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Case Number

Sp. A. No. 5 of 1962

Attorney(S)

Jagdish Swarup and S.D. Agarwal
Naithani

Judges

Jagdish Sahai
R.S Pathak, JJ.

Acts

Regulation 40 in Article 311(2) of the Constitution of India.
provisions of Regulation 40, those of Article 311(2)
ARTICLE 226 CONSTITUTION OF INDIA
provisions of Article 226
Corporation Act, 1956,

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Smart Summary

Structured Summary of the Opinion (Special Appeal)

Factual and Procedural Background

Based exclusively on the text of the provided opinion.

The respondent, Sri Sharif Ahmad Nagrami, was employed as an Inspector by the New India Insurance Company Limited and, after the Life Insurance Corporation Act, 1956, came into the employment of the Life Insurance Corporation of India (the Corporation).

He was prosecuted before a Magistrate First Class for offences punishable under Section 406, Indian Penal Code. The Magistrate convicted him (initial conviction noted as 29-9-1956 in the single Judge's judgment) and sentenced him to a fine of Rs. 500/- (in default one year imprisonment). The Divisional Manager dismissed Nagrami from service on 26-2-1957. Nagrami communicated his acquittal (in appeal) on 5-3-1957 and applied for withdrawal of the dismissal on 21-3-1957. The Branch Manager refused to withdraw the dismissal on 2-8-1957. Nagrami appealed to the Executive Committee (Life Insurance Corporation, Bombay) on 14-10-1957; the Executive Committee dismissed the appeal on 28-5-1958 (communication dated 23-6-1958). Nagrami then filed Writ Petition No. 3164 of 1958 in the High Court on 28-10-1958.

Oak, J. (single Judge) allowed the writ petition by judgment dated 9-10-1961, on the ground that Nagrami could not be dismissed under Regulation 40 because, on the date of dismissal (26-2-1957), he was not under an order of conviction (the single Judge relied on the fact of appellate acquittal dated 12-2-1957). The Corporation appealed against that judgment; the present opinion (Jagdish Sahai, J.) is the disposition of that special appeal.

Legal Issues Presented

Whether Regulation 40 of the Corporation's (Staff) Regulations permits dismissal of an employee where the employee had been convicted by a lower court but subsequently acquitted on appeal before the date of the dismissal — i.e., how the "Explanation" to Regulation 40 determines whether a person is to be treated as "convicted" for the purpose of dismissal.
Whether the High Court had territorial jurisdiction under Article 226 of the Constitution (as it stood prior to the Fifteenth Amendment, i.e., before 1963) to quash the order of the Executive Committee (located at Bombay), and whether quashing an original authority's order (within the Court's territorial jurisdiction) could effectively or lawfully nullify an appellate order issued by an appellate authority located outside that territorial jurisdiction.

Arguments of the Parties

Appellant (Life Insurance Corporation of India) — Principal Submissions

The single Judge misread and ignored the "Explanation" to Regulation 40; the correct reading of Regulation 40 permits dismissal where the lower court (the "lowest court which first finally disposes of the case") had committed/convicted the employee.
The High Court (Oak, J.) lacked territorial jurisdiction to quash the order dated 28-5-1958 of the Executive Committee, which was located outside the territorial limits of that High Court under Article 226 as it stood at the relevant time; therefore the writ petition should have been dismissed.

Respondent (Sharif Ahmad Nagrami) — Principal Submission (as presented in the opinion)

Nagrami (through his counsel Mr. Naithani) relied on decisions under clause (a) to the proviso to Article 311(2) of the Constitution and argued (implicitly, through those authorities) that the appellate acquittal meant that he could not be treated as convicted on the date of dismissal, supporting the single Judge's conclusion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R.S. Das, S/O Kamta Prasad … v. Divisional Superintendent, Allahabad; A.I.R. 1960 All. 538	Cited by respondent in support of an argument under clause (a) to the proviso to Article 311(2) (i.e., authorities under Article 311(2) proviso (a) relied upon to contest dismissal).	The Court held this authority inapplicable to the present case because the case is governed by Regulation 40 (which contains an explanation not found in Article 311(2)), and therefore the authority does not control the interpretation of Regulation 40.
The Divisional Superintendent, Northern Railway, Allahabad v. Ram Saran Das; A.I.R. 1961 All. 336	Cited by respondent as an authority under clause (a) to the proviso to Article 311(2) relevant to dismissal following criminal proceedings.	The Court found it inapplicable for the same reason: Regulation 40 (and its Explanation) governs the present situation and contains provisions not present in Article 311(2).
Kunwar Bahadur v. Union of India; 1967 A.L.J. 486 F.B.	Cited by respondent among authorities under clause (a) to the proviso to Article 311(2).	The Court stated that these authorities do not apply because Regulation 40's Explanation controls the instant case; the Explanation has no counterpart in Article 311(2).
Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta; A.I.R. 1963 S.C. 1124	Principle: where an appellate authority (beyond a High Court's territorial jurisdiction) disposes of an appeal, the appellate order is the operative order and a High Court cannot effectively nullify that appellate order by quashing the original authority's order when it lacks jurisdiction over the appellate authority.	The Court regarded itself as bound by this decision and applied its principle to hold that Oak, J. could not, by quashing the Divisional Manager's order, indirectly affect or nullify the Executive Committee's appellate order which lay outside the territorial jurisdiction; therefore Oak, J.'s writ was infructuous.

