According to Modi’s Medical Jurisprudence and Toxicology (23rd Edition), “ligature mark depends on the nature and position of ligature used, and the time of suspension of the body after death. If the ligature is soft, and the body is cut down from the ligature immediately after the death, there may be no mark…….” ‘Strangulation’ is defined by Modi as “the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation. Ligature strangulation is a violent form of death which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold).” (emphasis supplied) As to appearances due to asphyxia, Modi says: - “The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.” In ‘asphyxia’, according to Modi, “ligature is usually situated above the thyroid cartilage, and the effect of its pressing the neck in that situation is to force up the epiglottis and the root of the tongue against the posterior wall of the pharynx. Hence, the floor of the mouth is jammed against its roof, and occludes the air passages,………..” = After carefully going through the medico legal evidence on record, we are of the opinion that it was not a case where a view could have been taken that the deceased died of hanging. There was no reason to disagree with the opinion given by PW-8 Dr. Viveka Nand (Ex. P-13) that the deceased had died of asphyxia as a result of pressure over the neck=After carefully scrutinizing the evidence on record, as above, we are convinced that it is proved beyond reasonable doubt on the record that when accused Ramesh saw his daughter talking to PW-9 Bablu, he got suddenly provoked and lost his power of self-control, slapped her, took her inside the house, and caused death of his daughter by strangulation and throttling. The medical evidence clearly shows four ante mortem injuries on the neck region and three around mouth of the deceased as mentioned in the autopsy report (Ex. P-12). On going through the reports Ex. P-12 and P.13 read with oral testimony of witnesses, discussed above, we have no hesitation in holding that prosecution has successfully proved the charge of culpable homicide not amounting to murder punishable under Section 304 Part I against the accused/respondent Ramesh. For the reasons, as discussed above, we are of the view that the High Court has erred in law in holding that the deceased could have hanged herself, and that the chain of circumstances was not complete against the accused. Therefore, this appeal deserves to be allowed.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1526 OF 2008


State of Rajasthan                                … Appellant

                                   Versus

Ramesh                                            …Respondent




                               J U D G M E N T



Prafulla C. Pant,J.


      This appeal is directed against judgment and order  dated  04.01.2006,
passed by the High Court of Judicature at Rajasthan, Jaipur  Bench,  whereby
said Court has allowed D.B. Criminal Jail Appeal No. 397 of  2000,  and  set
aside the conviction and sentence  recorded  against  respondent  Ramesh  by
Sessions Judge, Jaipur, under Sections 302 and  201  of  Indian  Penal  Code
(IPC), and acquitted him of the charge.



2.    Prosecution story in brief  is  that  PW-1  Prithviraj  Singh  gave  a
telephonic information on 28.04.1999 at about 10.55  p.m.  to  PW-7  Bhagwan
Singh, Station House Officer of Police Station Kalwad  that  Sheela,  eldest
daughter of  his  servant  Ramesh  (respondent)  has  committed  suicide  by
hanging.  The Station House Officer rushed to the spot.  He  made  enquiries
from Ramesh in the farm house where he used to  work,  and  lived  with  his
three daughters.  He (Ramesh)  told  the  Station  House  Officer  that  his
daughter went out of the farm house at about 8.30 p.m. and came  back  after
some time.  Ramesh further told that he objected to his  daughter’s  conduct
of meeting PW-9 Bablu, and scolded her.   Thereafter  power  went  off.   He
further told the Station House Officer that after some time  when  generator
was started, he saw that Sheela has hanged herself.   The  knot  was  opened
and the body was brought down.  The Station House  Officer  mentioned  these
facts in the report/marg No. 7/99 prepared under Section 174 of the Code  of
Criminal Procedure (CrPC).  He prepared site plan, took  dead  body  in  his
possession, and got prepared inquest report (Ex. P-1) in the early hours  of
29.04.1999.  He directed PW-11  Assistant  Sub  Inspector  Maliram  to  make
further inquiries under Section 174  CrPC.   The  Assistant  Sub  Inspector,
after recording the statements of Ramesh and other witnesses present  there,
gave report on 30.04.1999, on the basis of which  First  Information  Report
(Ex.  P-11)  was  registered  as  Crime  No.  63/99  relating  to   offences
punishable under Sections 302  and  201  IPC.   The  Station  House  Officer
himself took up the investigation.   Meanwhile,  autopsy  was  conducted  on
29.04.1999 on the dead body of Sheela by PW-8  Dr.  Viveka  Nand  of  S.M.S.
Hospital, Jaipur, at the request of the police,  who  found  following  ante
mortem injuries: -

“External injuries seen at the time of P.M. Examination

(i)   Abrasion 1.5 cm x ½ cm  on  area  2  cm  below  middle  of  the  right
mandibular rim on right side upper neck.



(ii)  Abrasion ½ cm x ¼ cm on right side neck in middle/3



(iii) Abrasion 1 cm x ¼ cm on lateral half of right clavicle.



(iv)  Abrasion 1.25 cm x ¼ cm on suprasternal notch.



(v)   Abrasion 1/6 cm on area just below right side lower lip.



(vi)  Abrasion ½ cm x ¼ cm on area just above right angel of mouth.



(vii) Three linear abrasions each of size 1 cm  x  ¼  cm  parallel  to  each
other on area just above right angle of mouth on right side face.



(viii)      Abrasion 2 cm x ¼  cm  just  above  right  elbow  on  right  arm
dorsally.



(ix)  Abrasion 2 cm in length linear x skin  deep  vertical  on  right  palm
below bone of right middle finger.



(x)   Abrasion ¼ x 1/6 cm on left medial melleolus.



(xi)  Abrasion ¼ cm x 1/6 cm on area below left  medial  melleolus  on  left
foot.



(xii) Abrasion 1 cm x ½ cm on dorsing right forearm upper/3.



Neck dissection – on dissection of neck there is haematoma c  (with)  tissue
staining found at following places red in  colour  antemortem  in  nature  c
effusions extravessation of blood



Left lateral side of trachea upper/3 size ¼ x ¼ cm.

Left lateral side of trachea middle/3 size ¼ x ¼ cm.


Left lateral side of trachea middle/3 on area ¼ cm below above  injury  size
¼ x ¼ cm.


Right side front of neck underneath ext. injury No. 1 on antero  lateral  of
trachea upper 1/3 size 1 cm x ½ cm above the level of hyridbone.


Further examination shows (trachea) congested areas in trachea c fine  white
froath.  There is haematoma of soft tissues near upper part of  tachea  over
right side neck in middle/3.  Upper part – left side  neck  also  show  such
haemotoma in an area of 2 cm x ½ cm on left side neck.   There  was  froathy
blood which came out through upper respiratory  tract  c  fine  froath  when
trachea was removed.”


      The Medical Officer (PW-8) gave following opinion at the  end  of  the
post mortem report (Ex. P-12): -
“Opinion

      The cause of death is asphyxia as the result of injuries of  the  neck
region as mentioned.  All are ante mortem injuries. ………”





3.     During  investigation,   the   Investigating   Officer   interrogated
witnesses, arrested the accused (Ramesh), and on its  conclusion,  submitted
charge sheet against him for his trial in  respect  of  offences  punishable
under Sections 302 and 201 IPC.


4.    It appears that  after  giving  necessary  copies  as  required  under
Section 207 Cr.P.C., the case was committed by the Magistrate to  the  Court
of Sessions on 24.7.1999.  The learned Sessions  Judge  registered  Sessions
Case No. 76 of 1999, and after hearing the parties,  on  11.10.1999,  framed
charge of offences  punishable  under  Sections  302  and  201  IPC  against
accused/respondent Ramesh, to which he pleaded not guilty and claimed to  be
tried.


5.    On this, prosecution got examined PW-1 Prithviraj Singh,  (informant),
PW-2 Om Prakash, PW-3 Ram Singh (both witnesses  of  inquest  report),  PW-4
Raju (witness of the fact that Ramesh slapped  Sheela  about  half  an  hour
before the incident), PW-5  Amba  Lal  (witness  of  arresting  memo),  PW-6
Constable  Devinder  Singh  (formal  witness),  PW-7  S.I.   Bhagwan   Singh
(Investigating Officer), PW-8, Dr. Viveka Nand (who  conducted  post  mortem
examination), PW-9 Bablu (the boy with whom  the  deceased  said  to  had  a
friendship),  PW-10  Meela  (minor  daughter  of   accused/sister   of   the
deceased), and PW-11 A.S.I. Mali Ram.


6.    The oral and  documentary  evidence  was  put  to  the  accused  under
Section 313 CrPC, in reply to which he admitted  that  his  daughter  Sheela
died on 28.4.1999 at about 9.00 p.m.  He also told that the  inquest  report
and memorandum of recovery of  Chunni/Dupatta  of  the  deceased  etc.  were
prepared.  He further  admitted  that  he  did  scold  his  daughter  Sheela
(deceased) as stated by PW-3 Ram  Singh  about  twenty  minutes  before  her
death.  As to the rest of the evidence, he denied  the  same  as  incorrect.
At the end of his statement under Section 313 CrPC the accused  stated  that
after generator started, he saw his daughter (Sheela) hanging  from  a  hook
of wooden beam (Balli). He further stated that when knot was  loosened,  she
was alive. He stated that  the  deceased  was  given  some  water  and  when
attempt was made to take her to hospital, she died.  As  to  the  fact  that
the deceased was given water, as stated by the accused, or that she died  on
her way to the hospital, there is nothing  on  the  record  to  support  the
same.


7.    The trial court, after hearing the parties, found accused/  respondent
Ramesh guilty of the charge, and convicted and sentenced him  under  Section
302 IPC to imprisonment for life and directed to pay  fine  of  Rs.10,000/-,
in default  of  which  he  was  required  to  undergo  one  year’s  rigorous
imprisonment.  The respondent was  further  convicted  and  sentenced  under
Section 201 IPC to rigorous imprisonment for  a  period  of  two  years  and
directed to pay fine of Rs.1000/-, in default of payment  of  which  he  was
required to undergo further three months’ rigorous imprisonment.


