Holding

Because the private aided college is not a statutory body and no statutory provision was contravened, the appellant cannot be granted a declaration of continuance in service, though he is entitled to monetary compensation.

Summary

Dipak Kumar Biswas, a permanent government auditor, resigned to take up a lecturer post in a private aided college in Meghalaya, relying on the principal's assurance that the Director of Public Instruction's approval was a formality. After five months his appointment was terminated because the Director had not given prior approval, which the college claimed was required under rules that the State had not formally adopted. The lower courts held the termination unlawful but limited relief to damages, reasoning that the college was not a statutory body and a declaration of continuance in service could not be granted against a private institution. The Supreme Court affirmed that the college was not a statutory body and that no statutory provision was violated, thus a declaration of continuance was unavailable. However, exercising its power under Article 136, the Court enlarged the relief, ordering three years' salary and allowances as compensation and directing the State to permit re‑appointment if a vacancy arose. The appeal was allowed in part, with costs awarded against the respondent.

Issues considered

The legal status of a private aided college – whether it is a statutory body for purposes of employment remedies
Whether a declaration of continuance in service (specific performance) can be granted against a private aided institution
Whether the Director of Public Instruction's refusal to approve the appointment violated any statutory provision
What relief is appropriate for wrongful termination – reinstatement versus monetary compensation

Legislation cited

Assam Aided College Employees Rules
Assam Aided College Management Rules
Constitution of Indias. Article 136, s. Article 311
Intermediate Education Act
Registration of Cooperative Societies Act

Subjects

service lawwrongful terminationprivate aided collegestatutory bodyspecific performancedamagesArticle 136Article 311employment contractrelief enlargementappointment approvalgovernment aid

Judgment

DIPAK KUMAR BISWAS
A
V.
DIRECTOR OF PUBLIC INSTRUCTION & ORS.

MARCH 6, 1987

B [A.P. SEN AND S. NATARAJAN, JJ.]

Constitution of India: Article 136--Powers of the Court to
enlarge relief.

Service Law: Lecturer of private aided college-Status of-
C Wrongful termination of service of-Nature of relief-Whether entitled
to declaration of continuance in service-Aided colleges-Whether
statutory bodies.

Assam Aided College Employees Rules, 1960: Assam Aided
College Management Rules, 1965-Whether adopted in State of
D Meghalya.

The appellant, who was holding a permanent post in a Central
Government department, was selected for the post of Lecturer in a
private aided college in Meghalya. The order of appointment stated that
it was subject to the approval of the first respondent. On his seeking
E clarification from the Principal he was assured that the approval was a
mere formality. Acting on the said assurance the appellant resigned his
permanent post in the Government department and joined the college.
However, he found his services terminated just within five months for
want of prior approval of the first respondent.

F A suit filed by the appellant challenging the order of termination
and for a d~claration and permanent injunction was dismissed by the
trial court. The first Appellate Court found that the Assam Aided
Colleges Management Rules, 1965 had not been adopted by the State
Government at the time of the appellant's appointment and that the
Director of Public Instruction had acted wrongly in refusing to give
G approval to the appellant's appointment, and as such the order of
termination of service of the appellant was manifestly wrong. It, there-
fore, declared appellant's continuance in service.

The High Court while concurring with the view of the first Appel-
late Court that the termination of services of the appellant was unlaw-
H fut, awarded one year's salary and allowances as damages since the
572
D.K. BISWAS v. DIR. Of PUBLIC INSTRUCTION 573

appeUant did not belong to the category of either Government ser:vants,
A
~-- industrial workmen or employees of statutory bodies, for which alone
reinstatement could be ordered.

In this appeal by special leave it was contended for the appellant
that the Appellate Court and the High Court having found the termina-
tion of service to be wrong and illegal, he should have been granted the B
relief sought for in the suit, that is, a declaration of continuance in
~- service and reinstatement with full back wages and allowances. It was
further submitted that since the college was a private institution pro-
_... -. vided and by the Go"ernment and Government had full supervisory
/ control over it, it wa!i for all practical purposes a Government institu-
tion. As such, he was entitled to parity of treatment with a Government
servant wrongly removed from service. For the respondent it was con-
c
' · tended that the only remedy for the appellant was to file a suit for
damages and not to seek a declaration of continuance in service, be-
cause it would amount to seeking specific performance of a contract of
service.
D
Allowing the Appeal in part, the Court,