Court's Reasoning and Analysis

The Court's analysis proceeded in two principal strands corresponding to the two submissions advanced by the Corporation.

1. Interpretation of Regulation 40

The Court examined Regulation 40 and its Explanation. The Explanation states that "termination of proceedings" and "committal or conviction" shall mean the decision of the lowest court which first finally disposes of the case, and that it shall be open to the Corporation to dismiss an employee who is committed to prison or convicted as from the date of the order of the lowest court which finally dealt with the case.
The single Judge (Oak, J.) had concluded that because Nagrami was acquitted by an appellate court on 12-2-1957 and was dismissed on 26-2-1957, he could not be regarded as convicted at the date of dismissal. The present Court found that Oak, J. had not noticed the Explanation to Regulation 40.
The Court reasoned that the Explanation determines the temporal and source-based test for conviction under Regulation 40: whether a person is "convicted" for the Regulation's purposes depends on the order of the lowest court which first finally disposes of the case, not on the subsequent appellate disposition. The Explanation does not direct that the order of the last court to which appeal or revision might be taken should be considered for that purpose.
The Court acknowledged a public policy rationale stated in the opinion: because Corporation servants handle money, the Regulations are strict regarding integrity, and the Explanation ensures that conviction by the lowest court can render an employee liable to dismissal despite subsequent appellate developments.
On that basis the Court disagreed with Oak, J.'s interpretation and concluded the case fell squarely under Regulation 40, so the dismissal was not vitiated on the ground relied upon by Oak, J.

2. Territorial Jurisdiction under Article 226 and Effect of Appellate Order

The Court noted that at the time Oak, J. decided the writ petition (9-10-1961), Article 226 had not been amended by the Fifteenth Amendment (which expanded High Courts' powers territorially in 1963). Therefore, the High Court then lacked jurisdiction to issue a writ to the Executive Committee located in Bombay.
Although the Divisional Manager (whose order dated 26-2-1957 was within the territorial jurisdiction of the Court) could have been subject to a writ, the Court emphasized that quashing the Divisional Manager's order would have been infructuous because the Executive Committee's appellate order dated 28-5-1958 (located beyond the Court's territorial jurisdiction) remained fully effective and would not be affected by such a writ.
The Court relied on the legal principle (and on Collector of Customs v. East India Commercial Co. Ltd., A.I.R. 1963 S.C. 1124) that where an appellate authority beyond the High Court's territorial jurisdiction has disposed of an appeal, its order is the operative order; a High Court cannot indirectly achieve what it cannot directly do (i.e., it cannot nullify an appellate order beyond its jurisdiction by quashing a subordinate/earlier order within its jurisdiction).
Because Oak, J.'s writ was in effect infructuous and could not bind the Executive Committee nor set aside its order dated 28-5-1958, the Court concluded that Oak, J. lacked jurisdiction to grant the effective relief he purported to grant.

Holding and Implications

Holding: The special appeal is allowed. The judgment of Oak, J. dated 9-10-1961 is set aside and Civil Miscellaneous Writ Petition No. 3164 of 1958 is dismissed. The interim order dated 3-8-1962 is discharged. Parties are directed to bear their own costs.

Implications:

The immediate and direct effect is that the single Judge's quashing of the dismissal is set aside; the Executive Committee's order dated 28-5-1958 remains effective and was not quashed by the High Court in the earlier writ proceedings.
The Court applied and followed existing authorities (including the Supreme Court decision cited) to affirm the territorial-limits principle: a High Court cannot indirectly nullify the order of an appellate authority over which it has no territorial jurisdiction.
The opinion does not purport to create a new, broad precedent beyond applying Regulation 40's Explanation and the settled principle concerning territorial jurisdiction and the effect of appellate orders; the decision resolves the dispute between these parties on the basis of the Regulation's text and the cited authorities.

Appeal allowed.

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Divisional Manager And Others v. Sharif Ahmad Nagrami .

Jagdish Sahai, J.:— This special appeal is directed against the judgment of Oak, J. (as he then was) dated 9-10-1961, allowing writ petition No. 3164 of 1958 filed by the respondent, Sri Sharif Ahmad Nagrami (hereinafter referred to as Nagrami).

