# Neena Chaturvedi v. Public Service Commission, U.P

- **Citation:** (2009) 2 ILRA 392
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-28
- **Case number:** Civil Misc. Writ Petition No. 20841 of 2009
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neena-chaturvedi-v-public-service-commission-u-p-41500
- **Pages:** 25

## Headnote

Constitution
of
India
Art.
226Application send through Speed Postreached at its destination after expiry of
the last day of acceptance-whether the
addressee responsible to for delay?-
held-"No"-post office act as agent of
sender and not of addressee-matter
referred to larger bench comprising 3 or
more
judges-interim
measure
commission
directed
to
accept
the
application provisionally subject to final
decision.

Held: Para 51

Since the postal service constituted
under the provisions of Indian Post
Office Act 1898 is entrusted public
service and stood test of time, therefore,
having regard to the facts that the
questions involved in the case have wide
impact upon the large public interest
touching the fundamental rights of the
candidates under Articles 16 and 21 of
the
Constitution
of
India,
an
authoritative decision is required to be
rendered by Full Bench of this Court
comprising of atleast three or more than
three judges so that the matter may be
set at rest for all the times to come in
future. The Hon'ble the Chief Justice is
requested to constitute a Full Bench of
this Court comprising of at least three or
more than three judges for deciding the
questions formulated by me in preceding
part of this judgment as early as
possible.
Case law discussed:
1974 A.L.J. 470 (FB), 1987 U.P.L.B.E.C. 316,
W.P. No.57508 of 2005, W.P. No.67808 of
2006, W.P. No.23152 of 2006, AIR 1980 SC
431, AIR 1954 SC 429, AIR 1959 SC 1160, AIR
1966 SC 1466, AIR 1959 SC 1070, AIR 1959
SC 1160, AIR 1966 SC 1466, AIR 1959 SC
1070, AIR 1979 S.C. 1384, AIR 1968 SC 647,
(1987) 1 SCC 213, (2003) 2 SCC 111, AIR
1990 SC1782, AIR 1988 SC 1531, AIR 1989 SC
38, (1990) 3 S.C.C. 682, JT 2000 (6) SC 320,
JT 1991 (3) SC 268 : 1991 (4) SCC 138, AIR
1954 SC 429, AIR 1980 SC 431, J.T. 2005 (12)
S.C. 345, 2000 (4) E.S.C. 2483, AIR 1980 S.C.
431, JT 2005 (12) SC 345, AIR 1989 Orissa
130, AIR 1997 A.P. 79, 1995 (1) Madras LW

## Text

_Characters 0–39,929 of 80,995. This is a partial read: ask again with offset=39929 for what follows._

392 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 20841 of 2009

Neena Chaturvedi

...Petitioner
Versus
U.P.
Public
Service
Commission,
Allahabad

 ...Respondent

Counsel for the Petitioner:
Sri Yatindra Dubey
Sri N.L. Pandey

Counsel for the Respondent:
Sri M.A. Qadeer
Sri Pushpendra Singh

Constitution
of
India
Art.
226Application send through Speed Postreached at its destination after expiry of
the last day of acceptance-whether the
addressee responsible to for delay?-
held-"No"-post office act as agent of
sender and not of addressee-matter
referred to larger bench comprising 3 or
more
judges-interim
measure
commission
directed
to
accept
the
application provisionally subject to final
decision.

Held: Para 51

Since the postal service constituted
under the provisions of Indian Post
Office Act 1898 is entrusted public
service and stood test of time, therefore,
having regard to the facts that the
questions involved in the case have wide
impact upon the large public interest
touching the fundamental rights of the
candidates under Articles 16 and 21 of
the
Constitution
of
India,
an
authoritative decision is required to be
rendered by Full Bench of this Court
comprising of atleast three or more than
three judges so that the matter may be
set at rest for all the times to come in
future. The Hon'ble the Chief Justice is
requested to constitute a Full Bench of
this Court comprising of at least three or
more than three judges for deciding the
questions formulated by me in preceding
part of this judgment as early as
possible.
Case law discussed:
1974 A.L.J. 470 (FB), 1987 U.P.L.B.E.C. 316,
W.P. No.57508 of 2005, W.P. No.67808 of
2006, W.P. No.23152 of 2006, AIR 1980 SC
431, AIR 1954 SC 429, AIR 1959 SC 1160, AIR
1966 SC 1466, AIR 1959 SC 1070, AIR 1959
SC 1160, AIR 1966 SC 1466, AIR 1959 SC
1070, AIR 1979 S.C. 1384, AIR 1968 SC 647,
(1987) 1 SCC 213, (2003) 2 SCC 111, AIR
1990 SC1782, AIR 1988 SC 1531, AIR 1989 SC
38, (1990) 3 S.C.C. 682, JT 2000 (6) SC 320,
JT 1991 (3) SC 268 : 1991 (4) SCC 138, AIR
1954 SC 429, AIR 1980 SC 431, J.T. 2005 (12)
S.C. 345, 2000 (4) E.S.C. 2483, AIR 1980 S.C.
431, JT 2005 (12) SC 345, AIR 1989 Orissa
130, AIR 1997 A.P. 79, 1995 (1) Madras LW
351.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

By this petition, the petitioner has
sought relief of mandamus directing the
Commission to accept the application
form submitted by the petitioner and
allow her to participate in process of
selection as a candidate for the post of
Lecturer in Government Intermediate
College by treating her application within
time.

