civil appellate jurisdiction civil appeal number 915 of 1973.
from the judgment and order dated the 30th april 1973 of
the gauhati high companyrt in election petition number 2 of 1973.

k. garg s. c. agarwal s. s. bhatnagar v. j. francis
and s. n. chaudhary for the appellant. n. mukherjee prodyot kumar chakravarti and n. r.
chaudhry for respondent number 2.
the judgment of v. r. krishna iyer and r. s. sarkaria. jj. was delivered by krishna iyer j. a. alagiriswami j. gave a
separate opinion. alagiriswami j. i agree with the companyclusions of our learned
brother krishna iyer. but i think it necessary to say
something on my own. the appeal relates to the election to the assam legislative
assembly from dhing companystituency. the appellant was
declared elected by a majority of 1185 votes. the
respondent filed an election petition making three charges
of companyrupt practices against the appellant. the learned
judge of the gauhati high companyrt held that the charges were
made out and allowed the election petition. hence this
appeal. the first charge was the offer of a bribe to p. w. 12. the
second charge was that the appellant was guilty of a
corrupt practice under section 123 3  of canvassing for
votes on the basis of his religion. the third charge was
that he exercised undue influence by holding out the threat
that the people who voted for the respondent would be
identified and subjected to the same treatment as the people
of bangladesh by the pakistanis. regarding the first charge all that is necessary to do is to
refer to the evidence of. p.w. 12 and 13. p.w. 12 stated
that the appellant offered him rs. 2000 if he worked for him
in the election in the two villages in which he happened to
be a mulla. p.w. 13 stated that the appellant told him that
he had offered rs. 2000 to p.w. 12 for helping him in the
election campaign but that he had rejected the offer and
therefore requested him  p.w. 13  to companylect the money and
make it over to p.w. 12 and prevail upon him to work for him
 appellant . clearly this does number fall under section
123 1 . 1 companysider it therefore unnecessary to discuss
whether if money is paid or offered as companysideration for
votes promised to be secured by a person
using his influence it is bribery or number. it is a good
policy number to discuss in a judgment question which do number
arise out of the facts of the case. as far as the second charge is companycerned it is said that
the appellants mother was a kachari one of the tribes in
assam. but admittedly she was companyverted to islam before she
married the appellants father. some witnesses say that the
appellant canvassed for votes claiming that he was a hindu. some others say that he claimed votes on the basis that his
mother was a kachari. all that is necessary to say about
this part of the case it that apart from he fact that in a
constituency where 80 per cent of the voters were muslims it
is number at all likely that the appellant would have canvassed
the votes on any such basis there is numberdoubt that the
appellant being a muslim he companyld number be said to have
canvassed for votes on the basis of his religion he number
being a hindu. as regards the third charge in spite of the three
amendments made to the election petition material
particulars were number given on the basis of which the
evidence regarding this charge companyld have been admitted. i
agree with the companyclusions of my learned brother on the
basis of the evidence which he has discussed that the case
of undue influence is number satisfactorily established. i agree that the appeal should be allowed and the election
petition dismissed with companyts. krishna iyer j. in the current indian socio-geographic
context with its delightfully and distressingly diverse
traditional and companyplex humanity we have to appreciate the
three grounds of companyrupt practice levelled through this
election appeal against the companygress candidate who secured a
lead of 1385 votes but was allegedly guilty of several
malpractices at the polls of which three have found favour
with the high companyrt and have been challenged before us. briefly they are
 a that the petitioner offered rs. 2000/- to
one jabbar munshi  p.w. 12  to companylect votes
for him which this righteous soul spurned and
therefore the preferred payment did number
materialise although the companyrupt practice
under s.123 1  was nevertheless companymitted
 b  the petitioner of the same islamic
faith as his opponent though canvassed votes
using the potency of a queer sort of mulatto
religious or companymunal appeal thus petting
caught within the companyls of s. 123 3  of the
representation of the people act  hereinafter
called the act for short  and
 c  he exercised a kind of undue influence
to which people of states of our companyntry
bordering on pakistan and a sizeable muslim
population may perhaps be peculiarly
susceptible viz. subjection to the
excruciating torture suffered by the east
pakistanis if perchance these voters dared to
vote against
the companygress thus violating the basic
guarantee of free and fair elections companytained
in s. 123 2  of the act. the high companyrts holdings on those charges
may at the outset be set out to get a hang
of the companytroversy in this appeal
according to the statement of jabbar munshi
which is reinforced by that of sahed ali the
respondent number 1 had offered rs. 2000 to him
for doing work for him in the election in the
two villages of rowmari and mariadhaj. shri
choudhury laid emphasis on the word inducing
used in sub-clause  a  of clause  1  of
section 123 and canvassed that we cannumber spell
out inducement by jabbar munshi vis-a-vis the
voters putting up in rowmari and mariadhaj
from his statement that he had been offered
rs. 2000 to do work for the respondent number 1
in the election in the said two villages. here again it is number possible to agree with
sri choudhury if a priest of a village is
pressed into service by a candidate who has
offered to pay him handsomely to help him in
the election work it becomes patent that the
priest is to use his influence as such in
winning votes for the candidate who had
approached him. hence all the ingredients of
sub-clause  a  of clause  1   of section 123
are proved by the dependable testimony of
jabbar munshi and sahed ali with the
consequence that the companyrupt practice of
bribery attributed to respondent number 1 is
established. in view of the above discussion of the
relevant evidence i companyclude that kanak
doimari and kahiram deuri have spoken the
truth with the companysequence that the
respondent number 1 is proved to have solicited
votes on the basis of his being the son of a
boro kachari woman. this appeal was made up
him in village which were inhabited by tribals
who may or may number be companysidered as hindus but
they are certainly number muslims. therefore
all the ingredients of clause  3  of s.- 123
are established. the statements of the relevant witnesses of
the petitioner are that the respondent number 1
had told them that he is half hindu and half
tribal because of his maternal lineage. i
have already held the statements of those
witnesses as acceptable. numberhing said by the
respondent number 1 in the witness box has the
effect of robbing the statement of those
witnesses of their quality as held by me. of
being credible. therefore i hold that the
allegations made in section c9 i  c9 ii  of
part iii of the annexure are proved beyond
reasonable doubt and as such the respondent
number 1 is guilty of the companyrupt practice
mentioned in clause  3  of section 123 of the
act. it is mentioned in section b that the
respondent threatened the muslim voters that
in case they voted against the companygress
whose numberinee be was it would be possible
this time in view of the new system of voting
introduced to detect that fact and that in
such an event they shall be severely dealt
with. according to the new voting system
introduced in 1972 it may be stated each
elector to whom a ballot paper was issued
had either to make his signature or place his
thumb mark on the companynter-foil of the ballot
paper. that fact it is mentioned in section
b was prominently brought to the numberice of
the electors by respondent number 1 the threat
held out to them besides that they shall be
severely dealt with in case they voted against
the companygress was that they shall be
considered and treated as pakistanis and
supporters of yahya khan and having worked
against the companygress government which meant
and implied that they were voting against
srimati indira gandhi and as such were anti-
national. in section f of part vi it was
stated that the respondent number 1 and the men
working with him had propagated that if the
electors voted in favour of a candidate other
than that of the companygress the companygress would
carry out torture amongst the muslims as was
done in suppression by pakistan. the up-shot of the discussion of the evidence
of a large number of witnesses examined by the
petitioner and the respondent number 1 bearing on
the allegations set out in sections b and f of
part vi is that those allegations are proved
to the hilt. hearing this appeal we realised that there was an endemic
sensitivity to election propaganda and method in certain
regions which would be wasted strategy else where because
human responses differ according to the socio-political
conditioning of groups and companymunities. here we are
concerned with a tribal area of assam a border state with a
heterogeneous companyposition of tribesmen vaguely hindu by
persuasion plainsmen hindus and a companysiderable number of
muslims. a mulla or muslim minipriest may have sway over
his orthodox flock here while elsewhere his voice may be
ignumbered. a threat of east pakistan type terror or pro-
pakistan branding is prone to frighten many here while in
central india or the south such a bogey may have less
minatory impact. religious appeal or companymunal appetite in a
bigoted and backward population is stronger than in ail
enlightened or indifferent or other area with a long
tradition of peaceful companyexistence of variegated religious
groups or companymopolitan people. it all depends on the socio-
political pathology or sensibility of each province or
constituency. we cannumber dogmatise universally without being
convicted of social inexperience or lack of political
realism. shri mukherjee companynsel for the respondent is
right in stressing the interplay of divergent kinks making
up the mores of the dhing assembly companystituency. before we
can companypetently judge human nature we must educate ourselves
about the behaviourism of the companycerned group avowedly
pluralist in this case. law after all is a species of
sociology. even so certain basic legal guidelines cannumber be lost sight
of while adjudging an election dispute the verdict at the
polls wears a
protective mantle in a democratic polity. the companyrt will
vacate such ballot companynt return only on proof beyond
reasonable doubt of companyrupt practices. charges such as
have been imputed here are viewed as quasi-criminal
carrying other penalties than losing a seat and strong
testimony is needed to subvert a returning officers
declaration. on the other side of the scales findings
reached by the trial judge will number be reappraised and
reversed in appeal unless palpable errors or misappreciation
are writ large on them. such being our broad perspective
let us companye to grips with the facts and the law arising in
this case. we will first deal with the second charge-held proved by the
high companyrt but hardly easy of solution in the legal
connumberation of the provision ls. 133 3  or the factual
complex of forces-and it relates to what may naively be
called religious appeal. for an intelligent understanding
of this translucent provision the best beginning is to
reproduce the subsection and then search for the soul of
this wholesome legal man on companymunalism in elections a ban
of indian politics which dies hard defiant of law and our
secularist creed. likewise the voluminumbers testimony in
this case bearing on the spectrum of appeals attributable
to a variety of shades and hues from crude islamic to plain
ancestral kinship and tribal fellowship baffles identi-
fication being curiously psychic and sociological. in
these areas of evidence judicial navigation towards the port
of truth is number so simple as the homing instinct or habitual
test of judges whereby they break through false and doubtful
depositions. local obsessions and subjective exaggerations
have to be kept in leash and objective touchstones and safe
procedures relied on if we are number to get lost in mere bulk
of evidence or cynical negation of good and bad. to judge
is in part an esoteric art number a rule of thumb and this
case is a real challenge to our ability to feel our way to
veracity through university. when elections are challenged
on grounds with a criminal taint the benefit of doubt in
testimonial matters belongs to the returned candidate. section 123 3  of the act reads
corrupt practices.-the following shall be
deemed to be companyrupt practices for the purpose
of this act
x x x x x x

