“Purpose of C.A.T. Though Defeated Abolition Out of Question"

(By N. Dharmadan, Senior Advocate, High Court of Kerala)

The very object of the establishment of C.A.T., thro' the 42nd Amendment of the Constitution and the addition of Arts.323-A and 313-B in the Constitution of India, was to takeout the problem of public servants pertaining to their recruitment, conditions of service and other connected matters from the jurisdiction, powers and preview of civil courts including the High Court and place them before a specialised institution, manned by experts in the judicial and administrative fields so that their grievances can be considered and disposed of effectively in an expeditious manner without causing any delay or incurring high expenses. In other words the Tribunal, contemplated for taking decisions on service problems, is a peculiar amalgam of Industrial Tribunal, High Court and other civil courts rolled into one. It has all the powers, jurisdiction and authority of these institutions for granting reliefs and rendering justice.

Due to the vast development, progressive outlook and legal thinking, the public - administration has become so much complicated and confused that the socio-economic problems could be tackled only from the practical point of view by administrative process with some sort of legal background, instead of disposing of them through the normal legislative and judicial process of administration of the law governing the same. This is the reason why a noval device had been designed by the introduction of 42nd Amendment of the Constitution, within the existing legal frame work, by establishing a Tribunal consisting of an experienced administrative expert and a legally equipped judicial member, so that they can dispense justice bearing in mind the well accepted principle that the whole of administrative law is nothing but a branch of constitutional law flowing from constitutional principles of 'rule of law' and sovereignty of Parliament.

In exercise of the powers under Art.323-A, the Administrative Tribunals Act, 1985 was enacted to adjudicate service disputes completely ousting the jurisdiction and powers of civil court and High Court from the appointed date viz. 1.11.85. In fact t Tribunal under the Act has been considered as a "substitute and not supplemental to the High Court in the scheme of administration of justice" and they are required to exercise the powers of the High Court in regard to specified field under the service jurisprudence. In Sampath Kumar's [1] case, decided on 9.12.86, the Constitution Bench of the Supreme Court held that the Act provides for "an effective alternative institutional mechanism or authority for judicial review." The Supreme Court answered the question as to the bar of jurisdiction of the High Court, in respect of service matters under Arts.226 & 227 of the Constitution, as absolute subject only to Arts.32 and 136 of the Constitution as contained in S.28 of the Act. The court adopted the above reasonings in Dutta v. Union of India [2] Minerva Mills case [3] etc. for arriving at this conclusion. The Supreme Court also held that the very object and purpose of the establishment of this new mechanism through the Act is for "taking over part of the existing backlog and a share of the normal load of the High Courts and for arriving a quick settlement of service disputes in the interest of public servants". This was followed in Chopra v. Union of India,[4] Union of India v. Darmanad, [5] Rajendra Singh Yadav v. State of U.P., [6] Krishna Sahai v. State of U.P.[7] and Majumdar Union of India. [8] Not only the effect of all these cases have been practically washed away by the Chandrakumar's case, but recently the Supreme Court also held in Dr. Duryodhan Sahu's case [9] that the C.A.T. cannot entertain public interest litigation the instance of a total stranger.

The C.A.T. has come to stay with very wide powers. It has three fold jurisdiction. The original jurisdiction under S. 19 of the Act is much wider than that of Art.226 of Constitution of India because the Tribunal can at the same time exercise all the powers of a civil courts and the High Court in specified matters. The powers of all courts are vested in the Tribunal under S.14(1) of the Act. This Tribunal has all the trappings of a Court. It has also the ancillary and incidental powers to do justice as held by the Supreme Court in Union of India v. Paraslaminates (P) Ltd. [10] The Supreme Court held the Tribunal functions as a court within the limits of its jurisdiction. Furthermore, though the powers of the Tribunal are limited and its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, being a judicial body, it has all the incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers". It is not barred by any procedural constraints as contained in the C.P.C. or Evidence Act. It is guided solely by the principles of natural justice and fair play. It has adopted its own procedure as envisaged in S.22(1) of the Act to do justice to the litigants. It can even resort to visitorial or inquisitional procedure to discover truth and do justice in the disposal of cases provided principles of natural justice are not violated in any manner. Under S.29 of the Act the Tribunal can exercise original jurisdiction of the High Court and Civil Courts relating to service matters from the appointed day. It has also the appellate jurisdiction over any decree or order, which has been passed by any court other than the High Court, in any suit or other proceedings in respect of service matters before the establishment of the Tribunal under S.29-A of the Act. The jurisdiction of the Tribunal is not confined to public servants who are holding posts, but it extends to all service matters coming under S.3(q) read with S.14 of the Act. So far as the service matters are concerned the Tribunal has the same power and jurisdiction analogous to that of High Court under Arts.226 and 227 of the Constitution of India from 1.11.85. This position has been considered in detail in Railway Manager v. Bhaskar.[11]