2. The relief sought for in this writ
petition rests on the facts that the
Commission
has
advertised
certain
vacancies of Lecturers in Government
Intermediate Colleges. The last date for
receipt of the application form was 20th
February,
2009.
According
to
the
conditions stipulated in the advertisement
duly filled application form must reach to
the office of the Commission till 5.00
p.m. by 20th February, 2009 or before it
2 All] Neena Chaturvedi V. Public Service Commission, U.P.
393
either through registered post or by
hand. It was also stipulated in the said
advertisement that the application shall
not be received through 'FAX'. A
photostat copy of the advertisement No.
5/2009-09 dates 31st January, 2009 is on
record as Annexure-1 of the writ petition.
It is stated that in pursuance of said
advertisement the petitioner has sent her
application form through Speed Post on
17.2.2009 from Chitrakoot (U.P.) as
stated in the supplementary affidavit filed
in the writ petition. In writ petition the
last date of receipt of application form
and date of sending application have been
incorrectly mentioned by the petitioner,
which
are
rectified
by
filing
supplementary affidavit. It is stated that
since the Commission was hardly at a
distance of about 100-120 Km. from the
aforesaid place of sending the application
form, therefore, in all probabilities it was
expected to reach the Commission within
24 hours i.e. by 18th of February, 2009
but it appears that on account of some
negligence or inadvertence on the part of
post
office
personnel
the
envelope
containing the application form was
reached in the office of the Commission
on 21.2.2009 i.e. next day after last date
of receipt of the application form, as such
it was returned back to the petitioner with
an endorsement that it was received after
last date of receipt of the application
form. A photostat copy of envelope as
well as application which are returned
back is on record as Annexure-3 of the
writ petition. Feeling aggrieved against
the aforesaid action of the Commission
the petitioner has filed instant writ
petition.

3. Heard Sri N.L. Pandey, learned
counsel for the petitioner and Sri M.A.
Qadeer, learned Senior Counsel for the
Commission.

4. It is submitted by learned counsel
for the petitioner that since two alternative
modes for submission of application form
were provided in the advertisement by the
Commission; one by registered post and
another by hand and the petitioner has
opted for submitting her application form
to the Commission by sending it through
registered post namely speed-post which
is speedier mode of delivery system on
17.2.2009, and in all probabilities it was
expected to reach the Commission on
18th or 19th February, 2009 before the
last date of the receipt of the application
form but on account of fault or negligent
act of post office personnel which was
acting as agent of the Commission, it was
reached to the office of the Commission
on the next day of last date of receipt of
application form, therefore, on account of
fault or negligence of post office, the
petitioner cannot be made to suffer and
she cannot be denied of opportunity to be
considered for employment guaranteed
under Article-16 of the Constitution of
India
in
respect
of
the
vacancies
advertised by the Commission. In support
of his submission, learned counsel for the
petitioner has placed strong reliance upon
a Full Bench decision of this Court
rendered in Bhikha Lal and others Vs.
Munna Lal 1974 A.L.J. 470 (FB),
wherein this Court has held that on the
facts and in circumstances of the case the
tenant-respondent could not be said to
have committed a default under Section 3
(1) (a) in respect of payment of Rs.35/-
which he sent to the plaintiff-landlords by
a money order well within time but which
had reached the landlords after expiry of
thirty days.
394 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
5. Contrary to it, Sri M.A. Qadeer
learned senior counsel appearing on
behalf of the Commission has contended
that since the Commission has provided
two alternative modes for submission of
application
form
to
the
desirous
candidates; one through registered post
and another by hand to the office of
Commission and it was made necessary
that only duly filled application form
reached to the Commission within the
prescribed time shall be accepted by the
Commission and once the applicant has
opted/chose to submit her application
form through speed-post (speedier mode
of registered post) which could not reach
within
stipulated
time,
consequent
rejection of application form cannot be
faulted with and the Commission cannot
be blamed for the same. In justification of
action taken by the Commission, Sri
Qadeer has placed strong reliance upon
several decisions of this Court rendered in
Ram Autar Singh Vs. Public Service
Commission. U.P., Allahabad and others
1987 U.P.L.B.E.C. 316, Anupam Vs.
Public
Service
Commission,
U.P.
Allahabad
and
another
in
W.P.
No.57508 of 2005 decided on 4.10.2005,
Smt. Pooja Singh Vs. Public Service
Commission, Allahabad and others in
W.P. No.67808 of 2006 decided on
13.12.2006, Adil Khan Vs. State of U.P.
and others in W.P. No.23152 of 2006
decided on 5.05.2006 and a decision of
Hon'ble Apex Court rendered in Union of
India Vs. Mohd. Nazim AIR 1980 SC
431.

