Input:
Civil Appeal Nos 597 599 (NT) of 1985 From the Judgment and order dated 3.5.1983 of the Punjab & Haryana High Court in Income Tax Reference Nos. 61, 63 and 64 of 1977 Dr. Devi Pal, V.S. Desai, O.C. Mathur, Ms A K. Verma, Ms. Meera Verma and section Sukumaran for the Appellant.
S.C. Manchanda and Ms. A Subhashini for the Respondent The Judgment of the Court was delivered by PATHAK, J.
These appeals by special leave are directed against the judgment of the High Court of Punjab and Haryana holding that the sale of insulated copper wires manufactured by the appellant 480 assessee does not entitle it to the benefits conferred by sections 33(1)(iii) (c)(A) and 80E of the Income Tax Act, 1961 for the assessment years 1966 67 and 1967 68 and the benefits conferred by sections 33(1)(b)(B)(i) and 80I of the Income tax Act, 1961 for the assessment years 1968 69 to 1971 72 Section 33 of the Income Tax Act, 1961 provides for the grant of development rebate.
Prior to April 1, 1968, section 33(1)(iii)(c)(A) of the Income Tax Act, 1961 provided: "(1) In respect of a new ship acquired or new machinery or plant (other than office appliances or road transport vehicles) installed after the 31st day of March, 1954, which is owned by the assessee and is wholly used for the purposes of the business carried on by him, a sum by way of development rebate, equivalent to (i) . . . . . . . . (ii) . . . . . . . . (iii) in the case of machinery or plant installed after the 31st day of March, 1961 (a) . . . . . . . . (b) . . . . . . . . (c) where the machinery or plant is installed after the 31st day of March, 1965 (A) for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule (a) thirty five per cent, of the actual cost of the machinery or plant to the assesee, where it is installed before the 1st day of April, 1970.
and (b) twenty five per cent, of such cost, where 481 it is installed after the 31st day of March, 1970.
(B) . . . . . . shall, subject to the provisions of section 34, be allowed as a deduction in respect of the previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year.
" This provision was substituted, with effect from April 1, 1968, by the present provision which reads: "33(1)(a) In respect of a new ship or new machinery or plant (other than office appliances or road transport vehicles) which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section and of section 34, be allowed a deduction in respect of a previous year in which the ship was acquired or the machinery or plant was installed or, if the ship, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year, a sum by way of development rebate as specified in clause (b).
(A) . . . . . . . . (B) in the case of machinery or plant, (i) where the machinery or plant is installed for the purposes of business of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, (a) thirty five per cent of the actual cost of the machinery or plant to the assessee, where it is in stalled before the 1st day of April, 1970, and (b) twenty five per cent of such cost, where it is installed after the 31st day of March, 1970.
482 These provisions relate to development rebate.
A deduction was also available to an assessee in respect of profits and gains from specified industries in the case of certain companies prior to April 1, 1968.
Section 80E provided: "80E (1) In the case of a company to which this section applies, where the total income (as computed in accordance with the other provisions of this Act) includes any profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or ( more of the articles or things specified in the list in the Fifth Schedule, there shall be allowed a deduction from such pro fits and gains of an amount equal to eight per cent.
thereof in computing the total income of the company.
" Section 80E was deleted with effect from April 1, 1968 and was substituted by section 80 I which provides: "80 I(1) In the case of a company to which this section ap plies, where the gross total income includes any profits and gains attributable to any priority industry, there shall be allowed, in accordance with and subject to the provisions of this section, a deduction from such profits and gains of an amount equal to eight per cent, thereof, in computing the total income of the company.
" It is not disputed between the parties that the assessee is a company to which the provisions of section 80E and subsequently of section 80I will apply.
Section 80I, it may be noted, was deleted by the Finance Act, 1972 with effect from April 1, 1973.
With effect from April 1, 1968 the expression 'priority industry ' was defined in section 80B(7) as meaning: "the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule or the business of any hotel where such business is carried on by an Indian company and the hotel is for the time being approved in this behalf by the Central Government.
" 483 The word 'Sixth ' was substituted for 'Fifth ' by the Finance Act 1968 A with effect from April 1, 1969.
With effect from April 1, 1964 the Fifth Schedule set forth a list of articles and things and items 7, 17 and 24 which possess some relevance to this case read as follows: "(7) Equipment for the generation and transmission of electricity including transformers, cables and transmission towers, (17) Electronic equipment, namely, radar equipment, computers, electronic accounting and business machines, electronic communication equipment, electronic control instruments and basic components, such as valves, transistors, resisters, condensors, coils, magnetic materials and microwave components, (24) Component parts of the articles mentioned in items Nos.
(4), (5), (7) and (9), that is to say, such parts as are essential for the working of the machinery referred to in the items aforesaid and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose and are in comp lete finished form and ready for fitment.
" The Sixth Schedule which replaced the Fifth Schedule with effect from April 1, 1969 contained identical items 7,17 and 24.
These appeals relate to the assessment years 1966 67 to 1971 72.
The assessee carries on the business of manufacture and sale of insulated copper wires.
Before the Income Tax officer, it claimed that it constituted a priority industry for the purposes of the provisions of sections 33(1)(iii)(c)(A) and 80E read with items 7, 17 and 24 of the Fifth Schedule of the Income Tax Act, 1961 for the first two years and sections 33(1)(b)(B)(i) and 80 1 read with items 7, 17 and 24 of the Fifth or the Sixth Schedule, as the case may be, of the Income Tax Act, 1961 for the latter four years.
The assessee claimed that it was entitled to the benefits conferred by those provisions for the aforesaid assessment years as a 'priority industry '.
It asserted that the wires manufactured by it were covered by the word 'cables ' employed in the articles and things specified in items 7, 17 and 24 of the Fifth Schedule 484 for the assessment years 1966 67, 1967 68 and 1968 69 and items 7, 17 and 24 of the Sixth Schedule of the Income Tax Act for the assessment years 1969 70 to 1971 72.
It produced expert evidence in support of its claim.
The Income Tax officer rejected the claim made by the assessee.
An appeal to the Appellate Assistant Commissioner was dismissed.
The assessee then appealed to the Income Tax Appellate Tribunal.
The Appellate Tribunal allowed the six appeals and held that the assessee was entitled to the benefits claimed by it as a 'prority industry '.
It noted that although the assessee had based its claim on items 7, 17 and 24 of the Schedules, the claim was emphatically pressed in the hearing before it under item 7 alone.
The question before it then was limited to the point whether the wires manufactured by the asses see fell within item 7.
In disposing of the appeals, the Appellate Tribunal adverted to its finding in the appeals for the two immediately preceding assessment years 1964 65 and 1965 66.
In its appellate order for the assessment year 1964 65 it found that the assessee manufactured aluminium cables which were used in the transmission of electricity and held that, therefore, it was entitled to the benefit of the Fifth Schedule relevant for those two assessment years.
In the appeal pertaining to the assessment year 1965 66 it considered the matter again and upheld the claim in view of its order for the preceding assessment year.
It noted that the Revenue had accepted the orders and had not questioned them in reference.
It found from a perusal of the Industrial Licences on the basis of which the assessee was operating that there was no change in the nature or type of the goods manufactured by it during the six assessment years before it in appeal.
It observed that when it referred to aluminium cables in its earlier orders it should have described them as copper and aluminium cables.
