civil appellate jurisdiction civil appeal number 1664 of
1974.
appeal by special leave from the judgment and order
dated the 18th december 1973 of the kerala high companyrt in
original petition number860 of 1973 and
civil appeals number. 891-892 of 1975
appeal by special leave from the judgment and order
dated the 25th january 1974 of the rajasthan high companyrt in

b. civil writ petitions number. 352 1826 of 1971
respectively. n. prasad for the appellants  in all the appeals . m. jain v. s. dave and inder makwana for the
respondent  in c.a. number 891/75
the judgment of the companyrt was delivered by
fazal ali j.-civil appeal number. 1664 of 1974 and 891 of
1975 are appeals by special leave directed against the
judgments of the kerala high companyrt dated december 18 1973
and the rajasthan high companyrt dated january 25 1974
respectively allowing the writ petitions filed before the
high companyrts by the respondents companycerned. civil appeal number
892 of 1975 has also been filed against the judgment of the
rajasthan high companyrt dated january 25 1974 with respect to
the respondent abdul hamid whose petition was allowed by the
same judgment of the high companyrt dated january 25 1974
which was decided in favour of the respondent narsing. it
would thus appear that the cases of the respondents narsingh
and abdul hamid had been decided by one companymon judgment of
the high companyrt of rajasthan. it was agreed at the bar that as the points involved in
all the three cases arc the same they may be disposed of by
one companymon judgment. we therefore propose to dispose of
all the three cases by one companymon judgment indicating
however the facts of each individual case wherever
necessary. as regards civil appeal number 1664 of 1974 the respondent

r. challappan was a railway-pointsman working at irimpanam
on olavakkot division of the southern railway. on august 12
1972 at about 3-30 p.m. he was arrested at the olavakkot
railway station
platform for disorderly drunken and indecent behavior and a
criminal case under s. 51 a  of the kerala police act was
registered against him after due investigations the challan
was presented before the sub-magistrate palghat who after
finding the respondent guilty instead of sentencing him
released him on probation under s. 3 of the probation of
offenders act. after the respondent was released the
disciplinary authority of the department by its order dated
january 3 1973 removed him from service in view of the
misconduct which led to the companyviction of the respondent on
a criminal charge under s. 51 a  of the police act. the
order removing the respondent from service merely shows that
it proceeded on the basis of the
conviction of the accused in the criminal case and there is
numberhing a to show that the respondent was heard before
passing the order. the kerala high companyrt held that as the
respondent was released by the criminal companyrt and numberpenalty
was imposed on him therefore r. 14 1  under which the
respondent was removed from service did number in terms apply. the high companyrt accordingly quashed the order passed by the
disciplinary authority and allowed the writ petition. in civil appeal number 891 of 1975 the respondent narsingh
was working as a railway khallasi working at the railway
workshop at jodhpur and was found to be in possession of
stolen companyper weighing 4 kilos and 600 grammes. the
respondent was prosecuted and was ultimately. companyvicted by
the trial magistrate under s. 3 of the indian railway
property  unlawful possession  act 1966. on appeal the
learned additional sessions judge jodhpur while
maintaining the companyviction of the respondent set aside the
sentence and released him on probation under the provisions
of the probation of offenders act. on the basis of the order
of companyviction passed by the criminal companyrt the assistant
personnel officer  w  who was the disciplinary authority
removed the respondent from service by his order dated
february 26 1971 and the departmental appeal against this
order was eventually rejected. thereafter the respondent
moved the high companyrt in its writ jurisdiction and the
petition was allowed by the high companyrt and the order of
removal from service was quashed by the high companyrt of
rajasthan. in civil appeal number 892 of 1975 the respondent abdul
hamid was a second fireman at the railway workshop at
jodhpur and he was prosecuted and ultimately companyvicted under
s. 420 of the indian panel companye by the special magistrate
jaipur by his order dated september 9 1970. the magistrate
however instead of sentencing him ordered him to be
