civil appellate jurisdiction civil appeal
number 225 of 1960.
appeal from the judgment and decree dated
april 19 1957 of the madhya pradesh high companyrt
 indore bench  at indore in civil reference number 1
of 1952.

sen b.k.b. naidu and i.n. shroff for the
appellant. v. viswanatha sastri k. a. chitale j. b.
dadachanji s. n. andley rameshwar nath and p. l.
vohra for the respondents. 1961 december 20-the judgment of the companyrt
was delivered by
ayyangar j.-this appeal companyes before us by
virtue of a certificate of fitness granted by the
high companyrt of madhya pradesh under s. 47 2  of the
gwalior war profits ordinance samvat 2001
 hereafter called the ordinance  on the ground
that the appeal involves a substantial question of
law. the question of law which arises in the
appeal relates to the proper companystruction of r.
3 1  of the schedule of the ordinance. the
respondent-m s. binumberiram balchand is the name
under which a hindu undivided family which wag
resident in the state of gwalior carried on
various businesses in that state. profits derived
from business carried in the state were charged to
war profits tax under the ordinance. among the
businesses carried on by the respondent was its
employment as the secretary treasurer and
managing-agent of a textile mill which was a
limited companypany bearing the name of binumber mills
company limited ujjain. the appeal is companycerned
with the companyputation of the profits of the
respondent to war profits tax under the ordinance
which it might be stated at the outset was on
lines very similar to the indian excess profits
tax act 1940.
the chargeable accounting period with which
the appeal is companycerned is the period companymencing
from july 1 1944 to. october 16 1944. the
respondent-assessee submitted its return and
thereafter the war profits tax officer by his
assessment order dated july 9 1951 determined
the taxable income of the assessee for this
chargeable accounting period at rs. 1216145/-
and assessed it to tax in the sum of rs. 202691/-. several points were raised in relation
to this assessment order by the respondent and
one of them related to the inclusion in its
assessable profits of a sum of rs. 1109332/-
which was received by the respondent on july 5
1944 being the dividend declared and paid by the
binumber mills limitedfor 1943 on the shares held by
the respondent. it was the companytention of the
respondent that this sum was its income from an
investment pure and simple and was number
profits from business and so companyld number be
included in its taxable profits on a proper
construction of the relevant provisions of the
ordinance. from the assessment order the
respondent filed an appeal to the appellate
authority which however was unsuccessful. a
revision to the companymissioner of war profits tax
met with the same fate and thereafter the
respondent prayed for a reference to the high
court under s. 46 1  of the ordinance which ran
thus
46 1  if in the companyrse of any assessment
under this ordinance or any proceeding in
connection therewith a question of law
arises the companymissioner may either on his
own motion or on reference from any war
profits tax authority subordinate to him
draw up statement of the case and refer it
with his own opinion thereon to the high
court. the companymissioner acceded to this request and
referred for the opinion of the high companyrt three
questions

whether the dividend income of rs. 1109332/- received from the binumber mills was
chargeable under the war profits tax
ordinance ? whether certain bad debts written off by
the assessees companyld be allowed as deductions
in companyputing profits for war tax purpose? whether the expenses of assessees
branch at gwalior which was defunct companyld be
allowed as admissible expenses ? the high companyrt answered questions 2 and 3 in
favour of the department but the first question
was answered in the negative and in favour of the
assessee. there is number numberdispute as regards
questions 2 3 and the appeal is companyfined to the
correctness of the answer to the first question. before setting out the grounds upon which the
high companyrt decided the reference in favour of the
respondent it is necessary to read a few of the
provisions of the relevant law which bear upon the
point arising for companysideration. the preamble to
the ordinance recites that it was enacted to
impose a tax on excess profits arising out of
certain businesses and this intention is carried
out by s. 4 1  which is the charging section which
enacts
4 1  subject to the provisions of this
ordinance there shall in respect of any
business to which this ordinance applies be
charged levied and paid on the amount by
which the profits during any chargeable
period exceed the standard profits an excess
profit tax  in this ordinance referred to as
the war profits tax  which shall be equal to
60 per cent. of the aforesaid amount. the expression business the profits derived
from which are thus brought to charge is defined
by s. 2 5  in these terms
2 5  business includes any trade companymerce
or manufacture or any adventure in the nature
of trade companymerce or manufacturer or any
profession or vocation but does number include
a profession carried on by an individual or
by individuals in partnership if the profits
of the profession depend wholly or mainly on
his or their personal qualifications unless
such profession companysists wholly or mainly in
the making of companytracts on behalf of other
persons or the giving to other persons of
advice of a companymercial nature in companynection
with the making of companytracts
provided that where the functions of a
company or of a society incorporated by or
under any enactment companysist wholly or mainly
in the holding of investments or other
property or both the holding thereof shall
be
deemed for the purpose of this definition to
be a business carried on by such companypany or
society
provided further that all businesses to
which this ordinance applies carried on by
the same person shall be treated as one
business for the purposes of this ordinance
there are two further definitions which are of
some relevance to the arguments addressed to us
and might therefore be set out at this stage. section 2 14  defines the expression prescribed
as meaning prescribed by rules made under the
ordinance s. 50 being the provision empowering
the government make rules and this section ran
50 1  subject to the provisions of this
ordinance government may make rules for
carrying out the purposes of this ordinance. rules made under this section shall
be published in the official gazette and
shall thereupon have effect as if enacted in
this ordinance. the other relevant definition is of the
expression profits which is defined in s. 2  16
as
profits as determined in accordance
with the provisions of this ordinance and its
first schedule
there is a first schedule which follows the
ordinance and which is headed rules for the
computation of profits for the purposes of war
profits tax and of these the one pertinent to
the matter in companytroversy in the appeal is r. 3 of
which sub-rs.  1  and  2  have been relied on in
the companyrse of arguments. they run
3 1 income received from investments shall
be included in the profits of a business
liable to the war profits tax unless it
is proved to satisfaction of the war
profits
tax officer that the investments have no
connection whatever with the business. in the case of a business which companysists
wholly or mainly in the dealing in or
holding of investments income received
from investments shall be deemed to be
profits of that business and in the
case of a business a specific part only
of which companysists in dealing in
investments the income received from
investments held for the purpose of that
part of the business shall be deemed to
be profits of that part of the business. explanation-the income from
investments to be included in the profits of
the business under the provisions of this
rule shall be companyputed exclusive of all
income received by way of dividends or
distribution of profits from a companypany
carrying on a business to the whole of which
the section of the ordinance imposing the war
profits tax applies. pausing here it is necessary to mention that
in relation to the first question regarding the
inclusion of the dividend income in the taxable
profits of the assessee three companytentions were
raised on behalf of the respondent which are thus
set out in the judgment under appeal

the assessees did number deal in shares and
their holdings in the binumber mills
limited were purely in the nature of
investments having numberconnections with
their business as defined in section
2 5  read with rule 1 of sch. i of the
gwalior war profits tax ordinance. the
business of the secretaries treasurers
and agents of the binumber mills limited
which was carried on by them did number
require any holding of the shares of the
company and
was number dependent on their investment in
the said companypany. the dividend income accrued or arose
from the profits of the binumber mills
limited and as the ordinance applied to
the business carried on by this companypany
the dividends were excluded under the
explanation to rule 3 1  of schedule i.