6. It is not in dispute that in the
advertisement in question two alternative
modes for submission of application form
were provided to the candidates by the
Commission; one through the registered
post and another by hand. It implies that a
desirous candidate for such selection were
authorised by the Commission to submit
their application form either through
registered post or by hand to the office of
the Commission within prescribed time.
The petitioner has elected/opted/chose to
send her application form through speed
post on 17.2.2009 from Chitrakoot (U.P.),
which is at a distance of about 110-120
Kms. from the Commission situated at
Allahabad instead of submitting her
application form by hand to the office of
the Commission but her application form
was returned back on account of fact that
it was reached to the Commission on
21.2.2009 i.e. on next day after expiry of
last date of receipt of application form. It
was returned back not on account of fact
that it was sent through any other and
different mode of transmission, which
was not authorised by the Commission
but it was returned back on account of
fact that it could reach the Commission
after expiry of prescribed time. Virtually
speed-post
is
speedier
mode
of
transmission of such articles through
registered post that is why no fault could
be found by the Commission on that
count.

7. Now the questions which arise for
consideration before this Court are that as
to
whether
in
given
facts
and
circumstances of the case, the post office
is agent of the addressee (Commission) or
sender and as to whether the petitioner
can be made to suffer on account of
default of the post office in delivering the
application form of the petitioner to the
Commission after last date of receipt of
application form which was sent by the
petitioner within prescribed time?

8. A Full Bench of this Court in
Bhikha Lal and others Vs. Munna Lal
2 All] Neena Chaturvedi V. Public Service Commission, U.P.
395
(supra) had come across with somewhat
similar
issue.
The
question
for
consideration of the Full Bench was that
as to whether on facts and in the
circumstances of the case the tenant could
be said to have committed a default under
Section 3 (1)(a) of the U.P. Temporary
Control of Rent and Eviction Act in
respect of payment of Rs.35/ which he
had sent to the landlord by Money Order
well within time but which had reached
the landlord after expiry of 30 days?

9. After examining several decisions
of courts in England and Supreme Court
of India, Full Bench of this Court in paras
22 and 23 has observed as under:-

"22. From an analysis of these
decisions two principles emerge: The first
is that if the creditor and the debtor reside
at two different places served by postal
system, from the very fact that the creditor
makes a demand through the post, an
authority to the debtor to meet his
obligation through the post is implied.......

23. Another principle that emerges
from the two Supreme Court decisions
cited above is that if the debtor and the
creditor reside in two different places,
served by post offices and payments have
to be by cheques, then in the absence of
anything in the contrary, an implied
agreement can be culled out authorising
the debtor to despatch the cheques
through the post office which will be
treated as the creditor's agent. This has
come to be recognized as payment
according to the course of business usage
in general " This principle can be
extended to the case of payments made
through money orders. If the creditor and
the debtor reside at two different places
so that the debtor cannot reasonably be
expected
to
make
cash
payments
personally or through a messenger, then
in the absence of a stipulation to the
contrary it may be assumed that the
debtor is impliedly authorised to pay his
debt through money orders. In such cases
deposit of the cash at a postal money
order office will be treated as payment to
an agent of the creditor made in
accordance with " the ordinary usages of
man-kind to borrow the words used by
Lord Herschell in Henthorn v. Fraser."

10. Thereafter the reference was
answered in para 27 of the decision as
under:-

"27. My answer to the question
referred to this Bench consequently is
that, on the facts and in the circumstances
of the case the tenant-respondent could
not be said to have committed a default
under Section 3 (1) (a) of Rs.35/- which
he sent to the plaintiff-landlords by a
money order well within time but which
had reached the landlords after the expiry
of thirty days."