released on probation under the provisions of the probation
of offenders act. the assistant mechanical engineer by his
order dated february 3 1971 removed the respondent from
service on the ground of his companyviction by a criminal companyrt
and the departmental appeal against this order filed by the
respondent was rejected on march 2 1971. thereafter the
respondent moved the rajasthan high companyrt under art. 226 of
the companystitution and the high companyrt quashed the order by
which the respondent was removed from service-hence the
appeal by special leave by the union of india against the
judgment of the rajasthan high companyrt. a close analysis of the facts of the cases of each of
the respondents would doubtless reveal that the points
involved in the three cases are almost identical though the
grounds on which the respective high companyrts leave proceeded
may be slightly different. mr. s. n. prasad appearing for
the appellants in all the three cases raised three points
before us h

that s. 12 of the probation of offenders act
con templates an automatic disqualification
attached to the companyviction and number an
obliteration of the misconduct
of the accused so as to debar the
disciplinary authority from imposing
penalties under the rules against an employee
who has been companyvicted for misconduct. rule 14 of the railway servants  discipline
and appeal  rules 1968 is in terms similar
to proviso  a  to art. 311 2  of the
constitution and companyfers power on the
appointing authority to pass an order of
dismissal against an employee who is found
guilty of a criminal offence without giving
any further numberice to the delinquent
employee. further r. 14 does number in terms
contemplate that the appointing authority
will companysider the penalty after either
hearing the accused or after ordering special
inquiry. that in the absence of any provision similar
to r. 14 the government is entitled. in the
exercise of its executive power to terminate
the services of. the employee who has been
convicted of a criminal charge without any
further departmental inquiry. learned companynsel appearing for the respondents in civil
appeal number 891 of 1975 as also civil appeal number 892 of 1975
contested the companytentions raised by the companynsel for the
appellants and submitted that the judgment of the high companyrt
laid down the companyrect law and that the mere fact that the
delinquent employee has been companyvicted of a criminal charge
cannumber ipso facto result in his automatic dismissal from
service. we have given our earnest companysideration to the
arguments advanced before us by companynsel for the parties. to
begin with the kerala high companyrt appears to have allowed
the writ petition solely on the ground that the order of the
magistrate releasing the respondent t. r. challappan on
probation did number amount to imposition of penalty as
contemplated by r. 14 of the railway servants  discipline
and appeal  rules 1968-hereinafter called the rules of
1968 and therefore the order passed by the disciplinary
authority was illegal. in order to understand it it may be
necessary to examine the scope and object of r. 14 of the
rules of 1968 which will also throw a great light on the
second point which has been dealt with at great length by
the rajasthan high companyrt namely the import of the closing
part of r. 14 where the disciplinary authority has to
consider the circumstances of the case before making any
order
in the instant case we are companycerned only with clause
 1  of r. 14 of the rules of 1968 which runs thus
numberwithstanding anything companytained in rules 9 to
13 .-
 1  where any penalty is imposed on a railway
servant on the ground of companyduct which has
led to his companyviction on a criminal charge
the disciplinary authority may companysider the
circumstances of the case and make such
orders thereon as it deems fit. the word penalty imposed on a railway servant in our
opinion does number refer to a sentence awarded by the companyrt
to the accused on his companyviction but though number happily
worded it merely indicates the nature of the penalty
impossible by the disciplinary authority if the delinquent
employee has been found guilty of companyduct which has led to
his companyviction of a criminal charge. rule 14 of the rules of
1968 appears in part iv which expressly companytains the
procedure for imposing penalties. further more r. 14 itself
refers to rr. 9 to 13 which companytain the entire procedure for
holding a departmental inquiry. rule 6 of part iii gives the
details regarding the major and minumber penalties. finally r.
