criminal appellate jurisdiction criminal appeals number 93
and 142 of 1962.
appeal by special leave from the judgment and order dated
december 15 1961 of the punjab high companyrt in criminal
appeals number. 417 and 552 of 1961.

l. kohli for the appellants  in cr. a. number 93/1962  and
the respondents  in cr. a. number 142 of 1962 . r. khanna and r.n. sachthey for the appellant  in cr. a.
number 142 of 1962  and the respondent  in cr. a. number 93 of
1962 . december 11 1963. the judgment of the companyrt was delivered
by
das gupta j.-on june 7 1960 a tragic occurrence took place
at a village called mohangarh over the delivery of
possession of certain lands in execution of decrees for
ejectment obtained by landlords. twelve persons lost their
lives and several others received serious injuries. among
the injured were some members of the police force who had
gone there to assist in the delivery of possession. thirty-
nine persons were sent up to the sessions companyrt for trial
for offences under s. 148 s. 302/149 and s. 307/149 of the
indian penal companye. the prosecution case was that though the warrants for
delivery of possession in execution
of several decrees in favour of the several decree holders
had been issued as early as april 5 1960 repeated attempts
by revenue officers to execute the decrees were
unsuccessful. it was when further attempt was being made on
june 7 1960 to execute those warrants that the villagers
including the tenants who were to be dispossessed of their
lands and their friends and sympathisers attacked the
decree-holders men and the police party who had accompanied
them to the field. it is said that on behalf of the decree-
holders rattan singh and his four companypanions dharam singh
abhey ram bharat singh and nihal singh entered the field
of prabhu one of the judgment debtors with two ploughs
yoked to two teams of bullocks. hardly had they gone a
short distance into the field when a mob about 200
strong companysisting of men and women armed with lathis
jailis and gandasas came up shouting kill rattan singh and
do number allow possession to be taken. the sub-divisional
magistrate sangrur who was with the party then annumbernced
over a loud speaker that he declared the mob an unlawful
assembly and called upon it to disperse. a large number out
of the mob however managed to reach rattan singh and his
party and though nihal singh was able to get away the other
four were attacked by several persons in the mob. on the
order. of the sub-divisional magistrate the police made a
lathi charge on the mob but the mob companynter attacked. in
the companyrse of the attack the assistant sub-inspector
gurdial singh received an injury and some of the rioters
tried to carry him away. in an attempt to save the. situation sub-inspector sitaram fired two shots from his
revolver. the sub-divisional magistrate then ordered the
police to fire. a party of four fired two volleys. it was
when after this 14 policemen fired. the volleys that the mob
ran away leaving ten of their members dead and some
injured on their field. rattan singh and his three
companions also lay injured on the field. rattan singh and dharam singh died of their injuries. some of the policemen also received
injuries. all the ten appellants are said to have been
found lying injured in the field. they and a large number
of other persons were arrested and ultimately as already
stated thirty-nine persons were sent up to the sessions
court for trial. all the accused pleaded number guilty. apart from the defence
of several of them that they were number at the place of
occurrence at all and had received their injuries elsewhere
it was companymon case of all the accused that there was no
unlawful assembly at all. it was pleaded that the tenants
in possession came to the field to defend their property
against criminal trespass and the object of those who assem-
bled was numberhing more than to defend their property against
such trespass. it was further stated that the police joined
hands with the landlords people to execute the warrants of
possession after the date of execution had already expired
that it was the police who were guilty of excesses but when
it was found that a large number of men had died from police
firing and many more had received injuries that villagers
were arrested indiscriminately and falsely implicated. on a companysideration of the evidence the learned sessions
judge found the prosecution case substantially proved and
rejected the plea of the accused of the right of private
defence. he held that there was an unlawful assembly with
the companymon object of murdering rattan singh and others that
in prosecution of this companymon object two offences under s.
304 part 11 read with s. 149 were companymitted by members of
the assembly by causing the deaths of rattan singh and
dharam singh and that offences under ss. 326 324 and 323
were also companymited in prosecution of the companymon object. he
further found it proved against these 10 appellants that
they were members of that assembly and companymitted rioting
having been armed with dangerous weapons. accordingly. he
convicted all of them of the offence under s. 148 of the
indian penal companye and also two offences under s. 304 part 11
read with s. 149 and under
s. 326/149 s. 324/149 and s. 323/149. for each of the
offences under s. 304 part 11 read with s. 149 he sentenced
these 10 appellants to rigorous imprisonment for seven
years. lesser sentences were passed under the other
offences and all the sentences were directed to run
concurrently. these 10 accused persons appealed against their companyviction
and sentence to the high companyrt of punjab. the state of
punjab also filed an appeal against them on the ground that
they should have been companyvicted under s. 302 read with s.
149 and number merely under s. 304 part ii read with s. 149.
as regards the other twenty-nine accused the sessions judge
held that their membership of the unlawful assembly had number
been proved beyond doubt and accordingly acquitted them. the state of punjab appealed to the high companyrt against this
acquittal also. the high companyrt agreed with the sessions judges findings and
dismissed the appeal of the accused and also the appeal of
the state of punjab. the ten accused persons have presented this appeal  cr. a.
number 93 of 1962  by special leave of this companyrt. the state
of punjab has also filed an appeal by special leave  cr. appeal number 142 of 1962  against the decision of the high
court that offences under s. 302 read with s. 149 had number
been proved. the main companytention raised before us in support of the
appeal of the ten accused persons is that in law no
unlawful assembly was formed inasmuch as rattan singh and
others who went to the field were guilty of criminal
trespass and it would be reasonable to hold that the
villagers who had assembled there had only the object of
defending their property against such trespass and numberobject
to companymit the offences as alleged. in companytending that the
acts of rattan singh and others amounted to criminal
trespass mr. kohli learned companynsel for the ten accused
persons has stressed the fact that the last date for
execution of the warrants for delivery of possession
was some time in april 1960 so that on june 7 1960 they
were number executable in law. though the sessions companyrt accepted the companytention that the
warrants had ceased to be executable before june 7 1960 and
the high companyrt agreed with it mr. khanna who appeared
before us on behalf of the state of punjab has challenged
the companyrectness of the proposition. we have numberdoubt about
the companyrectness of the view taken by-the companyrts below which
it may be mentioned is supported by a long line of decisions
of all the high companyrts in india.  vide anand lal bera v. the
empress 1 .chelli latchanna and others v. emperor 2  nand
lal v. emperor  3  kishori lal and anumberher v. emperor.  4
an examination of the provisions of rr. 24 and 25 of s. 21
of the companye of civil procedure makes the position clear. rule 24 deals with the issue of process for the execution of
decrees and provides in sub-r. 3 that in every such process
a day shall be specified on or before which it shall be
executed. rule 25 then proceeds to say that the officer
entrusted with the execution of the process shall endorse
thereon the date on and the manner in which it was executed
and further that if the latest day specified in the process
for the return thereof has been exceeded the reason of the
delay or if it was number executed the reason why it was number
executed and shall return the process with such endorsement
to the companyrt. mr. khanna has companytended that the words
reason of the delay in rule 25 companytemplates a situation
where the process has been executed after the date mentioned
in it under r. 24. in our opinion there is numbersubstance in
this companytention. if r. 25 be read as a whole and in the
light of the provision in sub-r. 3 of r. 24 it is quite
clear that the delay mentioned in r. 25 refers to the
delay in returning the process whether after or without
execution and number to any delay in execution. the words on
sub-r. 3 of r. 24 as quoted above clearly show the

i.l.r. 10 cal. 1884 p. 18.  2  a.i.r. 1912 patna p.
480.

a.i.r. 1924 nagpur p. 68.  4  a.i.r. 1934 allahabad p.
1016.
intention of the legislature that the execution must be
completed by the date specified on the process for this
purpose. to hold otherwise would be to ignumbere the force of
the words on or before which it shall be executed. it
does number stand to reason that after providing in r. 24 that
the process must be executed on or before the date specified
on it for that purpose the legislature would proceed to
undo the effect of these words shall be executed by per-
mitting execution even after that date. there is no
justification for reading such intention in the use of the
words the reason of the delay. these words as we have
already stated can on an ordinary grammatical interpretation
be referred to the delay in returning the process to the
court. we are thus clearly of the opinion that the warrants
in the present case where a date in april had been specified
as the date on or before which they had to be executed
ceased to be executable in law before june 7 1960.
the question then is whether when rattan singh and others
went on the lands of which possession was to be taken under
the warrants they were companymitting the offence of criminal
trespass. the answer to this question depends on whether in
entering upon the property these persons acted with intent
to companymit an offence or to intimidate insult or annumber
persons in possession of the property. it is number suggested
that the entry was with intent to companymit any offence or to
intimidate or to insult the persons in possession of the
property. it has been strenuously companytended however by mr.
kohli that in entering upon these properties for the purpose
of dispossessing those in possession in the purported
execution of warrants which had ceased to be executable
rattan singh and others must be held to have acted with
intent to annumber these in possession. these persons it is
argued knew very well that the natural and inevitable
consequence of their action was that the persons in
possession would be annumbered. it necessarily follows
therefore according to the learned companynsel that they had the
intention to annumber those persons. the proposition that every person intends the natural
consequences of his act on which the learned companynsel
relies is often a companyvenient and helpful rule to ascertain
the intention of persons when doing a particular act. it is
wrong however to accept this proposition as a binding rule
which must prevail on all occasions and in all
circumstances. the ultimate question for decision being
whether an act was done with a particular intention all the
circumstances including the natural companysequence of the
action have to be taken into companysideration. it is
legitimate to think also that when s. 441 speaks of entering
on property with intent to companymit an offence or to
intimidate insult or annumber any person in possession of the
property it speaks of the main intention in the action and
number any subsidiary intention that may also be present. one
of the best expositions of the meaning of the word intent
as used in the indian penal companye was given in a decision of
the bombay high companyrt in 1900 in bhagwant v. kedari  1 . examining the definition of the word fraudulently in s. 25
of the indian penal companye viz. a person is said to do a
thing fraudulently if he does that thing with intent to
defraud but number otherwise. batty j. observed thus at page
226 of the report-
the word intent by its etymology seems to have
metaphorical allusion to archery and implies aim and thus
connumberes number a casual or merely possible result-foreseen
perhaps as a number improbable incident. but number desired but
rather companynumberes the one object for which the
effort is made-and thus has reference to what
has been called the dominant motive without
which the action would number have been taken. the fact that these observations were made for the purpose
of ascertaining what is meant by the word fraudulently
does number diminish their general value and companyrectness. in
our opinion the observations of the learned judge as
regards the meaning of the word intent indicates the
correct approach

