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PETITIONER: MAHADEO

       Vs.

RESPONDENT: SHANTIBHAI AND ORS.

DATE OF JUDGMENT: 15/10/1968

BENCH:

ACT: Election--Elected candidate appointed on panel of Lawyers by Railway  administration--Duty  bound  to  watch  any   cases against,   Railway--Not   free  to   take   briefs   against Railway--Railway not bound  to  entrust any particular  case to  him-If appointment involving rights and  duties--Whether candidate holding an "office of profit".

HEADNOTE: The appellant’s election to the M.P. Legislative Assembly in February 1957 was challenged by an election petition  mainly on  the  allegation ,that he was disqualified from  being  a candidate  as he held certain offices  of profit  under  the Government.   The trial Judge allowed the election  petition holding  that the appellant held an office, of profit  under the Government being on the panel of lawyers prepared by the Central ’and Western Railway Administration and having  been at  the  material time a Professor  of Law in  a  Government College  on a regular salary of Rs. 250  per month;  it  was also held-that on the material before the court it could not be said that the appellant held  the post of the  President- Member  of a Tribunal constituted under s. 73 of the  Madhya Pradesh Town Improvement Trust Act, 1960.     On appeal to this Court,     HELD: Dismissing the appeal:     (i) "By office" is meant the right and duty to  exercise an  employment  or a position to which  certain  duties  are attached.   The  appellant  held  such  an  office  by   his enagagement  on the, basis of a letter of appointment  dated February  6, 1962 addressed to him by’ the Chief  Commercial Superintendent of the Railway and his reply thereto  whereby he   accepted  certain  obligations  and  was  required   to discharge. certain duties. lie was not free to take a  brief against  the  Railway  Administration. Whether  or  not  the Railway  Administration  thought it proper  to  entrust  any particular case to him, it was his duty to watch ’all  cases coming  up fog hearing against the  Railway   Administration and to  give  timely intimation of the same to the office of the Chief Commercial Superintendent. Even if no instructions regarding  any  particular case were given to  him,  he  was expected  to  appear in court and  obtain  adjournment.   In effect  this  cast a continuing duty on him to  protect  the interests   of  the  Railway  as  long  as  his   engagement continued.   The fact that the appellant would be paid  only if  he  appeared  in  a case  and  the  possibility  of  the Railway’s  not engaging him was a matter of no  moment.   An office of profit realy means an office in respect of which a profit  may  accrue. It is not necessary that it  should  be possible  to  predicate of a holder of an office  of  profit

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that  he  was  bound  to get  a  certain  amount  of  profit irrespective of the duties discharged by him. [426 F--427 C] Although  it  was  open to the appellant  to  terminate  the engagement at any time and he might even commit a breach  of etiquette by ’accepting a brief against the Railway  without formally  putting. an end to the engagement that would’  not detract from the position that he was in duty bound to  work for  the Railway Administration and see that  it causes  did not  suffer by default.  So long as the engagement  was  not put  an  end to, he was holding an office of profit  in  the Railway Adminis- 423 tration,  and as such was disqualified for being elected  to the  Legislative Assembly of Madhya Pradesh.  The  Statesman (Private)  Ltd. v.H.R. Deb and others [1968] 3  S.C.R.  614; Mcmillan v. Guest [1942] Appeal Cases 561; referred to. [427 E--F]     (ii)  Although it was not necessary for the  purpose  of the present case to express any final opinion on the  point, on  the  facts,  there was great force  in  the  appellant’s contention that he did not hold an office of profit by being a  Professor of Law in a Government College on a salary  of. Rs.  250  per  month.   The Management  of  the  College  in question  had  been  handed’  over  W  the  University   The appellant  was only a temporary Government servant.  He  had never become  permanent nor had a ,lien on the post.  He was sent  on  deputation to the University in 1959  and  in  the ordinary course of things such deputation would have come to an  end in 1964 when he attained the age of  superannuation. No order was passed in respect of him at any time either  by the  Government or by the University until after the  firing of the election petition. [430 F-431 B]     (iii)  On the facts, it was difficult to hold  that  the appellant  held the office: of profit as the President of  a Tribunal constituted under s. 73 of the Madhya Pradesh  Town Improvement Trust Act, 1950.  He  had never been  approached for the purpose nor had he ever signified his willingness to act under the terms of the notification.  He had never taken charge  of  ’any  office  nor had  he  ever  discharged  any function with regard to the office. [431 G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1832  of 1967.     Appeal  under  s.  116-A of the  Representation  of  the People  Act, 1951 from the judgment and order dated  October 31, 1967 of the Madhya Pradesh High Court, Indore  Bench  in Election Petition No. 40 of 1967. S.V.    Gupte,   Rarneshwar   Nath,   Mahinder    Narainand, Ravinder Nath for the appellant.     Sarjoo Prasad and D.N. Misra for respondent No. 1.     The Judgment of the Court was delivered by,     Mitter,  J.  This is an appeal from a  judgment  of  the Madhya  Pradesh  High Court by a returned  candidate  at  an election  to  Madhya  Pradesh  Legislative   Assembly   from Ujjain   North Constituency held in February 1967  declaring the  election  of  the appellant void under  s.  98  of  the Representation  of the People Act (hereinafter  referred  to as the Act).     There  was  no less than eight candidates  at  the  said election, five of whom polled very few votes.  The result of the election so far as the other three were concerned was as follows:

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 1. Mahadev  Govind  Joshi, the  returned      candidate secured                          23,709 votes   2. Mrs. Hansaban Patel polled                ’10,767  ,,   3. Shri Bansidhar Azad polled                  7,093  .. The  election petition was filed by the husband of  the  2nd respondent,  Mrs. Hansaben Patel. In the  petition  numerous grounds  were  taken.  for declaring  the  election  of  the appellant void under 424 the  Act  and no less than five issues with  different  sub- heads  were flamed by the court on August 31, 1967,  but  at the  final  stage  the  hearing only  the  first  issue  was canvassed.  The said issue reads as follows:      "1. (a) Was the respondent No. 1 holding one or more of the three following offices of profit ?       (i)  his  being   included in  the  panel  of  lawyers prepared by the Central and Western Railway Administration;       (ii) his holding the  post  of  the  president  member of  a  tribunal  constituted  under section 73 of  the  M.P. Town Improvement Trusts Act, 1960;       (iii)  his holding the office of Professor of  law  in the  Madhav  College, Ujjain on regular salary  of  Rs.  250 p.m.; (b) If so, its effect ?"       Before  the  trial Judge a number  of  documents  were exhibited  and  some witnesses were examined.   The  learned trial   Judge  was  of  opinion  that  the  appellant,   the successful   candidate  held  an  office  of  profit   under Government  being  on the panel of lawyers prepared  by  the Central  and Western Railway Administration and having  been at  the  material time a  Professor of  Law in   the  Madhav College on a regular salary of Rs. 250 per month, but he was not  prepared  to hold on the material before him  that  the appellant  held  the  post  of  the  President-member  of  a Tribunal constituted under s. 73 of the Madhya Pradesh  Town Improvement Trust Act, 1960.     The first alleged disqualification is based on a  letter of  appointment  dated February 6, 1962  addressed  by   the Chief   Commercial  Superintendent  to  the  appellant   who accepted  the  conditions and terms of that  letter  by  his reply  within  a  few days thereafter.  The  letter  of  the Commercial Superintendent’ shows that the appellant’s  name. was  kept on the  panel  of Railway Pleaders for  conducting suits  filed  against the Union of India in  the  courts  of Ujjain  on the terms and conditions therein ’mentioned.   It is not necessary to recapitulate the terms excepting  -three or  four to be mentioned presently.  The first  term  showed that the appellant was ordinarily to be entrusted with cases up  to valuation of rupees three thousand only.   The  ninth term imposed a condition on the appellant that he would not’ accept any briefs against. any Railway in any court.  Clause (13)  of the terms is really the most important one for  our present purposes :and reads as follows :--                   "You  will  be  expected  to  watch  cases               coming up for hearing against this Railway  in               the various  courts at 425               UJB and give timely intimation of  the same to               this  office. H no instructions regarding  any               particular  case are received by you, will  be               expected to appear in the court and obtain  an               ,adjournment  to save the exparte  proceedings               against this Railway in  the  court. You  will               be  paid Rs. 5 for every such  adjournment  if               you are not entrusted with the conduct of  the