HELD: The appellant was not entitled to a declaration that he
continued to be in the service of the college and that he was entitled to
all the benefits flowing from the declaration. [581G)
E
Even though the College in question may be governed by the
statutes of the University and the Education Code framed by the
Government of Meghalaya and even though the college may be receiv-
ing rrnancial aid from the Government, it would not be a statutory body
because it has not been created by any statute and its existence is not
dependent upon any statutory provision. [580F-G) F

Vaish College v. Lakshmi Narain, (1976) 2 SCR 1006 and J.
Tewari v. Jwala Devi Vidya Mandir & Others, (1979) 4 SCC 160,
referred to.

There was no violation of the provisions of any Act or any Regula- G
tions made thereunder in the instant case. The first respondent in
declining to approve the appointment of the appellant had proceeded on
the erroneous assumption that the Assam Aided College Employees
Rules, 1960 and the Assam Aided College Mangement Rules, 1965 had
been adopted by the State of Meghalya. No doubt such action has been
held to be wrongful but even so it was not in contravention of any H
574 SUPREME COURT REPORTS [1987] 2 S.C.R.

A statutory provisions or regulations or procedural rules. [581E·G I

J.P. Gupta v. Inter College, Thora, [19841 3 SCR 752, dis-
tinguished.

The misfortune that has overtaken the appellant was partly due to
B his own hasty action in resigning his permanent post and partly on
account of the fll'St respondent disapproving the appellant's appoint- -J_
ment on the basis of rules which had not been formulated and com-
municated to the aided colleges. In spite of the sad plight of the appel-
lant, therefore, it will not be possible to grant the relief of declaration as · · ""'-..
sought for by him. [578C·D]
c [In the facts and circumstances of the case and in exercise of its
powers under Article 136 of the Constitution, the Court enlarged the
relief granted to the appellant by the High Court by directing the State
of Meghalaya to grant three years salary and allowances to the appel-
lant at the rates prevalent when his services were terminated. It further
D directed that in the event of there being a vacancy in the College in
question for the post of I,ecturer in English, and in the event of the
Management willing to appoint him as Lecturer once again, the
Management should be pennltted to do so by granting relaxation of
rules and regulations.]

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2318
of 1985

From the Judgment and Order dated 1.8.83 of the Gauhati High
Court in S.A. No. 19 of 1978.

F Appellant-in-person

D.N. Mukherjee for the Respondents.

The Judgment of the Court was delivered by

G NATARAJAN, J:This appeal by special leave is directed against
a judgment of the Gauhati High Court rendered in Second Appeal No. '411
19 of 1978. By a quirk of fate the appellant who was holding a perma- "'-.
neut post of Auditor in the Office of the Accountant General, Assam
resigned his job and took up appointment as a Lecturer in an aided
college in Meghalya only to find his appointment terminated in five
H months' time for want of apporval for the appointment by the Director
D.K. BISWASv. DIR. OF PUBLIC INSTRUCTION [NATARAJAN,J.) 575

of Public Instruction. The backdrop of events for this appeal are as
~- narrated below. A

The appellant who was a confirmed Auditor in the Offic<0 of the
Accountant General, Assam responded to an advertisement in the
Assam Tribune dated 21.2.75 and offered himself as a candidate for
appointment as a Lecturer in English in Lady Keane Girls College, B

\ Shillong. Respondents 2 and 3 are respectively the Principal and the
President of the Governing Body of the said College. After being
interviewed along with other candidates on 27.3.75 the appellant was
_,.. selected for the post and was issued an order of appointment on 7.4.75.
/
The order of appointment, however, stated that the appointment was
subject to the approval of the Director of Public Instruction,
Meghalya, the first respondent herein. On the appellant seeking clari- c
~ fication from the Principal about this condition he was assured that the
sanction of approval was a formality and there was no jeopardy to his
appointment. Acting on this assurance the appellant resigned his post
in the Accountant General's Office and joined the College on 2.5.75.
To his shock he received a communication from the Principal on D
11.9. 75 enclosing a copy of letter of the first respondent dated 28.8.75
informing him that his services would be terminated with effect from
17.9.75. By reason of the appellant's representations the matter was
~ kept in abeyance till 1.12. 75 when he received a further communica-
tion stating that his services were being terminated with immediate
effect for want of prior approval of the first respondent. E

The appellant filed a suit in the Court of the Assistant District
-~ Judge, Shillong to challenge the order of termination and sought the
reliefs of declaration and permanent injunction. The trial court
granted ad interim injunction and later made it absolute and in terms
4 thereof the appellant continued to be in service till 20.4. 77 on which F
date the trial court dismissed the suit and vacated the injunction.

