High Court of Punjab and Haryana Through R. G v Ishwar Chand Jain and Another
Supreme Court of India

26 April 1999
Appeal (Civil) 2465 of 1999
The Judgment was delivered by : D. P. Wadhwa, J.
Leave granted.
Delay condoned in S.L.P. (C) No. 1830 of 1999.
1.  High Court of Punjab and Haryana is aggrieved by the judgment dated May 22, 1998 of a Division Bench of its own High Court on judicial side setting aside the order of the State of Haryana, Respondent No. 2, pre-maturely retiring the first respondent Ishwar Chand Jain (hereinafter referred to as "Jain"), a member Of the superior judicial service of the State of Haryana on the recommendation of the High Court.
2.  Jain, a practising advocate of 14 years standing, joined the superior judicial service of the State of Haryana after his selection by the High Court. He joined service on May 2, 1983 and under Rule 10 of the relevant rules put on probation for a period of two years. He was posted at Hissar as Additional District and Sessions Judge. In The year 1983-84 inspection of his court was made by the inspecting judge of the High Court, who graded his work as "B-satisfactory". Full Court of the High Court reduced this grading to "B-average/satisfactory". For the subsequent year 1984-85 Jain was posted at Narnaul. The inspecting judge graded him "B+(Good)". Full Court of the High Court, however, graded it to "C-Below Average". While the inspecting judge considered "knowledge of law and procedure" of the officer as "good", High Court recorded it as "Poor". Against the column "If the Officers was Industrious and prompt in disposal of the cases and has he coped effectively with heavy work" inspecting judge gave him the remarks as "yes", High Court said it is "No". Against the column "whether the judgments'and orders were well written and clearly expressed", the inspecting judge said "Yes+B(Good)". There is no such column in the form of recording ACR by the High Court. Inspecting judge said officer was an efficient judicial officer and had maintained the judicial reputation for honesty and impartiality. According to High Court there was "scope for improvement", About his attitude towards members of the Bar and the public the inspecting judge recorded that "some members of the Bar were complaining about his unaccommodating nature." High Court used this entry to say "scope for improvement".
3.  In the Full Court meeting of the High Court held on March 21, 1985 the High Court resolved that the work and conduct of Jain was not satisfactory and that his services deserved to be dispensed with forthwith. It made recommendation to the State Government for issuing necessary orders in mis respect. Extract of the proceedings of Pull Court meeting of the High Court held on March 21, 1985 is as under
"The matter regarding Shri I.C. Jain, Additional District and Sessions Judge, was considered. In view of the fact that his period of probation of two years is going to expire on 2nd May, 1985 his performance as Additional District and Sessions Judge was reviewed. It was decided on further consideration mat during this period, his work and conduct was not satisfactory and his services deserve to be dispensed with forthwith. Consequently, a recommendation be made to the State Government for issuing necessary orders in this respect."
4.  Jain challenged the recommendation of the High Court terminating his probation by filing a writ petition in the High Court (CWP No. 2213 of 1986). A Division Bench of the High Court by its judgment dated December 9, 1986 dismissed the same. The Division Bench also observed that the Governor had since accepted the recommendation of the High Court dispensing with the services of Jain in terms of Rule 10(3) of me Rules. Then it directed that formal order in that regard shall be issued by the State Government without further delay. Against that Jain came to this Court seeking leave to appeal. This Court granted him leave and by judgment dated May 26, 1988 set aside the judgment of the High Court This Court held that the modification of the ACR by the Full Court for the year 1984-85 from "B+Good" to " C- Below Average" was based on no material and unsustainable in law. The result was that Jain was put back in service. He joined his duty on June 9,1988. He was, however not granted consequential benefits on his reinstatement and he approached this Court again by filing an Interlocutory Application, which was allowed by order dated September 11, 1988 and the original seniority of Jain was restored by the High Court.
5.  ACRs of Jain for the years 1985-86, 1986-87 and 1987-88 were not written because he was not in service during the period. For the year 1988-89 the inspecting judge graded him "B+(Good)" by his report dated March 21, 1989. Full Court the High Court, however, graded it as "B(Satisfacotry)". After being reinstated Jain was posted at various places in the State. His complaint was also that he was entitled to be posted as District and Sessions Judge and even Legal Remembrancer to the State, which was encadered post, yet these were not given to him. However, this is not relevant for our purpose and we need not go into the grievance of Jain.
6.  For the year 1991 Jain was posted as Additional District and Sessions Judge at Jind. It is alleged that during his tenure at Jind several complaints were received from members of the Bar relating to his judicial work. On the basis of the complaint Full Court of the High Court directed the District and Sessions Judge (Vigilance), Haryana to conduct an inquiry into the allegations levelled against Jain. District and sessions Judge (Vigilance) submitted his Inquiry Report on April 10,1992, which was placed before the Full Court for necessary action . It is not that complaints were made by the Bar of the Jind District and these were made only by one advocate Shri K.C. Sharma. They were in all ten complaints. These Were thoroughly gone into by the Inquiry Officer and his conclusion is reproduced as under :
"Out of the ten cases mentioned herein before, bias of the Presiding Officer is prima facie proved in cases mentioned at serial Nos. 2,4,5,6,8 and 10. From these eases, nothing can be inferred about any other consideration having played part in delivering these judgments. Thus, as far as these complaints are concerned, these do not make out prima facie case against the Presiding Officer, except that it does show element of bias against the complainant. I would, therefore, suggest mat the complaints be filed but the directions be given to the District Judge to transfer all the cases of the complainants from the court of Shri Jain and fix them either before himself or other Additional District and Sessions Judge. In future also he should not send any case of the complainant to the Court of Shri Jain till he remains posted in that District or any other orders deemed fit."
7.  After considering the conclusion aforesaid in the Inquiry Report Full Court in its meeting held on April 24, 1992, decided that Jain be charge-sheeted and judicial work be withdrawn from his eoort. Relevant extract of the minutes of the Full Court meeting is as under :-
"6 ' 8. The matter regarding preliminary enquiry report submitted by Shri B.L. Gulati, District and Sessions Judge (Vig) Haryana with regard to the complaint dated 26.12,91 made by Sh. K.C. Sharma Advocate of Jind and some other matters concerning Sh, I.C. Jain, Additional District ' Sessions Judge, Jind and that of preliminary enquiry report dated 10.4.92 submitted by Sh. B.L. Gulati, DJ.V. (Haryana) on the complaints dated 17.8.91, 28.8.91, 29.8.91, 3.9.91 and 22.10.91 made by Shri Krishan Chander Sharma, Advocate, Jind was considered along with the note of the Registrar and it was decided that the Officer be charge-sheeted and judicial work be withdrawn from his court,"
8.  A charge-sheet was served upon Jain on July 29, 1992 and he was called upon to submit his-reply thereto. His reply was considered by the Full Court and was found to be wholly urlsatisfactory. It was, therefore, directed that a departmental inquiry be conducted against Jain and that in (he meantime he be placed under suspension. This was by resolution of the Full Court meeting dated September 28, 1992. Extract of this meeting of Full Court is as under :-
"13 The matter regarding reply to the charge-sheet submitted by Shri I.C. Jain, Additional District ' Sessions Judge, Jind was considered along with the note of the Registrar and the same was found unsatisfactory.
It was accordingly decided that a regular departmental enquiry be held against him. Hon'ble Mr. Justice V.K. Jhanji and Shri H.S, Gill, Advocate, were appointed Enquiry Officer and Presenting Officer respectively.
It was further decided that Shri I.C. Jain be placed under suspension forthwith."
9.  Order placing Jain under suspension is dated October 3, 1992. By order dated April 8, 1993 headquarters of Jain were shifted from Jind to Chandigarh and he was informed of this decision of the High Court by communication dated May, 8 1993. There is another episode that in spite of the order Jain did not shift his headquarters from Jind to Chandigarh and did not vacate the Government accommodation allotted to him at Jind despite various directions issued to him in this regard from time to time. This, according to High Court, constituted an irresponsible behaviour, gross misconduct, disobedience of me orders and directions of the High Court and had amounted to acting in a manner unbecoming of a judicial officer, Second charge sheet dated May 12, 1995 on this account was also served on Jain. We are, however, not concerned with the second charge.
