Bhoodev Singh and ors. Vs. Chairman, U.P.S.E.B. and ors. - Court Judgment

Excerpt:
service - appointment - if in any particular service rule or regulation process of selection indicates that there would be written examination and viva-voce interview an apprentice or trainee would not be entitled to say that he is not required to take any of those tests - high court not applied its mind to different provisions dealing with matter of recruitment to different posts - matter remitted to high court where high court would go into relevant provisions and advertisement for filling up of different posts and then decide question as to whether in given case requirement of written examination provided any regulation. - interpretation of statutes. external aids: [s.b. sinha & lokeshwar singh panta, jj] held, object of statute is relevant only when language is not clear. statutes: act providing speedy remedy for recovery of dues- held, court while weighing between right of recovery and protection of right, would lean in favour of person who would be deprived.-- state financial corporations act, 1951 [63/1951]. section 29; scope held, right of corporation to make recovery under the section is an extraordinary power and therefore, the provision has to be construed strictly.-- sections 29 & 31; rights of corporation to make recovery scope held, the heading of section 29 states rights of financial corporation in case of default. the default contemplated thereby is of the industrial concern. such default would create a liability on the industrial concern. such a liability would arise inter alia when the industrial concern makes any default in repayment of any loan or advance or any instalment thereof under the agreement. in the eventualities contemplated under section 29 of the act, the corporation shall have the right to take over the management or possession or both of the industrial concern. the provision does not stop there. it confers an additional right as the words as is used which confers a right on the corporation to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the corporation. section 20 nowhere states that the corporation can proceed against the surety even if some properties are mortgaged or hypothecated by it. the right of the financial corporation in terms of section 29 must be exercised only on a defaulting party. there cannot be any default as is envisaged in section 29 by a surety or a guarantor. the liabilities of a surety or the guarantor to repay the loan of the principal debtor arise only when a default is made by the latter. the words as well as play a significant role. it confers two different right but such rights are to be enforced against the same person, viz., the industrial concern. it is true that sub-section (1) of section 29 speaks of guarantee. but such a guarantee is meant to be furnished by the corporation in favour of a third party for the benefit of the industrial concern. it does not speak about a surety or guarantee given in favour of the corporation for the benefit of the industrial concern. it is significant to notice in this regard that sub-section (4) of section 29 which lays down appropriation of the sale proceeds only refers to industrial concern and not a surety or guarantor. the liability of a surety is made co-extensive with the liability of the principal debtor only by virtue of section 128 of contract act. the rights and liabilities of a surety and the principal borrower otherwise are different and distinct. an implied power of corporation to proceed against a surety or guarantor cannot be read in section 29 on principle that a construction which effectuates the legislative intent and purpose must be adopted. a statutory authority, may have an implied power to effectuate exercise of substantive power, but the same never means that if a remedy is provided to take action against one in a particular manner, it may not only be exercised against him but also against the other in the same manner. section 31 of the act provides for a special provision. it, apart from the default on the part of the industrial concern, can be invoked where the financial corporation requires an industrial concern to make immediate repayment of loan or advance in terms of section 30 if and when such requirement is not met. the aforementioned provision could be resorted to by the corporation, without prejudice, to its rights under the provisions of section 29 as also section 69 of the transfer of property act and for the said purpose it is required to apply to the district judge having appropriate jurisdiction. it also provides for a relief against a surety and not confined to the industrial concern alone. it is thus clear that the intention of the parliament in enacting sections 29 and 31 was not similar. whereas section 29 consists of the property of the industrial concern, section 31 takes within its sweep both the property of the industrial concern and as that of the surety. none of the provisions control each other. the parliament intended to provide an additional remedy for recovery of the amount in favour of the corporation by proceeding against a surety only in terms of section 31 and not under section 29 thereof. -- sections 31 & 29; scope held, section 31 postulates an additional relief to corporation. what can be done by invoking section 29 can inter alia be done by invoking section 31. it also provides for relief against surety. relief available under section 31 is not limited to interlocutory reliefs. -- state financial corporations act, 1951. section 29; scope held, right of corporation to make recovery under the section is an extraordinary power and therefore, the provision has to be construed strictly. -- state financial corporations act, 1951. sections 29 & 31; rights of corporation to make recovery scope held, the heading of section 29 states rights of financial corporation in case of default. the default contemplated thereby is of the industrial concern. such default would create