8.    Against said  judgment  and  order  dated  17.6.2000,  passed  by  the
Sessions Judge, Jaipur, in Sessions  Case  No.  76  of  1999,  appeal  (D.B.
Criminal Jail Appeal No. 397 of 2000) was filed by the  convict  before  the
High Court.  The High Court, after hearing the parties, allowed  the  appeal
and set aside the conviction  and  sentence  recorded  by  the  trial  court
holding that the chain of circumstances  as  against  the  convict  was  not
complete to come to the irresistible conclusion that the  accused-respondent
committed murder  of  his  daughter.   Said  order  of  the  High  Court  is
challenged before us by the State.




9.    We have  heard  learned  counsel  for  the  parties  and  perused  the
original record of the case.



10.   It is an admitted fact on record that Sheela, daughter of the accused-
respondent, died on 28.4.1999, as is apparent from the statement of  accused
recorded  under  Section  313  CrPC  read  with  the  prosecution  evidence,
discussed above.  Death of Sheela was not natural  is  also  admitted  fact,
and established on record, for the reason that where  the  prosecution  case
is that she died due  to  asphyxia  by  strangulation  and  throttling,  the
version of the defence is that she died by hanging.  In  an  appeal  against
acquittal we have to examine the evidence on  record  to  find  out  whether
prosecution has successfully  proved  or  not  that  the  accused/respondent
caused homicidal death of Sheela,  as  suggested  by  it,  and  also  as  to
whether two views – one taken by the trial court and  another  by  the  High
Court – were possible in the present case or not as to the  cause  of  death
of the deceased.



11.   We have already quoted above the ante mortem injuries recorded in  the
autopsy report by PW-8  Dr.  Viveka  Nand.   We  have  also  reproduced  the
opinion given by him at the end of the autopsy report as  to  the  cause  of
death.  PW-8 has stated in his report (Ex.P-12)  dated  29.4.1999  that  the
deceased died of Asphyxia as a result of injuries on the  neck  region,  but
he did not mention as to whether it was asphyxia  due  to  strangulation  or
hanging.  But in his oral testimony he has  stated  that  the  deceased  had
died due to injuries around  her  neck  and  suffocation.   He  has  further
stated that on 19.5.1999 in response to letter No. 1490  dated  3.5.1999  of
Station House Officer, Kalwad, he gave following reply to him: -


      “After going through above mentioned post mortem report  it  is  clear
that there was no ligature mark around the neck.

      Hence it is clarified that the above  mentioned  person  did  not  die
because of hanging.  She died because of asphyxia as the result of  pressure
over neck.”


      This report is exhibited as P-13 on the record proved by  the  Medical
Officer (PW-8) during his examination.  There is no suggestion in the cross-
examination to PW-8 Dr. Viveka Nand that cause  of  death  could  have  been
asphyxia due to hanging.


12.   It is argued on behalf of  the  respondent  that  since  the  deceased
committed suicide by hanging herself with a  Chunni/Dupatta,  and  her  body
was brought down immediately after the incident, as such, no  ligature  mark
was found around the neck, and it is a case of suicide by hanging.



13.   Hanging is a form of death, produced by suspending  the  body  with  a
ligature round the neck, the constricting force  being  the  weight  of  the
body, or a part of the body weight.  In other  words,  the  hanging  is  the
ligature compression of the  neck  by  the  weight  of  one’s  body  due  to
suspension.



14.    According  to  Modi’s  Medical  Jurisprudence  and  Toxicology  (23rd
Edition), “ligature mark depends on the  nature  and  position  of  ligature
used, and the time of suspension of the body after death.  If  the  ligature
is soft, and the body is cut down from the ligature  immediately  after  the
death, there may be no mark…….”



15.   ‘Strangulation’ is defined by Modi as “the compression of the neck  by
a force other than hanging.  Weight of the  body  has  nothing  to  do  with
strangulation.  Ligature strangulation is a  violent  form  of  death  which
results from constricting the neck by means of a ligature or  by  any  other
means without suspending the body.  When constriction  is  produced  by  the
pressure of the  fingers  and  palms  upon  the  throat,  it  is  called  as
throttling.  When strangulation is brought about by compressing  the  throat
with a foot, knee, bend of elbow, or some  other  solid  substances,  it  is
known as mugging (strangle hold).” (emphasis supplied)



16.   As to appearances due to asphyxia, Modi says: -

“The face is puffy and cyanosed, and marked with petechiae.   The  eyes  are
prominent and open.  In some cases, they may be  closed.   The  conjunctivae
are congested and the  pupils  are  dilated.   Petechiae  are  seen  in  the
eyelids and the conjunctivae.  The lips are blue.  Bloody foam escapes  from
the mouth and nostrils, and sometimes, pure blood  issues  from  the  mouth,
nose and ears, especially if great violence has been used.   The  tongue  is
often swollen, bruised, protruding and dark in colour,  showing  patches  of
extravasation and occasionally bitten by the teeth.  There may  be  evidence
of bruising at the back of the neck.  The hands are usually  clenched.   The
genital organs may be congested and there may be discharge of urine,  faeces
and seminal fluid.”

                                                         (emphasis supplied)


17.   In ‘asphyxia’, according to Modi, “ligature is usually situated  above
the thyroid cartilage, and the effect of  its  pressing  the  neck  in  that
situation is to force up the epiglottis and the root of the  tongue  against
the posterior wall of the pharynx.  Hence, the floor of the mouth is  jammed
against its roof, and occludes the air passages,………..”

18.   In the light of above, we have examined the observations of  PW-8  Dr.
Viveka Nand in the autopsy report (Ex. P-12), prepared by him  at  the  time
of post mortem examination.  We have already quoted above  the  ante  mortem
injuries and findings on the neck dissection and also the opinion  given  by
the Medical Officer.  At this stage, we think it relevant  to  mention  here
the  observations  made  by  the  Medical  Officer  (PW-8)  as  to  external
appearances mentioned in page one of the post mortem report, which  disclose
–
“Both eyes were semi open and looked like protruded,  on  opening  eyes  are
reddish congested, mouth closed, lips and face along with nails show  bluish
discolouration, abdomen slightly  distended,  condition  of  pupils  –  both
dilated”.

                                                         (emphasis supplied)


19.   After carefully going through the medico legal evidence on record,  we
are of the opinion that it was not a case  where  a  view  could  have  been
taken that the deceased died of hanging.  There was no  reason  to  disagree
with the opinion given by PW-8 Dr. Viveka Nand (Ex. P-13) that the  deceased
had died of asphyxia as a result of pressure over the  neck.   Though  PW-10
Meela (minor daughter of the accused) has stated  that  her  elder  sister’s
body was found hanging, but this witness was got  declared  hostile  by  the
prosecution, and trial court rightly  disbelieved  her  statement,  for  the
reason that after losing her elder sister, she was  not  in  a  position  to
lose her father.

20.     We think it pertinent to refer here to the statement of PW-9  Bablu,
who has stated that he knew Sheela (deceased) and they wanted to marry.   He
further told that on 28.4.1999 between 8.00 to  8.15  p.m.  he  was  talking
with Sheela near the well.  He further told that accused Ramesh  came  there
and threatened him of breaking his bones if he  continued  to  meet  Sheela.
The witness further narrated that Ramesh slapped Sheela.   He  further  told
that Ramesh took Sheela to the house and thereafter he  did  not  know  what
happened, but at 10.30 p.m. he came to know about the death of Sheela.

21.   PW-4 Raju has corroborated the above statement.   He  stated  that  he
heard some noise on 28.4.1999 at 8.15 p.m. on his way back from  the  field.
He further told that when he reached near well,  he  saw  Sheela  and  Bablu
talking and advised  them  to  go  to  their  respective  homes.   Meanwhile
accused Ramesh came and slapped his daughter Sheela  and  took  her  to  his
house.  He further told that he did not know what had  happened  thereafter,
but at about  10.30  p.m.  PW-1  Prithviraj  Singh  called  him  and  Bablu.
Meanwhile, the police also reached there.


22.   After carefully scrutinizing the evidence on record, as above, we  are
convinced that it is proved beyond reasonable doubt on the record that  when
accused Ramesh saw his daughter talking  to  PW-9  Bablu,  he  got  suddenly
provoked and lost his power of self-control, slapped her,  took  her  inside
the  house,  and  caused  death  of  his  daughter  by   strangulation   and
throttling.  The medical evidence clearly shows four  ante  mortem  injuries
on the neck region and three around mouth of the deceased  as  mentioned  in
the autopsy report (Ex. P-12).  On going through the reports  Ex.  P-12  and
P.13 read with oral testimony of witnesses,  discussed  above,  we  have  no
hesitation in holding that prosecution has successfully  proved  the  charge
of culpable homicide not amounting to murder punishable  under  Section  304
Part I against the accused/respondent Ramesh.


23.   Exception 1 to Section 300 IPC provides that a  culpable  homicide  is
not murder if the offender, whilst deprived of the power of self-control  by
grave and sudden provocation, causes the death of the person  who  gave  the
provocation.  Needless to say that following three conditions,  as  required
under Exception 1 to Section 300 IPC, are  also  fulfilled  in  the  present
case: -
that  the  provocation  was  not  sought  or  voluntarily  provoked  by  the
offender;
that the provocation was not given by anything  done  in  obedience  of  the
law; and
that the provocation was not given by anything done in  lawful  exercise  of
the right of private defence.

24.   For the reasons, as discussed above, we are of the view that the  High
Court has erred in law in  holding  that  the  deceased  could  have  hanged
herself, and that the chain of circumstances was not  complete  against  the
accused.  Therefore, this appeal deserves to be allowed.   Accordingly,  the
appeal is allowed, and the  impugned  judgment  and  order  dated  4.1.2006,
passed by the High Court in D.B. Criminal Jail Appeal No. 397  of  2000,  is
set aside.  Accused-respondent Ramesh is convicted under Section 304 Part  I
IPC and sentenced to rigorous imprisonment for ten  years.   The  period  of
sentence already undergone by the accused shall be set off.  His  conviction
and sentence recorded by the trial court shall stand modified accordingly.