11. Now coming to the decision of
Hon'ble
Apex
Court
rendered
in
Commissioner of Income Tax, Bombay
Vs. M/s Ogale Glass Works Ltd. AIR
1954 SC 429, upon which the reliance
was placed by Full Bench of this Court in
Bhikha Lal's case (Supra). The material
facts of the case before the Supreme
Court were that the assessee was a nonresident
company
incorporated
and
carrying on business in the former Aundh
State outside British India. In the relevant
accounting years the assessee secured
some contracts for the supply of goods
manufactured by it to the Government of
India. Under Cl. 15 of the agreement
payments for the delivery of the goods
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
were to be made on submission of the
bills in the prescribed form, by cheques
on a branch of the Reserve Bank or
Imperial
Bank
of
India
transacting
Government business. The assessee used
to submit the bills in the prescribed form
and on the form used to write "kindly
remit the amount by cheque in our favour
on any Bank in Bombay". All payments
for the goods supplied were made by
cheques drawn by the Government
department at Delhi on the Reserve Bank
of India at Bombay and posted from there
to the assessee. The question before the
Supreme Court was as to whether, on the
facts and circumstances of the case the
income profits or gains in respect of the
sales made to the Government of India
were received by the assessee at Delhi in
British India within the meaning of Sec.
4(1) (a) of the Income Tax Act, 1922?
The Supreme Court held on the facts
before it that the posting of the cheque in
Delhi in law amounted to payment to the
assessee in Delhi. It was a case in which
according to the Supreme Court there was
an express request by the assessee to the
Government of India to remit the cheques
through the post office and consequently
the post office became an agent of the
assessee.

12. The pertinent observation made
by Hon'ble Apex Court in paras 15 and 17
of the said decision are as under:-

"15. .........There can be no doubt that
as between the sender and the addressee
it is the request of the addressee that the
cheque be sent by post that makes the post
office the agent of the addressee.
After such request the addressee
cannot be heard to say that the post office
was not his agent and therefore, the loss
of the cheque in transit must fall on the
sender on the specious plea that the
sender having the very limited right to
reclaim the cheque under the Post Office
Act, 1898, the Post Office was his agent,
when in fact there was no such
reclaimation. Of course if there be no
such request, express or implied, then the
delivery of the letter or the cheque to the
post office is delivery to the agent of the
sender himself.
Apart from this principle of agency
there is another principle which makes
the delivery of the cheque to the post
office at the request of the addressee a
delivery to him and that is that by posting
the cheque in pursuance of the request of
the creditor the debtor performs his
obligation in the manner prescribed and
sanctioned by the creditor and thereby
discharges
the
contract
by
such
performance (see Section 50 of the Indian
Contract Act and illustration (d) thereto).
17. Applying the above principles to
the facts found by the Tribunal the
position
appears
to
be
this.
The
engagement of the Government was to
make payment by cheques. The cheques
were drawn in Delhi and received by the
assessee in Aundh by post. According to
the course of business usage in general to
which, as part o the surrounding
circumstances, attention has to be paid
under the authorities cited above, the
parties must have intended that the
cheques should be sent by post which is
the usual and normal agency for
transmission
of
such
articles
and
according to the Tribunal's findings they
were in fact received by the assessee by
post.
Apart from the implication of an
agreement arising from such business
usage the assessee expressly requested
the Government to "remit" the amounts of
the bills by cheques. This, on the
2 All] Neena Chaturvedi V. Public Service Commission, U.P.
397
authorities cited above, clearly amounted
in effect to an express request by the
assessee to send the cheques by post. The
Government did act according to such
request and posted the cheques in Delhi.
It can scarcely be suggested with any
semblance of reasonable plausibility that
cheques drawn in Delhi and actually
received by post in Aundh would in the
normal course of business be posted in
some place outside British India.
This posting in Delhi, in law,
amounted to payment in Delhi. In this
view of the matter the referred question
should, with respect, have been answered
by the High Court in the affirmative."

13. The view taken in the aforesaid
case has been reiterated by Hon'ble Apex
Court in subsequent decisions rendered in
Sri Jagdish Mills Ltd. by its successor Sri
Ambica Mills Ltd. Vs. the Commissioner
of Income Tax, Bombay North, Kutch
and Saurashtra AIR 1959 SC 1160,
Indore Malwa United Mills Ltd. Vs. The
Commissioner of Income Tax (Central)
Bombay AIR 1966 SC 1466. However in
Commissioner of Income Tax, Bihar and
Orissa Vs. M/s Patney and Company
AIR 1959 SC 1070 the Hon'ble Apex
Court had held that in facts of the
aforesaid case the principle of M/s. Ogale
Glass Works' case can not be made
applicable.

14. In Sri Jagdish Mills Ltd. by its
successor Sri Ambica Mills Ltd. Vs. the
Commissioner of Income Tax, Bombay
North,
Kutch
and
Saurashtra
Ahmadabad AIR 1959 SC 1160 the
assessee at Baroda entered into an
agreement with the Government of India
in 1942 to supply goods manufactured by
the assessee. In pursuant to the said
agreement the orders were accepted by
the assessee at Baroda and delivered the
goods
manufactured
by
it
to
the
Government of India. The payment for
goods supplied by the assessee to the
Government was to be made by
cheques but there was no request either
express or implied emanating from the
assessee for the dispatch of these
cheques by post. The question which
arose for consideration before Hon'ble
Apex Court was that where no such
express words were used and the
matter rested merely in the stipulation
that the payment would be made by
cheques, would the mere posting of
cheques
in
Delhi
be
enough
to
constitute the post office the agent of
the appellant so that the income, profits
and gains may be said to have been
received by the appellant within a
taxable territories?