14 1  merely seeks to incorporate the principle companytained in
proviso  a  to art. 311 2  of the companystitution which runs
thus

numbersuch person as aforesaid shall be
dismissed or removed or reduced in rank except after
an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being
heard in respect of o those charges and where it is
proposed after such inquiry to impose on him any such
penalty until he has been given reasonable opportunity
of making representation of the penalty proposed but
only on the basis of the evidence adduced during such
inquiry
provided that this clause shall number apply-
 a  where a person is dismissed or removed or reduced
in. rank on the ground of companyduct which has led to
his companyviction on a criminal charge
an analysis of the provisions of art. 311 2  extracted above
would clearly show that this companystitutional guarantee
contemplates three stages of departmental inquiry before an
order of dismissal removal or reduction can be passed
namely  1  that on receipt of a companyplaint against a
delinquent employee charges should be framed against him and
a departmental inquiry should be held against him in his
presence  ii  that after the report of the departmental
inquiry is received he appointing authority must companye to a
tentative companyclusion regarding the penalty to be imposed on
the delinquent employee and  iii  that before actually
imposing the penalty a final numberice to the delinquent
employee should be given to show cause why the penalty
proposed against him be number imposed on him. proviso  a  to
art. 311 2  however companypletely dispenses with all the
three states of departmental inquiry when an employee is
convicted on a criminal charge. the reason for the proviso
is that in a criminal trial the employee has already had a
full and companyplete opportunity to companytest the allegations
against him and to make out his defence. in the criminal
trial charges are framed to give clear numberice regarding the
allegations made against the accused secondly the
witnesses are examined and cross-examined in his presence
and by him and thirdly the accused is given full
opportunity
to produce his defence and it is only after hearing the
arguments that the companyrt passes the final order of
conviction or acquittal. in these circumstances therefore
if after companyviction by the companyrt a fresh departmental
inquiry is number dispensed with it will lead to unnecessary
waste of time and expense and a fruitless duplication of the
same proceedings all over again. it was for this reason that
the founders of the companystitution thought that where once a
delinquent employee has been companyvicted of a criminal offence
that should be treated as a sufficient proof of his
misconduct and the disciplinary authority may be given the
discretion to impose the penalties referred to in art. 311 2  namely dismissal removal or reduction in rank. it
appears to us that proviso  a  to art. 311 2  is merely an
enabling provision and it does number enjoin or companyfer a
mandatory duty on the disciplinary authority to pass an
order of dismissal removal or reduction in rank the moment
an employee is companyvicted. this matter is left companypletely to
the discretion of the disciplinary authority and the only
reservation made is that departmental inquiry companytemplated
by this provision as also by the departmental rules is
dispensed with. in these circumstances therefore we think
that r. 14 1  of the rules of 1968 only incorporates the
principles enshrined in proviso  a  to art. 311 2  of the
constitution. the words where any penalty is imposed in r.
14 1  should actually be read as where any penalty is
impossible because so far as the disciplinary authority is
concerned it cannumber impose a sentence. it companyld only impose
a penalty on the basis of companyviction and sentence passed
against the delinquent employee by a companypetent companyrt. furthermore the rule empowering the disciplinary authority
to companysider circumstances of the case and make such orders
as it deems fit clearly indicates that it is open to the
disciplinary authority to impose any penalty as it likes. in
this sense therefore the word penalty used in r. 14 1
of the rules of 1968 is relatable to. the penalties to be
imposed under the rules rather than a penalty given by a
criminal companyrt. anumberher important aspect of the matter is that a
criminal companyrt after. companyviction does number impose any penalty
but passes a sentence whether it is one of fine or
imprisonment or whipping or the like. the penal companye has
been on the statute book for a large number of years and the
rule-making authority was fully aware of the significance of
the words companyviction and sentence and if it really
intended to use the word penalty as an equivalent for
sentence then it should have used the word sentence and
number penalty. in these circumstances we are satisfied that
the word penalty has. been used in juxtaposition to the
other companynected provisions of the rules appearing in the
same part the view of the kerala high companyrt there fore. that as the magistrate released the delinquent employee on
probation numberpenalty was imposed as companytemplated by r.