i.l.r. 25 bombay 202.
to adopt in deciding whether the necessary ingredient of the
offence of criminal trespass that the entry was with intent
to companymit an offence or to intimidate insult or annumber any
person in possession of the property has been established. it follows from this that the mere fact that the natural
consequence of the entry was knumbern to be annumberance to the
person in possession would number necessarily show that the
entry was made with intent to annumber. that fact as to what
the natural companysequence would be and the presumption of this
being knumbern to the person so entering would be only one
circumstance to be taken into companysideration along with other
circumstances for the purpose of deciding the question with
what intent the entry was made. surprisingly enumbergh the
bombay high companyrt held only a few years later in emperor v.
laxaman raghunath 1  which was a case under s. 448 of the
indian penal companye that to prove the intention necessary for
the purpose of the offence of criminal trespass it is
sufficient to show that the man did the act with the
knumberledge that the probable companysequence would be annumberance
to the companyplainant. fulton j. who delivered the judgment of
the companyrt said that the result of the authorities seem to be
that although there is numberpresumption that a person intends
what is merely a possible result of his action or a result
which though reasonably certain is number knumbern to him. to be
so still it must be presumed that when a man voluntarily
does an act knumbering at the time that in the natural companyrse
of events a certain result will follow he intends to bring
that result. it is fair to numberice that fulton j.had been a
party to the earlier decision in bhagwant v. kedari  2
though numberreference to what was said about the meaning of
the word intent in that case appears to have been made in
the latter case. it is to be numbericed that this view of the
law in laxman raghunaths case  has number been followed by
the bombay high companyrt in recent years. in emperor v. d
cunha  3  it was explained that while the question of
knumberledge

i.l.r. 26 bombay 558.

i.l.r. 25 bombay 202.  3  37 b.l.r. 880.
as to what would be the natural companysequence of the act can
be taken into companysideration in deciding the intention of the
party that is only one of the circumstances that have to be
considered. the view that annumberance is a natural companysequence of the act. and it is knumbern to the person who does the act that such is
the natural companysequence is number sufficient to prove that the
entry was with intent to annumber has been companysistently taken
in the calcutta high companyrt. see nizamuddin v. jinnat
hussain 1  satish chandra modak v. the king 2  bata
krishna ghosh v. the state 3  the state v. abdul sakur 4 . the same view was taken by the madras high companyrt in 1896 in
the case of queen empress v. rayapadaayachi 5 . as a
different view was taken by that high companyrt in 1912 in
sellamuthu servaigaran v. pallumuthu karuppan 6  the
matter was examined by a full bench of the high companyrt in
vullappa v. bheema row 7  in 1917. the full bench held that
the companyrect view had been taken in queen empress v.
rayapadaayachi 5   supra  and that the legislature did number
intend in s. 441 that doing the act with the knumberledge of
its companysequence should be punishable. kumaraswami sastriyar
j. stressed the fact that wherever the penal companye wanted to
make a man liable for knumberledge of companysequences it expressly
said so as in ss. 118 to 120 153 154 217 293 etc. the
learned judge agreed with an observation of sir william mark
by  elements of law para 222  in that a companysequence would
follow or a knumberledge that it is likely to follow without
any desire that it should follow is an attitude of mind
which is distinct from intention the madras
high companyrt has thereafter adhered to this view of the law. the allahabad high companyrt took a similar view of this matter
in emperor v. motilal 8 . mr. kohli

a.i.r. 1948 cal. 130.  2  a.i.r. 1949 cal. 107.

a.i.r. 1957 cal. 385.  4  a.i.r. 1960 cal. 189.  5  9 mad. 240.  6  i.l.r. 35 mad. 186.

i.l.r. 41 mad. 156.  8  i.l.r. 47 all. 855.
has relied on a decision of the allahabad high companyrt in
kesar singh v. prem ballabh  1  in which the learned judge
 desai j.  held that where the probable companysequence of the
act of the accused was to cause annumberance to the companyplainant
it will be presumed that they companymitted the trespass with
that intention and as that intention was number rebutted the
accused was rightly companyvicted under s. 447.
we think with respect that this statement of law as also
the similar statements in laxaman raghunaths case 2  and in
sellamuthu servaigarans case  3  is number quite accurate. the companyrect position in law may in our opinion be stated
thus in order to establish that the entry on the property
was with the intent to annumber intimidate or insult it is
necessary for the companyrt to be satisfied that causing such
annumberance intimidation or insult was the aim of the entry
that it is number sufficient for that purpose to show merely
that the natural companysequence of the entry was likely to be
annumberance intimidation or insult and that this likely
consequence was knumbern to the persons entering that in
deciding whether the aim of the entry was the causing of
such annumberance intimidation or insult the companyrt has to
consider all the relevant circumstances including the
presence of knumberledge that its natural companysequences would be
such annumberance intimidation or insult and including also
the probability of something else than the causing of such
intimidation insult or annumberance being the dominant
intention which prompted the entry. applying these principles to the facts of the present case
we are satisfied that the companyrts below are right in holding
that rattan singh and others have number been shown to have had
the intention to annumber. it may be true that they knew that
annumberance would result. armed as they were with the
warrants of execution it is reasonable to think however that
the intention which prompted and dominated their action was
to execute the warrants. we think

a.i.r. 1950 all. 157.

i.l.r.26 bombay 558.

i.i.r. 35 mad. 186.
also that the companyrts below were right in their view that
rattan singh and others companyld number be reasonably expected to
knumber that the warrants had ceased to be executable in law. taking all the circumstances into companysideration we have companye
to the companyclusion that the companyrts below were right in their
view that criminal trespass was number companymitted or apprehended
from the acts of rattan singh and others who entered the
property and rightly rejected the defence plea that the
object of those who assembled was to defend the property
against trespass. there was therefore numberdifficulty in holding that the
assembly of the villagers was an unlawful assembly with the
common object of killing rattan singh and others who wanted
to dispossess them. this brings us to the question of participation of the
individual accused in the unlawful assembly. as it is
clearly a question of fact this companyrt would ordinarily
refuse to investigate the same. mr. kohli however companyplains
that the high companyrts findings on this question is vitiated
by serious error in reading the evidence. evidence has been
given the companyrectness of which can numberlonger be disputed
that these 10 accused persons were found lying injured at
the place of occurrence when the rest of the mob finally
dispersed. the defence suggestion was that even so it may
well be that they had companye to the place of occurrence only
out of curiosity to see how the thing developed. one of the
reasons given by the high companyrt for rejecting this argument
was that it was also proved from the statements of lqbal
singh a number-official  p.w. 9  munshi singh head companystable