But after Chandrakumar's case this position has been changed considerably. It was held that the "Tribunal was intended to provide a self contained, almost wholly exclusive (the exceptions being specified in S.28) forum for adjudication of all service-related matters. The Tribunals created under the Act were intendedly to perform a substantial role as opposed to and this distinction is of crucial significance of supplemental role with regard to the High Courts." The jurisdiction of C.A.T. is subject to the judicial review to the Division Bench of the High Court under the judicial dictum in Chandra Kumar's case. The Court held that in respect of the power of judicial review, the jurisdiction of the High Courts under Art.226/227 cannot be excluded". The Supreme Court observed "we hold that all decisions of Tribunals whether created pursuant to Art.323-A or 323-B of the Constitution, will be subject to the High Court writ jurisdiction under Art.226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."........... The Tribunals are competent to hear matters where the vires of statutory provisions are questioned". But the Supreme Court curtailed this power by stating that "however in discharging this duty, they cannot act as substitutes for the High Court and Supreme Court and Supreme Court, which have under our constitutional set up, been specifically entrusted with such an obligation. The function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before Division Bench of the respective High Courts". The Tribunals jurisdiction is further restricted by saying that "the Tribunal shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly".

Sampath Kumar's case was explained away by stating that "in five decades that have ensured since independence, the quantity of litigation before the High Courts has exploded in an unprecedented manner. The decision in Sampath Kumar's [12] case was rendered against such a backdrop. We are conscious of the fact that when a constitution Bench of this Court in Sampath Kumar's case adopted the theory of alternative institutional mechanism it was attempting to remedy an alarming practical situation and the approach selected by it appeared to be most appropriate to meet the exigencies of the time. Nearly a decade later, we are now in a position to review the theoretical and practical results that have arisen as a consequence of the adoption of such an approach”. But nobody has made a comprehensive survey of the working of the Tribunals. An overall assessment of the functioning of the Tribunals would have given a complete picture about the present position. The Supreme Court relied on the report of the 'Arrears Committee' popularly known as "Malimath Committee" [13] in which it is stated "even the experience of setting up Administrative Tribunal under the Administrative Tribunals Act, 1985 has not been widely welcomed". It is further stated "there is need for a fresh look and review and a serious consideration before experiment is extended to new arrears of the fields". It is known on what basis such an opinion was formed. The High Courts did not feel happy about the establishment of a parallel judicial forum for dealing with the service matters. However it was observed by the Supreme Court that "the reasons for which the Tribunals were considered still persist; indeed those reasons have become even more pronounced in our times". Hence the Court felt the necessity of finding out some devices and said that "drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand upto constitutional scrutiny in the discharge of the power of judicial review conferred upon them."

The judicial review is the power and authority of the court to keep the public authorities within their limits and bounds. In otherwords it is concerned with thedecision making process and it is a review of the manner in which the decision to be made in a given situation. The Supreme Court in Dr. N.B. Khare v. State of Delhi [14] defined the scope of judicial review under clause (5) of Art.19 of the Constitution and held that our Constitution invests the power of judicial review on the Judges of High Court and Supreme Court. Chief Justice Patanjali Sastri followed the same in State of Madras v. V.G. Rao [15]. But the concept of judicial review developed beyond comprehension and in Kesavananda Bharathi v. State of Kerala [16] the Supreme Court held that the judicial review is in integral part of the our constitutional system and a basic feature of the Indian Constitution. Over the years the Supreme Court in many cases expressed the view on the powers of judicial review of legislative action. In a five Judge Constitution bench decision in Bidi Supply Co. v. Union of India [17] the Supreme Court said "The heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and training to judicial ways of working and training." But in Minerva Mills Ltd. v. Union of lndia [18] the Supreme Court indicated that apart from the Supreme Court and High Courts other equally efficacious alternate mechanism can also be invested with the power of judicial review to do justice. The Tribunal introduced under the Administrative Tribunal Act is one of equally efficacious alternative mechanism provided for doing the work of judicial review in respect of service grievances. The Supreme Court in Sampath Kumar's case observed that the judicial review can be exercised by such equally effective alternate mechanism to the exclusion of High Court. But in Amulya Chandrakalita v. Union of India [19] the Supreme Court held that Administrative Member of the Tribunal alone without the assistance of a judicial member is not competent to hear and decide a cases in exercise of the power of judicial review. This lacuna was plugged by providing sufficient safeguards.