The Assistant District Judge held that the appointment of the
appellant without prior approval of the Director of Public Instruction
was irregular and furthermore the appointment contravened the

~-
Government's Resolution regarding the reservation of posts for back- G
ward sections of the people of the State and that the policy applied to
all Government institutions as well as private institutions aided by the
Government. The trial court further held that in any event the appel-
!ant will not be entitled to a relief of declaration regarding his
continuance in service and that the remedy for the appellant under
law, if any, is to file a suit for damages for wrongful dismissal and seek H
reliefs.
576 SUPREME COURT REPORTS [1987] 2 S.C.R.

The appellant preferred an appeal to the District Judge, Shil-
A long. The learned Appellate Judge held that except the oral testimony -)
of the Deputy Director of Public Instruction regarding the Govern-
ment's reservation policy there was no material on record to show the
formation of any such policy and much less that the policy of the
Government had been published or even communicated to the aided
B colleges prior to the appellant being appointed. The learned Judge
also held that in the absence of any notification or circular by the i
Government (of Meghalya) showing that the Assam Aided Colleges 1-
Management Rules, 1965, had been adopted it was not possible to
hold that the Government had actually adopted the said rules. The ·-
Appellate Judge, therefore, held that the Director of Public Instruc-
C lion had acted wrongly in refusing to give approval to the appellant's
appointment and as such the order of termination of service of the
appellant was manifestly wrong. In accordance with such findings the )'
Appellate Judge allowed the appeal and decreed the suit and declared
the appellant's continuance in service as a Lecturer in English in the
second respondent's college.
D
The judgment and decree of the Appellate Judge was challenged
in Second Appeal before the Gauhati High Court by the first respon-
dent. A learned Single Judge of the High Court concurred with the
findings of the Appellate Judge and held that the State of Meghalya __.,.
had not adopted the Assam College Management Rules, 1960 at the
E time of the appellant's appointment and as such the termination of the
services of the appellant was unlawful. However, on the question of
relief that can be granted to the appellant the learned Judge differed
from the view of the Appellate Judge and held that reinstatement of
the appellant in service was not possible as the appellant did not be-
long to one of those categories for which alone reinstatement can be
F ordered viz. (1) Government servants, (2) industrial workmen and (3)
employees of statutory bodies. The learned Judge, therefore, held that
:r·
the appellant would only be entitled to damages for wrongful termina-
tion of service. Even then after taking into consideration the unnviable
position of the appellant and his continuance in service for about one
and half years during the pendency of the suit, the learned Judge
G awarded one year's salary and allowances as damages and disposed of
the appeal with the abovesaid modification. It is against this judg- ·;:j
men! of the High Court the appellant has preferred this appeal.

The appellant appeared in person and argued the appeal before
us. He contended that neither in the advertisement made by the
H college authorities nor at the time of the interview, nor in the order of
D.K. BISWAS v. DIR. OF PUBLIC INSTRUCTION [NATARAJAN, J.) 577

appointment was there anything to show that the Government of
A
~· Meghalya had adopted the Assam Aided College Management Rules,
1965 and the Assam Aided College Employees Rules, 1960 and as such
he had reason to believe that when once the Selection Committee
found him suitable for the appointment he would be confirmed in the
post of Lecturer after his successful completion of probation. He
further stated that he verified from •he Principal as to whether his B
appointment would be disapproved by the first respondent for any
~ reason and he was assured by the Principal that the sanction of