a liability on the industrial concern. such a liability would arise inter alia when the industrial concern makes any default in repayment of any loan or advance or any instalment thereof under the agreement. in the eventualities contemplated under section 29 of the act, the corporation shall have the right to take over the management or possession or both of the industrial concern. the provision does not stop there. it confers an additional right as the words as is used which confers a right on the corporation to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the corporation. section 20 nowhere states that the corporation can proceed against the surety even if some properties are mortgaged or hypothecated by it. the right of the financial corporation in terms of section 29 must be exercised only on a defaulting party. there cannot be any default as is envisaged in section 29 by a surety or a guarantor. the liabilities of a surety or the guarantor to repay the loan of the principal debtor arise only when a default is made by the latter. the words as well as play a significant role. it confers two different right but such rights are to be enforced against the same person, viz., the industrial concern. it is true that sub-section (1) of section 29 speaks of guarantee. but such a guarantee is meant to be furnished by the corporation in favour of a third party for the benefit of the industrial concern. it does not speak about a surety or guarantee given in favour of the corporation for the benefit of the industrial concern. it is significant to notice in this regard that sub-section (4) of section 29 which lays down appropriation of the sale proceeds only refers to industrial concern and not a surety or guarantor. the liability of a surety is made co-extensive with the liability of the principal debtor only by virtue of section 128 of contract act. the rights and liabilities of a surety and the principal borrower otherwise are different and distinct. an implied power of corporation to proceed against a surety or guarantor cannot be read in section 29 on principle that a construction which effectuates the legislative intent and purpose must be adopted. a statutory authority, may have an implied power to effectuate exercise of substantive power, but the same never means that if a remedy is provided to take action against one in a particular manner, it may not only be exercised against him but also against the other in the same manner. section 31 of the act provides for a special provision. it, apart from the default on the part of the industrial concern, can be invoked where the financial corporation requires an industrial concern to make immediate repayment of loan or advance in terms of section 30 if and when such requirement is not met. the aforementioned provision could be resorted to by the corporation, without prejudice, to its rights under the provisions of section 29 as also section 69 of the transfer of property act and for the said purpose it is required to apply to the district judge having appropriate jurisdiction. it also provides for a relief against a surety and not confined to the industrial concern alone. it is thus clear that the intention of the parliament in enacting sections 29 and 31 was not similar. whereas section 29 consists of the property of the industrial concern, section 31 takes within its sweep both the property of the industrial concern and as that of the surety. none of the provisions control each other. the parliament intended to provide an additional remedy for recovery of the amount in favour of the corporation by proceeding against a surety only in terms of section 31 and not under section 29 thereof. -- state financial corporations act, 1951. sections 31 & 29; scope held, section 31 postulates an additional relief to corporation. what can be done by invoking section 29 can inter alia be done by invoking section 31. it also provides for relief against surety. relief available under section 31 is not limited to interlocutory reliefs. - we fail to understand how an advertisement could be issued for filling up of the post of the junior engineer under the state electricity board directly from open market, which is not contemplated under regulation 5 (b) (1). in so far as recruitment to different other posts are concerned, the high court has not applied its mind to different provisions dealing with the matter of recruitment to different posts, and therefore, in fitness of things, we think it appropriate to remit all the matters to the high court where the high court would go into the relevant provisions as well as the relevant advertisement for filling up of different posts and then decide the question as to whether in a given case, the requirement of written examination is provided in any regulation so that even apprentice could be compelled to appear in the same or there is no such provision in which case apprentices may not be required to undertake the said examination, though they will have to undergo the process oforderg.b. pattanaik, u.c. banerjeeand b.n. agrawal, jj. 1. delay condoned, 2. application for filing the amended memo of parties stands rejected. 3. application for impleading party stands rejected. 4. leave granted. 