The overall effect of the dictum in Chandrakumar's case is that the Tribunals will continue to act as the "only court of first instance in respect of the arrears of law for which they have been constituted" and the Division Bench of the High Court will be the next higher authority having the power to examine all the decisions of the Tribunal as if it is an appellate forum. This position would definitely affect adversely the very object and purpose for which the Tribunal was constituted more than a decade ago. In fact, the Chandrakumar's case has only contributed to the problems "which has been a cause for concern for several decades" and made it more worse rather than remedying the same. On the other hand, if the Supreme Court had accepted one of the suggestions made by Additional Solicitor General of Indian the course of his arguments, in Chandrakumar's case "allowing the Union of India to further amend the Act so as to ensure that the Tribunals become effective alternative forum", a solution within the frame work of the present Act could have been found out by providing a “three member Bench” of the Central Administrative Tribunal for the judicial scrutiny of the decisions of the Tribunals before the matter is taken in appeal to the Apex Court instead of making all the decisions of the C.A.T. subject to the judicial review of the Division Bench of the High Court, which in effect has defeated the very object and purpose for which the C.A.T. was introduced for deciding service cases by a specialised body thereby reducing the work load of the High Courts. Now after Chandrakumar's case C.A.T. may be a “crest fallen” judicial forum, but neither superfluous “dispendium” for service litigants nor is it a "white elephant' to be wound up or abolished as suggested by one of our friends in his article “Abolish C.A.T. - Sooner the better” [20].

____________________________________________________________

Foot Note

1. AIR 1987 SC 386

2. AIR 1980 SC 2056

3. AIR1980 SC 1789

4.AIR 1987 SC 357

5. AIR 1989 SC 1185

6. (1990) 2 SCC 763

7. (1990) 2 SCC 673

8. AIR 1990 SC 2263

9. JT1998 (5) SC 645

10. 1990 (4) SCC 453

11. 1990 (2) KLT C.A.T. 1.

12. AIR 1987 SC 386

13. The Arrears Committee (89-90) Report Vol.III Chapter IX para. 8.66 P. 111.

14. AIR 1950 SC 211

15. AIR 1952 SC 196

16. AIR 1973 SC 1461

17. AIR 1956 SC 479 at 487

18. (1980) 3 SCC 625

19. (1991) 1 SCC 181

20. 1998 (1) KLT 67 Journal

Some Legal Thoughts - In Legal Manner

(By V.B. Premachandran, Advocate, High Court)

                              Is the law for man or man for law?

                              The classic legal luminory says -

                              "Law for Man."

                              The unanswered question remains". The

                              Lawyer primarily duty bound to the

                              Client or society at large"?

                              Bench and the Bar -

                              The wheels of the same charriot -

                              Let there be total harmony between the two

                              Let the Judge deviate from hyper technicality

                              And clinch to substantial justice.

                              Let His Lordship focus his attention

                              On the principles of natural justice

                              Keeping the eyes shut except -

                              Against the unfair, unjust and unwarranted;

                              Illegal, irregular and improper.

                              Meticulously evaluating the factual matrix

                              And the legal positions :

                              Like the venus - the Roman Goddess.

                              Requires amendment, many a law.

                              The thing which requires no amendment -

                              Is the amendment, indeed!

                              Needs amendment -

                              The personal laws in many areas.

                              Rent control law, more often than not

                              Tilted to the tenant than to the landlord -

                              Observed His Lordship Krishna Iyer, J.

                              In a classic judgment of his -

                              In his inimitable style

                              Section 125 of the Criminal Code;

                              The maintenance amount of

                              Rupees Five hundred - such meagre -

                              For the wife -

                              "To keep her body and soul together -

                              Unless she be willing to sell her body

                              And keep her soul."

                              Judgments to rise to the occasions -

                              Applying Article -142, by the Supreme Court

                              (1998 (2) K.L.T. at 232)

                              Injunction Suit, miraculously, but -

                              Rightly converted to partition suit -

                              Judgment resulting in a preliminary decree

                              And 1995 (2) K.L.T. 848

                              Declared the Division Bench -

                              Rent Control Act, 1965 -

                              Provisions relating to fair rent

                              often resulted in 'Unfair rent'

                              Ultra vires the Constitution

                              Violative of Arts. 14 and 19(1)(g)

                              Rightly stride down Ss. 5, 6 and 8

                              Justice non est lex

                              Unjust law no law !