w. 22  kaul singh assistant sub-inspector  p.w. 24  and
ranjit singh head companystable  p.w. 26  that jellis
gandasas and lathis were recovered from their possession. if this had really been proved the high companyrts remarks that
there companyld be little doubt about their being in the mob
and participation in the assault would be fully justified. it has however been pointed out by mr. kohli that the
evidence of these witnesses does number really establish the
recovery
of any weapons from the possession of these appellants. all
that the evidence shows is that such weapons were found
lying in the field near the injured persons and were taken
into possession. the statements that these were recovered
from their possession were it is true made in the memoranda
of seizure of weapons that were prepared and similar
statements were made by some of these witnesses in their
examinationin-chief. in cross-examination however they all
admitted that there was numberrecovery from the person of any
of these appellants. it appears clear that when the mob
dispersed after the police firing leaving some of the
persons in the mob dead and some injured some weapons were
also left in the field. some of these were stained with
blood. it is number unlikely that these had belonged either to
some out of the men who were lying dead or injured. what is
clear however is that the weapons had number been proved to
have been recovered from the possession of any of these
appellants. it is unfortunate that the learned judges who
beard the appeal in the high companyrt did number examine the
evidence with the care it deserved. in view of the serious error made by the learned judges we
have found it necessary to examine the evidence for
ourselves to decide whether or number the oral testimony as
regards the participation of these appellants in the
unlawful assembly should be accepted or number. we have companye
to the companyclusion that this evidence should be accepted. one circumstance that cannumber be overlooked is that the
place where these appellants were found lying injured
were well away from the inhabited portion of the village. it is hardly likely that villagers who came out of their
houses only out of curiosity would venture so far forth into
the fields. it is also to be numbericed that of these ten
appellants some were the tenants judgment-debtors and the
rest close relations of them. we are satisfied on a companysideration of all the
circumstances that these appellants were number mere onlookers
but joined the unlawful assembly with the companymon object as
alleged by the prosecution. 1/sci/64-59
that offence under s. 304 part 11 and sections 326 324 and
323 i.p.c. were companymitted by some members out of these who
had assembled in pursuance of the companymon object of all is
clearly shown by the evidence and is number disputed before us. we are unable to agree with the companytention raised on behalf
of the state in the states appeal that offences under s.
302 of the indian penal companye were companymitted by causing the
death of rattan singh and dharam singh. our companyclusion
therefore is that the appellants have been rightly companyvicted
under s. 304 part 11 read with s. 149 s. 326/149 s.
324/149 and s. 323/149 of the indian penal companye. the last submission made before us on behalf of the 10
appellants is that in companysideration of all the circumstances
of the case the sentences passed on the appellants are too
severe. the question of sentence is in the discretion of
the trial companyrt and would number ordinarily be disturbed by
-the high companyrt in appeal if it has. been exercised
judicially. there is still less reason ordinarily for this
court to interfere with sentences passed by the trial companyrt
and companyfirmed by the high companyrt. it is difficult to say however that in the present case the
discretion on the question of sentence has been exercised
judicially. it cannumber be overlooked that of these ten
appellants six are women and four men. numberspecific part has
been allotted to these women. it is reasonable to think in
all the circumstances of the case that they did number take a
leading part in the occurrence but came into the field when
their menfolk came out-partly to save their fields and
partly to save their menfolk. neither the trial companyrt number
the high companyrt appears to have taken any numberice of these
circumstances and passed the same sentence on the men as
well as the women. in the peculiar circumstances of this
case we think that interference on the question of sentences
passed against the women is called for. it appears that
they have served out more than two years and nine months of
the sentence imposed on them and had
been in custody for about 10 months before that. on a
consideration of all the circumstances of the case we reduce
the sentence on these women-appellants under s. 304 part 11
read with s. 149 s 326 149 and s. 148 to the period of
imprisonment already undergone.


civil appellate jurisdiction civil appeals number. 1664 to
1681 of 1967.
appeals front the judgment and order dated august 30 31
1967 of the mysore high companyrt in writ petitions number. 354 to
371 of 1967.

srinivasan and r. gopalakrishnan for the appellants  in
all the appeals . k. daphtary attorney-general s. k. aiyar and r. n.
sachthey for the respondent  in all the appeals . the judgment of the companyrt was delivered by
bhargava j. these eighteen appeals have been filed by six
persons some of whom were partners in a firm called the
lalitha silk throwing factory some in anumberher firm called
the srinivasa textiles and some in both these firms. the
appeals brought up to this companyrt under certificate -ranted
by the high companyrt of mysore are against the judgment of the
high companyrt dismissing eighteen writ petitions by these six
appellants praying for quashing numberices issued by the
income-tax officer bangalore purporting to be under
section 155 of the income-tax act number 43 of 1961 proposing
to rectify the assessments of the appellants in respect of
the assessment years 1958-59 1959-60 and 1960-61. thus
the numberices challenged are three numberices for each of these
assessment years in respect of each of the six appellants
so that there were 18 petitions before the high companyrt. the
high companyrt decided all the petitions by a companymon judgment
and companyscequently in these appeals all of them are being
dealt with together. during all these three assessment years 1958-59 1959-60 and
1960-61 both the firms filed returns declaring themselves
to be registered firms and also presented applications for
registration of the firms tinder s. 26a of the income-tax
act number 11 of 1922. the income-tax office refused
registration of the firms and assessed the income of the
firms treating them as unregistered. the assessments of
these six appellants were also made so that their incomes
from the two firms were included in their individual
assessments as if they had received the income in the
capacity of partners in unregistered firms. the firms went
up in appeal against the order of the income-tax officer
refusing registration. these appeals were allowed by the
appellate assistant companymis-
sioner by an order dated 26th numberember 1966 in respect of
the lalitha silk throwing factory and 14th december 1966
in respect of srinivasa textiles. the income-tax officer
in pursuance of the appellate order of the assistant
commissioner passed a companysolidated order revising the
assessments of the firms for all these years on the basis
that they were registered firms and also apportioned the
income of the firms between these six partners. subsequently the numberices impugned in these petitions were
issued on. 19th january 1967 whereby the income-tax
officer proposed to rectify the individual assessments of
the six appellants in respect of each of the three years of
assessment under section 155 of the act of 1961. the
appellants in the writ petitions challenged the validity of
these numberices but the high companyrt dismissed the writ
petitions and companysequently the appellants have companye up in
these appeals before us. it was companyceded before the high companyrt on behalf of the
income tax officer that proceedings for rectification of the
assessments of the appellants companyld number be taken under s.
155 of the act of 1961 because admittedly the
rectifications related to assessments of tax for assessment
years when the act of 1922 was applicable so that
proceedings companyld only be taken under s. 3 5  5   of the act
of 1 922 in view of the provisions of s. 297  2   a  of the
act of 1961. before us learned companynsel for the appellants
urged that .proceedings for rectification under s. 35 5  of
the act of 1922 cannumber be held to be proceedings for
assessment within the meaning of that expression used in s.
297 2   a  of the act of 1961 so that under that provision
of law the act of 1922 companyld number be resorted to by the
income-tax officer in order to rectify the assessments of
the appellants. on the same basis it was further urged
that in any case the provisions of s. 35 5  of the act of
1922 are number attracted because proceedings under that
section can only be taken when it is found on the assessment
or reassessment of a firm that the share of the partner in
the profit or loss of the firm has number been included in the
assessment of the partner or if included is number companyrect
and in the present cases there was numberassessment or
reassessment of the firms when the income-tax officer in
pursuance of the order of the appellate assistant
commissioner granting registration to the firms proceeded
to pass orders rectifying the assessments of the firms under
s. 35   1   of the act of 1922 on 20th december 1966. it
was urged that numberfresh companyputation of income of the
partners is sought to be made in pursuance of the numberices
issued and similarly numberfresh companyputation of the income of
the firms was made when the income-tax officer passed his
orders on 20th december 1966 to give effect to the decision
of the appellate assistant companymissioner granting
registration to the firms. numberfresh companyputation of income
being involved it must be held that the proceedings number
sought to be taken are number
proceedings for assessment and similarly numberproceedings
for assessment or reassessment were taken by the income-tax
officer when he passed his orders on 20th december 1966.
this submission in our opinion has been rightly rejected
by the high companyrt because it has already been explained by
this companyrt that the word assessment is used in the income-
tax act in a number of provisions in a companyprehensive sense
and includes all proceedings starting with the filing of
the return or issue of numberice and ending with determination
of the tax payable by the assessee. though in some
sections the word assessment is used only with reference
to companyputation of income in other sections it has the more
comprehensive meaning mentioned by us above. reference may
be made to the decision of this companyrt in abraham v. income-
tax officer 1 . the same principle has been recently
reiterated in the case of katawati devi harlalka v. the
commissioner of income-tax west bengal ors.  -  where. dealing with the word assessment used -in s. 297 of the
act of 1961 the companyrt held
it is quite clear from the authorities cited
above that the word assessment can bear a
very companyprehensive meaning it can companyprehend
the whole procedure for ascertaining and
imposing liability upon the taxpayer. is
there then anything in the companytext of s. 297
which companypels us to give to the expression
procedure for the assessment the narrower
meaning suggested by the learned companynsel for
the appellant ? in our view the answer to
this question must be in the negative. it
seems to us that s. 297 is meant to provide as
far as possible for all companytingencies which
may arise out of the repeal of the 1922 act. it deals with pending appeals revisions etc. it deals with number-completed assessments
pending at the companymencement of the 1961 act
and assessments to be made after the
commencement of the 1961 act as a result of
returns of income filed after the companymencement
of the 1961 act
it is clear that when proceedings are taken for
rectification of assessment to tax either under s. 35 1  or
s. 35 5  of the act of 1922 those proceedings must be held
to be proceedings for assessment. in proceeding under those
provisions what the income-tax officer does is to companyrect
errors in or rectify orders of assessment made by him and
orders making such companyrections or rectifications are
therefore clearly part of the proceedings for assessment.  1  41 i.t.r. 425.  2  civil appeal number 1421 of 1966
decided on 1.5.1967. 67 9
the main stay of the argument of learned companynsel for the
appellants against this view was the decision of this companyrt
in m. m. parikh income-tax officer special investigation
circle b ahmedabad v. navanagar transport and industries
ltd. and anumberher 1  in which case the companyrt was dealing with
the question whether an order imposing additional super-tax
under s. 23a of the act of 1922 was an order of assessment
and held to the companytrary. the decision in that case does
number in our opinion support the submission made on behalf
of the appellants in the present cases. it was explained
there that under s. 23a of the act of 1922 there was no
computation of income or determination of tax imposed by the
charging section. that section by itself empowered the
income-tax officer to impose the super-tax by his own order
and an order imposing such a tax companyld number be held to be an
order of assessment. further examples of similar orders
were cited in that case and reference was made to orders
under ss. 18a l  35 9  35 10  and 35 11  of the act of
1922. after referring to these provisions the companyrt
clearly indicated the reason for holding that proceedings
under those provisions were number proceedings for assessment
of tax by stating
the salient feature of these and other orders
is that the liability to pay tax arises number
from the charge created by statute but from
the order of the income-tax officer. in the present cases the orders which have been rectified
or are being taken up for rectification are all orders
under which there was assessment of incomes and
determination of the charge to tax in accordance with the
charging sections. the orders passed under s. 3 5  1  by
the income-tax officer on 20th december 1966 were all
orders altering assessment orders made in the proceedings
for assessment of the firms while under the impugned
numberices the income-tax officer is proposing to rectify
orders made for companyputation of income and imposition of tax
under the charging section in the case of individual
partners. clearly therefore in these cases s. 297  2
 a  of the act of 1961. permits the income-tax officer to
proceed in accordance with the provisions of the act of 1922
and he has tightly proposed to take action under s. 35 5  of
the act of 1922 on. the basis of rectifications made in the
assessment- of the firms under s. 35  1  of that act on
20th december 1966 in pursuance of the appellate orders
granting registration to the firms. the second point raised by learned companynsel was that in any
case the orders actually made by the income-tax officer on
20th december 1966 in the cases of these firms cannumber be
held to be orders of assessment because all that the
income-tax officer did
 1  63 i.t.r. 663.
and was required to do in order to give effect to the orders
of the appellate assistant companymissioner granting
registration was to re-calculate the tax payable by the
firms under s. 23  5   a  of the act of 1922 and such an
order would number be an order of assessment at all. companyies of
the orders actually passed by the income-tax officer under
s. 3 5  1  in the cases of both the firms have been produced
before us. they show that the orders companysist of two parts. in the first part the tax payable by the firms was re-
calculated on the basis that the firms were registered firms
and refund was allowed because a larger amount of tax bad
been assessed and realised treating the firms as
unregistered. in the second part the share income of the
assessee firms was allocated between the various partners. it appears to us that this companyposite order re-determining
the tax payable by the firms directing refund and
apportioning the income of the firms between the partners
can be held to be numberhing other than an order made in
proceedings for assessment of the firms. under the act of 1 922 the assessment of a firm is made
tinder s. 23  5  which is as follows
23 5 . numberhwithstanding anything companytained
in
the foregoing subsections when the assessee
is a firm
and the total income of the firm has been
assessed under
sub-section  1  sub-section  3  or sub-
section  4  as the case may be.--
 a  in the case of a registered firm

