Union Of India & Ors vs Priyankan Sharan & Anr

Union of India & Ors. ..Appellants

Versus

Priyankan Sharan and Anr. ...Respondents

With

CIVIL APPEAL No. 5540 of 2008 (Arising out of SLP (C) 580 of 2005)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. The core question is whether the respondent's prayer for

discharge of bond executed to serve the nation for a period of

five years on the ground of medical disability has been rightly

accepted by the High Court?

3. The High Court by the impugned order held that in each

case the respondents were required to deposit of rupees one

lakh and on such deposit there was no further liability.

4. Factual position is almost undisputed.

5. In each case the appellant sought to invoke the bond

agreement executed. The two respondents in Civil Appeal

arising out of SLP (C) No. 580 of 2005 and the respondents in

other Civil Appeal arising out of SLP (C) No. 25514/2004 had

taken admission to the MBBS Degree Course of Armed Forces

Medical College, Pune. At the time of admission they being

minors their guardians had executed the bonds to the effect

that after completion of MBBS course, the students in

question shall serve the nation by working in the Armed Force 2 for a specific period of time. Clause 4 of the agreement dealt

with a situation when a cadet shall be declared to have

become Non Service Liability (in short `NSL') in the event of

any of the three categories. It is provided that in such event

Clauses 5 and 6 will be applicable. However, he or she can be

permitted at the discretion of DGAFMS to continue her studies

on payment of normal tuition fee at the rate in force at the

time but the students have to move out of the hostel premises.

Clause 5 of the agreement states that in the event of a student

being removed from the service liability for any reason, shall

be liable to pay the amount calculated at a particular rate per

annum from the date of admission to the College till the date

of NSL subject to maximum together with interest on the said

amount at rates in force then. Clause 6 provided that student

who is removed from service liability under Clause 4(a) shall

be required to pay in cash an amount calculated at the rate of

rupees one and a half lakh per year or part thereof from the

date of admission to the college till the date of becoming a NSL

limited to maximum of seven and half lakh together with

interest calculated on the same basis stated in Clause 5. This 3 was the position in 1999. The High Court in each case

observed that the candidate was suffering from ailment and

was removed from service liability. After removal the present

appellants tried to enforce the bonds on the purported ground

of failure on the part of the cadet to serve the nation in

accordance with the terms and conditions of the bond. In

appeal relating to Kiran Kumar and Another, the High Court

in the impugned judgment in paras 3 and 4 noted that in the

earlier cases orders were passed that on payment of rupees

one lakh when the bond amount was rupees three lakhs,

there shall be total liquidation of liability on the bond.

6. According to learned counsel for the appellants till 1998

the bond amount which covered the cost of free education,

ration and other facility during the entire period of four and a

half years was rupees three lakhs. The bond amount was

revised w.e.f. July, 1999. Guidelines were also issued on

18.2.2002 for deciding the cases relating to waiver of bond

money in respect of medical cadet declared NSL on medical

grounds. It is not in dispute that in each case the cadet was 4 declared NSL. Thereafter, the appellants were of the view that

cadets were required to pay the bond money as demanded.

7. Learned counsel for the respondent-cadet in each case

submitted that the proviso of Clause 4(a) has been lost sight of

by the appellants while raising the demand. Relevant clauses

4, 5 and 6 read as follows:

"4. The medical cadet will be declared to have become Non Service Liability in the event of any of the following:

(a) Being rendered medically unfit for commission due to any disease/disability detected at any time during the course or prior to commissioning; or

(b) Failing in attendance below 50% in any two consecutive terms for reasons other than medical; or

(c) Fails to qualify final MBBS examinations within a period of seven years from the date of entry into college;

shall be treated as a Non Service Liability, where after clause 5 and 6 below as applicable shall be, applied to such cadet. However, he/she can be permitted at the discretion of the DGAFMS to continue his/her studies on the payment of normal tuition fees at the rate in force at the time but the student shall be removed from the hostel premises. 5 Provided that the student under Clause (a) above may be allowed to continue his/her stay in the hostel on payment of the normal expenses of education including tuition fees and fees for boarding and lodging facilities as applicable from time to time if he/she has contracted the disease/disability in the circumstances over which he/she has no control on which the decision of the DGAFMS shall be final and for which he/she has not refused treatment and further in such eventuality he/she may not be required to refund any amount to the Govt. as specified in clause 6 below.