25.   The lower court record be sent back to make the respondent  serve  out
the remaining part of sentence.


                                                          ………………….....…………J.
                                                  [S.A. Bobde]


                                                            .………………….……………J.
                                                          [Prafulla C. Pant]
New Delhi;
November 20, 2015.

advertisement rights to the appellants without inviting tender for it. To that extent, in our opinion, respondent No.3 has not acted fairly. As such, the manner in which the advertising rights are given to the appellants with the work order cannot be said to be fair and contract to that extent was liable to be quashed without interfering with rest of the work order.=Explaining the doctrine of severability contained in Section 57 of Indian Contract Act, 1872, in B.O.I. Finance Ltd., v. Custodian and others[4], a three Judge Bench of this Court has held that question of severance arises only in the case of a composite agreement consisting of reciprocal promises. In Shin Satellite Public Co. Ltd. V. Jain Studios Ltd.[5], this Court has observed that the proper test for deciding validity or otherwise of an order or agreement is “substqantial severability” and not “textual divisibility”. It was further held by this Court that it is the duty of the Court to sever and separate trivial and technical parts by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful and otherwise enforceable. Therefore, in the facts and circumstances and for the reasons as discussed above, the appeals deserve to be partly allowed. Accordingly, we set aside the impugned orders passed by the High Court to the extent it has quashed the work contract given to the appellants regarding replacement of existing street lights by LED fittings and refurbishment of street light infrastructure on BOT basis. The work order dated 03.09.2014, to that extent given to the appellants shall stand valid. However, the advertisement rights given to the appellants, in the work contract, shall remain quashed. As to the advertisement rights, respondent No.3 may invite tenders before awarding contract in respect thereof. The appeals stand disposed of.

                                                                  REPORTABLE
      IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS.  9151-9152 OF 2015
          (Arising out of S.L.P. (Civil) Nos. 34129-34130 of 2014)

Elektron Lighting Systems                               …..Appellants
Pvt. Ltd. and Anr.
                                   Versus

Shah Investments Financial Developments
and   Consultants   Pvt.   Ltd   and    Ors.    Etc.          .….Respondents





                               J U D G M E N T


Prafulla C. Pant, J.


       These  appeals  are  directed  against  judgment  and   order   dated
14.10.2014 passed by High  Court  of  Judicature  at  Bombay,  whereby  Writ
Petition Nos. 7843 of 2014 and 8211 of  2014,  are  allowed,  and  the  work
order dated 03.09.2014, and consequential agreement between  the  appellants
and respondent No. 3, are quashed.

2.  Succinctly  stated  the  facts  of  the  case  are  that  on  01.08.2014
respondent no. 3 - Aurangabad Municipal Corporation  (for  short  “municipal
corporation”) invited tenders for replacement of existing street  lights  by
Light Emitting Diodes (LED) fittings  with  refurbishment  of  street  light
infrastructure on Build, Operate and Transfer (BOT)  basis.  The  contractor
was required to complete  the  project  within  one  year  and  recover  the
payment from the municipal corporation through Ninety  six  Equated  Monthly
Installments (EMIs) over a period  of  eight  years.  Response  to  E-tender
notice was required to be made in two separate parts, namely, technical  bid
and price bid. As  per  the  tender  notice,  the  tender  forms  were  made
available from 01.08.2014 to 20.08.2014. The period of  submission  of  bids
was extended up to 28.08.2014.

3.    The Tender Notice contained inter alia following conditions : -
“(i)   Manufactures  of  LED  Lights  OR  registered  Clause  A   Electrical
Contractors and are eligible to participate in the Tender.

The Class A Electrical Contractors (Lead Partner) may  only  participate  by
having a  Joint  Venture  agreement  with  the  Manufacturer  of  LED  Light
Fittings.
The Manufacturer of LED Light fittings  (Lead  Partner)  may  form  a  Joint
Venture with Class A Electrical Contractor.
The Manufacturer of LED Lights (Lead Partner) may form a Joint Venture  with
another Manufacturer of Electrical items, provided  that  the  Lead  Partner
has entered into  a  MOU  with  a  Class  A  Electrical  Contractor  towards
execution of the tendered BOT project.
The Bidder should have achieved a minimum turnover of Rs. 25 crores in  each
of the three preceding financial years, total 75 crores in three years.
Attested  true  copies   of   Sale   Tax/VAT   registration,   Manufacturing
certificate & DD for EMD to be submitted along with tender papers.
                 xxx              xxx             xxx

(xiv) Bidder may be Joint Venture  of  maximum  two      companies/firms  to
jointly meet the commercial and technical conditions.”

                 xxx              xxx             xxx

The present appellants and respondent No.1/writ petitioners submitted  their
bids but technical bids of the latter were rejected as they did not  fulfill
the terms as per  the  tender  notice.  The  price  bid  of  appellants  was
negotiated by the respondent - municipal corporation, and proposal was  sent
to the standing  committee  of  the  corporation.  Whereafter,  as  per  the
resolution, the work order was issued in favour of the appellants.
The two disqualified bidders filed the Writ Petitions  (W.P.  Nos.  7843  of
2014 and 8211 of 2014) before  the  High  Court  of  Judicature  of  Bombay,
Aurangabad Bench, challenging their disqualification, and acceptance of  the
appellants’ bid. The  High  Court  vide  impugned  order  held  that  though
disqualification of writ petitioners was correct  but  extraordinary  favour
was shown to appellants who were awarded work order, as such, the  same  was
quashed. Hence these appeals.

It  is  relevant  to  mention  here  that  the  writ  petitioners  have  not
challenged the order of the High Court, whereby  their  disqualification  by
the  municipal  corporation  has  been  upheld.  The  disqualification   and
rejection of technical bid of the  writ  petitioners  was  mainly  based  on
following three reasons:-
      Neither the writ petitioner  nor  its  joint  venture  partner  was  a
registered Class-A contractor,  nor  any  one  of  them  was  stated  to  be
manufacturer of LED lights.
    None of the writ petitioners had achieved a minimum turnover of  Rs.  25
crores in the three preceding financial years.
The writ petitioners failed to submit minimum  thirty  pieces  of  different
types of samples for the purposes of testing.


As such, so far as the disqualification of  the  writ  petitioners  (present
respondent no. 1) is concerned, it  requires  no  further  examination.  The
only point to be considered by us is whether  the  High  Court,  even  after
finding that the  technical  bids  of  the  writ  petitioners  were  rightly
rejected, was justified in quashing the work order given to  the  appellants
whose technical bid was accepted by the municipal corporation.

On behalf of the appellants following submissions were  made  assailing  the
impugned order passed by the High Court:-
(1).  RE. ABSENCE OF MOU:

That the appellants duly entered into MOU on 14.08.2014 with M/s.  Matoshree
Electricals & Winding Works, a Class A Electrical Contractor as required  in
Clause 1.1(4) of tender.
That the Technical Evaluation Report by AMC states       that MOU  had  been
duly filed by Petitioners.
That the Writ Petitioners never raised this point in  their  Writ  Petitions
and even in the amended Writ Petitions. That is also the reason why the  MOU
was not filed before High Court.
That this being an online tender, all documents filed  by  all  the  parties
were accessable to all. Since the MOU had been uploaded, the issue  was  not
raised in Writ Petition.
(2).  RE. NON-SUBMISSION OF ATTESTED COPIES OF VAT RETURNS:

That the appellants had duly filed attested copies of VAT Returns  in  terms
of Clause 1.2(1)(C) of  tender.  The  Technical  Evaluation  Report  by  AMC
states VAT Returns had been duly filed by them.
That the Writ Petitioners never raised this point in  their  Writ  Petitions
and even in the amended Writ Petitions. That is why copies  of  VAT  Returns
were not filed before the High Court.
That this being an online Tender, all documents filed by  all  parties  were
accessable to all. Since the VAT Returns had been uploaded,  the  issue  was
not raised in Writ Petition.
That the High Court erred in assuming that even joint venture partner  which
had zero turnover in a particular financial year had to  file  VAT  Returns.
It is submitted that VAT return was required only to establish the  turnover
requirement. Thus a joint venture partner had to file VAT  returns  only  if
its turnover exceeded zero.
(3).  Re. TURNOVER REQUIRMENT:

That the Clause 1.1(5) requires that bidder  should  have  achieved  minimum
turnover of Rs. 25 crores in each of the 3 preceding financial years,  total
75 crores in 3 years.  Clause  1.1(14)  specifies  bidder  may  be  a  joint
venture of maximum two companies/firms to ‘jointly meet’  the  commercial  &
technical conditions.
That the joint turnover of the two joint venture partners is  in  excess  of
Rs. 25 crores p.a. and Rs. 75 crores in 3 years. The fact that  turnover  of
P-1 was nil, is inconsequential since requirement is joint compliance.
That the High Court at para 28 noted that jointly the  turnover  requirement
is met but erroneously held  against  the  appellants  on  the  ground  that
turnover of appellant No.1 is nil.
(4).  RE. TREATING LETTER DATED 19.08.2014 AS FINANCIAL OFFER:

That the subject matter of letter dated 19.08.2014 was offer of  a  separate
product and different period, which was not covered by the  present  tender.
Hence question of the letter being a financial offer did not arise.
That the letter dated 19.08.2014 had  the  subject  “Additional  Suggestions
towards  tender-  UNCONDITIONAL”  and  specifically  stated  that  “…..These
suggestions  are  unconditional  and  are  being  made  in  favour  of   the
improvement for the City of Aurangabad. It shall be completely at your  kind
discretion to accept or reject these suggestions…..”
That the letter was considered separately by AMC. This is apparent from  the
Work Order. This is also corroborated by AMC’s Additional  affidavit  before
the High Court.
That the letter was uploaded alongwith the Technical Bid.   The  High  Court
erroneously held that the letter had been disclosed even before  opening  of
the technical bid, which is contrary to its own recording  that  letter  was
submitted simultaneously  with  tender  offer.  In  fact  Shah  Investments’
amended Writ Petition  itself  records  that  letter  dated  19.08.2014  was
submitted with technical bid.
That the relevant figure for evaluation of  tender  was  under  the  heading
“TOTAL COST TO AMC for Evaluating the  Lowest  Bidder  =  (VI)+(VII)+(VII)”.
This figure was nowhere disclosed either in technical bid or in  the  letter
dated 19.08.2014. Price bid comprised of 27 pages and none of the pages  was
attached as part of Technical Bid.
That without prejudice to the aforesaid, the part of work order relating  to
letter dated 19.08.2014 is severable and even if that  part  is  set  aside,
the remaining contract stands.