Let the Lord - Aimighty -

Omni potent and the Omni present

Guide His Lordship -

The learned Judge - to identify the -

Right natural flower of justice

Where the honeybee - sticks, from among the

Artificial flowers of injustices

Like the celebrated King Solomon;

Let the lawyer be shown the beacon light -

To keep all the professional ethics -

Maintaining his duty to the client

And to the society at large alike;

Like him - the litigant - come

With the cleanest hand;

Fiat, Justicia Ruat Coelum.

Justice shall be done

Heaven may fall !

Hurdles on Judicial Benevolence

(By Salim Kambisseri, Asst. Public Prosecutor Grade-I, Changanacherry)

Judicial leniency is permissible and judicial sympathy is justifiable, but too much benevolence is alien to a democratic country. In this article the author proposes to dissect the recent decision of our High Court in Coromandal Distributors v. Food Inspector reported in 1998 (2) KLT 657.

Brief facts of the Case

The complainant Food Inspector purchased 900 gms. of curry powder from the 1 st accused (Vendor) who is the proprietor of a bakery at Alappuzha. When the sample was sent for chemical analysis it was found to be adulterated. Petitioners in this Crl. M.C. were later impleaded as co-accused, probably may under Section 20A of the P.F. A. Act; on the allegation of the first accused that he purchased the curry powder from the petitioners. Petitioners were summoned before the Magistrate Court only on 30.3.1992, ie., long after the complaint was failed. They came before the Court with a prayer that the second sample may be forwarded to the Central Food Laboratory under sub-s.(2) of S.13 of P.F.A.  Act. Eventhough the application is belated one which was filed after three years and seven months from the date of sampling, the learned Magistrate was pleased to forward the second sample to the Central Food Laboratory. According to the CFL report the sample was completely deteriorated in condition, having off colour and hence it is not fit for analysis. Learned Magistrate suo motu sent the third sample to the Central Food Laboratory and that was tested. According to the Director, CFL the sample was fit for analysis and the sample does not conform to the standards of curry powder as per PFA Rules 1955 and hence adulterated. Aggrieved by the act of the learned Magistrate the petitioner approached the Hon. High Court with a Crl. M.C.

Hon. Justice Sreedevi after hearing both sides allowed the Crl. M.C. and quashed the proceedings before the JFMC, Alappuzha against the Petitioners. According to the Single Judge trial of this case against the petitioners is an abuse of the process of the Court and it will result in manifest injustice to petitioners.

The ratio of the above decision can be formulated as follows:

1) AstheFoodlnspectorwasawaretliatthepetitionersweretliemanufacturers.heought to have impleaded them also as accused in the complaint itself.

2) The act of the Magistrate in sending the third sample to CFL is not correct since the first report of die CFL becomes final and conclusive.

3) Sub-s.(2-c) of S.13 of the Act provides only when die second sample is lost or damaged the Court can order that the third sample be sent to the Central Food Laboratory.

4) Since the report of the CFL only shows that the sample was decomposed and unfit for analysis, it cannot be said die sample was "damaged".

I do with due respect doubt the correctness of all these 4 points enunciated in the above decision. To substantiate my view it is necessary to have a discussion on, and a comparative and harmonious analysis of Section 13, Section 14A, Section 19(2) of the Act.

Sections 13(2) and Section 14A :

Section 14A says that every vendor of article of food shall, if so required, disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food. Here a duty is cast upon the person from whom the sample is taken to disclose the source of supply, if Food Inspector requires, but no duty is cast upon the latter to find out the person mentioned in the cash memo or warranty so as to implead him.

In PAV Subba Rao Gupta v. State of Andhra Pradesh, [1]Andhra Pradesh High Court held as follows:-

"By a reading of the above Section (S.14A) is clear that a duty is cast upon the person from whom the article of food is purchased by the Food Inspector to disclose the source of supply, if the Food Inspector so requires. But nothing in the above said section suggesting that a duty is cast upon the Food Inspector to find out the vendor mentioned in the cash memo and to implead him. However, it is open to the Food Inspector to find out who was the supplier to the person from whom the sample is taken and if he is satisfied that the said person supplied the food article he can take action under the provisions of the act against the supplier also. But by that itself it cannot be said that there is a mandatory duty cast upon the Food Inspector to find out the said supplier to take action against him, particularly when the information is not given immediately eventhough required by PW1 at the time of sampling".