Having regard to the material before it, the Appellate Tribunal found no reason to change its opinion from the view taken in the preceding assessment years that the manufacture of the cables attracted the benefits claimed by the assessee.
Thereafter, at the instance of the Revenue, the Appellate Tribunal made a reference for the six assessment years to the High Court of Punjab and Haryana for its opinion on the following two questions: "Whether, on the facts and in the circumstances of the case, the assessee company was entitled to the benefits conferred by the provisions of sections 33(1)(iii)(c)(a) and 80E of the Income Tax Act, 1961? 485 2.
Whether on the facts and in the circumstances of the case, the assessee company was entitled to the benefits conferred by the provisions of sections 33(1)(b)(B)(i) and 80 I of the Income Tax Act, 1961?" The High Court answered those questions in favour of the Revenue and against the assessee.
The High Court differed from the Appellate Tribunal and took the view that in the cases for the assessment years under consideration the Income Tax officer had come into possession of fresh facts indicating that the assessee was manufacturing copper wires of a particular type known as winding wires which were exclusively used in the manufacture of different types of gadgets and not for the purpose of generation and transmission of electricity.
It observed that the wires were not meant for the generation and transmission of electricity, and they would fall within item 7 only if they were meant solely for that purpose and not otherwise.
In these appeals it is contended on behalf of the assessee that the High Court has misconstrued the facts found by the Appellate Tribunal and has, therefore, erroneously held that the cables manufactured by the assessee do not fall within the scope of item 7.
It is urged also that the true test for determining whether the cables could be used in the generation and transmission of electricity was that laid down by the Madras High Court in Commissioner of Income Tax, Tamil Nadu V vs Dhandayuthapani Foundry (Private) Ltd., [1980] 123 l.
T.R. 709 where in considering the question whether an implement could be described as an agricultural implement it was observed that the real test was not whether it was exclusively used for agricultural purposes but whether it was commonly so used and whether it was intimately and directly connected with agricultural operations.
The point before us is whether the cables manufactured by the assessee qualify for inclusion in item 7 of the Fifth Schedule or the Sixth Schedule, as the case may be having regard to the relevant assessment year.
Item 7 speaks of equipment for the generation and transmission of electricity, and such equipment includes transformers, cables and trans mission towers.
To appreciate what is comprehended in item 7, it is permissible to refer to a related entry, item 24, which refers to component parts of the articles mentioned, inter alia, in item 7.
When item 24 is read in its entirety, it is apparent that the component parts mentioned therein are component parts of what can be described as machinery.
Then reading item 7 in conjunction with item 24, the con 486 clusion is inescapable that when item 7 speaks of equipment, reference is intended to machinery needed for the generation and transmission of electricity.
The item envisages complete self contained units of equipment, units which on being put together or connected together constitute the apparatus for the generation and transmission of electricity.
Viewed in that context, the reference in item 7 to cables must mean cables identifiable as a complete self contained unit in themselves as a distinct unit of equipment when employed in the generation and transmission of electricity.
A cable does not fall within item 7 if it is merely a component, or part of a component, of a unit of equipment or machinery.
The High Court is right in our opinion, in holding that the Appellate Tribunal erred in ignoring the fresh evidence gathered by the Income Tax officer and considered by the Appellate Assistant Commissioner in the assessment proceedings under consideration.
The sales accounts of the assessee showed that the assessee had sold winding wires used in the manufacture of different types of electrical gadgets and for the purpose of transmission of electricity.
These are winding wires, employed in coils, winding of armatures, etc.
and can not be identified at all as cables in the sense in which item 7 conceives of cables.
That being so, the test propounded in Commissioner of Income Tax, Tamil Nadu V vs Dhandayuthapani Foundry (Private) Ltd. (supra) does not call for consideration.
In the circumstances, the questions referred to the High Court for its opinion were rightly answered in the negative, in favour of the Revenue and against the assessee.
In the result, the appeals are dismissed with costs.
M.L.A. Appeals dismissed.

Output:
Section 33 of the Income Tax Act, 1961 provides for the grant of development rebate.
The appellant assessee, who carried on the business of manufacture and sale of insulated copper wires, claimed for the assessment years 1966 67 to 1971 72 that it was entitled to the benefits conferred by sections 33(i)(iii) (c)(A) and 80E read with items 7, 17 and 24 of the Fifth Schedule and sections 33(i)(b)(B)(i) and 80 I read with items 7, 17 and 24 of the Fifth or the Sixth Schedule, as the case may be, for the aforesaid assessment years as a "priority industry".
It contended before the Income Tax officer that the wires manufactured by it were covered by the word "cables" employed in the articles and things specified in items 7, 17 and 24 of the Fifth Schedule for the assessment years 1966 67, 1967 68 and 1968 69 and items 7, 17 and 24 of the Sixth Schedule of the Income Tax Act for the assessment years 1969 70 to 1971 72.
The Income Tax officer rejected the claim made by the appellant.
The matter ultimately went before the High Court in a reference.
The High Court answered the question in favour of the Revenue and against the appellant assessee on the ground that the wires were not meant for the generation and transmission of electricity and they would fall within item 7 only if they were meant solely for that purpose and not otherwise.
Dismissing the appeal, ^ HELD: 1.
Item 7 of the Fifth Schedule speaks of equipment for the generation and transmission of electricity and such equipment includes transformers, cables and transmission towers.
To appreciate what is comprehended in item 7, it is permissible to refer to a related 479 entry, item 24, which refers to component parts of the articles mentioned, inter alia in item 7.
When item 24 is read in its entirety, it is apparent that the component parts mentioned therein are component parts of what can be described as machinery.
Then reading item 7 in conjunction with item 24, the conclusion is inescapable that when item 7 speaks of equipment, reference is intended to machinery needed tor the generation and transmission of electricity.
The item envisages complete self contained units of equipment, units which, on being put together or connected together, constitute the apparatus for the generation and transmission of electricity.
Viewed in that context, the reference in item 7 to cables must mean cables identifiable as a complete self contained unit in themselves as a distinct unit of equipment when employed in the generation and transmission of electricity.
A cable does not fall within item 7 if it is merely a component, or part of a component, of a unit of equipment or machinery.[485F H; 486A C] Commissioner of Income Tax, Tamil Nadu V vs Dhandayuthapani Foundry (Private) Ltd., [1980] 123ITR 709, inapplicable.
In the instant case, the sales accounts of the asessee showed that the assessee had sold winding wires used in the manufacture of different types of electricity.
These are winding wires, employed in coils, winding of armatures, etc.
and cannot be identified at all as cables in the sense in which item 7 conceives of cables.
[486D E]


Input:
Civil Appeal No. 230 of 1978.
From the Judgment and Order dated 19th January, 1978 of the 31 High Court of Judicature at Allahabad in Civil Misc.
Writ No. 355 of 1977.
Yogeshwar Prasad and Mrs. Rani Chabbra, for the Appellant J.P. Goyal, Rajesh and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by special leave is directed against the judgment dated 19th of January, 1978 of the Allahabad High Court.
The short question for consideration in this appeal is whether a sub tenant is entitled to the protection of the fourth proviso to s.21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
The material facts to bring out the point for consideration lie in a narrow compass.
One Murari Lal was the owner of the disputed shop.
During his lifetime a partition took place between him and the other members of his family in 1937.