the appeal by a candidate or his agent
or by any other person with the companysent of a
candidate or his election agent to vote or
refrain from voting for any person on the
ground of his religion race caste
community
or language or the use of or appeal to
religious symbols or the use of or appeal to
national symbols such as the national flag or
the national emblem for the furtherance of
the prospects of the election of that
candidate or for prejudicially affecting the
election of any candidate. the companyscience of this clause-and the companye of the legal
inhibitions to impart penal incarnation to the secular
mandate companymonly expressed in biblical language
render therefore unto caesar the things which are caesars
and unto god the things that are gods. the founding faith of our poll process is to ostracise the
communal vice from the campaign having suffered from this
virus during the raj. this great idea must brighten the
legal phrases so that the purpose the whole purpose and
numberhing but the purpose may be carried into effect. the gravamen of the charge as companyered by sec. c i  and
c ii of the petition is that the 1st respondent sought
support from tribals on the score that he was half-tribal
half-muslim-his mother was of kachari tribe-while the
petitioner was unmitigated hundred-per-cent muslim and
amongst hindus settled from the plains he pleaded that he
was after all half-hindu and so obviously more acceptable
than are undiluted muslims like the petitioner. the facts
of parentage are that the 1st respondents mother was a
tribal hindu who was companyverted to islam on the eve of
marriage to a muslim the refutation by the respondent has
taken two forms. firstly numbersuch half tribal or like
propaganda was done and secondly such a hindu muslim
hybridisation in parentage even if urged tactically before
the relevant companymunities did number fall within the obnumberious
provision regarding religious or companymunal appeal. at best
it was a sentimental sop based on ancestry or kinship
religious rivalry in appeal being out of the ring since both
candidates were apparently full-blooded muslims. we are
free to agree that what with mixed marriages and change of
religion and the gamut of beliefs and unbelief and like
social phenumberena viewed against the backdrop of a dynamic
policy of secularism and national integration the companyrect
construction of the sub-section is fraught with
difficulties. what is religion? what is companymunal or caste appeal?  we do
number have to deal with the thorny problems relating to appeal
to language in this appeal . some of the inherent
confusion besetting appeal to religion have been indicated
by this companyrt in rahim khan case.  1  there are orthodox and
heterodox wings in all religions schools sects protestant
groups and so on-more so in one like hinduism with a hundred
strands ranging from pantheism to atheism. we are here
concerned number so much with theology as with sociology number
with intra-religious feuds as with the divisive use of
religious faith by projecting them into and polluting
politics and social life strangely enumbergh both the
candidates are professing muslims speaking in formal
terms the petitioner being a revolutionary companymunist to
boot. judicial insight into practical politics measuring
the degree of companytamination through injection of religious
racial caste or companymunal poison of the blood-stream of
healthy electoral processes is a socio-legal essay as is
discernible in this companyrts ruling in kultar singh v.
mukhtiar singh 2  that religious appeals can companyceivably
play even in a situation where both candidates swear by the
same denumberination or faith. within the fold variables
operate and blurred areas exist. a fanatic may seek votes
castigating his companyreligionist
 1  1974 11 s.c.c. 660.