15. By placing reliance upon earlier
decision rendered by Hon'ble Apex Court
in Commissioner of Income Tax Vs. M/s
Ogale Glass Works Ltd. Hon'ble Apex
Court has held that according to the
course of business usage in general
which appears to have been followed in
this case, the parties must have
intended that the cheques should be
sent by post which is the usual and
normal agency for transmission of such
articles. The pertinent observation made
by Hon'ble Apex Court in para 18 of the
decision are extracted as under:-

"18. The stipulation in the contract
between
the
appellant
and
the
Government was that the payment would
be made by cheques. The Government of
India was located in Delhi and the
cheques would be necessarily drawn by it
from Delhi. Could it be imagined that in
the normal course of affairs the cheques
398 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
thus drawn in Delhi would be sent by a
messenger in Baroda so that they may be
delivered to the appellant in Baroda? Or
that the officer concerned would come to
Baroda himself and hand the same over to
the appellant in Baroda? The only
reasonable and proper way of dealing
with the situation was that the payment
would be made by cheques which the
Government would send to the appellant
at Baroda by post. According to the
course of business usage in general
which appears to have been followed in
this case, the parties must have intended
that the cheques should be sent by post
which is the usual and normal agency
for transmission of such particles. If that
were so, there was imported by necessary
implication an implied request by the
appellant to send the cheques by post
from Delhi thus constituting the Post
Office its agent for the purposes of
receiving those payments."

16. In Indore Malwa United Mills
Ltd. Vs. The Commissioner of Income
Tax (Central) Bombay AIR 1966 SC
1466 similar question as to whether the
post office was agent of assessee to
receive the cheques representing the sale
proceeds
and
whether
the
assessee
received the sale proceeds in British India
where the cheques were posted were
again under consideration before Hon'ble
Apex Court. By placing reliance upon the
abovenoted decisions, the Hon'ble Apex
Court in para 8 and 10 of the decision has
held as under:-

"8. The next question is whether the
post office was the agent of the assessee
to receive the cheques representing the
sale proceeds and whether the assessee
received the sale proceeds in British India
where the cheques were posted. Now, if
by an agreement, express or implied,
between the creditor and the debtor or by
a request, express or implied, by the
creditor, the debtor is authorised to pay
the debt by a cheque and to send the
cheque to the creditor by post, the post
office is the agent of the creditor to
receive the cheque and the creditor
receives payment as soon as the cheque is
posted to him. See (1955) 1 SCR 185:
(AIR 1954 SC 429), Jagdish Mills Ltd. v.
Commr. of Income-tax, (1960) 1 SCR
236: (AIR 1959 SC 1160), approving
Norman v. Ricketts, (1886) 3 TLR 182,
Thairlwall v. Great Northern Rly. Co.
(1910) 2 KB 509. In Messrs. Ogale Glass
Works' case, 1955-1 SCR 185: (AIR 1954
SC 429), there was an express request by
the assessee at Aundh to its debtor in
Delhi to remit the amount of the bills by
cheques. In Jagdish Mills' case, (1960) 1
SCR 236: (AIR 1959 SC 1160 ), there was
a stipulation between the assessee and its
debtor that the debtor in Delhi should pay
the assessee in Baroda the amount due to
the assessee by cheques, and this Court
held that there was by necessary
implication a request by the assessee to
the debtor to send the cheques by post
from Delhi, thus constituting the post
office its agent for the purpose of
receiving the payments. In the instant
case, Cl. 9 of the terms and conditions of
the contract read with the prescribed form
of the bills and the instructions regarding
payment show that the parties had agreed
that the assessee would submit to the
Government of India, Department of
Supply, New Delhi, bills in the prescribed
form requesting payment of the price of
the supplies by cheques together with
signed receipts and the Government of
India would pay the price by crossed
cheques drawn in favour of the assessee.
Having regard to the fact that the
2 All] Neena Chaturvedi V. Public Service Commission, U.P.
399
assessee was at Indore and the Supply
Department of the Government of India
was at New Delhi, the parties must have
intended that the Government would send
the cheques to the assessee by post from
New
Delhi,
and
this
inference
is
supported by the fact that the cheques
used to be sent to the assessee by post. In
the circumstances, there was an implied
agreement between the parties that the
Government of India would send the
cheques to the assessee by post.

