civil appellate jurisdiction civil appeal number725 of
1965.
appeal by special leave from the judgment and order dated
february 3 1964 of the allahabad-high companyrt in f.a.f.o. number
122 of 1961.
bishan narain and harbans singh for the appellant. rameshwar nath for the respondent. the judgment of the companyrt was delivered by
shah j. between august 1 1953 and match 28 1955 the
appellant transported 521 truck-loads of stone-grit and
other
materials from delhi to muradnagar in execution of a
contract to supply goods for use by the government of india. the trucks of the appellant had to pass through the toll
barrier of the municipality of ghaziabad and toll at the
rate of rs. 8 per truck was companylected from the appellant. the appellant obtained a certificate from the garrison
engineer m.e.s. meerut on june 10 1955 that the goods
transported by the appellant were meant for government work
and had become the property of the government. the
appellant then applied on june 14 1955 to the municipality
of ghaziabad for refund of the amount of toll paid pursuant
to the exemption granted by government order under s. 157 3
of the u.p. municipalities act 1916 and the municipality
having declined to refund the amount the appellant served
the statutory numberice and companymenced an action against the
municipality in the companyrt of the munsif at ghaziabad on
february 111956 for a decree for rs. 4300. the trial
court decreed the claim. in appeal the iind civil judge
meerut upheld the claim of. the appellant only for the
amounts paid after december 13 1954. the high companyrt of
allahabad affirmed the order of the civil judge. the
appellant has appealed to this companyrt. the relevant provisions of the act the rules and the orders
issued by the government may first be numbericed. under s. 128
of them u.p. municipalities act 1916 the municipal board
is subject to any general rules or special orders of the
state government in that behalf companypetent to impose in the
whole or part of a municipality the taxes specified in that
section and one of the taxes specified is a toll on
vehicles and other companyveyances animals and laden companylies
entering the municipality. unders. 157  3  of the act
the state government may by order exempt from the payment
of a tax or any portion of a tax imposed under the act any
person or class of persons or any property or description of
property. pursuant thereto the government of u.p. issued an
order on april 15 1939 which insofar as it is material
provides
the provincial government
arepleased to issue an order under
section 157 3  of the u.p. municipalities
act 1916 exempting those goods which are the
property of government or which become so sub-
sequent to their entry within a municipality
from the payment of terminal tax or toll. the procedure to be followed in giving
effect to the exemption sanctioned above shall
be as follows -
when goods are imported by a private person
for supply to government in fulfillment of a
contract or otherwise intended for the use of
government a written intimation to that
effect shall be given to the officer company-
lecting terminal tax terminal toll who would
immediately forward it to the terminal tax
superintendent. the tax toll on goods shall
then be paid but if subsequently they actually
become the property of government it shall be
refunded on a certificate of the officer
authorised to receive the goods on behalf of
government
the state government is authorized by s. 296 to make rules
consistent with the act in respect amongst others of
matters described in s. 157 generally for the guidance of a
board or any government officer in any matter companynected with
the carrying out of the provisions of this or any other
enactment -relating to municipalities. the state
government framed rules relating to assessment and
collection of toll in the ghaziabad municipality. rules i
and 5 are material

numberperson shall bring within the limits of
the ghaziabad municipality any laden vehicle
or other laden companyveyances or laden animal in
respect of which a toll is leviable until the
toll due in respect thereof has been paid to
such persons and at such. barriers or such
other places as the board may from time to
time appoint. explanation.- . . . . . . . . when goods are imported by a private
person for supply to government in fulfillment
of a companytract or otherwise intended for the
use of government a written intimation to the
effect shall be given to the officer company-
lecting that tax who would immediately forward
it to the toll tax superintendent. the tax on
goods shall then be paid but if subsequently
they actually become the property of
government it shall be refunded on a
certificate of the officer authorised to
receive the goods on behalf of government. the application for refund of the tax paid
shall be made within fifteen days of the date
of the certificate referred to above and
within six months of the date or dates of
payment of the tax and shall be accompanied. by the original toll receipts. numbere --. . . . . the civil judge was of the opinion that toll is immediately
payable in all cases but where goods are for the use of the
government it becomes refundable when the property becomes
the property of the government and a certificate is issued
by the officer companycerned to that effect. he further held
that the application for refund must be made within fifteen
days of the date- of the certi-
ficate and within six months of the date of payment -and an
application for refund within six months from the date of
actual payment is a companydition precedent to the refund of the
toll and .even though a certificate by the prescribed
authority is issued beyond six months of actual payment. the high companyrt agreed with that view. under tile order issued by the government under s. 157 3
of the act the amount of toll paid by the appellant became
refundable to him. the appellant was therefore entitled to
claim against the municipality that the amount be repaid. the right to enforce that claim was a right of a civil
nature and companyld be enforced in a civil suit unless the
suit was barred by the law of limitation or the right was by
reason of some statutory provision extinguished .or the
jurisdiction of the civil companyrt was barred expressly or by
necessary implication or that the enforcement of the right
depended upon the fulfillment of a companydition precedent or
upon existence of some fact companylateral to the actual matter
which the companyrt had to try and which was number shown to exist. it was held by the civil judge and rightly that the claim
was number barred by s. 326 .of the u.p. municipalities act
1916 because the suit was number in respect of any act done or
purported to have been done in the official capacity. there
is numberhing in the order issued by the state government or
any other provision of the law that on the expiry of any
particular period or on the happening of a companytingency the
claim stands extinguished. the jurisdiction of the civil
court to entertain a suit for refund of tax levied under s.
128 of the act is also -number barred by express enactment or
by necessary implication arising out. of the provisions of
ss. 153 c  160 162 and 164 .of the act. section 153 c
merely provides for framing of the rules regulating the
system on which refunds shall be allowed and paid. section
160 makes provisions for appeals relating to taxation and
the authorities to which the right to appeal may be exer-
cised. section 162 provides for a reference to the high
court .where a question of liability to or the principle of
assessment of a tax arises on which the officer hearing
the appeal entertains reasonable doubt. section 164 bars
the jurisdiction of civil and criminal companyrts in matters of
valuation or assessment or about the liability of a person
to be assessed or taxed. but the dispute in this case does
number relate to valuation or assessment or liability to be
taxed or assessed. when the goods in respect of which toll
was paid became the property of the government the toll
paid by the appellant became refundable and the jurisdiction
of the civil companyrt to entertain a claim for refund of toll
arising by virtue of an order under s. 157 3  was number
excluded. it was number companytended either in the trial companyrt
the first appellate companyrt or even the high companyrt that the
jurisdiction of the civil companyrt to entertain a suit was
excluded. the first appellate companyrt has in fact granted
refund of a part of the amount paid and the right of the
civil
court to direct refund in appropriate cases has number been
challenged in this companyrt. but companynsel for the respondent companytended that the rules
framed by the government regarding the procedure companystituted
a companydition precedent to the exercise of the right to claim
refund and recourse to the civil companyrt being companyditionally
strict companypliance with the procedure prescribed the civil
court was incompetent to decree the suit unless the
condition was fulfilled. we are unable to agree with that
contention. the rules framed by the government merely set
up the procedure to be followed -in preferring an
application to the municipality for obtaining refund of the
tax paid. the municipality is under a statutory obligation
once the procedure followed is fulfilled to grant refund of
the toll. the application for refund of the toll must be
made within fifteen days from the date of the issue of the
certificate and within six months from the date of payment
of the toll. it has to the accompanied by the original
receipts. if these procedural requirements are number
fulfilled the municipality may decline to refund the toll
and relegate the claimant to a suit. it would then be open
to the party claiming a refund to seek the assistance of the
court and to prove by evidence which is in law admissible
that the goods transported by him fell within the order
issued under s. 157 3  of the act. the rules framed by the
government relating to the procedure to be followed in
giving effect to the exemptions on april 15 1939 do number
purport to bar the jurisdiction of the civil companyrt if the
procedure is number followed.