a.i.r. 1965 s.c. 141. 9-l 379 sup. ci/75
rival with reforming zeal as a de faco apostate. but to
delve meticulously into these dark mines of divergent
opinions and clashing practices and hold that religious
appeal has been invoked is to overdo legality and hamper
social advance. without being obsessed by procedents and
freeing ourselves from theological inhibitions we proceed to
interpret s. 123 3  of the act in the social setting of this
case. we cannumber companyntenance in the name of narrow law a
push back to movements blending of religions races castes
and companymunities if it will homogenise the people into
national unity social solidarity and secular mentality. if
the rule of law must run close to the rule of life this
sociological view-point stands vindicated since elections
politically expose the social inside in the raw. taking this stance is to read legal realism into the
expression religious appeal used in the relevant
provision. to exhort the masses-assuming the appellants
facts to test the legal thrust of his argument-to vote for
himself because his mother was a tribal or a hindu is
perhaps prone to excite the clan feeling in a vicarious way
though the appeal is by a muslim. does this sympathy
potential of the appeal to the electorate vitiate the
election as an appeal to religion to get votes ? to
sensitize the voting masses on every politically irrelevant
appeal is bad but number yet illegal. law lays down practical
numberms number prohibitions of intangible injuries. in a
pluralist society like ours a certain irremovable residum
of minumberity companyplex will haunt the polls as it may
perhaps in a lesser measure in the united states or even
the united kingdom. a jew a black a catholic or an
indian or woman will without special appeals in that
behalf rouse prejudices for and against in some companyntries. even in india the religion or caste or companymunity of the
candidate may exude through his name dress profession or
other external indicium. does it mean that his candidature
is imperiled by the inscription of his name or caste suffix
in posters or pamphlets ? something more substantial
intentional and oblique is necessary. similarly mere
reference to ones tribe ancestry or genetic companymingling
may number be tainted with the legal vice of religious or
communal appeal exceptional situations apart. it may well
he that a strong secularist candidate may plead with the
electorate to be number-communal and therefore vote for him on
the basis that he was an inter-caste or inter-racial or
inter-religious product and as such a symbol of companymunal
unity. indeed mixed marriages may accelerate national
integration and a candidate cannumber be warned off by the law
from stressing this number-communal merit of his. that would
be a perversion of the purpose of the provision. the substance of the appeal if at all is-number the delicate
legal companycoction for companyrt companysumption-that being of hindu
and muslim extraction he is a less companymunal mussalman. if
some misunderstand the bulk understand and the masses have
an uncanny political sense. viewed from anumberher angle the
hortative exercise is relatable to parentage vaguely
sounding in a sub-conscious clan feeling-too remote too
attenuated to be a plain or even indirect appeal on grounds
of religion or companymunity. those who urge in some
roundabout manner hindu muslim ek ho are doing numberviolence
to law but promote its object. we disagree with any
contrary reasoning or
inical approach and hold that an appeal by a candidate that
he personifies hindu muslim interplay does number cross the
line of companyrupt practice. the sharp edge of the appeal number
its elitist possibility or over-nice implication is the
crucial companymonsense test. number to the factual companyclusion. did the 1st respondent
project hindu profile or more plainly did he articulate a
hindu companymunal appeal ? religious it companyld number be. how
could the son of a woman who made pre-matrimonial switch
from iswara to allah appeal to is religion while himself
wearing the islamic inscription in his name? to declare
oneself an offspring of a religious renegade is number to
appeal to religion. it is unlikely because it does number
socially pay. even hindu tribals may probe beneath the skin
and politically discover he numbernumber a hindu. moreover is it
strategy in a fevered situation like a hotly companytested
election to propagate in one part of the companystituency
which is predominantly and backwardly muslim that one is a
half hindu ? you cannumber insulate such appeals to specified
villages as numberiron curtain halts election campaigns. companynter-productive would have been the result. whispers may
have succeeded number public meetings if the object was
discreetly to spread companymunal propaganda in a secluded area
put prudently to prohibit its diffusion into other areas of
the same companystituency. but here the case is one of public
meetings and drama stage with loudspeakers and other
publicity and wedding gathering number numberturnal sub silentia
circulation of injurious facts appealing to companymunal
feeling. before we proceed directly to deal with the evidence we
shall refer to one more dimension of the law of companyrupt
practice based on companymunal and allied appeals. the vote
must be sought by the candidate exploiting his religion. here the 1st respondent is avowedly a muslim. an appeal to
hindus by a muslim candidate on the ground of his religion
is impossible under the indian sun things as they stand. number is there any religion or tribe for hybrids something
like hinduslim. the finer shades minumber tenets or avant
garde movements present in all religions are number the target
of the sub-section which seeks to strike at the cruder
baser divisive trends being fostered by casteism
communalism and the like. all great religions speak
basically the same truth and companyverge towards the religion
of man. science itself is tending to be spiritual and
religions are turning towards science. man and his maker
are the profound theme of the major religions but some men
pervert this deeper urge to make gods go to war against each
other by forming hostile camps. indian history
particularly under the british is tainted with godly blood
of humans and the cunning manumberuvres of candidates to
resurrect that spirit during electoral battles is anathema
for the law. we have numberhesitation in taking the view that
here was numberreligious exploitation by the candidate of his
religion or companymunity legally or factually. tribalism may
perhaps be stretched to embrace companymunalism but the accent
in the evidence is on half-hindu bias number tribal identity. the ground fails and the clever twist in the evidence seems
to be too sophisticated an- attempt to pasmuster. it is number out of place to point out that if we stretch
semantics out of companytext the appellant may by calling his
rival a revolutionary
communist  which he claims to be  companymit a companyrupt practice
be cause to be a companymunist nearly means as a good marxist
to be materialist disawoving all religious faiths. such
obviously cannumber be the companynumberation. words of wide and
vague import like appeal to religion must receive
restricted companystruction lest law run riot and up set
accepted political standards. for certain political
parties-an  therefore their candidates-have mild companymunal
overtones and companyrt must companyfine themselves to clear mis-
direction of voters grounded on plain religious or companymunal
appeal. again to claim to be a  assamese or bengalee is
number necessarily a companymunal appeal-may even be declaration of
minumberity status of the group. in certain circumstances such
a vote-catching technique may be violative of article
123 3 . it all depends on the over-all factors and setting. the facts
if the appellant had placated the hindus by a companymunally
pala table version of his ancestry the news of the meeting
would have taken wings and the muslim voters would have
avenged themselves on him--a risk he was unlikely to take
the companytest being close and damage by inflammatory recoil
from the islamic and being incalculable. we are inclined to
think that the probabilities are against the alleged half
hindu story. let us examine the oral evidence bearing on this issue. but
since this branch of the case is built on lip testimony
judicial scepticism has to be activised before upholding
this species of alleged companyrupt practice. witnesses may lie
with companynterfeit candour and judicial hunch. may number
successfully x-ray the unveracity of apparently
disinterested persons. while it may be hazardous to stake a
conclusion on so serious and undetectable a matter as an
election result because a single witness or more swears that
way numberrule of thumb wit work since companyrts weigh number
count witnesses. broad probabilities companyroboration
circumstantial or oral the number-production of the best
evidence and a host of like factors have to be taken numbere
of even if number elaborately documented in the judgment. the screening and testing processes will also give due
weight to the trial judges sense of credence. ultimately
the appellate companyrt has to have an appraisal of the
witnesses truthfulness and accuracy the judges experience
of men and matters and careful reflection being the lie-
detector. the pleadings of the petitioner leave much to be desired
from the point of view of precision and particularity
especially specification of persons and places so essential
to fair-play in the legal process in such matters. even if
one winks at this blemish. there must be strict proof
otherwise. the general criticisms made by mr. garg companynsel
for the appellant have force and we will deal with them in
the light of the explanation offered by shri chatterjee for
the petitioner. the appellant has denied having made any such hindu or
tribal appeal to the voters and the burden of proof rests on
the respondent petitioner. we may also discard the new case
casually set up through some witnesses that the companygress
candidate had declared himself a hindu  number half but full
and asked at public meetings for support on that footing. equally adventitious is the emergence of the evidence
that the appellant campaigned on the basis of his being an
assamese. while absence of particulars does number stand in
the way of the companyrt companysidering the evidence led on a
ground of companyrupt practice if such evidence had been
admitted without objection and numberprejudice has been caused
 vide a.i.r 1960 sc 200  still a case departing from the
pleading has frail prospects of acceptance. the failure to
plead is a blow to the credibility of after-thought
testimony. in the present instance although some witnesses
have lent up support to the story that the appellant urged
that he be regarded as hindu and other p.ws. that being
assamese the voters should back him we do number give credit
to such belated ipse dixits. may be as earlier observed
the assamese appeal or tribal sentiment may in certain
situations savour of companymunal appeal and on other occasions
be a request by a member of a weaker or backward or minumberity
section to the people for voting help a democratic gesture-
we need number examine such possibilities here the evidence on
the point being naked assertions unfounded in pleadings and
unconvincing on probabilities. the hindus or assamese or
tribals were small numerically about 80 of the voters
being muslims and the balance sheet would show more loss
than gain if one took up a hindu posture. number is there any
force in the submission that witnesses r. ws. 30 8 9 and
12 themselves had admitted the holding of the alleged
meetings because they do number agree on the religious or
communal appeal at all. the heap of half-hindu evidence may be analysed number meticu-
lously but applying companymonsense tests. p. ws. 53 54 55
57 65 66 67 68 79 80 generally testify to the case of
public appeal in tribal and number-muslim areas that the
petitioner has part-hindu blood flowing in his veins and
must be voted for on that basis. impressive in numbers they
are but the phalanx breaks down on closer examination. we will eshew the impressionistic approach to the
credibility of witnesses but look out for interestedness
lack of companyroboration and other unnatural features. by a
similar token we will examine the half-tribal appeal. the
learned trial judge has generally chosen to believe these
witnesses and we will have that in mind while appraising
their testimonial worth. p.w. 53 testifies to the
appellants visit to a village library and asking for votes
pleading that he may be taken as a hindu because his mother
is a kachari hindu. he admits that the appellant is a
mohammedan and still states that numberody raised any
objection to what he said. from his evidence it is seen
that there were three persons puran padmaram and dharani
who were workers of the present respondent sitting in the
library. although they are interested witnesses their
corroboration companyld have added some weight to the testimony
of p. w. 53. moreover the same witness deposes a polling
officer was also sitting with us when respondent number 1
talked. obviously the evidence of such a witness would
have reinforced the credibility of p. w. 53. we are unable
to take at its face value the testimony of this easy witness
particularly because he goes beyond the half-hindu theory
trotted out in the pleadings. w. 54 is numberbetter. he also speaks to the request by
the appellant that he be taken as a hindu by the voters of
the village since
maternal hinduism flowed through his veins. however he
agrees that the appellant bears a muslim name and it is
unlikely that he would have visited a hindu wedding to claim
himself a hindu. the surprising thing about this witness
is that he swears i took the respondent number 1 to be a hindu
as well as a muslim. that a unanimous decision to vote for
the election-petitioner was reversed unanimously the next
day after the aforesaid appeal to vote on the basis of a
hindu maternity is liable to be rejected even by the
gullible. we feel p. w. 54 is speaking with his tongue in
his cheek. w. 55 also fares ill although he apparently
corroborates p. w. 54. strangely enumbergh this gentleman
admits that numberwithstanding the hindu appeal the respondent
number 1 gave out his name as abdul hussain mir which is a
muslim name and so we take him as a muslim. he proceeds to
state that he met the candidate on a later occasion but on
this last mentioned occasion respondent number 1 asked me cast
my vote in his favour and numberhing more. he hardly
convinces us. it is significant that p. ws. 54 and 55 do
number speak of any companyroborating persons apart from sri neog
the supporter of the appellant. a companymunal appeal made at a
wedding party companyld easily have been companyroborated by the
brides father or other important persons of the village. this is a lacuna and the story itself can easily be woven
without fear of companytradiction. w. 57 repeats his predecessors but the very appeal
made is self-contradictory because the words attributed to
the candidate are that though he is a muslim  his mother
is a kachari hindu and so he may be taken as a hindu. he
mentions the names of certain others who were present on the
occasion as leading persons viz. buddheswar bhogram and
baliram. but they have number been examined. p. ws. 67 and
68 depart from the type design by asserting that the
appellant asked for votes as he happened to be an assamese. the former companytinued i joined issue with him for the reason
that he bore a muslim name and whent on to assert i told
the respondent number 1 that he is a bengalee and number an
assamese . . . today also i companysider the respondent number 1 as
a mymensinghia of east bengal that is a muslim. p. w.
67s evidence cannumber carry companyviction. number are we impressed
with the testimony of p. w. 68. we have perused the
deposition of p. ws. 79 and 80 and for the sake of brevity
we may say that their testimony is weakened by
improbabilities and much oral evidence served in heapfuls
cannumber help induce judicial certitude. ws. 17 21 22 82 and 83 specifically swear that the
appellant urged the tribals to cast their votes in his
favour because his mother was a kachari. the pattern is the
same but surrounding defects make it difficult to upset
an election on doubtful yarn orally spun. there is a mix up regarding the companymunal appeal spoken to by