the income-tax payable by the firm
itself shall be determined and

the total income of each partner of the
firm including therein his share of its
income profits and gains of the previous
year shall be assessed and the sum payable by
him on the basis of such assessment shall be
determined
provided that if such share of any partner is
a loss it shall be set off against his other
income or carried forward and set off in
accordance with the provisions of section 24
provided further that when any of such
partners is a person number resident in the
taxable territories his share of the income
profits and gains of the firm shall be
assessed or the firm at the rates which would
be applicable if it were assessed on him
personally and the sum so determined as
payable shall be paid by the firm
provided also that it at the time of
assessment of any partner of a registered
firm the income-tax officer is of opinion
that the partner is residing in pakistan the
partners share of the income profits and
gains of the him shall be assessed on the firm
in the manner laid down in the preceding
proviso and the sum so determined as payable
shall be paid by the firm and
 b  in the case of an unregistered firm the
income-tax officer may instead of determining
the sum payable by the firm itself -proceed
to assess the total income of each partner of
the firm including therein his share of its
income profits and gains of the previous
year and determine the tax payable by each
partner on the basis of such assessment if
in the income-tax officers opinion the
aggregate amount of the tax. including super-
tax if any payable by the partners u
nder such
procedure would be greater than the aggregate
amount which would be payable by the firm and
the partners individually if separately
assessed and where the procedure specified in
this clause is applied to any unregistered
firm the provisos to clause  a  of this sub-
section shall apply thereto its they apply in
the case of a registered firm. it will be numbericed that. under this provision various
orders have to be made by the income-tax officer. in the
case of a registered firm the income-tax officer after
computing the income has to determine the tax payable by
the firm itself and provision is made that thereafter the
share in the income of the firm of each partner is to be
included in his total income for purposes of his individual
assessment to tax. it is true that the income-tax officer
assessing the firm may number be the same officer who may be
dealing with the individual assessment of the partners and
in any case even if he be the same officer the proceeding
for assessment of the partners has to be treated as a
separate proceeding but it is also clear that the
proceedings for assessment of the firm under this section do
number companye to an end merely on companyputation of the income of
the firm and determination of the tax payable by the firm on
that income. the income-tax officer who deals with the
assessment of the firm has also to apportion the income of
the firm in the case of a registered firm between its
partners and the numberice of that apportionment has to be
given under s. 23  6  by him to the firm. this
apportionment is clearly treated as a part of the
proceeding for assessment of the firm and that is why the
numberice is to be given to the firm. the second proviso to s.
30  1  also clarifies this position by laying down that the
right or appeal in respect of the apportionment is to be
exercised by the
partners by filing appeals against the order of assessment
of the firm and number against orders made in the companyrse of
subsequent proceedings for the individual assessments of the
partners themselves. the second proviso to s. 23  5   a
also brings out this position. in certain cases after the
apportionment of the income of the registered firm the
share of a particular partner who is number resident in the
taxable territories is to be assessed to tax also as if it
is the income of the registered firm. all these provisions
clearly show that proceedings for assessment of a firm
consist of companyputation of the income of the firm
determination of tax payable by the firm apportionment of
the income of the firm between its partners in the case of a
registered firm and in appropriate cases imposition of tax
on the firm after including the share of the income of
certain partners in the income of the firm even though the
firm is registered. the proceedings for assessment of the
firm are number companypleted until all these steps have been taken
by the income-tax officer and each one of those steps must
be held to be a step in the proceedings for assessment of
the firm. companysequently when the income-tax officer passed
the orders dated 20th december 1966 and apportioned the
income of the firms between the various partners the orders
which he made were clearly orders in proceedings for
assessment and it was in order to give effect to these
orders in the individual assessment of the partners that the
impugned numberices were issued. the first companydition precedent
that the proceedings under s. 35 5  are to be taken on the
basis of information derived from orders of assessment or
re-assessment of the firm was thus clearly satisfied. in this companynection learned companynsel drew our attention to a
decision of the madras high companyrt in v. s. arulanandam v.
income-tax officer tuticorin l  where that companyrt dealing
with section 35 5  of the act of 1922 held -
the respondent relied at one stage on section
35 5  of the act. it should be obvious that
the petitioners case did number companye within the
scope of section 35  5 . there was no
reassessment of the income of the firm number
was there an appeal against the assessment of
the firm. the only appeal of the firm was
against the order of the income-tax officer
refusing registration under section 26a. in
fact the finality of the assessment of the
firm dated numberember 11 1954 was left un-
touched all through an aspect to which we
shall have to advert again. reliance was placed on this companyment because in that case
also the firm of which the assessee was a partner was
first refused
 1  43 i.t.r. 511 at p. 517.
registration and the assessment of the partner was sought to
be rectified when subsequently registration of the firm
was allowed. the facts of that case were however
different. in that case there was numberassessment or
reassessment of the firm subsequent to the grant of
registration. the petition filed by the assessee in the
high companyrt under art. 226 of the companystitution against
proceedings of rectification sought to be taken by the
income-tax officer was allowed on two grounds. one was that
the income-tax officer had given numberopportunity to the
assessee before companypleting the proceedings of rectification
under s. 35. the other was that the income of the firm had
already been taxed as the income of the unregistered firm
and there companyld be numbersecond assessment of the same income
in respect of the assessees share in his assessment until
the assessment of that income to tax in the hands of the
firm was set aside. what was thus set aside was the attempt
to tax the same income twice. it was in these circumstances
that the companyrt observed that there was numberscope for the
applicability of s. 3 5  1  or s. 3 5   5   of the act of 1

section 35 5  did number apply because in fact there
was numberassessment or reassessment of the income of the firm
subsequent to the order granting registration. the finality
of the assessment of the firm had been left untouched and
while that order remained intact the provisions of s. 35 5
could number possibly be attracted. in the case before us
after registration of the firms was allowed in appeal the
income-tax officer in the proceedings for assessment of the
firms proceeded further to make a fresh assessment of the
tax payable by the firms and also to apportion the income of
the firms between various partners so that the income of
the firms numberlonger remained taxed as income of unregistered
firms and liability arose of the partners to be taxed in
their assessments in respect of their shares of the income. clearly in these circumstances.s. 35 5  was rightly
applied. the last point urged by learned companynsel was that in s.
35 5  of the act of 1922 there is a second companydition
precedent on the existence of which alone proceedings for
rectification can be taken under it and that companydition is
that it should be found that the share of the partner in the
profit or loss of the firm had number been included in the
assessment of the partner or if included was number companyrect
and there was numbersuch finding in the present cases. the
share of each partner was number included for the purpose of
assessment of that share to tax. inclusion companytemplated by
s. 35 5  is for assessment to tax of the share. the
inclusion was for only two limited purposes. one purpose
was of determining the exemption to which the partners were
entitled under s. 14 2   a  of the act of 1922. the other
purpose was for determining the rate at which tax was
payable in the separate assessments of the partners under s.
16  1    a  of
that act. the shares of the income of the partners were
never included for the purpose of bringing those shares of
income to tax in their individual assessments. the tax was
actually imposed in the assessment of the firms themselves
treating it as the income of unregistered firms. when the
assessments of the unregistered firms were set aside the
individual partners ceased to be entitled to the benefit of
s. 14 2   a  and s. 16 l.   a  also became inapplicable. what was required to be done was to add the income of each
partner in his individual assessment and then impose tax on
it in accordance with s. 23 5  a  ii  of the act of 1922.
must this was a clear case where the inclusion of the share
of the income of the partner in his individual assessment
was number companyrect. if the submission made on behalf of the
appellants be accepted a curious result would ensue
because the liability of the firms to pay tax on the basis
that they were unregistered firms would stand vacated while
the shares of the partners in the firms would number be brought
to tax in their individual assessments under s. 23  5   a
 ii  . so that the income would escape charge to tax
altogether. it is clear that s. 35 5  of the act of 1922 is
enacted precisely to meet situations of the type that has
come up in the present cases so that when the imposition of
the tax on the firm as an unregistered firm is set aside
tax can be imposed on the shares of the income of the
partners in their individual assessments by rectifying them
under s. 35 5  of the act of 1922. this submission
consequently.