The shop in dispute fell to the share of Murari Lal and Narendra Mohan, his eldest son.
After the death of Murari Lal in 1960 his interest devolved upon his sons Rajendra Kumar and Brijendra Kumar along with their brother Narendra Mohan.
It appears that the shop in suit had been let out to one Krishan Kumar.
He in his turn inducted Shyam Babu, the present appellant, as his sub tenant in 1962.
Rajendra Kumar and Brijendra Kumar filed a suit No. 181 of 1968 in the Court of Munsif for the eviction of the original tenant as well as the sub tenant, on the ground of illegal subletting as also for the recovery of arrears of rent.
That suit was contested by the tenant as well as the sub tenant on the ground that the sub tenancy had been created with the consent of the then landlord and therefore subletting was legal.
The learned Munsif dismissed the suit by his order dated 24th April, 1973 holding that the sub tenancy created by Krishan Kumar in favour of the appellant Shyam Babu was with the consent of the landlord and as such neither Krishan Kumar nor Shyam Babu was liable to eviction on that ground.
It appears that during the pendency of the suit the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 32 (hereinafter referred to as the new Act) came into force on 15th July, 1972.
Rajendra Kumar and Brijendra Kumar, the landlords, moved an application under s.21 of the new Act for the release of the premises in occupation of the appellant and Krishan Kumar on the ground that the same is bonafide required for their personal use.
The application was resisted by the tenant as well as the sub tenant.
They denied that the need of the landlords was genuine.
They also set up their own needs and contended that they would suffer greater hardship if the application for release was allowed.
The prescribed authority allowed the application with respect to the portion in occupation of the appellant Shyam Babu but dismissed the same as against the original tenant Krishan Kumar.
Feeling aggrieved the landlords as well as the sub tenant filed two separate appeals before the District Judge to the extent the order went against them.
The landlords were aggrieved by the order insofar as their application was rejected against Krishan Kumar, the original tenant, while the appellant challenged the release of the premises granted to the landlords against him.
Both the appeals were disposed of by a common judgment of the District Judge on 24th March, 1977 confirming the order passed by the prescribed authority.
The landlords submitted to the order passed by the District Judge.
The appellant, however, sought to challenge the order of the District Judge by filing a writ petition in the High Court.
The contention raised by the appellant was that the prescribed authority as well as the Appellate Court committed a manifest error of law in allowing the application for release of the premises in favour of the landlords without considering the comparative hardship likely to be caused to the appellant or to the respondent land lords by the order of release or refusal to release the premises within the meaning of fourth proviso to s.21 of the new Act.
In the opinion of the High Court the proviso contemplated the consideration of the likely hardship of the tenant or the landlord and as the appellant was only a sub tenant the proviso did not obligate the authority to consider his hardship.
It will be appropriate at this stage to read the relevant proviso to s.21 as the decision of the case hinges on the construction of the proviso: "Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into 33 account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
" It may be recalled that in the earlier suit No. 181 of 1968 filed by the landlords it was found as a fact that the appellant Shyam Babu was inducted as a sub tenant by the tenant in chief with the consent of the landlords.
It was on this ground that the landlords ' suit was dismissed against the tenant in chief as well as the sub tenant.
A feeble attempt was made before the High Court on behalf of the landlords to challenge that finding but that was rejected and we think rightly.
Even an erroneous finding of fact between the parties will be binding on them.
The landlords, therefore, cannot possibly urge that the sub letting was not with the consent of the landlords.
If once it is accepted that the sub tenancy created by the tenant in chief in favour of the appellant was with the consent of the landlords his possession cannot be said to be illegal.
In this view of the matter we see no reason why he should be deprived of the protection of the fourth proviso to s.21 of the new Act.
It is true that the new Act was intended to give relief to the tenant. 'Landlord ' and 'tenant ' are defined terms in the Act. Clause(j) of s.3 defines 'landlord ' thus: "(j) "landlord", in relation to a building, means a person to whom its rent is or if the building were let would be, payable, and includes, except in clause (g), the agent or attorney, or such person:" Section 3 (a) defines tenant as; "(a) "Tenant" in relation to a building, means a person by whom its rent is payable,. . " The appellant who is a sub tenant pays rent to the tenant in chief and the tenant in chief in his turn pays rent to the landlord.
Between the appellant and the tenant in chief the tenant in chief would be the landlord and the appellant, the sub tenant, would be the tenant.
All that the relevant proviso to s.21 requires is that the comparative hardship of the tenant as also that of the landlord shall be taken into account before passing any order of release or refusal to release.
If the sub tenancy had been created without the consent 34 of the landlord the position might have been different.
The sub tenant for the purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the sub tenant.
To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purpose of the new Act.
A similar question came up for consideration before a Division Bench of the Allahabad High Court in Bhullan Singh vs Babu Ram based on cl.
(g) of s.2 of the U.P. (Temporary Control of Rent and Eviction Act, 1947.
The High Court took the view that the term 'tenant ' as defined in cl.
(g) of s.2 of the Act includes a sub tenant.
Having considered the argument of the counsel for the parties we are of the firm view that the appellant was entitled to the protection of the fourth proviso to s.21 and the comparative hardship of the appellant as well as that of the landlords should have been taken into account before disposing of an application under s.21 of the new Act.
The Court below in our opinion have failed to exercise jurisdiction vested in them in not considering the likely hardship of the appellant.
For the reasons given above the appeal must succeed.
It is accordingly allowed and the impugned judgment of the High Court and those of the District Judge as well as of the prescribed authority on the question of comparative hardship are set aside.
The case is remanded to the District Judge who will send it to the prescribed authority under the new Rent Act to dispose of the application under s.21 in the light of the observations made above after considering the likely hardship of the appellant and that of the landlord respondents.
In the circumstances of the case, we direct the parties to bear their costs.
H.S.K. Appeal allowed.

Output:
The respondent landlords had let out a shop to a tenant who had, with the consent of the landlords, sub let the same to the appellant.
The landlords moved an application under section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the tenant and the sub tenant for release of the premises on the ground of bonafide requirement.
The prescribed authority allowed the application against the appellant and dismissed against the tenant.
In appeal the District judge confirmed the order of the prescribed authority.
In a writ petition the appellant challenged the order of the District Judge.
The High Court dismissed the writ petition observing that the fourth proviso to s.21 contemplated the consideration of the likely hardship of the tenant or the landlord only and not of the sub tenant.
Hence this appeal.
Allowing the appeal, ^ HELD: All that the relevant proviso to s.21 requires is that the comparative hardship of the tenant as also that of the landlord shall be taken into account before passing any order of release or refusal to release.
If the sub tenancy had been created without the consent of the landlord the position might have been different.
The sub tenant for the purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the sub tenant: To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purpose of the Act.
[33 H; 34 A B] Bhullan Singh vs Babu Ram referred to.
In the instant case, the appellant was entitled to the protection of the fourth proviso to section 21 and the comparative hardship of the appellant as well as that of the landlords should have been taken into account before disposing of an application under s.21 of the Act.
The Courts below have failed to exercise jurisdiction vested in them in not considering the likely hardship of the appellant.
[34 C D]


Input:
ivil Appeal No. 3383 of 199 1.
From the Judgment and Order dated9.11.1990 of the Cen tral Administrative Tribunal, Jabalpur in O.A. No. 129 of 1989.