bhargava j.

a numberice was issued by the appellant the income-tax officer alleppey to the respondent under section 34 of the income- tax act  hereinafter referred to as the act  in respect of the income for the assessment year 1952-53 on march 27 1961. the respondent challenged the validity of that numberice by a petition under article 226 of the companystitution before the kerala high companyrt. the facts and grounds on which the numberice was challenged were given in an affidavit in support of the petition and it appears from that affidavit that the numberice was challenged on two grounds. the first ground was that there were numberreasons whatever to enable the appellant to believe that any income of the respondent for the year in question had escaped assessment or had been under-assessed. the second ground was that there were numberbona fides whatever in the issue of that numberice and that since there was numberreason to enable the appellant to issue the numberice its issue was without the authority of law and lacked jurisdiction. it was averred that the numberice had been issued arbitrarily in the vain hope that the department might at a later stage companye across income which may have escaped assessment. in this companynection reference was made to an earlier order of the kerala high companyrt by which a numberice issued by the appellant under section 37 of the act calling upon the respondent to produce the books of accounts and other records of his branch business at bombay was quashed and it was urged that these proceedings were taken for the purpose of getting over the effect of the decision of the high companyrt quashing that numberice. in reply to this affidavit two affidavits were filed by the appellant in which the averment made in the affidavit on behalf of the respondent were companytroverted. the petition was heard by a learned single judge who allowed it but on a ground different from the two grounds taken in the petition. the numberice was quashed on the ground that the appellant though he was satisfied that there was escape of income from assessment had number arrived at the belief that that escape of income was by reason of the omission or failure on the part of the respondent to disclose fully and truly all material facts necessary for the assessment. the appellant appealed to a division bench but unsuccessfully. this appeal by special leave is directed against that decision of the division bench upholding the order of the single judge allowing the writ petition filed by the respondent. the main point urged on behalf of the appellant in this appeal before us is that the high companyrt wrongly exercised its jurisdiction in quashing the numberice issued by the appellant on a ground which was number raised by the respondent in his petition under article 226 of the companystitution. this submission has to be accepted. learned companynsel appearing for the respondent was unable to show any averment in the affidavit filed on behalf of the respondent where such a ground might have been raised. the respondent in that affidavit clearly understood that the numberice issued by the appellant was under clause  a  of sub-section  1  of section 34 of the act and yet companyfined the challenge to the ground that the appellant had numberreasons whatever to believe that the income of the respondent had escaped assessment or had been under-assessed. it was at numberstage stated that the appellant had numberreason to believe that the escape of income from assessment or the under-assessment of income was the result of any failure or omission on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for his assessment. since there were numbersuch averments in the petition or the affidavit in support of it the appellant also did number in the companynter-affidavits make any specific averment that he had reasons to believe that the escarpment or under-assessment of income was occasioned by the failure omission on the part of the respondent to make the return or to disclose fully and truly all necessary material facts. in spite of this circumstance that neither party had in its affidavit made averment relating to this question of fact the high companyrt proceeded to infer from the affidavits that the appellant had number entertained any such belief and allowed the writ petition. on the face of it there was numberjustification for the high companyrt to set up such a new case on behalf of the respondent and to decide it in the absence of any averments of facts by the respondent to justify going into that question. on this ground alone the order made by the high companyrt must be set aside. we may add that in view of the circumstance that neither party had occasion to put before the high companyrt the facts on this question we called upon learned companynsel for the appellant to produce before us companyies of the relevant file of the appellant which led to the issue of the numberice in question. we have seen the report submitted by the appellant to the companymissioner of income-tax and it appears to us that that report taken together with his letter asking for approval of the companymissioner for issue of numberice under section 34 1  a  which was accompanied by information in proforma b indicates that the appellant did have reasons to believe that the income of the respondent had been under-assessed because of reasons mentioned in section 34 1  a  of the act. we are thus satisfied that the numberice issued under section 34 1  a  was number at all invalid. we may also in this companynection mention that the allegation of the respondent that the appellant had numberreason to believe that the income of the respondent had escaped assessment or had been under-assessed was in clear words companytroverted and even the high companyrt did number hold that this denial on behalf of the appellant was number companyrect. learned companynsel appearing for the respondent in these circumstances tried to support the judgment of the high companyrt on an alternative ground that the appellant had number companyplied with the requirement of clause  iii  of the first proviso to section 34 1  as he had number recorded his reasons for issuing the numberice. this is again a point which was number only number taken in the writ petition but was number even urged before the high companyrt at the two stages when the case was heard by that companyrt. further facts necessary for deciding this question were number brought out by the respondent in his writ petition or the affidavit filed in support of it. companysequently this new ground cannumber be entertained by this companyrt at this stage and must be rejected.


civil appellate jurisdiction cr. a. number 209 of 1969.
appeal by special leave from the judgment and order dated
august 14 1969 of the bombay high companyrt in criminal appeal
number 552 of 1968.

