Bhagad & Ors Vs. State of Gujarat & Ors  INSC 706 (9 May 1996)
K. (J) Venkataswami K. (J) Anand, A.S. (J) K. Venkataswami,J.
1996 AIR 2057 JT 1996 (5) 327 1996 SCALE (4)313
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.
learned Designated Judge confirmed an order of attachment of seven
vessels/ships under Section 7A of TADA pending further investigation in 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
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.
appellants claiming to be the owners of the ships in question objected to the
attachment and sought revocation of such attachment before the learned
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.
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.
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.
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.
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.
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 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 :
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.
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 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.
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. V. M. Bhaskar & Ors. etc.etc. HANSARIA.J.
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:
purport of the memorandum: and
validity of the same.
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.
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.
appellant has challenged the legality of this view.
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.
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, 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:
Assistant Station Masters;
Assistant Yard Masters;
Traffic Inspectors; and
Section Controller (in the scale of Rs.1400-2600). Insofar as Commercial
Apprentices are concerned these posts were of:
Assistant Claims inspectors/Supervisors;
Assistant Commercial Inspectors;
Assistant Rates Inspectors (Goods and Coaching); and
Other Inspectors for outdoor duties.
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.
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.
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.
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 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.
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
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.
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:
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.
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.
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 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
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
@ SLP (C) Nos.2533-35 of 1994
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.
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 of these respondents by Shri Das.
@ SLP (C) No. 15438 of 1994
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.
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.
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.
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.
We, therefore, hold that the view taken by the Patna Bench qua this respondent
is not sustainable.
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.
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
the respondents/appellants who are before this Court: and
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