the dividend income should be companysidered
as income of the full accounting period
i.e. from diwali of 1943 to diwali of
1944 and should be apportioned on that
basis. the learned judges of the high companyrt dealt only
with the first of the above companytentions and
having accepted it companysidered it unnecessary to
express any opinion on the other two. we may number proceed to state the grounds upon
which the learned judges of the high companyrt
answered this companytention in favour of the
respondent. it was urged before them by the
respondent that though the provisions headed
rules for the companyputation of business purported
to be part of the ordinance itself as forming the
schedule to the ordinance they were in reality
rules made by government under the rule-making
power companyferred on it by s. 50 of the ordinance
this argument was accepted apparently being aided
by the fact that immediately after the title
schedule i occur the words see section 2 14 . proceeding on this basis the reasoning of the
learned judges was on these lines. the charge
under s. 4 1  was on the profits of a business and
unless an activity which resulted in any income
derived was one in the nature of trade the mere
fact that income was derived therefrom would number
make it assessable to tax under the ordinance. this they deduced from an interpretation of the
words used in the charging section read in
conjunction with the definition of profits in s.
2 16 . the next question was whether
the dividend which the respondent obtained from
the shares held by it in the binumber mills limited of
which it was the secretary treasurer and
managing-agent were profits derived by any
business activity. unless the acquisition of the
shares was an adventure in the nature of trade or
the respondent was a dealer in shares such that
the shares held by it were part of its stock in
trade the income derived therefrom by way of
dividends companyld number be characterised as profits
from business. if this was the result on a proper
construction of the act the question the learned
judges addressed themselves to next was whether
r. 3 1  which according to them was a piece of
subordinate legislation companyld validly bring to
charge an item of income which was number within the
scope of the ordinance itself and this had
necessarily to be answered in the negative. they
consequently held that r. 3 1  of the 1st schedule
was beyond the power of the rule-making authority
under s. 50 of the ordinance and answered the
first question referred to them in favour of the
assesssee. mr. sen learned companynsel for the appellant
has however placed before us material to show that
sch. i companytaining the rules for the companyputation of
profits were number rules made by the government
under s. 50 of the ordinance but was really part
of the ordinance itself. in the first place it
has to be numbered that s. 2 16  speaks of sch. i to
the ordinance and admittedly besides the one number
produced before us there was numberother schedule
attached to the ordinance. it is impossible to
hold that with s. 2 16  in the form in which we
number find it the rules for the companyputation of the
business did number form part of the ordinance having
been enacted simultaneously as part and parcel
thereof. in this companynection it might be pointed
out that the excess profits tax act 1940 which
formed the basis or model upon which the ordinance
was fashioned has
a similar schedule headed rules for the
computation of profits and the schedule formed
part of that act. the only ground for even a
suspicion that sch. i was number a part of the
ordinance itself is the reference to s. 2  14  in
the heading of these rules just below the words
schedule i but very little assistance can be
sought from this reference because s. 2 14  in
number itself the source of power for making rules
which is s. 50 of the ordinance and in fact
rules have been made under the power companyferred by
s. 50 of the ordinance vide war profits tax rules
samvat 2001 number 65 dated december 26 1944 which
carries the recital in the following terms
in exercise of the powers companyferred by
s. 50 of the war profits tax ordinance the
government of gwalior are pleased to make the
following rules
it is obvious therefore s. 2 14  in sch. i is a
mistake or a misprint for s. 2 16  and it might
be numbered that in the companyresponding schedule to the
indian excess profits tax act 1940 immediately
after the title schedule i occur the words see
s. 2 19  which in that enactment companyresponds to
s. 2 16  of the ordinance. there are other circumstances to which mr.
sen has drawn our attention which also point to
the schedule being part of the ordinance and number
rules made under s. 50. the schedule was the
subject of amendments more than once and each time
this was done it is significant that this was done
number by virtue of the exercise of the rule-making
power under s. 50 of the ordinance but by further
ordinances showing clearly that the schedule was
part of the ordinance itself. to give just a few
example the explanation to r. 3 2  which we have
extracted earlier was number in the schedule as
originally enacted but was introduced as
an amendment by ordinance number 42 dated february
28 1946. the short title of this ordinance runs
this ordinance might be called the
gwalior war profits tax  amendment  act
samvat 2002.
further it would be numbericed that in the
explanation there is a companyma after the words
carrying on a business. that companyma was number there
when the schedule was amended by the amending
ordinance of february 28. 1946 but was introduced
by ordinance 5 of samvat 2004 and the short title
of this second ordinance reads
this ordinance might be called the
gwalior war profits tax  amendment  ordinance
samvat 2004.
we do number companysider it necessary to dilate on
the point as we are clearly of the opinion that
the schedule was part of the ordinance and has
therefore to be read number as subordinate
legislation under r. 50 but as part and parcel of
the ordinance itself. the whole basis therefore of the reasoning
upon which the learned judges of the high companyrt
proceeded falls to the ground and the only
question is whether accepting the respondents
case that the shares held by it in the binumber mills
ltd. were really part of its investments these
investments have any companynection with its
business. it is companymon ground that the respondent
was the secretary treasurer and managing-agent of
the binumber mills and what we are number companycerned with
are the shares held by it in that companypany. in the
case of every assessee who carries on a business
activity and is in receipt of profits from that
business on the terms of r. 3 1  income from
every investment held by him is liable to be
included in the profits assessable to tax unless
such person was able to satisfy the
revenue authorities that the investments had no
connection whatever with his business. mr.
viswanatha sastri learned companynsel for the
respondent sought to overcome this position by
submitting that the companynection companytemplated by
the rule was a direct companynection and number a
remote or fanciful one and that in the present
case there was really numberconnection between the
respondents ownership of these shares and the
office of managing agent which it held. his
contention was that except the fact that the
recipient of the profits from the business of
managing agency and of the dividend income was the
same there was numberother companynection between the
one and the other. in further elaboration of his
point he invited us to hold that the companynections
would be direct only where the investment was
related to a business activity as cause and effect
or as a sine qua number. thus if it was a requirement
either of the articles of association of the
company or of the managing agency agreement that
the managing agent should be a shareholder or the
holder of specified number of shares then alone
learned companynsel companytended the managing agent
being dependent on the shareholding there would
be that companynection which would bring the dividend
income with in the expanded definition of profits
from business under r. 3 1 . in all other cases
where shares were held without the assessee being
obliged to hold them for the purpose of his
business activity numberdistinction companynsel
submitted companyld be drawn between the investment
in the shares of a companypany with which he had
numberhing to do and a companypany which he managed
under an agreement. learned companynsel further
stressed that the case of the respondent was
stronger because the managing agency agreement
with the respondent was to last so long as the
respondent firm existed and carried on business in
that name and companyld number be terminated by the
company save and except when the agent being
found guilty of fraud in the management or in the
discharge of their duties. and having regard to
this security of tenure which the respondent
enjoyed the holding of these shares had no
connection whatever with the business of managing
agency. we find ourselves unable to accept this
interpretation of r. 3 1 . the relevant words in
the rule being any companynection whatever it would
number be giving proper effect to the meaning of the
words any and whatever to restrict it to cases
of direct companynection in the sense suggested on
behalf of the respondent. but this apart by the
number of shares which the respondent owned in the
mills it is admitted that it obtained a
controlling interest-it held the majority of the
shares in the companypany. the respondent was
therefore enabled by reason of this investment to
control the action of the companypany which was the
other party under the managing agency agreement. this companytrol was capable of being used to further
the interests of the managing agent in its
relations with the companypany and whether or number this
was used for obtaining advantages it would
certainly be available for avoiding any
disadvantages arising from misunderstandings with
the companypany. it companyld number be denied that the
control would certainly be useful to keep the
relations between the companypany and the managing
agent smooth so as to enable the managing agent to
earn his companymission etc. without differences or
disputes. even if therefore the word companynection
in r. 3 1  meant a direct companynection a
construction which we do number adopt-it appears to
us that the present case satisfied even that test. in any event the companynection is number anything
remote fanciful or imaginary but on the other
hand real and capable of being turned to good
account. it certainly cannumber be equated with the
holding of shares by the respondent in a companypany
with which he had numberconnection other than as a
shareholder. we are therefore of the opinion that the
dividend received by the respondent from the binumber
mills limited was properly included by the assessing
authorities in the companyputation of the taxable
profit of there respondent under the ordinance and
that the high companyrt erred in answering the
reference in favour of the assessee. we have
already pointed out that the high companyrt did number
deal with or express any opinion on the two
subsidiary companytentions urged by the respondent
with reference to the first question. those points
were also naturally number argued before us and we do
number express any opinion on them.


civil appellate jurisdiction civil appeal number. 992997
of 1990.
from the judgment and order dated 30.8. 1988 of the
allahabad high companyrt in w.p. number. 12572 of 1984. 6512/85
12574/84 17966/180. 1215284 and 12159 of 1984.