(5).  RE. TREATING GRANT OF ADVERTISING RIGHTS ON POLES AS BEYOND THE  TERMS
OF THE TENDER:

      That the work order is in two parts-one pertaining  to  award  of  the
main contract and the other to additional  suggestions  of  the  appellants.
It is submitted that the part pertaining to additional  suggestions  can  be
severed from main contract and directed to be removed from the  work  order.
Thus, work order may be confined to award of main contract only.

(6).  RE. THE DECISION MAKING BY AMC BEING HASTY:
That the Notice Inviting Tender was  issued  on  01.08.2014  and  the  whole
process was completed on 03.09.2014. There was thus no undue haste.
That the time period  for  submission  of  bids  was  extended  twice  which
negates the factum of alleged haste.
That the Commissioner of AMC being under orders of transfer had  no  bearing
on the matter as the ultimate decision was taken by the  Standing  Committee
of AMC.
That the decision making process shows due application of mind.
(7).  OTHER SUBMISSIONS:
That the High Court did not correctly appreciate the judgment of this  Court
in Sanjay Kumar Shukla Vs. Bharat Petroleum Corporation  Limited  [(2014)  3
SCC 493] where this Court reiterated need for caution in  entertaining  writ
petitions in contractual  matters,  unless  justified  by  public  interest,
since serious consequences could ensue.
That the High Court failed to appreciate that the petitions before  it  were
not public interest petitions but were petitions of unsuccessful bidders.
That the motives of the writ petitioners,  who  made  bids  despite  knowing
that they did not fulfill the essential requirements, were  not  considered.
In fact, Shah Investments was a finance company. It is  submitted  that  the
Writ Petitioners were front men for others.
That writ petitioner Shah Investment’s  W.P.  No.  7843/2014  did  not  even
contain  any  prayer  to  quash  the  petitioners’  bid  despite  amendment.
appellant No. 2 in present appeals was not even made a  party  in  Polycab’s
W.P. No. 8211/2014.
That impugned order imputes mala fides although there  were  no  allegations
of mala fide against any particular person in the writ petitions.
On the other hand, on behalf of the respondent No.1, it is argued  that  the
work order in question was  rightly  quashed  by  the  High  Court  for  the
following reasons:-
That the bidding for the present tender was to be conducted by a two-step e-
tendering process. As per Clause 3 of the bid document, at the  first  stage
the  bidders  were  required  to  submit  their  technical  bids,  and   the
acceptable bids amongst these would be  sent  for  field  trials.  Only  the
financial bids of those bidders whose samples qualify  the  technical  stage
were thereafter to be opened.
That Clause 1.2(h) stipulated that in the event a bidder submits  the  price
offer along with the technical bid, the  tender  bid  shall  be  treated  as
withdrawn and EMD forfeited.
That it was an essential and mandatory condition of the  tender  as  can  be
construed from the use of the word “shall” and the consequences attached  to
a breach of this clause, i.e., the bid treated to be as  withdrawn  and  the
consequent forfeiture of the EMD deposit.
That it is settled law that where there are essential conditions,  the  same
must be adhered to. In the present case, the Respondent No. 3 -  Corporation
has no power to relax any of the terms of  the  bid  document,  and  in  any
event no such power can be inferred in this context, as  no  relaxation  can
be granted from complying with a mandatory condition of the bid document.
That the contention of the  appellants  that  the  offer  contained  in  the
letter dated 19th August, 2014 was an unconditional offer made only for  the
consideration and benefit of the Respondent no. 3 - Corporation cannot  save
the appellants from the consequences of a breach of the  terms  of  the  bid
document.
That the said letter  dated  19th  August,  2014  admittedly  contained  the
following offers and suggestions which have a direct bearing  on  the  price
offer made by the appellants:
The letter divulged that the appellants would    be  offering  its  services
for the minimum guarantee period under the tender at  the  rate  of  Rs.95/-
per fixture per month.
The letter also stated that by implementing the  online  monitoring  system,
the number of control panels to be utilized would be  reduced  to  600  from
1200 as required  by  the  bid  document.  Interestingly,  no  corresponding
reduction in the price was  offered  by  the  appellants.  However,  if  the
number of control panels required were to increase over 600, the  appellants
would install the same at the additional  cost  of  the  Respondent  No.3  -
Corporation. This is a kind of offer which clearly exposes  the  mischievous
intention of the appellants in negotiating a bargain which would  be  purely
beneficial to itself at the cost of the public exchequer.
The letter also made  an  offer  to  implement  these  new  technologies  in
consideration for being granted exclusive advertising rights on  the  street
lights for the entire BOT period.
That the offers and suggestions made in the said letter, be  it  conditional
or unconditional, were unquestionably a price offer, as is evident from  the
work order dated 3rd September, 2014  issued  by  the  Respondent  No.  3  -
Corporation.
That the submission of such  letter  ipso  facto  renders  the  bid  of  the
appellants unresponsive, to be treated as withdrawn and EMD  forfeited.  The
terms of the bid document do not give the Respondent No.3 - Corporation  the
authority to relax its terms unilaterally for any individual  bidder,  in  a
manner  which  would  allow  such  bidder  to  circumvent  a  mandatory  and
essential terms of the bid document.
That having submitted such a price offer along with the technical  bid,  the
appellants stood disqualified at the  technical  stage  and,  therefore,  no
question arises as to  whether  the  Respondent  No.3  -  Corporation  could
choose to accept or reject these additional offers and  suggestions  of  the
appellants.
That the  practice  of  indulging  in  post  tender  negotiations  has  been
deprecated and labeled as a source of corruption and  in  pursuance  of  the
same, the Central Vigilance Commission has issued Circular  No.4/3/07  dated
3rd March, 2007 and has mandated that no post tender  negotiations  be  held
with L-1 except in certain exceptional situations as are mentioned  therein.
Admittedly, no such situation exists in the present case.
That the acceptance of these additional offers and suggestions as  contained
in  the  Work  Order  dated         3rd  September,  2014  has  resulted  in
enlarging the scope of the  tender.  The  period  of  the  tender  has  been
increased from eight years with a two years  extended  guarantee  period  to
eight years with a four  years  extended  guarantee  period.  The  answering
respondent/writ petitioner seeks compensation in return  for  providing  the
additional two years of guarantee. The scope of the tendered work  has  also
been increased to include the grant of exclusive advertising rights for  the
entire contract period which now stands revised  to  twelve  years,  for  no
consideration whatsoever. These are  major  deviations  from  the  essential
terms of the tender which cannot be permitted.
The  appellants  during  the  course  of  arguments  have  tendered  certain
additional documents across the bar, to establish  that  the  acceptance  of
the additional offers has been done  after  due  consideration.  However,  a
mere perusal of said documents such as  the  appellants’  letter  dated  2nd
September, 2104, the minutes of the  meeting  of  the  Aurangabad  Municipal
Commission chaired by the Commissioner also dated 2nd  September,  2014  and
the minutes of the meeting of  the  Standing  Committee  of  the  Aurangabad
Municipal Corporation dated 3rd September, 2014 would indicate  the  hurried
manner in which the entire process of the tender has been finalized.
Learned counsel for the municipal corporation  has  in  substance  supported
the grounds taken by the appellants assailing the impugned orders passed  by
the High Court.
We have considered submissions of  learned  counsel  for  the  parties,  and
perused the papers on record.
In Tata Cellular Versus Union of India[1], this  court  has  held  following
limitations  relating  to  scope  of  judicial  review   of   administrative
decisions and exercise of powers awarding contracts.  In Para 94 this  court
has held as under:-
“94. The principles deducible from the above are:

(1) The modern trend points to judicial restraint in administrative action.

(2) The Court does not sit as a court  of  appeal  but  merely  reviews  the
manner in which the decision was made.

(3) The Court does not have the  expertise  to  correct  the  administrative
decision. If a review of the administrative decision is  permitted  it  will
be substituting its own decision,  without  the  necessary  expertise  which
itself may be fallible.

(4) The terms of the  invitation  to  tender  cannot  be  open  to  judicial
scrutiny because the invitation to tender  is  in  the  realm  of  contract.
Normally speaking, the decision to accept the tender or award  the  contract
is reached by process of negotiations  through  several  tiers.  More  often
than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In  other  words,  a  fair
play in the joints is a necessary concomitant  for  an  administrative  body
functioning in an  administrative  sphere  or  quasi-administrative  sphere.
However, the decision  must  not  only  be  tested  by  the  application  of
Wednesbury principle of reasonableness (including its  other  facts  pointed
out above) but must be free arbitrariness not affected by bias  or  actuated
by mala fides.

(6) Quashing  decisions  may  impose  heavy  administrative  burden  on  the
administration and lead to increased and unbudgeted expenditure…….”


In Air India Ltd. Versus Cochin International Airport  Ltd.  And  Others[2],
this court has laid down the principle as to  how  the  discretionary  power
under Article 226 should be cautiously exercised in the matters of  awarding
contracts keeping in mind the public interest. In  Para  7  this  court  has
held as under:-
“7……..It can enter into negotiations before finally deciding to  accept  one
of the offers made to it. Price need not always be the  sole  criterion  for
awarding a contract. It is free to  grant  any  relaxation,  for  bona  fide
reasons, if the tender conditions permit  such  a  relaxation.  It  may  not
accept the offer even though it happens to be the  highest  or  the  lowest.
But the State, its corporations, instrumentalities and  agencies  are  bound
to adhere to the norms, standards and  procedures  laid  down  by  them  and
cannot depart from them arbitrarily. Though that decision  is  not  amenable
to judicial review, the Court can examine the decision  making  process  and
interfere if it is  found  vitiated  by  mala  fides,  unreasonableness  and
arbitrariness. The State, its corporations, instrumentalities  and  agencies
have the public duty to be fair to all concerned. Even when some  defect  is
found  in  the  decision-making  process  the  Court   must   exercise   its
discretionary  power  under  Article 226 with  great  caution   and   should
exercise it only in furtherance of public interest and  not  merely  on  the
making out of a legal point. The Court should always keep the larger  public
interest in mind in order to decide whether its intervention is  called  for
or not. Only  when  it  comes  to  a  conclusion  that  overwhelming  public
interest requires interference, the Court should intervene.”