10.  There is no record of ACRs of Jain for the years 1989-90 and 1996-91. For the year 1991-92 the inspecting judge in the column "net result" recorded "Integrity Doubtful." As regards "Knowledge of law and procedure, industrious and promptness of disposal of cases, nature of the officer, writing of judgments" he gave him "Good B+-", As regards the attitude of the officer towards his superiors, subordinates and colleagues it was said "Not what it should be", and against the column 'Behaviour towards members of the Bar and the Public' remark was "Not Good" Against the column 'has he maintained judicial reputation for honesty and impartiality the inspecting judge recorded: "See note attached." This note is as under :-
"Note
This Officer does not enjoy the reputation which a judicial officer is expected to have. Many complaints regarding his poor reputation were received from Advocates and the members of the Bar. There are some complaints which now form the subject matter of the disciplinary proceedings against him; Sd/-
(Inspecting Judge) 251.92.
11.  High Court in its Full Court meeting, however, graded .the officer "C- integrity Doubtful" and recorded that his knowledge of law and other judicial qualification were just average and that he was not industrious and had not coped effectively with heavy work and was also not prompt in the disposal of the cases. Full Court said that the officer was not having reputation for integrity arid impartiality and further that his attitude towards the superior officers etc. and his behaviour towards the members of the Bar and the public was unsatisfactory. ACR for the year 1991-92 was written by the Full Court only on September 20, 1995 as will be presently seen. It was communicated to the officer on September 22, 1995.
12.  Meanwhile a meeting note was prepared by the registry of the High Court in respect of the retention in service of Jain beyond the age of 55 years. In this note it was pointed out that the date of birth of Jain was October 7, 1940 and he would be attaining the age of 55 years on the afternoon of October 6, 1995. His service were terminated w.e.f. December 30, 1986 and he was reinstated on June 9, 1988 in pursuance to the order of Supreme Court in Civil Appeal No. 811 of 1988 (arising out of SLP No. 15776 of 1986). He was placed under suspension w.e.f. October 3, 1992 in contemplation of disciplinary proceedings initiated against him which were still pending. With this note extracts of the relevant rule i.e. cl. (d) of Rule 3.26 of the Punjab Civil Services Rules Volume I Part I (as applicable to the sate of Haryana). instructions regarding retention in service of class I and class II officers beyond the age of 55 years issued by the State of Haryana by its letter dated September 24, 1974 relevant guidelines prescribed by the High Court as contained in its letter dated September 20, 1979 and the precis of the confidential remarks on the work and conduct of the officer, were attached. As per direction of the Chief Justice of he High Court the matter was placed before the Full Court. In the meeting of the Full Court held on September 20, 1995 consideration of the case of Jain (under suspension) for his retention in service beyond the age of 55 years was deferred it was resolved to recorded the annual confidential report of the officer for the year 1991-92 and at the same time graded it as "C Integrity Doubtful".
Further note was prepared by the Registry on September 21 , 1995 for consideration of the Full Court meeting to be held on December 12, 1995. In this it was included the remark recorded by the High Court in me ACR of Jain for the year 1991-92. Full Court in its meeting on December 12, 1995 resolved to make recommendation to the Haryana Government to retire Jain forthwith by giving him three months" pay and allowances in lieu of notice. The resolution of the Full Court is as under :-
"6. The matter regarding retention in service of Sh. I.C. Jain (under suspension), a member of the Haryana Superior Judicial Service beyond the age of 55 years was considered along with the note of the Registrar and it was decided that in light of his annual confidential reports, recommendation be made to he Haryana Government that he be retired forthwith by giving him three months pay and allowances in lieu of notice as required by the rules as it would be in the public interest to do so. It was further decided to continue the enquiry against him for the limited purpose for imposing the cut on his retiral benefits."
13.  Further in its meeting on January 11, 1996 Full Court modified its earlier decision of December 12, 1995 in the following manner:-
"12. The modification of earlier Full Court decision dated 12 12.1995 regarding retention in service beyond the age of 55 years of Sh. Ishwar Ghand Jain (under suspension), a member of Haryana Superior Judicial Service was taken up along with the report and the earlier Full Court decision was substituted as indicated below:-
(i) That in light of his annual confidential reports, recommendation be made to the Haryana Government to retire him forthwith by giving him three months pay and allowances in lieu of notice as required by the rules as it would be in the public interest to do so.
(ii) That in view of the above recommendation, the departmental proceedings against shri Ishwar Chand Jain be not proceeded with of the present.
(iii) That in the event of acceptance of above recommendation of this Court by the State Government, the period of suspension of Sh. Ishwar Chand and the departmental enquiries against him shall be deemed to have been dropped from the date of acceptance of the recommendation of this Court regarding compulsory retirement of Shri Ishwar Chand Jain."
14.  When the communication was received from the High Court by the State Government recommending the pre-mature retirement of the appellant, a letter dated April 2, 1996 was sent to the High Court seeking clarification as to whether a suspended official could be compulsorily retired. High Court sent its reply on April 16, 1996 stating that the retirement of Jain was made on the biasis of an overall assessment of the service record as reflected in his confidential reports and not on the basis of the departmental inquiry. Thereafter State Government issued letter dated May 10, 1996 retiring the appellant. We may reproduce this order, which was impugned by Jain in the High courts
"ORDER
Whereas on the recommendation of he Punjab ' Haryana High Court, it has been decided by the State Government to retire sh. Ishwar Chand Jain, a member of the Haryana Superior Judicial Service (under suspension) from service in public interest.
2. Now, therefore, in terms of the provisions contained in cl. (d) of rule 3.26 of Punjab Civil Services Rules, Volume I, Part-I read with clause A(c) of rule 5.32 of Punjab Civil Service Rules, Volume II, as applicable to the Sate of Haryana, the Governor of Haryana hereby orders the retirement of Sh. Ishwar Chand Jain, Additional District ' Sessions Judge (under suspension) from service with effect from the date of communication to him of this order on payment of three months salary and allowances in lieu of the period of notice.
Sd/-
(M.C. Gupta) Chief Secretary to
Dated Chandigarh Government, Haryana
10th May, 1996."
15. We may as well reproduce the relevant the rules mentioned in the order-
"Rule3.26(a)
Except as otherwise provided in other clause of this rule, every Government employee shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He must not be retained in service after the age of compulsbry retirement except in exceptional circumstances with the sanction of the competent authority in pubic interest, which must be recorded in writing ;
"Provided that the age of compulsory retirement for the members of the Judicial services and Class IV Government employees shall be sixty years"
XXX XXX XXX
(d) The appointing authority shall if it is of the opinion that it is in the public interest so to do. have the absolute right to retire any Government employee, other than Class IV Government employee by giving him notice of not less than three months in writing or three months" pay arid allowances in lieu of such notice :-
(i) If he is in Class I or Class II service or post arid had entered Government service, before attain ing the age of thirty five years, after he has attained the age of fifty years ; and
(ii) (a) If he is Class III service of Post, of
(b) If he is Class I or Class It Service or post and entered Government service after attaining the age of thirty-five years-After he has attained the age of fifty five years
"Provided that in the case of a member of the Judicial Service, if he had entered Government service before or after attaining the age of thirty five years, his case for retention in service beyond the age of fifty-eight years, shall be considered before he attains such age.
The Government employee would stand retired immediately on payment of three months" pay and allowances in lieu of the notice period and will not be in service thereafter."
16. In the Full Court meeting in which decision was taken to make recommendation for pre-mature retirement of Jain Registry had submitted the precis of annual confidential remarks on the work and conduct of Jain as under :-
"(Appointed as AddI, District ' Sessions Judge, w.e.f, 2.5.l983 direct recruit from the Bar).
Year Remarks by the High
Court
1983-84 B(Average/Satisfactory
(In accordance with the meeting 1984-85 'C-Below Average' decision dated 21.3. l985, a recommendation was sent to the Haryana Government for 1985-86 No Scope dispensing with his services arid 1986-87 No Scope Judi. work from his court was 1987-88 No Scope also withdrawn. 1988-89 B- Satisfaotory 1989-90 B-Plus (Good)
(His services were dispensed 1990-91 Dispensed with with vide Haryana Governor's 1991-92 C-Integrity doubtful)
order dt. 30,1186"
(In view of Supreme Court orders dated 26,5.88 passed in Civil Appeal No. 81 ] of 88 arising out of S.L.P. 15776 of S6 Sh. I.C. Jain has been reinstated vide meeting decision dt. 2 638 and posted vide orders dt. 3.6.88 at Namaul).