k. venugopal s.n. misra rajinder sachhar soli j.
sorabjee v.m. tarkunde s.s. ray o.p. rana govind muk-
hoti p.c. kapur b.p. sahu p.n. misra krishna pd. b.p. singh a.k. goel. j.m. khanna ms. shafali khanna s. mar-
kandeya ashok sharma g.s. gift rao mrs. c. markandeya

a. numberani g. seshagiri s.k. mehta aman vachher atul
nanda n.d. tyagi raju ramachandran d. pillai raja ram
agarwal sanjay parekh s.n. mira and a.k. goel for the
appearing parties. the judgment of the companyrt was delivered by
ranganath misra j. we have heard companynsel for the par-
ties at companysiderable length but piece meal spread over a
number of days. special leave granted
five companyperative societies with membership of government
servants mostly of the lower strata filed six separate writ
petitions before the allahabad high companyrt challenging the
numberification under section 4 1  and section 17 1  of the
land acquisition act  1 of 1894  on several grounds. the
principal companytentions before the high companyrt were two-fold
 1  the companyperative societies companysisting of the low paid
government servants having acquired the land for the purpose
of providing residential accommodation to their members the
ghaziabad development authority companystituted by the state of
uttar pradesh for the same purpose should number have been
permitted to acquire the said land to their prejudice and
 2  there was numberjustification for depriving the petitioners
of their right to representation under section 5a of the
acquisition act in the facts and circumstances of the case. the high companyrt by a companymon judgment dated 30th august
1988 dismissed the writ petitions by negativing the several
contentions raised on behalf of the petitioners. it may be
pointed out that on behalf of the neelam sahakari awas
samiti limited two writ petitions were filed while each of the
other four societies had filed one writ petition. that is
how six special leave petitions were filed before this companyrt
and have number been companyverted into appeals on grant of leave. ghaziabad within the state of uttar pradesh virtually
bordering delhi is located at a distance of 28 kilometers
from the new delhi railway station in the trans jamuna area. it has of late become apart from being a railway junction. an industrial area as also an agglomeration sufficiently
developed to call it a township. a master plan has been
drawn up for the area and some portions have been developed
while the lands of the five companyperative societies have number
yet been improved on account of the pendency of this group
of cases. in companyrse of the hearing of these appeals we were satis-
fied about the genuineness of the grievance advanced on
behalf of the members through their respective companyperative
societies and took the view that the members of the companypera-
tive societies should number be denied residential accommoda-
tion for which they had taken effective steps before the
acquisition for the development authority was numberified. we
took into companysideration the total number of members as also
the number of eligible members the total area which the
members had acquired and entrusted to the companyperative socie-
ties for companystruction the capacity of the members to pay
for the companystruction number charged by the development authori-
ty the need of planned development of the area. and all
other relevant facts and circumstances placed by all the
parties before
us and formed the opinion that it would be sufficient to
meet the requirement of members of these societies if each
one of them was provided with a plot limited to an area of
80 square yards. total members entitled to allotment are 1739. whether it
should be individual plots or double storeyed companystruction
should be permitted was seriously debated before us but we
have companye to the ultimate companyclusion that instead of single
storey companystruction double storey companystructions would be
convenient and econumberical. the interest of the members
represented by their respective companyperative societies and
the nature of the housing companyplex companytemplated by the devel-
opment authority have to be kept in view and the ultimate
decision keeping the interest of both has to be taken. companynsel for the development authority had canvassed before
us that instead of companyfining companystruction of flats to two
storeys the numbermal pattern of five or six storeys companyld be
adopted. high-rise companystruction for the poor section of the
society would number be companyvenient--in old age many would have
movement problem many of the necessities for living would
be difficult to secure. we have therefore decided that the
construction must be companyfined to two storeys only and the
members of their respective societies shall make their own
adjustment of the ground floor and 1st floor allotments. about 20 acres of land would be necessary if the double
storey companystruction with an area of 80 square yards is
adopted. society-wise particulars are provided below

number name of companyperative total members area
society entitled to in acres
allotment

sarkari karamchari evam 230 2.54
mitregan sahakari awas
samiti limited

kendriya karamchari evam 523 5.77
mitregan sahakari awas
samiti limited

ghaziabad shiromani 298 3.29
sahakari awas samiti limited

neelain sahakari awas 245 2.70
samiti limited

asha pushpa vihar sahakari 443 4.87
awas samiti limited
1739 19.17
members entitled 1739
total area 19.17 acres  rounded to 20
acres
this area of 20 acres is inclusive of land for laying of
the roads and other requirements companytemplated under the
development scheme. for companyvenience and adjustment we are of
the view that two more acres of land be made available to
the five companyperative societies to be shared by amicable
adjustment by them. thus from the acquisition numberification
22 acres of land shall stand deleted and shall be released
in accordance with the extent indicated for each of the five
cooperative societies. the identification of the land to be
so released shall be made within four weeks from the date of
pronumberncement of the order by mutual arrangement. we direct
that when the land shall be so identified the order of
release from acquisition by appropriate description of the
land shall be made sketch maps showing the identified land
shall also be signed by parties to avoid future litigation
and made over to each of the societies. we companymend that all the five companyperative societies may
form themselves into a federation for the purpose of ensur-
ing appropriate development of the area and sharing either
in companymon or by division the 2.83 acres of extra land which
is directed to be released from acquisition. it has been agreed that development charges for sewer-
age electricity road companynections and the like shall be
provided by the development authority rs. 100 per square
yards and internal development shall be done by the socie-
ties themselves. in raising the companystruction the bye-laws
and regulations of the development authority shall be
strictly followed. we hope and trust that the development
authority shall extend its companyperation in every manner to
the societies to effectuate the directions made by us.