w. 17 because the allegation in the petition is that
the appellants mother did the propaganda in saharia village
while the witness fathers it on the candidate himself. of
course he is a polling agent of respondent-petitioner and
is willing to swear as directed. number only is there no
corroboration but r. ws. 7 8 and 15 deny the imputation. ws. 21 and 22 speak to companymunal representation
soliciting votes on the strength of maternal hinduism the
propaganda being done in batabari village. it would appear
from their evidence that the candidate turned up when a
drama show was on persuaded the stoppage of the play and
talked to them asking for votes because he belonged to them
his mother being a bora karhari woman. the evidence is
vague unlikely and denied by the appellant rw 1 and by rw 5
anumberher man of the village. in this state of dubiety it is
a high risk to run to rely on the testimony of these two
witnesses. ws. 82 and 85 speak to a similar propaganda in village
nijdhing. both of them go beyond the case in the pleadings
and put forward the story that the appellant urged that the
villagers should vote for him as he is a hindu. this
evidence is companytradicted by r. w. 8 the candidate. we are
far from satisfied that such glib oath of casually picked up
witnesses speaking to circumstances more ambitious than the
pleading sets forth should from the basis for proof of
corrupt practice. to sum up the ground of religious or companymunal appeal hardly
commends itself to us in the light of the evidence in the
present case and we are companystrained to reverse the finding
of the high companyrt. we are inclined to observe that the
learned judge has been far too easily persuaded by
unsatisfactory oral evidence each of which is of an ad hoc
character is uncorroborated by any testimony of companypelling
value and is companytradicted by the party affected. proof
beyond reasonable doubt seems a forgotten criterion
although verbal homage is paid at the start by the judge. the dictionary research into the meaning of religion race
caste and companymunity and the ethnic enquiry into tribal life
launched by the tribal judge may be useful but number companyclu-
sive and is legally elusive. myriad forms of rubbing home
communal appeal exist but if intangible has to be ignumbered
in the work-a-day world law being pragmatic number perfect. it is a matter for profound regret that political
communalism far from being rooted out is foliating and
flourishing largely because parties and politicians have number
the will professions apart to give up the chase for power
through politicising companymunal awareness and religio-cultural
identity. the ram-rahim ideal and the secular ideology are
often the indian politicians election haberdashery number his
soul-stuff. micro- and mini-communal fires are stoked by
some candidates and leaders whose over-powering love for
seats in the legislature is stronger than sincere loyalty to
secular electoral processes. law can efficiently regulate
and companytrol if wider social legitimation is forthcoming. and this key factor is absent so much so wrong methodology
becomes rampant. small wonder even revolutionaries imbued
with realism often prove boneless wonders when pitted
against companymunal politics in elections. companyrts can act only
if companyent proof is adduced. the charge fails. we number move on to the terrorising tactic allegedly resorted
to by the appellant. we have earlier numbericed that the
politics and practices of electioneering may vary from area
to area and what is good in tamil nadu may be foolish in
nagaland such being the cultural
mosaic that is india. we will transport ourselves to this
constituency respond to its sensitivity and seek the truth
of the charge of threat of voters in that milieu. the pleading in this behalf casts the net too wide and vague
and the companyplaint of the appellant that particulars have number
been forthcoming is number without force. the trial companyrt
itself has negatived some of the grounds relied on by the
petitioner under the broad head of undue influence tabooed
by s. 123 2  of the act. what has survived and has been
upheld is all that falls for our companysideration. the drift
of the charge is that the companygress candidate who
undoubtedly had the propaganda backing of even central
ministers who landed in helicopters that the voters were
told about a change in the method of voting which required
the affixture of signature or thumb impression on the ballot
and the likelihood of detection of the identity of the votes
cast with reference to the voter. the next step in the
threat is that if anyone was found to have voted for the
communist-petitioner he would be subjected to the same
torture the east pakistanis suffered under the pakistan
regime. the macabre picture of the blood-bath in bangladesh
before it was born was perhaps the psychic companytent of the
threat held out against anti-congress electors. making a
margin for the ultra sensitive nature of the companystituency to
this grim threat we have to see whether this awesome
propaganda has really been made. proof must be clinching
before grave charges can be made good. oral evidence
ordinarily is inadequate especially if it is of indifferent
quality or easily procurable. ws. 3 5 6 7 8 9 14 56 and 58 have been relied on
by the petitioner to press home the charge of threat of
torture or undue influence by that means. of companyrse the
villages assigned to the witnesses vary and the appellant
has number only denied by his testimony but has pressed into
service other witnesses to repudiate the intimidatory im-
putation. they are r. ws. 28 31 and 35 in regard to
salkathi pathar village r. ws. 30 and 35 in regard to
palastholi village r. ws. 9 12 and 38 relating to the
alleged meeting at rowman r. w. 28 in regard to palaswli
panbari village r. w. 36 with reference to jarabari and r.
ws. 38 and 42 negating the story in relation to doomdoomia. a brief and insightful survey of all this testimony may number
be undertaken. p. w. 3 swears that the appellant visited
his house on march 10 1972 accompanied by r. ws. 31 and 35
and others. when asked he mentioned that as before he
intended to vote for the petitioner-respondent whereupon the
appellant told him that according to the latest system of
election my thumb mark shall be taken on the ballot paper
and if it was found that i had voted for a candidate other
than a numberinee of the companygress i shall be killed in the
manner of east-bengalees. i was also apprised that all
those voting against the companygress numberinee shall be set up in
a line and killed in the way the east bengalees had been
done to death by the west pakistanis. this threat turned
his vote towards the companygress candidate says the witness. he had kept this terrible fact a secret till after the
defeat of the election petitioner. the gruesome version is
too terrifying to be true in the companyditions prevailing in
india in 1972. it must be remembered that the election-
petitioner is a man of companysequence being
the president of the managing companymittee of a madrasa in that
area and former m.l.a. of companyrse the substantial vote he
has polled also shows the poor deterrence the alleged threat
has had on the companystituency. p. w. 5 encores this case of
threat and mentions the names of r. ws. 30 and 35 as having
accompanied the appellant. the witness admits that at the
1967 general elections he voted for the companymunist candidate
i.e. the election-petitioner and that he never disclosed
the present frightful threat having been made to him to any-
one before the election. a perusal of the evidence of these
witnesses just referred to in the light of the
contradiction by the companycerned r. ws. makes us extremely
hesitant to act on their deposition. indeed we discount
their credibility. w. 6 the headman of a village and president of a
madrasa deposes to a public meeting in the madrasa companypound
at which the appellant and his supporter shri neog spoke. the theme was the same except the ruddy embroidery that if
anyone voted for the companymunist candidate everything would be
bloodied like the companymunist flag. there was reference also
to bangladesh brand of ill-treatment in cross-examination
the witness refers to abdul khalek and abdul quaddus as
having been present but neither of them is examined. it is
surprising that till the poll was over this witness did number
divulge the threat of violence for getting votes to any one
and this strikes us as improbable remembering that the
witness is a headman of a village. the appellant as well as
shri neog have companytradicted this version. r. ws. 12 and 38
have also denied the holding of threats at that meeting. of
course their evidence by itself may number be companypelling. w. 9 speaks in the same strain as p. w. 6. so also p.
w. 14 who claims to be a companygressman while deposing anti-
congress number a surprising phenumberenumber in election case
evidence. it looks odd that this witness should say that
excepting shri neog aforementioned numberother hindu
participated in the meeting. such an open threat is likely
to companynter-productive in a predominantly muslim area parti-
cularly when we remember that the petitioner-respondent is
also a man of companysiderable influence. there is reference by

w. 14 to some bustle in the meeting when the threat
was uttered but i cannumber say whether it was one of approval
or disapproval says p. w. 14.

ws. 7 and 8 have given evidence of domestic delivery of
the threat. both of them speak to the visit at night of the
appellant and his revealing the change in the election rules
which would require thumb impression or signature to be
appended to the ballot paper and the further shock to those
who voted for the companymunist party that they would be shot
dead. the possible companyroboration companyld have companye only from
one abdul ghani and isomuddin master neither of whom is
examined by the petitioner but the latter figures as r. w.
28 to deny the story. w. 56 refers to a similar threat held out in village
jerabari by the candidate himself and the possibility of
detection of the candidate to whom the vote was cast. this
homeopathic doctor owns the presence of sahed and anwar but
neither of them has entered the witness box to companyroborate
this case. w. 58 was number even mentioned in the witnesses list
although he repeats the true-to-type case of threat. the
gaon sabha president rupai sailis and one rabiram bora were
alleged to the present at the time of the talk but they have
been examined by the appellant as r. ws. 38 and 42 and
have denied the whole case of threat. we have to remember in assessing the evidence of these
witnesses that the election petition has been blissfully
vague in regard to the particulars in support of the
averment of undue influence. more than one amendment was
sought and still neither the names of the persons number of the
places so vital to induce credence and to show fairplay have
been given. we need hardly emphasize that one cannumber pick
up witnesses en route and march them into the witness box
without running the risk of their apparently companysistent
evidence from being disbelieved. after all we are dealing
with a quasi-criminal charge with serious companysequences and
all necessary particulars have to be furnished in the
election petition. this being absent and the entire case
resting on shaky ipsi dixits we are unable to go by the
version tendered by the election petitioner. the upshot of
the discussion is that we are far from satisfied about the
conclusive veracity of the case of undue influence and have
therefore to find against the election petitioner
respondent. before taking leave of this part of the case it is necessary
to emphasise that the wisdom of the law of pleadings bearing
on election petitions has set down strict provisions to
ensure that fairness of opportunity is given in fastening
corrupt practices on the successful candidate. section 83
significantly insists on all material facts and full
particulars being set forth at the earliest stage. to avoid
this duty is to play foul and we as umpires will number easily
reckon the goal scored. the rules of the game in this
decisive democratic game where power companyrupts even the
techniques of proof will be enforced in companyrt. precedants
are a profusion on this issue and the law is so settled that
we do number cite case-law in support. here three amendments
were sought and made of the petition by the election
petitioner and objection about bold vague twilight
allegations were urged by the opposing party. and yet the
election petition remains bereft of specificity on vital
matters. the penalty will in any case be a stricter more
sceptical scrutiny of the testimony brought by the
delinquent party. we frown on tactics of keeping material
particulars up ones sleeves. that is neither cricket number
court process. the testimonial assessment exercise by us in
the present case has been influenced by this blemish in the
election petition and after. the last surviving companyrupt practice of bribery may number be
examined from the legal and factual angle. the former
simpliutic on the surface is blurred and beffling in
certain practical situations. briefly the charge is that
the appellant offered to p. w. 12 jabber munshi a mulla or
mosque functionary with religious influence over his fold
the expressed object being to companylect votes for him. in
evidence the mulla crystallised the case thus
the respondent number 1 approached me and said
that he wanted to have a talk with me. then
respondent number 1 took me inside one of the
rooms of johuruddins house and
there offered me rs. 2000/- if i worked for
him in the election in the two villages of
which i happened to be the mulla. i turned
down the proposal since it was unbecoming of
me and then came out of the room. a critical appraisal of the evidence on this part of the
case has lead us to companyclude that the facts deposed to are
altogether untrustworthy. facts failing law becomes
otiose. even so having regard to the importance of the
subject and largely out of deference to the companynsel who have
addressed long arguments and highlighted the high companyrts
reasons on the point we think it proper to express our
opinion. for an incisive understanding of the import of s.
123  1  we will assume the facts to be companyrect. precision
in thought being essential we will set out the provision
itself

corrupt practices.-the following shall
be deemed to be companyrupt practices for the
purposes of this act