Altar Ahmed, Additional Solicitor General, Hemant Sharma and C.V.S. Rao for the Appellant.
B.S. Banthia, Piyush Mathur, G. Prakash, T.C. Sharma, S.K. Agnihotri and S.K. Gambhir for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
What falls for consideration in this appeal is the interpretation of clauses (1), (2) and ,(3) of Regu lation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations,.
1955 (hereinafter referred to as the 'Regulations ').
The first respondent and five others who were members of the Madhya Pradesh State Civil ' Service had approached the Central Administrative Tribunal ( 'Tribunal ' for brevity) with a grievance that the selection of officers to the Indian Administrative Service ( 'IAS ') on the basis of recommendation made by the Selection Committee in its meet ing held on December 19, 1988 and on March 16, 1989 was illegal.
In its meeting on December 19, 1988, the Selection Committee had estimated 7 vacancies in the IAS cadre and was, therefore, required to prepare a select list of 14 members of the State Civil Service for promotion to the IAS, under Regulation 5(1) of the Regulations.
While preparing the list, the committee had to consider for inclusion in the said list the cases of members of the State Civil Service (in the order of there seniority) equal to three times the number of officers to be placed on the list.
Hence the Committee had to consider the cases of 42 members of the Service.
The Committee, however, considered the cases only of 30 officers, graded them and submitted its recommendation to the Union Public Service Commission.
The Commission directed the Committee to meet again and grade the remaining 12 officers also.
Accordingly, the Committee met again on March 779 16, 1989 to complete the select list as directed.
As a result of this selection, appointment orders of 14 officers who were included in the select list were issued on 29th/30th March 1989.
This was challenged by the applicants before the Tribunal by pointing out that the State had wrongly calculated the number of vacancies as 7 by Counting the period of 12 months under Regulation 5(1), from December 1, 1988 to November 30, 1989 instead of from 16th March 1989 to 15th March.
If the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would be 11 and the select list of 22 officers would have to be prepared.
That will extend the zone of consideration in all to 66 officers.
Since 1.8 of the 66 officers were ineligible, the zone of consideration will extend to the 84th officer in the seniority list.
On behalf of the State Government, it was contended that since the meeting was first held on 19th December.
1988 the period of 12 months under the said Regulation will have to be calcu lated from December 1, 1988 to November 30, 1989 according to the previous practice of the State Government, ,which was that since the Committee meets in the second fortnight of December, the period was to be calculated from the 1st December of that .year.
We agree with the Tribunal that neither the practice adopted by the State Government nor the interpretation placed by it on Regulation 5(1) is proper.
The relevant portion of Regulation 5(1) reads as follows: "5.
Preparation of a list of suitable officers. (1) . .
The number of members of the State Civil Service included in the list shall not be more than twice ,.he number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list.
in the posts available for them . . . (Emphasis supplied ) We are not concerned with the rest of the provision of the said regulation for the purposes of this point.
The wording of the regulation is very clear.
It says "commencing from the date of the preparation of the list".
In the.
present case, admittedly the list which was prepared by the Selection Committee on 19.12.
1988 was not according to Regulation 5(1) read with Regulation 5(2).
Regulation 5(2) requires that the cases of members of the State Civil Serv ice which are required to be considered for preparation of the select list have to be in number equal to three times the number of officers to be placed on the select list.
As pointed out earlier, the Selection Committee had on the basis of its estimate of vacancies on 19th December, 1988 considered the 780 cases of only 30 officers when it was required to consider the cases of 42 officers.
It is for this reason that the Union Public Service Commission had returned its recommenda tion and asked the Selection Committee to consider the cases of 12 more officers.
Hence the preparation ' of the select list was not complete in December 1988 and the Commit tee was required to convene a fresh meeting on March 16, 1989 on which date alone it ican be said to have prepared the select list as required under Regualtion 5(1).
Since the select list, as required by Regulation 5(1), was for the first time prepared on March 16, 1989, the period of 12 months under Regulation 5(1) had to be counted from that date.
The Tribunal had, therefore, rightly held, that the span of 12 months would begin from March 16, 1989 and end on March 15, 1990.
There is further no dispute that during the period of 12 months from 16th March, 1989 to 15th March, 1990, the esti mated vacancies were 11 and, therefore, the Tribunal 's direction to prepare a select list of 22 officers by consid ering the cases in all of 66 officers and, therefore, ex tending the zone to the 84th officer in the,seniority list according to the order of seniority (18 officers out of 66 being ineligible), is both proper and valid.
A contention was then advanced before us on behalf of the appellant that the select list lapses when a meeting of the Selection Committee to prepare a fresh select list is held.
Hence no appointment could be made from the earlier select list on and after the date of the meeting of the next Selection Committee.
There is nothing on record as to wheth er any Selection Committee met after March 16, 1989.1n fact, the Tribunal 's direction to constitute a Review Committee to consider the cases of the applicants before it and any other officers who were in the consideration zone, has not yet been implemented and the Selection Committee has yet to meet to prepare the list of members of the State Civil Service eligible to be placed in the select list as on March 16, 1989.
There is, therefore, no question of the lapse of the list which is yet to be prepared.
A meeting of the Selection Committee to prepare the list for future years cannot be held unless the meeting as directed by the Tribunal is first held and the select list finalised.
The last contention was that under Regulation 5(3), there is a bar on the Selection Committee taking into con sideration the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year in which it meets.
The argument was that some of the officers had attained the age of 54 years 781 on 1st January, 1989 and, therefore, would be ineligible for consideration to be placed in the select list.
According to us, this contention is inconsistent with the provisions of Regulation 5(3) of the Regulations.
Regulation 5(3) reads as follows: "5(3) The Committee shall not consider the cases of the members of the State Civil Serv ice who have attained the age of 54 years on the first day of January of the year in which it meets:" (Emphasis ours) The provision of Regulation 5(3) is clear.
It speaks of the first day of January of the year "in which", the Selection Committee " 'meets".
It is unlike the language of Regulation 5(1) which, as pointed.
out earlier, speaks of "the date of the preparation of the list".
In the present case, admitted ly the Committee first met on 19th December, 1988.
There fore, for the purpose of 'Regulation5(3), it iv that date which is relevant and if that is so, it is only those mem bers of the State Civil Service who will be ineligible who had attained the age of 54 years on 1st January, 1988.
The Tribunal has also clarified this while giving the direction for a Review Selection Committee.
We make it clear that for the purposes of the Review Selection Committee to be convened as directed by the Tribu nal the zone of consideration will be as if the meeting was held on March 16, 1989.
The actual number of vacancies which will have to be considered has already been indicated in our judgment.
In the circumstances of the case, the appeal fails and is dismissed.
In view of the fact that these proceedings have been pending for some time we direct that the Review Departmental Promotion Corn ' mittee/Selection Committee should meet and prepare the select list within two months from the day of the receipt of the writ of this Court.
In the circumstances of the case, there will be no order as to costs.
N.P.V. Appeal dis missed.

Output:
The first respondent and five other members of Madhya Pradesh State Civil Service challenged before the Central Administrative Tribunal the selection of 14 officers of the State Civil Service for promotion to the Indian Administra tive Service as illegal on the ground that the State had wrongly calculated the anticipated number of vacancies as 7 by counting the period of 12 months under Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955, from December 1, 1988 to November 30, 1989, instead of from March 16, 1989 to March 15, 1990, and if the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would he 11 and the select list of 22 officers would have to he prepared, for which 66 officers would have to be considered, and the zone of consideration would extend to the 84th officer in the seniority list, since 18 of the 66 officers were ineligible under Regulation 5(3).