5. In the event of any contingency in clauses 1,2,3 and 4 above, except in clause 4(a), the party of the FIRST part shall jointly and severally be liable to pay forthwith to the Govt. in cash an amount calculated at the rate of rupees three lacs per year or part thereof; for the period from the date or admission to the college to the date of becoming a Non Service Liability or removal from the college rolls, limited to a maximum limit or Rupees Fifteen lacs together with interest on the said money, calculated at the rates in force then. The interest will be levied if the payment is delayed beyond 90 days from the date of such removal/withdrawal from the college. In case of removal from the college all dues will be settled before leaving the college. The medical cadet will be deemed to become a Non Service Liability 30 days after the date of letter issued by the college authorities declaring him/her to be so. Provided however that amount stated above may be revised upward in respect or which the decision of the Govt. shall be final and binding on the parties of the first part. 6

6. In the event of a medical cadet being removed from service liability under clause 4(a) above the parties of the First part shall jointly and severally pay forthwith to the Govt. in cash an amount calculated at the rate of Rupees one and a half lac per year or part thereof for the period from the date of admission to the college till the date or becoming a Non Service Liability limited to a maximum of Rupees seven and half lac together with interest calculated on the same basis as stated in clause 5 above."

8. A bare reading of Clause 4(a) makes the position clear

that the same is subject to Clause 6. The proviso to Clause 4

(a) makes the position clear that Clause 4(a) and Clause 6

operate in different footings.

9. In the case of Priyankan Sharan and others the appellant

and its functionaries proceeded on the basis as if the

respondent No.1 refused to undergo surgery. From the

statement made in the petition itself it is clear that there was

prayer for postponement till examinations are over.

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10. Stand of the appellants before the High Court was that in

a large number of cases students are being reported as

medically unfit and seeking discharge from the bond on the

ground that there is no deliberate unwillingness to serve the

nation in accordance with the bond. High Court perused the

medical reports and came to the conclusion that the writ

petitioners' case was a genuine one. There were various

medical reports including those of All India Institute of

Medical Sciences. Since he had deposited Rupees One Lakh

and "No Objection Certificate" had been issued, the impugned

order was passed in the writ petition. In the other case also

similar view was taken and the prayer of the present

appellants to increase the amount to Rupees 3.5 lakhs was

rejected.

11. For the first time at the time of hearing, learned counsel

for the appellant tried to bring the case under Clause (6). The

same has to be tested in the background of proviso to Clause

4(a).

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12. The normal function of a proviso is to except something

out of the enactment or to qualify something enacted therein

which but for the proviso would be within the purview of the

enactment. As was stated in Mullins v. Treasurer of Survey

[1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil

Mills and Ginning Factory v. Subhash Chandra Yograj Sinha

(AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v.

Corporation of Calcutta (AIR 1965 SC 1728); when one finds a

proviso to a section the natural presumption is that, but for

the proviso, the enacting part of the section would have

included the subject matter of the proviso. The proper

function of a proviso is to except and to deal with a case which

would otherwise fall within the general language of the main

enactment and its effect is confined to that case. It is a

qualification of the preceding enactment which is expressed in

terms too general to be quite accurate. As a general rule, a

proviso is added to an enactment to qualify or create an

exception to what is in the enactment and ordinarily, a proviso

is not interpreted as stating a general rule. "If the language of

the enacting part of the statute does not contain the 9 provisions which are said to occur in it you cannot derive

these provisions by implication from a proviso." Said Lord

Watson in West Derby Union v. Metropolitan Life Assurance

Co. (1897 AC 647)(HL). Normally, a proviso does not travel

beyond the provision to which it is a proviso. It carves out an

exception to the main provision to which it has been enacted

as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje

Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas

Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR

1991 SC 1538) and Kerala State Housing Board and Ors. v.

Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672).