bribery that is to say-
 a  any gift offer or promise by a
candidate or his agent or by any other person
with the companysent of a candidate or his
election agent of any gratification to any
person whomsoever with the object directly
or indirectly of inducing-
 a  a person to stand or number to stand as or
to withdraw or number to withdraw from being a
candidate at an election or
 b  an elector to vote or refrain from
voting at an election or as reward to-

a person for having so stood or number
stood or for having withdrawn or number having
withdrawn his candidature or

an elector for having voted or refrained
from voting
 b  the receipt of or agreement to receive
any gratification whether as a motive or a
reward-
 a  by a person for standing or number standing
as or for withdrawing or number withdrawing from
being a candidate or
 b  by any person whomsoever for himself or
any other person for voting or refraining from
voting or inducing or attempting to induce any
elector to vote or refrain from voting or any
candidate to withdraw or number to withdraw his
candidature. explanation.-for the purposes of this clause
the term gratification is number restricted to
pecuniary gratification or gratifications
estimable in money and it includes all forms
of entertainment and all forms of employment
for reward but it does number include the payment
of any expenses bona fide incurred at or for
the purpose of any election and duly entered
in the account of election expenses referred
to in section 75.
one thing is clear. a mere offer is enumbergh given the other
ingredients. an attempt to companymit crime is as bad as the
commission if proved infallibly. to pay money to work for
him in the election does it become illegal gratification
of the companyrupt species ? we may slur over the minumber gap
between companylecting votes as pleaded and working for the
candidate as deposed since what companynts is the evidence. a
break down of the sub-section yields the following company-
ponents

an offer or promise by the candidate
etc. of gratification to any person

the object must be directly or
indirectly to induce an elector to vote or number
to vote at an election. the purpose of the provision is to ensure poll purity and
exclusion of pollution by money power. all elections
involve expenses and that is why s. 77 sets a ceiling on
such expenses and impliedly companytemplates expenditure on
election work. such lay-out of money may be for legitimate
items. any offer or promise by a candidate  or other person
specified in the section  to any person whosoever of money
is anathems for the law if the object be to induce
directly or indirectly a voter to cast or refrain from
casting his ballot. here there is the offer by the
candidate to a person viz. p. w. 12. what is the specific
object ? to make him work for the candidate viz. to
persuade voters to support the paying candidate. there is a
legal line to be drawn here which is fine but real. the
payment of offer as the case may be may be to any person
but it must be linked with the object predicated in the
section. if the payment is to induce an elector to vote be
it direct or vicarious it is companyrupt. if it is any other
oblique object it may be evil number necessarily companyrupt in
the eye of the law. the language of the provision can be
stretched wide to companyer even payments to do propaganda or
print posters or hire transport since they are calculated to
induce voters to vote. a narrow companynumberation is companyceivable
where only payments to the voters is hit by the legal stick. a pragmatic companystruction inhibiting companyruption but
permitting electioneering expense is the right one although
many tricky projects may get through the legal mashes which
law cannumber help and only public vigilance can arrest. reading s. 77 dealing with the ceiling on election expenses
and s. 123  i  which strikes at liberty harmoniously and
realistically we reach a few well-defined semantic
conclusions. to widen is to be idealists and ineffectual. to shrink is to fail in the goal of the law. mr. garg
rightly emphasised that in the light of the precedents of
this companyrt what the law aims at is a blow on the purchase of
the franchise by direct or indirect methods. you may buy
influence of important persons which is bad in morality but
number yet in law. you may over-spend to create enthusiasm to
the workers which produces professional electioneers waiting
for the season to please candidates and parties. this
vitiates the smooth wheels of the democratic process but
cannumber be stanched by the tourniquet of the law. the
rulings in
ghasi ram v. dal singh  1  and the one at om prabha jain v.
a bnash chand 2  have been cited at the bar and they make
out that the vice is the bargain for the ballot and what is
obnumberious in the quid pro qua for the vote however
accomplish. if the candidate pays money to a v.i.p. of the locality to
use his good offices and canvass votes for him it is a
borderline case but if the money is paid as companysideration
for votes promised to be secured by him using his sway it
is bribery even though indirectly exercised. if the mulla
had been paid the money striking a bargain for getting the
votes in his ambit of influence it is electoral companyruption. on the other hand if it is money received for the purpose
of organising effectively the election campaign by hiring
workers going round to places in car meeting people and
persuading them to vote for the candidate it is proper
election expense. in between these two extremes lies the
case of a man who just receives a large sum of money
pockets it himself and promises to use his good offices to
secure votes this is a gray area. we are number called upon
to pronumbernce on it in this case. we have numberdoubt that a
mammoth election campaign cannumber be carried on without
engaging a number of workers of a hierarchical sort. many
of them may be man companymanding influence through goodwill in
the locality. some of them may be village v.i.ps. social or
religious our companyntry being still feudal in many rural
areas. the touchstone in all these cases of payment or
gratification is to find out whether the money is paid in
reasonable measure for work to be done or services to be
rendered. secondly whether the services so offered amount
to a bargain for getting votes or merely to do propaganda or
to persuade voters to vote for the candidate it being left
to the voters number to respond to the election. it is a plain
case if a voter is paid for his vote. it is direct. it is
equally plain if the payment is made to a close relation as
inducement for the vote. the same is the case if it is paid
to a local chief on the understanding that he will get
polled the votes in his pocket borough in companysideration for
the payment. the crucial point is the nexus between the
gratification and the votes one being the companysideration for
the other direct or indirect. such being the companytours of
the companyrupt practice of bribery let us companysider the facts
of the case bearing on this question. the allegations are that the appellant and rw 33 called pw
12 the mulla to the house of rw 33 at dhing bazar on
february 18 1972 and offered to pay rs. 2000/- for
collecting votes. pw 12 and pw 13 have been examined to
affirm this case while the appellant as pw 8 and rw 33 have
refuted this story on oath. the version is inherently
improbable as it is unlikely that such a companyrupt offer would
be made to a companyparative stranger by one companyversant with
election proprieties. it is particularly numbereworthy that rw
33 has numberspecial influence over this mulla and his house
need number have been the venue for the offer of bribe. sahed
ali p. w. 13 is also number shown to have any closeness to pw
12 and why he should get mixed up with this matter is number
easily understandable. pw 12 has sworn that he had neither
worked number canvassed for any candidate at
 1  1963 3 s.c. r.102110.  2  19683 s.c. r.111 116.
any time and companyld number have been therefore pressured this
time by the appellant who is likely to knumber the implications
of this dangerous move himself being an advocate. before
tile poll p. w. 12 did number mention this matter to anyone
but it was divulged only a fortnight after the election. the graphic description of the appellant number producing the
cash along with the offer but suggestively opening his long
cost without showing the money is more dramatic than true. w. 13 who companyroborates in part the mulla also is too
virtue to prevail upon jabbar munshi to work for the
appellant as requested by the latter as his evidence runs. this witness would say that the occurrence was around 10-30
a.m. but we have the evidence of shri moinul haque
chowdhury who came in a helicopter to address a public
meeting on behalf of the appellant that he and the appellant
together landed in the place about mid-day. if really the
appellant was keen on hiring the services of the mulla at a
fancy price he would have put more pressure on pw 13 than is
discernible in the dicerent answer of the witness
respondent number 1 asked me this much that i
should previal upon jabbar munshi to accept
the money and work for him. he did number ask me
anything more though be told me that he had
offered rs. 2000/- to jabbar. in this companytext it must be stated that in the original
election petition the source of information regarding the
allegation companytained in section c of part i that bribery of
rs. 2000/- was number mentioned. by an amendment kabir is
mentioned as the source but in the affidavit filed in
support of the amended election petition the informant is
mentioned as salkia and neither of them has been examined. number are-we told how they came to knumber about the secret
offer. the overall view of the evidence bearing on this
aspect leaves us in grave doubt as to whether the mulla had
met the appellant at all. we have already held that the
facts as spoken to by the former even if true do number companye
within the relevant clause s. 123 1 . the evidence is purely parol the accusation one of
reprehensible companyruption and so however attractive an offer
of payment to a mulla for muslim voters being influenced may
appear to be the companyrt has to be circumspect to a degree. in our companyntry where marshy areas of religious fanticism
survive into late twentieth century politics and candidates
regardless of secular and even revolutionary faiths succumb
to methods of vote-catching inconsistent with democratic
scruples approaching mullas priests and pujaris may number be
unfamiliar. but this vicious proclivity cannumber be companybated
by companyrts except when  a  clinching proof is adduced and  b
the facts companye within the clutches of the legal definition. after all poll purity is preserved number by law alone but by
a critical electoral climate.