2. Nagrami was in the service of the New India Insurance Company Limited, Bombay, as an Inspector. After the enforcement of the Life Insurance Corporation Act, 1956, the business of the aforesaid company was taken over by the Life Insurance Corporation of India (hereinafter referred to as the Corporation). The petitioner thereafter came in the employment of the Corporation. He was prosecuted before a Magistrate 1st Class for offences punishable under Sec. 406, I.P.C The Magistrate convicted him under Sec. 406, I.P.C and sentenced him to pay a fine of Rs. 500/- in default to suffer imprisonment for one year. On 26-2-1957 the Divisional Manager dismissed Nagrami from service. On 5-3-1957 Nagrami informed the Corporation of his acquittal and on 21-3-1957 he made an application for the withdrawal of the dismissal order. On 2-8-1957 the Branch Manager informed Nagrami that the order of dismissal could not be withdrawn. On 14-10-1957 Nagrami filed an appeal before the Executive Committee, Life Insurance Corporation Bombay (hereinafter referred to as the Executive Committee). On 28-5-1958 the Executive Committee dismissed the appeal and by means of a letter dated 23-6-1958 the Divisional Manager informed Nagrami that his appeal had been dismissed on 28-5-1958. The petitioner then filed writ petition No. 3164 of 1958 in this Court on 28-10-1958.

3. Oak, J. allowed the writ petition on the ground that Nagrami could not be dismissed under Regulation 40 of the (Staff) Regulations of the Corporation because on the date when the order of his dismissal was passed, he was not under an order of conviction. The learned single Judge held that, that being the position, there was violation of statutory regulation and for that reason the order of dismissal was liable to be quashed. Oak, J. repelled the plea made on behalf of the Corporation that inasmuch as the Executive Committee which dismissed the appeal of Nagrami was located outside the territorial limits of the jurisdiction of this Court under Article 226 of the Constitution of India, no writ could be issued to it and even though the order of dismissal was passed by the Divisional Manager who was functioning within the jurisdiction of this Court. The court could not grant any relief to Nagrami.

4. In this appeal which has been filed by the Corporation Mr. S.D Agarwal has made two submissions before us: firstly, that the learned single Judge has misread the provisions of Regulation 40 and, secondly, that in view of the circumstance that this Court had no jurisdiction to quash the order of the Executive Committee, the writ petition was liable to be dismissed. We proceed to consider the submissions seriatim. Regulation 40 reads:—

“40(1) An employee who is arrested for debt or on a criminal charge shall be liable to be placed under suspension from the date of his arrest and shall be allowed the payments admissible to an employee under suspension under clause (4) of Regulation 41 until the termination of the proceedings against him, when an adjustment of his pay and allowances shall be made according to the circumstances of the case and in the light of the decision as to whether his absence is to be accounted for as a period of duty or leave, the full pay and allowance being given only in the event of the employee being acquitted of all blame and treated as on duty during the period of his absence. An employee who is committed to prison for debt or is convicted of a criminal offence shall be liable to dismissal.

(2) All such cases shall be reported to the Executive Committee as soon as practicable.

Explanation: In this regulation the expression “termination of proceedings” shall mean the decision of the lowest court which first finally disposes of the case. Similarly committal or conviction shall mean committal or conviction by the lower court which first disposes of the case and it shall be open to the Corporation to dismiss an employee who is committed to prison or who is convicted of a criminal charge as from the date of the order of the lowest court which finally dealt with the case.”

(Italicise by us)

5. It has been contended by Mr. S.D Agarwal that the learned single Judge ignored the explanation. It is true that the explanation has not been noticed by Oak, J. in his judgment. He has, while dealing with Regulation 40, observed as follows:—

“It is true that the petitioner was initially convicted by a Magistrate on 29-9-56. But he was acquitted in appeal on 12-2-57. It is significant that the order of acquittal was passed in appeal before the petitioner was dismissed from service (26-2-57). In view of the petitioner's acquittal on 12-2-57, it was impossible to say that he had been convicted on 29-9-56. On 26-2-57 it was impossible to dismiss the petitioner from service under Regulation No. 40 on the simple footing that he had been convicted of a criminal offence. The true position was that the petitioner's conviction had been set aside in appeal.”