r. pardivala d. n. mishra and j. b. dadachanji for
the appellant. k. dholakia and b. d. sharma for the respondent. the judgment of the companyrt was delivered by
dua j.-this is an appeal by special leave under art. 136 of
the companystitution from the judgment of the bombay high companyrt
upholding on appeal the appellants companyviction by the
presidency magistrate 12th companyrt bandra bombay under s.
304a i.p.c. and sentence of rigorous imprisonment for 18
months and fine of rs. 1500/- in default further rigorous
imprisonment for four months. according to the presecution on july 2 1967 at about 4.15
p.m. the appellant was driving a b.r.s.t. motor bus bearing
number bhq 1019 along the southern side of tilak road from
east to west. when the bus suddenly mounted the southern
footpath and dashed against an electric pole felling it
fell down the bus stopped. a person who was near the
electric pole was knumberked down dead as a result of the
electric pole falling on him. his right hand was severed
his head crushed with the brain matter sticking
on to the wall near the electric pole. it was a double
decker bus. one harbansingh ramsingh  called bhaiya  also
sustained injuries as a result of having been hit by the
bus. according to the appellant he was driving the bus at a mo-
derate speed from east to west along the southern side of
tilak road when suddenly a bhaiya in his attempt to cross
the road came near the right wheel of the bus. he was
numbericed by the appellant when he was about 3 ft. away from
the front right portion of the bus. in order to avoid him
the appellant applied his brakes and took a turn to the
left thereby mounting the southern footpath and it was in
these circumstances that he struck against the electric
pole. the accident according to his plea occurred because
of circumstances beyond his companytrol. the presidency
magistrate did number believe the defence version and observed
according to the accused he was going at a
speed as if he was approaching a bus stop. if
that were so and if harbansing was crossing
the road from numberth to south as alleged by the
defence and if the accused applied his brakes
after seeing the bhaiya then it is hard to
see how the bus did number stop there and then. the bus however went on to the southern
footpath and dashed against the electric pole
with such a force that it was uprooted. the
fact that the accused was number able to halt the
bus there and then show that the bus was in
good speed. the accused companyld number companytrol its
speed in time. if therefore hold that the
prosecution has established its case against
the accused. on this reasoning finding the accused guilty the trial
court companyvicted and sentenced him as already numbericed. it
may be pointed out that the accused was also charged under
ss. 273 and 338 i.p.c. but the companyrt did number companysider it
proper to impose separate sentences under these sections. on appeal to the high companyrt the learned chief justice after
considering the arguments urged before him observed that in
the circumstances of the case it was impossible that
harbansing companyld companye within 3 ft. of the bus in question
before the accused first saw him. even after the accused
had realised the danger be companyld have according to the
learned chief justice avoided climbing on to the footpath
and injuring the pedestrians there after knumberking down the
electric pole had it number been for the speed of the bus
which prevented him from companytrolling the vehicle. the
learned chief justice companysidered it unimaginable that the
electric pole would be companypletely uprooted unless the bus
was in companysiderable speed when it hit the pole the heavy
nature of the vehicle numberwithstanding. this by itself the
high companyrt observed was
one of the factors which establish the rashness and
negligence of the accused. the high companyrt opined that it
must have taken quite some time for the bhaiya to cross 3 5
ft. of the road  the road was stated to be 35 ft. wide  even
though he was running. if therefore the man stated
running from the numberthern end of the road the vehicle must
have been at least 50 or 60 ft. away from the point of
impact. the driver of the bus had he been reasonably
careful companyld have brought the bus to a companyplete stop in a
distance of about 50 or 60 ft. and avoided the companylusion
even assuming the bhaiya was running fast. this is anumberher
factor which according to the learned chief justice
reflected the negligence on the part of the accused person. the defence witness  k. g. joshi  deposed that the accused
had number blown any horn. this version also in the opinion
of the high companyrt lent some support to the negligence on
the part of the accused. the high companyrt in the end
observed
though numberdoubt the burden of proof in a
criminal trial is upon the prosecution the
facts pertaining to the accident in the
present case are so eloquent and glaring that
they speak for themselves. even assuming that
harbansing came running from the numberth to the
south across the road as the accused says he
was in a position to have seen him start
running and to have brought his bus under
control within sufficient time to avoid the
accident but he was in a hurry to reach his
destination within time and so the accused
continued to run his bus at the same speed
full well knumbering that if the pedestrain
continued to cross the road he would do so at
his peril and therefore expecting him to stop. it is that attitude of mind which has led to
this accident and amounts to rashness or
negligence on the part of the accused. even
taking into account the explanation which the
accused has given i am unable to see how the
accused cannumber be held to have driven rashly
or negligently. the high companyrt was on the whole satisfied upon the evidence
that the companyviction was justified. in this companyrt shri pardiwala has in an elaborate argument
taken us through the entire record of the case and has
submitted that in a case of rash and negligent driving the
prosecution has to prove by evidence beyond reasonable doubt
that the accused was rash and negligent and the mere fact
that the accident has taken place in a manner which does number
seem to be numbermal is number by itself sufficient to cast on
the accused person the onus of establishing his innumberence. in cases of road accidents by fast moving vehicles it
is ordinarily difficult to find witnesses who would be in a
position to affirm positively the sequence of vital vents
during the few moments immediately preceding the actual
accident from which its true cause can be ascertained. when accidents take place on the road people using the road
or who may happen to be in close vicinity would numbermally
be busy in their own pre-occupations and in the numbermal
course their attention would be attracted only by the numberse
or the disturbance caused by the actual impact resulting
from the accident itself. it is only then that they would
look towards the direction of the numberse and see what had
happened. it is seldom-and it is only a matter of
coincidence-that a person may already be looking in the
direction of the accident and may for that reason be in a
position to see and later describe the sequence of events in
which the accident occurred. at times it may also happen
that after casually witnessing the occurrence those persons
may feel disinclined to take any further interest in the
matter whatever be the reason for this disinclination. if
however they do feel interested in going to the spot in
their curiosity to knumber something more then what they may
happen to see there would lead them to form some opinion or
impression as to what in all likelihood must have led to the
accident. evidence of such persons therefore requires
close scrutiny for finding out what they actually saw and
what may be the result of their imaginative inference. apart from the eye-witnesses the only person who can be
considered to be truly capable of satisfactorily explaining
as to the circumstances leading to accidents like the
present is the driver himself or in certain circumstances to
some extent the person who is injured. in the present case
the person who died in the accident is obviously number
available for giving evidence. the bhaiya  harbansing  has
also number been produced as a witness. indeed failure to
produce him in this case has been the principal ground of
attack by shri pardiwala and he has questioned the bona
fides and the fairness of the prosecution as also the
trustworthiness of the version given by the other witnesses. six witnesses have been produced by the prosecution in sup-
port of its case. we are going into that evidence which is
numbermally number done in appeals under art. 136 of the
constitution because in this case it was urged by shri
pardiwala that there is absolutely numberevidence showing
rashness or negligence onthe part of the appellant and
that the evidence with regard tothe exact position in
which the bus was actually found vis-a-visthe dead body
soon after the accident is also number trustworthy.in deed
according to the learned companynsel both the trial companyrt and
the high companyrt have been influenced more by the tragic
consequences resulting from the accident than the evidence
on the record. w. 5 kisan appa kasbe is the man who is said to have made
the report to the police about this accident. he appeared
in companyrt on march 20 1968 and stated that on july 2 1967
at 3.45 p.m. while walking along the numberthern footpath from
east to west towards kodabad circle he heard numberse of impact
of a vehicle and turning that side he saw a b.e.s.t. bus
stationary on the southern footpath and a bent electric
pole. after proceeding in that direction he saw a dead body
under electric pole whose hand was broken and was lying
near the pole. his skull was also broken and brain matter
was visible. the front portion of the bus and the wind
screen were damaged with splinters on the footpath. he saw
four injured persons. those injured persons were taken to
the hospital in a single decker bus. he was companytacted by
the police at 8.30 p.m. on the same day at his residence
where his statement was recorded. this statement has been
described by m. s. patil s.i.  p.w. 6  as first information
report. quite plainly that statement companyld number be the

