Full Judgment Text
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PETITIONER:
MAMAD HASSAM BHAGAD AND OTHERS
Vs.
RESPONDENT:
STATE OF GUJARAT AND OTHERS
DATE OF JUDGMENT: 09/05/1996
BENCH:
VENKATASWAMI K. (J)
BENCH:
VENKATASWAMI K. (J)
ANAND, A.S. (J)
CITATION:
1996 AIR 2057 JT 1996 (5) 327
1996 SCALE (4)313
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
K. VENKATASWAMI,J.
This appeal preferred under section 19 of the Terrorist
and Disruptive Activities (Prevention) Act. 1987
(hereinafter referred to as "TADA") challenges the judgment
and order of the learned Designated Judge (TADA), Jamnagar
dated July 1, 1994.
The learned Designated Judge confirmed an order of
attachment of seven vessels/ships under Section 7A of TADA
pending further investigation in the matter.
At the outset we would like to make it clear that we do
not propose to deal with the matter either in detail or to
give a final decision in this matter in view of the fact
that when the judgment under appeal was made the matter was
under the investigation stage only. In our view any opinion
expressed at this stage might cause prejudice to either
party and that is the reason for not going into the matter
in detail or giving any final decision. Briefly stated the
facts are as under :
In the Kalyanpur Police Station Crime Register No.62/93
related to a case booked for the offences punishable under
sections 121, 121A, 122, 34 IPC and 25(1)(A)(D),25(1)(A)(2),
25(1)AA, 25(A)(B), 25 (A)(F) of the Arms Act, Section 20 of
Wireless Telegraph Act and Sections 3,4 and 5 of TADA and
Section 135(l) of the Bombay Police Act. In the course of
investigation one diary of Hamir Sajan was found and it
contained certain financial transactions relating to one
Haji Ismail for purchasing the ships in question. The
District Superintendent of Police attached those ships
invoking powers under Section 7A of TADA. A report
application No.1993 was filed before the learned Designated
Judge seeking confirmation of attachment.
The appellants claiming to be the owners of the ships
in question objected to the attachment and sought revocation
of such attachment before the learned Designated Judge.
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It was argued before the learned Designated Judge that
section 7A of TADA came into force on and from 22.5.1993 and
the purchases of all the ships having taken place well
before that date, the provisions of TADA cannot be invoked.
It was also contended that none of the persons objecting
(claiming to be the owners) the attachment had ever been
arrested provisions of Customs Act or under TADA and hence
prima facie Section 7A of TADA has no application. It was
further contended that to invoke Section 7A of TADA there
should be knowledge or reasons to believe that properties
attached are involved in terrorist activities and that
requirement was not satisfied on the facts of the case.
Before the learned Designated Judge, the Designated
Public Prosecutor after narrating the facts relating to the
purchase of the seven ships in question contended that on
prima facie case being made out and entertaining reason to
believe that the property in question falls within the
mischief of Section 7A attachment in question was made and
that further inquiry/investigation was still going on
regarding all the seven ships to conclusively find as to
whether they were involved in smuggling activities or not.
It was admitted that since some of the persons were
absconding and some of others had left the district
therefore, at that stage, attachment could not be revoked
and he prayed for confirmation of the order of attachment.
The learned Designated Judge bearing in mind that the
investigation was still going on has given only a prima
facie finding and on being satisfied with the prima facie
case confirmed by the judgment under appeal.
The learned Designated Judge found that the main
accused was one Haji Haji Ismail and he was doing the
landing activities of gold and silver articles which are
smuggled goods and in order to see that Government
authorities do not cause any hurdles to him in carrying out
such activities he was possessing automatic rifles, foreign
made Pistols and other latest and scientific means of
communications and they were already attached and Hamir
Sajan and other three persons were arrested. Though they
were released on bail, in the first instance on the ground
that TADA does not apply to them, on appeal to this Court,
the order granting bail to then was cancelled and all the
accused were taken into custody. The learned Designated
Judge also found, prima facie, that there was no mention at
all in Section 7A that the property to be investigated must
be the property of an offender against whom the offence
under Section, 7A is to be registered. According to the
learned Judge what was required to be established was that
the property in relation to which the investigation was made
must be having sources of purchase from the amount or
proceeds of terrorism or by way of commission of terrorist
activity. Therefore, the learned Judge found that it was not
necessary or incumbent upon the Investigating Officer to
attach only properties of the persons who were involved in
the offence under TADA Act and that on the other hand, any
property can be attached if it is reasonably believed that
it was derived from the commission of any terrorist activity
or was acquired by the proceeds of ’terrorism’. The learned
Judge also found that ’the aforesaid party (namely the
appellants herein) are related to the main smuggler Haji
Haji Ismail’ who is absconding and by using the funds
provided by him the ships in question were purchased and so
it can be said that
"prima facie, doing smuggling
activity of keeping and possessing
latest and modern foreign made arms
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and ammunitions in order to cause
terrorism among the Customs and
Police Officers would mean that by
keeping the authority such as
Custom Officers or Police Personnel
in constant fear due to his
terrorist activities, the amount is
derived from that activity, it
would mean that the fund is created
by way of terrorist act, as Haji
Haji Ismail has managed for the
money to purchase seven ships to
the opposite party members who have
purchased the ships in their names
only as a show and ostentation so
that they can be safe from penal
action and such other
consequences."