In Jagdish Mandal Versus State of Orissa and Others[3], this court has  held
as under:-
“22. Judicial  review  of  administrative  action  is  intended  to  prevent
arbitrariness, irrationality, unreasonableness, bias  and  mala  fides.  Its
purpose is to check whether choice or decision is made  “lawfully”  and  not
to check whether choice or decision is “sound”. When the power  of  judicial
review is invoked in matters relating to  tenders  or  award  of  contracts,
certain  special  features  should  be  borne  in  mind.  A  contract  is  a
commercial  transaction.  Evaluating  tenders  and  awarding  contracts  are
essentially commercial functions. Principles of equity and  natural  justice
stay at a distance. If the decision relating to award of  contract  is  bona
fide and is in public interest, courts will not, in  exercise  of  power  of
judicial review, interfere even if  a  procedural  aberration  or  error  in
assessment or prejudice to a tenderer, is made out. The  power  of  judicial
review will not be permitted to be invoked to protect  private  interest  at
the cost  of  public  interest,  or  to  decide  contractual  disputes.  The
tenderer or contractor with a grievance can always seek damages in  a  civil
court.  Attempts  by  unsuccessful  tenderers  with  imaginary   grievances,
wounded pride and business rivalry, to make mountains out  of  molehills  of
some technical/procedural violation or some prejudice to self, and  persuade
courts to interfere by  exercising  power  of  judicial  review,  should  be
resisted. Such interferences, either interim or final, may  hold  up  public
works for years, or delay relief and succour to thousands and  millions  and
may increase the project cost manifold.

In the light of the law laid down by this Court, as above, we  examined  the
facts  of  the  present  case.  Admittedly,  respondent  No.   3   Municipal
Corporation invited  online  tenders  for  replacement  of  existing  street
lights by LED fittings.  The e-tender was required to be made  of  technical
bid and  price  bid.  It  is  not  disputed  that  the  appellants  and  the
respondent No. 1 uploaded their technical bid and submitted  price/financial
bid separately on the online portal of  the  municipal  corporation.  It  is
also admitted between the parties  that  the  last  date  of  submission  of
tenders was initially 20.08.2014, which was extended up to  28.08.2014.  The
technical evaluation of all the three  bidders  was  carried  out  in  their
presence.  It is relevant to  mention  here  that  the  disqualification  of
other two bidders, who filed writ petitions, was found correct by  the  High
Court, and said fact is not challenged before us.  As such, the  only  issue
required to  be  examined  is  as  to  whether  the  technical  bid  of  the
appellants was approved in accordance with  the  settled  principle  of  law
without giving them undue favour, or not.

The High Court has observed in the impugned orders that the MOU between  the
appellants and LED manufacturer M/s Matoshree Electricals &  Winding  Works,
was not placed on the record. However, the High court failed to notice  that
none of writ petitioners had challenged acceptance  of  appellants’  bid  on
that ground, and the appellants had no opportunity to place the same on  the
record of the court.  The MOU was part of tender bid, and finds its  mention
in “Tender Committee Evaluation Report”. The another reason to take  adverse
view against the appellants, mentioned by the High  Court  in  the  impugned
order, is that attested copies of VAT returns  were  not  presented  by  the
appellants. It is pointed out before  us  that  the  statement  of  the  VAT
returns for relevant financial years were duly filed by the appellants  with
the technical bid.  From the record, it reveals that filing of  VAT  returns
with  technical  bids  gets  corroboration  also  from   “Tender   Committee
Evaluation Report”.  In said report as to the requirement  “VAT  Returns  of
the Bidder”, the Committee has mentioned - “OK. “10A, 10B,  10C,  10D”,  and
acquaint the head - “Tender Condition Compliance” word “Yes”  is  mentioned.
Regarding the condition of turnover of rupees twenty five crores,  the  High
Court itself did not find infirmity and observed  that  the  appellants  did
fulfill the condition of return of rupees twenty five crores in each of  the
preceding financial years as the turnover of the joint venture  partner  was
to be taken into account.

It   is pertinent to mention here that the tender was invited  incorporating
the National Lightening  Code  to  ensure  the  safety  of  pedestrians  and
motorists.  The tender also specified the Lux levels to be achieved  and  to
be maintained for  eight  years.   The  power  consumption  required  to  be
guaranteed and the  contractor  was  made  liable  to  bear  the  difference
between the excess of actual energy bill over the quoted energy  bill.   The
contractor was  made  responsible  for  comprehensive  maintenance  for  all
installed equipment over BOT period including any breakage, theft,  loss  on
any account whatsoever.  It is worthwhile to mention here that in  the  pre-
bid meeting, representatives of eight bidders stated  to  have  participated
and clarified various points regarding the tender notice.

In our opinion, there appears to be no hurry on the part  of  the  municipal
corporation,  in  awarding  contract  as  the  tender  had  been  issued  on
01.08.2014 and the same was finalized  only  on  03.09.2014,  i.e.  after  a
period of more than one month.  Pre-bid meetings  were  held  and  the  last
date for  submission  of  tender  was  extended  twice  from  20.08.2014  to
25.08.2014 and thereafter to 28.08.2014, which  by  itself  shows  that  the
process was not carried out in haste.  Exhaustive pre-bid meeting  was  held
on 12.08.2014, which was stated to have been attended by  eight  prospective
bidders and the minutes of the pre-bid meetings running into  several  pages
changed many terms in favour of the respondent Corporation  to  ensure  even
stricter contract execution responsibilities and thus  became  part  of  the
tender through issuance of two corrigenda.  The pre-bid meeting was held  to
understand the  requirements  of  the  contract  viz.  the  opinion  of  the
prospective  bidders,  to  give  sufficient  time   for   bid   preparation,
evaluation of bids and  award  of  contract.   One  month  was  consumed  in
carrying out the said activities and in  no  way  can  it  be  termed  as  a
hurried process, as held by the High Court.

Therefore, in our opinion, the High Court has erred in law in  holding  that
the work  order  was  illegally  given  to  the  appellants  in  respect  of
replacement of street lights by LED fittings  and  refurbishment  of  street
light infrastructure on BOT basis.

Now, we come to that part of  work  order  and  consequential  agreement  by
which advertising rights were also granted to the appellants  on  the  basis
of  letter  dated  19.8.2014  sent  by  the  appellants  to  the   Municipal
Corporation.  The High Court has taken serious  note  of  the  letter  dated
19.08.2014  (a  day  before  submission  of  technical  bid)  in  which  the
appellants has made “certain  suggestions”  to  the  municipal  corporation.
Copy of said letter is reproduced below: -
“The Commissioner,
Aurangabad Municipal Corporation
Aurangabad, Maharashtra

Sub: Additional Suggestions toward Tender-UNCONDITIONAL

Respected Sir,

We are participating in the tender for the LED Street  Lighting  due  to  be
opened on 21st  August,  2014,  &  there  are  some  additional  suggestions
towards  the  same  for  your  kind  consideration.  These  suggestions  are
unconditional & are being made in favour of the improvement for the City  of
Aurangabad. It shall be completely at your  kind  discretion  to  accept  or
reject these suggestions.

We can offer to implement the Online Internet based Control & Monitoring  of
the Street Lights from the Switching point. The suitable systems  shall  use
GSM based modems to control the switching ON & OFF of the street lights,  to
be installed in each control Panel. Though the cost  of  such  a  system  is
quite high, however we are hereby offering to implement the  solution  at  a
reduced price of Rs. 36,000/- per Control Panel  along  with  the  recurring
costs of the GSM communication & software to  Online  monitor  it,  provided
the Exclusive Advertising  rights  for  all  the  Street  Lights  Poles  are
extended to us.

The stipulated number of Control Panels is about 1200, as  per  the  Tender.
In case it is  decided  to  implement  the  New  Technology  Online  control
System, we may mutually plan  to  reduce  the  number  of  existing  Control
Panels  to  about  600,  as  the  Switching  Point  system  load  shall  get
substantially reduced after  implementation  of  LED  Lights.  Thus  we  may
offset the cost  of  reduced  Control  Panels  by  using  Online  Technology
without burden of AMC. In case due to logistic issues, the  Street  Lighting
cannot be controlled by the proposed 600 Panels,  then  whatever  additional
nos. may be required, cost for the same shall be borne by AMC.

As a reciprocal towards implementation of the Online Monitoring  &  Control,
we seek the Exclusive Advertising Rights for all the Street Light Poles.

2.    Additional Extended Guarantee Period of Two Years:-

We can extend the Additional Guarantee Period from Two Years to Four  Years,
if required by AMC, on the same terms  of  Cost  as  per  Part  D,  i.e.  on
payment of Rs.95/- per fixture per month. This offer has.

Joint Venture Bidder
(Electron Lighting System (P) Ltd.
& Paragon Cable India)

Sd/-
Authorized Signatory”
The above letter discloses that the suggestions were unconditional,  leaving
it open for the municipal corporation to accept or not to accept  the  same.
Through the above quoted letter the appellants suggested that  if  exclusive
advertising rights are given to the bidder on the street  lights  pole,  the
bidder would reduce price by Rs. 36,000/- per control panel. The  stipulated
number of control panel was 1,200/-, which could be reduced  through  mutual
plan to 600/-. We  are  of  the  view  that  the  above  offer  relating  to
advertising rights was uncalled for and severable, and not  a  part  of  the
work for which tender was  floated.   Learned  counsel  for  the  appellants
submitted that the appellants are ready to execute the work  without  taking
benefit of said letter as per the work contract relating to  replacement  of
street lights by LED on BOT basis.

It is submitted on behalf of the respondent No.3 that  though  revenue  from
advertising in city of Aurangabad from  other  sources,  for  the  financial
years 2011-2012, 2012-2013 and 2013-2014 was Rs. 81,31,091=00,  81,15,438=00
and 89,03,976=00 respectively, but  the  same  from  advertising  on  Street
Light Poles was nil for each of the three  years.  As  such,  the  municipal
Corporation did not commit any illegality in  negotiating  the  matter  with
the appellants while awarding the work order to it.

