  by  filing  original  petitions  before  the  Court  of  XIV
Additional Chief Judge, City  Civil  Court  (Fast  Track  Court),  Hyderabad
under the provisions of Section 34 of the Act. After hearing  the  concerned
parties, the said original  petitions  were  dismissed  and  therefore,  the
suppliers  approached  the  High  Court  with  the  above   referred   Civil
Miscellaneous Appeals.  The  said  appeals  have  also  been  dismissed  and
therefore, the present appeals have been filed by the suppliers before  this
Court.

11.   The issues that fall for determination in these  appeals  are  whether
the suppliers had committed any fraud or fraudulent  misrepresentation  upon
the Respondent-Corporation and whether  any  breach  of  contract  had  been
committed either by the  suppliers  or  by  the  respondent-Corporation  and
further, whether the price fixed by the Arbitral Tribunal was reasonable  or
whether it was open to the Arbitral Tribunal to determine the price  of  the
tools  which  had  been  supplied  by  the  suppliers  to  the   respondent-
Corporation.

12.   We have heard  the  learned  counsel  appearing  for  the  parties  at
length.  Upon hearing the learned counsel, looking at the facts of the  case
and upon perusal of the relevant documents, including the agreement  entered
into  between  the  suppliers  and  the   respondent-Corporation   and   the
undertakings given by the suppliers in relation to supply of  tools  at  the
lowest price in the State, we are of the view  that  the  impugned  judgment
delivered by the High Court is just and proper.

13.   The price at which the tools had to be supplied had been  fixed  after
negotiations and efforts were made to bargain on the  subject  of  price  by
both the sides. Ultimately, a particular price  had  been  determined  as  a
result of the negotiations and the agreements  with  different  parties  had
been entered into by the respondent-Corporation for purchase of the tools.

14.   The  most  important  factor  to  be  considered  is  the  undertaking
executed by each supplier to the  effect  that  the  tools  which  the  said
supplier had agreed to  supply  to  the  respondent-Corporation  was  to  be
charged at the lowest rate at which the said supplier had sold his tools  in
the State of Andhra Pradesh.  In other words,  the  supplier  had  not  sold
tools to anybody at a price lower than the price offered by the supplier  to
the respondent-Corporation.

15.   A  copy  of  the  undertaking  executed  by  each  supplier  has  been
reproduced hereinabove. By virtue of the  said  undertaking,  the  suppliers
had assured the respondent-Corporation that the prices quoted for supply  of
the tools under ADARANA project were the lowest prices and that  nowhere  in
Andhra Pradesh, they had sold their tools with the  same  specifications  at
prices lower than the prices which had been quoted by  them  for  supply  of
the tools to the respondent-Corporation for ADARANA project.

16.   The effect of the undertaking was that if  the  rate  which  had  been
quoted by the suppliers in their agreement was more than the rate  at  which
the said tools were sold by  them  in  the  State  of  Andhra  Pradesh,  the
suppliers  would  refund  the  excess  of  price  charged  by  them  to  the
respondent-Corporation.

17.   The contract entered into  by  the  suppliers  on  one  hand  and  the
respondent-Corporation  on  the  other  was  subject  to   the   aforestated
undertaking given by  the  suppliers.   So,  if  the  price  quoted  in  the
agreement is ‘X’ per kg. for the tools supplied by the suppliers but if  the
tools of the same specifications were being sold by  the  suppliers  in  the
State of Andhra Pradesh for a price lower than ‘X’, say at  price  ‘Y’,  the
respondent-Corporation was supposed to pay rate ‘Y’ and not ‘X’,  which  had
been agreed upon in the contract.

18.   As there was a dispute with regard to the price and as the respondent-
Corporation had found out that rate quoted in the contract was  higher  than
the rate at which the tools of the same specifications had been supplied  by
the suppliers in the State of  Andhra  Pradesh,  the  respondent-Corporation
had withheld the payment and in  the  circumstances  the  dispute  had  been
raised and the suppliers had made their claim before the  Arbitral  Tribunal
for payment of the remaining amount of price.

19.   The learned Arbitral Tribunal considered all factors and the  evidence
which was adduced before it and came to the conclusion that the price  which
had been quoted by the suppliers and which  had  been  agreed  upon  in  the
contract  was  higher  than  the  price  at  which   tools   of   the   same
specifications were sold by the suppliers in the State  of  Andhra  Pradesh.
In the circumstances, the learned Arbitral Tribunal came to  the  conclusion
that the suppliers were entitled to the price of tools lesser than  the  one
which had been agreed upon in the  contract  because  the  same  quality  of
tools, which had been manufactured by the suppliers, were sold  by  them  in
the State of Andhra Pradesh at a lower price.