Finally the learned Judge observed
that :
"Therefore, at this juncture, it is
established prima facie that ships
mentioned in report Application
No.1/1993 are liable to be attached
and they are attached rightly as
stated by the authorities and they
deserve to be confirmed."
Mr. Mehta, learned Senior Counsel reiterated the same
arguments which were addressed before the learned Designated
Judge. As we have observed at the outset it would not be
advisable to give any definite opinion with regard to the
’involvement’ of the attached ships at this stage except
observing that from the materials on record we are satisfied
that the Investigating Officer prima facie had reason to
believe that there is basis for invoking Section 7A of TADA.
We may also add in fairness to Senior Counsel that he cited
certain judgments to support his arguments, but for the very
same reasons as given above we do not think it is necessary
to quote and elaborate those citations."
After carefully going through all the relevant papers
and the prima facie views expressed by the learned
Designated Judge, we are of the opinion that at this stage
we need not interfere with those conclusions reached by the
learned Designated Judge. However, on the facts of this
case, the ship bearing the name "Nabi Mahar", Registration
No.B.D.I.430 purchased on 10.12.1965, as per the case of the
prosecution itself, cannot be kept under attachment, the
reason being that this ship was purchased long before the
passing of TADA. Therefore, the said ship has to be released
from attachment. We make an order accordingly. Except for
this modification, for obvious reason. we do not find any
ground to interfere with the judgment and order of the
learned Designated Judge in any other respect. Subject to
the modification as above, the appeal stands disposed of.
C.A.NOS. S.L.P.NOS. CC NOS.
-------- ---------- -------
8652/96 11870/96 19260/93
8919-20/96 4250-51/93
8729/96 7406/93
8725/96 11911/96 20225/93
2570/93 8090/93 20528/93
8703/96 16410/93
8364-66/96 2533-35/94 20030/93
8905/96 2993/94
2359-60/94
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5305/93
8699/96 11178/94
8702/96 15438/54
8697/96 17640/94
8863/96 13168/94
8726/96 14415/95
8655/96 17196/95
8698/95 18159/95
Union of India & Anr, etc. etc.
V.
M. Bhaskar & Qrs. etc. etc.
[With CC 19260/93 in C.A. Nos.......of 1996 (arising out SLP
(C) Nos. 4250-51/93, 7406/93, CC 20225/93 in C.A. No.
2570/93, C.A. No.......of 1996 (arising our of SLP(C)
No.16410/93), CC 20030/93, (arising out of SLP(C) Nos.2533-
35/94, 2993/94), C.A. Nos.2359-60/94, 5305/93, C.A.
Nos....of 1996 (arising out of SLP (C) Nos. 11178/94,
15438/94, 17640/94, 13168/94, 14415/95, 17196/95, 18159/95]
Union of India & Anr. etc.etc.
V.
M. Bhaskar & Ors. etc.etc.
J U D G M E N T
HANSARIA.J.
This batch of appeals requires us to decide two
questions both of whom are relatable to the Railway Board’s
memorandum dated 15.5.1987 on the subject of recruitment of
Traffic/Commercial Apprentices. The two questions are: (1)
the purport of the memorandum: and (2) the validity of the
same.
2. There has been a cleavage of opinion among the various
Central Administrative Tribunals (CATs) of the country. Most
of the Tribunals have rejected the understanding of the
Union of India - the main appellant-relating to the meaning
and scope of the memorandum. The Ernakulam Bench of the
Tribunal has even regarded the memorandum as invalid.