In our opinion, the matter regarding advertising rights  was  separate,  and
the municipal corporation which is a statutory body and  instrumentality  of
the State should have acted fairly by making it open  for  all  eligible  to
submit their offers. As such, we think that  the  respondent  No.3  was  not
justified in giving the  advertisement  rights  to  the  appellants  without
inviting tender for it. To that extent, in our opinion, respondent No.3  has
not acted fairly. As such, the manner in which the  advertising  rights  are
given to the appellants with the work order cannot be said to  be  fair  and
contract to that extent was liable to be quashed  without  interfering  with
rest of the work order.

Explaining the doctrine of severability contained in Section  57  of  Indian
Contract Act, 1872, in B.O.I. Finance Ltd., v. Custodian  and  others[4],  a
three Judge Bench of this Court has held that question of  severance  arises
only  in  the  case  of  a  composite  agreement  consisting  of  reciprocal
promises.  In Shin Satellite Public Co. Ltd. V. Jain Studios  Ltd.[5],  this
Court has observed that the proper test for deciding validity  or  otherwise
of an order or agreement is “substqantial  severability”  and  not  “textual
divisibility”.  It was further held by this Court that it  is  the  duty  of
the Court to sever and separate trivial and  technical  parts  by  retaining
the main or substantial part and by giving effect to the  latter  if  it  is
legal, lawful and otherwise enforceable.

Therefore, in the facts and circumstances and for the reasons  as  discussed
above, the appeals deserve to be partly allowed.  Accordingly, we set  aside
the impugned orders passed by the High Court to the extent  it  has  quashed
the work contract given to the appellants regarding replacement of  existing
street  lights  by  LED  fittings  and   refurbishment   of   street   light
infrastructure on BOT basis.  The  work  order  dated  03.09.2014,  to  that
extent  given  to  the  appellants  shall   stand   valid.    However,   the
advertisement rights given to the appellants, in the  work  contract,  shall
remain quashed.  As to the advertisement rights, respondent No.3 may  invite
tenders before awarding contract  in  respect  thereof.  The  appeals  stand
disposed of.

No order as to costs.



                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
New Delhi;                              [Prafulla C. Pant]
November 20, 2015.

-----------------------
[1]    (1994) 6 SCC 651
[2]    (2000) 2 SCC 617
[3]    (2007) 14 SCC 517
[4]    (1997) 10 SCC 488
[5]    (2006) 2 SCC 628

there was no common object on the part of other members of the unlawful assembly with accused Pohla @ Sat Narain to commit murder of Rajesh (deceased).=Accordingly, in the light of decision in the appeal of co-accused Daya Kishan, conviction and sentence of the appellant recorded by the trial court in respect of offence punishable under Section 302 read with Section 149 IPC is set aside

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1475 OF 2015
               (Arising out of S.L.P. (Crl.) No. 8281 of 2007)


Raj Singh @ Raja                             … Appellant

                                   Versus

State of Haryana through Secretary
Ministry of Home Affairs, Chandigarh         …Respondent



                               J U D G M E N T



Prafulla C. Pant, J.


      This appeal is directed against judgment and order dated 21.8.2006  in
Criminal Appeal No. 152-DB of 2004, passed by the High Court of  Punjab  and
Haryana, whereby said appeal has been  dismissed  affirming  the  conviction
and  sentence  awarded  against  accused/appellant  Raj  Singh  @  Raja,  by
Sessions Judge, Sonepat,  in  Sessions  Case  No.  121  of  1999/2003  under
Sections 148, 302, 307, 323 read with  Section  149  of  Indian  Penal  Code
(IPC).





We have heard learned counsel for the parties  and  perused  the  papers  on
record.





Brief facts of the case are that PW-4 Bhale Ram  (complainant)  owned  shops
near bus stop of village Jagsi.  In one of  the  shops  liquor  used  to  be
sold,  and  the  other  shops  were  being  used  as  tea  stalls   by   the
complainant’s son PW-10 Sanjay  and  nephew  Rajesh  (deceased).   A  vacant
piece of land adjoining the shops was  also  used  by  the  complainant  for
tethering the cattle in respect of which a civil  litigation  was  going  on
between him and Daya Kishan Bairagi (one of the accused).





On 30.11.1998 at about 7.00 p.m. when PW-10  Sanjay  and  Rajesh  (deceased)
were in the shop, complainant’s  daughters  PW-11  Kamlesh  and  Meena  were
unloading the paddy straw from a cart at the vacant piece of land.  At  that
point of time accused Kishan (son of Daya  Kishan)  came  to  the  shop  and
asked Sanjay to deliver some goods without payment of the price.   On  this,
a quarrel ensued and Kishan threatened  Sanjay  of  dire  consequences.   He
left the shop and soon  thereafter  came  back  along  with  other  accused,
namely, Pohla @ Sat Narain, Daya Kishan, Ajmer  and  the  present  appellant
Raj Singh @ Raja. Pohla @ Sat Narain was armed with  gun,  Ajmer  was  armed
with ‘Jaili’ and remaining three, namely, Daya Kishan, appellant  Raj  Singh
@ Raja and Kishan were armed with lathies.  Pohla  opened  fire  at  Rajesh,
who fell down.  In the meantime, complainant and his daughters  Kamlesh  and
Meena intervened to rescue Sanjay and Rajesh.  Daya Kishan gave a blow  with
lathi on the person of the complainant.  Ajmer and Kishan  also  gave  blows
with Jaili and lathi respectively on the complainant.  Appellant  Raj  Singh
@ Raja said to have assaulted Kamlesh and Meena.  On hearing the  commotion,
PW-12 Ram Kishan and one Hoshiara also  reached  there.   They  rescued  the
complainant from the accused, who left the place along with  their  weapons.
All the injured were taken to Community  Health  Centre,  Gohana,  wherefrom
they were referred by PW-21 Dr. S.S. Gupta to PGIMS,  Rohtak,  where  Rajesh
was declared brought dead.  Other injured were  admitted  in  the  hospital,
and underwent medical treatment.  On next day at 7.30 a.m.  police  recorded
statement  of  PW-4  Bhale  Ram  (injured/complainant)  and  on  its   basis
registered First  Information  Report  No.  224  on  1.12.1998  relating  to
offences punishable under Sections 148, 149, 302, 307 and 323 IPC




PW-17 Inspector Ram Prakash conducted the  investigation.  He  went  to  the
spot, prepared site plan (Ex. PS), collected blood-stained earth, and  three
used cartridges.  He also took dead body  of  Rajesh  in  his  custody,  and
prepared inquest report (Ex. PC).  The body was  sent  in  sealed  condition
for  post  mortem  examination.   PW-3  Dr.  Vimal  Kumar  Sharma  conducted
autopsy.  Meanwhile PW-14 Dr. Rajesh Saini  prepared  medico  legal  reports
(Exs. PL, PM, PN, PO and PP) in respect of injured Sanjay, Kamlesh,  Kishni,
Meena and Bhale Ram, and also that of accused Daya Kishan (Ex. DA).



On completion of investigation,  charge  sheet  was  filed  against  accused
Pohla @ Sat Narain, Kishan, Ajmer, Raj Singh @  Raja  and  Daya  Kishan  for
their trial in respect of offences punishable under Sections 148,  302,  307
and 323 read with Section 149 IPC.  Pohla @ Sat Narain was  further  charged
in respect of offence punishable under Section 27 Arms Act, 1959.  The  case
was committed to the Court of Session.   On  25.5.1999,  after  hearing  the
parties, the Sessions Judge framed  charge  in  respect  of  above  offences
against all the five accused to which they pleaded not  guilty  and  claimed
to be tried.



It appears that during the trial when the accused were on bail,  two  except
Daya Kishan and Raj Singh @ Raja (present appellant) absconded.   After  the
stage of 313 of Code of Criminal Procedure (CrPC),  appellant  Raj  Singh  @
Raja also jumped the bail, and was declared proclaimed offender.   As  such,
trial of accused Daya Kishan was concluded vide  judgment  and  order  dated
19.1.2004, passed by the Sessions Judge, whereby said accused was  convicted
and sentenced under Sections 148, 302, 307 and 323  read  with  Section  149
IPC.



Subsequently, when Raj Singh @ Raja  (present  appellant)  was  re-arrested,
his case proceeded further from the stage of 313 CrPC.  In defence DW-1  Dr.
Gaurav Bhardwaj, DW-2 Bhan Singh, DW-3 Khazan Singh and DW-4 Dr. S.S.  Gupta
were examined.  Two doctors proved the injuries  found  on  person  of  Daya
Kishan, suffered by him at the time of  the  incident.   After  hearing  the
parties, the trial court (Sessions Judge, Sonepat), vide judgment and  order
dated 10.10.2005 passed in Sessions Case No.  121  of  1999/2003,  convicted
and sentenced accused Raj Singh @ Raja also, under  Sections  148,  307  and
323 read with Section 149 IPC.



Convicts Daya Kishan and Raj Singh @ Raja filed Criminal Appeal Nos.  277-DB
of 2004 and 152-DB of 2006 respectively before the  High  Court.   Both  the
appeals were heard together and disposed of vide common judgment  and  order
dated 21.8.2006 whereby  the  two  appeals  were  dismissed.   Convict  Daya
Kishan, through special leave, filed Criminal Appeal No. 879 of 2007  before
this Court, which was disposed of, vide judgment and order dated  22.4.2010.
 Said appeal of Daya Kishan  was  partly  allowed  by  this  Court  and  his
conviction and sentence under Section 302 read with Section 149 IPC was  set
aside.  However, his conviction and  sentence  under  Section  148  IPC  and
under Sections 307 and 323 both read with  Section  149  IPC  was  affirmed.
Said decision of this Court in Daya Kishan v. State of Haryana  is  reported
in (2010) 5 SCC 81.