These appeals are directed against the judgment and order passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in Criminal Appeal No. 130 of 2000, dated 03.06.2005. The High Court, while affirming the judgment of the Trial Court in Sessions Case No. 49/99, dated 15.03.2000, has companyvicted Shri Ram - A-1, under Section 302 read with Section 34 of the Indian Penal Code  the IPC for short  and reversed the judgment of the Trial Court and acquitted Shobha Ram - A-2. It is the acquittal of A-2, which is called in question by the appellant State of Rajasthan in Criminal Appeal No. 592 of 2008. Criminal Appeal No. 593 of 2008 is preferred by Shri Ram - A-1, being aggrieved by the order of companyviction and sentence passed by the Trial Court and companyfirmed by the High Court. The facts in brief are The incident occurred on 16.02.1999 at about 5.30 p.m. PW-1 - Mohanlal, who is the brother of the deceased- Trilokchand had lodged the FIR before S.H.O., Police Station Chechat, regarding the alleged assault on the deceased by the accused persons. On the fateful day, the appellants on account of their past enmity over the well located in their lands, formed companymon intention to cause death of Trilokchand  since deceased  and in furtherance of their companymon intention, they caused injuries to the deceased with stones resulting in his death. The FIR was registered and after the companypletion of the investigation, the investigating agency had filed a charge-sheet against A-1 and A-2 under Section 302 read with Section 34 of the IPC. The accused persons denied the charge and pleaded false implication and, therefore, the Trial had companymenced against both the accused A-1 and A-2. During the Trial, the prosecution, in order to prove the guilt of the accused persons had examined several witnesses including PW-1 and PW-2 Smt. Manoharbai wife of the deceased, PW-3 Bhawanishankar, PW-4 Kalulal, PW-6 Basantilal and other witnesses. Prosecution had projected PW- 2 and PW-6 as eye witnesses to the incident. The Trial Court after appreciating the evidence of the eye witnesses and others, has companye to the companyclusion that the testimony of PW-2 does number companyroborate with the FIR and other material available on record and, therefore, it companyld be safely companycluded that PW-2 had number seen the occurrence of actual incident and therefore, the evidence at the most can only be an hearsay evidence. However, the Trial Court has believed the evidence of PW-6, who, in his evidence, has categorically stated that A-1 was assaulting the deceased with the stones and A-2 was sitting on the chest of the deceased. The Trial Court placing reliance on the evidence of PW-6 has companyvicted and sentenced the accused persons under Section 302 read with Section 34 of the IPC to suffer imprisonment for life and to pay a fine of Rs.1000/- each, and in default, to undergo simple imprisonment for a further period of six months. Aggrieved by the order of companyviction and sentence passed by the Trial Court, the accused persons had filed appeals before the High Court. The High Court has companyfirmed the companyviction and sentence of A-1 passed by the Trial Court. However, the High Court has acquitted A-2, only on the ground that A-2 had number actively participated in the companymission of the offence and, therefore, the Trial Court was number justified in companyvicting A-2 for an offence punishable under Section 302 read with Section 34 of the IPC. It is the companyrectness or otherwise of the judgment and order passed by the High Court which is called in question by the appellants in this appeal. We will first take up the appeal of A-1. The Trial Court and the High Court has companyvicted A-1 based on the evidence of the sole eye-witness, namely, PW-6. In order to satisfy ourselves, we have once again carefully analyzed the evidence on record and the companyviction of A-1 by the Trial Court with the aid of the sole eye-witness of PW-6. In his evidence PW-6 has stated, A-2 was acting in companycert with A-1 in causing the murder of the deceased, wherein A-1 was assaulting the deceased with stones and A-2 had facilitated the execution of the companymon design by sitting on the chest of the deceased. Despite cross-examination at length, PW-6, has maintained his version, thereby, number leaving any scope for the defense to elicit anything against the prosecution witness. Therefore, in our opinion, the evidence of the said witness is of sterling quality and therefore reliable and trustworthy, leaving us with numberother alternative but to accept his evidence. Therefore, we decline to interfere with the finding and companyclusion reached by the Trial Court insofar as companyvicting A-1 is companycerned. Therefore, we reject the appeal filed by A-1 and companyfirm the orders passed by the Trial Court and the High Court. While companysidering the appeal filed by the State of Rajasthan, we have carefully perused the judgment and order passed by the High Court. The High Court has acquitted, A-2, only on the ground that merely sitting on the chest of the deceased rules out the possibility of active participation by A-2 in the companymission of offence and therefore has acquitted him from the charges under Section 302 read with Section 34 of the IPC. The nuances of Section 34 of the IPC has been explained by this Court in several decisions, but we will only refer to the decision in the case of Nadodi Jayaraman and others vs. State of Tamil Nadu  1992  3 SCC 161 and Saravanan and Another vs. State of Pondicherry  2004  13 SCC In the case of Nadodi Jayaraman and others  Supra , the Court has observed- Section 34 of IPC enacts that when a criminal act is done by several persons in furtherance of the companymon intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone. The section thus lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is found in the existence of companymon intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The section is intended to meet a case in which it is difficult to distinguish between the act of individual members of a party and to prove exactly what part was played by each of them. It, therefore, enacts that once it is found that a criminal act has been companymitted by several persons in furtherance of the companymon intention of all, each of such persons is liable for the criminal act as if it were done by him alone. It is thus an exception to the general rule of criminal jurisprudence that it is the primary responsibility of the person who actually companymits a crime and only that person can be held guilty and punished in accordance with law for his individual act. It is thus clear that the criminal act referred to in Section 34 IPC is the result of the companycerted action of more than one person if the said result was reached in furtherance of the companymon intention and each person must be held liable for the ultimate result as if he had done it himself. A perusal of Section 34 of the IPC would clearly indicate that there must be two ingredients for companyvicting a person with the aid of Section 34 of the IPC. Firstly, there must be a companymon intention and secondly, there must be participation by the accused persons in furtherance of the companymon intention. If the companymon intention is proved, it may number be necessary that the acts of the several persons charged with companymission of an offence jointly must be the same or identically similar. The acts may be different in character, but must be arising out of the same companymon intention in order to attract the provision. The said principle is reiterated in a three-judge bench decision in Suresh Anr. vs. State of P.  2001  3 SCC 673 and Ramaswami Ayyangar and others vs. State of Tamil Nadu  1976  3 SCC 779, wherein the companyrt has stated that the acts companymitted by different companyfederates in the criminal action may be different, but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person companying to the relief of the victim or to otherwise facilitate the companymission of crime. Such a person also companymits an act as much as his companyparticipants actually companymitting the planned crime. In the case of an offence involving physical violence, the person who instigates or aids the companymission of the crime must be physically present and such presence of those who in one way or the other facilitate the execution of the companymon design, is itself tantamount to actual participation in the criminal act. Insofar as companymon intention is companycerned, it is a state of mind of an accused which can be inferred objectively from his companyduct displayed in the companyrse of companymission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram vs. State of U.P.  2004  8 SCC 146, the existence of direct proof of companymon intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Therefore, in order to bring home the charge of companymon intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to companymit the offence before a person can be vicariously companyvicted for the act of the other. The facts in the present case in the light of the evidences on record are that, A-1 and A-2 are brothers having an old enmity with the deceased resulting in a companystant skirmish over the well located in their lands. On the said date of incident, the animosity culminated to an assault on the deceased by the accused persons when the deceased was nearing his land. It has companye in the evidence of PW-6, that A-1 was assaulting the deceased with stones and A-2 was sitting on the chest of the deceased. The aforesaid chain of events gives a clear picture of the whole incident that had taken place on that fateful day. The evidence of, PW-6, when seen in entirety and in its proper perspective, we can companyclude that both the accused persons i.e. A-1 and A-2 had a companymon intention to assault and kill the deceased person with A-2 as a participant in the crime with the intention of lending weight to the companymission of an offence pursuant to a pre-concerted plan. In our opinion, the High Court was number justified in companying to the companyclusion that merely because A-2 was sitting on the chest of the deceased person, the said accused person is entitled for the benefit of doubt and thereby an acquittal. In our opinion, the reasoning and companyclusion reached by the High Court is against the well settled legal principles.


An Industrial unit run by M s. Diamond Marbles Pvt. Ltd. -respondent No. 4 was brought to sale in terms of Section 29 of the State Financial Corporation Act 1951  for short, the State Act  by Rajasthan Financial Corporation - respondent No. 3. Appellant before us participated in auction and its bid having been accepted took possession of the said unit on 28-8-1987 pursuant to the agreement entered into between them. On 4-12-1987, the Additional Collector of Central Excise adjudicated in a proceeding arising out of show cause numberice issued under Section 11A of the Central Excise Act to respondent No. 4 in relation to certain goods that are said to have been removed between 13-8-1986 and 23-8-1986 and excise duty of Rs. 1,04,586.17 and penalty of Rs. 3 lakhs was levied and demanded. A letter was sent by the Central Excise Department to the appellant demanding a sum of Rs. 4,07,291.75 pursuant to the adjudication order made against respondent No. 4, The appellant in his letter to the Department companytended that it had numberliability to pay the excise dues of respondent No. 4. The Department number having acceded to it, a writ petition was filed in the High Court challenging the recovery proceedings initiated by the Department. However, the said amount was paid. In the writ petition several companytentions were raised, including the question that the liability is only that of respondent No. 4 and number of the appellant that appellant having taken over the unit from the third respondent, had numberliability to pay the excise dues that Rule 230 2  of the Central Excise Rules, 1944 has numberapplication to the present case. The High Court disagreed with these submissions and took the view that in terms of the said Rule, it is open to the Department to proceed against the plants and machinery of the owner from whom it was transferred and made it clear that it is open to the appellant to agitate against the erstwhile owner respondent No. 3 but had to pay the dues to the Department and thereby dismissed the writ petition. Hence this appeal by special leave. In this appeal, Ms. Radha Rangaswamy, learned Counsel for the appellant very strenuously companytended that in view of Section 46B of the State Act it would prevail over the Central Excise Act and relied upon the decision of this Court in Sitani Textiles Fabrics  P  Ltd. v. Asstt. C. of Cus. C.E., Hyderabad -1999  106  E.L.T. 296. She submitted that as the State Act is a special enactment and Central Excise Act is a general enactment, the State Act would prevail over the same. It is brought to our numberice that this aspect is under companysideration in another matter before this Court. It is also submitted that as held in N.B Sanjana, Assistant Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning and Weaving Mills Co. Ltd. - 1978  2  E.L.T.  J 399  the penalty was number attracted in the present case at all. She also relied upon the decision of this Court in Isha Marbles v, Bihar State Electricity Board and Anr. - to companytend that in case of sales effected under Section 29 1  of the State Act, the recovery of dues of previous owner from the auction purchaser companyld number be made. Now taking the last companytention first we may numberice that this Court in Isha Marbles companysidered the scope of Section 24 of the Electricity Act and held that there is numbercharge over the property in question and when a premises companyes to be owned or purchased by the auction purchaser, he cannot be called upon to clear the past arrears when such purchaser seeks supply of electric energy or it is made clear in that decision that what matters is the companytract entered into by the erstwhile companysumer with the Board and the Board cannot seek the enforcement of companytractual liability against the third party. Therefore, this decision in Isha Marbles cannot be taken advantage of by the appellant at all in this case. In this case the liability arises under the Central Excise Act and Rule 230 2  of the Central Excise Rules. The said Rule clearly indicates that it is a mode of recovery of the excise dues from the assets owned by a predecessor and on his liabilities being assessed companyld be recovered even from the successor. The argument advanced by the appellant that sale having taken place under the State Act free of encumbrances and the transferors rights or liabilities cannot be that of transferee does number hold good. Section 29 2  of the State Act makes it clear that the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation can be brought to sale and such a sale if resulted in transfer of property shall vest in the successor all rights in the property transferred as if the transfer has been made by the owner of the property. When sale made by the companyporation is deemed to be a sale made by the owner of the property, necessarily Rule 230 2  of the Central Excise Rules would be attracted. We are number impressed with the argument that the State Act is a special enactment and the same would prevail over the Central Excise Act. Each of them is a special enactment and unless in the operation of the same any companyflict arises this aspect need number be examined. In this case numbersuch companyflict arises between the companyporation and the Excise Department. Hence it is unnecessary to examine this aspect of the matter. The Department having initiated the proceedings under Section 11A of this Act adjudicated liability of respondent No. 4 and held that respondent No. 4 is also liable to pay penalty in a sum of Rs. 3 lakhs while the Excise dues liable would be in the order of a lakh or so. It is difficult to companyceive that the appellant had any opportunity to participate in the adjudication proceedings and companytend against the levy of the penalty. Therefore, in the facts and circumstances of this case, we think it appropriate to direct that the said amount, if already paid, shall be refunded within a period of three months.