3. The broad contents of the memorandum may be noted. It
brought about some changes in the recruitment of
Traffic/Commercial Apprentices - one of the changes being
that on and from 15.5.1987 the recruitment of these
Apprentices would be made in the pay scale of Rs.1600-2660
(this scale earlier was Rs.1400-2300) and, instead of all
the posts being filled up by promotions, ratio of promotees
was made 75%, and of the remaining 25%, 10% were required to
come through Railway Recruitment Boards and 15% on the basis
of Limited Department competitive Examination. The pre-1987
Apprentices laid their claim for the higher scale of pay an
the basis of 1987 memorandum; and it is this claim which has
come to be allowed by the majority of the CATs.
4. The appellant has challenged the legality of this view.
It has also been contended that the memorandum is not
invalid for the reason given by the Ernakulam Bench or, for
that matter, any other reason. The learned counsel appearing
for the respondents have supported the view taken by the
majority of the CATs insofar as the benefit of higher pay
scale is concerned. According to them the memorandum is also
invalid because of its discriminatory nature and
introduction of arbitrary cut-off date.
5. To decide the controversy, it would be apposite to
apprise ourselves as to what was the procedure of
recruitment before the memorandum in question; and what was
really meant by the word ’Apprentices’. We have put this
aspect at the forefront because the Tribunals. who have
granted the benefit of higher pay scale, have done so, with
respect, without applying their mind to the relevant
provisions of the Indian Railway Establishment Manual,
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hereinafter the Manual, dealing with the recruitment of (1)
Traffic Apprentices; and (2) Commercial Apprentices. Role
123 of 1968 Edition of the Manual deals with recruitment of
Traffic Apprentices and Rule 127 with Commercial
Apprentices. It is apparent from this Manual that the posts
to be held by Traffic Apprentices before the 1987 were of:
(1) Assistant Station Masters; (2) Assistant Yard Masters;
(3) Traffic Inspectors; and (4) Section Controller (in the
scale of Rs.1400-2600). Insofar as Commercial Apprentices
are concerned these posts were of: (1) Assistant Claims
inspectors/Supervisors; (2) Assistant Commercial Inspectors;
(3) Assistant Rates Inspectors (Goods and Coaching); and (4)
Other Inspectors for outdoor duties. This apart, the pre -
1987 position was that in the Traffic and Commercial
Departments, posts in the pay scale of Rs.1400-2300 were
being filled up to the extent of 25% by direct recruits, of
which 15% were from open market and 10% from Limited
Departmental Competitive Examination; and the balance 75% by
promotion from lower grade. Further, the term ’Apprentices’
was being actually used to cover ’direct recruits’, as
distinct from ’promotees’. Another thing to be noted, which
again missed the Tribunals in question, is that when the pay
scale of Rs.1400-2300 was being paid to Traffic/Commercial
Apprentices, the higher pay scale of Rs.1600-2660 was being
paid to those who were in a higher grade.
6. Though the above is disputed by Mrs. Sharda Devi,
appearing for some of the respondents, we entertain no doubt
on this score, because from what has been stated in para 6
of the Affidavit filed by T.P.V.S. Sekar Rao, Deputy Chief
Personnel Officer, South Central Railway Headquarters
Office, Secunderabad, it appears that the Pay scale of
Rs.1400-2300 was being made available to Traffic Inspector
Grade III, whereas scale of Rs.1600-2660 was meant for
Traffic Inspectors Grade II. Similarly, Commercial
Inspector, Grade III, was getting the scale of Rs.1400-2300
and Commercial Inspector, Grade II, the scale of Rs.1600-
2660. Mrs. Sharda Devi has referred to us in this connection
to the Table of "Avenue of Promotion for SS/TIs.." finding
place at page 82 of this counter, to being home her point.
This chart itself shows that there are promotional posts and
the old state of Rs.455-700 (which on revision became
Rs.1400-2300) was meant for some Traffic Apprentices and not
all. We may refer in this context to what finds place in
Section B of Chapter II of the Manual. This Section deals
with Rules governing the promotion of Group ’C’ and shows
that some promotional posts have been categorised as
selection posts and some non-selection. The aforesaid chart
relating to the ’avenue of promotion’ has itself mentioned
which are the non-selection posts and which are selection
posts.