It is relevant to mention here that this appeal,  which  is  also  filed  by
another convict Raj Singh @ Raja in the year  2007  (through  S.L.P.  (Crl.)
No. 8281 of 2007) remained undisposed of. Both the appeals have  arisen  out
of the common order passed by the High Court.   These  relate  to  the  same
incident.  Prosecution evidence as against both the accused was recorded  in
Sessions Case No. 121 of 1999/2003.  Both the accused are said to have  been
armed  with  lathies.   Daya  Kishan  said  to  have  assaulted  Bhale   Ram
(complainant) and  the  present  appellant  said  to  have  assaulted  PW-11
Kamlesh.  Needless to say that Pohla @ Sat Narain said  to  have  fired  the
shot at Rajesh, who died of the injuries.  This Court, in its  judgment  and
order dated 22.4.2010 in Criminal Appeal No. 879  of  2007  (filed  by  Daya
Kishan) has discussed that  after  the  quarrel  between  PW-10  Sanjay  and
accused Kishan, all the accused assembled to teach lesson to Sanjay.  It  is
discussed in the appeal decided by this  Court  that  there  was  no  common
object on the part of other members of the unlawful  assembly  with  accused
Pohla @ Sat Narain to commit murder of  Rajesh  (deceased).   The  shot  was
fired at him by Pohla.  Role of the present appellant Raj Singh @  Raja  and
that of Daya Kishan, both of whom were armed with lathies, is  similar.   As
such, the case of the present appellant is identical to  the  case  of  Daya
Kishan, already decided by this Court.


For the reasons, as discussed above, this appeal also deserves to be  partly
allowed, for the reasons mentioned  in  Criminal  Appeal  No.  879  of  2007
decided by this Court on 22.4.2010.


Accordingly, in the light of decision  in  the  appeal  of  co-accused  Daya
Kishan, conviction and sentence of  the  appellant  recorded  by  the  trial
court in respect of offence punishable under Section 302 read  with  Section
149 IPC is set aside.  He is  acquitted  of  charge  of  offence  punishable
under Section 302 read with Section 149 IPC.  However,  his  conviction  and
sentence in respect of other offences punishable under Section 148 IPC,  and
under Sections 307 and 323 both read with  Section  149  IPC  are  affirmed.
The appeal stands disposed of.


                                                          ………………….....…………J.
                                                  [Dipak Misra]


                                                            .………………….……………J.
                                                          [Prafulla C. Pant]
New Delhi;
November 20, 2015.

Curiously enough, the Managing Director being the disciplinary authority prepared his report and referred the matter to the Board of Directors to consider the draft charges, enquiry report, representation filed by the officer concerned and his finding, for taking an appropriate decision in the case. Not only that, when the case was placed before the Board for taking a final decision, he participated in the said meeting and a decision was taken by the Board of Directors to dismiss the appellant from service. In our considered opinion, such a procedure adopted by the disciplinary authority and the appellate authority is absolutely erroneous in law.=the procedure adopted by the respondents in removing the appellant from service is erroneous and suffers from serious discrimination and bias. Further, the Enquiry Officer conducted the enquiry without following the procedure and without giving sufficient opportunity to the delinquent to place his case. Enquiry is also vitiated in law.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1217 OF 2011

Brij Bihari Singh                                  Appellant(s)

                                   versus

Bihar State Financial Corporation
and                                                                   others
Respondent(s)



                               J U D G M E N T

|                                                         |
|M.Y. Eqbal, J.:                                          |


      The appellant was working on the post of Assistant General Manager  in
the Bihar State Financial Corporation (in short, “the Corporation”). At  the
direction of State Government, vide  letter  dated  20th  March,  1993,  the
Managing Director of the Corporation, who  is  the  Disciplinary  Authority,
put the appellant under suspension and  initiated  disciplinary  proceedings
on the following charges:-
“1. He recommended release of Rs. 4.33 lakhs to M/s. Koshi Jute  Mills  Pvt.
Ltd., Supaul against purchased machines  without  deducting  the  stipulated
promoter's margin money, which is evident from the fact that the  promoter's
margin money was deducted in totality at the time of subsequent  release  of
Rs.7.80 lakhs to the concern on 19.12.90.

2. He intentionally and in utter violence of delegated powers  released  Rs.
7.80 lakhs to the concern (M/s. Koshi  Jute  Mills  Pvt.  Ltd.,  Supaul)  on
19.12.90 at his own for  which  he  was  not  the  competent  authority  for
disbursing such amount at his own. This irregular act  of  his  is  a  grave
misconduct for his wrongful gain.

3. While making release of Rs. 7.80 lakhs to the concern  (M/s.  Koshi  Jute
Mills Pvt. Ltd., Supaul) in utter violation of delegated powers, he did  not
retain the 15% retention money according to  stipulated  conditions  in  the
Sanction Order and mutual agreement between the  promoter  and  the  machine
supplier.

4. While making release to the aforesaid concern he deliberately  suppressed
the facts regarding observations of the Vigilance and Grievance  Cell  dated
22.12.89 and mentioned that the  dealing  of  machine  supplier  is  genuine
whereas observations of Vigilance and Grievance Cell duly  approved  by  the
M.D. available in the loan file shows  that  the  machine  supplier  is  not
refunded and that of his connivance with the promoter.

5. He deliberately ignored the  further  observations  of  the  Vigilance  &
Grievance Cell duly approved by M.D. to inspect  the  site  of  the  machine
supplier immediately and made release to the aforesaid concern.

6. He deliberately received the payment of  Car  Allowance  for  the  period
from 9.3.88 to 1.10.88 without having a car in  his  name  during  aforesaid
period.

7. He purchased land  at  Patliputra  Colony,  Patna  from  Dr.  Bindeshwari
Prasad Singh through three different  absolute  sale  deeds  (Registered  at
Calcutta) showing himself as false profession without disclosing the  source
of fund arranged.”



2.    After serving the aforesaid memorandum of charges upon  the  appellant
some additional charges were served, which are also set out below :-

“He himself examined the proposal of  Delhi  based  fake  promoter  of  M/s.
Divine Cycle (P)  Ltd.,  Industrial  Area,  Fatwah  on  promoter's  personal
guarantee and placed the proposal with recommendation before the  Board  for
sanction of loan to the Company when the residential addresses of  promoters
were incomplete and official address was subsequently found fake. He  should
have examined the proposal before recommending the case to the  Board  which
he did not do so as a result the promoter managed to grab the fund from  the
Corporation and left the unit abandoned.  Thus  due  to  his  negligence  of
duties in processing of the loan proposal the Corporation has been put to  a
huge financial loss.

He, with an ulterior motive did not  inform  H.O.  after  getting  the  site
jointly inspected with BICICO representative in Feb. '83 that the  unit  was
running  in  a  rented  premises  other  than  that  of  mortgaged  to   the
Corporation and deliberately did not take any action  against  the  promoter
which proves his connivance with  the  promoter  of  the  company  to  cause
wrongful loss to the Corporation.”


3.    It appears that one officer of the State Government on deputation  was
made Enquiry Officer, who conducted the enquiry in respect of the  aforesaid
charges and submitted enquiry  report  holding  that  the  majority  of  the
charges have been proved.  Consequently, 2nd show cause notice was given  to
the appellant which was duly responded.  The appellant was then directed  to
be personally present for hearing and then the  Managing  Director,  instead
of  passing  final  order,  recommended  the  Board  of  Directors  of   the
Corporation for the punishment to be imposed upon the appellant. On  receipt
of the said recommendation, the Board finally passed an order  of  dismissal
of the appellant from service.

4.    The appellant assailed  the  order  of  dismissal  by  filing  a  writ
petition being CWJC No.3528 of 1994, which was eventually dismissed  by  the
learned Single Judge of the High Court.  The said  judgment  and  order  was
finally upheld by the Division Bench of the High  Court  in  Letters  Patent
Appeal No.51 of 1998.

5.    Mr. Sunil Kumar, learned senior counsel appearing  for  the  appellant
assailed the impugned judgment of the High Court and the order of  dismissal
of the appellant mainly on the  following grounds:-
“I.   The departmental proceeding was conducted by the  Enquiry  Officer  by
merely perusing the files without representing officer presenting  the  case
on behalf of the employer and without recording any evidence in  support  of
the charges.

II.   The Enquiry Officer in  the  departmental  proceedings  submitted  his
report merely by perusing the files without the charges being proved by  the
employer.

III.  There is a serious violation of principles of natural justice for  the
reason inter alia that the presenting officer neither presented the case  of
the employer nor led any oral  or  documentary  evidence.  The  Disciplinary
Authority, instead of passing a final order on the basis of  enquiry  report
and the explanation submitted by the appellant, recommended the case to  the
Board for taking a final  decision.   The  Board,  which  is  the  appellate
authority usurp the power of  the  Disciplinary  Authority  and  passed  the
order of punishment.”

6.    Before we decide the legality and propriety of the order of  dismissal
passed by the respondent, we would like to refer relevant provisions of  the
Regulations  called  the   Bihar   State   Financial   Corporation   (Staff)
Regulations, 1965.  Regulations 39 and 40 read as under:-
“39.   Penalties:-  (i)  Without  prejudice  to  the   provisions   of   the
Regulations, an employee who commits a breach  of  the  regulations  of  the
Corporation or who displays  negligence, inefficiency or  indolence  or  who
knowingly does anything detrimental to the interest of  the  Corporation  or
in conflict with its instructions or who commits a breach of  discipline  or
is guilty of any other act of misconduct or who is convicted of  a  criminal
offence shall be liable to any  or all of the following penalties:-
Reprimand;
Withholding or postponement of increment or promotion including stoppage  at
an efficiency bar, if any,
Reduction to a lower post or grade or to a lower stage  in  his  incremental
scale.
Recovery from pay of the whole or part of any pecuniary loss caused  to  the
Corporation by the employee,
Fine,
Suspension,
Dismissal,
Discharge, or
Compulsory retirement

(ii)  No employee shall be subjected to the penalties in clauses  (b),  (c),
(d), (e), (f), (g), (h) or (i) of sub-regulation (i) except by an  order  in
writing signed by the Managing Director and no such order  shall  be  passed
without the charge or charges being formulated in writing and given  to  the
said employ so that he shall have reasonable opportunity to answer  them  in
writing or in person, as he prefers, and in  the  latter  case  his  defence
shall be  taken  down  in  writing  and  read  to  him,  provided  that  the
requirements or this Regulation may be waived if the facts on the  basis  of
which action is to be taken have been established  in  a  Court  of  Law  or
where the  employee has absconded or  where  it  is  for  any  other  reason
impracticable to communicate with  him  or  where  there  is  difficulty  in
observing them and the requirements can be waived without injustice  to  the
employee.  In every case where all  or  any  of  the  requirements  of  this
Regulation are waived, the  reasons  for  so  doing  shall  be  recorded  in
writing.