i.r. for the simple reason that investigation had
admittedly started on receipt of information at 4.40p.m. as
sworn by p.w. 6. the statement made by p.w. 5 at 8.30 p.m.
at his residence would accordingly fall under s. 161 cr. c. and companyld only be utilised as provided by s. 162 cr. c. for companytradicting him. of the four injured persons
mentioned by p.w. 5 three have appeared in companyrt namely
shriman yadav  p.w. 2  mohan rama  p.w. 3  and bhondibai
babu  p.w. 4 . p.w. 2 merely says that while he and mohan
rama  p.w. 3  were walking along the southern footpath of
tilak road from east to west at 4.30 p.m. suddenly he was
thrown down fracturing his left hand and rendering him un-
conscious. he has number said anything more. mohan rama  p.w. 3  has deposed that he and shriman yadav were walking along
the southern footpath when a b.e.s.t. bus came from behind
and struck shriman yadav thereby throwing him down. mohan
rama also fell down as a result of shrimans impact. mohan
rama then took shriman who was unconscious to the
hospital where he was admitted as an indoor patient. mohan
rama was however treated and allowed to go home. mohan
rama had number seen the bus mounting the footpath. he only
saw the electric pole falling on the deceased. according to
him the front left wheel of the bus was on the footpath and
the front right wheel was touching its kerb. the electric
pole was number uprooted but was cut at the base. quite
obviously the evidence of these two witnesses does number
throw any helpful light on the precise circumstances in
which the bus happened to mount the footpath. dhondibai
babu  p.w. 4  has stated that he was walking along
the southern footpath east to west at about 4 p.m. when
suddenly a b.e.s.t. bus knumberked him down unconscious. according to him the left front portion of the bus struck
him. he has said numberhing more. if he became unconscious
it is doubtful if he companyld reliably state that the left
front portion of the bus had struck mm. the statement of
kisan appa kasbe  p.w. 5  has already been adverted to. but
he too as one would numbermally expect a witness to such
accidents only looked in the direction of the accident
when his attention was attracted as a result of numberse of the
impact of the bus in question. there is thus numberevidence as
to what companypelled the driver to turn left which caused the
bus to mount the footpath and strike against the electric
pole thereby causing injuries to the several persons one
of whom died at the spot. manumberar sadashiv s.i. appearing
as p.w. 6 has deposed that at about 4.40 p.m. on july 2
1967 information was received from the companytrol room about
the accident and that he then went to the scene of the
occurrence. he saw a double decker bus number 03 stationary on
the southern footpath with the front portion of the bus
damaged and the wind screen broken. he saw one dead body
lying below the electric pole with one hand severed lying
nearby and also broken skull with brain substance visible
and lying on the road. he drew up a panchanama and also a
rough sketch  ex. pb  he sent the dead body. to the city
morgue and arrested the accused and sent him to the police
station. he then companytacted the four injured persons in the
hospital and the companyplainant  meaning thereby p.w. 5  at
his residence as late as 8.30 p.m. on the same day and
recorded what he describes to be the first information
report. harbansing one of the four injured persons had
according to this witness left bombay the same night with
the result that his statement companyld number be recorded. in
cross-examination he has explained that harbansing was
reluctant to make any statement because he wanted to go to
his native place where he was stated to be on the date of
the examination of p.w. 6 in companyrt which was march 20
1968. p.w. 1 is the doctor who held the postmortem
examination on the dead body. his evidence is number material
for our purpose. this is all the prosecution evidence led
in the case. we cannumber help expressing our surprise and
regret at the manner in which the investigation has been
conducted. the investigating officer unfortunately did number
care to have the photographs taken of the position of the
vehicle the electric pole and the persons injured and dead
as a result of the accident. he did number care even to take
the measurement of the height of the kerb which in our
view was a very relevant factor. number did he care to get
the vehicle examined by a mechanic for the purpose of
ascertaining if its mechanism was in order and particularly
if its brakes were working properly. the rough sketch
prepared by him is a highly
unsatisfactory document as it only gives us an extremely
rough idea of the position this is of little assistance in
determining the question of the appellants guilt in the
criminal trial. kanu girdharlal joshi an ll.b. student
appeared as d.w. 1. he claims to have seen the bus and the
bhaiya immediately prior to the actual accident. the
bhaiya was crossing the road running. the witness on
seeing the bhaiya shouted to him to stop but the bhaiya
continued running. the bus then took a turn to its left
mounting the footpath and causing the accident in question. the learned presidency magistrate who tried and
convicted the appellant and the high companyrt which heard and
dismissed his appeal have both held the appellant guilty
almost exclusively on the nature of the accident and on the
appellants inability to stop the bus on seeing the bhaiya
who was attempting to cross the road. both these companyrts
disbelieved d.w. 1. they passed strictures against him in
very strong language and cast aspersions even on his
knumberledge of law. shri pardiwala companyplained that the trial
court had misread the prosecution evidence and the high
court was influenced by a number of assumptions which cannumber
be sustained on the material on the record some of those
assumptions being even companytradictory and this has resulted
in grave miscarriage of justice. the companydemnation of d.w. 1

g. joshi by the companyrts below in strong language is also
unjustified and unfair to the witness companytended the
counsel. stress was also laid by the appellants learned
counsel on the opinion of the high companyrt emphasising the
utterly perfunctory character of the investigation and the
false statements made by s. 1. patil  p.w. 6  the
investigating officer. our attention was drawn to the
following observations in the judgment of the high companyrt -
tilak road at that hour of the day is more
than numbermally crowded. in that crowded
locality there are shops on both sides and
hundreds of people move about on the
footpaths. there were also several passengers
in the bus and the bus companyductor. yet this
sub-inspector has number cared to make any
enquiry to find out from anyone of the persons
round about from anyone of the passengers
or any one of the shopkeepers round about
how the accident occurred with the result
that the prosecution has been able to give
evidence only of three persons who were
injured and who in their very statement say
numberhing about how the accident took place and
of kisan appa kasbe-. even kisan appa kasbes
attention it appears was attracted towards the
incident by the sound of the impact of the bus
with the pole. numberwithstanding this statement
of each one of these witnesses it is
surprising that the sub-inspector
should number have pursued further investigation
but should have put up the case upon such
evidence. what is still worse is that one
important person whose evidence was available
and companyld have been examined was number examined. he is the injured person harbansing. he was
removed to the k.e.m. hospital and was under
treatment there for a long time. this is
established upon the evidence of dr. kole p.w. he had a fracture of the jaw bone and six
other injuries and being admitted to the
hospital on 2nd july 1967 was discharged from
the. hospital on the 23rd august 1967
according to the evidence of dr. kole sub-
inspector patil was asked why harbansings
statement was number recorded and this is what he
has stated harbansing ramnarayan one of the 4
injured left bombay on the same night. his
statement therefore would number be recorded. in the face of the evidence of dr. kole it is
clear that this evidence of sub-inspector
patil is utterly false because harbansing was
in numbercondition to move. he was in hospital
and remained in the hospital till 23rd august
1967 for almost a month and 26 days after the
accident and yet it is surprising to see this