7. From the aforesaid, it is clear that the memorandum of
1987 was really not one of revision of pay of the
Traffic/Commercial Apprentices, as has been understood by
those Tribunals who have conceded the higher pay scale. The
higher pay scale was really meant for the Traffic/Commercial
Inspectors of higher grade. Mrs. Sharda Devi’s effort to
satisfy us that the higher pay scale was really a revision
on the basis of what finds place in para 2(ii) of the 1987
memorandum is founded on misapprehension inasmuch the
mention in that sub-para that "Traffic Apprentices absorbed
in the cadre of Section Controllers in scale of Rs.470-
750/1400-2600 (RP) will be fixed at starting pay of Rs.1600
on absorption", does not mean that these Section Controllers
were given the pay scale of Rs.1600-2660, as urged by the
learned counsel. All that was conveyed by this statement was
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that the Section Controllers, even though getting the
revised scale of Rs.1400-2600, their starting pay would be
Rs.1600. This was so required according to Shri Malhotra
appearing for the appellant. because the Trained Apprentices
could become eligible for the post of Section Controller
only after having two years Yard’s experience in the grade
of Rs.455-700. It is this pay scale which had become on
revision Rs.1400-2300: the unrevised pay scale of Section
Controller was Rs.470-750, which on revision become Rs.1400-
2600. So, what has been stated in para 2(ii) does not
support the case of the respondents that the memorandum of
1987 really dealt with the revision of pay of all the
Traffic/Commercial Apprentices.
8. We, therefore, hold that the Tribunals which allowed the
benefit of pay scale of Rs.1600-2660 to all the
Traffic/Commercial Apprentices irrespective of the grade of
the posts held by them, not only misunderstood the
memorandum of 1987, but misconceived the provisions relating
to the recruitment and promotion of these Apprentices as
finding place in the Establishment Manual. Indeed, somehow
or other they were oblivious of what has found place in the
Manual in this regard.
9. This leaves for consideration the question of validity of
the memorandum. The Ernakulam Bench, which held the
memorandum invalid, did so for the reason that the Railway
Board, which had issued the memorandum, could not have
changed the provisions finding place in the establishment
Manual. which are statutory in nature, whereas the
memorandum was categorized as administrative instruction.
Now, there is no dispute in law that statutory provision
cannot be changed by administrative instruction. Now then,
the Tribunal, despite having noted Rule 1-A of the Indian
Railway Establishment Code (Volume-I) as published on 21st
March, 1951 reading:
"Normally recruitment will be to
the lowest grade of the lowest
class but direct recruitment on
limited scale to intermediate
grades will be made in accordance
with instructions laid down by the
Railway Board from time to time"
ultimately failed to bear in mind the aforesaid provision.
Rule 1-A which had come to be made pursuant to the power
conferred by the proviso to Article 309 and having stated
that the recruitment in the lowest grade will be made in
accordance with the instructions laid down by the Railway
Board from time to time, the rule itself permitted the
Railway Board to issue necessary instructions, and the
memorandum of 1987 having been issued by the Railway Board
in exercise of this power, we hold that Board had valid
authority to issue the memorandum.
10. Another submission made by Mrs. Sharda Devi in
assailing the validity of memorandum was that though pre -
15.5.1987 Apprentices would get the scale of Rs.1400-2300,
the post 15.5.1987 Apprentices were made available the scale
of Rs.1600-2660, for no good reason, and so, the memorandum
was arbitrary. This is more so, as earlier the apprentices
were to undergo training for 3 years, which was reduced to 2
years by the memorandum. Shri Malhotra’s contention in this
connection was that there was a change of policy in the
sense that Apprentices recruited after 15.5.1987 were to man
the posts, not of Assistant Station Masters, Assistant Yard
Masters etc. as before, but of Station Masters and Yard
Masters. It is because of this that higher pay scale was
made available to them. It was also brought to our notice
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that the memorandum provided that the standard of
examination for the Apprentices to be recruited after
15.5.1987 was required to be higher than that which was
prevailing, and if because of this, the period of training
was made 2 years in place of 3, the same cannot make the
policy unreasonable, as a 2 year period for training is of
sufficiently long duration to equip persons selected after a
more rigorous test, with the knowledge required to man the
posts in question. We agree and state that if direct
recruits passing examination of higher standard to man
higher posts were required to be given higher pay scales,
the same cannot be regarded in any way as discriminatory or
even arbitrary. Such a policy decision is not unreasonable
also.
11. The final submission in this regard was that the cut-
off date "15.5.1987 is arbitrary. This also is not correct
because the memorandum had come to be issued following many
deliberations and discussions with different unions of which
mention has been in detail in one of the documents on
record. So, it cannot be said that the date (15.5.1987) is
one ’picked out from a hat’, in which case a cut-off date
would be arbitrary, as stated by this Court recently in para
4 of Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC
212. We are rather satisfied that the date has relevance and
the memorandum has come to be issued following the aforesaid
discussion. So, we uphold the validity of the memorandum.