20.   Determination of price in the aforestated  manner  is  a  question  of
fact.  This Court or even the  Appellate  Court  would  not  look  into  the
finding of facts unless they are perverse. In the instant case, neither  the
City Civil Court in the proceedings filed before it under Section 34 of  the
Act nor the High Court in the proceedings under Section 37 of the Act  could
find anything wrong with the finding of facts arrived  at  by  the  Arbitral
Tribunal. This Court under Article 136 of the Constitution  of  India  would
not like to  interfere  with  the  concurrent  finding  of  facts,  save  in
exceptional circumstances or unless the finding is perverse.

21.   For the aforestated reasons, in  our  opinion,  the  determination  of
price by the Arbitral Tribunal cannot be faulted with.

22.   The submission  that  the  Arbitral  Tribunal  was  not  competent  to
determine the price is also not well founded.  It is a finding  of  fact  by
the learned Arbitral Tribunal that the price quoted was more than the  price
at which the same products/tools were  supplied  by  the  same  supplier  in
Andhra Pradesh and therefore, after considering the relevant  evidence,  the
Arbitral Tribunal determined a particular price i.e. Rs.  115  per  kg.   It
cannot be said that determination of said  price  by  the  Tribunal  in  the
aforestated circumstances was improper.  The suppliers  were  bound  as  per
the undertakings executed by them and as they had not  acted  as  per  their
undertaking, it was open to the learned Tribunal to  find  out  the  correct
lower price at which the  tools  of  the  same  specifications,  which  were
manufactured by the suppliers were available in the State of Andhra  Pradesh
and if in the aforestated circumstances, the  Arbitral  Tribunal  determines
the price, in our opinion, it cannot be said that the Arbitral Tribunal  had
exceeded its jurisdiction.

23.   In our considered opinion, no fraud had been committed as alleged.  If
higher price had been charged by the suppliers  in  the  contract  than  the
price at which their products were sold in the State of Andhra  Pradesh,  it
cannot be said that the suppliers had committed  any  fraud  while  entering
into the contract.  The parties  may  determine  the  price  in  the  manner
agreed upon by them.  In the instant case, there was an undertaking  in  the
nature of a proviso that if the price fixed in the  contract  is  more  than
the price at which tools of same specifications  manufactured  by  the  same
supplier were available in the State, the supplier would be entitled to  the
lesser rate.

24.   In our opinion, the manner of  price  determination  by  the  Arbitral
Tribunal, in the light  of  the  undertakings  executed  by  the  suppliers,
cannot be said to be irrelevant, incorrect or beyond jurisdiction.

25.   For the aforestated reasons, we do not find  any  substance  in  these
appeals and the same are dismissed with no order as to costs.



                                                              ……..……………………J.
                                          (ANIL R. DAVE)


                                                             ……..…………………….J.
                                            (VIKRAMAJIT SEN)

NEW DELHI;
OCTOBER  28, 2015.

competent to discharge = made an effort to submit that the Lt. General and the Director General of Supplies and Transport was the only officer who was competent to discharge Respondent no.1. We are not in agreement with the said submissions in view of the fact that Table IV of Rule 13(3) clearly prescribes that the Commanding Officer, under whom the non attested person is working, can discharge him from service. It is an admitted fact that the impugned order of discharge had been passed by the Commanding Officer concerned, under whom Respondent no.1 was working and the said Commanding Officer had satisfied himself about the fact that Respondent no.1 was not likely to become an efficient soldier. Respondent no.1 had also been declared deserter. In the circumstances, we are of the view that the order passed by the Commanding Officer dated 27th August, 2005 is just, legal and proper. The judgments cited by the learned counsel for Respondent no.1 do not appear to be relevant and applicable to the facts of the case on hand and therefore, we do not think it necessary to discuss the same. In view of the aforestated facts, the High Court should not have quashed and set aside the said order of discharge which had been passed in accordance with law and therefore, we set aside the impugned judgment delivered by the High Court. The appeal stands disposed of as allowed with no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5015 OF 2008





Union of India & Ors.                        .....Appellants



                                VERSUS

Manoj Deswal & Ors.                        …..Respondents


                               J U D G M E N T



ANIL R. DAVE, J.



1.    Being aggrieved by the Judgment dated 17th August, 2007  delivered  by
the High Court of Delhi in Writ Petition © No. 8004  of  2006,  this  appeal
has been filed by the Union of India and others.