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             suit later On." The  other terms deal mostly with the fees and the  expenses to which the appellant would be entitled if he accepted  the engagement.     The  question  before us is, whether  by  accepting  the engagement,  the  appellant could be said to  have  held  an office  of profit. The word ’office’ according to  Webster’s New World Dictionary means, inter alia, "a function or  duty assigned  to someone, specially as an essential part of  his work   or  position,  a  position  of  authority  or   trust especially  in a Government, Corporation etc." According  to Jowitt’s  Law  Dictionary, it means the right  and  duty  to exercise  an  employment  such as an office  of  a  trustee, executor,  guardian,  director, Sheriff, Judge   etc.’   The expression  ’office  of  profit’ finds a  place  in  an  old English  Act, namely, the Act of Settlement, 1701, s.  3  of which provided that "no person having an office or place  of profit  under  the Crown could be a member of the  House  of Commons."  The  meaning  of  the  expression  came  up   for consideration by this Court in a recent case. The  Statesman (Private) Ltd. v.H.R. Deb and others(x) decided on April  2, 1968.  There, a question arose as to whether the respondent, H.R.  Deb, was qualified to hold a judicial office in  India in terms of s. 7 (3) of the Industrial Disputes Act.   Under that  provision  "a  person  shall  not  be  qualified   for appointment  as  the presiding officer of  a  Labour  Court, unless inter alia... (d) he has held any judicial office  in India for not less than seven years".  The facts relating to the  career  of  Mr.  Deb as found by  this  Court  were  as follows.   He  was first appointed in 1940 as a  Sub  Deputy Collector  and  was   vested with powers of  a  Third  Class Magistrate.   Thereafter,  he was vested with  powers  of  a Second  Class Magistrate, and after a year or so with  those of a First Class Magistrate.  There seems to have been  some difference  of opinion between the Judges of the High  Court on   the point as to whether Mr. Deb held a judicial  office or whether he merely discharged certain judicial  functions. According  to  the judgment of this Court delivered  by  the learned   Chief  Justice  "the  dispute,  therefore,  really reduces  itself  to  this:  Does  the  Magistrate  hold’  an "office?" An office means no more than  a position to  which certain duties are attached." The learned Chief Justice also referred to the Judicial Officers Protection Act which (1) [1968] 3 S.C.R. 614. 3 Sup. CI/69--10 426 was  enacted  to  protect not only  Civil  Judges  but  also Magistrates,  and  observed  that  "office  means  a   fixed position for performance of duties."     We  may also refer to certain observations of the  House of  Lords in ’the case of Mcmillan v. Guest(1).  There  LOrd Wright in delivering his opinion said: 1    "The  word "office" is of indefinite content.Its  various meanings  cover four columns of the New English  Dictionary, but  I take as the most relevant for purposes of  this  case the following:  "A position or place to which certain duties are  "attached,  especially  one of a more  or  less  public character." This was a case arising out of assessment under the  Income- tax Act.  The appellant was a director of A. Wander, Ld.,  a private  company  which was resident and controlled  in  the United Kingdom. He was appointed a director by the  articles of  association  and  had no contract of  service  with  the company.   Since  1919 he had been resident  in  the  United States  of  America,  and in 1938 he  became  a  naturalized