According to me, this decision has much bearing since Section 14 of PFA Act prohibits manufacturers, distributors and dealers from selling the food articles to vendors unless they give a warranty in writing in the prescribed form. R.12A of PFA Rules also provides for it. These provisions have to be read along with Section 19(2) of the Act. S.19(2) makes it clear that the burden is on the vendor to produce warranty and to prove that he purchased the Food from a particular person under a warranty.

A combined reading of the above sections along with Section 20A of PFA Act, makes it clear that the Food Inspector cannot be blamed for not impleading the petitioners in the Crl. M.C. in the complaint itself. Mere knowledge on the part of the Food Inspector that the present petitioners are the manufacturers is not sufficient enough to state that he has a statutory obligation to implead the petitioners in the complaint itself. So according to me, the observation in para.5 of the judgment that the Fl ought to have impleaded the petitioners in the complaint itself is per se not correct especially in the light of the observations made by His Lordship Justice Padmanahhan in Food Inspector v. Sathiskumar [2]which is extracted below:-

"In fact it is not the duty of the prosecution to prove the ingredients of Section 19(2). Those ingredients will have to be specifically alleged and proved by the accused".

No statutory right to petitioners :

A plain reading of Section 13(2) would clearly indicate that the Local Health authority need send the notice under Section 13(2) only to the person from whom the sample was taken and to the person, if any, whose name, address and other particulars have been disclosed under Section 14A of the Act, after the institution of prosecution. This section is not applicable to other persons impleaded later.

It is true that a Magistrate is at liberty to invoke its power and jurisdiction and to allow an application by an accused to send the second sample to Central Food Laboratory even after the expiry of the period of 10 days as stead in Food Inspector v. Karunagappally Co-operative M.S. Society Ltd. [3] But the accused has to satisfy the Court that there was no latches or fault on his part. But in State of Kerala v. P.K. Chamu [4] our High Court has held that if there was no delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under S. 13 of the Act. Same view was taken in Gopalakrishna Kurup v. State of Kerala [5] and in Prabhu v. State of Rajasthan. [6] So according to me the petitioners could be exonerated relying on the first report of the Central Food Laboratory in which no analysis was done and according to me the second report of CFL alone becomes final and conclusiveness can be given only to that. To give imprimatur of conclusiveness there must be a report from CFL after conducting a proper analysis. As the second sample was not analysed by the CFL there is no conclusive report.

Expression "Damaged"- Meaning of

The decision of the Allahabad High Court is relied on by the learned Hon'ble Judge in the judgment under study and then observed as follows:-

"The contents of the bottle also cannot be said to be damaged, as the bottle in which the sample was kept was quite intact and seals were also not tampered with. Therefore, it cannot be said that the sample already sent to the laboratory is "lost or damaged". Ss.(2-C) of the Act provides, that only when die 2nd sample is lost or damaged die Court can order that the third sample be sent to Central Food Laboratory".

With due respect it is submitted that this dictum is against the principle laid down by our Apex Court in Charanji Lai v. State of Punjab [7] in which it was held as follows:-

"Under the scheme of the Act, the remaining two parts of the sample are kept with the Local (Health) Authority in order that in case the part of the sample sent to the Public Analyst under Section 11(1)(c)(i) is lost or damaged, or one of the remaining two parts of the sample sent by the Court to the Director of the Central Food Laboratory under sub-s.(2B) of Section 13 is lost or damaged, the remaining part or parts are preserved for further analysis by the Public Analyst, or the Director of the Central Food Laboratory, as the case may be. It would be seen that the phrase lost or damaged' appears both in sub-s.(2) of S.11 and in the proviso to sub-s.(2C) of Section 13 and these provisions have been inserted by Parliament with a definite object.

The word "damaged" in the collocation of the words "lost or damaged" appearing in the proviso to sub-s.(2C) of Section 13 in relation to the part of the sample sent by the Court to the Director of the Central Food Laboratory must, in the context, mean damaged due to any cause, including decomposition. The part of the sample sent by the court to the Director of the Central Food Laboratory under the proviso to sub-s.(2C) of S.13 may be either damaged due to the container not being property sealed or fastened, or due to various other causes including breakage of the container, or because decomposition has occurred, or it may be lost in transit. The word "damaged" in the collocation of the words "lost or damaged" occurring in sub-s.(2) of Section 11 and in the proviso to sub-s.(2-C) of Section 13 must be construed in furtherance of the object and purpose of inserting these provisions. The whole purpose of depositing two parts of the sample with the Local (Health) Authority is that if one of the parts of the sample is lost or damaged for any reason whatever, the remaining part may still be available for analysis.