2.    The facts giving rise to the present litigation in a nut-shell are  as
under:

      Respondent no.1 was recruited and was undergoing  training  for  being
appointed to the post of Store Hand  Technical  (SHT)  in  the  Army  Supply
Corps and he had joined his Basic Military training  at  Bangalore  on  14th
August, 2004.   Upon completion of the training but before  being  confirmed
in service or being appointed as a soldier,  he  was  granted  annual  basic
leave  for  28  days  from  5th  January,  2005  to  1st   February,   2005.
Thereafter, he became  sick  and  hospitalized  from  4th  February  to  8th
February, 2005.  Thereafter, he  proceeded  on  casual  leave  for  15  days
commencing from 24th February to 10th March, 2005 and  resumed  his  service
on 11th March, 2005 and on 12th  March,  2005  he  requested  for  voluntary
discharge  possibly  because  his  mother  was  not  keeping  good   health.
Subsequently, on 14th March, 2005, he withdrew  his  request  for  voluntary
discharge and thereafter  he  remained  absent  from  the  training  without
sanctioned leave from 2nd April, 2005 till 20th July, 2005 and  resumed  his
duty on 21st July, 2005.

3.    On 27th August, 2005 he had been discharged from service  as  in  view
of the Commanding Officer under whom he was working,  he  was  ‘unlikely  to
become an efficient soldier’.  He had been discharged under  the  provisions
of Army Rules, 1954 (hereinafter referred to as ‘the  Rules’).   Before  his
discharge, a summary enquiry  had  been  made  as  he  had  remained  absent
unauthorisedly and in the said enquiry it was found  that  his  absence  was
unauthorized.  Looking at the fact that Respondent no.1 had remained  absent
and had not resumed his duty, he was declared as deserter by an order  dated
30th  July, 2005.

4.    In the aforestated circumstances, Respondent no.1 had  challenged  the
validity of his order of discharge by filing the aforestated  writ  petition
before the High Court and after hearing  the  concerned  counsel,  the  High
Court had allowed the writ petition by setting aside the order of  discharge
dated 27th August, 2005, but with liberty to the present appellants to  hold
a fresh enquiry against  Respondent  no.1.  It  was  also  provided  in  the
judgment that payment of back wages would depend upon the final  outcome  of
the fresh enquiry, which might be initiated against Respondent no.1.

5.    Being aggrieved by the aforestated judgment, the Union  of  India  and
others have filed this appeal.

6.    The learned counsel appearing for the Union of India mainly  submitted
that the High Court committed a serious error by setting aside the order  of
discharge only on the ground that Respondent no.1 had not been  afforded  an
opportunity to defend his case before the order  of  discharge  was  passed.
He further submitted that without issuance of show cause  notice  Respondent
no.1 could have been discharged from service.

7.    The learned counsel appearing for the appellants  drew  our  attention
to the fact that the order of discharge was just, legal and proper  for  the
reason that Respondent no.1 was not likely to become a good soldier in  view
of his indisciplined behaviour.  He further submitted that  with  regard  to
his absence, a  summary  enquiry  had  been  held  on  29th  July,  2005  in
pursuance of an order of the Commanding Officer dated 26th July,  2005.   In
the said inquiry, it was found that in fact  Respondent  no.1  had  remained
absent without sanctioned leave or in an unauthorized manner  for  108  days
and for that reason he had been declared deserter by  an  order  dated  30th
July, 2005.

8.    The learned counsel also drew our attention to  Rule  13  (3)  of  The
Army Rules, 1954 (hereinafter referred to  as  ‘the  Rules’)  and  submitted
that as per the provisions of the said rule, it was open to  the  Commanding
Officer to discharge Respondent no.1, who had not been attested as  per  the
provisions of Sections 16 & 17 of the Army Act, 1950  (hereinafter  referred
to as ‘the Act’).

9.    He further submitted that being not an  attested  trainee,  status  of
Respondent no.1 was that of a probationer and the  order  of  discharge  did
not contain any stigmatic remark.  The order of discharge  is  an  order  of
discharge simplicitor.  In  the  interest  of  administration,  it  was  not
thought proper to continue Respondent no.1 as a trainee and  therefore,  the
order of discharge  had  been  passed,  whereby  Respondent  no.1  had  been
discharged from service.