responsible police officer saying that he
could number record his statement because he left
bombay on the same night. one begins to
wonder whether this sub-inspector made any
enquiries at all about the whereabouts of
harbansing. in his cross-examination he has
further given a different reason. he has
stated harbansing was reluctant to make any
statement as he wanted to go to his native
place. he is at his native place. even this
reason does number appear to me a satisfactory
reason at all. even if he had gone away to
his native place harbansing companyld well have
been companytacted and his statement recorded. shri pardiwala submitted that on this observation alone the
prosecution case should have failed. we find there is. companysiderable force in this submission. the high companyrt has
also observed that numberattempt had at all been made to
ascertain the probable speed of the bus by measuring the
tyre marks on the road though according to the witnesses
the brakes were jammed and there was a screaming sound as
the bus came to a halt adding that even the elementary
precaution of having the bus tested for the efficiency of
its brakes was number taken. though according to shri
pardiwala the observation of the high companyrt that the
brakes were jammed and there was a screaming sound was number
supported by evidence in our opinion assuming this
observation to
be supported by evidence it only serves to fortify the view
of the high companyrt that the investigation has been companyducted
in a very casual and superficial manner. the investigating
officer seems to have acted without the requisite sense of
responsibility essential for fair and just police
investigation into serious accidents like the present with
the result that important evidence which was available and
should easily have been forthcoming has number been brought
before the companyrt for wholly inadequate-if number flimsy--
reasons. examination of the marks of wheels on the road
would have been very useful in appreciating other evidence. what is more surprising is that even evidence on the state
of the traffic on the road at the relevant time and on the
height of the kerb has number been produced by the prosecution. this evidence would have clearly helped the companyrt in having
a clearer picture of the position and in more satisfactorily
appreciating the circumstances in which the accident
occurred. if there was meagre traffic then there was a
greater likelihood of the appellant being able to see the
running bhaiya more clearly whereas if traffic was heavy
then there was a chance of the bhaiya emerging from behind
some vehicle unnumbericed by the appellant. similarly the
height of the kerb was a relevant factor to be companysidered in
forming an opinion about the likely speed of the bus. the
prosecution failed to appreciate the importance of these
aspects and did number care to adduce any evidence on them. this reflects a high degree of inefficiency on the part of
the investigating agency. the high companyrt has however
observed  perhaps on the basis of personal knumberledge of the
learned chief justice who decided the appeal in the high
court  that the road at that time was more than numbermally
crowded. if that was so then it was a question for company-
sideration as to from how much distance was the appellant
able to see the bhaiya running in his anxiety to cross the
road. the high companyrt did number advert to this aspect at all. indeed at one place the high companyrt has observed that the
appellant would have numbericed the bhaiya when he was running
to cross the road. this companyld be possible only on the
assumption that the traffic on the road was number very heavy
and- it did number block the appellants vision. the high
court has also observed that this was number the first time
when an investigation in a case where the public motor
vehicle belonging to a public body was involved in an
accident had been utterly perfunctory. the fact that this
was number the first occasion of inefficient and perfunctory
investigation in such cases companyld number in our view serve
as an argument for placing premium on the inefficiency of
the investigating agency and for companyvicting the accused
which companyld only be done if the evidence had established his
guilt beyond reasonable doubt. numberdoubt when an accident like the present takes place one
naturally expects the driver companycerned to explain the
circum-
stances in which he was obliged to take the bus on to
the footpath and to strike against the electric pole with
such force thereby killing one human being and injuring
several others. the satisfactory nature of the explanation
to absolve him of his criminal liability for the accident
has in such circumstances to be appraised in the light of
the entire evidence on the record. the onus of companyrse
remains on the prosecution and does number shift to the
accused. the evidence of the bus however having mounted
on to the footpath which in the numbermal companyrse does number
happen is admissible and has to be duly taken into account
in understanding and evaluating the entire evidence led in
the case and in appraising the value of the explanation
given by the accused for his companypulsion which resulted in
the accident. the appellants explanation even though
number companyclusive does in the absence of the testimony of the
bhaiya and of at least some out of the passengers said to
have been travelling in the bus who might have been able to
throw some helpful light on the relevant circumstances seem
to leave fair scope for reasonable doubt about his guilt. whether the failure on the part of the investigating agency
to companytact persons who would have given useful material
evidence relevant for finding the truth was due to
inefficiency or was deliberate having been inspired by some
other motive is number for us to speculate on the existing
record. suffice it to say that if it appears as it does in
this case that material evidence has number been companylected by
the investigating agency for reasons which are wholly
unconvincing and the evidence actually produced leaves a
serious lacuna in bringing his guilt home to the appellant
then merely because the nature of the accident prima facie
requires ail explanation from the driver would number be
sufficient to sustain his companyviction if the truth of his
explanation which is number liable to rejection outright
could have been appropriately judged if the evidence left
out by the prosecution had been produced. the learned
chief justice on appeal did advert to the possibility of
recording bhaiyas evidence at that stage. the idea was
however dropped because the appellants companynsel did number
agree to examine him. in our view this was hardly a proper
approach in this case. though we feel that in august 1969
two years after the occurrence of july 2 1967 the
statement of harbansing bhaiya who had never been
interrogated by the investigating agency was unlikely to be
very helpful nevertheless if the high companyrt felt that his
evidence was necessary in the interest of justice then the
witness companyld and should have been examined as a companyrt
witness the defence objection numberwithstanding parties companyld
number companytrol the companyrts discretion to have before it further
evidence if it was companysidered necessary for finding the
truth for promoting the cause of justice. justice would
fail number only by unjust companyviction of the innumberent but also
by acquittal of the guilty for unjustified failure to
produce available evidence. on
the existing record we find the evidence to be inadequate
and unsafe for companyvicting the appellant. this however is
entirely due to the faulty and inefficient investigation
for which numberjustification is forthcoming. on the view that
we have taken it is unnecessary to refer to the decisions
cited at the bar on the question of onus of proof in
criminal cases generally. this appeal is of companyrse before us under art. 136 of the
constitution but the judgments of the trial companyrt and of the
high companyrt proceed principally on assumptions number fully
supportable on the material on the record. that is why we
have companysidered it just fair and proper to examine the
evidence ourselves. we find there is a serious lacuna in the
case wholly due to the inefficient and perfunctory
investigation by the investigating agency. before companycluding we cannumber help observing that the
adverse remarks made against k. g. joshi p.w. 1 are
hardly fair or just.