10. Mr. Pathak contended that the
assessee and the Government of India had
agreed that the sale proceeds would be
paid to the assessee in Indore outside
British India, and, therefore, the rule in
M/s. Ogale Glass Works' case, (1955) 1
SCR 185: (AIR 1954 SC 429), did not
apply, having regard to the decision in
Commr. of Income-tax v. Patney and
Co., (1959) 36 ITR 488: (AIR 1959 SC
1070). We are not inclined to accept this
contention. There is nothing on the record
to show that there was any express
agreement between the parties that the
sale proceeds would be paid to the
assessee at Indore. We are satisfied that
the post office was the agent of the
assessee for the purpose of receiving the
cheques representing the sale proceeds
and the assessee received the sale
proceeds in British India where the
cheques were posted, and consequently,
the profits in respect of the sales were
taxable under S. 4 (1) (a). The High
Court, therefore, rightly answered the
question in the affirmative."

17. However, in Commissioner of
Income Tax, Bihar and Orissa Vs. M/s
Patney and Company AIR 1959 SC
1070, in the year of assessment 1945-46
the amount of commission paid to the
assessee
by
cheques
were
drawn
respectively on banks at Madras and
Bombay respectively posted from Madura
and Bombay. All the cheques whether
from Madura or Bombay were sent by
two respective firms from Madura or
Bombay and were received by the
assessee (creditor) at Secunderabad and
were treated as payment. In this case there
was an express agreement that payment
was to be made at Secunderabad. In such
circumstances it was held by Hon'ble
Apex Court that the income of assessee
was not received in British India. The
pertinent observation made by Hon'ble
Apex Court in paras 4 and 5 of the
decision are extracted as under:-

"4. .........In the case of payment by
cheques sent by post the determination of
the place of payment would depend upon
the agreement between the parties or the
course of conduct of the parties. If it is
shown that the creditor authorised the
debtor either expressly or impliedly to
send a cheque by post the property in the
cheque passes to the creditor as soon as it
is posted. Therefore the post office is an
agent of the person to whom the cheque is
posted if there be an express or implied
authority to send it by post. 1955-1 SCR
185: (AIR 1954 SC 429) (supra). In that
case there was an express request of the
asseesee to remit the amount of the bills
outstanding against the debtor, that is,
Government of India by means of
cheques. But it was observed by this
Court that according to the course of
business usage in general which has to be
considered as a part of the surrounding
circumstances the parties must have
intended that the cheques should be sent
by post which is the usual and normal
mode of transmission and therefore the
posting of cheques in Delhi amounted to
400 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
payment in Delhi to the post office which
was constituted the agent of the assessee.
But it was argued for the respondents that
in the absence of such a request the post
office could not be constituted as the
agent of the creditor and relied on a
passage in Ogale's Case, 1955-1 SCR 185
at p. 204: (AIR 1954 SC 429 at p. 436),
where it was observed :
"Of course if there be no such request,
express or implied, then the delivery of
the letter or the cheque to the post office
is delivery to the agent of the sender
himself''.
It was further contended that in this
case there was an express agreement that
the payment was to be made at
Secunderabad and therefore the matter
does not fall within the rule in Ogale
Glass Works' case, 1955-1 SCR 185: (AIR
1954 SC 429) (supra) and the following
principle laid down in judgment by Das J.
(as. he then was) is inapplicable:
"Applying the above principles to the
facts found by the Tribunal the position
appears to be this. The engagement of the
Government was to make payment by
chques. The cheques were drawn in Delhi
received by the assessee in Aundh by post.
According to the course of business usage
to which, as part of the surrounding
circumstances, attention has to be paid
under the authorities cited above, the
parties must have intended that the
cheques should be sent by post which is
the usual and normal agency for
transmission
of
such
articles
and
according to the Tribunal's finding they
were in fact received by the assessee by
post."
5. In our opinion this contention is
well-founded. Whatever may be the
position when there is an express or
implied request for the cheque for the
amount being sent by post or when it can
be inferred from the course of conduct of
the parties, the appellant in this case
expressly required the amount of the
commission to be paid at Secunderabad
and the rule of Ogale Works' Case, 19551 SCR 185: (AIR 1954 SC 429), would be
inapplicable."