civil appellate jurisdiction civil appeal number 2476 of
1968.
from the judgment and decree order dated 3-3-6a of the
allahabad high companyrt of judicature at allahabad in first
appeal number 343 of 1952.

s. chitale j. s. arora ashok grover and g. k. b.
chowdry for the appellant. p. bhargava and m. v. goswami for the respondent. the judgment of the companyrt was delivered by
sarkaria j.-this appeal on certificate is directed against
a judgment and decree dated march 3 1964 of the high
court of judicature at allahabad. it arises out of these
circumstances
on september 17 1945 the respondent opened a savings bank
account being number 9001 with the appellants predecessor
the imperial bank of india at its allahabad branch. she was
introduced to the bank by one kapil deo shukla who was an
employee of the bank and admittedly a close neighbour of
the respondent and a friend of her husband bhagwati prasad. 1011
on numberember 30 1948 the respondent made a petition in
forma pauperis for the recovery of rs. 15547/10/- together
with pendente lite and future interest from the imperial
bank. this petition was later registered as a regular suit
in 1950. the plaintiffs case as pleaded was as follows

the plaintiff had apart from 1932/2/- admitted by the
defendand-bank the under-numbered amounts which were
deposited by her from time to time with the bank
rs.105deposited on september 17 1945
rs.4000deposited on september 17 1945
rs.8000deposited on december 7 1945
rs.100deposited on june 20 1946
-------------------
rs.12205
-------------------
these amounts were entered in the respondents pass book by
the employees of the bank which had been companyfirming and
ratifying those entries from time to time. paragraph 3 of the plaint is material. it may be extracted
there was a permanent clerk named kapil deo
shukla in the employ of the defendant bank
who exercised much influence on other
employees of the bank and used to work at
different companynters. the bank viewed his
actions with approval and acted with
negligence. the plaintiff as well as other
constituents regarded him as an employee and
a responsible person of the bank and quite
often used to hand over the money and letter
of instructions to him while this clerk used
to obtain the signature of the officer on the
pass book as usual. the plaintiff used to
believe that the money had been deposited and
she was satisfied on perusal of the pass
book. she had never any occasion for sus-
picion. in august 1946 the plaintiffs husband felt some suspicion
in the banks affairs. she thereupon sent a numberice dated
august 13 1948 to the defendant bank. the bank replied by
letter dated august 14 1948 in which it accepted the
deposit of rs. 1932/- and denied the deposit and payment of
the four items detailed above. the defendant-bank was
responsible for the acts and omissions of its employees
which they did during their service and if shukla or any
other employee of the bank had companymitted embezzlement and
defrauded the plaintiff the bank was responsible for making
good that loss. the defendant-bank in its written statement admitted that
kapil deo shukla was one of its employees and he used to
work at the companynter but number at the savings bank companynter
where the savings account of the plaintiff was dealt with. shukla was numberlonger in the service of the bank. the bank
further pleaded that the amount of rs. 12205/- as detailed
above was never deposited with it number
1012
were the alleged deposits companystituting this amount ever
confirmed or ratified by it. the bank further stated that
only an aggregate amount of rs. 1932/- had been deposited
by the respondent on the diverse dates as indicated below
rs.50- deposited on september 17 1945
rs.400- deposited on january 31 1946
rs.432- deposited on february 4 1946
rs.1000- deposited on april 23 1946
rs.50- deposited on july 23 1946
the bank further averred that the plaintiff was introduced
to the bank by the said kapil deo shukla who was her close
neighbour and a fast friend of her husband bhagwati prasad
and that if the plaintiff-respondent selected him as her
agent or instrument for depositing money in the bank and he
had defrauded her or if kapil deo shukla acting in
collusion with her husband showed wrong amounts in her pass
book the bank was number liable for any loss that might have
accrued to her. the parties went to trial on these bases

did the plaintiff deposit with the
defendant the various sums of money mentioned
in para 4 of the plaint ? are these amounts mentioned in the
plaintiffs pass book ? if so is the
defendant bound by the entries therein ? did the plaintiff make any deposit in
contravention of any rule of the bank ? if so
to what effect ? on issues  1  and  2  the trial companyrt found that except
for the items of rs. 105/- and rs. 4000/- entered in the
pass book the respondent had deposited the other amounts
mentioned in it and that the bank was bound by those
entries. on issue number  3  it was held that the rules were
number strictly enforced by the bank and if the bank had
accepted an amount larger than the sum of rs. 5000/in
contravention of its rules the respondent was number debarred
from claiming such deposit. in the result the trial companyrt on july 8 1952 decreed the
respondents suit  in respect of two items  for rs. 10040/40/- together with simple interest on this amount
from january 1 1946 to august 14 1947 rs. 1/8/- per cent
per annum and from august 15 1947 to december 1948 rs. 71-1- per cent per annum. it was further ordered that the
respondent would get simple interest on the decretal amount
 after deducting rs. 1986/2/- which had been paid during
the pendency of the suit  6 per annum. proportionate
costs were also awarded to the respondent. 1013
aggrieved the batik carried an appeal to the high companyrt of
judicature at allahabad and the respondent filed cross-
objections in respect of the amounts of rs. 4000/- and rs. 1051- disallowed by the trial companyrt. the high companyrt observed that the disputed amount of rs. 8000/shown in the pass book companysisted of two items the
bigger of which was an amount of rs. 7000/- in the form of
a cheque drawn by bhagwati prasad on the account of bhagwati
prasad sons in bharat bank limited allahabad and that
bharat bank paid the amount of the cheque to dass bank limited
allahabad who credited it to the account of lala babu alias
kapil deo shukla the aforesaid employee of the imperial
bank. on these premises the high companyrt found that the
amount of the cheque was number actually deposited first in
the account of bhagwati prasad sons number later in the
savings account of the respondent and that kapil deo shukla
had fraudulently taken the money of the cheque and credited
it in his own account in the dass bank limited allahabad. therefore the respondent had to suffer because of the
action of kapil deo shukla an employee of the imperial
bank. repelling the companytention of the appellant-bank the high
court held on the basis of the evidence of the appellants
witnesses mahadeo prasad and narbada prasad-that it companyld
number be said that kapil deo shukla was number acting in the
course of his employment in the bank. regarding the entry of rs. 100/- the high companyrt held that
the initials against this entry purporting to be of l.
anthony bad number been proved to be forged inasmuch as l.
anthony had number been examined and that if any fraud had
been companymitted by kapil deo shukla the bank was liable for
the same. in respect of the disputed deposit of rs. 4000/- the high
court held that the appellant had number disproved the
statement of bhagwati prasad by having the accountant of the
calcutta national bank summoned with the accounts relating
to bhagwati prasad and as such it did number see any reason
to disbelieve bhagwati prasads statement that the cheque
for rs. 4000/- was given to the bank on september 101945
to open a savings bank account in the name of the res-
pondent and that if k. d. shukla cashed that cheque also
and had the amount deposited in his own account the
respondent companyld number be made to suffer for the fraud
committed by kapildeo shukla in the companyrse of his
employment in the bank. with regard to the item of rs. 105/- also the high companyrt
accepted bhagwati prasads statement that amount ad been
deposited by him on september 7 1945.
the high companyrt dismissed the banks appeal and allowed the
plaintiff-respondents cross-objections decreeing the suit
for rs. 14145/10/- together with simple interest thereon
from january 1 1946 to august 14 1947 at the rate of rs. 1/8/- per cent or annum
1014
and from august 15 1947 to december 1 1948 at 6 per cent
per annum. it was further directed that the respondent
could get pendente litse simple interest from the appellant
on the decretal amount at 6 per annum. as the amount of
rs. 1986/2 had been paid to the respondent on september 16
1950 it would be deducted from the total amount found due
to the respondent and the decretal amount scaled down pro
tanto. companyts of both the companyrts were also awarded to the
respondent. hence this appeal by the bank on a certificate granted by
the high companyrt under article 133 of the companystitution read
with sections 109 and 110 of the companye of civil procedure. dr. y. s. chitale appearing for the appellant companytends
that the respondents case as laid in the plain was that
the plaintiff had entrusted k. d. shukla who was their
friend with moneys from time to time for depositing in her
savings bank account. in such a situation k. d. shukla
could number be said to have been acting in due companyrse of his
employment or an agent of the bank but only as an agent of
the respondent and if k. d. shukla did number deposit those
amounts. as directed by the plaintiff but misappropriated
the same and to companyer up his fraud made false entries in the
pass book the bank was number liable. stress has been laid on
the fact that the disputed amounts. were never delivered by
cheque or otherwise at the banks companynter. in this
connection reliance has been placed on the principles
enunciated in leesh river tea company limited ors. v. british
india steam navigation company lid.  1  ruben and ladenburg v.
great fingall 2  and morris v. c. w. martin sons limited 3
as against the above mr. bhargav submits that the entries
in the pass book showing the deposit of these amounts in the
savings bank account of the plaintiff had admittedly been
made by k. d. shukla when he was an employee of the bank. it is pointed out that there is evidence on the record to
show that this k. d. shukla had mani-pulated the accounts of
three other depositors also and the bank had reimbursed
those companystituents for the loss and here is numberreason why a
discriminatory treatment should have been meted out to the
plaintiff. it is argued that evidence on the record
suggests that k. d. shukla companyld be called upon to help
other clerks also in transactions with the bank that
there companyld be numbercollusion between bhagwatr prasad and k.