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American citizen.  He had gone over to America to take  over the  management   of  a  company in Chicago  allied  to  the predecessors  of  A.  Wander,  Ld., for  whom  he  opened  a Canadian office, and concerned himself in the administrative and selling organization  there.  Copies of   minutes;annual balance sheets etc. were regularly sent to the appellant  in America, but he attended no board meetings in England except one  in  1931 and only one in Chicago in 1925.  He  was  not required  to attend board meetings of the  English  company, and notices of such meetings were not sent to him.  The question before  the  House of Lords was whether he  held  an  office within  the  U.K. for the purposes of rule 6  of  the  Rules applicable  to  Sch. E to the Income Tax Act, 1918  and  the House  of Lords was of the view that he held an  office  and dismissed his appeal. If  by "office" is meant the right and duty to  exercise  an employment  or  a  position  to  which  certain  duties  are attached  as observed by this Court, it is difficult to  see why the engagement of the appellant in. this case under t,he letter of February 6, 1962 would not amount to the appellant s holding an office.  By the said letter he accepted certain obligations  and was required to discharge  certain  duties. He  was  not  free  to take  a  brief  against  the  Railway Administration.   Whether or not the Railway  Administration thought  it  proper  to  entrust  any  particular  case   or litigation  pending in the court to him, it was his duty  to watch  all cases coming up for hearing against  the  Railway Administration and to give timely intimation of the same  to the office of the Chief Commercial Superintendent.  Even  if no instructions regarding any particular case were given  to him, he was expected (1) [1942] A.C. 561. 427 to appear in court and obtain an adjournment. In effect this cast  a  duty  on  him  to appear  m  court  and  obtain  an adjournment  so as to protect me interests of  the  Railway. The  duty or obligation was a continuing one so long as  the railway did not think it proper to remove his name from  the panel  of Railway lawyers so long as he did not intimate  to the  Railway Administration that he desired to be free  from his  obligation  to render service to the  Railway.  In  the absence  of  the  above  he  was  bound  by  the  terms  the engagement   to   watch  the  interests   of   the   Railway Administration,  give  them timely intimation  of  cases  in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had  made no arrangement for representation. It is true that he  would get a sum of money only he appeared but the possibility that the Railway might not engage him is a matter, of no  moment. An  office of profit  really means an office in  respect  of which  a  profit may accrue.  It is not  necessary  that  it should be possible to predicate of a holder of an office  of profit  that  he was bound to get a  certain  amount  profit irrespective of the duties discharged by him.    Learned  counsel  for  the  appellant  argued  that   the appellant  was not a salaried employee of the  Railway.   He was not even bound to act for the Railways and if he thought it proper to accept a brief against the railway the  Railway Administration could only take steps against him for  breach of  professional etiquette and nothing more.   According  to counsel,  he could only get remuneration in case he  thought it proper to act on the terms of the letter and appeared  in any case to support the cause of the Railway.  In our  view, although  it  was  open to the appellant  to  terminate  the

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engagement at any time and he might even commit a breach  of etiquette  by accepting a brief against the Railway  without formally  putting an end to the engagement, that  would  not detract from the position that he was in duty bound to work the  Railway Administration and see that its causes did  not suffer by default.  So long as the engagement was not put an end  to, he was holding an office of profit in  the  Railway Administration,  and  as  such was  disqualified  for  being elected to the Legislative Assembly of Madhya Pradesh.     The  question as to whether the  appellant was   holding an office of profit under the Government of Madhya   Pradesh as  a Professor of Law in the Madhav College, Ujjain is  not altogether free from difficulty.  This college was at  first one  owned   and  managed by the Government.   In  1950  the appellant  was  invited by the Principal of the  College  to come and work as a lecturer. He did so for some time and his work  was  purely  on the basis of  an  arrangement  between himself and the  Principal.In  July, 952 the Principal wrote to  the Education Department that  the appellant  should  be formally   appointed.   Thereupon  the   Deputy   Secretary, Education Department, wrote to the Director of Edu- 428 cation on April 7, 1952 conveying sanction of the Rajpramukh to the appellant’s appointment on one year’s probation as  a part  time  Professor of Law in Madhav College  on  a  fixed salary  of  Rs. 250 per month with effect from the  date  he assumed his duties in a temporary capacity, that is to  say, August 1,  1951.  The appellant was employed only as a part- time lecturer without increment or Provident Fund  benefits. His appointment was  never confirmed by any letter.  It  is, however, the common case of the parties that he continued to act  as a lecturer in Law in Madhav College till July  1967. Up to March 1959 the College was not only a Government-owned institution but one which was being managed from day to  day directly  by  its Education Department. In 1959  there  were certain  changes in the management of  the institution,  but without  the Government relinquishing ownership or  ultimate control.   As  a matter of fact,. an agreement  was  entered into  on  March  16, 1959 between  the  Governor  of  Madhya Pradesh  and  Vikram  University Ujjain,  a  body  corporate formed  under  s. 3 of the Madhya Bharat  Vikram  University Act, 1955, regarding certain terms under which the  Governor ’had  offered to transfer to the University the   management of   the   Madhav College, together with its  buildings  and premises  etc.  for  a period of five years  in  the  fi.rst instance commencing from the  1st of April, 1959 and  ending on the 31st March, 1964.  The  agreement also recorded  that the University was to be in charge of the management for the said  period  subject to the terms  and  conditions  therein mentioned.  Under cl. (15) of the said terms and  conditions "the existing members of the staff and other servants of the said college shall be treated as being on deputation to  the University  during  its period of management  and  shall  be deemed  to  have been deputed on the usual  foreign  service conditions,  retaining their lien in the  State  Educational Service.  The University shall be liable to make payment  of salaries   and  other  allowances,  except  the   deputation allowance, to the members of the staff and other servants of the  said  college,  in  employment  at  the  date  of   its transfer." Under cl. (16) "the University shall be  entitled to make fresh appointments in regard to the staff and  other servants    for    the   said   college   and,     on    the University  informing  the  Governor  in  this  behalf,  the Governor  shall  take back within a period of  three  months from the date of receiving information from the  University,