18. Now, before analysing the
aforesaid decisions, it would be useful to
look into law relating to the doctrine of
precedent. In Dalbir Singh and others Vs.
State of Punjab, AIR 1979 S.C. 1384, it
was held that the only thing which is
binding in a decision, is principle upon
which the case is decided. And for this
reason, it is important to analyse a
decision and isolate from it the ratio
decidendi. The pertinent observations
made in this regard in para 22 of the
decision are as under:-

"22. ...... According to the wellsettled
theory
of
precedents
every
decision contains three basic ingredients:
(i) findings of material facts, direct
and inferential. An inferential finding of
facts is the inference which the Judge
draws from the direct, or perceptible
facts;
(ii) statements of the principles of
law applicable to the legal problems
disclosed by the facts; and
(iii) judgment based on the combined
effect of (i) and (ii) above.
For the purposes of the parties
themselves and their privies, ingredient
No. (iii) is the material element is the
decision for it determines finally their
rights and liabilities in relation to the
subject-matter of the action. It is the
judgment that estops the parties from
reopening the dispute. However, for the
purposes of the doctrine of precedents,
ingredient No. (ii) is the vital element in
2 All] Neena Chaturvedi V. Public Service Commission, U.P.
401
the decision. This indeed is the ratio
decidendi. It is not every thing said by a
Judge
when
giving
judgment
that
constitutes a precedent. The only thing in
a Judge's decision binding a party is the
Principle upon which the case is decided
and for this reason it is important to
analyse a decision and isolate from it the
ratio decidendi. In the leading case of
Qualcast
(Wolverhampton)
Ltd.
v.
Haynes 1959 AC 743 it was laid down
that the ratio decidendi may be defined
as a statement of law applied to the legal
problems raised by the facts as found,
upon which the decision is based. The
other two elements in the decision are not
precedents. The judgment is not binding
(except
directly
on
the
parties
themselves), nor are the findings of facts.
This means that even where the direct
facts on an earlier case appear to be
identical to those of the case before the
Court, the Judge is not bound to draw the
same inference as drawn in the earlier
case."

19. In State of Orissa Vs.
Sudhansu Shekhar Misra, AIR 1968 SC
647 Hon'ble Apex Court in para 13 of the
decision has held that what is of the
essence in a decision is its ratio and not
every observation found therein nor what
logically
follows
from
the
various
observations made. Para 13 of the
decision is as under:

"A decision is only an authority for
what it actually decides. What is of the
essence in a decision is its ratio and not
every observation found therein nor what
logically
follows
from
the
various
observations made in it."
20. In Ambica Quarry Works Vs.
State of Gujarat and others, (1987) 1
SCC 213 (vide para 18), Hon'ble Apex
Court observed:

"The ratio of any decision must be
understood in the background of the facts
of that case. It has been said long time
ago that a case is only an authority for
what it actually decides, and not what
logically follows from it".

21. In Bhavnagar University Vs.
Palitana Sugar Mills Pvt. Ltd., (2003) 2
SCC 111 (vide para 59), Hon'ble Apex
Court observed:

"It is well settled that a little
difference in facts or additional facts may
make a lot of difference in the presidential
value of a decision."

22. How can ratio decidendi be
ascertained from a decision has been very
clearly dealt with in Krishna Kumar Vs.
Union of India, AIR 1990 SC1782. The
observations made by Hon'ble Apex
Court in para 18 and 19 of the decision
are as under:-

"18. The doctrine of precedent, that
is being bound by a previous decision, is
limited to the decision itself and as to
what is necessarily involved in it. It does
not mean that this Court is bound by the
various reasons given in support of it,
especially
when
they
contain
"propositions wider than the case itself
required." This was what Lord Selborne
said in Caledonian Railway Co. v.
Walker's Trustees (1882 (7) AC 259) and
Lord Halsbury in Quinn v. Leathem
(1901) AC495 (502). Sir Frederick
Pollock has also said: "Judicial authority
belongs not to the exact words used in this
or that judgment, nor even to all the
reasons given, but only to the principles
402 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
accepted and applied as necessary
grounds of the decision.
19. In other words, the enunciation
of the reason or principle upon which a
question before a Court has been decided
is alone as a precedent. The ratio
decidendi is the underlying principle,
namely, the general reasons or the
general
grounds
upon
which
the
decision is based on the test or abstract
from the specific peculiarities of the
particular case which gives rise to the
decision. The ratio decidendi has to be
ascertained by an analysis of the facts of
the case and the process of reasoning
involving the major premise consisting
of a pre-existing rule of law, either
statutory or judge - made, and a minor
premise consisting of the material facts
of
the
case
under
immediate
consideration. If it is not clear, it is not
the duty of the Court to spell it out with
difficulty in order to be bound by it. In the
words of Halsbury, 4th Edn., Vol. 26,
para 573:
"The concrete decision alone is
binding between the parties to it but it is
the
abstract
ratio
decidendi,
as
ascertained on a consideration of the
judgment in relation to the subject-matter
of the decision, which alone has the force
of law and which when it is clear it is not
part of a tribunal's duty to spell out with
difficulty a ratio decidendi in order to be
bound by it, and it is always dangerous to
take one or two observations out of a long
judgement and treat them as if they gave
the ratio decidendi of the case. If more
reason than one are given by a tribunal
for its judgment, all are taken as forming
the ratio decidendi."