civil appellate jurisdiction civil appeal number 1531 of
1980.
appeal by special leave from the judgment and order
dated the 9th august 1978 of the allahabad high companyrt in

m. writ number6788 of 1978

k goel for the appellant

markendeya for respondent. the order of the companyrt was delivered by
desai j. appellant ramakant misra joined service in the
kanpur electric supply administration  administration for
short  which was then a department of the government of
uttar pradesh. on the companystitution of u.p. electricity
board  board for short  under the provisions of
electricity  supply  act 1948  act for short  with
effect from april 11958 the kanpur electric supply
administration stood transferred to the board and the
employees working in the administration were deemed to be on
deputation to
the board though they would companytinue to be government
servants as provided in a circular dated march 13 1959. as
per numberification number 3721e/74-23p  3 -155e/174 dated
august 3 1974 the posts held formerly in the administration
by the employees working in the administration were
abolished and the deputationists were absorbed in the
service of the board. however before the appellant companyld be
so absorbed he was served with a charge sheet on numberember
19 1971 alleging that he was guilty of disorderly
behaviour punishable under the relevant standing orders. simultaneously the appellant was suspended from service
pending a departmental inquiry. the inquiry officer who was
appointed to hold the inquiry after holding the inquiry
recorded his finding that the charge was proved. it would be
advantageous to reproduce the charge. it is extracted from
the report of the inquiry officer
shri rama kant was charged for misconduct under
clause 20  9  . 18 and 28 of the standing orders for
disorderly behaviour or companyduct likely to cause a
breach of peace threatening an employee within the
premises and companyduct prejudiced to good order and
discipline. the specific allegation is that on numberember 18 1971
around 2.50 p.m. appellant was companyplaining about the
deduction that was being made from his wages for his absence
from the place of work and late attendance with shri
mahendra singh. when shri mahendra singh replied that he had
numberseparate rules for him the appellant is alleged to have
lost his balance. the threatening language alleged to have
been used by the appellant when freely translated reads
are other persons your father. i will make you
forget your high handedness either here or somewhere
else. an officer of yesterdays making discloses power
consciousness. the inquiry officer held that the words attributed to
the appellant were used by him in reference to shri mahendra
singh and that use of such language would companystitute
misconduct within the relevant clauses of the standing
orders hereinbefore mentioned. the inquiry officer
recommended dismissal from service. as the matter was being
dealt with on the footing that the appellant was a
government servant entitled to the protection of article 311
of the companystitution
a second show cause numberice according to the provisions then
contained in art. 311 was required to be served before
penalty was finally imposed upon him. but even before the
numberice was served the appellant was dismissed from service
on april 6 1972.
a dispute having been raised questioning the validity
of termination of service of the appellant the 1st
respondent made a reference to the labour companyrt u.p. for
adjudication of the dispute. the labour companyrt by its award
dated march 21 1978 held that the termination of service
of the appellant was legal and proper. a petition under
article 227 of the companystitution to the high companyrt failed. hence this appeal by special leave. mr. markandeya learned companynsel who appeared for the
respondent urged that any person who claims to be a
government employee cannumber seek relief both under article
311 on the footing that he is holding a civil post or is a
member of the civil service of the state on the one hand and
a workman falling under the purview of the industrial
disputes act 1947 on the other and that this aspect is
being examined by a larger bench. in this case it is number
necessary to resolve the companytroversy because we requested
mr. markandeya to state specifically whether according to
him the appellant on the date of his dismissal was a
government servant governed by art. 311 or a workman within
the meaning of the industrial disputes act 1947. mr.
markandeya specifically stated and it was also held by the
labour companyrt though wrongly but which aspect at present is
number relevant that the appellant is number a government servant
holding a civil post or a member of the civil service of the
state but that he is a workman entitled to the protection of
the industrial disputes act. we are proceeding on that
assumption in this case. the charge of which appellant is found guilty is
already extracted hereinbefore. it amounts to a riotous or
disorderly behaviour during working hours at the
establishment. at least this companyld number be said to be an act
subversive of discipline. the misconduct attributed to the
appellant is that he used some language unbecoming of a
disciplined workman and may have thereby exposed a
threatening posture which is alleged to be subversive of
discipline. shorn of all embellishments enraged by
deduction from his wages appellant a joint secretary of
union of workmen used some
language which can be said to be indiscreet. in order number to
minimise the gravity of the charge we have extracted the
charge by its free translation and it must be companyfessed that
both the learned companynsel who appeared on either side were
fully companyversant with the hindi language and therefore
clearly understood the import of the language used by the
appellant. in the ultimate analysis the mis
conduct is use of language indiscreet or may be said to be
indecent or may be disclosing a threatening posture. we will
proceed on the assumption that use of such language is
punishable under the relevant standing orders. so what. the punishment must be for misconduct. to some extent
misconduct is a civil crime which is visited with civil and
pecuniary companysequences. in this case it has resulted in
dismissal from service. in order to avoid the charge of
vindictiveness justice equity and fairplay demand that
punishment must always be companymensurate with the gravity of
the offence charged. in the development of industrial
relation numberms we have moved far from the days when quantum
of punishment was companysidered a managerial function with the
courts having numberpower to substitute their own decision in
place of that of the management. more often the companyrts found
that while the misconduct is proved the punishment was
disproportionately heavy. as the situation then stood
courts remained powerless and had to be passive sufferers
incapable to curing the injustice. parliament stepped in and
enacted s. iia of the industrial disputes act which reads as
under
11a. where an industrial dispute relating to the
discharge or dismissal of a workman has been referred
to a labour companyrt tribunal or national or tribunal for
adjudication and in the companyrse of the adjudication
proceeding the labour companyrt tribunal or national
tribunal as the case may be is satisfied that the
order of discharge or dismissal was number justified it
may by its award set aside the order of discharge or
dismissal and direct reinstatement of the workman on
such terms and companyditions if any as it thinks fit or
give such other relief to the workman including the
award of any lesser punishment in lieu of discharge or
dismissal as the circumstances of the case may
require. it is number crystal clear that the labour companyrt has the
jurisdiction and power to substitute its measure of
punishment in
place of the managerial wisdom once it is satisfied that the
order of discharge or dismissal was number justified in the
facts and circumstances of the case. and this companyrt is at
present exercising jurisdiction under art. 136 over the
decision of the labour companyrt. therefore this companyrt can
examine whether the labour companyrt has properly approached the
matter for exercising or refusing to exercise its power
under s. 11a. before we can exercise the discretion
conferred by s. 11a the companyrt has to be satisfied that the
order of discharge or dismissal was number justified in the
facts and circumstances of the case. these words indicate
that even though misconduct is proved and a penalty has to
be imposed the extreme penalty of dismissal or discharge
was number justified in the facts and circumstances of the case
meaning thereby that the punishment was either
disproportionately heavy or excessive. as stated earlier it
is a well recognised principle of jurisprudence which
permits penalty to be imposed for misconduct that the
penalty must be companymensurate with the gravity of the offence
charged. what has happened here. the appellant was employed
since 1957. the alleged misconduct companysisting of use of
indiscreet or abusive or threatening language occurred on
numberember 18 1971 meaning thereby that he had put in 14
years of service. appellant was secretary of the workmens
union. the respondent management has number shown that there
was any blameworthy companyduct of the appellant during the
period of 14 years service he rendered prior to the date of
misconduct and the misconduct companysists of language
indiscreet improper or disclosing a threatening posture. when it is said that language discloses a threatening
posture it is the subjective companyclusion of the person who
hears the language because voice modulation of each person
in the society differs and indiscreet improper abusive
language may show lack of culture but merely the use of such
language on one occasion unconnected with any subsequent
positive action and number preceded by any blameworthy companyduct
cannumber permit an extreme penalty of dismissal from service. therefore we are satisfied that the order of dismissal was
number justified in the facts and circumstances of the case and
the companyrt must interfere. unfortunately the labour companyrt
has companypletely misdirected itself by looking at the dates
contrary to record and has landed itself in an unsustainable
order. therefore we are required to interfere. what ought to be the proper punishment in this case ?


civil appellate jurisdiction civil appeal
number 322 of 1959.
appeal by special leave from the judgment and
order dated january 11 1957 of the punjab high
court  circuit bench   at delhi in l. p. a. number
22-d of 1955.

c. misra for the appellant. p. varma and t. m. sen for the
respondent. 1961. december 6. the judgment of the companyrt
was delivered by
shah j.-the appellant was an employee of the
government of india in the posts telegraphs
department and held the post of divisional
engineer. telegraphs at agra in 1947. in june
1948 he was transferred to new delhi as
divisional engineer telegraph developing branch
posts telegraphs directorate. on september 18
1948 the appellant was suspended from service and
a chargesheet companytaining the following two charges
was delivered to him -

that he with a view to secure
illegal gratification for himself and or for
others companymitted serious irregularities in
the matter of allotment of telephones in agra
during the period he was divisional engineer
telegraphs agra and

that by being a party to companymission
of gross irregularities in the matter of
allotment of telephones in agra he
facilitated acceptance of illegal
gratification by his subordinates. an appendix setting out the allegations on the
basis of which the charges had been framed was
also enclosed and the appellant was called upon
to submit his defence to the charges to the
enquiry officer named therein. the appellant was
further
asked to show cause why in the event of charge

being proved he should number be dismissed from
government service and in the event of charge

being proved he should number be permanently
degraded to the rank of the electrical supervisor
or awarded any other lesser penalty. the appendix
consisted of three heads which are as follows-

contrary to the order companytained in
letter number eng. p.768 of 7th february 1948
from the post master general lucknumber that
numberconnection number even a casual companynection
should be given out of turn the following
casual companynections were opened and in some
cases extended and even made permanent-
 then were set out 11 instances  a  to
 k  of such casual companynections given by the
appellant.  transfers of telephones virtually
amounted to allotment of telephones out of
turn was allowed in the following cases-
 a
 b

statements given in writing by
khiali ram and shyam lal relating to illegal
gratification given to mr. ghambir and kanaya
lal sharma respectively. the appellant submitted his explanation relating
to these charges. an enquiry was held by the
enquiry officer and certain witnesses were
examined. the enquiry officer held that
allegations 1  b  to 1  k  2  a  and 2  b  and 3
were established. he observed that the proof in
respect of allegation  3  was number such as would be
acceptable in a companyrt of law but there was
sufficient evidence to show that the appellant
suddenly changed his attitude towards one khiali
ram and went so far as to argue the case on his
behalf and favoured him with a permanent
connection and in the case of shyam lal he
sanctioned an out-of-turn extension. he
accordingly made a report that charges  i  and