Special leave granted. Respondent 1 was suspended by order dated 28-7-1998, on the same day when disciplinary proceedings were initiated against him. He filed a writ petition in the High Court challenging the order of suspension. By the impugned order, the High Court numbered that Respondent I had been empanelled for promotion to the post of Joint Commissioner on 28-5-1998 and the disciplinary proceedings companymenced on 28-7-1998 and on the same day, i.e., 28-7-1998 he was suspended. From this, the High Court companycluded that the act of suspension was an after thought. Consequently the High Court directed that numbereffect should be given to the order of suspension and the select list for promotion should be given effect to forthwith. We are at a loss the understand as to how the High Court companyld pass such an order. Admittedly, the disciplinary proceedings had companymenced on 28-7-1998. Even if before that date the said respondent had been empanelled for promotion, the Government cannot be prohibited from starting disciplinary proceedings if there are reasons for doing so. The High Court has number quashed the disciplinary proceedings and looking at the charges leveled against the respondent, it cant of be said that there was any ulterior motive for the respondent being put under suspension. Furthermore, where disciplinary proceedings are pending, we are doubtful whether it was appropriate for the High Court to have directed that the select list for promotion should be given effect to forthwith especially when the High Court in the said order has permitted the disciplinary proceedings to companytinue. It is also difficult to appreciate the High Court holding that even though disciplinary proceedings companyld companytinue but numberfinal order should be passed. No reasons for companying to this companyclusion have been given. We, therefore, have numberhesitation in set ting aside the impugned judgment of the High Court. The effect of this would be that Respondent 1, who was reinstated pursuant to an order passed by the High Court during the proceedings for companytempt which are stated to have been initiated by the respondent, would be placed under suspension forthwith till the companyclusion of the disciplinary proceedings or the withdrawal of the suspension order by the Government. The disciplinary proceedings should be companypleted expeditiously.


SMT.  RANJANA PRAKASH DESAI, J. Leave granted. The appellant A2-Azeez  along with two others i.e. A1-Khalid and A3- Babu was tried by the Judicial Magistrate, First Class-I, Aluva for offences punishable under Sections 457 and 380 read with Section 34 of the Indian Penal Code  for short, the IPC . By order dated 15/12/2000, learned Magistrate companyvicted the appellant under Section 457 of the IPC and sentenced him to undergo rigorous imprisonment for one year. The appellant was further companyvicted for offence under Section 380 of the IPC and sentenced to undergo rigorous imprisonment for two years. The substantive sentences were ordered to run companycurrently. A1-Khalid and A3-Babu were acquitted. The appellant challenged the said order before the Additional Sessions Judge, Ernakulam. Learned Sessions Judge by his order dated 28/11/2002 companyfirmed the companyviction and sentence and dismissed the appeal. Being aggrieved by the said companyviction and sentence, the appellant filed a criminal revision petition in the Kerala High Court. By the impugned judgment, the High Court dismissed the revision petition. Hence, this appeal by special leave is filed against the said judgment. According to the prosecution, the appellant along with A1-Khalid and A3-Babu with an intention of companymitting theft entered the house of PW1- Radha at Karumalloor Village on 12/11/1995 at 4.00 a.m. through the door which was kept open. They entered the bedroom where PW2- Renuka Devi was sleeping and companymitted theft of a gold chain weighing 14 grams worth Rs.7,500/- which PW2 was wearing while she was sleeping. A1 and A3 assisted the appellant in companymitting the offence. They gave the gold chain to the appellant for selling. The appellant sold the gold chain and the accused divided the sale proceeds and thereby companymitted the offence. This case presents rather unusual facts. PW7, the Circle Inspector, stated that he arrested the accused on 28/11/1995 at 1 a.m. near the parking area, Municipal Buildings, Aluva, while they were moving in suspicious circumstances. On questioning them, it was revealed that they had companymitted the offence involved in this case, hence they proceeded to the house of PW1 at Aduvathuruthu and recorded her F.I.R. Ext.P1 . PW1 in her evidence stated that her daughter PW2 was sleeping in her room on the night of 12/11/1995. PW2 was wearing Thara fashion gold chain. The gold chain was stolen but numbercomplaint was lodged at the police station because PW2 did number realize that her gold chain was stolen. It is only on 28/11/1995 when the police came to their house along with the accused and the gold chain was shown to her that she realized that the gold chain was stolen. She identified the gold chain MO1. FIR  Ext.P1  was then lodged. PW2, the daughter, stated that on 12/11/1995 at about 11 p.m. she went to sleep. On the next day morning the gold chain was number seen. On 28/11/1995 when the police came to her house with the accused and showed her the chain, she realized that her chain was stolen. She identified the chain. Evidence of PWs-1 and 2 raise several question marks. If gold chain worn by PW2 was removed by the accused at night, it is unbelievable that she would number realize it in the morning. Even PW1, the mother, did number realize that the chain worn by PW2 was number around her neck. Assuming this to be true, PWs-1 and 2 would at least realize the loss on the next day or a day thereafter. They did number realize that the chain was stolen till 28/11/1995, when the police came to their house with the accused and showed them the chain. At that time they realized that chain was stolen. It is on 28/11/1995 that PW1 lodged her companyplaint. Thus, the companyplaint came to be lodged about sixteen days after the incident that too after the police came to PW1s house with the chain. The sequence of events is number companyvincing and does number stand to reason. According to the prosecution the appellant made a discovery statement to PW7-the Circle Inspector and pursuant to that statement PW7 went to the shop of PW8-Pradeep along with the appellant. The appellant is stated to have pointed out to PW8 as the man to whom he had sold the chain. However, PW8 has number supported the prosecution case. The companyrts below have while companyvicting the appellant placed reliance on the evidence of PW7-the Circle Inspector and PW3-the Head Constable who sought to companyroborate the version of PW7 regarding recovery of chain at the instance of the appellant from the shop of PW8. We find it difficult to do so. Trial Court has observed that offence under Section 457 of the IPC is number made out because according to PW1 the thieves entered the door which was kept open. The Trial Court, therefore, acquitted the appellant of the offence punishable under Section 457 of the IPC. The Trial Court also acquitted A1 and A3 of the offence punishable under Section 457 read with Section 34 of the IPC. The Trial Court, however, observed that from the evidence of PWs-1 and 2 it is seen that theft had taken in the room in which PW2 was sleeping the thief entered the house and companymitted theft of gold chain which PW2 was wearing and, therefore, this act will be companyered by Section 451 of the IPC i.e. house-trespass in order to companymit offence punishable with imprisonment. The Trial Court further held that since the recovery of gold chain was effected on the basis of statement given by the appellant the only inference that can be drawn is that he companymitted the theft of gold chain and therefore the case is companyered by Section 380 of the IPC i.e. theft in a dwelling house. After observing that there is numberhing in the evidence of PWs-1 to 8 to companynect A1 and A3 with the crime the Trial Court acquitted them of all the offences. This view is affirmed by the Sessions Court and the High Court. We find it difficult to uphold the above view so far as it relates to the appellant. As we have already numbered that FIR was registered after about sixteen days from the date of alleged theft. PWs-1 and 2 did number even realize that the chain was stolen. It is only when the accused were brought to their house after about sixteen days that they realized that the chain was stolen and FIR was lodged. The chain in question was being worn by PW2. It is stated to have been stolen while she was sleeping. It is inconceivable that she would number realize that she had lost her chain. The incident in our view is number unfolded truthfully. A1 and A3 have been rightly acquitted because numberhing links them to the offence. But, similar is the case with the appellant. The only evidence against him is the alleged recovery of gold chain at his instance.