(The Judicial work has been withdrawn vide letter dated 27.4.1992) (Placed under suspension vide this Court's Office order dt. 3.10.1992 pending departmental inquiry)."
17.  Now we may refer to the article of charges which were subject matters of departmental proceedings against Jain and in contemplation of which he was placed under suspension. There were five charges. First charge was that white acting as Motor Accident Claims Tribunal he in a revengeful spirit and with some ulterior motive had initially dismissed the claim petition when the petitioner therein did not accept the offer of Jain conveyed to him through his uncle that if the petitioner promised to pay half the claim amount Jain would allow his claim petition in full.
However, after two days when the petitioner threatened to make complaint against Jain he changed his decision from dismissal to allowing the petition and awarded Rs. 12,000 as compensation. Second charge was that while acting as Additional District and Sessions Judge, Jind changed his judgment with some ulterior motive. Third charge was that without awaiting the orders of the High Court he got shifted his official telephone from office to his residence and got STD facility thereon, thus committing financial irregularity in an irresponsible manner and being guilty of insubordination. Fourth charge related to seven land acquisition cases where it was alleged that with some ulterior motive he got deposited an amount of Rs. 2 laces in two banks at Delhi through the decree-holder, who belonged to Jind after obtaining their statements under the duress. Fifth charge related to the cases conducted by Shri K.C. Sharma, advocate, where it was alleged that he had shown vindictiveness and bias mind towards the advocate, which was highly objectionable and unbecoming of a judicial officer.
18.  On various dates inquiry proceedings were held and ultimately these proceedings came to be dropped. It is not that Jain was in any way responsible for any delay of inquiry proceedings. In between inquiry officer had also been changed by the Full Court. The Order by which the inquiry against Jain was dropped is dated February 2, 1996 and we reproduce the same as under :-
"Enquiry case of Mr. I.C. Jain Present : Mr. H.S. Gill, Presenting Officer I have been shown the extract from the Confidential proceedings of the meeting of the Hon'ble Judges held on 11th of January, 1996 at 3.00 p.m. The proceedings reveal that the Full Court has taken a decision that the departmental proceedings against Shri I.C Jain be not proceeded with for the present. It is in view of the decision first taken by the Full Court that in light of the annual confidential reports of Shri I.C. Jain, recommendation should be made to the Haryana Government to retire him forthwith by giving him three months pay and allowances in lieu of notice as required by the rules as it is in public interest to do so. That being the situation, enquiry against Shri I.C. Jain is dropped for the time being and would be revived if at all required to be so done:
In view of the above, bailable warrants issued against Jai Bhagwan so ordered on 10th of January, 1996, are recalled.
Sd/. (V. K. Bali, J)
February 2, 1996 Inquiring Authority.
By order dated May 29, 1996 suspension of Jain was also invoked. This order is as under :-
"ORDER Dated, Chandigarh the 29.5.1996
In supersession of this Court's order dated 3.10.92 placing Shri I.C. Jain, a member of Haryana Superior Judicial Services under suspension, Hon'ble the Acting Chief Justice and Judges have been pleased to revoke the said suspension order and to re-instate Shri I.C. Jain in service from the date of acceptance of the recommendation of this Court regarding the compulsory retirement Their Lordships have further been placed to order that his period Of suspension be treated as spent on duty.
BY ORDER OF HON"BLE THE ACTING CHIEF JUSTICE AND JUDGES.
Sd/-. B.L. Gulati REGISTRAR"
19.  Jain also represented against adverse entries in his ACRs. First he wanted certain records which was the basis of recording of adverse entries against him. He was informed that his request for supply of some documents had been declined by the Chief Justice. It was pointed out to us that against recording of the adverse entries of the year 1991-92 Jain filed another writ petition in the High Court which is perhaps still pending.
20.  We have reproduced the note attached to the ACR of Jain for the year 1991-92 prepared by the inspecting judge which is dated February 25, 1992. It is submitted before us (and there is no challenge to that) that the inspecting judge himself visited Jind only on March 16/17, 1992, That being so representations made to the inspecting judge at Chandigarh must have been received in writing and if orally then at least the names of the advocate, who came to Chandigarh, could have been mentioned and informed to Jain but this was not done.
21.  Jain challenged his pre-mature retirement on the ground that the action of the High Court and the Sate Government was arbitrary, malice in law and was in violation of the Punjab Civil Service Rules as applicable to Class I officers. He also pleaded that the impugned rule was ultra vires Arts. 14 and 16 of the Constitution inasmuch as it did not prescribe the minimum service which an officer must render before he could be retired from service pre-maturely. Then there was a challenge to pre-mature retirement on the ground that it was violative of Art. 311 of the Constitution as pre-mature retirement is punitive in character. High Court did not go into the question if the impugned rule 3.26(d) of the Punjab Civil Services Rules was violative of Arts. 14 and 16 of the Constitution and also that in any case the Rule was violated inasmuch as on account of non-payment of three months" pay and allowances to Jain. In the writ petition Jain had sought setting aside (i) adverse entries in the ACR against him for the year 1991-92, and (2) decision of the High Court taken in its Full Court meeting on December 12, 1995 recommending pre-mature retirement of Jain and consequently the impugned order dated May 10, 1995 of the State Government pre-maturely retiring him, he being a member of Haryana Superior Judicial Service.
22.  A Division Bench of the High Court speaking through G.S. Singhvi, J., in its well considered judgment, which is now impugned before us, set aside the order of pre-mature retirement of Jain on the ground that no inquiry consistent with Article 311, Haryana Civil Services (Punishment and Appeal) Rules, 1970 and principles of natural justice, had been conducted against him. It came to the conclusion that the decision to retire Jain was founded on the allegation of misconduct which was subject-matter of inquiry and formed the basis of adverse remarks made by the inspecting judge and the Full Court. Then it proceeded to hold as under :-
"We do find some substance in the argument of Shri Jain that the rejection of his representation against the adverse remarks does not satisfy the test of fairness because no reasons have been recorded by the High Court for not accepting the points and contentions raised in the representation and the record also does not show the existence of such reasons, we do not want to express any conclusive opinion on this issue because even after invalidation of the pre-mature retirement of the petitioner, the departmental inquiries can be continued and the fate of the remarks made in his ACR of 1991-92 will ultimately depend on whether the Court upholds the allegations levelled against the petitioner, The issue regarding claim of the petitioner for grant of selection grade and other benefits will also be dependent on the final conclusion of the departmental inquiries which may be continued against the petitioner in view of the quashing of order of pre-mature retirement. Therefore, we do not want to entertain his claim for grant of selection grade at this stage. For the reasons mentioned above, the writ petition is allowed. The pre- mature retirement of the petitioner brought about vide order dated 10.5.1996 is declared illegal and the said order is quashed. The petitioner shall get consequential benefits. However, we make it clear that the competent authority shall be entitled to revive the proceedings of inquiries and take appropriate decision in accordance with."
23.  The foremost question arising for our consideration is if the order of pre- mature retirement of Jain is based on sound legal principles and is not punitive in nature. Further question connected with this would be if recording of adverse remarks in the ACR for the year 1991-92 is justified in the circumstances and whether the Full Court was misled by the precis of ACR prepared by the Registry for the meeting of the Full Court held on December 12,1995.
24.  In Shyam Lal V. The State of Uttar Pradesh, [1995] 1 SCR 26 1954 Indlaw SC 30, the appellant was compulsorily retired under the provisions of Article 465-A of Civil Service Regulations. Note 1 to Article 465-A provides that the Government retains the absolute right to retire any Government servant after he has completed 25 years of qualifying service without giving any reasons and that this right will not be exercised except when it is in the public interest to dispense with the services of an officer. This Court said that the two requirements for compulsory retirement were that the officer had completed 25 years of service and that it was in public interest to dispense with his further services. Then the Court added: "it is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity."