10.   The learned counsel relied upon the judgments delivered by this  Court
in Ram Sunder Ram v. Union of India (2007 (13) SCC 255) and Union  of  India
v. Dipak Kumar Santra (2009 (7) SCC 370) so as  to  substantiate  his  case,
that if an enquiry is  made  and  thereafter,  a  non  attested  trainee  is
discharged, it is not necessary to issue a notice calling upon him  to  show
cause as to why his services should not be terminated.   According  to  him,
Respondent no.1 had remained unauthorisedly absent,  which  was  an  act  of
indiscipline and the said fact had been established in the court of  enquiry
held on 29th July, 2005.  He had also been declared deserter.  Moreover,  as
he had not been given  regular  appointment  as  a  solider,  being  like  a
probationer, it was open to the Commanding Officer  of  Respondent  no.1  to
discharge him from service as per  the  provisions  of  Rule  13(3)  of  the
Rules.

11.   He, therefore, submitted that the impugned judgment delivered  by  the
High Court is improper and unjust and  therefore,  it  deserved  to  be  set
aside.

12.   On the other hand, the learned counsel appearing for  Respondent  no.1
forcefully submitted that there was not only violation of the  principle  of
natural justice but certain provisions of the Rules had also  been  violated
by the appellants while passing the order of discharge  and  therefore,  the
High Court was absolutely right when it quashed and set aside the  order  of
discharge.

13.   The learned counsel for Respondent no.1 submitted that by not  issuing
show cause notice there was fragrant violation of the principles of  natural
justice.   Moreover,  the  officer  who  could  have  passed  the  order  of
discharge  was  the  Lt.  General  and  Director  General  of  Supplies  and
Transport and not the Commanding Officer.  He further submitted  that  there
is virtually no difference between attested and non-attested solider and  he
also submitted that Respondent no.1 had, in fact, not  remained  absent  for
108 days.  The  said  finding  arrived  at  by  the  court  of  enquiry  was
incorrect and therefore, also the resultant order of discharge  was  bad  in
law.  He, therefore, submitted that the impugned  judgment  is  just,  legal
and proper and therefore, the appeal deserved dismissal.

14.   Upon hearing the leaned counsel, we are of  the  view  that  the  High
Court committed an error  by  setting  aside  the  order  of  discharge  and
therefore, the appeal deserves to be allowed.

15.   It is an admitted fact that Respondent no.1  had  not  been  attested.
Certain formalities are required to be done for being attested  as  per  the
provisions of Section 17 of the Act and admittedly the said formalities  had
not been done.   The status of Respondent no.1 was just like a  probationer,
whose service could be terminated without holding any enquiry.  In spite  of
the fact that service of Respondent no.1 could have been terminated  without
holding any enquiry, an enquiry had been held on 29th July, 2005 and it  was
found that Respondent no.1 had remained absent  for  108  days  without  any
sanctioned leave.  The said act is an act of  gross  indiscipline.   Absence
of Respondent no.1, being a finding of fact, we would not like to  interfere
with the same especially when after  holding  the  said  enquiry  Respondent
no.1 had also been declared deserter.

16.   A person who remained  absent  unauthorisedly  and  who  was  declared
deserter can never turn out to be a good soldier and as per  the  provisions
of Rule 13(3) of the Rules, it is very clear  that  the  Commanding  Officer
can discharge non attested person enrolled under the  Act.   The  Commanding
Officer, as per the provisions of Rule 13(3) of  the  Rules,  had  satisfied
himself about the fact that Respondent  no.1  had  remained  absent  without
sanctioned leave and had  been  declared  deserter  and  therefore,  he  was
unlikely to become an efficient solider.  In the circumstances,  we  do  not
find any fault with his decision  about  discharging  Respondent  no.1  from
service.

17.   We have perused the judgments referred to by the learned  counsel  for
the appellants and we are in respectful agreement with  the  view  expressed
by this Court to the effect that no special notice is required to  be  given
before discharge of a person who is not attested,   especially  in  view  of
the fact that a court of enquiry had already been held on  29th  July,  2005
and Respondent no.1 had been declared deserter by an order dated 30th  July,
2005.

18.   The learned counsel appearing for Respondent no.1 relied upon  certain
judgments and made an  effort  to  submit  that  the  Lt.  General  and  the
Director General of Supplies and Transport was  the  only  officer  who  was
competent to discharge Respondent no.1.  We are not in  agreement  with  the
said submissions in view of the fact that Table IV  of  Rule  13(3)  clearly
prescribes that the Commanding Officer, under whom the non  attested  person
is working, can discharge him from service.  It is  an  admitted  fact  that
the impugned order of discharge had been passed by  the  Commanding  Officer
concerned, under whom Respondent no.1 was working and  the  said  Commanding
Officer had satisfied himself about the fact that Respondent  no.1  was  not
likely to become an efficient soldier.