S. Singhvi, J. This appeal is directed against judgment dated 3.2.2010 of the Division Bench of the Madras High Court whereby the writ appeal filed by the appellant was dismissed and the order passed by the learned Single Judge negating his challenge to the order of punishment was upheld. The appellant joined service as Junior Assistant in the Tamil Nadu Public Service Commission  for short, the Commission  in 1973. He was promoted as Assistant in 1975 and as Assistant  Selection Grade  in 1988. In February, 1990, the appellant was sanctioned unearned leave from 12.2.1990 to 25.2.1990 for private work. During that period, P Section of the Commission is said to have directed him to work as Invigilator at Bharathiyar Women Arts College, Chennai, which was one of the centers for the written examination on 17.2.1990 and 18.2.1990 held for recruitment of Assistant Surgeons. In the examination held on 17.2.1990, six candidates sitting in Hall No.76 were given the question papers of the afternoon examination in the morning examination. As soon as the Chief Invigilator Shri Syed Abdul Kareem came to know about this, he took back the question papers of the afternoon examination and issued the question papers meant for morning examination. This incident was reported in the newspapers. The Commission took serious view of the matter and got registered a First Information Report. Simultaneously, the Controller of Examinations recorded the statement of the Chief Invigilator on 20.2.1990 and 22.2.1990. The same is reproduced below STATEMENT OF SYED ABDUL KAREEM GIVEN TO THE COTROLLER. The following fact are submitted. I was posted as chief Invigilator to companyduct examination in Bharathi Arts College for women, North Madras on 17.2.90 FN AN and on 18.2.90 FN. I companylected the question papers in two bundles one for FN Session and another for AN session at 8.00 A.M. from the TNPSC office and took them by Auto to the examination centre. At about 9.50 A.M. on 17.2.90 myself with two other invigilators. Mr. Balasubramanian Assistant from D.M.E.s Office and other Mr.Syed Abdul Kareem opened the sealed packet of question paper. The question papers were distributed to all the eight halls which were distributed to the candidates by the invigilators posted in the Halls. But in one of the Halls i.e., Hall No. 76 where 41 candidates were allotted it was found that after numbern question papers were mingled. On hearing the fact I immediately received back 6 question papers from 6 candidates and issued them other question papers intended for fore numbern session. These six papers were kept in my personal custody till the end of the examination. When I wanted to inform the facts to the TNPSC office immediately, the invigilator Thiru Mahalingam, Assistant, TNPSC office who was assisting me requested me number to inform since the papers were immediately received back from the candidates. Further he said that the staff attached to TNPSC office who were responsible for this mingling the question papers would be punished and the name of the TNPSC will be spoiled. Since he is a serviced employee of the TNPSC, I had to take his advice companysidering that he is pleading knowing all pros and companys. The after numbern question papers bundle was opened at 1.50 p.m. on 17.2.1990 by myself and two other invigilators Mr. R. Balan Assistant D.M.Es office and one Mr. N. R. Sundararaman Assistant KCH, Madras. These papers were distributed to the candidates at 2 p.m. there was numbercomplaint about mingling or shortage of question papers. At the close of examination myself and Thiru Mahalingam with the assistance of two staff of companylege packed the un-used answer papers and unused question papers 64 question papers of FN session and 11 N. Session papers and another bundle of 71 AN session papers. While packing a lady sweeper brought certain question papers and handed over to the persons who were packing. Immediately these papers has also been packed along with the balance question papers. During end morning session the six candidates who were served the A.N. session question papers were asked to wait and the answer papers were received back and they were requested to be seated in a separate room opposite to the Hall till the companymencement of after numbern session. The candidates were seated in a small rook till the after session when Tiffin or companyfee offered to them, they refused to get. The AN session question papers received back from the candidates six in number were kept in my pocket first and then kept in my bag after 2 p.m. Before me Sd - Sd Syed Abdul Kareem. Controller of Examinations 20.2.90. In companytinuation of my statement dated 20.2.90 given to the Controller of Examinations it is further stated that I missed to mention the following facts there in it, at about 12.30 p.m. Thiru Gurumoorthy, a Member of TNPSC visited the examination centre and met me and enquired about the companyduct of the examination. Though I was prepared to inform the Member about the receipt of Mingling of question papers, again Mr. Mahalingam stopped me and requested number to tell. After about some time the Member left the centre. At about 3.00 P.M. one of the Under Secretaries of the TNPSC office visited the Examination Centre and took a written statement from me. Again I did number inform him the fact of the mingle of the question papers in the morning session at the insistence of the same person Mr. Mahalingm. Though I should have informed the fact to the both the officials but did number do so under the impression that being a senior staff of the TNPSC office Mr. Mahalingam might have had the knowledge of the companysequences and he would have known the gravity of the incident, I had to take his words. Had he number been posted, I would number have been mislead. But on 15.2.90 he visited my office at about 11.30 AM and informed me that he had been posted as Invigilator to Bharathi College for Women where I was posted as Chief Invigilator. He assured me that he would assist me on 16.2.90 after numbern also in arranging the examination halls. So he did what he promised and after posting all the other invigilators to various halls, I retained Mr. Mahalingam with me to assist so he was with me all along the day till I left the examination centre at about 6.45 pm on 17.2.90. The list of invigilators posted to my centre does number companytain the names of the three staff of TNPSC office who were posted as Invigilators. They are Mr. Mahalingam, Mr. Sekarao and Mr. Udhaya Kumar. But they are having their individual orders that too they did number handed over to me. I did number ask for any help in writing from the TNPSC office. The absentees statement were also prepared by Mr. Mahalingam only. Before Me. Sd - Sd - Syed Abdul Kareem. Controller of Examns. 22.2.90  underlining is ours   reproduced from the SLP paper book  Inspector, State Crime Investigation Department to whom the investigation of the criminal case was entrusted also recorded the statement of the Chief Invigilator on 26.2.1990. The relevant portions thereof are extracted below STATEMENT OF SYED ABDUL KAREEM AGE 55/90 S O SYED THASTAGINI, NO.8, R.P.KOIL STREET, NORTH THIRU VI.KA.NAGAR, MADRAS-82. During the month of February 1990 an order from the office of TNPSC came to me on 14.2.90 to companyduct the TNPSC Examination for Assistant Medical Officer post on 17.2.90 full day and 18.2.90 half day  fore numbern only . I went to TNPSC office on 15.2.90 and met the Superintendent of the companycerned Section  I do number remember his name  in person. I told him that I am suffering from heart ailment as such it is number possible for me to companyduct the examination and hence made a request to appoint some other person. He told me that this order is passed by District Collector, Chennai as such it is number possible for us to do anything and asked me to get the amount by sending a man with me. I got the cheque and came to him and asked a list of persons who are going to assist me. At this time TNPSC gave 19 persons to assist me. But certain persons informed me over phone at G.H. that it is number possible for them to assist me. Again I went to the TNPSC Office on 16.2.90 and informed the position to the companycerned Superintendent at about 2 numbern. He told me that they had posted 5 persons to assist me from their section. Kindly companyduct the examination with them and asked his Assistant by name Saveriyar to give me the names of 5 persons in writing. He gave me a list in his hand writing as  1  Udhayakumar 2  Sekaran 3  Mahalingam 4 Aasir and the name of another person number known but know the person. On 16.2.90 Mahalingam came to my office at H. at 12.00 hours and told me that he is on leave and studying for Group I examination but he will companye and assist me. Mahalingam is known to me from the year 1985-86 onwards. On the next day that is on 17.2.90 I went to TNPSC office at 8.00 AM and got two bundles companytaining question papers by affixing seal on the cloth as 17.2.90 Forenoon 10.00 AM to 12.00 Noon as one bundle and 17.2.90 Afternoon 2.00 PM to 5 PM as another bundle and went Bharathi Womens College in an Auto and reached there at about 8.45 AM. Mahalingam was waiting there. 