25.  In Ram Ekbal Sharma v. State of Bihar and another, [1990] 3 SCC 504 1990 Indlaw SC 808, it was laid down that court can lift the veil of an innocuous order in appropriate cases to find the real basis of the order of compulsory retirement of an officer. This is how the Court said :-
"On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal case [1984] 2 SCC 369.
25. In Anoop Jaiswal v. Government of India, [1984] 2 SCC 369 1984 Indlaw SC 99, this Court said :-
"It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a clock for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee."
26. In Baikuntha Nath Das and another v. Chief District Medical Officer Baripada and another, [1992] 2 SCC 299 1992 Indlaw SC 1228 this Court laid the following principles, which a Court has to keep in mind while considering the question of compulsory retirement :-
"34. The following principles emerge from the above discussion :
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour,
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; is short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above."
27. In State of U.P. and another v. Abhai Kishore Masta, [1995] I SCC 336 1994 Indlaw SC 2175 this Court relied on its earlier decision in Baikuntha Nath Doss case [1992] 2 SCC 2991992 Indlaw SC 1228. It was observed that it cannot be said as a matter of law nor can it be said as an invariable rule, that any and every order of compulsory retirement during the pendency of disciplinary proceedings is necessarily penal. It may be or it may be not. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.
28. In a recent judgment in Madan Mohan Choudhary v. The State of Bihar and others, JT (1999) 1 SC 459 1999 Indlaw SC 445 this Court was considering the order of compulsory retirement of the appellant, who was a member of superior judicial service in the State of Bihar. On a writ petition filed by the appellant in the High Court challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were given by the High Court but there were no entries in the character roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the appellant was categorized as "C" Grade Officer. The date on which these entries were made was not indicated either in the original record or in the counter affidavit filed by the respondent. These were communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6.11.1996 to put up a note for compulsory retirement of the appellant. This Court held that it was a case where mere was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service pre- maturely. This .Court was of the opinion that the entries recorded "at one go" for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. The Court then referred to its earlier decision in Registrar, High Court of Madras v. R. Rajiah, JT(1988)2 SC 567 1988 Indlaw SC 809 Where this Court said that the. High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the member of the judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently unconcerned by the ill-conceived or motivated complaints, made by unscrupulous lawyers and litigants.
29. Keeping in view the aforesaid principles we may examine the background under which the order Compulsorily retiring Jain came to be passed. In December, 1995 judges comprising the Full Court were not the same as that in the year 1985 when probation of Jain was terminated. There were hew appointments of judges and there were judges, who had come on transfer from other High Courts. They could not be aware of the circumstances leading to termination of the probation of Jain and ACR given to him for the year 1984-985. In the precis of the ACRs for the Full Court ACR given to Jain For the year 1984-85 was Shown as "C-Below Average." The inspecting judge for the year 1984-85 had graded the officer as "B+Good" but the Full Court modified me same to "C-Below Average."" This Court in earlier appeal filed by Jain against termination of his probation held that the modification of the entry by the High Court was without any material and was not sustainable in law. It meant that the Supreme Court restored the grading of Jain in his ACR for the year 1984-85 as "B+Good." There is no indication of this in the precis prepared by the Registry which certainly would have misled many of the judges Of the Full Court. There is no ACR recorded for the years 1992-93, 1993-94, 1994-95 and for nine months of 1995-96 when the Full Court met on December 12, 1995. In its earlier meeting on September 22, 1995 it recorded ACR for the year 1991-92 grading Jain as "C-integrity doubtful." In coming to this conclusion Full Court relied on the inspection report prepared by the inspecting judge on February 22,1992 where he graded Jain as "integrity doubtful" and gave his note which we have quoted above. There is no material forthcoming as to why the inspection report of February 1992 came to be considered by the Full Court in September, 1995 and why there could be no inspection from that year till holding of the Full Court meeting. Inspection note by the inspecting judge gives an impression that he inspected the Court of Jain and visited the bar room before he gave his report.
26. Fact, however, remains thai the inspecting judge inspected the Court of Jaih only in March, 1992. Inspecting judge also noted that there were some complaints which formed the subject-matter of the disciplinary proceedings against him. This also does not appear to be correct inasmuch as on the date of the inspection report no disciplinary proceedings were pending against Jain. There were also no particulars of the complaints whether these were in writing or oral and if these related to the judicial work performed by the officer. At least some of the cases in which Jain was found to have acted improperly could have been mentioned when there were many complaints from me members of the Bar, The inspection note is certainly flawed and could not have formed the basis by the Full Court to record that integrity of the officer was doubtful and to grade him "C". Moreover we were told at the bar and it was not contradicted that the Inspecting Judge took charge of Jind district only on November 21; 1991 and within three months, i.e., on February 25, 1992 gave his inspection report. This is certainly not satisfactory. The ACR for the year 1991-92 is, therefore to be kept aside. That being the position if we now refer to the precis of the ACRs of Jain there were only four ACRs and these are for the years 1983-84 (B-Average/satistactory), 1984-85 (B+Good), 1988-89 (B- Satisftctory) and 1989-90 (B+good)). On the basis of these ACRs it is difficult to hold that the recommendation of the High Court could be justified u/cl. (c) of third principle laid in Baikunth Nath Das case.
27.  From the resolutions of the Full Court of December 12,1995 and January 11, 1996 it is apparent that Jain was retired while under suspension. It appears that the High Court on its administrative side decided to keep disciplinary proceedings against Jain pending for the purpose of imposing the cut on his retiral benefits. The conclusion is obvious that action of the High Court in retiring Jain was based on the allegation of misconduct, which was subject matter of the inquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991 -92. There is substance in the argument of Mr. M.N. Krishanamani, learned counsel for Jain, that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct, subject matter of me inquiry. We agree with Mr. Krishnamani that the impugned order of compulsbrily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. High Court on its judicial side was correct in setting aside the order compulsorily retiring Jain and allowing the writ petition of Jain to the extent mentioned in the impugned judgment. In this view of the matter it is not necessary for us to consider other submissions made before us if Jain could at all have been compulsorily retired under Rule. 3.26 of the Punjab Civil Service Rules, Volume I, Part 1, being a member of the superior judicial service.
28.  Though in Baikuntha Nath Das case [1992] 2 SCC2991992 Indlaw SC 1228 this Court has laid principles when there is challenge to compulsory retirement of an officer. In that case the appellant was not a judicial officer. In the case where Full Court of the High Court recommends compulsory retirement of an officer High Court On judicial side has to exercise great circumspection in setting aside that order. Here it is complement of all the judges of the High Court, who go into the question. It may hot be possible that in all cases evidence would be forthcoming about the doubtful integrity of a judicial officer and at times Full Court has to act on the collective wisdom of all the judges.
29.  Since late this Court is watching the specter of either judicial officers or the High Courts coming to this Court when there is an order pe-maturely retiring a judicial officer. U/art. 235 of the Constitution High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which High Court performs for control over the subordinate courts. Object of such inspection is for the purpose of assessment of the work performed by the subordinate judge, his capability, integrity and competency. Since judges are human beings and also prone to all the human failings inspection provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the Working of the subordinate court, remedied, inspection should act as a catalyst in inspiring subordinate judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of courts at grass root level. Remarks recorded by the inspecting judge are normally endorsed by the Full Court and become part of the Annual Confidential Reports and are foundations on which the career of judicial officer is made or marred. Inspection of subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman like. Inspection of subordinate courts is not a one day or an hour or few minutes affair. It has to go on all the year round by monitoring the work of the Court by the inspecting judge. The casual inspection can hardly be beneficial to a judicial system. It does more harms than good. As noticed in the case of R. Rajiah, JT (1988) 2 SC 5671988 Indlaw SC 809 there could be ill conceived or motivated complaints. Rumour mongering is to be avoided at all costs as it seriously jeopardizes the efficient working of the subordinate courts. Time has come that a proper and uniform system of inspection of subordinate courts should be devised by the High Courts. In fact the whole system of inspection need rationalization. There should be some scope of self- assessment by the officer concerned. We are informed that the First National Judicial Pay Commission is also looking into the matter. This subject, however, can be well considered in a Chief Justices" Conference as High Court itself can devise an effective system of inspection of the subordinate courts. Registrar General shall place a copy of this judgment before the Hon'ble Chief Justice of India for him to consider if method of inspection of subordinate courts could be matter of agenda for the Chief Justices' Conference.