On behalf of the State Government it was contended that since the meeting was first held on December 19, 1988 the period of 12 months under the Regulation 5(1) would have to he calculated from December 1, 1988 to November 30, 1989 according to the previous practice of the Government, which was that since the Committee met in the second fortnight of December, the period was to be calculated from the 1st December, 1988.
The Tribunal held that neither the practice adopted by the State Government, nor the interpretation placed by it on Regulation S(1) was proper, and that the span of 12 months would begin from March 16, 777 1989 and end on March 15, 1990 and directed that a Select List of 22 officers should be prepared since during the later period, the estimated vacancies were 11, and that a Review Committee should be constituted to consider the cases of the applicants.
Dismissing the appeal preferred by the Union of India, this Court, HELD: 1.1 The wording of the Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955, is very clear.
It says "commencing from the date of preparation of the list".
[779F] 1.2 In the present case, admittedly the list which was prepared by the Selection Committee on December 19, 1988 was not according to Regulation 5(1) read with Regulation 5(2).
Since the Selection Committee had, on the basis of its estimate of seven vacancies on December 19, 1988 considered the cases of only 30 officers when it was required to con sider the cases of 42 officers, the Union Public Service Commission had returned its recommendation and asked the Selection Committee to consider the cases of 12 more offi cers.
Hence, the preparation of the Select List was not complete in December, 1988 and the Committee was required to convene a fresh meeting on March 16, 1989, on which date alone it can be said to have prepared the select list as required by Regulation 5(1).
Since the select list, as required by Regulation 5(1) was for the first time prepared on March 16, 1989, the period of 12 month under Regulation 5(1) had to be counted from that date.
[779G H, 780A B] 1.3 During the period of 12 months from 16th March, 1989 tc 15th March, 1990, the estimated vacancies were 11 and, therefore, select list of 22 officers has to be prepared by considering the cases in all of 66 officers and extending the zone to the 84th officer in the seniority list according to the order of seniority (18 officers out of 66 being ineligible).
[780C D] 2.
The provision of Regulation 5(3) speaks of the first day of January of the year "in which", the Selection Commit tee "meets" unlike the language of Regulation 5(1) which speaks of "the date of the preparation of the list".
In the present case, the Committee first met of December 19, 1988.
Therefore, for the purpose of Regulation 5(3), it is that date which is relevant and if that is so, it is only those members of the State Civil Service who had attained the age of 54 years on January 1, 1988 who would be ineligible.
[781C D] 778 3.
In the circumstances, for the purposes of the Review Selection Committee to be convened, the zone of considera tion will be as if the meeting was held on March 16, 1989.
The actual number of vacancies which will have to be consid ered is 11.
[781E]


Input:
iminal Appeal No. 25 of 1954.
Appeal under Article 134(1) (c) of the Constitution from the judgment and order dated the 12th January 1954 of the Patna High Court in Criminal Miscellaneous Case No. 10 of 1953.
M. C. Setalvad, Attorney General of India and Mahabir Prasad, Advocate General of Bihar (Balbhadra Prasad Sinha and P. G. Gokhale, with them) for the appellant.
Purshottam Prikamdas, (R. Patnaik, with him) for the respondent.
November 8.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with certificate under article 134(1)(c) of the Constitution arises out of an application under section 2 of the Contempt of Courts 121 956 Act (XXXII of 1952) and section 8 of the (XXXVII of 1850) read with article 227 of the Constitution filed by the respondent against the appellant in the High Court of Judicature at Patna and raises an important question as to whether the Commissioner appointed under Act XXXVII of 1850 is a Court.
The respondent is a Member of the Bihar Civil Service (Executive Branch).
The State Government received reports to the effect that the respondent bad been guilty of serious misconduct and corrupt practices in the discharge of his official duties while employed as Sub Divisional Officer at Aurangabad and they accordinly decided that an inquiry into the truth of.
the various charges against him should be made under the provisions of the (Act XXXVII of 1850, hereinafter referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional District and Sessions Judge, Gaya, and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry.
Gaya was fixed as the venue of the inquiry and the State Government also ordered that, during the pendency of the inquiry, the respondent will remain under suspension.
The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra temporary post of Additional District and Sessions Judge was created by the Government for the period Mr. Saran was occupied with the inquiry.
The appointment was made on the 2nd June 1952 and it was expected that Mr. Saran would be able to complete the inquiry during a period of three months.
The respondent, however, adopted dilatory tactics.
He made various representations to the Government, one on the 6th June 1952 demanding that a Judge of the High Court be appointed as Commissioner under the Act to make the inquiry against him and that inquiry be made at Patna and not at Gaya, another on the 10th July 1952 protesting against the appointment of Mr. Saran 957 as Commissioner to hold the inquiry against him and demanding that a ' confirmed District and Sessions Judge be appointed as Commissioner in his place, and ' a third on the 17th November 1952 in which he requested the Government to appoint three Commissioners instead of one for holding the inquiry against him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to reimburse other incidental expenses to be incurred by him.
All these representations were turned down by the Government.
Being thus thwarted in his attempts to put off the inquiry on some pretext or the other, the respondent tried to evade the same and failed and neglected to reply to the queries made from him by the Commissioner.
The Commissioner also could not communicate to him the orders passed by him from time to time because the respondent did not stay at the headquarters and did not leave his proper address for communication either at Gaya or at Motihari.
On the 24th November 1952 the Commissioner passed an order calling upon the parties to attend the hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this order to the appellant for communication to the respondent.
The District Magistrates of Champaran and Gaya who were requested to serve a true copy of the order upon the respondent could not do so as he was available neither at Motihari nor at Gaya and it was with great difficulty that he could be traced at Patna and the order served upon him.
On the 18th December 1952, the Commissioner passed another order recording that he was feeling great difficulty in contacting the respondent and in communicating his orders to him.
He observed that this was a highly undesirable state of affairs and that it was necessary that his orders should be communicated to the res pondent as early as possible.
A copy of this order was forwarded by the Commissioner to the appellant along with his letter dated the 20th December 1952 for information and doing the needful.
The appellant thereafter wrote the letter complained against to 958 the Commissioner on the 26th December 1952 being D.O. No. II/3C 306/52A 11614 which ran as under: "Dear Mr. Saran, I am desired to refer to your memo No. 8266 dated the 26th November 1952 and to say that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and delay the progress of the inquiry against him.
I am to request you to be vigilant against such tactics adopted by Mr. Narayan.
Yours sincerely, (Sd.) B. N. Sinha".
The Commissioner acknowledged receipt of this letter by his D.O. letter No. 244, dated the 5th January 1953 stating that he would not allow the respondent to adopt any dilatory tactics and delay the progress of the inquiry against him.
On the 2nd February 1953, the respondent filed a petition before the Commissioner stating inter alia that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and prayed for an adjournment of the inquiry.
He also prayed for starting a contempt of Court proceeding against the appellant but the Commissioner rejected both his prayers.
The order which was passed by the Commissioner on these applications may as well be set out in extenso inasmuch as it has a bearing on the question whether the appellant was guilty of contempt of Court for having addressed the letter complained against to him: "3 2 53.