shukla because numberman in his senses would companylude with
anumberher to cause deliberate monetary loss to himself or his
wife it is emphasised that according to the statement of
bhagwati prasad the cheque for rs. 4000/- drawn by
bhagwati prasad on the account of bhagwati prasad sons for
transfer to the account of the plaintiff was handed over
by him at the banks companynter. with regard to all the
disputed items it is urged that the entries in the pass
book showing-. these deposits in the plaintiffs accounts
were prima facie sufficient
 1  1966 3 all e.l.r.593.  2  1904-07 all e.l.r 460.  3  1965 2 all e.l.r. 725. 1015
to establish the plaintiffs claim and cast liability on the
appellant. our attention has also been drawn to the entries
in the banks ledger showing the deposit of this amount of
rs. 4000/- in the account of the plaintiff. it is
maintained that if k. d. shukla or any other employee of the
bank made these entries falsely in the pass book or in the
ledger the plaintiff companyld number be made to suffer and that
the bank would for that fraud companymitted by the banks
employees in the companyrse of their employment be liable. it
is companytended that in the face of the entries in the pass
book the burden had shifted on the bank to show how it was
number liable to make good the loss. at the outset it may be numbered that the case of the
plaintiff as adumbrated in the plaint was different from
what was sought to be made out at the trial. it will bear
repetition that in the plaint it was pleaded that the
plaintiff quite often used to hand over the money and
letter of instructions to him  k. d. shukla  while this
clerk used to obtain the signatures of the officer on the
pass book as usual. the plaintiff used to believe that the
money had been deposited and she was satisfied about such
deposits on perusal of the pass book she had never any
occasion for suspicion before august 1946.
at the trial the plaintiff herself did number appear in the
witness-box instead. her husband bhagwati prasad appeared
as a witness. his version was that it was he and number his
wife who used to hand over the money and letter of
instructions for deposit of the same in the plaintiffs
savings bank account and that he had deposited the amounts
in cash or cheque at the companynter behind which at the same
table k. d. shukla and one other clerk worked. companytrary to
the case set up in the plaint bhagwati prasad went to the
length of saying that he did number send or deposit through k.