30.  With these observations these appeals are dismissed. There shall be no order as to costs.
Appeal dismissed


Kulwant Rai v State of Punjab
Supreme Court of India

7 August 1981
Cr.A. No. 630 of 1981.
The order of the court was as follows:
1.  We have heard Mr. Ashwani Kumar, learned counsel for the State and Mr. Mulla, learned counsel for the appellant.
2.  We have gone through the judgment of the learned Sessions Judge who has summed up the circumstances in which the offence came to be committed. The learned Judge found that the accused at the time of the offence was aged about 20 years. The offence was committed without any premeditation. The learned Judge also found that there was no prior enmity. He also recorded that a short quarrel preceded the assault. All these would not have weighed with us, except the fact that only one blow was given with a dagger and the blow landed in the epigastrium area. The deceased succumbed to the injury. The learned Sessions Judge convicted the appellant for an offence under Section 302, Indian Penal Code and sentenced him to suffer imprisonment for life.
3.  When the matter was before the High Court it was strenuously urged that in the circumstances of the case Para 1 of S. 300 would not be attracted because it cannot be said that the accused had the intention to commit murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by Para 3 of Section 300, Indian Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstance in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, Para 3 of S. 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall u/s. 304 Part II, Indian Penal Code.
4.  We accordingly alter the conviction of the appellant from one u/s. 302 to that u/s. 304 Part II, Indian Penal Code and sentence him to suffer rigorous imprisonment for five years.
The appeal is disposed of accordingly.
Appeal dismissed.


Randhir Singh v State of Punjab
Supreme Court of India

18 September 1981
Cr.A. No. 763 of 1981 (arising out of S.L.P. (Cri) No. 890 of 1981)
The Judgment was delivered by: DESAI, J.
1. Appellant Randhir Singh alias Dhire has been convicted for having committed an offence under S. 302Indian Penal Code, 1860 in that on July 4, 1979, he gave a blow with a Kassi on the head of Mohan Singh who under the impact of the blow fell down on the ground. He was removed to the hospital where he died on July 10, 1979. Autopsy on the dead body of Mohan Singh was conducted by (P.W.1) Dr. S. C. Garg on the very day. He noticed the following injuries:
(1) A stitched wound on the right frontal parietal region 2" in length. It was approximately bone deep;
(2) A surgical would on the right temporal region for hole and
(3) There was bruising of the right eye with ecchymosis of the bulbar conjunctive.
On internal examination the autopsy surgeon found under the seat of injury No. 1 a fissured fracture extending from the said of the wound to the base of the skull covering the middle cranial fossa.
2. The appellant and his father Shamsher Singh were tried by the learned Sessions Judge for having committed an offence under section 302, Indian Penal Code, 1860 and Sec. 362 read with S. 34. Indian Penal Code, 1860 respectively. The learned Sessions Judge convicted both of them for the offence with which each of them was charged and sentenced each of them to suffer imprisonment for life. Shamsher Singh, the second accused was also directed to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for one year.
3. In the appeal preferred by both the accused a Division Bench of the High Court of Punjab and Haryana held that the charge against Shamsher Singh was not brought home and he was given benefit of doubt and acquitted. Conviction of the appellant and the sentence imposed upon him were confirmed.
4. When the special leave petition came up before this Court, a notice was issued limited to the nature of offence and sentence only and special leave was also limited to the same.
5. Appellant was aged about 18 1/2 years on the date of occurrence being July 4, 1979. According to the prosecution he gave one blow with kassi. This blow was given on July 4, 1979, at about 12 noon. Victim Mohan Singh died in the hospital on July 10, 1979. In the opinion of the medical officer who carried out the autopsy death occurred on account of intra-cranial haemorrhage as a result of injury No. 1. In the opinion of the medical officer this injury was sufficient in the ordinary course of nature to cause death. In the background of these facts the question arises as to what is the offence committed by the present appellant. Unfortunately the High Court has not dealt with this aspect. The High Court took into consideration the fact that there were three injuries on the dead body and that injury no. 1 is attributed to the present appellant. Thereafter there is an observation which is contrary to record. It reads as under:
"Other two injuries are just bruises and simple in nature."
This is factually incorrect because injury No. 2 is not an injury caused by anyone but was a surgical wound caused for the purpose of performance of an operation on the deceased. Injury No. 3 is a bruise and is an injury of a trivial character. It is not even the prosecution case that the present appellant gave more than one blow with kassi or with any other weapon.
6. It is at this stage necessary to recall the circumstances under which the appellant is alleged to have given one blow with kassi. Facts alleged and held proved are that deceased Mohan Singh had constructed a house in the, phirni (outer circuitous road) of village Khasi Khurd. He had installed a water pump near his house. Appellant and his father belonged to village Khasi Kalam and they had purchased agricultural land adjacent to the Phirni of village Khasi Khurd. On the date of the occurrence Smt. Amar Kaur widow of the deceased was cleaning utensils at the water pump and the deceased was washing his hands and face. Appellant started digging earth from village Phirni and started throwing it towards the water pump. Mohan Singh asked him not to do so but he did not desist and in the meantime the father of the appellant arrived there with a kassi. There ensued an altercation between the father of the appellant on the one hand and deceased Mohan Singh on the other. At that stage according to the prosecution Shamsher Singh father of the appellant exhorted the appellant to attack the deceased and under these circumstances the appellant is alleged to have given one blow with sharp edge of Kassi on the head of Mohan Singh and this blow proved fatal after a period of six days.
7. In the circumstances discussed herein it is not possible to hold that the appellant intended to cause death of the deceased and Para 1 of S. 300. Indian Penal Code, 1860 would not be attracted.
8. The contention is that Para III of S. 300, Indian Penal Code, 1860 would be attracted in that the appellant not only intended to cause that particular injury which is alleged to have been inflicted and the injury alleged to have been inflicted was sufficient in the ordinary course of nature to cause death. In a small village upon a minor quarrel the appellant a young boy aged 18 1/2 years, studying in the engineering college and not shown to have been armed, gave one blow by Kassi brought by his father, could it be said that he intended to cause that particular injury. Merely because the blow landed on a Particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury. The weapon was not handy. He did not possess one. Altercation took place between his father and the deceased and he gave blow with a Kassi.
In our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury. True it is that the injury proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. We need not dilate upon this subject in view of a very recent decision of this Court in Jagrup Singh v. State of Haryana decided on May 7, 1981,  1981 indlaw sc 73.
Sen, J.
speaking for the Court, after referring to various previous decisions on the subject including the one relied upon in this case. Virsa Singh v. State of Punjab, 1958 Indlaw SC 821958 Indlaw SC 82, observed that in order to bring the case within Para III of Section 300, Indian Penal Code, 1860 it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. We find it difficult to hold in the circumstances herein set out that such was the intention of the appellant.
9. In our opinion, having regard to the totality of circumstances, viz. there is only one injury, that the weapon was not carried by the appellant in advance, that there wan no premeditation that he was a young college going boy, that there was some altercation between the deceased and his father and that the death occurred nearly after six days, one can only say that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Under these circumstances, in our opinion, the appellant is shown to have committed an offence under section 304, Part II of the Indian Penal Code, 1860 and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years.
10. Accordingly this appeal is allowed and conviction of the appellant is altered from S. 302. Indian Penal Code, 1860 to S. 304. Part II, Indian Penal Code, 1860 and the sentence of life imprisonment is reduced to rigorous imprisonment for five years.
Appeal allowed.


State of Punjab and Others v Ram Lubhaya Bagga and Others
Supreme Court of India

26 February 1998
Civil Appeal Nos. 1111-1115 of 1998
The Judgment was delivered by : A. P. Misra, J.
Leave granted.