6. In support of this observation Mr. Naithani, who has appeared for Nagrami, has placed reliance upon the following decisions of this Court under clause (a) to the proviso to Article 311(2) of the Constitution of India:—

1. R.S Das, S/O Kamta Prasad…Applicant; v. Divisional Superintendent, Allahabad…Opposite Party. A.I.R 1960 Alld. 538..

2. The Divisional Superintendent, Northern Railway, Allahabad… v. Ram Saran Das…. A.I.R 1961 Alld. 336..

3. Kunwar Bahadur… v. Union Of India…. 1967 A.L.J 486 F.B..

7. We have carefully perused the provisions of Regulation 40, those of Article 311(2) proviso (a) as also the authorities mentioned above. In our opinion, the authorities have no application to the case before us which is governed by Regulation 40 and not by Article 311(2) proviso (aa). There is no provision similar to the explanation to Regulation 40 in Article 311(2) of the Constitution of India. The explanation makes it absolutely clear that whether or not a person has been convicted for the purposes of Regulation 40 would be determined on the basis of the order of conviction passed by the lowest court. The explanation does not provide that for the determination of the question whether or not a person has been convicted, the order of the last court to which appeal or revision might have been taken would be considered. There appears to be sound public policy behind the explanation to Regulation 40. A servant of the Corporation has to deal with money and it is of absolute importance that his integrity should be above board. People, whose integrity is open to the least suspicion, have not been considered fit by the Regulation to be allowed to continue in the service of the Corporation. That is why the explanation has been added to Regulation 40 clearly providing that conviction for the purposes of that regulation shall be conviction by the lowest court. The circumstance that Nagrami was acquitted by the appellate court is of no consequence in view of the explanation to Regulation 40. Under these circumstances with great respect, we disagree with Oak, J. and are of the opinion that the case of Nagrami clearly fell under Regulation 40 and that the order of his dismissal could not be set aside, on the ground that it resulted in the violation of the statutory provision of Regulation 40. We have already pointed out earlier that the learned single Judge ignored from consideration the explanation to Regulation 40 in arriving at his conclusion.

8. The second submission of Mr. S.D Agarwal, in our opinion, must also be upheld. The factual position is that the learned single Judge has no jurisdiction to quash the order dated 28-5-1958 passed by the Executive Committee dismissing the appeal of Nagrami. The Fifteenth amendment to the Constitution by which the powers of High Courts under Article 226 of the Constitution have been extended had not been passed until 1963 with the result that Oak, J. had to deal with the case on the basis of the provisions of Article 226 as they stood on 9-10-1961 the date on which Oak, J. decided the Writ petition giving rise to this special appeal. At that time admittedly he had no jurisdiction to issue a writ against the Executive Committee which was located at Bombay, and to quash its order dated 28-5-1958. It is tine that the Divisional Manager's office was located within the territorial jurisdiction of this Court and this Court could quash his order dated 26-2-1967. But that would have been an infructuous writ as the appellate order dated 28-5-1958 would not be affected by that writ and would stand undisturbed.

9. Clearly the quashing of the order dated 26-2-1957 would not result in the quashing of the order dated 28-5-1958 or in making the latter order invalid or lifeless. The effective force of the order dated 28-5-1958 cannot in any manner either be destroyed or curtailed by the writ issued by Oak, J. Under these circumstances, it appears to us that the writ issued by Oak, J. is an infructuous writ. It is well settled that a court does not issue an infructuous Writ. The present position is that the Executive Committee is not bound by the decision of Oak, J. dated 9-10-1961 nor its order stands quashed.

10. But quite apart from it as a pure question of law we are extremely doubtful whether this Court could issue a writ to quash the order dated 26-2-1957 without quashing the order dated 28-5-1958. Whether or not the order dated 26-2-1957 has merged in the order dated 28-5-1958, the factual and legal position is that the order dated 28-5-1958 is fully effective and its effectiveness cannot be destroyed in any indirect manner. It is well settled that what a court cannot do directly, it cannot do indirectly. If this Court could not quash the order dated 28-5-1958 on the ground that the authority passing that order was located beyond its jurisdiction, it cannot in effect quash it by ignoring it and quashing the order dated 26-2-1957. The view that we are taking finds support from Collector of Customs, Calcutta v. East India Commercial Co. Ltd. Calcutta A.I.R 1963 S.C 1124.. There the learned Judges of the Supreme Court while dealing with a similar matter observed:—

“In All these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order or the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the letter authority which is the operative order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.”

11. We are bound by this decision. The result, therefore, is that even the second submission of Mr. S.D Agarwal must be upheld.

12. In view of what we have said above, we allow this special appeal, set aside the judgment of Oak, J. dated 9-10-1966 and dismiss Civil Miscellaneous Writ Petition No. 3164 of 1958. But we direct the parties to bear their own costs. The interim order dated 3-8-1962 is discharged.

Appeal allowed.

Divisional Manager And Others v. Sharif Ahmad Nagrami .

Structured Summary of the Opinion (Special Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Life Insurance Corporation of India) — Principal Submissions

Respondent (Sharif Ahmad Nagrami) — Principal Submission (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

1. Interpretation of Regulation 40

2. Territorial Jurisdiction under Article 226 and Effect of Appellate Order

Holding and Implications

Divisional Manager And Others v. Sharif Ahmad Nagrami .

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