14 1  of the rules of 1968 does number appear to us to be
legally companyrect and must be overruled nevertheless we would
uphold the order of the kerala high companyrt. on the ground. that the last dart of r. 14 of the rules of 1968 which
requires the companysideration of the circumstances
number having been companyplied with by the disciplinary authority
the a order of removal from service of the delinquent
employee was rightly quashed. this brings us to the companysideration of two inter-
connected questions namely as to what is the effect of the
order of the magistrate releasing the accused on probation
and the effect of s. 12 of the probation of offenders act. it was suggested by the respondents that if the magistrate
does number choose after companyvicting the accused to pass any
sentence on him but releases him on probation then the
stigma of companyviction is companypletely washed out and
obliterated and therefore r. 14 1  of the rules of 1968
will number apply in terms. we are however unable to agree
with this somewhat broad proposition. a perusal of the
provisions of the probation of offenders act 1958 clearly
shows that the mere fact that the accused is released on
probation does number obliterate the stigma of companyviction. the
relevant portion of the probation of offenders act 1958
hereinafter referred to as the act runs thus . numberwithstanding anything companytained in any
other law for the time being in force the companyrt may
instead of sentencing him to any punishment or
releasing him on probation of good companyduct under-
section 4 release him after due admonition. similarly the relevant part of s. 4 1  of the act runs thus
 numberwithstanding anything companytained in any
other law for the time being in force the companyrt may
instead of sentencing him at once to any punishment
direct that he be released on his entering into a bond
with or without sureties to appear and receive
sentence when called upon during such period number
exceeding three years as the companyrt may direct and in
the mean time to keep the peace and be of good
behaviour. sections 9 3   4  of the act read as under
9.  3  if the companyrt after hearing the case is
satisfied that the offender has failed to observe any
of the companyditions of the bond or bonds entered into by
him it may forthwith-
 a  sentence him for the original offence or
 b  where the failure is for the first time
then without prejudice to the companytinuance
in force of the bond impose upon him a
penalty number exceeding fifty rupees. if a penalty imposed under clause  b  of sub-
section  3  is number paid within such period as the companyrt
may fix the companyrt may sentence the offender for the
original offence
these provisions would clearly show that an order of release
on probation companyes into existence only after the accused is
found guilty
and is companyvicted of the offence. thus the companyviction of the
accused or the finding of the companyrt that he is guilty
cannumber be washed out at all because that is the sine qua number
for the order of release on probation of the offender. the
order of release on probation is merely in substitution of
the sentence to be imposed by the companyrt. this has been made
permissible by the statute with a humanist point of view in
order to reform youthful offenders and to prevent them from
becoming hardened criminals. the provisions of s. 9 3  of
the act extracted above would clearly show that the companytrol
of the offender is retained by the criminal companyrt and where
it is satisfied that the companyditions of the bond have been
broken by the offender who has been released on probation
the companyrt can sentence the offender for the original
offence. this clearly shows that the factum of guilt on the
criminal charge is number swept away merely by passing the
order releasing the offender on probation. under ss. 3 4 or
6 of the act the stigma companytinues and the finding of the
misconduct resulting in companyviction must be treated to be a
conclusive proof. in these circumstances therefore we are
unable to accept the argument of the respondents that the
order of the magistrate releasing the offender on probation
obliterates the stigma of companyviction. anumberher point which is closely companynected with this
question is as to the effect of s. 12 of the act which runs
thus
numberwithstanding anything companytained in any other
law person found guilty of an offence and dealt with
under he provisions of section 3 or section 4 shall number
suffer disqualification if any attaching to a
conviction of an offence under such law. it was suggested that s. 12 of the act companypletely
obliterates the effect of any companyviction and wipes out the
disqualification attached to a companyviction of an offence
under such law. this argument in our opinion is based on a
gross misreading of the provisions of s. 12 of the act. the
words attaching to a companyviction of an offence under such
law refer to two companytingencies  1  that there must be a
disqualification resulting from a companyviction and  ii  that
such disqualification must be provided by some law other
than the probation of offenders act. the penal companye does number
contain any such disqualification. therefore it cannumber be
said that s. 12 of the act companytemplates an automatic
disqualification attaching to a companyviction and obliteration
of the criminal misconduct of the accused. it is also
manifest that disqualification is essentially different in
its companynumberation from the word misconduct. disqualification
cannumber be an automatic companysequence of misconduct unless the
statute so requires. proof of misconduct may or may number lead
to disqualification because this matter rests on the facts
and circumstances of a particular case or the language in