1.  In these set of appeals arising out of Special leave petitions, the common question which has come up for consideration is the entitlement towards medical expenses of the Punjab government employees and pensioners as per the relevant rules and the Government policy. In pith and substance, the scale at which their reimbursement is admissible towards their medical expenses incurred in a nongovernmental hospital. It is not a new phenomena, such employees have been and are still raising such issue repeatedly with the changing scenario, political, social and financial the policy of reimbursement is not static. In the recent past in spate of petitions dealing with the 1991 policy of the State Government this Court settled this principle in the case of Surjit Singh vs. State of Punjab & Ors., (1996 (2) SCC 336 1996 Indlaw SC 3445 and State of Punjab vs. Mahinder Singh Chawla (1997 (2) SCC 83 1996 Indlaw SC 2054. Consequent to the effect of the said and other decisions and their resultant impact on the State exchequer and other actors led the State Government to reconsider its old policy of 1991 by making necessary modifications, deletionsa through order dated 9.9.94 till it was substituted through a new policy dated 13th February, 1995. All the earlier rulings were based on the aforesaid old policy including the clarification dated 8th October, 1991. The same was partially withdrawn on 9th September, 1994 followed by placing the new policy on 13th February, 1995. In short respondents grievance, is the claim which was allowed by this Court earlier when such employees were admitted for heart ailment in escorts a nongovernmental hospital, is now being declined which was allowed by this Court earlier when such employees were admitted for heart ailment in Escorts a non-governmental hospital, is now being declined which is in contradiction to the said rulings of this Court.
2.  In short in SLP (C) No. 13167 respondent is said have suffered a severe heart attack on 13th March, Research Center in an emergency. On 27th March, 1995 and was taken to the Escorts Hearts Institute and Research Center in an emergency. On 27th March he underwent coronary artery bypass graft surgery. Finally he was discharged on 10th April, 1995. The entire expenses incurred for the treatment, surgery, post-operative check up etc. came to Rs. 2,11,758,70. In May, 1996 he has submitted the bill to the government for reimbursement.
3.  The appellant's stand is that as per new policy dated 13th February, 1995 the reimbursement of the medical expenses incurred in any private hospital is only admissible, if for such ailment, treatment is not available in any government hospital, and for this no objection certificate is obtained from the Civil Surgeon or Director of Health Services as the case may be. Respondent's case was not referred to the Escorts for any treatment by any of the competent authority. For any such claim an employee must obtain no objection certificate from the concerned authority. In cases of emergency if admitted in a private hospital ex-post facto approval could be obtained from the concerned authority of course within the permissible parameters. As the claim relates to surgery conducted after the new policy and the reimbursement amount is claimed on the basis of the bill of the Escorts, the same is, according to appellant not permissible in as much as the Committee of Technical Experts has decided as per the new policy that only rates as prevalent in All India Institute of Medical Sciences, New Delhi, will be paid.
4.  The respondents with vehemence challenge this stand and the new policy of the appellant which has come into force on 13.2.95 as the same being violative of Article 21 of the Constitution of India. It is argued this is one of the most sacred fundamental rights given to its citizen. Since right to life is protected under this Article hence refusing to pay the amount spent to save one's life amounts to the curtailment of such right, hence violative of Article 21. In earlier decisions this Court has said that the right to live does not mean mere survival or animal existence but includes the right to live with Human dignity. In other words, man's Life should be meaningful, worth living. Pith and substance of life is the health, which is the nucleus of all activities of life including that of an employee or other viz. the physical, social, spiritual or any conceivable human activities. If this is denied, it is said everything crumbles.
5.  This Court has time and again emphasised to the Government and other authorities for focussing and giving priority and other authorities for focussing and giving priority to the health of its, citizen, which not only makes one's life meaningful, improves one's efficiency, but in turn gives optimum out put. Further to secure protection of one's life is one of the foremost obligation of the State, it is not merely a right enshrined under Article 21 but an obligation cast on the State to provide this both under Article 21 and under Article 47 of the Constitution. The obligation includes improvement of public health as its primary duty. Learned counsel for the appellant on the other hand does not deny such a right but urges that the same can be placed within permissible limits by rules and policies laid down. The right claimed may be sacrosanct, which has to be given, but the same can be put within reasonable limits, under a policy which is framed after taking into consideration various factors. Thus the only question is, whether the new policy is arbitrary, unreasonable violative of any law or principle to be struck down. Of corse it has to stand to the test of reasonableness and not to erode or curtail any of the Constitutional or Statutory right of any employee, If not, the claim cannot go beyond the policy. Shri Rajeev Dhawan, learned senior counsel appearing for the appellants submits with force that it would be no violation, if medical facility in absolute term as desired is not provided because of any financial constraints viz. lack of financial resources or for such other reasons. No right under the Constitution is absolute in term. It has to be balanced with the need, equity and the resources available.
6.  In Vincent Panikurlangara vs. Union of India: (1987 ) 2 SCC 165 1987 Indlaw SC 28640;
"Para 20 In a series of pronouncement during the recent years this court has called out from the provisions of part IV of the Constitution these several obligations of the State and Called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical betterment of these depends the building of the society of which the Constitution makers envisages. Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top."
" The expression 'life' assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the work place and leisure facilities and opportunities to eliminate sickness and physical disability of the workmen. Health of the workman enables him to enjoy the fruits of his labour, to keep him physically fit and human right to protect his health. In that case health insurance, while in service or after retirement was held to be a fundamental right and even private industries are enjoined to provide health insurance to the workmen."
In Kirloskar Brothers Ltd. vs. Employees State Insurance corporation, 1996 (2) SCC 682 1996 Indlaw SC 3147; "the Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations under taken by the Government in the welfare State. The Government discharges this obligation by running hospitals and health centers which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21."
7.  In Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal, 1996 (4) SCC 36 1996 Indlaw SC 2871;
"Para 14: It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the Constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the Constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State has to be kept in view."
8.  On the basis of last decision reference to above, the question is, whether such a right is absolute and no financial constraints could be pleaded or if it could be, to what extent? This we would be adverting little later.
9.  Learned counsel for the appellants fairly submits that in respect of any such claim of reimbursement for a period prior to the new policy, the old policy of 1991 as modified before the new policy would be applicable. so far as the old policy goes the law is well settled through various decisions of this Court about which there is not much dispute.
10.  Before proceeding further we would like to refer to a preliminary objection raised by learned counsel for the respondent that under this new policy when the State Government denied such claim of an employee in circumstances similar to the present case, the said employee filed a writ petition which was allowed by the High Court in the case of Varian Singh vs. State of Punjab (1996 (4) SLR 177) against that judgment the State filed SLP (C) No. 12954 of 1996 and it was dismissed by this Court on 17th December, 1996. Hence it is contended for the respondent that the State cannot take up the same stand which has become final. We are informed and it is not disputed that the said dismissal of the SLP was not by any reasoned order. Points raised here before us was neither raised nor decided in that SLP by this Court. As this question is likely to come in future, we feel it is necessary to decide and settle it. Hence this preliminary objection raised by the respondent has no force.
11.  The validity of the claim of the respondents has been upheld by the High Court under the impugned order and the which respondent has been held entitled to total reimbursement of his expenses incurred in a private hospital. To appreciate all this it is necessary to shortly give the periphery of the earlier policy of 1991 and the new policy dated 13th February, 1995.
12.  The old policy of 1991 was framed in supersession of the earlier Punjab Government's letter dated 27th May, 1987. This is a policy for the reimbursement of the medical expenses incurred on treatment taken abroad or in a hospital other than the hospitals of the Government of Punjab (both outside and in the State of Punjab). Relevant portion of the same is quoted hereunder:
"The person who is in need of medical treatment outside India or in any hospital outside and in the State of Punjab) as the case may be may make an application for getting treatment in these hospitals directly to the Director, Health and Family Welfare, 2 months in advance, duly recommended by the CMO/Medical Superintendent indicating that the treatment for the disease mentioned is not available in the hospital of the Government of Punjab. In case of emergency duly authenticated by CMO/Medical Superintendent the application can be made 15 days in advance.
Director, Health and Family Welfare, Punjab will place the application of the employee concerned before the Medical Board within 15 days on the receipt of application. In case of emergency, if immediate meeting of Medical Board cannot be convened, such application may be circulated to all the members of the Medical Board and decision taken thereof."
13.  Thereafter on 8th October, 1991, the policy was further clarified so far as the choice of hospitals is concerned which is also quoted hereunder:-
"Policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than those of the Government of Punjab, both within and outside the State was laid down. However, as per the 12th item of these instructions, a list of those diseases for which specialised treatment was not available in the government hospitals was to the prepared in addition to identifying medical institutions/hospitals/clinics of repute where such specialised treatment was available. Open Heart Surgery; Escorts heart Institute, New Delhi; Christian medical College, Ludhiana; Apollo Hospital, Madras."