5. in this bunch of cases, the question for consideration is whether the view taken by the full bench of allahabad high court is correct or not. in fact, the aforesaid decision of the full bench has been affirmed by a bench of two learned judges of this court in the case of u. p. rajya vidyut parishad apprentice welfare association and anr. v. state of u. p. and ors. 2000 (3) awc 1898 (sc) : jt 2000 (6) sc 227. these cases deal with the question of appointment to the different posts in different departments governed by different set of rules and/or administrative instructions. when the matter had been placed before a bench of two learned judges of this court, the bench thought that there is some conflict between the law laid down by this court, in the aforesaid judgment 2000 (3) awc 1898 (sc) : jt 200o (6) sc 227 and the decision of this court rendered in tamil nadu electricity board v. p. aral and ors. c.a. nos. 5285-5328 of 1996, disposed of on 3rd october, 1996. all these disputes stem from the three-judge bench decision of this court in the case of u. p. state road transport corporation and anr. v. u. p. parivahan nigam shishukhs berozgar sangh and ors. : (1995)iillj854sc . there has been an elaborated discussion on different provisions of the apprentices act, 1961, and the object behind those provisions, and finally in paragraph 12 of the said judgment, the court has culled out the relevant criteria, which should be borne in mind while dealing with the claim of trained apprentices to get any employment after successful completion of their training. in paragraph 13 of the said judgment.the court has indicated as to what would be the mode for consideration in the cases in hand, and it is in that context, the court said that such apprentices would not be required to appear in the written examination. the aforesaid statement made in paragraph 13 cannot be of universal application irrespective of the relevant provisions of the rules/regulations/ executive instructions dealing with the matter of appointment to different posts, and, therefore, the full bench of the allahabad high court was justified in its conclusion with regard to the requirement of any written test. in other words, if any particular service rule/regulation, the process of selection indicates that there would be a written examination and viva-voce interview, an apprentice/trainee would not be entitled to say that he is not required to take any of those tests. undoubtedly, the trainee would get an advantage over a fresh direct recruit in the matter of employment, as has been held by this court in the v. p. state road transport corporation case. the judgment of this court approving the aforesaid full bench decision of the allahabad high court, in 2000 (3) awc 1898 (sc) : jt 2000 (6) sc 227. therefore, does not require any reconsideration. at this stage, we may also notice, yet another judgment in tamil nadu electricity board v. p. anil, wherein certain observations have been made, which may indicate that the apprentices/trainees are not required to sit in the written test, but only in a selection where viva-voce test is provided. the aforesaid statement in arul case has been too broadly stated and cannot be held to a law laid down in cases of all appointments to different cadre governed by different sets of recruitment rules or regulations framed for the purpose. 6. it was brought to our notice, while mr. dwivedi was arguing the first matter, that the appointment to the post of junior engineer under the u. p. state electricity board is governed by a set of regulations framed under section 79(c) of the electricity supply act, 1948, called the uttar pradesh state electricity board subordinate electrical andmechanical engineering service regulations, 1972. under the said regulations, recruitment to the post of junior engineer is made under regulation 5 and whereas 5 (a) deals with selection grade, 5 (b) deals with ordinary grade and when the recruitment is made to the junior engineer in the ordinary grade under regulation 5 (b), it could be either made by direct recruitment from apprentice junior engineers selected in accordance with the procedure laid down in part 5 of the regulations or by promotion in accordance with the procedure laid down in regulations 17 and 18. no further provision could be pointed out to indicate that even a direct recruitment from the outside could be made within the ambit under regulation 5 (b)(1) and it has to be made only from apprentice junior engineers, who have already been selected in accordance with the procedure laid down in part 5. part 5 also deals with the procedure of selection of apprentice junior engineers in regulation 13, whereas regulations 16 and 17 deal with promotion. we fail to understand how an advertisement could be issued for filling up of the post of the junior engineer under the state electricity board directly from open market, which is not contemplated under regulation 5 (b) (1). in so far as recruitment to different other posts are concerned, the high court has not applied its mind to different provisions dealing with the matter of recruitment to different posts, and therefore, in fitness of things, we think it appropriate to remit all the matters to the high court where the high court would go into the relevant provisions as well as the relevant advertisement for filling up of different posts and then decide the question as to whether in a given case, the requirement of written examination is provided in any regulation so that even apprentice could be compelled to appear in the same or there is no such provision in which case apprentices may not be required to undertake the said examination, though they will have to undergo the process of selection otherwise. without applying mind to the specific provision of therecruitment to different posts, the aforesaid problem cannot be solved. it is in these circumstances, we remit all the matters to the high court for being reconsidered in the light of the observation made by us. since these matters require urgent consideration by the high court, we request the learned chief justice to get these matters heard at an early date preferably within 3 months from today. 7. s.l.p. (c.) no. 1o844 of 2000 : this s.l.p. is directed against the judgment of the c.a.t. dated 2nd february, 2000 in o.s. 334 of 1999 and o.a. 390 of 1999. in view of the judgment of this court in chandra kumar's case, the petitioner should have moved the delhi high court against the same. we, therefore, decline to entertain this petition. it is accordingly dismissed. however, it would be open for the petitioner to move the high court of delhi. 8. s.l.p. (c.) no. 7214 of 2000 : heard. 9. the special leave petition is dismissed.