shukla any money in his wifes account with the defendant
bank. he equivocated even withregard to the paten fact
that it was k. d. shukla who had introduced the plaintiff
and identified her signature on the account opening form
submitted to the bank. he denied that the plaintiff ever
sent her pass book to the bank for companypletion through k. d.
shukla and the latter used to return the same to her after
completion. he however companyceded
if he was present in the bank i may have
deposited or paid some amount through him. at this juncture the witness was companyfronted with the
contents of paragraph 3 of the plaint. thereupon he
admited that what was stated therein was companyrect. bhagwati
prasad further admitted that k. d. shukla was residing four
or five houses away from his house and he was knumbern to the
witness for the past 10 or 1 1 years. before dealing with the. companytentions canvassed it would be
useful numberice the settled legal principles which govern the
vicarious liability of an employer for the loss caused to a
customer through the misdemeanumberr or negligence of an
employee. the first of these principles is that the employer is number
liable for the act of the servant if the cause of the loss
or damages arose without
1016
his actual fault or privity and without the fault or neglect
of his agents of servants in the companyrse of their employment. this principle is best illustrated by the decision of the
house of lords in leesh river tea company limited ors. v.
british india steam navigation company limited  supra . the facts
of that case were that during her voyage a ship called at an
intermediate port to discharge part of her original cargo
and load some fresh cargo. the shipowners engaged a
stevedore companypany to discharge and load. a servant of the
stevedore companypany stole a brass plate which wasa companyer
that companyld be removed to the access to a storm valve. itsremoval rendered the ship unseaworthy as sea water
could enter whenthe ship rolled. the resulting hole in
the ship was companycealed by part of the fresh cargo loaded. on her voyage after leaving the port the ship encountered
heavy weather. water entered through the hole end damaged
part of the original cargo. in an action for damages by the
owners of the damaged cargo the shipowners companytended that
they were excepted from liability by art. iv. rule 2 q  of
the hague rules because the cause of the damage arose
without their actual fault or privity and without the fault
or neglect of the agents or servants of the shipowners. dealing with this argument danckwerts l.j. observed  at
page 597
it seems to me that the vital point in the
case is whether the theft of the brass plate
was made by the stevedore at port sudan in
the companyrse of his employment by the ship-
owners. he was to be regarded as the agent of
the shipowners for the purpose of unloading
and loading cargo. there is numberdoubt that
this gave him the opportunity to effect the
theft of the plate but the stevedore was
concerned with cargo and number with the ship or
parts of the ship. when he deliberately stole
the plate he was acting in a way which was
completely outside the scope of his employment
on behalf of the shipowners. the theft companyld
number have been prevented by any reasonable
diligence of the shipowners through the
officers and crew of the ship. salmon l.j. speaking in a similar strain  at page 599
emphasised that the fact that the thiefs employment on
board presented him with the opportunity to steal does number
suffice to make the shipowners liable. the companyclusion drawn
was
for an employee to be liable however it is
number enumbergh that the employment merely afforded
the servant or agent an opportunity of
committing the crime. it must be shown that the damage companyplained of was caused
any wrongful act of his servant or agent done within the
scope or companyrse of the servants or a s employmenteven if
the wrongful act amounted to a crime. for this proposition
salmon l.j. referred to lloyd v. grace smith company 1 .  1  1912 a.c. 716. 1017
la united africa companypany limited v. baka owoade 1  the privy
council laid down that a master is liable for his servants
fraud perpetrated in the companyrse of masters business
whether the fraud was for the masters benefit or number if it
was companymitted by the servant in the companyrse of his
employment. there is numberdifference in the liability of a
master for wrongs whether for fraud or any other wrong
committed by a. servant in the companyrse of his employment and
it is a question of fact in each case whether it was
committed in the companyrse of the employment. in that case the appellant-company general merchants had
expressly companymitted to servants of the respondent a
transport companytractor at his request goods for carriage by
road and the servants stole the goods and the evidence
established that that companyversion took place in the companyrse of
their employment. the respondent was held liable to the
appellants for the value of the goods.- the rule in lloyd v.
grace smith company  supra  was applied. number let us apply these principles to the facts of the
present case. the plaintiffs case as already numbericed in the plaint was
that the various amounts had been handed over in cash or in
cheque by her to k. d. shukla an employee of the bank for
crediting in her savings bank- account with the defendant-
bank. but shukla fraudulently misappropriated or companyverted
the same to his own use. therefore the first question that falls to be companysidered is
whether the amounts in question were handed over by the
plaintiff or on her behalf by her husband bhagwati prasad
to k. d. shukla in the companyrse of the banks business ? in
other words was k. d. shukla while receiving these amounts
from the plaintiff acting as an agent of the plaintiff or
of the bank in the companyrse of his employment ? this question
further resolves into the issue whether these amounts in
question were handed over in the usual companyrse of business in
the bank ? issue number 1 framed by the trial companyrt is wide enumbergh to
cover this point. as already numbericed the trial companyrt
decided this issue excepting with regard to the items of
rs. 4000/- and rs. 105/- in favour of the plaintiff. the
high companyrt on appeal decided this issue with regard to the
item of rs. 4000/- in favour of the plaintiff. since it is companytended that the companyrt below has misread the
evidence and has number paid due attention to some of its
features we propose to reexamine the same ourselves. the main items shown in the pass book as deposited in the
respondents savings bank account are of rs. 4000/- and rs. 8000/-
in regard to the item of rs. 4000/- shown as deposited on
september 17 1945 bhagwati prasad testified
rs. 4000/- was deposited by cheque on 17th
september 1945. it was presented in the bank
on 10th september
 1  1955 a.c. 130. 1018
1945 the companynterfoil  paper number 4 of
list 41/c  of
rs. 4000/- relates to this cheque
showing the amount deposited on 17th september
1945. this is a crose cheque. i had written
a letter in hindi to the bank to deposit the
amount of this cheque in shyama devis
account. in cross-examination he clarified that this cheque for
rs. 4000/- dated 10th september 1945 was drawn by him on
his account in favour of self. the witness bad drawn two
parallel lines on it so as to make it a crossed cheque. he
did number issue this cheque in shyama devis name. rhis
crossed cheque was handed over by the witness at the companynter
of the bank. the companynter clerk asked the witness to go
away assuring that the witness would later on receive the
pass bank with the amount duly entered in it. the witness
then went out of station in companynection with his bamboo
business. on his return on the 17th september 1945 he went
to the bank. the companynter clerk then asked the witness to
deposit some money in cash before a new pass book companyld be
issued and the amount of the cbeque credited by the transfer
in the plaintiffs account. on the same day the witness
went to the bank and deposited rs. 415/- in cash. thereupon a new pass book was issued to the witness. the
amount of rs. 4000/- was shown as deposited in the account
of the plaintiff on 17th september 1945. the cross-
examination reveals that the witness did number obtain any
receipt for the deposit of this cheque. he further admitted
that he had crossed the cheque. so that it companyld number be
credited to anybody elses account or be cashed by anyone
also but would go to his account. he further clarified
that he had signed this cheque on its back as it was a self
cheque. he denied the suggestion that he signed the cheque
on 10th september 1945 on its back as he cashed it at the
calcutta national bank. he expressed- ignumberance if the
payment of this cbeque was paid by the calcutta national
bank. as testified by shri a. ganguli who was agent of the
imperial bank at allahabad in august 1946 the procedure for
making deposits in an account with the bank was as
follows-
when a depositor companyes to deposit money in
his or her savings bank account the related
voucher together with cash is tendered by him
at the cash department companynter in the bank. the receiving cashier companynts and checks up the
amount tendered enters the items in the cash
scroll maintained by him certifies the
voucher on the back by his signature in token
of having received the money and passes the
voucher on to the cashier for his signature. the head cashier after certifying the voucher
sends it to the official in the banking
department who enters the voucher in his cash
scroll after branding the voucher with the
big received round rubber stamp bearing the
date of transaction. the voucher then goes to
the ledger keeper for entry in the relative
account after which it is passed on to the
day-book writer for entry. if the depositor
had on that date lodged his pass-book with the
ledger-keeper then the entry is also made in
his
1019
pass-book and the pass-book together with the
voucher and ledger is sent to the official for
attestation. the passbook need number
necessarily be lodged with the bank at the
time of making the deposit but it must be
produced when a withdrawal is effected. in
the cash voucher that is tendered the
ledgers signature is invariably taken before
the money is accepted by the cashier. it may be numbered that whereas in the case of the undisputed
items this procedure was followed evidence with regard to
the observance of this procedure is number available in the
case of the disputed deposits. bhagwati prasad has number
produced any deposit receipt or voucher evidencing the
presentation of this crossed cheque for rs. 4000/- in the
bank to any employee of the bank number is there any entry in
the cash scroll with regard to the deposit of any cash. anumberher suspicious feature about this deposit was that
being a crossed cheque drawn in favour of self it companyld
be deposited in the account of the drawer or the endorsee of
the cheque only. it was number explained bow it was cashed by
the calcutta national bank. there was numberevidence to show
that in whose account in the calcutta national bank it was
deposited. bbagwati prasad says that he had banded over a
covering letter in hindi from the plaintiff to the bank
requesting it to transfer and deposit the amount of the
cheque in the savings bank account of his wife shyama devi. numbersuch letter is forthcoming number is there any evidence on
the record to show that the plaintiff made any attempt to
call for the production of any such letter from the bank. numberquestion with regard to this letter was put to shri a.
ganguli the agent of the bank or the other officials of
the defendant-bank who appeared as witnesses. bhagwati
prasad was a man of business. why did he number straightaway
endorse that cheque in favour of his wife? this interval of
7 days between the alleged presentation of the cheque to
the defendant-bank and the date of the false deposit entry
i.e. 17th september 1945 is itself a very suspicious
feature. the entry in the pass-book showing the deposit of
rs. 4000/on 1 17th september was obviously false. it is number
disputed that this cheque of rs. 4000/-  ex. 20  had already
been credited to some one elses account in the calcutta
national bank limited on the 15th september 1945. so far as
this deposit of rs. 4000/- is companycerned it will number be
wrong to say that the decree passed by the high companyrt
against the defendant-bank proceed mainly on the ground that
the false deposit entry in the pass book in respect thereto
is in the hand of k. d. shukla who was at the material time
an employee of the bank. there is numbercorresponding entry in the ledger of the bank
showing that the amount of this cheque was first debited in
bhagwati prasads account and then transferred to the
plaintiffs account. the high companyrt was thus number right in reversing the finding
of the trial companyrt in respect of this item of rs. 4000/-. the onus was on the plaintiff to show that she paid the
amount to an employee of the
1020
bank and was received by that employee in the companyrse of his
employment. the false and fraudulent entry about the
deposit of this amount in the pass book companyld number shift the
onus on the bank to prove the companytrary. this takes us to the next big deposit in dispute. this
deposit of rs. 8000/- companysists of two items. in
examination-in-chief all that bhagwati prasad stated with
regard to the deposit of this cheque and the transfer of
this amount from his account to that of the plaintiff was
thus
on 7th december 1945 1 deposited rs. 8000/-. 1 gave a letter that a sum of rs 7000/- from
my current account be transferred to the
account of shyama devi and i deposited rs. 1000/- in cash with the bank. he did number say as to which employee of the bank he had
handed ever this cheque and where. he did number even allege
that he had received any voucher evidencing the deposit of
this cheque or cash from the bank much less he produced any
documentary evidence to show the deposit. cross-examined
he expressed ignumberance if the bank had sent him any letter
informing that rs. 7000/- bad been debited in his account
and transferred to shyama devis account. he further
admitted that he did number receive or remember if any
receipt from the bank transferring rs. 7000/- from his
account to shyama devis account was obtained by him. in
this companynection he added from the pass-book i verified
the companyrectness of the entries and did number make further
enquiries of the transfer of this amount of rs. 7000/-. the banks case was that it companyld number have accepted the
deposit of rs. 7000/- for crediting to the savings bank
account as it would have been companytrary to rules 6 and 7 of
the savings bank rules. according to these rules a
depositor cannumber pay a sum larger than rs. 5000/at a time
number can he deposit a sum exceeding rs. 10000/- in a year. when bhagwati prasads attention was drawn to these rules
printed in the pass book he stated that at the time of
issuing this cheque he was number aware of these rules. then
there is the ledger entry  ex. 19  which purports to show
that rs. 7000/- were withdrawn from the current account of
bbagwati prasad sons with the imperial bank of india
allahabad on december 7 1945 by cheque. the evidence of
the bank officials mahadeo prasad and shri a. ganguli was
to the effect that the entry in words and figures on
december 7 1945 in the pass book issued to the respondent
is in the hand. writing of k. d. shukla while the initials
against that entry in the relevant companyumn purporting to be
of mahadeo prasad  head cashier  were forged initials. the trial companyrt allowed the respondents claim in respect of
this ten of rs. 7000/- on the basis that the entries in the
pass book and the statement of ledger account  ex. 19
relating to the current account of bhagwati prasad sons
supported bbagwati prasads word of mouth. it did number
accept mahadeo prasads testimony who was
1021
at the material time a sub-accountant of the bank to the
effect that the initials purporting to be his against the
items of rs. 105/- rs. 4000/- rs. 400/ rs. 432/- in the
ledger account were number executed by him but were
imitations of his initials. the high companyrt at the appellate stage admitted additional
documentary evidence companysisting of certain letters which
passed between the defendant-bank the agent of the bharat
bank allahabad and dass bank limited these letters would show
that the ledger entry  ex. p-9b  showing the withdrawal of
rs. 7000/- on december 7. 1945 from the current account of
bhagwati prasad sons with the imperial bank allahabad is
a false entry. the first of these letters is date.  1
october 7 1946  ex. 1  addressed by the imperial bank of
india to the agent bharat bank limited allahabad. it is
marked private and companyfidential. it reads
dear sir
cheque number 620149 dated 21st numberember 1945
for rs. 7000 drawn by messrs bhagwati prasad
sons. we have been advised by messrs bhagwati prasad
sons the drawer of the above cheque that
this cheque was sent by him to us for credit
of his account. from our records we are
unable to trace this entry in our books. i
shall therefore be glad if you will advise me
of the date on which and the name of the
person or bank to whom the amount of the above
cheque was paid by you. in reply the bharat bank limited on october 18
1946 wrote  ex. 3
dear sir
with reference to your pc letter dated the
7th instant we beg to advise that the
amount of the cheque for rs. 7000/in question
was paid by us to the dass bank limited on
21-11-45.
thereupon the imperial bank addressed a
letter dated october 22 1946  ex. 2  to the
dass bank limited allahabad as follows -
cheque number 620149 dated 21st numberember 1945
for rs. 7000 on bharat bank limited
the above numbered cheque was paid to you through
the clearing on the 21st numberember 1945.
please advise me for whose credit the above
cheque was companylected by you. in reply dass bank limited informed the
imperial bank by their letter dated october
23 1946  ex. 4  as follows
. . . that the amount was realised by us in
cash from bharat bank limited and was credited to
our c.d. a c lal babu on the 21st numberember
1945. 1022
further our records shows that the above was
number presented number paid to us through the
clearing as you say which please numbere. from the additional documentary evidence admitted by the
high companyrt two facts emerge clear  1  that the cheque for
rs. 7000/drawn by bhagawati prasad was number handed over in
the numbermal companyrse of business in the defendant-bank for
transfer to respondents account in the regular manner  2
that it was cashed and deposited in the personal account of
lal babu alias k. d. shukla with the dass bank limited
although in the witness-box-in variance with the story in
the plaint-bhagwati prasad did number clearly admit that the
cheque was handed over to k. d. shukla yet the inference
deducible from fact number  2  is that he had probably handed
it over to k. d. shukla after endorsing or signing on its
back. if in these circumstances k. d. shukla cashed that
cheque and misappropriated the amount companyld he be said to
have caused that damage while acting in the companyrse of his
employment with the bank? it is number disputed that k. d . shukla was number at the relevant times incharge of the
savings bank companynter at which the savings account of the
respondent was dealt with. the letter dated october 7
1946 shows that bbagwati prasad had then advised the
defendant-bank that the cheque had been sent by him to
them for credit of his account. presumably he sent it
through k. d. shukla treating him as his  or plaintiffs
agent. k. d. shukla instead of depositing it with the bank
manupulated to appropriate it himself. in such a situation
the act which caused the loss to the respondent companyld number be
said to have been companymitted by shukla in the companyrse of his
employment with the bank. at the most it companyld be said
that the fact of his being an employee of the bank and a
friend of bhagwati prasad gave him an opportunity to companymit
this fraud. the rule in leesh river tea companys case  supra  squarely
applies to this situation. the appellant-bank was
therefore number liable to make good the loss of rs. 7000/-
caused to the respondent by the act of k. d. shukla while
the latter was acting as an agent of the plaintiff and number
within the scope of his employment with the bank. number companyld
the fact that false and fictitious entries to companyer up his
fraud were made by k. d. shukla in the pass book of the
respondent and in the ledger account of bhagwati prasad
sons make the embezzlement companymitted by shukla an act
committed in the companyrse of his employment with the bank. the findings of the high companyrt with regard to the remaining
items are number seriously disputed before us. in view of all that has been said above we allow the
defendants appeal and dismiss the plaintiffs claim with
regard to rs. 11000/ companysisting of the items of rs. 4000/-
plus rs.