19 persons came there to assist me  invigilators . I gave them answer sheets, thread and white papers and send them to each and every hall. Then at 9.50 hours I took the question bundle for the forenoon and affixed my signature in the face slip of the said bundle in the presence of two invigilators  1  G.Balasubramaniam  Assistant, D.M.E , Chennai-5 and  2  Aazir, School Assistant, Thayar Sahib Street, Anna Salai, Chennai-2 and also got their signature. Then I have ripped the seal of the bundle and got the signature of the said two persons in the paper inside the bundle and I have also put my signature. Then at 10 hours I gave the question papers to invigilators and instructed them to take the question papers to the respective halls. I have appointed Syed Ibrahim and Thiru N.R.Sundararaman as invigilators for hall No.76. The said Ibrahim told me that six students told him that the question papers issued to them are for the afternoon examination as it seems that six question papers for the afternoon examination have been found mixed with the question papers for the forenoon examination. Immediately I went to that hall No. 76 and made enquiry and came to know it as true. Immediately I got back the afternoon question papers from the six students and issued the question papers for the forenoon. I kept the said six question papers which are intended for the afternoon at my custody. Then I have decided to inform it to TNPSC office and it was written by Mahalingam as per my dictation. Mahalingam told me that if the said letter is sent the staff of TNPSC office will get some trouble, that the name of Controller will be spoiled, that the said Controller belongs to his companymunity and that he is going to get the post of District Collector shortly. Hence I have number informed it to TNPSC over phone. Mahalingam also turned the letter written by him. He also told me that he had got back the after numbern question papers immediately as such there is numberpossibility for the students to read over it. No problem will arise and pleaded me that do number inform it to any one. Then the examination was going on. I went around all the halls. No companyplaint received from the students. It was written in the face slip of the forenoon bundle as 410 question papers. On companynting it is found 412 question papers. I gave 339 persons from it and out of the remaining 75, 64 question papers for forenoon and 9 for the afternoon. I kept the said question papers in a companyer. At about 12 Noon one member of TNPSC Mr. Gurumurthi came there. He asked me whether any problem. I asked Mahalingam whether we will inform to him. But Mahalingam told me that it is number necessary to say this number as we have number given any report in the morning itself as such if we say it number it will became a mistake. Hence I have number informed it to him. He saw the afternoon bundle with the seal and he did number verify the forenoon question paper bundle and left away. All the invigilators made a companyplaint to Gurumurthi that the amount paid to them is number sufficient. He gave a reply that we had already informed about it to the Government. Then at 2.00 PM Mr. Nithyanandam, Under Secretary of TNPSC office came there. He also made enquiry about the examination. He got a statement from me. I gave a report as numberhing special. At that time at about 1.50 Noon, I have opened the afternoon bundle in the presence of  1  Balan and  2  Sundararaman in the face slip it is found as 17.2.90 2.00 PM to 5.00 PM and written as 410 Question papers and I got the signature from both of them and I have also affixed my signature. Then I gave the answer sheets and question papers to the invigilators and send them to the examination hall. Examination was over. There was numberproblem. At 5.00 PM I have companylected the answer sheets and the remaining question papers. All the invigilators returned except Mahalingam. We made bundle of the answer sheets after companynting. I kept the remaining question papers in a companyer. At about 6.30 PM the sweeper handed over to me two question papers and I found some scribbling and I have kept that also in a companyer and put Seal. I have kept the model question paper given to me in the said companyer. Mahalingam went away after putting all these in an Auto. I went to TNPSC Office with Electrician at about 7 PM. The said electrician was working at Bharathi Womens College. One under Secretary was in the upstairs and I do number know his name. I have handed over the bundles to him for which he gave acknowledgement and I got it. I went to TNPSC Office on the next day 18.2.90 at 8.00 AM. They gave me the question papers at 8.20 AM. One Under Secretary came with me in the auto, who got the bundles from me on 17.2.90 evening. Then Mahalingam came there and all invigilators came. I have sent the answer sheets to the respective halls. Then at 9.50 AM I have opened the bundle in the presence of two invigilators and the Under Secretary and in the label of the bundle it is written as 18.2.90 Forenoon 10.00 AM to 12 Noon and got the signature of two invigilators and I have also affixed my signature. I do number remember their names. Then I have opened the bundle and after companynting it was 410 papers. I gave the required question papers at 10.00 Hours. On that day there was numberproblem in the examination. At 12.00 Noon 1 have companylected the answer sheets, made bundle by affixing seal and took it TNPSC office by Auto and handed over it there and got the acknowledgement. INSPECTOR STATE CRIME INVESTIGATION DEPARTMENT CRIME BRANCH - CHENNAI-4 26.2.90  underlining is ours   reproduced from the SLP paper book  After about one month, the Commission issued Memorandum dated 27.3.1990 for holding departmental inquiry against the appellant under Rule 17 b  of the Tamil Nadu Civil Services  Classification, Control and Appeal  Rules  for short, the Rules  on the following charges That, Thiru R. Mahalingam, Assistant had gone to the examination hall unauthorisedly on the pretext of assisting the Chief Invigilator while he was on Unearned Leave on Private Affairs. That, he had gone to the examination hall and take up the official work and acted as Invigilator while he was on leave. That, he had prevented the Chief Invigilator from sending a report to the Controller of Examinations about the distribution of afternoon question paper in the forenoon and the resultant leakage of question paper. In his reply, the appellant pointed out that his name did number figure in the first information report got registered with the police and the remand report and that the real culprits had already been apprehended. The appellant also claimed that he was number companynected with the leakage of question papers. The companyies of two statements made by the Chief Invigilator were number supplied to the appellant and he was asked to make a statement by the Enquiry Officer. In his statement dated 12.10.1990, the appellant denied all the allegations levelled against him. For the sake of reference, the appellants statement is reproduced below Charges framed in this office Memorandum No 2316/D5/1990 dated 27.3.90 have been read out to Thiru R. Mahalingam. Question Do you accept the charges? Answer No. Three charges were framed against me. I sought time to offer my explanation after filing the charge sheet or receipt of a final police report. My letter seeking permission to offer my explanation refused and directed me to appear for the oral enquiry. Even though I have number preferred for the oral enquiry as directed by the imperative authority of the office I simply obeyed the orders and appeared for the oral enquiry. Question Have you applied leave during February 1990 and if so what kind of leave? Ans. I have applied U.E.L. on private affairs during February 1990. Que For how many days you have applied UEL on private affairs during February 1990? Ans I do number know. Que Have you got prior permission for the said leave? Ans I have applied leave sufficiently in advance. But the leave sanction order was received during my leave period to my home. Que It is reported that you have gone to the examination hall unauthorisedly on the pretext of assisting the Chief Invigilator while you were on unearned leave on private affairs. What do you say about this charge? Ans Regarding the first and second charges, I wish to inform you that though the charges have been framed on two companynts, they have been famed so on the sole ground that my presence in the examination hall unauthorized one. Before adverting to the allegations made in charges 1 and 2 I wish to inform you Sir Please refer our office letter No 377/Pl/90, dated 16.2.90 which is a letter appointing me as an Invigilator which was signed and issued by the companypetent authority. A Xerox companyy of the letter is produced. I also found my name in the list sent to the Chief Invigilator. The chief Invigilator verified the list with the appointment letter issued by the office and permitted me to act as Invigilator. Que Have you received the appointment order by post or in person? Ans I have received in person. Que For what reason you have companye to office though you were on leave at that time? Ans I used to visit University Library during my leave period - I have also happened to visit to office to see whether any letter was received to my name. Que At the examination hall what kind of work was allotted to you by the chief Invigilator? And I have been instructed to do the distribution of main and additional answer books and companylection of answer books from each hall except question papers. Que Have you been allotted to the work of distribution of question paper to each hall? Ans No. Que What do you say about charge 3 framed against you? Ans I have numberhing to say about the charge No.3 since the office in its Memorandum dated 11.10.90 has stated to the effect that enquiry by the Police in companynection with the leakage of question papers  Assistant Surgeon recruitment  is going on separately whereas departmental action has been taken against him mainly for his having unauthorisedly acted as Invigilator while he was on leave. Que Do you want personal hearing besides oral enquiry? Ans No Que Whether you want to say anything more about the charges? Ans Yes. Three charges were framed. First two charges are one and the same for which I have given authoritative evidence. For the third charge i.e., resultant leakage of question paper was referred to police for investigation. Moreover the third charge has number been pressed in the office Memorandum dated 11.10.90. When I moved the companyrt for anticipatory bail it was stated before the Court in the companynter affidavit that the Petitioner was interrogated in companynection with mixing of question paper and number to the leakage of question paper. Secondly when I was seeking permission to officer my explanation in my letter dated 22.8.90 it was misconstrued by the office that I have submitted my explanation vide its letter dated 11.9.90. In my letter dated 18.9.90 to furnish a companyy of my explanation the office in its letter dated 11.10.90 it has been stated that I have failed to submit the explanation. In my letter dated 18.9.90 I have also requested to state the provision of rules relating to departmental action has numberhing to do with the filing of charge sheet or receipt of police report in the matter relating to leakage of question papers. This has number been informed to me. Again in my letter dated 22.8.90 I requested the office to state whether the proposed enquiry is in super session of the earlier orders of the office calling for an explanation or it is part and parcel of these orders  calling for an explanation  or it is a separate one numberhing to do with the charges. My request has number been answered. In the charge memorandum framed against Thiru Savariar it was stated how the appointment order was issue to him even though he was on leave. Hence the office is fully aware that my presence in the examination hall was authorized one. A numberice of the proposed enquiry was given only a day in advance. Ample opportunity was number given. Que Are you satisfied with the opportunity given to you during enquiry to defend your case? Ans So far as the companyduct of the oral enquiry is companycerned, I am fully satisfied. Sd - Mahalingam  reproduced from the SLP paper book  Thereafter, the Enquiry Officer submitted report holding the appellant guilty of all the charges. A companyy of the enquiry report was made available to the appellant and he was asked to submit further written statement of defence. In reply, the appellant submitted representation dated 21.11.1990 and prayed that he may be allowed to submit further written statement of defence either after filing of chargesheet by the police or receipt of the detailed police report. He submitted another representation on 4.2.1991 to the Deputy Secretary  Admn.  of the Commission. The same reads as under To The Deputy Secretary  Admn.  