Another point raised in the first petition of the accused was that Mr. B.N. Sinha, Deputy Secretary to Government in addressing his D.O. letter No. 11614, dated the 26th of December, 1952, was guilty of contempt, because he had interfered in my judicial discretion.
I do not find anything in this letter from which it can be inferred that the author of the letter intended to influence me in the exercise of my judicial function.
This letter was sent to me in reply to my memo No. 8266 dated 26 11 1952 whereby I had forwarded a copy of my order dated 24 11 1952 for communication to Mr. Narayan.
Mr. 959 B.N. Sinha wrote in his letter dated the 26th of December 1952 that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and to delay the progress of the inquiry.
Now it is to be noted that Mr. Narayan in paragraph 11 of his petition has himself charged the State Government for delaying the inquiry and thereby causing harassment to him.
Therefore, it is obvious that both parties, that is, the State and the accused are anxious that the inquiry should be expedited so what Mr. B.N. Sinha meant by writing the D.O. was that the inquiry should be expedited.
This cannot by any stretch of imagination be construed to mean that the aforesaid officer in any way tried to influence me in the discharge of my judicial functions.
For these reasons I rejected the two prayers contained in the first petition of Mr. J. Narayan".
The respondent thereafter started proceedings in, contempt against the appellant in the High Court of Judicature at Patna.
A Rule was issued by the High Court against the appellant which was heard and finally disposed of on the 12th June 1954.
The High Court was of the opinion that the Commissioner appointed under Act XXXVII of 1850 was a Court, that the Court was subordinate to the High Court, that the letter complained against amounted to a contempt of Court and that the appellant was guilty of such contempt.
It accordingly sentenced the appellant to pay a fine of Rs. 250 and in default to undergo simple imprisonment for a period of one month.
The appellant obtained a Certificate under Article 134(1), (e) of the Constitution from the High Court.
The Certificate was, however, limited to the question as to whether the Commissioner appointed under the Act is a Court.
At the hearing before us, the appellant filed a petition for urging additional grounds which included inter alia the ground that the High Court erred in holding that the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the for the mere reason that its orders are open to be reviewed 960 judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that the letter complained against tended to interfere with or obstruct the course of justice and constituted contempt of Court.
The learned Attorney General for the appellant contended in the first instance that the Commissioner appointed under the Act is not a Court.
He next contended that even if he is a Court, he is not a Court subordinate to the High Court within the meaning of the .
He lastly contended that the letter complained against did not tend to interfere with or obstruct the course of justice and did not constitute contempt of Court.
Prior to the enactment of the , there was in existence in India the Contempt of Courts Act, 1926 (XII of 1926).
The various States also had their corresponding enactments.
The Contempt of Courts Act, 1926 (XII of 1926) and the corresponding enactments in the States of Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan and Travancore Cochin and the Saurashtra Ordinance II of 1948 were repealed by the and a uniform Act to define and limit the powers of certain Courts in punishing contempts of Courts was enacted which extended to the whole of India except the State of Jammu and Kashmir.
In section 2 of the Act, "High Court" was defined as meaning the High Court for a Part A State or a Part B State and including the Court of the Judicial Commissioner in a Part C State.
Section 3 of the Act enacted: "3.
(1) Subject to the provisions of sub section (2) every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself.
(2) No High Court shall take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an 961 offence punishable under the Indian Penal Code (Act XLV of 1860)".
The word "Court" was not defined in the Act and ' the expression "Courts subordinate to the High Courts" would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union.
It would be relevant, however, to notice the definitions of "Court" available elsewhere.
Coke on Littleton and Stroud defined the word "Court" as the place where justice is judicially administered.
According to Stephen, "In every Court, there must be at least three constituent parts the actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy".
Section 3 of the Indian Evidence Act (I of 1872) defines "Court" as including all Judges and Magistrates, and all persons, except arbitrators.
legally authorised to take evidence.
This definition, however, has been held to be not exhaustive but framed only for the purpose of Indian Evidence Act and is not to be extended where such an extension is not warranted.
Sections 19 and 20 of the Indian Penal Code (Act XLV of 1860) define the words "Court" and the "Court of Justice" as under: "Section 19.
The word 'Judge ' denotes not only every person who is officially designated.
as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
962 Section 20.
The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially".
The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.
The Privy Council in the case of Shell Co. of Australia vs Fedral Commissioner of Taxation(1) thus defined "Judicial Power" at page 295: "Is this right? What is "judicial power"? Their Lordships are of opinion that one of the best definitions is that given by Griffith, C. J. in Huddart, Parker & Co. vs Moorehead(2) where he says: "I am of opinion that the words judicial power ' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action".
Their Lordships further enumerated at page 297 certain negative propositions in relation to this subject: "1.
A tribunal is not necessarily a Court in this strict sense because it gives a final decision; 2.
Nor because it hears witnesses on oath; 3.
Nor because two or more contending parties appear before it between whom it has to decide; 4.
Nor because it gives decisions which affect the rights of subjects; 5.
Nor because there is an appeal to a Court; 6.
Nor because it is a body to which a matter is referred by another body.
See Rex vs Electricity Commissioners(3)" (1) (2) ; , 357.
(3) 963 and observed at page 298: "An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called.
Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of Judicial power".
The same principle was reiterated by this Court in Bharat Bank Limited vs Employees of Bharat Bank Ltd.(1) and Maqbool Hussain vs The State of Bombay(1) where the test of a judicial tribunal as laid down in a passage from Cooper vs Wilson(1) was adopted by this Court: "A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (I) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and, often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law".
Maqbool Hussain 's case, above referred to, was followed by this Court in section A. Venkataraman vs The Union of India and, Another(4) where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement.
It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are (1) ; (2) (1953] S.C.R. 730.
(3) , 340.
(4) ; 122 964 the essential tests of a judicial pronouncement.
It was, however, urged by Shri Purshottam Tircamdas for the respondent that the word "Court" should not be limited to a Court of Justice or a Court of law but should be construed in a wide sense, including within the connotation, other Courts which, though not Courts of Justice, were nevertheless Courts according to law and be relied upon a decision of the Court of Appeal in England in Royal Aquarium and Summer and Winter Garden Society Ltd. vs Parkinson(1) and the observations of Fry, L.J. at page 446 therein: "I do not desire to attempt any definition of a "court".
It is obvious that, according to our law, a court may perform various functions.
Parliament is a court.
Its duties as a whole are deliberative and legislative: the duties of a part of it only are judicial.
It is nevertheless a court.
There are many other courts which, though not Courts of Justice, are nevertheless courts according to our law.
There are, for instance, courts of investigation, like the coroner 's court.
In my judgment, therefore, the existence of the immunity claimed does not depend upon the question whether the subject matter of consideration is a Court of Justice, but whether it is a Court in law.
Wherever you find a Court in law, to that the law attaches certain privileges, among which is the immunity in question".
The question involved in that case was whether the defendant was entitled to absolute immunity from action for anything done by him while performing his duty as a member of the County Council in dealing with the applications for licences for music and dancing.
It was contended on behalf of the defendant that he was exercising a judicial function when he spoke the words complained of and therefore was entitled to absolute immunity in respect of anything he said.
The argument that "wherever you find a Court in law, to that the law attaches certain privileges among which is the immunity in question" was used on behalf of the defendant and Fry, L. J. dealt with the same as under at page 447: 965 "It was said that the existence of this immunity is based on considerations of public policy, and that, as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach.