14.  We find two significant points in the said policy, one the procedural and the other nominating few designated hospitals other than government hospital for treatment. The procedure laid down under this was very onerous, some times not workable, specially in emergency cases. Under it if one needs medical treatment either outside India or in any hospital other than the Hospital of Government of Punjab, an application seeking approval for such treatment in such hospital has to be made to the Director of Health and Family Welfare two months in advance duly recommended by CMO/Medical Superintendent indicating that the treatment for such disease is not available in the hospital of the Government of Punjab. In cases of emergency such application is to the authenticated by CMO/MS to be made fifteen days in advance. It is this procedure which deprived persons from getting prompt and better treatment at other places. Some of the serious diseases do not knock or warn through bell giving them time. Emergency cases require immediate treatment and if with a view to comply with procedure one has to wait then it could be fatal. One may not in such cases live, if such a procedure is strictly followed. It seems keeping this in light, the Government in 1991 modified its policies by including Escorts Heart Institute, New Delhi; Christian Medical College, Ludhiana and Appollo Hospital, Madras, in case of Open heart Surgery as the designated hospitals for treatment of such permissible diseases. Government in its 1991 policy, also reserved its right to revise the list in future. The listing of the aforesaid designated hospitals was with the approval of the Finance Department. Thereafter on 9th September, 1994 on the advice of the Finance Department the aforesaid 1991 policy was again modified by withdrawing the clarification dated 8th October, 1991 wherein private hospitals in the State and outside were recognised for treatment. hence the benefit of the designated hospitals was no longer available to an employee for being reimbursed towards his medical expenses. it is in this background present that the new policy dated 5th October, 1995 has come in to force. The relevant portion of the Said State Policy is reproduced below:-
" As per instructions issued vide Punjab Government letter No. 7/7/85 5HBV/2498, dated 25.1.1991 the policy regarding reimbursement of medical emphases incurred on medical treatment taken abroad an din hospitals other than the hospitals of the Government of Punjab (both outside and inside the State of Punjab) was laid down. The Government has reviewed the decisions taken in the aforesaid letter and it has now been decided as under:-
TREATMENT AT AIIMS
District Civil Surgeons shall be competent to permit treatment of a particular disease at AIIMS, New Delhi on the basis of recommendations of the District level Standing Medical Board provided the treatment is not available in the Government Hospitals of the State.
The expenditure on reimbursable items on such a treatment in AIIMS, New Delhi, shall be reimbursed to Government employees/pensioners.
TREATMENT IN PRIVATE HOSPITALS IN THE COUNTRY
It has been decided that employees and pensioners should be given freedom to get treatment in any, private institute/hospital (of their own choice), in the country provided that he/she gives an undertaking out of his/her free will and in an unambiguous terms that he/she will accept reimbursement of expenses incurred by him/her on his/her treatment to the level of expenditure as per rates fixed by the Director, Health and Family Welfare, Punjab for a similar treatment package or actual expenditure whichever is less. The rate for a particular treatment would be included in the advice issued by the District/State medical Board. A Committee of technical experts shall be constituted by the Director Health and Family Welfare Punjab to finalise the rates of various treatment packages and the same rate list shall be made available in the offices of the Civil Surgeons of the State.
However, this permission would be granted by the Director, health and Family Welfare, Punjab on the advice of State medical Board in case of treatment in Private Hospitals outside the State and the District Medical Board in case of treatment in private hospitals
within the State. It is further submitted that in an emergent case prior permission could be waived from the Medical Board but Ex-post facto approval from the Medical Board for reimbursement of medical expenses is absolutely essential in accordance with the instructions dated 5.10.1995.
TREATMENT ABROAD ------------------
The treatment of a disease in a country abroad would be permitted in extremely rare cases where satisfactory treatment and follow up should be recommended by the State Medical Board. Prior approval of the State Medical Board shall be a pre-requisite in such cases. All efforts should be made by the concerned employee/pensioner to take prior approval of the State Medical Board."
15.  Learned counsel for the respondents strongly relies on the case of Surjit Singh 1996 Indlaw SC 3445 (supra). The contention is that in that case the claim for getting reimbursement expenses incurred in Escorts was upheld and hence it would be impermissible now for the State Government to deny reimbursement of expenses incurred at Escorts on the basis of the alleged new policy. The decision under the new policy to reimburse expenses only on the basis of the rates at the AIIMS, it is contended illegal. Everyone in order to protect his life has to go wherever best possible treatment is available. If respondent went to Escorts which was once a designated hospital. The refusal now to reimburse expenses incurred at Escort has no justifiable ground to stand.
16.  Having heard learned counsel for the parties at length, we find the Surjit Singh's case 1996 Indlaw SC 3445 admittedly was based on the old policy. There the medical reimbursement claim, was admissible at the rate admissible in Escort's, as Escorts's was one of the designated hospitals. In that case denial of such rate was therefore rightly rejected. However, strong reliance has been placed by the respondent on the following paragraphs of surjit Singh vs. State of Punjab (1996 (2) SCC 336 1996 Indlaw SC 3445 ) which is as under:
"Para 13: The Policy, providing recognition for treatment of open heart surgery in the escorts, specifically came to be examined by a Division bench of the Punjab and Haryana High Court at Chandigarh titled as Sadhu R. Pail vs. State of Punjab (1994) 1 SLR 283 (P & H) wherein the claim of the then writ petitioner to medical reimbursement was accepted when in order to save his life he had got himself operated upon in the Escorts, and the plea of the State that he could be paid rates as prevalent in the AIIMS was rejected. special leave Petition No. 22024 of 1995 against the said decision was dismissed by this Court on 2.2.94."
"Para 16: The appellant therefore had the right to take steps in self-preservation. he did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy."
17.  Same argument is submitted for drawing parity with the said case. Here also it is urged, when one gets heart attack he has to wait in a long queue, in the government hospital and may be by the time his turn comes he may not survive. it is hence argued that the medical facility provided would be futile.
18.  As aforesaid the said decision would render no assistance to the respondents. Under the old policy there were designated hospital including Escorts. That was the foundation of the Said decision. relevant portion in this regard is quoted hereunder:-
"When the State itself has brought for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life."
(Surjit Singh's case 1996 Indlaw SC 3445 (Supra).
19.  That was a case where the petitioner got heart attack being in England and was hospitalised and operated in Burminghom hospital and this Court held that is as much as Escort was one of the designated hospital under the old policy of the reimbursement permissible to the appellant would be at the rate as that of Escorts and not of AIIMS as ordered by the State.
20.  The right of the State to change its policy from time to time, under the changing circumstances is neither challenged nor could it be. let us now examine this new policy. learned senior counsel for the appellants submits that the new policy is more liberal in as much as it gives freedom of choice to every employee to undertake treatment in any private hospital of his own choice any where in the country. The only clog is that the reimbursement would be to the level of expenditure as per rates which are fixed by the Director, Health and Family Welfare, Punjab for a similar package treatment or actual expenditure which ever is less. Such rate for a particular treatment will be included in the advice issued by the District/State Medical Board for fixing this. Under the said policy a Committee of Technical Experts is constituted by the Director to finalize the rates of various treatment packages and such rate list shall be made available to the offices of the Civil surgeons of the State. Under this new policy, it is clear that none has to wait in a queue. One can avail and go to any private hospital anywhere in India. Hence the objection that, even under the new policy in emergency one has to wait in a queue as a argued in Surjit Singh case 1996 Indlaw SC 3445 (supra) does not hold good.
21.  In this regard Mr. Sodhi appearing for the State of Punjab has specifically stated that as per the Director's decision under the new policy, the present rate admissible to any employee is the same as prevalent in AIIMS. It is also submitted, under the new policy in case of emergency if prior approval for treatment in the private hospital is not obtained, the ex-post-facto sanction can be obtained later from the concerned Board or authority for such medical reimbursement. After due consideration we find these to be reasonable.
22.  Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. so far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying modifying or annulling it, based on however sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. it would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 When it restricts reimbursement on account of its financial constraints.