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in  the  State  Government’s  service  the  members  of  the existing  staff  and other servants belonging  to  the  said college  at  the time of execution of  this  agreement."  On March  31, 1964 a telegram was sent to the  Vice-Chancellor, Vikram   University  recording  that   "pending   Government decision  on  Sen  Committee  Report  existing   arrangement regarding Madhav College may continue on the same terms till 30th of June 1964." There is a further letter dated July 17, 1964  showing that the Government had decided  to.  transfer the management of the 429 College  and  a regular transfer deed was in the  course  of preparation,  but ,actually there is nothing to show that  a transfer  deed was executed as contemplated.   The  position became  complicated  by  reason  of  the  fact  that  as   a Government  servant under the Fundamental Rules in force  at the time of his appointment, the appellant could continue in service  only  till he attained the age of 55.  The  age  of superannuation was later increased to 58.  But even on  this basis  the appellant had attained the age of 58 on June  30, 1964  and  would be deemed to have retired  from  Government service  unless a special order to continue him  in  service was  made.  No such order was, as a matter  of  fact,  made. Under  the  Rules  of  the University  a  teacher  could  be continued  in service up to the age of sixty but not  beyond with this qualification that if a teacher reached the age of sixty during the currency of an academic session he might be permitted  to continue in service and retire at the  end  of the session.     The  letters which passed between the Vikram  University on the one hand and the Government of Madhya Pradesh  and/or the  appellant in this case on the other which form part  of the record do not permit us to come to any conclusion as  to the  manner in which the employment of the  appellant  under the  Government as a part-time Professor of  Law in   Madhav College  came  to  an end.  On January  1,  1965  the  Under Secretary  to the Government of Madhya  Pradesh,   Education Department,  wrote  a  letter to  the  Principal  of  Madhav College asking for information as to whether the  appellant, a part-time Professor of Law, was confirmed in his  existing post.  The record does not include any reply to this letter. On May 22, 1967 the Registrar of the University addressed  a letter  to  the  Principal,   Madhav  College  drawing   his attention  to the fact that in terms of el. 5 of Schedule  B of  Statute 7-B of the  University Calendar   the  appellant would retire on June 30, 1967 as he had already attained the age of 60 years on 31st July 1966.  The occasion for writing this  letter  is not quite clear unless it  related  to  his election  to  the Legislative Assembly because by  the  last sentence  of the letter the writer was asking the  Principal as  to whether the appellant had resigned from his  post  on his  being  elected as an M.L.A. On July 4, 1967  after  the filing  of  the election petition, the Registrar  of  Vikram University  intimated to the appellant in  writing that  his services as part-time Professor of Law would not be required with  effect from the commencement of the  academic  session 1967-68  i.e.  from Monday, the 17th July   1967.The  letter went on to add:                  "Your tenure as part-time Professor of  Law               in Madhav College, Ujjain has therefore ceased               with effect  from June 30, 1967." By  letter  dated  31st  July  1967  the  Registrar  of  the University  intimated  the Secretary to  the  Government  of Madhya Pradesh 430