It seems to me that the sense in which the word "judicial" is used in that argument is this: it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality which characterize proceedings in Courts of Justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a Court.
Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially.
It would apply to assessment committees, boards of guardians, to the Inns of Court when considering the conduct of one of their members, to the General Medical Council when considering questions affecting the position of a medical man, and to all arbitrators.
Is it necessary, on grounds of public policy, that the doctrine of immunity should be carried as far as this? I say not.
I say that there is ample protection afforded in such cases by the ordinary law of privilege.
I find no necessity or propriety in carrying the doctrine so far as this argument requires".
Lord Esher, M. R. expressed himself as follows while dealing with this argument at page 442: "It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action.
The ground of that rule is public policy.
It is applicable to all kinds of Courts of Justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.
In the case of Dawkins vs Lord Rokeby(1) the doctrine was extended (1) L.R. 8 Q.B. 255; , 966 to a military court of inquiry.
It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially, that is to say, in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it.
This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act.
Then can it be said that a meeting of the county council, when engaged in considering applications for licences for music and dancing, is such a tribunal? It is difficult to say who are to be considered as judges acting judicially in such a case".
The case of Dawkins vs Lord Rokeby(1) was a case where immunity was claimed by a witness who had given evidence before a military Court of inquiry.
The case went to the House of Lords and the Lord Chancellor, in his speech at page 754, in observed: "Now, my Lords, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army".
Both these cases, the one before the Court of Appeal and the other before the House of Lords, were concerned with the extension of the principle of immunity of members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principle of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry.
The extension of the (1) L.R. 8 Q.B. 255; 967 immunity to such tribunals or bodies would not, however, constitute them Courts of Justice or Courts of law.
The position is thus summarised in the following passage in Halsbury 's Laws of England, Hailsham Edition, Volume 8, page 526: "Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees,, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when con sidering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man".
We must, therefore, fall back upon the tests laid down above for determining what is a Court strictly so called within the connotation of the term as used in the .
It would be appropriate at this stage to note the relevant provisions of the (XXXVII of 1850) which would fall to be considered for determining whether the Commissioner appointed under the Act is a Court or not.
The Act was passed for regulating inquiries into the behaviour of public servants and the preamble runs: "Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable from their appointments without the sanction of Government, and to make the same uniform throughout India; It is enacted as follows: " Section 2 requires the articles of charges to be drawn out and a formal and public inquiry to be ordered whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any such person.
The inquiry may be committed under section 3 either to the Court, 968 Board or other authorities to which the person accused is subordinate or to any other person or persons specially appointed by the Government, Commissioners for the purpose.
Sections 4 to 7 contain provisions in regard to the conduct of the prosecution and section 8 prescribes the powers of the Commissioners.
This section has been particularly relied upon as constituting the Commissioners a Court, and runs as under: "Section 8.
The commissioners shall have the same power of punishing contempts and obstructions to their proceedings, as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898, and shall have the same powers for the summons of witnesses, and for compelling the production of documents, and for the discharge of their duty under the commission, and shall be entitled to the same protection as the Zila and City Judges, except that all process to cause the attendance of witnesses or other compulsory process, shall be served through and executed by the Zila or City Judge in whose jurisdiction the witness or other person resides, on whom the process is to be served, and if he resides within Calcutta, Madras or Bombay, then through the Supreme Court of Judicature thereto.
When the commission has been issued to a Court, or other person or persons having power to issue such process in the exercise of their ordinary authority, they may also use all such power for the purposes of the commission".
Section 9 prescribes a penalty for disobedience to process issued as aforesaid for the purpose of the commission and sections 10 to 20 prescribe the procedure to be followed in the conduct of the inquiry.
It ,may be noted that this procedure is assimilated as far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in order to clear himself of the charges levelled against him.
Sections 21 and 22 lay down the functions of the Commissioners in regard to the report to be made by them to the Government of their proceedings under the commission and the powers of 969 the Government to pass final orders on such reports.
These sections have an important bearing on the question before us and they enact: "Section 21.
After the close of the inquiry the commissioners shall forthwith report to Government their proceedings under the commission, and shall send with the record thereof their opinion upon each of the articles of charge separately, with such observations as they think fit on the whole case.
Section 22.
The Government, on consideration of the report of the commissioners, may order them to take further evidence, or give further explanation of their opinions.
It many also order additional articles of charge to be framed, in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges.
When special commissioners have been appointed, the Government may also, if it thinks fit, refer the report of the commissioners to the Court or other authority to which the person accused is subordinate, for their opinion on the case; and will finally pass such orders thereon as appear just and consistent with its powers in such cases".
These provisions were considered by this Court in the case of S.A. Venkataraman vs The Union of India and Another(1).
The question that arose for consideration there, was whether an inquiry made and concluded under the Act amounted to prosecution and punishment for an offence as contemplated under article 20(2) of the Constitution.
Articles of charge bad been framed against the petitioner in that case and evidence had been led both by the prosecutor and by the defence and witnesses on both sides were examined on oath and cross examined and re examined in the usual manner.
The Commissioner bad found, on a consideration of the evidence, that some of the charges had been proved against the petitioner and had submitted a report to that effect to the Government.
The President had accepted the opinion of the Commissioner and, in view of the findings on (1) ; 970 the several charges arrived at by the latter, was pro visionally of the opinion that the petitioner should be dismissed.
Opportunity was given to the petitioner under Article 311(2) of the Constitution to show cause against the action proposed to be taken in regard to him and after considering his representation and after consultation with the Union Public Service Commission, the President finally decided to impose the penalty of dismissal upon him and he was accordingly dismissed.
After his dismissal, the police submitted a charge sheet against him before the Special Judge, Sessions Court, Delhi, charging him with offences under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that summons were issued by the learned Judge directing the petitioner to appear before his Court.
The petitioner thereupon challenged the legality of this proceeding in a writ petition contending, that the proceedings were without jurisdiction inasmuch as they amounted to a fresh prosecu tion, for offences for which he had been prosecuted and punished already.
While considering whether under the circumstances there had been a violation of the fundamental right of the petitioner under Article 20(2) of the Constitution, this Court, scrutinised the provisions of the Act and the position of the Commissioner appointed, thereunder.
Justice Mukherjea, as he then was, delivered the judgment of the Court and observed at page 1159: "As the law stands at present, the only purpose, for which an enquiry under Act XXXVII ' of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under article 311(2) of the Constitution.
An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses.
It is a matter of convenience merely and 971 nothing else.
It is against this background that we will have to examine the material provisions of the of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence."; and at page 1160: "A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so.
The subject matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses.
The mere fact that the word "prosecution" has been used, would not make the proceeding before the Commissioner one for prosecution of an offence.
As the Commissioner has to form his opinion upon legal evidence, be has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents.
These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry.
This is conclusively established by the provisions of sections 21 and 22 of the Act.
At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made.
This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement.
The opinion is not even binding on the Government.
Under section 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion.
When Special Commissioners are appointed, their report could be referred to the court or other authority 123 972 to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take".
The Court was no doubt concerned in that case with finding whether the inquiry before the Commissioner was tantamount to a prosecution of the petitioner.