(iii)  An employee may, before the initiation of any proceeding  under  sub-
regulation (ii) or pending the  completion  of  such  proceeding  be  placed
under suspension by the Managing Director. During such suspension  he  shall
receive subsistence allowance equal to two thirds  of  his  substantive  pay
plus the dearness allowance, provided that if no penalty under  any  of  the
clauses (b), (c), (d), (e), (f), (g), (h) or (i) of  sub-regulation  (i)  is
imposed, the employee shall be paid the difference between  the  subsistence
allowance and the emoluments which he  would  have  received  but  for  such
suspension for the period while he was  under  suspension  and  that,  if  a
penalty is imposed on him under the said clauses, no order shall  be  passed
which shall have the effect of compelling him  to  refund  such  subsistence
allowance. The period during which an employee is  under  suspension  shall,
if he is not dismissed from the service, be treated as on duty for  specific
purpose, i.e. as the Managing Director may direct.

40.   Right to appeal:- (i) An  employee  shall   have  a  right  of  appeal
against any order  passed  by  the  competent  authority  which  injuriously
affects his interests.
(ii)     No appeal shall lie after the expiration of  sixty  days  from  the
date of receipt of the order against which the appeal is preferred.”



7.    Perusal of Regulations 39 and 40 would show the manner  and  procedure
for conducting departmental enquiry.   Regulation  40  confers  a  statutory
right of appeal to the employee against an order  passed  by  the  competent
authority which injuriously affects his interest.

8.    It is well settled that a person who is required to  answer  a  charge
imposed should know not only the accusation but also the testimony by  which
the accusation is supported.  The delinquent must be given  fair  chance  to
hear the evidence  in  support  of  the  charge  and  to  cross-examine  the
witnesses who prove the charge.  The delinquent must also be given a  chance
to rebut the evidence led against him.  A departure  from  this  requirement
violates the principles of  natural  justice.   Furthermore,  the  materials
brought on record pointing out the guilt are required to be proved.  If  the
enquiry report is based  on  merely  ipse  dixit  and  also  conjecture  and
surmises cannot be sustained in law.

9.    In the case of State of U.P. vs. Saroj Kumar Sinha, (2010) 2 SCC  772,
this Court held:-
“28. An inquiry officer acting in  a  quasi-judicial  authority  is  in  the
position of  an  independent  adjudicator.  He  is  not  supposed  to  be  a
representative  of  the  department/disciplinary  authority/Government.  His
function is to examine the evidence presented by  the  Department,  even  in
the absence of the delinquent official to see as to whether  the  unrebutted
evidence is sufficient to hold that the charges are proved. In  the  present
case the aforesaid procedure has not been observed. Since no  oral  evidence
has been examined the documents have not been proved,  and  could  not  have
been taken into consideration to conclude that the charges have been  proved
against the respondents.
29. Apart from the above, by virtue of Article 311(2)  of  the  Constitution
of India the departmental enquiry had to be  conducted  in  accordance  with
the rules of natural justice. It is a basic  requirement  of  the  rules  of
natural justice that an employee be given a reasonable opportunity of  being
heard in any proceedings which may culminate in punishment being imposed  on
the employee.
30. When a departmental enquiry is conducted against the government  servant
it cannot be treated as a casual  exercise.  The  enquiry  proceedings  also
cannot be conducted with a closed  mind.  The  inquiry  officer  has  to  be
wholly unbiased. The rules of natural justice are required  to  be  observed
to ensure not only that justice is done but is manifestly seen to  be  done.
The object of rules of natural  justice  is  to  ensure  that  a  government
servant is treated fairly in proceedings which may culminate  in  imposition
of punishment including dismissal/removal from service.”


10.   In the instant case, the  disciplinary  proceeding  was  conducted  in
gross violation of Regulation 39 of the  said  Regulations  inasmuch  as  no
reasonable opportunity was given to the delinquent  to  place  his  case  in
defence.  The Regulation imposed a duty on the Authority to give a  personal
hearing to the delinquent.

11.   A right of appeal has been provided  by  Regulation  40  of  the  said
Regulations against any order passed by the  competent  Authority.   In  the
instant case as  noticed  above,  the  Disciplinary  Authority,  instead  of
exercising  the  power  as  Disciplinary  Authority   imposing   punishment,
referred his recommendations to the appellate authority,  namely,  Board  of
Directors for taking a decision and the Board  of  Directors  exercised  the
power of Disciplinary Authority and imposed punishment of dismissal  thereby
deprived the appellant from moving the appellate authority against the  said
order.  Such exercise of power is wholly arbitrary and discriminatory.

12.    Curiously  enough,  the  Managing  Director  being  the  disciplinary
authority prepared his report and  referred  the  matter  to  the  Board  of
Directors to consider the  draft  charges,  enquiry  report,  representation
filed by the officer concerned and his finding, for  taking  an  appropriate
decision in the case.  Not only that, when the case was  placed  before  the
Board for taking a final decision, he participated in the said  meeting  and
a decision was taken by the Board of  Directors  to  dismiss  the  appellant
from service.  In our considered opinion, such a procedure  adopted  by  the
disciplinary authority and the appellate authority is  absolutely  erroneous
in law.

13.   In the case of  Surjit Ghosh vs. United Commercial Bank, AIR  1995  SC
1053, this Court in  similar circumstances, observed:-
“5. ……..It is true that when  an  authority  higher  than  the  disciplinary
authority itself imposes the punishment, the  order  of  punishment  suffers
from no illegality when no appeal is provided to  such  authority.  However,
when an appeal is provided to the higher  authority  concerned  against  the
order of the disciplinary authority or of a lower authority and  the  higher
authority passes an order of punishment, the employee concerned is  deprived
of the remedy of appeal which is a substantive right given  to  him  by  the
Rules/Regulations. An employee cannot be deprived of his substantive  right.
What is further, when there is a provision of appeal against  the  order  of
the disciplinary authority and when the appellate or  the  higher  authority
against whose order  there  is  no  appeal,  exercises  the  powers  of  the
disciplinary authority  in  a  given  case,  it  results  in  discrimination
against the employee concerned. This is particularly so when  there  are  no
guidelines in the Rules/Regulations as to when the higher authority  or  the
appellate  authority  should  exercise  the  powers  of   the   disciplinary
authority. The higher or appellate authority  may  choose  to  exercise  the
power of the disciplinary authority in some cases  while  not  doing  so  in
other cases. In such cases, the right  of  the  employee  depends  upon  the
choice  of  the  higher/appellate  authority  which  patently   results   in
discrimination between an employee and employee. Surely,  such  a  situation
cannot savour of legality. Hence we are of  the  view  that  the  contention
advanced on behalf of the respondent-Bank that when an  appellate  authority
chooses to exercise the power of disciplinary authority, it should  be  held
that there is no right of appeal provided under the  Regulations  cannot  be
accepted.
The result, therefore, is that the present order of dismissal  suffers  from
an inherent defect and has to be set aside.”


14.   In Amar Nath Chowdhury vs.  Braithwaite and  Company  Ltd.  and  Ors.,
(2002) 2 SCC 290, a similar case came for consideration before  this  Court.
In that case, the appellant who was an employee of Braithwaite  and  Company
Ltd., a Government of  India  undertaking,  was  subjected  to  disciplinary
proceedings.   The  enquiry  committee   submitted   its   report   to   the
disciplinary authority who was the  Chairman-cum-Managing  Director  of  the
Company.  The disciplinary authority passed  an  order  of  removal  of  the
appellant from service.  The appellant moved the Board of Directors who  was
the appellate authority.  When the appeal was taken up  by  the  Board,  the
said Chairman-cum-Managing Director participated in the deliberation of  the
meeting of the Board which heard and dismissed the appeal.  On these  facts,
this Court held that the proceeding of the Board was vitiated on account  of
participation of  the  disciplinary  authority  while  deciding  the  appeal
preferred by the appellant.  Similar view has been  taken  in  the  case  of
Institute of Chartered Accountants  of  India  vs.   L.K.  Ratna  and  Ors.,
(1986) 4 SCC 537.

15.    In  the  case  of  K.  Chelliah  vs.  Chairman   Industrial   Finance
Corporation of India and Anr., AIR 1973 Mad. 122, an employee  of  the  IFCI
was dismissed from service.  The decision  to  terminate  the  employee  was
taken up by  the  Chairman  who  was  also  a  Member  of  the  Board  which
considered the appeal.  The High Court held that the entire  proceeding  was
vitiated by non-observance of principles of natural justice.

16.   After giving our anxious consideration in the matter, we  are  of  the
definite view that the procedure adopted by the respondents in removing  the
appellant from service is erroneous and suffers from serious  discrimination
and bias.  Further,  the  Enquiry  Officer  conducted  the  enquiry  without
following the procedure and without giving  sufficient  opportunity  to  the
delinquent to place his case.  Enquiry is also vitiated in law.

17.   For the  reason  aforesaid,  we  find  that  the  appeal  deserves  to
succeed.  The orders passed by the  Board  of  Directors  and  the  impugned
judgments passed by the High Court are liable to be set aside.   The  matter
is, therefore, sent back to the Disciplinary Authority to proceed  from  the
stage of the enquiry afresh and pass a reasoned  order  in  accordance  with
law after giving full opportunity of hearing to the appellant.  Needless  to
say if the appellant is aggrieved by the final order that may be  passed  by
the Disciplinary Authority, he shall have  a  right  to  appeal  before  the
appellate authority.

                                                              …………………………….J.
                                                                (M.Y. Eqbal)



                                                              …………………………….J.
                                                               (C. Nagappan)
New Delhi
November 20, 2015