13. "This word (proviso) hath divers operations. Sometime it

worketh a qualification or limitation; sometime a condition;

and sometime a covenant" (Coke upon Littleton 18th Edition,

146).

14. "If in a deed an earlier clause is followed by a later clause

which destroys altogether the obligation created by the earlier

clause, the later clause is to be rejected as repugnant, and the 10 earlier clause prevails....But if the later clause does not

destroy but only qualifies the earlier, then the two are to be

read together and effect is to be given to the intention of the

parties as disclosed by the deed as a whole" (per Lord

Wrenbury in Forbes v. Git [1922] 1 A.C. 256).

15. A statutory proviso "is something engrafted on a

preceding enactment" (R. v. Taunton, St James, 9 B. & C.

836).

16. "The ordinary and proper function of a proviso coming

after a general enactment is to limit that general enactment in

certain instances" (per Lord Esher in Re Barker, 25 Q.B.D.

285).

17. A proviso to a section cannot be used to import into the

enacting part something which is not there, but where the

enacting part is susceptible to several possible meanings it

may be controlled by the proviso (See Jennings v. Kelly [1940]

A.C. 206).

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18. The above position was noted in Ali M.K. & Ors. v. State

of Kerala and Ors. (2003 (4) SCALE 197).

19. It is well settled principle in law that the Court cannot

read anything into a statutory provision which is plain and

unambiguous. A statute is an edict of the Legislature. The

language employed in a statute is the determinative factor of

legislative intent.

20. Words and phrases are symbols that stimulate mental

references to referents. The object of interpreting a statute is

to ascertain the intention of the Legislature enacting it. (See

Institute of Chartered Accountants of India v. M/s Price

Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the

Legislature is primarily to be gathered from the language

used, which means that attention should be paid to what has

been said as also to what has not been said. As a

consequence, a construction which requires for its support,

addition or substitution of words or which results in rejection 12 of words as meaningless has to be avoided. As observed in

Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid

the Legislatures' defective phrasing of an Act, we cannot add

or mend, and by construction make up deficiencies which are

left there. (See The State of Gujarat and Ors. v. Dilipbhai

Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary

to all rules of construction to read words into an Act unless it

is absolutely necessary to do so. (See Stock v. Frank Jones

(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation

do not permit Courts to do so, unless the provision as it

stands is meaningless or of doubtful meaning. Courts are not

entitled to read words into an Act of Parliament unless clear

reason for it is to be found within the four corners of the Act

itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd.

v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid,

Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

21. The question is not what may be supposed and has been

intended but what has been said. "Statutes should be

construed not as theorems of Euclid". Judge Learned Hand 13 said, "but words must be construed with some imagination of

the purposes which lie behind them". (See Lenigh Valley Coal

Co. v. Yensavage 218 FR 547). The view was re-iterated in

Union of India and Ors. v. Filip Tiago De Gama of Vedem

Vasco De Gama (AIR 1990 SC 981).

22. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport

Commissioner and Ors. etc. (AIR 1977 SC 842), it was

observed that Courts must avoid the danger of a priori

determination of the meaning of a provision based on their

own pre-conceived notions of ideological structure or scheme

into which the provision to be interpreted is somewhat fitted.

They are not entitled to usurp legislative function under the

disguise of interpretation.

23. While interpreting a provision the Court only interprets

the law and cannot legislate it. If a provision of law is misused

and subjected to the abuse of process of law, it is for the

legislature to amend, modify or repeal it, if deemed necessary.