23. A decision given per-incuriam
has no binding force. When a decision
can be said to be given "per incuriam"
has been dealt with by seven Judges
Constitution Bench of Hon'ble Apex
Court in A.R. Antuley Vs. R.S. Nayak
and another, AIR 1988 SC 1531, in
para 44 of the decision Hon'ble Apex
Court held as under:-

"44. It appears that when this Court
gave the aforesaid directions on 16th
February, 1984, for the disposal of the
case against the appellant by the High
Court,
the
directions
were
given
oblivious of the relevant provisions of
law and the decision in Anwar Ali
Sarkar's case (AIR 1952 SC 75) (supra).
{See Halsbury's Laws of England, 4th
Edn. Vol. 26 page 297, para 578 and
page 300}, the relevant notes 8, 11 and
15: Dias on Jurisprudence , 5th Edn.
Pages 128 and 130: Young Vs. Bristol
Aeroplane Co. Ltd., (1944) 2 All ER 203
at P. 300). Also see the observations of
Lord Goddard in Moore Vs. Hewitt,
(1947) 2 All ER 270 at p. 272-A and
Penny Vs. Nicholas, (1950) 2 All ER 89,
92A "Per incuriam" are those decisions
given in ignorance or forgetfulness of
some inconsistent statutory provision or
of some authority binding on the Court
concerned, so that in such cases some
part of the decision or some step in the
reasoning on which it is based is found,
on that account to be demonstrably
wrong. {See Morelle Vs. Wakeling,
(1955) 1 All ER 708, 718F}. Also see
State of Orissa Vs. Titaghur Paper Mills
Co. Ltd., (1985) 3 SCR 26: (AIr 1985
SC 1293). We are of the opinion that in
view of the clear provisions of Section
7(2) of the Criminal Law Amendment
Act, 1952 and Articles 14 and 21 of the
Constitution,
these
directions
were
legally wrong."
2 All] Neena Chaturvedi V. Public Service Commission, U.P.
403
24. In Municipal Corporation
Delhi Vs. Gurman Kaur, AIR 1989
SC 38, Hon'ble Apex Court has held
that a decision should be treated as
given per incuriam, when it is given in
ignorance in terms of a statute or a rule
having force of a statute. In Punjab
Land Development and Reclamation
Corporation
Ltd.
Vs.
Presiding
Officer, Labour Court, (1990) 3
S.C.C. 682, Hon'ble Apex Court has
held that a decision be said generally to
be given per incuriam, when court has
acted in ignorance of a previous
decision of its own or when High Court
has acted in ignorance of a decision of
Supreme Court. In Arnit Das Vs. State
of Bihar, JT 2000 (6) SC 320, Hon'ble
Apex Court held that a decision not
expressed, not accompanied by reasons
and
not
proceeding
on
conscious
consideration of an issue cannot be
deemed to be a law declared to have a
binding effect as is contemplated by
Article 141. That which has escaped in
the judgment is not ratio decidendi. This
is the Rule of sub-silentio in the
technical sense, when a particular point
of law was not consciously determined
(See State of U.P. Vs. Synthetics and
Chemicals Ltd., JT 1991 (3) SC 268 :
1991 (4) SCC 138 Para 41}.

25. From a careful reading and
close analysis of the aforesaid decisions
of Hon'ble Apex Court, it is clear that in
M/s Ogale Glass Works' case (AIR
1954 SC 429) there was an express
request by assessee at Aundh to its
debtor in Delhi to remit/send the amount
of bills by cheque. In Jagdish Mills
case (AIR 1959 SC 1160) there was a
stipulation between assessee and its
debtor that the debtor in Delhi should
pay the assessee at Baroda the amount
due to the assessee by cheques and
Hon'ble Apex Court has held that there
was by necessary implication a request
by the assessee to the debtor to send the
cheques by post from Delhi, thus,
constituting the post office its agent for
the purpose of receiving the payments.
In Indore Malwa United Mills Ltd.
case (Supra) Hon'ble Apex Court has
held that the terms and conditions of
contract read with prescribed form of
the bills and instructions regarding
payment show that the parties had
agreed that assessee would submit to the
Government of India, Department of
Supply, New Delhi, bills in prescribed
form requesting payment of price by
cheques and the Government of India
would pay the price by crossed cheques
drawn in favour of assessee. Having
regard to the fact that the assessee was
at Indore and supply department of
Government of India was at New Delhi
the parties must have intended that
Government would send the cheques to
assessee by post from New Delhi and
this inference is supported by the fact
that cheques used to be sent to assessee
by post. In circumstances there was an
implied agreement between the parties
that the Government of India would
send the cheques to the assessee by
post. In this case Hon'ble Apex Court
has further held that there is nothing on
record to show that there was an express
agreement between the parties that the
sale proceeds would be paid to the
assessee at Indore.