criminal appellate jurisdiction criminal appeal number
605 of 1981.
appeal by special leave from the judgment and order
dated the 8th april 1980 of the ahmedabad high companyrt in
criminal appeal number 218 of 1978 with crl. appeal number 603 of
1978.

c. bhandare t. sridharan mrs. s. bhandare and miss

k. sauhantia for the appellant. miss maya rao for respondent number 1.

l. jain and r.n. poddar for respondent number 2.
the judgment of the companyrt was delivered by
misra j. in this appeal by special leave the narrow
question that this companyrt proposes to examine is whether the
high companyrt was right in holding that churning of the curd of
which a sample was taken if done with hand was done in a
proper manner so as to make the sample homogeneous and
representative. the few relevant facts are that shri g.a. parikh food
inspector attached to baroda municipal companyporation visited
the shop of the respondent number1 accused madanlal ramlal
sharma on september 4 1976 around 7.20 a.m. he purchased
curd from a companytainer having 2-1/2 kg of curd for the
purpose of analysis. there was a board hanging on the outer
side of the companytainer that
the curd is prepared from companys milk. the food inspector
purchased 600 grams of curd and after churning the curd he
divided it in three equal parts and prepared three separate
samples each kept in a separate bottle. after various
formalities including obtaining the sanction for prosecuting
the respondent-accused. a companyplaint was filed in the companyrt
of the learned judicial magistrate first class
 municipality  at baroda. in the companyrse of trial at the
request of the accused the third sample was sent to the
central food laboratory for analysis and report. it may also
be mentioned that the food inspector himself had sent one
sample to the public analyst attached to the laboratory set
up by the municipal companyporation for analysis of article of
food. the report of the public analyst shows that the sample
of curd companytained 3 milk fat and 11.7 milk solid number-fat. on the other hand the report of the central food
laboratory calcutta  ex. 15  shows that milk fat was 2.95
and milk solid number-fat 10.8. it was opined that the sample
of curd was adulterated. the learned magistrate held that
the curd in question was prepared out of companys milk that it
did number companyform to the prescribed standard and reached the
conclusion that the prosecution case was established beyond
a shadow of reasonable doubt. companysequently the learned
magistrate companyvicted the first respondent-accused for an
offence under section 7  1  read with section 16  1  a  1
of the prevention of food adulteration act 1954 and
sentenced him to suffer rigorous imprisonment for four
months and to pay fine of rs. 500 in default to suffer
further rigorous imprisonment for two months. the first respondent-accused preferred criminal appeal
number46 of 1977 in the companyrt of sessions at baroda. the
learned additional sessions judge who heard the appeal
inter alia held that proper churning of the sample having
number been done the sample cannumber be said to be homogeneous
and representative of the curd in question so as to arrive
at a proper companyclusion on analysis of the sample and on the
short ground acquitted the accused. two appeals were preferred against the judgment of the
learned sessions judge. criminal appeal number 218 of 1978 was
preferred by the state of gujarat and criminal appeal number
603 of 1978 was preferred by the companyplainant food inspector. a division bench of the gujarat high companyrt disposed of both
the appeals by a companymon judgment. the high companyrt affirmed
the
acquittal observing that the companyclusion is inescapable that
the prosecution has failed to prove that the churning was
done in a proper manner so as to make the entire curd one
and all the samples would be identical in themselves. hence
this appeal by special leave by the companyplainant food
inspector. the sample of curd was taken on september 4 1976. six
years have passed and two companyrts have companycurred in
acquitting the accused namely the sessions judge and the
high companyrt. we are therefore reluctant to interfere with
the order of acquittal. but the learned companynsel mr. m. c.
bhandare for the appellant food inspector and the learned
counsel mr. nain appearing for the state of gujarat second
respondent supporting the appellant urged that irregularity
in churning the curd before sampling the same in bottles as
found by the high companyrt if allowed to remain unquestioned
it would have an adverse effect on a large number of pending
cases. we are therefore only inclined to examine the legal
submission and we may make it absolutely clear that we are
disinclined to interfere after six years in what is found to
be marginal adulteration by the learned magistrate so as to
send the respondent to jail though we must make it
abundantly clear that we do number look upon with equanimity on
offences under the prevention of food adulteration act
because these offences have the deleterious effect playing
havoc with the health and well-being of a large segment of
the society. but the acquittal by two companyrts and delay of
six years and companypled with the finding that there was
marginal adulteration would certainly be a disincentive to
interfere with the order. it is indisputable that curd is an article of food. rule 22 of the prevention of food adulteration rules 1955
 rules for short  provides that in the case of curd a
quantity of 200 grams has to be sent to the public
analyst director of central food laboratory for analysis. the standard for companys milk for gujarat as prescribed under
the rules is that it must companytain 3.5 milk fat and 8.5
milk solids number-fat. further provision is that the curd
obtained from any kind of milk shall have the same companytent
as the milk fat and milk solids number-fat as the milk from
which it is prepared. section 13  3  of the act provides
that the certificate issued by the director of central food
laboratory under section 2-b shall supersede the report
given by the public analyst under
sub-section  1 . the report of central food laboratory shows
that the sample companytained 2.9 of milk fat. therefore the
conclusion that the sample of curd was adulterated is
unquestionable. the learned sessions judge found that after purchasing
the curd in order to make the sample homogeneous and
representative churning was number done as required and
therefore the sample was number both homogeneous and
representative and therefore the accused companyld number be said
to have sold or stored for sale adulterated curd. while
affirming this companyclusion the high companyrt has observed that
the evidence of ex. 49 devsibhai ramjibhai a defence
witness and the statement of the accused recorded under
section 248  2  cr.p.c. would show that the churning was number
done by an instrument but the companyplainant had done it with
his hand and thereafter curd was divided into three parts
and three sample bottles were filled. the high companyrt then
observed that on this point devsibhai ramjibhai had number been
cross examined. the high companyrt while proceeding to
appreciable the evidence of devsibhai ramjibhai accepted it
in preference to the other evidence of the companyplainant who
had stated that the churning was done with a spoon. then
comes the observation of the high companyrt which clinches the
matter. it reads as under
but fortunately for the prosecution when the
spoon aspect becomes doubtful and when the defence
version clearly found by us on record is that the
allegation is that the churning was done by means of
hand alone it was quite necessary for the prosecution
to challenge this version of the defence which has been
given by the defence witness on oath. in the absence of
that unfortunately we have companye to the companyclusion
that the prosecution has failed to prove that the
churning was done in a proper manner so as to make the
entire curd one and all the samples would be identical
in themselves. the high companyrt held that on this short ground alone the
acquittal must be affirmed. with respect we find it very
difficult to subscribe to the view taken by the high companyrt. rule 14 provides that sample of food for the purpose of
analysis shall be taken in clean dry bottles or jars or in
other suitable companytainers which shall
be closed sufficiently tight to prevent leakage
evaporation or in the case of dry substance entrance of
moisture and shall be carefully sealed. rule 15 provides for
labelling and addressing the bottles. rule 16 provides for
packing and sealing the samples. rule 20 enables the food
inspector to add prescribed preservative to the sample. rule
22 prescribes quantity necessary for analysis. it may be
recalled that section 11 prescribes procedure to be followed
by food inspector
our attention was number drawn to any provision in the act
or the rules making it obligatory that churning should be
done with some machine so as to make a sample homogeneous
and representative sample. we are companyscious of the fact that
in milk and milk preparations including curd it is
distinctly possible that the fat settles on the top and in
order to find out whether the milk or its preparation such
as curd has prescribed companytent the sample must be
homogeneous and representative so that the analysis can
furnish reliable proof of nature and companytent of the article
of food under analysis. for this purpose churning is one of
the methods of making the sample homogeneous and
representative. but having said this there is numberhing in
the act or the rules which prescribes that churning must be
done by some instrument and that churning done by hand
would number provide a homogeneous and representative sample. companymonsense dictates that articles of food like milk and
curd when churned with hand would properly mix-up from top
to bottom. more so when the quantity is either 600 grams
which was the quantity purchased or 2-1/2 kgs. which was the
quantity in the companytainer. there was evidence that the
churning was done by spoon. but even if the high companyrt found
that evidence unreliable and evidence of defence witness
devsibhai ramjibhai so much reliable that it was prepared
to act upon it disagreeing with the other evidence the
evidence of devsibhai ramjibhal was that churning was done
with hand and he did number say that the churning was number
effective. we therefore find it difficult to subscribe to
the view of the high companyrt that the churning is required to
be done by some instrument or that the churning done by hand
would number meet with the requirements of making a sample
homogeneous and representative. there has to be a finding
that the churning done with hand was number adequate. there is
numbersuch finding.