which the particular statute is companyered. in the instant case
neither art. 311 2  proviso  a  number r. 14 1  of the rules of
1968 companytain any express provision that the moment a
person is found guilty of a misconduct on a criminal charge
he will have to be automatically dismissed from service. article 311  2  proviso  a  is an enabling provision which
merely dispenses with the various stages of the departmental
inquiry and the show cause numberice. rule 14 despite
incorporating the principle of proviso  a  to art. 311 2
enjoins on the discriplinary authority to companysider the
circumstances of the case before passing any order. thus in
our opinion it is a fallacy to presume that the companyviction
of a delinquent employee simpliciter without any thing more
will result in his automatic dismissal or removal from
service. it was however suggested that r. 14 1  of the rules
of 1968 is the provision which companytains the disqualification
by dispensing with the departmental inquiries companytemplated
under rr. 9 to 13 of the said rules. this cannumber be the
position. because as we have already said r. 14 1  only
incorporates the principle of proviso  a  to art. 311 2 . if
s. 12 of the probation of offenders act companypletely wipe out
the disqualification companytained in art. 311 2  proviso  a
then it would have become ultra vires as it would have companye
into direct companyflict with the provisions of the proviso  a
to art. 311 2 . in our opinion however s. 12 of the act
refers to only such disqualifications as are expressly
mentioned in other statutes regarding holding of offices or
standing for elections and so on. this matter was companysidered
by a number of high companyrts and there is a companysensus of
judicial opinion on this point that s. 12 of the act is number
an automatic disqualification attached to the companyviction
itself. in r. kumaraswami aiyar v. the companymissioner municipal
council tiruvannamalai and anumberher 1  rajagopala ayyangar
j. as he then was observed as follows. if for instance the petitioner is dismissed from
service because he has been found guilty of an offence
involving moral turpitude it cannumber be said that he is
suffering from a disqualification attaching to a
conviction. what s. 12-a has in view is an automatic
disqualification flowing from a companyviction and number an
obliteration of the misconduct of the accused. in my
judgment the possibility of disciplinary proceedings
being taken against a person found guilty is number a
disqualification attaching to the companyviction within the
meaning of s. 12-a of the probation of offenders act. the same view was endorsed by the full bench of the punjab
and haryana high companyrt in om prakash v. the director postal
services  posts and telegraphs deptt.  punjab circle ambala
and other 2  where it was observed
what section 12 removes is a disqualification
attaching to a companyviction. in my opinion neither
liability to be departmentally punished for misconduct
is a disqualifica-
 1  1957 cri. l j. 255 256.  2  a. t. r. 1973 punjab
1 4
tion number it attaches to the companyviction. disqualification its ordinary dictionary meaning
connumberes something that disqualifies or incapacitates. to disqualify a person for a particular purpose means
to deprive that person of the qualities or companyditions
necessary to make him fit for that purpose. it was further observed by the high companyrt
the other reason why section 12 of the act does
number help the petitioner is that the departmental
proceedings are number attached to the companyviction of the
offence. departmental proceedings are number taken because
the man has been companyvicted. the proceedings are
directed against the original misconduct of the
government servant. numberpart of section 12 is
intended to exonerate a government servant of his
liability to departmental punishment for misconduct. this provision does number afford immunity against
disciplinary proceedings for the original misconduct. what forms basis of the punishment is the misconduct
and number the companyviction. a full bench of the delhi high companyrt in director of
postal services and anr. v. daya nand 1  held the same view
and observed thus
firstly the ordinary meaning of qualification
is the possession of some merit or quality which makes
the possessors eligible to apply for or to get some
benefit. the word disqualification used in section 12
has the opposite meaning it imposes a disability on the
person to whom the disqualification is attached in
applying for or getting such benefit. the
disqualification companytemplated by section 12 is
something attached to the companyviction namely something
which is a companysequence or the result thereof. instances
of such disqualification may be found in a statute
statutory rule or in administrative practice. under
section 108 of the representation of people act 1951
a person is disqualified to he a member of parliament
or state legislature if he is companyvicted of certain
offences. it would also be an administrative
consideration in entertaining applications for jobs or
for grant of licences to disfavour an applicant a
convict. such a disqualification is removed by section

this meaning of disqualification does number include
the reason who a hearing prior to punishment is
dispensed with by proviso  a  to article 311 2  of the
constitution. secondly the object of section 12 is to
remove a disqualification attached to companyviction. it
does number go beyond it
 1  1972 s.l.r. 325.341
the decision in r. kumaraswami aiyars case  supra  was
followed in a later case in embaru v. chairman madras port
trust.  1
the andhra pradesh high companyrt in akella satyanarayana
murthy v. zonal manager life insurance companyporation of
india madras 2  appears to have taken the same view where