While considering the same, however, the position of the Commissioner was discussed and the conclusion to which the Court came was that he was a mere fact finding authority, that the report made by the Commissioner to the Government was merely his expression of opinion and it lacked both finality and auth oritativeness which are the essential tests of a judicial pronouncement.
This conclusion is sufficient to establish that the Commissioner appointed under the Act was not a Court and his report or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality.
We are also of the same opinion.
Apart from the above considerations which weighed with the Court in that case, we have also the provisions of section 8 of the Act itself which go to show that the Commissioners are given certain powers 'of the Civil and Military Courts in regard to punishing contempts and obstruction to their proceedings, summoning of witnesses, compelling the production of documents and for service of their process as also the same protection as Zila and City Judges.
The very fact that this provision had got to be enacted shows that the position of the Commissioners was not assimilated to that of Judges and that they did not constitute Courts of Justice or Courts of law but were mere fact finding tribunals deriving whatever powers they could exercise under the very terms of the Act which created them.
The power of punishing contempts and obstruction to their, proceedings as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898 was also similar in its nature and the very nature and extent of the power indicated that they were not Courts in the ordinary sense of the term.
No such provision would have been 973 uted Courts of Justice or Courts of law and it is no argument to say that these provisions were enacted even though they were not strictly necessary merely for the sake of abundant caution or clarification of the position.
We are of the opinion that the Commissioner appointed under the Act, having regard to the circumstances above set out, does not constitute a Court within the meaning of the term as used in the .
Our attention was, however, drawn by, Shri Purshottam Tricamdas to a decision of a Division Bench of the Punjab High Court in Kapur Singh vs Jagat Narain(1).
That was a case directly in point and on all fours with the case before us.
The learned Chief Justice of the Punjab High Court bad been appointed a Commissioner under the Act in the matter of an inquiry against Sardar Kapur Singh, I.C.S., and Lala Jagat Narain, the editor, printer and publisher of ail Urdu Daily newspaper published at Jullundur called The Hindu Samachar, was called upon to show cause why he should not be punished under section 3 of with regard to a leading article which appeared in his name in the issue of the paper dated the 12th March 1951.
A preliminary objection was taken on his behalf that the Court had no jurisdiction to take proceedings against him for contempt and the argument was that the Court of the Commissioner appointed to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court.
Mr. Justice Falshaw who delivered the judgment of the Court observed at page 50 in connection with this argument: "The itself seems clearly to indicate that a Commissioner or Commissioners appointed under the Act constitute a Court as they are given all the powers of a Court regarding the summoning of witnesses and other matters, and the only ground on which the learned counsel for the respondent could base his argument that the Commissioner does not constitute a Court was that he can (1) A.I.R. 1951 Punjab 49. 974 give no final decision, but merely has to draw up a report giving his findings on the charge or charges against the respondent, which is to be forwarded to the Government.
In my opinion, however, this fact alone is not sufficient to make the Commissioner or Commissioners any thing other than a Court and it is to be noted that the definition of Court in section 3, Evidence Act, is very wide indeed as it reads: " 'Court ' includes all Judges and Magistrate and all persons, except arbitrators, legally authorised to take evidence".
The learned Judges there relied upon the definition of Court given in section 3 of the Indian Evidence Act which, as has already been noted, is framed only for the purposes of the Act and is not to be extended where such an extension is not warranted.
This definition does not help in the determination of the question whether the Commissioners appointed under the Act constitute a Court and the attention of the learned Judges was not drawn to the position that finality and authoritativeness are the essential tests of a judicial pronouncement.
We are of the opinion that the decision reached by the learned Judges of the Punjab High Court in that case was wrong and cannot help the respondent.
Our attention was also drawn to another decision of the Nagpur High Court in M. V. Rajwade vs Dr. section M. Hassan(1).
The question which came to be considered by the Court in that case was whether a commission appointed under the was a, Court within the meaning of section 3 of the , and, while considering the provisions of that Act, the learned Judges of the Nagpur High Court incidentally considered the provisions of the .
They rightly observed that "the term 'Court ' has not been defined in the .
The Act, however, does contemplate a 'Court of Justice ' which as defined in section 20, Indian Penal Code, 1860, denotes 'a judge who is empowered by law to act judicially '.
The least that is required of a Court is the capacity to deliver a "definitive judg (1) A.I.R. 1954 Nag.
975 ment" and unless this power vests in a tribunal in any particular case, the mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court", and came to the conclusion that the commission appointed under the is not a Court within the meaning of the Contempt of 'Courts Act, 1952.
The learned Judges were merely considering the provisions of the and were not concerned with the construction of the provisions of the and whatever observations they made in regard to the provisions of the latter Act by way of comparing the same with the provisions of the former which they were there considering would not have the effect of putting on the provisions of the latter Act a construction which would be any avail to the respondent before us.
The ratio which was adopted by the learned Judges was quite correct but it appears that they digressed into a consideration of the provisions of the in order to emphasize the character and position of the commission appointed under the even though it was not strictly necessary for the purpose of arriving at their decision, though it must be mentioned that while discussing the nature and function of the commission they expressed themselves correctly as under: "The Commission governed by the is appointed by the State Government "for the information of its own mind", in order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice & equity" in ordering a departmental enquiry against its officers.
It is, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature".
We are of the opinion that neither of these cases which have been relied upon by Shri Purshottam Tricamdas is of any help to the respondent or detracts 976 from the true position as we have laid down above.
The only conclusion to which we can come on a consideration of all the relevant provisions of the Act is that the Commissioner appointed under the Act is not a Court within the meaning of the .
In view of the conclusion reached above, we do not think it necessary to go into the question whether the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the .
Nor do we think it necessary to express any opinion as to whether the letter complained against constituted a contempt of Court.
We may, however, note in passing that the circum stances under which the letter came to be addressed by the appellant to the Commissioner, the terms thereof and the order which was passed by the Commissioner on the application made by the respondent to proceed against the appellant in contempt on date the 2nd February 1953 lend support to the argument which was advanced on behalf of the appellant that the letter complained against did not constitute contempt of Court.
The result, therefore, is that the appeal will be allowed, the order passed against the appellant by the Court below will be set aside and the original Criminal Miscellaneous Petition No. 10 of 1953 filed by the respondent in the High Court of Judicature at Patna will stand dismissed.
The fine if paid will be refunded.

Output:
Held, that a Commissioner appointed under the (XXVII of 1850) is not a court within the meaning of the (XXXII of 1952).
Shell Co. of Australia vs Federal Commissioner of Taxation ([1931] A.C. 275), Huddart,Parker & Co. vs Moorehead ([1909] ; , Rex vs Electricity Commissioners ([1924] 1 K.B. 171), Bharat Bank Limited vs Employees of Bharat Bank Ltd. ([1950] S.C.R. 459), Maqbool Hussain vs The State of Bombay ([1953] S.C.R. 730), Cooper vs Wilson ([1937] 2 K.B. 309), section A, Venkataraman vs The Union of India and Another ([1954] S.C.R. 1150), Royal Aquarium and Summer and Winter Garden Society Ltd. vs Parkinson ([1892] 1 Q.B. 431), Dawkins vs Lord Rokeby ([1873] L.R. 8 Q.B. 265), Kapur Singh vs Jagat Narain (A.I.R. 1951 Punjab 49) and M. V. Bajwade vs Dr. section M. Hassan, (A.I.R. , referred to.