- ,,......
approval was only a formality and, therefore, his appointment would
·not be in jeopardy in any manner. Having regard to all these factors he
resigned his permanent post in the office of the Accountant General,
Assam and had devoted himself fully to his task as a Lecturer in the
college. Therefore, it was a rude shock to him when he was issued an
c
order of termination of service on the ground that the first respondent
°"""· had not approved the appointment. It was also urged by him that he
had established in the trial of the suit that his was the first case where
approval was not given and that there had been no previous instance of
denial of approval of appointments made in any of the aided colleges D
in the State of Meghalya. The appellant laid stress on the fact that the
Appellate Court as well as High Court have both sustained his conten-
tions and held that his appointment had not been made in contraven-
I.
tion of any of the rules framed by the Government and as such the
~
refusal of the first respondent to approve his appointment was wrong
and the termination of his service was illegal. The further submission E
of the appellant was that since the Appellate Court and the High Court
have found the termination of his service to be wrong and illegal, he
. should have been granted the relief sought for in the suit viz. a declara-
tion that he continued to be in service all along and that he was entitled
to reinstatement with full back pay and allowances. The appellant also
~ contended that though the Lady Keane Girls College is a private in- F
stitution it was being provided aid by the Government and Govern-
ment had full supervisory control over it and as such the college is for
all practical purposes a Government institution and in such circum-
stances he is entitled to parity of treatment with a Government servant
wrongly removed from service. The prayer of the appellant, therefore,
was that he should be granted a declaration regarding his continuance G
~ in service so as to entitle him to all the benefits ensuing from such a
declaration viz. reinstatement in service together with back pay,
allowance ·and other benefits.

. Opposing the arguments of the appellant the learned counsel for
H
the first respondent argued that the Lady Keane Girls College is a
)

578 SUPREME COURT REPORTS [1987] 2 S.C.R.

A private institution and not a Government institution, that merely be-
cause it receives aid from the Government and the appointments made ~y
·-
by the Management are subject to the approval of the first respondent,
the college would not become a Government institution nor can the .\
appellant claim parity of treatment with Government servants. The
B learned counsel also stated that in spite of the findings of the Appellate
Court and the High Court that the termination of service of the appel-
Ian! was wrongful, the only remedy for the appellant is to file a suit and
~·
not to seek a declaration of continuance in service because it would

c
amount to seeking specific performance of a contract of service.

We have bestowed our anxious consideration to the arguments
advanced by the appellant because of the misfortune that has over-
taken him partly due to his own hasty action in resigning his permanent
"""' -
post and partly on account of the first respondent disapproving the
appellant's appointment on the basis of rules which had not been
?'- ....
formulated and communicated to the aided colleges. On an exami-
D nation we find that in spite of the sad plight of the appellant it will not
be possible to grant him a relief of declaration as sought for by him.
The reasons for our view may now be set out.

The legal status of an employee in a privately managed college
and whether a contract for personal service can be specifically en-
forced came up for consideration before this Court in Vaish College
_, '

E
v. Lakshmi Narain, [1976] 2 S.C.R. 1006. The facts iii that case were
as follows. Yaish Degree College which was registered under the
Registration of Cooperative Societies Act was initial affiliated to the
Agra University and later to the Meerut University. A Principal of the _. .
college who was appointed after obtaining formal approval of the
F Vice-Chancellor was terminated from service about L:o years later. )'
The Principal challenged the order of termination in a suit filed by him
on various grounds and he souhgt for a declaration regarding his con-
tinuous in service. The trial court dismissed the suit but the Appellate
Court decreed the same. In the second appeal there was a reference to
a Full Bench regarding the jurisdiction of the civil court to entertain
G the suit and eventually the second appeal filed by the management was
dismissed and the management came up in appeal to this Court by
special leave. This Court hs:ld that the Executive Committee of the
college was not a statutory body because it had not been created by or
~
....
under the statute and did not owe its existence to a statute. But on the
contrary it was a body which came into existence on its own and was
H only governed by certain statutory provisions for the proper mainte- --
D.K. BISWAS v. DIR. OF PUBLIC INSTRUCTION (NATARAJAN,J.] 579

nance and administration of the institution. The Court summed up the
A
law in the following words:-

"It is, therefore, clear that there is a well marked distinc-
tion between a body which is created by the statute and a
body which after having come into existenc~ is governed in
accordance with the provisions of the statute. In other B
words the position seems to be that the institution con-
cerned must owe its very existence to a statute which would
be the fountain-head of its powers. The question in such
cases to be asked is, if there is no statute would the institu-
tion have any legal existence. If the answer is in the nega-
tive, then undoubtedly it is a statutory body, but if the
institution has a separate existence of its own without any
c
referrnce to the statute concerned but is merely governed by
the statutory provisions it canno.t be said to be a statutory
body. The High Court, in our opinion, was in error in
holding that merely because the Executive Committee fol-
lowed certain statutroy provisions of the University Act or D
the statutes made thereunder it must be deemed to be a
statutory body."