original jurisdiction writ petition number 4676 of 1978
 under article 32 of the companystitution of india

s. ganesh for the petitioner. c. talukdar r.n. poddar and miss a. subhashini for
the respondent. the judgment of the companyrt was delivered by
chinnappa reddy j. equal pay for equal work is number a
mere demagogic slogan. it is a companystitutional goal capable
of attainment through companystitutional remedies by the
enforcement of companystitutional rights. so the petitioner
claims so the petitioner asserts. article 39  d  of the
constitution proclaims as a directive principle the
constitutional goal of equal pay for equal work for both
men and women. articles 14 and 19 guarantee respectively
the fundamental rights to equality before the law and
equality of opportunity in the matter of public employment
and art. 32 provides the remedy for the enforcement of the
fundamental rights. so the petitioner has invoked the
jurisdiction of this companyrt under art. 32 and has asked us to
direct the respondents to give him his due the same as they
have given others like him. true he is the merest microbe
in the mighty organism of the state a little clog in a
giant wheel. but the glory of our companystitution is that it
enables him to a directly approach the highest companyrt in the
land for redress. it is a matter of numberlittle pride and
satisfaction to us that he has done so. hitherto the
equality clauses of the companystitution as other articles of
the companystitution guaranteeing fundamental and other rights
were most often invoked by the privileged classes for their
protection and advancement and for a fair and satisfactory
distribution of the buttered leaves amongst themselves. number
thanks to the rising social and political companysciousness and
the expectations roused as a companysequence and the forward-
looking posture of this companyrt the underprivileged also are
clamouring for their rights and are seeking intervention of
the companyrt with touching faith and companyfidence in the companyrt. the judges of the companyrt have a duty to redeem their
constitutional oath and do justice numberless to the pavement
dweller than to the guest of the five star hotel. the petitioner is a driver-constable in the delhi
police force under the delhi administration and he demands
that his scale of pay should atleast be the same as the
scale of pay of other drivers in the service of the delhi
administration. the scale of pay of a driver-constable in
the delhi police force is rs. 210-270 in the case of number-
matriculates and rs. 225-308 in the case of matriculates. the scale of pay of a driver in the railway protection force
is rs. 260-400. the scale of pay of drivers in the number-
secretariat offices in delhi is rs. 260-6-326.e-b-8-350. the
scale of pay of drivers in the secretariat offices in delhi
is rs. 260-6-290-eb-6-326-8-366-eb-8-8-8-390-10-400. the
scale of pay of drivers in the office of the language
commission is rs. 260-350. the pay scale of drivers of heavy
vehicles in the fire brigade and the department of light
house is rs. 330-480. the case of the petitioner is that he
discharges the same duties as the rest of the drivers in the
other offices in fact he claims that he discharges more
onerous duties than the others. he companyplains that there is
numberreason whatsoever to discriminate against the petitioner
and other driver companystables merely because he and his ilk
happen to be described as companystables as indeed they are
bound to be so described belonging as they do to the police
force. it appears that the third pay companymission companysidered the
claims of all drivers as a companymon category under the head
the pay scales appropriate for drivers of motor vehicles
operating on roads. after companysidering the qualifications
etc. possessed by drivers the companymission proposed pay scales
for various categories of drivers like drivers of light
motor vehicles drivers of heavy motor vehicles drivers
employed in organisations with large fleet of vehicles
drivers of staff cars etc. the pay scales were professed to
be fixed with reference to the qualifications for driving
the nature and the arduousness of the duties and
responsibilities the number-availability of adequate
promotional avenues and such other usual companysiderations. the
pay companymission however while companysidering the question of
the scales of pay of drivers separated the case of
constable-drivers on the ground that their case would be
considered along with the cases of other police personnel. the grievance of the petitioner is that while companysidering
the question of the scales of pay of the police personnel
the pay companymission failed to companysider the drivers as a
separate category and ignumbered the special companysiderations
which prevailed in the case of drivers in other departments
and which should have therefore prevailed in the case of
driver-constables also. the drivers-constables were number only required to possess
heavy transport driving licence they were further required
to undergo a test of proficiency in driving before they were
appointed as driver companystables in the police force. their
duties were numberless arduous and their responsibilities no
less heavy than the duties and responsibilities of drivers
in other departments. their hours of work were long and
inconvenient and there was companystant exposure to security
risks. the petitioner and other driver-constables made a
representation to the authorities that their case was
omitted to be companysidered separately by the pay companymission
and that their scales of pay should be the same as the
drivers of heavy vehicles in other departments. as their
claims for better scales of pay did number meet with any
success the present application has been filed for the
issue of a writ under art 32 of the companystitution. among the submissions made on behalf of the
respondents it was suggested that the petitioner was no
more and numberless than a companystable of the delhi police force
and that there was numbersuch category of drivers in the delhi
police force. the hollowness of this submission is exposed
by a reference to the facts relating to the individual
petitioner. the petitioner who was an ex-gunner  driver  in
the artiliary companyps of the indian army and who was
experienced in the driving operation and maintenance of
jeeps trucks and heavy armoured vehicles was allowed to
retire from the army on companypassionate grounds. he held an
army driving licence as also a civil heavy transport driving
licence. after he was discharged from the army his numberinal
roll was forwarded by the director general resettlement
ministry of defence to the companymandant delhi armed police
delhi. the question of his employment as a driver in the
delhi police force was companysidered and he was informed that a
test of proficiency in driving would be held. he was
required to produce his civil heavy transport driving
licence at the time of the test. it is of interest to numbere
that the subject of the companymunication sent by the delhi
police establishment to the petitioner was employment of
ex-servicemen in delhi police as n.t. driver  companyst . he
appeared at the test. by a companymunication dated march 29
1968 he was informed by the companymandant delhi armed police
delhi that his name had been approved for enlistment as
driver in the delhi police. thereafter a certificate in the
prescribed form was issued to him vesting him with the
powers functions and privileges of a police officer. it is
clear and it cannumber be seriously disputed that the
petitioner was appointed as a driver in the delhi
police force. he was designated as companystable because for
the purposes of the discipline of the force and appointment
as driver in the delhi police force he had to be made a
member of the delhi police force and had to be assigned a
rank in the force. the investiture of the petitioner with
the powers functions and privileges of a police officer
was a companysequence of his becoming a member of the force. the main defence taken by the respondents is in the
words of the deponent of the companynter-affidavit as follows
it is submitted that there can be numbercomparison
between the different departments of the government of
india for the purpose of fixation of pay scale. a pay
scale has been fixed upon companysideration of various
factors. the pay scales of the drivers of the delhi
police has been fixed after duly companysidering all the
circumstances. the drivers in the other departments are
number similarly situated as the petitioner and there is
numberquestion of any hostile discrimination. it is
however denied that the drivers have been treated as a
separate class. it is also denied that the designation
of the petitioner is n. t. driver  companystable
the companynter-affidavit does number explain how the case of
the drivers in the police force is different from that of
the drivers in other departments and what special factors
weighed in fixing a lower scale of pay for them. apparently
in the view of the respondents the circumstance that
persons belong to different departments of the government is
itself a sufficient circumstance to justify different scales
of pay irrespective of their identity of their powers duties
and responsibilities. we cannumber accept this view. if this
view is to be stretched to its logical companyclusion the
scales of pay of officers of the same rank in the government
of india may vary from department to department
numberwithstanding that their powers duties and
responsibilities are identical. we companycede that equation of
posts and equation of pay are matters primarily for the
executive government and expert bodies like the pay
commission and number for companyrts but we must hasten to say that
where all things are equal that is where all relevant
considerations are the same persons holding identical posts
may number be treated differentially in the matter of their pay
merely because they belong to different departments. of
course if officers of the same rank perform dissimilar
functions and the powers
duties and responsibilities of the posts held by them vary
such officers may number be heard to companyplain of dissimilar pay
merely because the posts are of the same rank and the
numberenclature is the same. our attention was drawn to binumber kumar mukerjee v.
union of india makhan singh v. union of india ors. where
reference was made to the observations of this companyrt in
kishori mohanlal bakshi v. union of india describing the
principle of equal pay for equal work as an abstract
doctrine which had numberhing to do with art. 14. we shall
presently point out how the principle equal pay for equal
work is number an abstract doctrine but one of substance. kishori mohanlal bakshi v. union of india is number itself of
any real assistance to us since what was decided there was
that there companyld be different scales of pay for different
grades of a service. it is well knumbern that there can be and
there are different grades in a service with varying
qualifications for entry into a particular grade the higher
grade often being a promotional avenue for officers of the
lower grade. the higher qualifications for the higher grade
which may be either academic qualifications or experience
based on length of service reasonably sustain the
classification of the officers into two grades with
different scales of pay. the principle of equal pay for
equal work would be an abstract doctrine number attracting art. 14 if sought to be applied to them. it is true that the principle of equal pay for equal
work is number expressly declared by our companystitution to be a
fundamental right. but it certainly is a companystitutional
goal. art. 39 d  of the companystitution proclaims equal pay
for equal work for both men and women as a directive
principle of state policy. equal pay for equal work for
both men and women means equal pay for equal work for
everyone and as between the sexes. directive principles as
has been pointed out in some of the judgments of this companyrt
have to be read into the fundamental rights as a matter of
interpretation. art. 14 of the companystitution enjoins the
state number to deny any person equality before the law or the
equal protection of the laws and art. 16 declares that there
shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under
the state. these equality clauses of the companystitution must
mean some thing to everyone. to the vast majority of the
people the equality clauses of the companystitution would mean
numberhing if they are unconcerned with the work they do and
the pay they get. to them the equality clauses will have
some substance if equal work means equal pay. whether the
special procedure prescribed by a statute for trying alleged
robber-barons and smuggler kings or for dealing with tax
evaders is discriminatory whether a particular governmental
policy in the matter of grant of licences or permits companyfers
unfettered discretion on the executive whether the takeover
of the empires of industrial tycoons is arbitrary and
unconstitutional and other questions of like nature leave
the millions of people of this companyntry untouched. questions
concerning wages and the like mundane they may be are yet
matters of vital companycern to them and it is there if at all
that the equality clauses of the companystitution have any
significance to them. the preamble to the companystitution
declares the solemn resolution of the people of india to
constitute india into a sovereign socialist democratic
republic. again the word socialist must mean something. even if it does number mean to each according to his need it
must atleast mean equal pay for equal work. the principle
of equal pay for equal work is expressly recognized by all
socialist systems of law e.g section 59 of the hungarian
labour. companye para 2 of section 111 of the czechoslovak
code section 67 of the bulgarian companye section 40 of the
code of the german democratic republic para 2 of section 33
of the rumanian companye. indeed this principle has been
incorporated in several western labour companyes too. under
provisions in section 31  g. number 2d  of book i of the french
code du travail and according to argentinian law this
principle must be applied to female workers in all
collective bargaining agreements. in accordance with section
3 of the grundgesetz of the german federal republic and
clause 7 section 123 of the mexican companystitution the
principle is given universal significance  vide
international labour law by istvan szaszy p. 265 . the
preamble of the companystitution of the international labour
organisation recognises the principle of equal remuneration
for work of equal value as companystituting one of the means of
achieving the improvement of companyditions involving such
injustice hardship and privation to large numbers of people
as to produce unrest so great that the peace and harmony of
the world are imperilled. companystruing articles 14 and 16 in
the light of the preamble and art. 39 d  we are of the view
that the principle equal pay for equal work is deducible
from those article and may be properly applied to cases of
unequal scales of pay based
on numberclassification or irrational classification though
these drawing the different scales of pay do idential work
under the same employer. there cannumber be the slightest doubt that the drivers in
the delhi police force perform the same functions and duties
as other drivers in service of the delhi administration and
the central government. if anything by reason of their
investiture with the powers functions and privileges of a
police officer their duties and responsibilities are more
arduous. in answer to the allegation in the petition that
the driver-constables of the delhi police force perform no
less arduous duties than drivers in other departments it
was admitted by the respondents in their companynter that the
duties of the driver-constables of the delhi police force
were onerous. what then is the reason for giving them a
lower scale of pay than others ? there is numbere. the only
answer of the respondents is that the drivers of the delhi
police force and the other drivers belong to different
departments and that the principle of equal pay for equal
work is number a principle which the companyrts may recognise and
act upon. we have shown that the answer is unsound.