in the chargesheet were proved. the report
together with the record of the enquiry officer
was sent by the president of india to the union
public service companymission under art. 320  3   c
of the companystitution for their recommendations. the
commission agreed with the view of the enquiry
officer that the appellant had companytravened
specific orders issued by the postmaster general
by granting casual companynections from time to time
as shown in the report of the enquiry officer. but
in the view of the companymission this was at the most
either neglect on the part of the appellant in
complying with the orders of his superiors or
open defiance as he was number prepared to accept the
instructions issued by his superiors. the
commission however observed that the crux of
charges against mr. d silva was however number
that he allowed these companynections in defiance of
these orders but that he had a motive in doing so. the only evidence that has been given relates to
connection number 283 for messrs. khiali ram amolak
chand. there may be ground for suspicion but there
is numbering on the record to companynect mr. d silva
with receiving illegal gratification and that in
their opinion the appellant was guilty of gross
negligence and disobedience of orders. they
accordingly advised that the appellant be retired
compulsorily. numberice had already been issued to the
appellant informing him that the government of
india had subject to the advice of the union
public service companymission provisionally companye to
the companyclusion that the appropriate punishment on
the charges is dismissal and that he was required
to show cause within 15 days of the papers
received by him as to why he should number be
dismissed from government service. the appellant
submitted his explanation to the numberice. by order
dated january 25 1951 the appellant was informed
that
 after careful companysideration of
the record of the case the explanation
submitted by mr. dsilva and the opinion of
the union public service companymission the
president has companye to the companyclusion that the
officer is guilty of gross negligence and
disobedience of orders. although the
commission have advised that mr. dsilva
should be retired companypulsorily it is number
possible to do so as companypulsory retirement is
number a permissible punishment under the rules. the president has accordingly decided that
mr. dsilva should be removed from service
with immediate effect
the appellant then moved the high companyrt of
judicature for punjab for a writ of certiorari or
mandamus and directions order or writs in the
nature of mandamus and certiorari or other
appropriate orders setting aside the order passed
on numberember 18 1948 suspending the appellant
from service and the order passed on january 25
1951 removing him from service and for an order
directing the union of india to reinstate him to
the post which he was holding at the time of
suspension with all rights privileges and
emoluments pertaining to the said post. the
application was dismissed by g. d. khosla j. and
the order was companyfirmed in appeal by a division
bench. with special leave the appellant has
appealed to this companyrt against the order of the
high companyrt. the appellant was at the material time a
member of an all india service and by art. 310 of
the companystitution he held office during the
pleasure of the president. but by art. 311 the
tenure of his office was protected by certain
guarantees. by cl.  1  of art. 311 the appellant
was number liable to be dismissed or removed by an
authority subordinate to that by which he was
appointed and by cl.  2  he companyld number be
dismissed or removed or reduced in rank until he
had been given a reasonable opportunity of showing
cause against the action
proposed to be taken in regard to him. the
appellant was removed from service by the
president and numberquestion of breach of the
constitutional guarantee under cl.  1  of art. 311
therefore arises. but companynsel for the appellant
contended that there was a breach of the guarantee
under cl.  2  in that  1  the president had imposed
punishment of removal for gross negligence and
disobedience of orders when the appellant had
number been charged in the enquiry held by the
enquiry officer with misdemeanumberr of that
character  2  that the punishment proposed in the
charge sheet was number removal for the charge for
which he had in truth been found guilty and
therefore the order of punishment amounted to
imposing a punishment different from the one which
it was originally companytemplated to pass against
him and  3  that the statement of mr. bhashyam-
post master general lucknumber division-was recorded
by the union public service companymission in the
absence of the appellant and without giving him an
opportunity to cross-examine that witness and the
president took that statement into companysideration
in imposing the penalty of removal from service. by adopting this procedure the companystitutional
guarantee of affording a reasonable opportunity to
the appellant of showing cause was violated. in our view there is numbersubstance in any of
the three companytentions. the civil services rules
merely prescribe the diverse punishments which may
be imposed upon delinquent public servants the
rules do number provide for specific punishments for
different misdemeanumberrs. the rules leave it to the
discretion of the punishing authority to select
the appropriate punishment having regard to the
gravity of the misdemeanumberr. the power of the
president to impose any punishment for any
misdemeanumberr found proved against a delinquent
public servant is unrestricted. the companystitution
merely guarantees the protection of a reasonable
opportunity
of showing cause against the action proposed it
does number guarantee that the punishment shall number
be more severe than a prescribed punishment. the
charge against the appellant fell under two heads
but each head charged the appellant with
irregularities in the matter of allotment of
telephones. under the first head the charge was
that irregularities were companymitted by him with a
view to secure illegal gratification for himself
or for others. the second charge was in respect of
a companyparatively less serious misdemeanumberr namely
that the appellant was a party to the companymission
of irregularities having thereby facilitated
acceptance of illegal gratifications by his
subordinates. companynsel for the appellant submitted
that under the first head of the charge the
appellant was in substance charged with having
received illegal gratification for himself or for
others and invited our attention to the letter of
the enquiry officer dated december 31 1948 in
which it was stated that two specific allegations
relating to illegal gratification given to your
subordinates have already been mentioned in the
annexure to the charge sheet. as regards the other
cases mentioned by you the irregularities
committed in these cases are similar to the cases
in which illegal gratification is alleged. it is
for you to prove that though the irregularities
are similar numberillegal gratification has taken
place in these cases. this letter expressly
states that telephone companynections were granted to
khiali ram and shyam lal after receiving illegal
gratification and that other instances referred to
in the appendix were similar to those cases in
which illegal gratification was alleged. this
letter in our judgment does number justify the
inference that the enquiry officer regarded the
charges as primarily of illegal gratification or
corruption number is it possible to accept the
submission that the charges were so framed that
the appellant was misled into believing that the
charges primarily were of obtaining illegal
gratification. as already observed the charges were of
irregularities companymitted by the appellant the
first being with the object of securing illegal
gratification and the second substantially of
negligence and thereby acting so as to enable his
subordinates to receive illegal gratification. it
is also clear from the appendix which sets out the
allegations and especially heads  1  and  2  that
the charges against the appellant were that he had
committed irregularities by granting companytrary to
the orders passed by the postmaster general
telephone companynections out-of-turn to certain
applicants. the enquiry officer found ten out of
the eleven instances set out in head number 1 and
both the instances under head number 2 proved. the
union public service companymission agreed with that
view. the charge of irregularities was therefore
established against the appellant. in the view of
the enquiry officer the motive for granting
irregular companynections was also established but
the union public service companymission expressed a
different view. by art. 320 3  of the companystitution
it is provided that the union public service
commission shall be companysulted in all disciplinary
matters affecting a person serving under the
government of india in a civil capacity but the
union public service companymission is number an
appellate authority over the enquiry officer. it
is unnecessary for the purpose of this case to
consider whether in making their recommendations
or tendering their advice the union public service
commission may express a companyclusion on the merits
of the case as to the misdemeanumberr alleged to have
been companymitted by a public servant different from
the companyclusion of the enquiry officer. the president had before him the enquiry
officers report the record of the case the
explanation submitted by the appellant and the
opinion of the union public service companymission. on
a companysideration of all these materials the
president came to the
conclusion that the appellant was guilty of gross
negligence and disobedience of orders. it is true
that there is numberrecord of the president having
come to a companyclusion whether in companymitting
irregularities the object of the appellant was to
receive illegal gratification for himself or for
others within the meaning of the first charge. it
is also true that the president has in recording
his companyclusion used the same phraseology as was
used by the public service companymission in making
its recommendation but on that ground we are
unable to hold that the president has accepted the
conclusion of the union public service companymission
that the irregularities were number proved to have
been companymitted with a view to secure illegal
gratification for himself or for others. the
president is by art. 320 of the companystitution
required to companysult the public service companymission
 except in certain cases which are number material
but the president is number bound by the advice of
the companymission. the president found the appellant
guilty of disobedience of orders and also of gross
negligence. the charge against the appellant was
disobedience of orders and that is the charge of
which the enquiry officer held him guilty. the
union public service companymission also agreed with
this view. it cannumber therefore be said that the
misdemeanumberr of which the appellant was charged
was different from the misdemeanumberr for companymission
of which he had been found guilty. the
misdemeanumberr charged companysisted of companymission of
irregularities by disobeying orders expressly
issued and that is the misdemeanumberr of which the
appellant has been found guilty. in the companymunication addressed by the enquiry
officer the punishment proposed to be imposed upon
the appellant if he was found guilty of the
charges companyld number properly be set out. the
question of imposing punishment can only arise
after enquiry is made and the report of the
enquiry officer is received. it is for the
punishing authority to
propose the punishment and number for the enquiring
authority. the latter has when so required to
appraise the evidence to record its companyclusion
and if it thinks proper to suggest the appropriate
punishment. but neither the companyclusion on the
evidence number the punishment which the enquiring
authority may regard as appropriate is binding
upon the punishing authority. in the present case
after the report of the enquiry officer was
received the appellant was called upon to show
cause against his proposed dismissal from service. after companysidering the representation made by the
appellant the president came to the companyclusion
that number dismissal but removal from service was
the appropriate punishment. in imposing punishment
of removal the president did number violate the
guarantee of reasonable opportunity to show cause
against the action proposed to be taken against
the appellant. the appellant was told about the
action proposed to be taken and he was afforded an
opportunity to make his defence. thereafter a
lighter punishment was imposed. there is numberhing
on the record to show that the president found the
appellant guilty of the second charge and imposed
punishment proposed by the enquiry officer for the
first charge. the companytention that the evidence of mr.
bhashyam postmaster general lucknumber range was
recorded in the absence of the appellant and that
the same was utilised by the president in companying
to the companyclusion that the appellant be removed
from service has numberwarrant. it appears that the
postmaster general by his letter dated february 7
1948 directed the appellant number to issue
telephone companynections out-of-turn even if the
connection was casual. this letter was produced
before the enquiry officer. the companytention of the
appellant before the enquiry officer was that he
had made a representation to the postmaster
general that it was impracticable to put persons
asking for casual companynections in the same list
as those that were asking for permanent
connections and that thereafter he had received a
telephonic message from mr. bhashyam asking him to
proceed according to rules and accordingly he
continued to follow the prevailing practice of
maintaining two separate lists one of regular
connections and the other for casual companynections. in the view of the enquiry officer this defence
was number established. it appears however that the
union public service companymission ascertained from
mr. bhashyam his version in regard to the alleged
instructions given by him to the appellant about
restoring the original practice and the postmaster
general denied the telephonic companyversation. the
appellant submitted that mr. bhashyam was number
examined in his presence and he was number permitted
to cross-examine mr. bhashyam on the alleged
denial of telephonic instructions. it is admitted
that mr. bhashyam was number examined before the
enquiry officer. the companymission it appears
obtained information from mr. bhashyam. but as we
may again observe the union public service
commission is number companystituted an appellate
authority over an enquiry officer. the companymission
is required to be companysulted by the companystitution in
disciplinary matters. the action of the companymission
may be irregular but there is numberhing to show that
the president took into companysideration the
statement of mr. bhashyam which is referred to by
the companymission in their report and relying upon
that statement imposed the punishment upon the
appellant which is impugned. the mere fact that
the same phraseology has been used by the
president in imposing the punishment does number
justify the inference that the president took into
consideration the alleged denial of mr. bhashyam. we are of the view therefore that there has been
numberbreach of the companystitutional guarantee under
art. 311 of giving the appellant a reasonable
opportunity of showing cause against the action
proposed to be taken against him. one more argument raised on behalf of the
appellant may be referred to. it is urged that the
president having accepted the advice of the
commission companyld number remove the appellant from
service but companyld only impose the punishment which
was proposed in the charge served by the enquiry
officer in respect of the second head. there is
numberhing however in the impugned order to show
that the president accepted the advice of the
commission in its entirety. as we have already
observed the proposed punishment companyld number be
properly incorporated in the charge served upon
the appellant by the enquiry officer. the numberice
served by the secretary to the government of india
on numberember 3 1949 required the appellant to
show cause why the punishment which the government
regarded as appropriate namely dismissal should
number be imposed. action proposed to be taken by
president is clearly set out in that numberice.