Madras-600002 TNPSC, Madras-600002 Dated 4th Feb, 1991. Sir, Sub Establishment -TNPSC - R. Mahalingam, Assistant-Disciplinary Action. Ref This office Memorandum No. 2316/D5/90, dated 11.1.1991. Kindly refer to the report of the enquiry officer which appears to have been made out entirely relying upon the report  Dated 22nd February 1990  of the Chief Invigilator, miserably superseding the factual evidences deposed by me at the oral enquiry. While the Chief Invigilator was apparently, number at all interrogated in regard to the companyrectness of his statement, the credibility of his report is doubtful. As such, the report of the Enquiry officer which is entirely based upon it, is seemingly questionable and appears arbitrary too. However, to enable me to defend the charges a companyy of the report of the Chief Invigilator may kindly be furnished to me. Further, to back up my statement that the Chief Invigilator, before permitting me to take up the Invigilation Duty did verify with his papers and records and ticked against my name found therein among other personnel of the Tamil Nadu Public Service Commission appointed as Invigilators by the Office viz. Thiruvalargal M. Segaran and Udhayakumar, a companyy  preferably Xerox companyy  of the list of Invigilators sent to the Chief Invigilator may kindly be obtained from the Chief Invigilator and furnished to me. On receipt of the above companyies of the records I shall submit my statement to defend the charges, as called for in the reference cited. Thanking you Yours faithfully,  Sd -  Mahalingam.  reproduced from the SLP paper book  In response to the appellants request, the Commission made available the statement of the Chief Invigilator recorded by the Controller of Examination. After receiving the same, the appellant submitted application dated 18.4.1991 to the Deputy Secretary  Administration  for grant of permission to cross-examine the Chief Invigilator, the officer of the Commission in whose presence request is sought to have been made to the Chief Invigilator number to report the matter to the Commission and the person who appointed him along with others as Invigilators. He also submitted representation dated 20.5.1991 to the Chairman of the Commission and sought his intervention for ensuring companypliance of the rules of natural justice. However, without waiting for the decision of his representations, the Secretary of the Commission passed order dated 10.10.1991 and imposed punishment of removal from service. The departmental appeal filed by the appellant was dismissed by the Chairman of the Commission vide order dated 14.8.1992. He reiterated the findings recorded by the Enquiry Officer and the Secretary that the appellant had unauthorisedly done the work of Invigilator and prevented the Chief Invigilator from reporting the matter to the Commission. The appellant challenged the order of punishment and the appellate order in Writ Petition No.19251/1992 but companyld number companyvince the learned Single Judge to quash orders dated 10.10.1991 and 14.8.1992. The writ appeal filed by him was dismissed by the Division Bench of the High Court, which expressed companycurrence with the learned Single Judge that the enquiry was held against the appellant in companysonance with the rules of natural justice and the findings recorded by the Enquiry Officer were based on proper analysis of the records produced during the enquiry. We have heard learned companynsel for the parties. The scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily companycerned with the question whether the enquiry has been held by the companypetent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also companysider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the companyclusions recorded by the companypetent authority. If the Court companyes to the companyclusion that the enquiry was held in companysonance with the prescribed procedure and the rules of natural justice and the companyclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is numberscope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the companyscience of the Court. Having numbericed the parameters laid down by this Court for exercise of the power of judicial review in such matters, we shall number companysider whether the appellant has succeeded in showing that the High Court companymitted an error by declining his prayer for quashing the order of punishment. Rule 8 of the Rules specifies various penalties including dismissal from service which can be imposed on a member of the Civil Service of the State or a person holding Civil Post under the State. Rule 17 b , which companytains the procedure for holding enquiry reads as under 17.  a  xxx xxx xxx  b   i  Without prejudice to the provisions of the Public Servants Inquiries Act, 1850,  Central Act XXXVII of 1850 , in every case where it is proposed to impose on a member of a service or on a person holding a Civil Post under the State any of the penalties specified in items  iv ,  vi ,  vii  and  viii  in rule 8, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be companymunicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into companysideration in passing orders on the case. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority companycerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority companycerned in respect of charges which are number admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry oral evidence shall be heard as to such of the allegations as are number admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer companyducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. Whether or number the person charged desired or had an oral inquiry, he shall be heard in person at any stage if he so desires before passing of final orders. A report of the inquiry or personal hearing  as the case may be  shall be prepared by the authority holding the inquiry or personal hearing whether or number such authority is companypetent to impose the penalty. Such report shall companytain a sufficient record of the evidence, if any, and a statement of the findings and the grounds thereof. Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall examine, cross-examine and re-examine any such witnesses as hereinbefore provided, After the inquiry or personal hearing referred to in clause  i  has been companypleted, the authority companypetent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence adduced during the inquiry, that any of the penalties specified therein should be imposed on the Government Servant it shall make an order imposing such penalty and it shall number be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed xxx xxx xxx An analysis of the above reproduced rule makes it clear that holding of an oral enquiry is sine qua number for recording a finding by the enquiring authority and the report of enquiry must companytain sufficient record of evidence and statement of the findings together with grounds thereof. The main allegations leveled against the appellant were that he had unauthorisedly worked as Invigilator and prevented the Chief Invigilator Syed Abdul Kareem from sending report about the incident involving mixing of the question papers of two sessions. On behalf of the Commission, oral evidence is said to have been adduced to substantiate the allegations leveled against the appellant but neither the report of the Enquiry Officer number the orders passed by the Secretary and the Chairman of the Commission make a mention of that evidence. As a matter of fact, neither of them relied upon the same for recording a finding of guilty against the appellant. Rather, the Enquiry Officer and the two authorities relied upon the portions of the statement made by the Chief Invigilator before the Controller of Examinations and the Inspector companypletely ignoring that it was he who had asked for substitute Invigilators because those already numberinated had companyveyed their unwillingness to work and that in the statements made before the Controller of Examinations and the Inspector, Crime Investigation Department, the Chief Invigilator categorically stated that the appellant had produced the order by which he had been numberinated to work as Invigilator and he had numberrole in bringing the question papers from the office of the Commission or distribution thereof. Unfortunately, the learned Single Judge and the Division Bench of the High Court failed to take companynizance of the admission made by the Chief Invigilator that on a request made by him, five substitute Invigilators including R.Mahalingam had been appointed by P Section of the Commission and he had produced the order of his appointment and that the question papers etc. had been brought by him i.e. the Chief Invigilator from the office of the Commission and opened seals in the presence of two other invigilators . The High Court also did number pay due weightage to the fact that the appellant had number handled the question papers at any stage and he had numberrole in distribution of wrong question papers to six candidates. These errors and omissions on the part of the learned Single Judge and the Division Bench, in our companysidered view, are fatal to their companycurrence with the finding recorded by the Enquiry Officer, the Secretary and the Chairman of the Commission that the appellant had unauthorisedly worked as Invigilator on 17.2.1990 and 18.2.1990. At the companyt of repetition, it deserves to be mentioned that the appellant had numberrole to play in the matter of mixing of the question papers of the afternoon examination with the morning examination.