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Education  Department,  that under  instruction  dated  31st March  1967  the University had been asked to  maintain  the status  quo  with  respect to teachers  transferred  to  the University until final terms and conditions of transfer were eftected and in the absence of any Government orders to  the contrary,  the  appellant also continued to  remain  in  the service  of  the University.  Finally, the  letter  recorded that in terms of the rules of the University fixing 60 years as the age of superannuation for teachers, the appellant had been informed that his services would not be required  after 30th  June 1967.  It was during the hearing of the  election petition  that  a letter dated 9th October 1967 came  to  be written by the Under Secretary to the  Government of  Madhya Pradesh,Education   Department  to  the  Registrar,   Vikram University that the appellant had ceased to be in Government service  with  effect from 30th June 1964 in terms  .of  the rule  prescribing 58 years as the age of superannuation  for Government servants.     The last letter may legitimately be subject to a comment that efforts were being made to establish that the appellant had ceased to be in Government service  after June 30, 1964. It is all the more surprising that the letter of October  9, 1967   should  be written at such an opportune  moment  when more  than two years before the Under Secretary was  himself enquiring  of the Principal as to whether the appellant  had been confirmed in his existing post.     Learned  counsel for the appellant contended that  after attaining the age of 58 the appellant must be treated as not in  ernment service and as the University had the  power  to manage the affairs of the College, in effect it retained him in exercise of its rights under the above mentioned rule but this would not make the appellant’s emp1oyment one under the Government.  On the other hand, it was contended by  learned counsel  for  the resportdent that we  should  ignore  these deeming  provisions of the Fundamental Rules and hold  that. as  a matter of fact the appellant had continued in  service till  1967  notwithstanding  the Fundamental  Rules  of  the Madhya  Pradesh Government and the rules of  the  University which  permitted  the  termination  of  his  service  before February  1967  but which were never resorted to.   For  the purpose  of  this case, it is nor necessary to  express  any final opinion on the joint except to say that the contention put  forward on behalf of the appellant seems to have  great force.   The  appellant  was  only  a  temporary  Government servant.   lie had never ’become permanent.  lie really  had no  lien  on  the post.  He was sent on  deputation  to  the University in 1959 and in the ordinary course of things such deputation  would  have  come  to an end  in  1964  when  he attained  the are of superannuation.  It was really for  the Umversity.   to   ignore  the  fact.  that   he   had   been superannuated.in 1964 and.continue him in service, but  that would be an 431 act  of the University and not of the Government.  There  is room for doubt as to whether in the circumstances  mentioned above  the appellant was holding an office Of  profit  under the Government as a Lecturer in law in the Madhav College by reason  of the fact that no order was passed in  respect  of him  at  any  time  either  by  the  Government  or  by  the University until after the filing of the election petition.     The last point of disqualification alleged was   whether the  appellant  could be said to have been a  holder  of  an office of profit by reason of his appointment as Chairman of the  Improvement  Trust  Tribunal  in   Ujjain   City.   The appointment  was gazetted in October 1966 by a  notification

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to  the  effect  that the State Government  was  pleased  to constitute  the Tribunal as specified below for the  purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at Ujjain.                         President              Shri M.C. Joshi, Advocate, Ujjain.                         Assessors.                1. Shri Chand Narayan Rajdan,               Retired Traffic Superintendent                  Agar Light Railway Ujjain. The  High  Court  in its judgment noted that  there  was  no ’clear  positive  indication  that the  appellant  had  been consulted  beforehand.  There is certainly no evidence  that he  had acted on the appointment or that he had  ever  taken charge of the office.  The finding of the High Court is that when  the  order was delivered at his house,  the  appellant took it and did not inform anybody connected with the Trust, or  as for that matter, the Government, that the  order  had come  to  him  by mistake and he was not "M.  C.  Joshi"  as mentioned  in  the notification.  The High Court  gave,  the appellant  what  it  terms "the benefit of  doubt"  on  this alleged  disqualification. But quite apart from the  mistake as   regards  the  name, it is difficult to  hold  that  the appellant held the office of profit as the President of  the Tribunal.   As noted already, he had never  been  approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never  taken charge of any office nor had he ever discharged any function with  regard to the office.  In the circumstances, it  would hardly  be  right to hold that he was holding an  office  of profit  under  the Government.  On the materials  before  it the High Court was not prepared to hold ’that the  appellant was  the holder of an office of profit and on the  facts  of this  case,  we  do  not feel called  upon  to  disturb  the finding. of the High Court. In the result, the appeal fails and is dismissed with costs. R.K.P.S                                  Appeal dismissed. 432