23.  When we speak about a right, it corelates to a duty upon another, individual, employer, government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt government is rendering this obligation by opening Government hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, o reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its up-keep; maintenance and cleanliness has to be beyond aspersion. To employ best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at then try point but also during the whole tenure of their service. Since it is one of the most sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. for every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority.
24.  Coming back to test the claim of respondents, the State can neither urge nor say that it has no obligation to provide medical facility. If that were so it would be ex facie violative of Article 21. Under the new policy, medical facility continues to be given and now an employee is given free choice to get treatment in any private hospital in India but the amount of payment towards reimbursement is regulated. Without fixing any specific rate, the new policy refers to the obligation of paying at the rate fixed by the Director. The words are;
" .... to the level of expenditure as per the rate fixed by the Director, Health and Family Welfare, Punjab for a similar treatment package or actual expenditure which ever is less."
25.  The new policy does not leave this fixation to the sweet will of the Director but it is to be done by a Committee of technical experts.
" The rate for a particular treatment would be included in the advice issued by the District/State Medical Board. A Committee of technical experts shall be constituted by the Director, Health and Family Welfare, Punjab to finalize the roles of various treatment packages."
26.  No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
27.  In Vincent vs. Union of India: AIR (1987) SC 990 1987 Indlaw SC 28640:
" In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health..... In a series of pronouncements during the recent years, this court has culled out from the provisions of Part IV of theConstitution, the several obligations of the State and called upon it to effectuate them in order that the resultant picture by the Constitution fathers may become a reality."
28.  The next question is whether the modification of the policy by the State by deleting its earlier decision of permitting reimbursement at the Escort and other designated hospital's rate is justified or not? This of course will depend on the facts and circumstances. We have already held that this court would not interfere with any opinion formed by the government if it is based on relevant facts and circumstances or based on expert advice.
29.  Any State endeavor for giving best possible health facility has direct co-relation with finances. Every State for discharging its obligation to provide some projects to its subject requires finances. Article 41 of the Constitution gives recognition to this aspect. 'Article 41: Right to work, to educate and to public assistance in certain cases: The State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age sickness and disablement, and in other cases of undeserved want.'
30.  It is submitted by the appellants that earlier under the 1991 policy, for bringing in some of the designated Hospital for treatment, sanction from Finance department was obtained. Later upon an appraisal of its expenditure it was found that the bulk of the States budget was being taken by few elites for such treatment like Heart ailment etc. to the detriment of large number of other employees who suffered. hence on the advise of the Finance department by means of order dated 9th September, 1994 the facility of reimbursement of full charges at designated hospital was withdrawn even under the old policy of 1991 from 9.9.94.
31.  Financial constraints on the State is also evident from what is recorded in the case of Waryam Singh (supra), which is also a case from Punjab:-
"When Civil Writ Petition No. 16570 of 1995, the Court issued a notice to the respondents to show cause as to why a direction may not be issued to the Government to decided all pending matters of medical dated 16.11.1995, the learned Government counsel produced before the Court a list of cases pending in 57 departments/offices of the Government of Punjab. these lists show that over 20,000 cases involving claim of medical reimbursement ar pending in the various departments/offices of the Government. In some cases, the claim is for as small amount as of Rs. 10/and as high as of Rs. 1,75,000/-. these lists also show that some cases of medical reimbursement are pending for last more than six years. In other cases, the duration of pendency is less. Reasons given in majority of the cases are absence of sanction of paucity of funds."
32.  Learned Counsel for the appellant submits that in the Writ petition filed, the respondent did not specifically challenge the new policy of 1995. If that was done the State would have placed all such material in detail to show the financial strain. We having considered the submission of both the parties, on the aforesaid facts and circumstances, hold that the appellant's decision to exclude the designated hospital cannot be said be such as to be violative of Article 21 of the Constitution. No right could be absolute in a welfare State. A man is a social animal. He cannot live without the cooperation of large number of persons. Every article one uses is the contribution of many. Hence every individual right has to give way to the right of public at large. Not every fundamental right under Part III of the Constitution is not absolute and it is o be within permissible reasonable restriction. This principle equally applies when there is any constraint on the health budget on account of financial stringencies. But we do hope that government will give due consideration and priority to the health budget in future and render what is best possible.
33.  For the aforesaid reasons and findings we uphold governments new policy dated 13th February, 1995 and further hold it not to be violative of Article 21 of the Constitution of India.
34.  In the Civil Appeals arising out of SLP(C) Nos. 13167/97 and 12418/97, the surgery at Escorts was after the introduction of the new policy and therefore the extent of medical reimbursement can be only according to the rates prescribed by AIIMS. However, the respondents therein are not entitled to the full expenditure that was incurred at Escorts. We therefore, allow the appeals in part and direct that the respondents are entitled to reimburse only at AIIMS rate. The appellant will therefore reimburse the respondents to the extent within one month from today.
35.  The appeals arising out of SLP (C) No. 12143/97 and 12144/97 though the treatment at Escorts was after the new policy the amount as claimed has already been paid at Escorts rates. On the facts and circumstances of this case, we are not inclined to interfere and therefore no question of any refund arises. These appeals are dismissed.
36.  So far as the appeal arising out of SLP (C) No. 11968/97 is concerned, we find that the respondent had the heart attack on 9th February, 1995 and was advised to go to Delhi on 18th February, 1995 but on account of long strike in the All India Institute of medical sciences (AIIMS) he was admitted in the Escorts. On those facts we are not inclined to interfere. the respondents has been paid at the admissible are the in AIIMS but claims the difference between what is paid and what is admissible rate at Escort. Looking to the facts and circumstances of this Case we hold that the respondent in SLP (C) No. 11968/97 is entitled to be paid the difference amount of what is paid and what is the rate admissible in Escorts then. The same should be paid within one month from today. We make it clear reimbursement to the respondents as approved by us be not treated as precedent but has been given on the facts and circumstances of these cases.
37.  For the reasons and findings recorded herein before, the new policy dated 13th February, 1995 is upheld. The impugned High Court orders to that extent are set aside, Appeals arising out of SLP(C) Nos. 13167 and 12418 of 1997 are allowed to the extent indicated above and are disposed of accordingly. Appeals arising out of SLP (C) Nos. 12143, 12144 and 11968 of 1997 are dismissed, subject to the further direction given in the appeal arising out of SLP (C) No. 11968 of 1997. There will be no order as to costs.
Appeals disposed of


State of Punjab and Others v Mohan Lal Jindal
Supreme Court of India

26 October 1998
C.A. No. 5206 of 1998 (Arising Out of S.L.P. (C) No. 19633 of 1997 23269)
The Order of the Court was as follows :
Leave granted.
1.  We have heard learned counsel for the parties. The questions involved in the present proceedings are squarely covered by a judgment of three-Judge Bench of this Court in the case of State of Punjab v. Ram Lubhaya Bagga  1998 Indlaw SC 15051998 Indlaw SC 1505.
2.  The view taken in the said decision is that when an employee requires medical treatment after the new policy dated 13-2-1995 had come into operation, he will be entitled to medical reimbursement on the basis of the new policy at AIIMS rate. It is not in dispute between the parties that the respondent suffered a heart attack on 20-7-1995 and underwent bypass surgery on 29-7-1995. According to learned counsel for the respondent as there was a long queue of patients at AIIMS Hospital for bypass surgery and his case was of emergency, he had to go to other hospital. It may be so.  However, in the light of the reported decision, the medical reimbursement available to the respondent will be at the AIIMS rates, which has already been paid to him. The additional amount which he has claimed was granted by the High Court on the ground that the new policy was not sufficiently published. The said view of the High Court cannot be sustained. Consequently, the appeal is allowed by observing that the respondent will be entitled to medical reimbursement in the light of the new policy i.e. at AIIMS rates. It was however, vehemently submitted by learned counsel for the respondent that exception deserves to be made in this case as the respondent who was a Teacher could not afford such huge medical expenses which had to be incurred by him due to long queue for bypass surgery in the AIIMS Hospital and he had to go to other hospital.
3.  It is further submitted by learned counsel for the respondent that the appellants may consider his grievance. He may submit such a representation on compassionate grounds. We have no doubt that such a representation will be sympathetically considered by the appellant authorities on its own merits. The judgment of the High Court will stand modified to the extent indicated herein. No costs.
Appeal Allowed.