(See Commissioner of Sales Tax, M.P. v. Popular Trading 14 Company, Ujjain (2000 (5) SCC 515). The legislative casus

omissus cannot be supplied by judicial interpretative process.

24. Two principles of construction - one relating to casus

omissus and the other in regard to reading the statute as a

whole - appear to be well settled. Under the first principle a

casus omissus cannot be supplied by the Court except in the

case of clear necessity and when reason for it is found in the

four corners of the statute itself but at the same time a casus

omissus should not be readily inferred and for that purpose

all the parts of a statute or section must be construed together

and every clause of a section should be construed with

reference to the context and other clauses thereof so that the

construction to be put on a particular provision makes a

consistent enactment of the whole statute. This would be more

so if literal construction of a particular clause leads to

manifestly absurd or anomalous results which could not have

been intended by the Legislature. "An intention to produce an

unreasonable result", said Danackwerts, L.J. in Artemiou v.

Procopiou (1966 1 QB 878), "is not to be imputed to a statute 15 if there is some other construction available". Where to apply

words literally would "defeat the obvious intention of the

legislature and produce a wholly unreasonable result" we

must "do some violence to the words" and so achieve that

obvious intention and produce a rational construction. (Per

Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he

also observed: "this is not a new problem, though our

standard of drafting is such that it rarely emerges".

25. It is then true that, "when the words of a law extend not

to an inconvenience rarely happening, but due to those which

often happen, it is good reason not to strain the words further

than they reach, by saying it is casus omissus, and that the

law intended quae frequentius accidunt." "But," on the other

hand, "it is no reason, when the words of a law do enough

extend to an inconvenience seldom happening, that they

should not extend to it as well as if it happened more

frequently, because it happens but seldom" (See Fenton v.

Hampton 11 Moore, P.C. 345). A casus omissus ought not to

be created by interpretation, save in some case of strong 16 necessity. Where, however, a casus omissus does really occur,

either through the inadvertence of the legislature, or on the

principle quod semel aut bis existit proetereunt legislators, the

rule is that the particular case, thus left unprovided for, must

be disposed of according to the law as it existed before such

statute - Casus omissus et oblivioni datus dispositioni

communis juris relinquitur; "a casus omissus," observed

Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be

supplied by a court of law, for that would be to make laws."

26. The golden rule for construing wills, statutes, and, in

fact, all written instruments has been thus stated: "The

grammatical and ordinary sense of the words is to be adhered

to unless that would lead to some absurdity or some

repugnance or inconsistency with the rest of the instrument,

in which case the grammatical and ordinary sense of the

words may be modified, so as to avoid that absurdity and

inconsistency, but no further" (See Grey v. Pearson 6 H.L.

Cas. 61). The latter part of this "golden rule" must, however,

17 be applied with much caution. "if," remarked Jervis, C.J., "the

precise words used are plain and unambiguous in our

judgment, we are bound to construe them in their ordinary

sense, even though it lead, in our view of the case, to an

absurdity or manifest injustice. Words may be modified or

varied where their import is doubtful or obscure. But we

assume the functions of legislators when we depart from the

ordinary meaning of the precise words used, merely because

we see, or fancy we see, an absurdity or manifest injustice

from an adherence to their literal meaning" (See Abley v. Dale

11, C.B. 378).

27. At this juncture, it would be necessary to take note of a

maxim "Ad ea quae frequentius accidunt jura adaptantur"

(The laws are adapted to those cases which more frequently

occur).

28. The above position was highlighted in Maulavi Hussein

Haji Abraham Umarji v. State of Gujarat (2004 (6) SCC 672). 18

29. As noted above, Clause 4(a) is subject to Clause 6 and

the proviso appended to Clause 4 is in the nature of exception.

The High Court's view is a rational one on the facts of each

case. These are not the cases where any interference is called

for. The appeals are dismissed but without any order as to

costs.

...............................J. (Dr. ARIJIT PASAYAT)

...............................J. (S.H. KAPADIA) New Delhi, September 8, 2008

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