So it is clear that decomposition of the sample will also come under the purview of the term 'Damaged' mentioned in sub-s.(2C) of the Act. In this case under study the third sample was fit for analysis and it was neither damaged nor decomposed.

Premature findings: alien to judicial process

In para. 5 of the Judgment the Hon'ble judge held that since the curry powder contains salt the moisture content may increase due to natural causes by lapse of time. According to me, this observation is also against the settled principles of law laid down in a Full Bench ruling in Mathukutty v. State of Kerala, [8] wherein it is observed as follows:

"What the legislature intended to check and prevent is the adulteration of article of food so that the Public Health is not endangered. Accordingly expert committee on food standards is constituted and standards are prescribed for various food articles. In fixing such standard the committee must have taken into account the variations that occur under normal conditions.

When the sample taken is properly packed, sealed and fastened and Analyst finds the sample fit for analysis the court cannot assume that supervening delay in analysis would have caused material change in the quality or standard of sample in the absence of relevant evidence."

It was also held that divergent opinions in the report of the Public Analyst and the Certificate of the Director of Central Food Laboratory cannot be compared and to contend that the variations occurred due to the interval between the analysis by the Analyst and the Director. It was also made it crystal clear that when all formalities are substantially complied with and analysis shows that the article does not conform to the prescribed standard, the result of analysis can be safely acted upon and that the burden of proving that the presence or increase of the vice affecting the sample is due to natural causes or otherwise during storage is upon the accused.

It is also well settled that any kind of delay in complying with a formality will not per se prejudice the accused. [9] Since the 3rd sample was fit for analysis and the report of the Director shows that the article was adulterated Court cannot presume for the possibility that the increase of moisture content was due to the lapse of time, especially when the burden of such matters is upon the accused who puts such a plea. Ss. 105 and 106 of the Evidence Act also will support my reasoning.

It is true that proviso to sub-s.(5) of Section 13 of the Act says that the Certificate signed by the Director, Central Food Laboratory shall be final and conclusive since it is conclusive proof as defined in Section 4 of Indian Evidence Act; and it does not require formal proof and no evidence can be allowed to be adduced to disprove the fact therein. [10] This does not mean that the report of the Director on the 2nd sample becomes conclusive and the third report become inadmissible. Since the second sample was unfit for analysis and no analysis was done that report cannot be treated as final and conclusive. The trainers of this statute would have anticipated such a contingency and that is why they incorporated a proviso to sub-s.(2-C) of the Act for further analysis by the Director when the second sample is lost or damaged.

Conclusion

Foot Note

1. 1991 Crl. L.J. 1115 (A.P.)

2. 1985 KLT 1093

3. 1986 KLT 174 at para.58

4. 1975 KLT 411 at para. 5

5. 1971 KLT 16

6. 1994 (1) KLT SN 33 (C.No.31) SC

7. 1984 Cri. L.J. 15 (SC) at Paras.12 and 13

8. 1987 (2) KLT 867 (F.B.) paras.14, 15

9. 1984 KLT 27 para.11, 1986 KLT 174 para.11, 1986 KLT 852 para.4, 1989 (1) KLT 707 paras.8, 20, 22 & 24.

10. 1994 (1) KLT 1006,1987 (2) KLT867

Section 138 of the Negotiable Instruments Act Still a Floating Law

(A comparative version of two rulings reported in 1996 (2) KLT 449 & 1997 (1) KLT 302)

(By Dinesh M. Pillai, Advocate, Kattappana)

To enhance the acceptability of cheques in the common transactions, by making the drawer liable for criminal prosecution, in case of dishounour of cheques for insufficiency of fund in account, the Negotiable Instruments Laws (Amendment) Act 1988 was introduced which came into force from 1.4.1989. The said Act itself provides adequate safeguards to prevent harassment of honest drawers.

After the enactment of the amended Act, there came a lot of criminal complaints filed before various courts in our country for the prosecution of the dishonour of cheques for want of fund in account. The people found and took the amended Act and the proceedings there under as an easiest way to get back their amounts covered under the dishonoured cheques, even though the Act is intended to punish the offenders there under. The Act itself provides for double the amount as fine in addition to one year's imprisonment as punishment. So naturally, monetary interest has a key role behind every complaints under the N.I. Act, distinguished from those under the other Penal Laws. In practical experience, we can see that a lot of complaints filed under the NI Act has been not proceeded by the complainants after they effect a monetary settlement with the accused.