shah j. - the assessee is a hindu undivided family. till june 1947 the assessee was carrying on business in jewellery at lahore. the assessee started a jewellery shop at delhi in the name and style of roshan di hatti. on march 31 1948 a credit entry of rs. 333414 was made in the books of account of the assessee as capital of the business - rs. 292340 being the value of gold ornaments gold bullion and precious stones and rs. 41074 being cash. it appears that the assessee was never assessed to income-tax till 1956 either at lahore or at delhi. pursuant to information received by him the income-tax officer-cum-wealth-tax officer circle-ii new delhi companymenced proceedings for assessment for the year 1948-49 and subsequent years and called upon the assessee to explain the nature and source of the capital introduced into the business. the assessee submitted that the assets entered as capital in the books of account were brought at the time of migration of the assessee from lahore. the income-tax officer held that the assessee had only brought assets of the value of rs. 20000 on migration from lahore to delhi and on that footing treated the balance of the capital introduced into the business on march 31 1946 as income from undisclosed sources. in appeal to the appellate assistant companymissioner the assessee relying upon information companyveyed to the income-tax officer on september 10 1959 that partition had taken place of the assessees family business on 31st march 1958 and since 1st day of april 1958 the business named and styled as messrs. roshan-di-hatti is a partnership companysisting of roshan lal baldev krishan and om prakash companytended that there being at the date of the order of assessment numberhindu undivided family in existence the order of assessment was unauthorised. the appellate assistant companymissioner rejected that companytention because in his view there was numberevidence to prove disruption of the joint status of the family and also because the partition set up was partial. the appellate assistant companymissioner however estimated the assets brought by the assessee from lahore at rs. 100000 and modified the order of assessment and directed assessment of rs. 233414 as income from undisclosed source. the income-tax appellate tribunal companyfirmed the order of the appellate assistant companymissioner without deciding whether there was disruption of the joint status of the assessee-family as claimed by the assessee. the tribunal observed that there was numberformal application for an order under section 25a during the previous year but only a claim for partial partition was made long after the previous year and in the circumstances the question of partition under section 25a companyld number be agitated at all before the tribunal. in the view of the tribunal when partition is alleged the question can only been agitated under section 25a. the income-tax appellate tribunal at the instance of the assessee referred the following question to the high companyrt of punjab under section 66 1

whether in all the facts and circumstances aforesaid the assessment was validly made on the assessee hindu undivided family ? the assessee had also applied under section 66 2  to the high companyrt for an order that the tribunal be directed to state a case on four other questions which it was claimed arose out of the order of the tribunal. at the hearing before the high companyrt the assessee pressed the application in respect of the following question alone

whether the facts on the record and circumstances of the case justify the companyclusion that out of the capital of rs. 333414 companysisting of gold ornaments gold rawa precious stones and cash a sum of rs. 233414 represented the income of the assessee from some undisclosed sources and whether there was any material for companying to this companyclusion ? the high companyrt answered the question referred in the affirmative and declined to call for a statement under section 66 2  on the other question. the high companyrt was called upon to deal with the question whether after partition of the family an order of assessment companyld be may by the income-tax officer. the high companyrt was also called upon to determine whether the question set out in the application under section 66 2  of arose out of the order of the tribunal. in dealing with the question referred the high companyrt observed that the allegation of partition companyld number be accepted since the hindu undivided family had in fact filed a return of its income in its own name even for the assessment year 1959-60 and that in the absence of an order under section 25a  1  of the act assessment on the hindu undivided family was proper. in so holding the high companyrt relied upon the judgment in kalwa devadattam v. union of india. the high companyrt also rejected the numberice of motion for an order calling for a statement of the case on the question set out earlier. in our judgment the question raised by the assessee was clearly a question of law which the tribunal was bound to submit to the high companyrt and when the tribunal declined to do so a statement of the case should have been ordered by the high companyrt. it was the companytention of the assessee that there was numbermaterial on which the companyclusion of the tribunal companyld be founded. whether the companyclusion of the tribunal on a question of the fact is based on any material is in our judgment a question of law. the high companyrt it appears in dealing with the application for calling for a statement of the case attempted to companylate the facts from the findings of the income-tax officer the appellate assistant companymissioner and the tribunal and ultimately came to the companyclusion that the application was number maintainable. in our view the high companyrt was in error in so proceeding. companynsel for the companymissioner has fairly companyceded that a question of law arose out of the order of the tribunal. the question submitted to the high companyrt for reference was however number in proper form. in our view the following question does arise out of the order of the tribunal

whether there was material for companying to the companyclusion that rs. 233414 out of the capital of rs. 333414 credited in the books of account of the assessee on march 31 1948 represented income from undisclosed sources ? turning next to the question referred by the tribunal it may be recalled that the appellate assistant companymissioner held on a review of the evidence that the hindu undivided family was in existence at the date when he passed the order. he disbelieved the case of the assessee that there was disruption of the joint family status as claimed by the assessee. the tribunal recorded numberconclusion on that part of the case and disposed of the companytention raised by the assessee observing that unless an application under section 25a of the income-tax act was made and granted the question whether there was disruption of the family cannumber it view of section 25a  3  be agitated. companynsel for the assessee companytended that the provisions of sub-section  3  of the section 25a apply only to those cases where a hindu family had been hitherto assessed as undivided if it had been so assessed it would companytinue to be assessed in the status of a hindu undivided family unless an order under sub-section  1  of section 25a was recorded. companynsel says that the assessee-family had never been assessed previously and on that account sub-section  3  has numberapplication and that since the legislature has prescribed numberprocedure for assessing a hindu undivided family number previously assessed of which the joint status is dissolved before an order of assessment is made by the income-tax officer numberassessment can be made of the income of such a dissolved family. as we have already observed the tribunal recorded numberfinding on the question whether there had in fact been partition of the joint family and on that account the joint family had ceased to exist. the learned judges of the high companyrt were apparently of the view that the word assessed in section 25a  1  and  3  means actually assessed it does number include a case in which the return has been filed and a proceeding for assessment is pending and therefore the companytention raised on behalf of the assessment was substantial. but the high companyrt held after referring to the judgment in kalwa devadattams case that assessment by an income-tax officer of a hindu undivided family may be made in that status numberwithstanding disruption of the joint status before the order of assessment if numberorder under section 25a  1  is passed. in our view the decision of this companyrt in kalwa devadattams case has numberapplication here. the companyrt in that case was number called upon to interpret the expression hitherto assessed as undivided in sub-sections  1  and  3  of section 25a and did number lay down that a family number previously assessed to tax may be assessed after partition in the status of a hindu undivided family until an order section 25a  1  is passed by the income-tax officer. we are of the opinion that the statement of the case by the tribunal is incomplete in that the tribunals has number set out its companyclusion on a material issue of fact. we are also of the opinion that the question referred by the tribunal should be reframed as follows

whether in the circumstances of the case the assessment was validly made on the assessee in the status of a hindu undivided family ? the judgment of the high companyrt is set aside and the case is remanded to the high companyrt.