The Court then proceeded to consider the next question regarding a
contract of personal service being specifically enforceable. After refer-
ring to the decisions in S.R. Tewari v. District Board, Agra & Anr., E
[1964] 3 SCR 55, 59; Executive Committee of U.P. State Warehousing
Corporation Ltd. v. Chandra Kiran Tyagi, [1970] 2 SCR 250, 265;
Bank of Baroda v. Jewan Lal Mehrotra, [1970] 2 L.L.J. 54, 55 and Sirsi
Municipality v. Kom Francis, [1973] 3 SCR 348, the Court held as
follows:-
F
"On a consideration of the authorities mentioned above, it
is, therefore, clear that a contract of personal service can-
not ordinarily be specifically enforced and a Court nor-
mally would not give a declaration that the contract subsists
and the employee, even after having been removed from
service can be deemed to be in service against the will and G
consent of the employer. This rule, however, is subject to
three well recognised exceptions-(i) where a public
servant is sought to be removed from service in contraven-
tion of the provisions of Art. 311 of the Constitution of
India; (ii) where a worker is sought to be reinstated on
being dismissed under the Industrial Law; and (iii) where a H
580 SUPREME COURT REPORTS [1987] 2 S.C. R. ~··;

statutory body acts in breach of violation of the mandatory
A provisions of the statute." -Y
The matter again came to be considered in the case of J. Tewari v. .
Iwata Devi Vidya Mandir & Others, [1979] 4 SCC 160. In that case the
appellant, Smt.J. Tewari was appointed as the Headmistresss of the
B Jwala Devi Vidya Mandir, Kanpur which was a Society registered
under the Societies Registration Act, 1860. Smt. J. Tewari who later
became the Principal of the institution challenged her order of suspen-
-l
I
sion in an earlier suit and her order of termination from service in a
later suit. The second suit was partly decreed by the trial judge and he ~
upheld that the termination of service of Mrs. J. Tewari was not legal ' ""'
and awarded her a sum of Rs.15,250 as arrears of pay for a period of 3
c years together with interest and provident fund contribution. The
High Court confirmed the decree but held that the sum awarded to her ~
,.
should be by way of damages and not towards arrears of salary since
Smt. J. Tewari will not be entitled to a declaration that she continued
to b<? in the service of the institution and to a consequent order of
D reinstatement. In further apeal to this Court by certificate it was con-
tended that the institution was a statutory body and that Smt. J.
Tewari was entitled to a declaration regarding her continuance in
service. This Court repelled the contention and held that the Vidya
Mandir, in spite of being governed by the University regulations and ~
the provisions of the Education Code framed by the State Government
E and also being aided by educational grants, still constituted only a
private institution and as such Smt. J. Tewari would only be entitled to
a decree for damages, if her dismissal was wrongful and not to an order
of reinstatement or a declaration that notwithstanding the termination
of her services she continued to be in service. • •
·-·
F The law enunciated in these decisions stand fully attracted to this )<
case also. Even though the Lady Keane Girls College may be governed
by the statutes of the University and the Education Code framed by
the Government of Meghalya and even though the college may be
receiving financial aid from the Government it would not be a statu-
tory body because it has not been created by any statute and its exist-
G ence is not dependent upon any statutory provision.

The appellant, however, placed reliance on another decision of
~
this Court in l.R. Gupta v. Inter College, Thora, [1984] 3 SCR 752. In
that case Shri I.P. Gupta who was appointed as Principal of the college
on probation for one year was placed on further probation for one
H more year. During the period of the extended probation his services
D.K. BISWAS v. DIR. OF PUBLIC INSTRUCTION [NATARAJAN,J.) 581