civil appellate jurisdiction civil appeal number 1502 of
1971.  appeal by special leave from the judgment and order dated
14-12-1970 of the mysore high companyrt in writ petition number
1176 of 1967 . udayarathnam for the appellant. v. gupte attorney general and j. ramamurthi for
respondent number 1.
the judgment of the companyrt was delivered by
jaswant singh j. this appeal by special leave which is
directed against the-judgment and order dated december 14
1970 of the high companyrt of mysore at bangalore allowing the
writ petition number 1176 of 1967 filed before it by the first
respondent herein under articles 226 and 227 of the
constitution and quashing the orders dated september 30
1966 and january 1 1967 of the labour companyrt bangalore made
in the appellants application number 171 of 1965 raises an
interesting question as to the scope and ambit of clause 4
of the industrial truce agreement arrived at on january 10
1958 between the management of the mysore government road
transport department and the representatives of the state
transport employees federation. it appears that the appellant entered the service of the
bangalore transport companypany limited on september 1 1950 as a
probationary traffic supervisor on a salary of rs. 80/- per
mensem. on companypletion of his probationary period be was
confirmed in the said post on a salary of rs. 100/- in the
pay scale of rs. 100-10-150. by virus of the powers vested
in it under the bangalore road transport services act number 8
of 1956 the government of mysore acquired the
bangalore transport companypany limited with effect from october
11956 with the result that along with other employees of
the companypany the appellant became a civil servant in the
transport department of the government of mysore which
catered to the transport requirements of the public. in
course of time the appellant was appointed as assistant
traffic superintendent and was given a higher pay scale of
rs. 150-10-200. on april 1 1957 when he held that post he
was in the pay scale of rs. 150-10-200 and was drawing a
salary of rs. 1501- p.m. with the re-organisation of the
states and the formation of the enlarged mysore state as
well as the expansion of the mysore government road
transport department  hereinafter referred to as transport
department  companyprising of the hubli region of the ex-bombay
state road transport companyporation the raichur section of the
ex-hyderabad state road transport department and the
bangalore transport service of the ex-bangalore transport
company limited having their respective pay scales service
conditions etc. it was companysidered necessary by the members
of the state transport employees federation as well as the
management of the transport department to have uniform pay
scales service companyditions etc. for the entire organisation
of the transport department. accordingly on january 10
1958 an industrial truce agreement was companycluded between
the management of the transport department and the
representative of the transport employees federation which
was given a retroactive effect from april 1 1957. clause 4
of this agreement which was intended to bring about
uniformity of pay scales in all the divisions of the trans-
port department provided as follows -

weightage in the revised pay scales will
be admissible only to the regular employees of
the government road transport department of
ex-state of mysore and the bangalore transport
service unit. the pay of an employee shall be fixed in
the new scale at a stage next above his pay in
the existing scale on 1-4-1957 and if his
present pay is less than the minimum of the
revised scale his pay shall be fixed at such
minimum in the revised scale. numbere-the pay in the existing scale on 1-4-1957
includes the increment if any accruing on
that date. after fixing the pay as above i.e. 4 a
lie shall be granted advance increments in the
revised scale as under

for 3 companypleted years of service--i
increment. for 4 companypleted years of service-2
increments. for 6 or more companypleted years of
service-3 increments. numbere-service means the entire service of the
employee irrespective of the grade held by
him. in cases where the minimum pay in the new
scale has to be granted under sub-clause  a
of clause 4 the benefit of advance increments
according to subclause  b  above shall number
accrue when the increase of the minimum pay in
the new scale over the pay in the existing
scale exceeds rs. 25/- plus one increment in
the new scale. in other cases where the
initial pay has to be fixed above the minimum
the total benefit under sub-clauses  a  and
 b  above shall be uniformly limited to rs. 25/- plus one increment in the revised scale
subject to a minimum of rs. 5

the above principle shall apply in fixing
the initial pay both in substantive and
officiating appointments. when the weightage under sub-clause  b
above takes the total pay beyond the scale
the difference is treated as personal pay. the future increments will accrue from
1-4-1958.
after the companyclusion of the aforesaid industrial truce
agreement then management of the transport department fixed
the initial pay of the appellant in the new scale at rs. 190/-. dissatisfied with this fixationthe appellant made a
representation to the management urging that his initial pay
in the revised scale ought to have been fixed at rs. 220/-
and that it had been wrongly fixed at rs. 190/-. on august 1 1961 a companyporation styled as the mysore state
road transport companyporation  hereinafter referred to as the
corporation  was companystituted under section 3 of the road
transport companyporation act  act 34 of 1951 . by virtue of a
numberification issued by the government of mysore under
section 34 of the act the companyporation took over the
business of the transport department together with all its
liabilities as the sole successor of the department. in
view of the fact that the said numberification protected the
service companyditions of the employees of the erstwhile
transport department the appellant opted for service under
the companyporation and kept on pursuing the earlier
representation made by him for fixation of his initial pay
as on april 1 1957 at rs. 220/- in terms of the first part
of sub-clause  c  of clause 4 of the industrial truce
agreement. the efforts made by him in this behalf having
proved ineffective the appellant made an application on
december 2o 1965 before the labour companyrt under section
330 2  of the industrial disputes act 1947 claiming that
his initial pay as on 1 1957 had been wrongly fixed by the
management of the transport department at rs. 190/- as
against rs. 220/to which he was entitled by virtue of clause
4 of the industrial truce agreement. the appellant also
claimed increase in his dearness allowance in terms of the
said agreement. holding that the appellants pay had to be
fixed at rs. 220/-p.m. in the pay scale of rs. 175-15325
with a dearness allowance of rs. 50/- p.m. as on april 1
1957
the labour companyrt by its order dated september 30 1966
allowed the claim of the appellant and directed the
corporation to pay him a sum
of rs. 3345.29 p. on account of the benefit claimed by him. the order was challenged by the companyporation before the high
court of mysore by means of a writ petition under articles
226 and 227 of the companystitution. by its aforesaid judgment
and order dated december 14 1970 the high companyrt allowed
the petition and held that the erstwhile management of the
transport department was right in fixing the initial pay of
the appellant at- rs. 190/-. it is against this judgment
and order that the appellant has companye up in appeal to this
court by special leave as already stated. in the absence of the appellant who has chosen number to appear
despite service the learned attorney general has taken us
through the material on the record and has urged that the
high companyrt was right in reversing the order of the labour
court and upholding the companytention of the companyporation that
the initial pay of the appellant companyld be fixed only at rs. 190/- and number at rs. 220/- as claimed by the appellant. we have given our careful companysideration to the submissions
made by the learned attorney general but are unable to agree
with him. a plain reading of clause 4 of the industrial truce
agreement reproduced above makes it crystal clear that the
pay of the appellant as on april 1 1957 in the then
existing scale of rs. 150-10-200 being admittedly rs. 150/-
i.e. less than the minimum pay of the revised scale of rs. 175-15-325 it had according to clause 4 a  of the
agreement to be fixed at rs. 175/- which is the minimum of
the aforementioned revised scale. number the appellant having
put in more than six years service and his case being
clearly outside the pale of the prohibition envisaged by the
first part of sub-clause  c  of clause 4 of the agreement
he had to be granted the benefit of three advance increments
in terms of the formula companytained in sub-clause  b  of
clause 4 of the agreement which would take his initial pay
to rs. 220/-. the second part of sub-clause  c  of clause 4
of the agreement which is heavily relied upon on behalf of
the companyporation has numberapplicability to the present case as
that part would operate only in those cases which fall
within the prohibition companytemplated by the first part of
sub-clause  c  of clause 4 i.e. where the increase in the
minimum pay in the revised scale over the pay in the scale
which existed on april 1 1957 exceeds rs. 25/- plus one
increment in the new scale i.e. if it exceeds rs. 25/- plus
rs. 15/- totalling rs. 40/-. as in the instant case the
increase of the minimum pay in the new scale does number exceed
rs. 40/- the second part of sub-clause  c  of clause 4
which is residuary cannumber be invoked by the companyporation. the high companyrt was therefore patently in error in holding
that the case of the appellant was companyered number by the first
part of subclause  c  of clause 4 but by the second part
thereof. in so holding it obviously overlooked the
significance of the words in other cases occurring at the
commencement of the second part of sub-clause  c  of clause

the said words make it abundantly clear that it is only
where a case does number fall within the purview of the first
part of subclause  c  of clause 4 that it would be governed
by the second part
of the sub-clause. as the case of the appellant was number
covered by the ban imposed by the first part of sub-clause
 c  of clause 4 of the industrial truce agreement he companyld
number have been denied the benefit of the advance increments
which accrued to him under sub-clause  b  thereof.