Judgment:
ORDER

G.B. Pattanaik, U.C. Banerjeeand B.N. Agrawal, JJ.

1. Delay condoned,

2. Application for filing the amended memo of parties stands rejected.

3. Application for impleading party stands rejected.

4. Leave granted.

5. In this bunch of cases, the question for consideration is whether the view taken by the Full Bench of Allahabad High Court is correct or not. In fact, the aforesaid decision of the Full Bench has been affirmed by a Bench of two learned Judges of this Court in the case of U. P. Rajya Vidyut Parishad Apprentice Welfare Association and Anr. v. State of U. P. and Ors. 2000 (3) AWC 1898 (SC) : JT 2000 (6) SC 227. These cases deal with the question of appointment to the different posts in different departments governed by different set of Rules and/or administrative instructions. When the matter had been placed before a Bench of two learned Judges of this Court, the Bench thought that there is some conflict between the law laid down by this Court, in the aforesaid judgment 2000 (3) AWC 1898 (SC) : JT 200O (6) SC 227 and the decision of this Court rendered in Tamil Nadu Electricity Board v. P. Aral and Ors. C.A. Nos. 5285-5328 of 1996, disposed of on 3rd October, 1996. All these disputes stem from the three-Judge Bench decision of this Court in the case of U. P. State Road Transport Corporation and Anr. v. U. P. Parivahan Nigam Shishukhs Berozgar Sangh and Ors. : (1995)IILLJ854SC . There has been an elaborated discussion on different provisions of the Apprentices Act, 1961, and the object behind those provisions, and finally in paragraph 12 of the said judgment, the Court has culled out the relevant criteria, which should be borne in mind while dealing with the claim of trained apprentices to get any employment after successful completion of their training. In paragraph 13 of the said judgment.the Court has indicated as to what would be the mode for consideration in the cases in hand, and it is in that context, the Court said that such apprentices would not be required to appear in the written examination. The aforesaid statement made in paragraph 13 cannot be of universal application irrespective of the relevant provisions of the Rules/Regulations/ Executive instructions dealing with the matter of appointment to different posts, and, therefore, the Full Bench of the Allahabad High Court was justified in its conclusion with regard to the requirement of any written test. In other words, if any particular service Rule/Regulation, the process of selection indicates that there would be a written examination and viva-voce interview, an apprentice/trainee would not be entitled to say that he is not required to take any of those tests. Undoubtedly, the trainee would get an advantage over a fresh direct recruit in the matter of employment, as has been held by this Court in the V. P. State Road Transport Corporation case. The judgment of this Court approving the aforesaid Full Bench decision of the Allahabad High Court, in 2000 (3) AWC 1898 (SC) : JT 2000 (6) SC 227. therefore, does not require any reconsideration. At this stage, we may also notice, yet another judgment in Tamil Nadu Electricity Board v. P. Anil, wherein certain observations have been made, which may indicate that the apprentices/trainees are not required to sit in the written test, but only in a selection where viva-voce test is provided. The aforesaid statement in Arul case has been too broadly stated and cannot be held to a law laid down in cases of all appointments to different cadre governed by different sets of recruitment rules or regulations framed for the purpose.