Appeals @ SLP (C) Nos.2533-35 of 1994
12. In these appeals, it was contended by Shri Das on
behalf of respondent Nos.2 to 4 that the cases of these
respondents stand on different footing from other
respondents. because, though they had come to be recruited
pursuant to an advertisement of January 1987, they were
called for training programme commencing from August 1989
and so, they should be taken as post - 1987 Apprentices, for
which reason they would be entitled to the benefit of the
memorandum. This contention has been advanced because of the
language of sub-para (xii) of para 2 of the memorandum,
according to which the revised pay scale of Rs.1400-2300 was
meant for "apprentices already under training". It was urged
that the aforesaid respondents were not "under training" on
15.5.1987 as they had been called for training which was to
commence from August 1989, Our attention was also drawn by
Shri Das to a document at page 130 of the paper book, which
is a communication of the Principal, Sonal Training School,
addressed to the Chief Optg. Supdt. by which the
representation of 30 Traffic Apprentices for the
absorption/posting in the pay scale of Rs.1600-2660 was
forwarded for consideration.
13. As to the last document, we would say that the same is
inconsequential inasmuch as the Principal had only forwarded
the representation. Though it is correct that the
respondents were called for training from 1989, that is not
enough to distinguish their case from other respondents
inasmuch as they had come to be recruited pursuant to an
advertisement of January 1985; and so, they have to be
treated as pre-1987 Apprentices. What has been stated in
sub-para (xii) cannot be taken in isolation; that has to be
understood along with other provisions contained in the
memorandum. If this were to be so done, we do not think if
we would be justified in treating these respondents
differently from other pre-1987 Apprentices because they
were called for training in 1989. We have taken this view
because it is known that at times there are no vacancies in
training schools and so training programme has to be spread
out. We, therefore, reject the contenting advanced on behalf
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of these respondents by Shri Das.
Appeal @ SLP (C) No. 15438 of 1994
14. In this appeal, a separate argument was advanced on
behalf of respondent No.1, Prakash Chandra Ojha, who had
approached the Patna Bench of the CAT with the grievance
that he was unjustly and illegally denied promotion to
Grade- I Commercial Inspector in 1990, despite his having
been promoted as Commercial Inspector Grade-II by an order
dated 21.9.1989, which was made effective from 11.10.1988,
because of which he had become eligible for promotion to
Grade-I on 11.10.1990, as the eligibility condition was
completion of 2 years of experience in Grade-II. The Patna
Bench held that the exclusion of this respondent from the
list of eligible candidates for the selection meant for 1990
was wrong.
15. The aforesaid decision has been challenged in this
appeal by the Union of India by contending that 2 years’
period of experience has to be reckoned, not from
11.10.1988, but from 21.9.1989. There is no dispute that the
eligibility condition is 2 years experience in Grade-II.
Now, this respondent having really started working in Grade-
II pursuant to the order of 21.9.1989, he could not have
gained experience prior to the date he had joined pursuant
to this order. The mere fact that his promotion in Grade-II
was notionally made effective from 11.10.1988 cannot be
taken to mean that he started gaining experience from that
day, because to gain experience one has to work. Notional
promotions are given to take care of some injustice, inter
alia, because some junior has come to be promoted earlier.
But we entertain no doubt that the person promoted to higher
grade cannot gain experience from the date of the notional
promotion; it has to be from the date of the actual
promotion.
16. We, therefore, hold that the view taken by the Patna
Bench qua this respondent is not sustainable.
Conclusion
17. All the appeals, therefore, stand disposed of by setting
aside the judgments of those Tribunals which have held that
the pre-1987 Traffic/Commercial Apprentices had become
entitled to the higher pay scale of Rs.1600-2660 by the
force of memorandum of 15.5.1987. Contrary view taken is
affirmed. We also set aside the judgment of the Ernakulam
Bench which declared the memorandum as invalid; so too of
the Patna Bench in appeal @ SLP(C) No.15438 of 1994 qua
respondent No.1. We also state that cases of respondents 2
to 4 in appeals @ SLP(C) Nos.2533-34 of 1994 do not stand on
different footing.
18. Despite the aforesaid conclusion of ours, we are of the
view that the recovery of the amount already paid because of
the aforesaid judgments of the Tribunals would cause
hardship to the concerned respondents/appellants and,
therefore, direct the Union of India and its officers not to
recover the amount already paid. This part of our order
shall apply (1) to the respondents/appellants who are before
this Court: and (2) to that pre-1987 Apprentice in whose
favour judgment had been delivered by any CAT and which had
become final either because no appeal was carried to this
Court or, if carried, the same was dismissed. This benefit
would be available to no other.