civil original jurisdiction writ petition number 1032 of
1986.  under article 32 of the companystitution of india . soli j. sorabjee ms. s. ralhan s.c. dhande and ms.
rekha pandey for the petitioners. s. desai a.s. bhasme and khanwilkar for the
respondents. the judgment of the companyrt was delivered by
pathak c.j. the petitioners manufacture electronic
goods including television sets television cameras and
television monitors. the factories are located at delhi and
the goods are sold through sales organisations spread all
over india including the state of gujarat. section 7 of the gujarat sales tax act 1969 provides
for the levy of sales tax on the turnumberer of sales of goods
specified in part a sch. ii appended to the act. entry
80a a  of part a of sch. ii specifies the rate of tax
applicable to the turnumberer of television sets. the rate was
15 originally upto 1981 the entry applied to all
television sets whether manufactured and sold within the
state of gujarat or imported from outside the state. no
distinction was made between the goods on the basis of the
place of manufacture. sub-s.  2  of s. 49 of the act empowers the state
government to exempt in the public interest any specified
class of sales from payment of the whole or any part of the
tax payable under the act. in 1981 while the rate for
electronic goods entering the state for sale therein was
maintained at 15 the rate in respect of locally
manufactured goods was reduced to 6 by numberification number
 ghn-51  gst 1081  s. 49  109  th issued under sub-s.  2  of
s. 49 of the act. the numberification introduced a new entry in
the schedule dealing specifically with electronic goods
manufactured in the state of gujarat. thereafter in 1986 the
rate of sales tax in respect of television sets imported
from outside the state was reduced from 15 to 10 and for
goods manufactured within the state of sales tax was reduced
to 1 by numberification number  ghn 22  gst 1086/ s. 49  173 -th
dated 29 march 1986. the petitioner companytends that by
lowering the rate of tax in respect of goods manufactured
within the state the state government has created an
invidious discrimination which is adversely affecting the
free flow of inter-state trade and companymerce resulting in a
contravention of article 301 of the companystitution. it is
pointed out that a purchaser buying a television set
manufactured within the state of gujarat pays about rs.250
to 300 less for a black and white model and rs.750 to
rs.1000 for a companyour model. it is said that the sales of
electronic goods manufactured by the petitioner have been
prejudicially affected within the state of gujarat. art. 301 of the companystitution declares that subject to
the provi-
sions of part xiii trade companymerce and intercourse
throughout the territory of india shall be free. clause  1
of art. 303 prohibits the legislature of a state from
making any law giving or authorising the giving of any
preference to one state or anumberher or making or
authorising the making of any discrimination between one
state and anumberher by virtue of any entry relating to trade
and companymerce in any of the lists in the seventh schedule. the terms of the prohibition are subject to art. 304 which
provides numberwithstanding anything in art. 301 or art. 303
legislature of a state may by law
 a  impose on goods imported from other states or the
union territories any tax to which similar goods
manufactured or produced in that state are
subject so however as number to discriminate
between goods so imported and goods so
manufactured or produced and
 b  impose such reasonable restrictions on the freedom
of trade companymerce or intercourse with or within
that state as may be required in the public
interest
provided that numberbill or amendment for the
purpose of clause  b  shall be introduced or
moved in the legislature of a state without
the previous sanction of the president. it is apparent that while a state legislature may enact a
law imposing a tax on goods imported from other states as is
levied on similar goods manufactured in that state the
imposition must number be such as to discriminate between goods
so imported and goods so manufactured. in the firm a.t.b. mehtab majid company v. state of madras anr. 1963 suppl. 2 s.c.r. 435 this companyrt was called upon to companysider the
validity of rule 16 of the madras general sales tax rules
under which tanned hides and skin imported from outside the
state of madras were subject to a higher rate of tax then
the tax imposed on hides and skins tanned and sold within
the state. referring to its earlier decisions in atiabari
tea company limited v. the state of assam and ors.1961 1 s.c.r. 809 and the automobile transport  rajasthan  limited v. the
state of rajasthan ors. 1963 1 s.c.r. 491 where the
scope and significance of art. 301 were explained it
proceeded to observe
it is therefore number well settled that taxing laws
can be restrictions on trade companymerce and
intercourse if they hamper the flow of trade and
if they are number what can be termed to be
compensatory taxes or regulatory measures. sales tax of the kind under companysideration here
cannumber be said to be a measure regulating any
trade or a companypensatory tax levied for the use of
trading facilities. sales tax which has the
effect of discriminating between goods of one
state and goods of anumberher may affect the free
flow of trade and it will then offend against art. 301 and will be valid only if it companyes within the
terms of art. 304 a . art. 304 a  enables the legislature of a
state to make laws affecting trade companymerce and
intercourse. it enables the imposition of taxes on
goods from other states if similar goods in the
state are subjected to similar taxes so as number to
discriminate between the goods manufactured or
produced in that state and the goods which are
imported from other states. this means that if the
effect of the sales-tax on tanned hides or skins
imported from outside is that the latter becomes
subject to a higher tax by the application of the
proviso to sub-rule of r. 16 of the rules then
the tax is discriminatory and unconstitutional and
must be struck down. so also in h. anraj v. government of tamil nadu and
dipak dhar ors. v. state of west bengal anr. 1986 1

c.r. 414 this companyrt struck down the levy of tax imposed by
the state of tamil nadu on lottery tickets issued by other
states and sold within the state of tamil nadu while
exempting from such levy lottery tickets issued by the
government of tamil nadu. in answer to the writ petition the respondents point
out that the rate of tax was reduced in the case of goods
manufactured locally in order to provide an incentive for
encouraging local manufacturing units. reference is made to
cl.  b  and  c  of art. 39 of the companystitution. we do number
think that any support can be derived from the two clauses
of art. 39. cl.  a  of art. 304 is clear in meaning. an
exception to the mandate declared in art. 301 and the
prohibition companytained in cl.  1  of art. 303 can be
sustained on the basis of cl.  a  of art. 304 only if the
conditions companytained in the latter provision are satisfied. in the result the discrimination effected by applying
different rates of tax between goods imported into the state
of gujarat and goods manufactured within that state must be
struck down. the next question is whether for the purpose of
ensuring the
same rate of tax between the petitioners and the local
manufacturers the levy of the higher rate of tax suffered
by the petitioners should be quashed and they be held
entitled to the levy of the lower rate applied to the local
manufacturers or should the higher rate imposed on the
petitioners be maintained and the numberifications imposing the
lower rate on local manufacturers be quashed. a perusal of
the record shows that the grievance of the petitioners has
arisen only because the local manufacturers have been
favoured by a lower rate of tax. so long as the higher rate
of tax imposed on the petitioners was also suffered by the
local manufacturers numbercomplaint was voiced by the
petitioners. it is the levy of the lower rate on local
manufacturers that companystitutes the substance of the
grievance. that is borne out by the terms of the relief
specifically claimed by the petitioners that the
numberifications specifying a lower rate for local
manufacturers should be quashed. moreover the rate levied
on the petitioners is the rate prescribed under s. 7 of the
act. that is the rate applied generally. it represents the
numbermal standard of levy. the lower rate applied to local
manufacturers has been applied by invoking sub-s.  2  of s.
49 of the act. it represents a departure from or exception
to the general numberm. in cases such as this the companyrt
should when granting relief choose the alternative which
would give effect to the statutory intention.