19.   So as to satisfy ourselves, we had called for the original record  and
on perusal of the original record, we have found that the court  of  enquiry
had been held and Respondent no.1 had also been declared deserter.   In  the
circumstances, we are of the view that the order passed  by  the  Commanding
Officer dated 27th August, 2005 is just, legal and  proper.   The  judgments
cited by the learned counsel  for  Respondent  no.1  do  not  appear  to  be
relevant and applicable to the facts of the case on hand and  therefore,  we
do not think it necessary to discuss the same.

20.   In view of the aforestated facts,  the  High  Court  should  not  have
quashed and set aside the said order of discharge which had been  passed  in
accordance with law and  therefore,  we  set  aside  the  impugned  judgment
delivered by the High Court.  The appeal stands disposed of as allowed  with
no order as to costs.

                                                            .………..……………………J.
                                           (ANIL R. DAVE)


                                                            ………..…………………….J.
                                         (ADARSH KUMAR GOEL)
NEW DELHI;
OCTOBER 28, 2015

Bail=firstly, the investigation in the case is complete; secondly, the charge sheet is filed; thirdly, the appellant is in custody for the last six months and lastly, looking to the old age of the appellant who is also ailing, we are inclined to set aside the impugned order and grant bail to the appellant. 12. The appeal is accordingly allowed. Impugned order is set aside. The appellant is directed to be released on bail during trial to the satisfaction of the trial Judge.

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL No. 1416 OF 2015
                (Arising out of S.L.P.(Crl.)No.8036 of 2015)

Rajendra Prakash Agrawal                Appellant(s)

                             VERSUS

Union of India & Anr.                   Respondent(s)
                                  O R D E R
Abhay Manohar Sapre, J.
Leave granted.
This appeal is directed against the final order dated 19.08.2015  passed  by
the  High  Court  of  Judicature  at  Allahabad  in  Criminal   Misc.   Bail
Application No. 19406 of 2015 filed by  the  appellant  herein  whereby  the
High Court rejected the bail application filed by the appellant herein.
3.    In order to appreciate the  issue  involved  in  this  appeal,  it  is
necessary to state the few relevant facts in brief.
4.    The appellant and others are facing trial for commission  of  offences
punishable under Sections 120-B, 420, 467,  468  and  471  of  Indian  Penal
Code, 1860 read with Section 13 (2) and Section 13 (1)(d) of the  Prevention
of Corruption  Act,  1988  pursuant  to  FIR  bearing  Case  Crime  No.  RC-
1202013A0003 of 2013 lodged at Police Station -CBI, ACB, Ghaziabad.
5.    The appellant-an architect by profession was apprehended in  May  2015
in connection with the aforesaid crime case and since then he is in jail.
6.    The appellant filed bail application  No.  2766  of  2015  before  the
Special Judge, Prevention of Corruption, CBI,  Court  No.1,  Ghaziabad.   By
order dated 08.05.2015, the said application was rejected.
7.  Thereafter, the appellant applied for grant  of  bail  before  the  High
Court at Allahabad.  By impugned order, the High  Court  rejected  the  said
bail application.
8.    Heard learned counsel for the parties.
9.    Learned Counsel for the appellant urged four  submissions  in  support
of this appeal. In the first place, he contended that the appellant was  not
named in the FIR and hence this fact should have been taken  note  of  while
considering his bail application. His second submission was that the  entire
investigation is now complete and charge sheet has been  filed  against  all
the accused persons including the appellant in competent  court.  His  third
submission was that appellant is quite an old man aged around 71  years  and
is also ailing. His fourth submission was that appellant is in  custody  for
the last six months and there is no one in appellant's family to look  after
his dependents and lastly, since the issues involved  in  the  trial  mostly
relate to documents and  the  appellant  having  co-operated  throughout  in
investigation which resulted in filing of  charge  sheet  and  has  no  past
criminal record of any kind against the appellant, he be  released  on  bail
on terms.
10.   Learned counsel for the respondents opposed the application for  grant
of bail  contending  that  the  charges  against  the  appellant  are  quite
serious.
11.   Having heard learned counsel for the parties and taking  note  of  the
fact that firstly, the investigation in the case is complete; secondly,  the
charge sheet is filed; thirdly, the appellant is in  custody  for  the  last
six months and lastly, looking to the old age of the appellant who  is  also
ailing, we are inclined to set aside the impugned order and  grant  bail  to
the appellant.
12.   The appeal is accordingly allowed. Impugned order is  set  aside.  The
appellant  is  directed  to  be  released  on  bail  during  trial  to   the
satisfaction of the trial Judge.
                     ………...................................J.
                                [J. CHELAMESWAR]


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]
      New Delhi;
October 26, 2015.




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