6. It was brought to our notice, while Mr. Dwivedi was arguing the first matter, that the appointment to the post of Junior Engineer under the U. P. State Electricity Board is governed by a set of regulations framed under Section 79(c) of the Electricity Supply Act, 1948, called the Uttar Pradesh State Electricity Board Subordinate Electrical andMechanical Engineering Service Regulations, 1972. Under the said regulations, recruitment to the post of Junior Engineer is made under Regulation 5 and whereas 5 (a) deals with selection grade, 5 (b) deals with ordinary grade and when the recruitment is made to the Junior Engineer in the ordinary grade under Regulation 5 (b), it could be either made by direct recruitment from Apprentice Junior Engineers selected in accordance with the procedure laid down in part 5 of the Regulations or by promotion in accordance with the procedure laid down in Regulations 17 and 18. No further provision could be pointed out to indicate that even a direct recruitment from the outside could be made within the ambit under Regulation 5 (b)(1) and it has to be made only from Apprentice Junior Engineers, who have already been selected in accordance with the procedure laid down in part 5. Part 5 also deals with the procedure of selection of Apprentice Junior Engineers in Regulation 13, whereas Regulations 16 and 17 deal with promotion. We fail to understand how an advertisement could be issued for filling up of the post of the Junior Engineer under the State Electricity Board directly from open market, which is not contemplated under Regulation 5 (b) (1). In so far as recruitment to different other posts are concerned, the High Court has not applied its mind to different provisions dealing with the matter of recruitment to different posts, and therefore, in fitness of things, we think it appropriate to remit all the matters to the High Court where the High Court would go into the relevant provisions as well as the relevant advertisement for filling up of different posts and then decide the question as to whether in a given case, the requirement of written examination is provided in any regulation so that even apprentice could be compelled to appear in the same or there is no such provision in which case apprentices may not be required to undertake the said examination, though they will have to undergo the process of selection otherwise. Without applying mind to the specific provision of therecruitment to different posts, the aforesaid problem cannot be solved. It is in these circumstances, we remit all the matters to the High Court for being reconsidered in the light of the observation made by us. Since these matters require urgent consideration by the High Court, we request the learned Chief Justice to get these matters heard at an early date preferably within 3 months from today.

7. S.L.P. (C.) No. 1O844 of 2000 : This S.L.P. is directed against the judgment of the C.A.T. dated 2nd February, 2000 in O.S. 334 of 1999 and O.A. 390 of 1999. In view of the judgment of this Court in Chandra Kumar's case, the petitioner should have moved the Delhi High Court against the same. We, therefore, decline to entertain this petition. It is accordingly dismissed. However, it would be open for the petitioner to move the High Court of Delhi.

8. S.L.P. (C.) No. 7214 of 2000 : Heard.

9. The special leave petition is dismissed.