The amended Act which is more technical one, provides many mandatory requirements to be complied before bringing a person for the prosecution of the offence under the Act. The said provisions are constantly subjected to various interpretations by the higher judicial authorities and presently the Act has become a floating one.

Ever since the enactment of the Negotiable Instruments Laws (Amendment) Act, 1988, there came a flood of rulings from the higher judicial authorities touching the various provisions of the Act in many perspectives. Many of the said rulings are mutually contradicting and most of them had put the provisions of the Act in confusion. The said instability and confusion arose by various rulings have made the litigants and lawyers in a hazardous situation.

The relevant sections of the Act being penal, of course, a strict interpretation of the same is warranted. But it cannot be neglected that the punitive acts under the Act are not any thing touching the public tranquility or involves any moral turpitude but only affects between two persons. It can be seen that the Legislature had the above view in its mind and hence, only presumption in favour of the holder of cheque provided under S. 139 of the Act is introduced and various other presumptions in favour of the holder under the unamended NI Act was retained. Whatever may be the mode of interpretation, the most important aspect is that there should be stability to the legal proposition, so as to avoid confusions. The perusal of the various rulings of the higher judicial authorities on the Act for the last 8 years would show that the place of initiation of prosecution, the number of times for which the cheque can be presented, the mode of service of notice of dishonour, the required mode of dishonour of cheques, the requisites of a valid notice are few of the matters connected to the short amendment Act which are disputed among themselves and still not finally decided. The various High Courts among themselves and our own High Court among its own various judgments are having difference of opinion over each aspects of the above said and other provisions of the Act. Of course it would go without saying that the above said instability in judicial decisions make the position of the litigants as well as lawyers very much difficult.

It is in this circumstance that two of the rulings under the NI Act reported in 1996 (2) KLT449 and 1997(1) KLT302, both delivered by Honourable Justice Rajasekharan called my attention and compelled me to write few lines on the same. In both these rulings his Lordship was pleased to weigh the requirements of a notice under S.138 (b) of the NI Act.

The proviso to S.138 of N.I. Act provides three mandatory requirements for the application of the penal provisions of S.138 of the Act. Sub Clause (b) of S.138 reads - the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

As the readers are aware with the facts of the two cases involved in the above referred two rulings, I am not wasting space of this journal by discussing the same. My only attempt is to bring forth the legal aspects involved in the said two rulings and to invite the attention of the readers to the same.

In the ruling reported in 1996 (2) KLT 449, while considering the question whether the mentioning of wrong cheque number in the notice under S.138(b) of the N.I. Act would mislead the drawer and whether there is sufficient compliance of S.138(b) it was held that "It is enough that the notice mentioned the fact of issuance of a cheque, the presentation of the cheque for encashment, dishonour of the cheque and demand for the money covered by the cheque". It was further found that the mention of a wrong number of cheque will not alter the situation where there is only single transaction of issuance of cheque between the parties.

In the ruling reported in 1997 (1) KLT 302 the question considered was whether the notice claiming higher amount or lessor amount than that in the cheque makes the notice insufficient. Relying on a decision of the Calcutta High Court, reported in 1996 (2) KLT 886, it was found that a notice claiming higher or lessor amount than the amount covered by the cheque makes the notice insufficient.

In the case decided by the Calcutta High Court, the amount covered by the cheque was Rs.5,79,000/- and the amount claimed by the notice was Rs.6,50,000/-. In the case where upon the decision reported in 1997 (1) KLT 302 was arrived at, the amount covered by the cheque was Rs.40,000/- but in notice the said amount together with interest not mentioning any rate was also claimed and the said notice was decided to be insufficient.

With due respect, I may express my sincere fear that the above said two rulings of the same court have put the legal proposition of S.138(b) of N.I. Act in a mutually contradicting position and confusious. The first ruling provides that an error even of cheque number mentioned in the notice is immaterial as it does not mislead the drawer of the cheque, where as the second ruling says that the mere claim of the complainant in the notice for the interest in addition to the cheque amount makes the notice illegal.

Even though the provisions of the amended N.I. Act, being penal, needs strict interpretation, the real intention behind S.138(b) is to give the drawer of the cheque ar opportunity to get out of his liability by paying off the amount within the stipulated period of time. I may express my sincere doubt whether the above said aspect was considered while delivering the ruling reported in 1997 (1) KLT 302 after having discursed it otherwise the ruling reported in 1996 (2) KLT 449.