were terminated. Although the order of termination was innocuous in
A
its terms it was accompanied by an enclosure containing the resolution
of the Managing Committee with a reference therein to an adverse
report given by the Manager against the Principal. It was, therefore,
contended that the order of termination cast a stigma on the Principal
and hence his services ought not to have been terminated without due
notice and enquiry. It was this contention which was the principal issue B
in that case. Dealing with that contention this Court found that the
college was an institution recognised under the Intermediate Educa-
tion Act and was governed by the provisions of the Act and the regula-
tions made thereunder and that Regulations 35 to 38 prescribed the
procedure to be followed before the services of an employee can be
terminated by way of punishment. The management, however, did not
follow the procedure prescribed by the regulations which were virtu-
c
ally the same as provided by Article 311(2) of the Constitution. This
Court, therefore, held that the principles which should govern the case
should be the same as those underlying Article 311(2). It was in that
view of the matter this Court allowed the appeal and restored the
judgment of the Single Judge of the High Court declaring that the D
appellant contained to be in the service of the college and that he was
entitled to all the benefits flowing from the declaration including the
salary and allowances as if there was no break in his service. The facts
of the abovesaid case are clearly distinguishable because the case
pertained to termination of service by way of disciplinary action. In the
instant case there is no such violation of the provisions of any Act or E
any Regulations made thereunder. This is a case where the first
respondent had proceeded on the erroneous assumption that the
Assam Aided College Employees Rules, 1960 and the Assam Aided
College Management Rules, 1965 had been adopted by the State of
Meghalya and therefore, the appellant's appointment was in contra-
vention of the rules and consequently he should decline to approve the F
appointment of the appellant. No doubt his action has been held to be
wrongful but even so it is not in contravention of any statutory provi-
sions or regulations or procedural rules. We are, therefore, unable to
accept the appellant's contention that he should be granted a declara-
tion that he continues to be in the service of the college and that he is
entitled to all the benefits flowing from the declaration. G

Notwithstanding this conclusion we feel that the peculiar facts of
the case which are indeed distressing, call for some relief being given
to the appellant instead of a brusque dismissal of the appeal on
account of the legal impediments for granting the relief of declaration
of his continuance in service. We have already set out the tragic situa- H
582 SUPREME COURT REPORTS [1987] 2 S.C.R.

tion that has resulted on account of the appellant's services being
A terminated after he had closed his options to revert back to his service
in the Accountant General's Office. The trial court which dismissed
_,-
the suit and the High Court which has modified the decree of the
Appellate Court have also noticed this position and expressed their
compassion for the appellant. It was on account of that the High Court
B has granted monetary compensation of one year's salary to the appel-
lant as damages. We think that in the fact and circumstances of the
case and in exercise of our powers under Article 136 of the Constitu-
tion we should enlarge the relief granted to the appellant by the High
Court by directing the State of Meghalya represented by the first
respondent to grant 3 years' salary and allowances to the appellant at
the rates prevalent when his services were terminated on 1.12.75.
C Though the appellant had remained in service till 20.4.77 in spite of
the termination order, the salary payable for that period is towards the
services actually rendered by him in the college. Hence no portion of
that amount can be treated as damages. If the appellant has not been
paid the salary and allowances for any portion of the period between
D 1.12. 75 to 20.4. 77, the first respondent is further directed to release
such sums of money as would be required to make good the unpaid
salary and allowances. We give this direction because we find a letter
in the paper book written by the second respondent stating that they
are unable to pay the salary and allowances due to the appellant on
account of non-release of funds by the first respondent. The first res-
E pondent will make the payments indicated above on or before 30th
June, 1987. The grant of this relief will be in consonance with the reliefs
granted by this Court to the affected parties in Yaish College case
(supra) and Smt. J. Tewari's case (supra). In the former case the
Principal whose services were terminated was allowed to retain a total
sum of Rs.21,100 deposited by the Educational Institution under or-
F ders of court during the pendency of the proceedings. In the latter case
Smt. J. Tewari had been granted 3 years' salary by way of damages. In
addition to the payment of the abovesaid sums we also direct that in
the event of there being a vacancy in the Lady Keane Girls College for
the post of Lecturer in English and in the event of the Management
willing to appoint the appellant as a Lecturer once again the Manage-
G ment should be permitted to do so by the first respondent by granting
relaxation of rules and regulations currently in force governing the
filling up of posts of Lecturers in aided colleges in the State of
Meghalya. To the extent, additional reliefs are given to the appellant
the appeal will stand allowed. The appellant will be entitled to costs in
the appeal payable by the first respondent.
H
P.S.S. Appeal allowed.