REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5539  OF 2008 (Arising out of SLP (C) No. 25514 of 2004)

               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)

J U D G M E N T

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.

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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.

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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). 11

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).   

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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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