As it is well aware, the dishonour of a cheque invites not only criminal action but also civil action, the simultaneous proceedings of both are permissible. The notice issued by the drawer after the dishonour of a cheque may be to afford an opportunity to avoid both civil and criminal proceedings by payment of the amount. So, the question which needs consideration is whether the mere claim for interest on the cheque amount, or the cost of the legal notice in addition to the specific claim for cheque amount in the notice for which the drawee is otherwise legally entitled would vitiate the entire notice under S.138(b) of N.I. Act.

The solemn attempt of the article is to bring forth the instability in the judicial decisions regarding the various provisions of the N.I. Act and to invite the attention ol the enlightened readers to the difficulty causing to the litigants and the lawyers in this regard.

I hope that the higher judicial authorities would soon make appropriate steps in the matter and would put the Negotiable Instrument Act in a stable shore, saving the same from all the fluctuations.

'No Limitation without Knowledge - Actual or Deemed'

(By M.R. Rajendran Nair, Advocate)

Decisions given in ignorance or forget fullness of some inconsistent statutory provisions or of some authority binding on the Court concerned are called 'per incuriam'. Where, by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedent. ((1975) 2 SCC 232)

On this premise it is submitted that the apex court's decision in Tota Ram v. State of U.P. - JT 1997 (6) SC 231, to the effect that the limitation of 3 months under S.28A of the Land Acquisition Act 1894 starts from the date of order and not from the date of knowledge is clearly wrong. It is per incuriam. In Raja Harish Chandra Raj Singh v. The Dy. Land Acquisition Officer (AIR 1961 SC 1500), while construing the proviso to S.18 of the Land Acquisition Act the Supreme Court held that "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award was either communicated to the party or is known by him either actually or .constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collectors award' used in the proviso to S.18 in a literal or mechanical way."

There is no reason why the phrase 'date of award of the reference court' should be differently construed. The Supreme Court in Harish Chandra's case observed that the view taken by the High Court proceeds on the literal constructions of the relevant clause, and that the literal and mechanical construction of the words, 'the date of award' occurring in the relevant section would not be appropriate.

In Assistant Transport Commissioner v. Nand Singh (AIR 1980 SC 15), within the meaning of S.15 of Utter Pradesh Motor Vehicles Taxation Act, it was the date of the order which gave the starting point for preferring an appeal within 30 days of that date. The Supreme Court held that in a given case, the date of putting the order in communication under certain circumstances may be taken to the date of communication of the order or the date of the order. Following Harish Chandra's case, appeal filed within 30 days of the date of knowledge was held to be within time. It was .observed that generally speaking the order would be effective against the person affected by it only when it came to his knowledge either clearly or constructively, otherwise not.

In Collector of Central Excise v. M.M. Rubber and Co. AIR 1991 SC 2141 it was held that so far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order.

Therefore, courts have uniformly laid down as a rule of law that for seeking the remedy, the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of the passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him otherwise the party affected by it will have no means of obeying the order or action in conformity with it or of appealing against it or otherwise having it set aside. This is based upon, as observed by Rajamanner, C.J. in Muthia Chettiar v. CIT (AIR 1951 Mad 204) (supra), "a statutory and just principle". The application of this rule so far as the aggrieved party concerned is not dependent on the provisions of the particular statute, but is so under the general law".

'In Dhara Singh v. State AIR 1981 SC 427 following AIR 1961 SC 1500 it was held that when the law lays down that non-compliance with an order could expose the person against whom it is made to criminal liability it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non-compliance with it. The information or knowledge in the course of criminal proceeding instituted for non-compliance could not be a substitute for the knowledge which should ordinarily precede the institution of such proceedings.

Thus, when the Supreme Court has laid down the law in unequivocal terms, and it is settled legal position that no Judge in India except a larger Bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio of a binding decision, the decision of Supreme Court in JT 1997 (6) SC 231 has to be viewed as per incuriam and for that reason the decision of the Kerala High Court reported in 1997 (2) KLJ 520 does not reflect the correct legal position.

A distinction has to be drawn between a case where an order is passed in presence of parties, actual or constructive or with notice, and where such order is passed without notice and in their absence. In the latter case, 'date of the order' should necessarily mean date on which the concerned party comes to know about the Order either by communication or otherwise. To act on the basis of an order without actually coming to know about that will be an impossibility. Law never prescribes 'impossibility' and therefore, in order to avoid the 'impossibility' of an action contemplated by law interpretative innovation should lead to a purposive construction, so that the statutory provision does not become illusory.