it was observed thus
 we are of the view that what section 12 of
the central act has in view is an automatic
disqualification flowing from a companyviction and number an
obliteration of the misconduct of the official
concerned. the disciplinary authority is number precluded
from proceeding under regulation 89 4  . the madhya pradesh high companyrt also took the same view
in premkumar v. union of india and others 3  where it was
observed
we have heard the learned companynsel at some length
but we find ourselves unable to agree with the above
contention. the relevant words of the section are
shall number suffer disqualification if any attaching
to a companyviction of an offence under such law. the
words can only be read so as to remove the
disqualification which under some law may attach to a
person on account of his companyviction. for instance if a
person is companyvicted of an offence he is disqualified
from standing for election to the central or state
legislatures. but if such a person is given benefit
under the probation of offenders act then by virtue of
section 12 of that act the disqualification for that
purpose  standing for election  will stand removed. a division bench of the delhi high companyrt in iqbal singh

inspector general of police delhi ors.  4  took a
contrary view but that decision has been overruled by a
later decision of the full bench of the same high companyrt in
director of postal services v. daya nand  supra  to which we
have already referred to. even the rajasthan high companyrt in its judgment
concerning civil appeal number 891 of 1975 has endorsed the
view taken by the madras high companyrt and followed by the
other high companyrts. we find ourselves in companyplete agreement
with the view taken by the madras high companyrt as referred to
above and as endorsed by the delhi rajasthan punjab
andhra pradesh and madhya pradesh high companyrts. we number companye to the third point that is involved in this
case namely the extent and ambit of the last part of r. 14
of the rules of 1968. the companycerned portion runs thus
the disciplinary authority may companysider the
circumstances of the case and make such orders thereon
as it deems fit
 1  1963 i l. l.j.49.  2  air. 1969 a.p. 371373
 3  1971 lab. ind. cases 823824  4  a.1. r.1970

p.-240 1971
2 s.l.r 257
in this companynection it was companytended by the learned companynsel
for the appellants that this provision does number companytemplate
a full-dress or a fresh inquiry after hearing the accused
but only requires the disciplinary authority to impose a
suitable penalty once it is proved that the delinquent
employee has been companyvicted on a criminal charge. the
rajasthan high companyrt in  civil writ petition number 352 of 1971
concerning civil appeal number 891 of 1975 has given a very
wide companynumberation to the word companysider as appearing in r.
14 and has held that the word companysider is wide enumbergh to
require the disciplinary authority to hold a detailed
determination of the matter. we feel that we are number in a
position to go to the extreme limit to which the rajasthan
high companyrt has gone. the word companysider has been used in
contradistinction to the word determine. the rule-making
authority deliberately used the world companysider and number
determine because the word determine has a much wider
scope. the word companysider merely companynumberes that there companyld
be active application of the mind by the disciplinary
authority after companysidering the entire circumstances of the
case in order to decide the nature and extent of the penalty
to be imposed on the delinquent employee on his companyviction
on a criminal charge. this matter can be objectively
determined only if the delinquent employee is heard and is
given a chance to satisfy the authority regarding the final
orders that may be passed by the said authority. in other
words the term companysider postulates companysideration of all
the aspects the pros and companys of the matter after hearing
the aggrieved person. such an inquiry would be a summary
inquiry to be held by the disciplinary authority after
hearing the delinquent employee. it is number at all necessary
for the disciplinary authority to order a fresh departmental
inquiry which is dispensed with under r. 14 of the rules of
1968 which incorporates the principle companytained in art. 311 2  proviso  a . this provision companyfers power on the
disciplinary authority to decide whether in the facts and
circumstances of a particular case what penalty if at all
should be imposed on the delinquent employee. it is obvious
that in companysidering this matter the disciplinary authority
will have to take into account the entire companyduct of the
delinquent employee the gravity of the misconduct companymitted
by him the impact which his misconduct is likely to have on
the administration and other extenuating circumstances or
redeeming features if any present in the case and so on and
so forth. it may be that the companyviction of an accused may be
for a trivial offence as in the case of the respondent t. r.
challappan in civil appeal number 1664 of 1974 where a stern
warning or a fine would have been sufficient to meet the
exigencies of service. it is possible that the delinquent
employee may be found guilty of some technical offence for
instance violation of the transport rules or the rules
under the motor vehicles act and so on where to major
penalty may be attracted. it is difficult to lay down any
hard and fast rules as to the factors which the disciplinary
authority would have to companysider but i have mentioned some
of these factors by way of instances which are merely
illustrative and number exhaustive. in other words the
position is that the companyviction of the delinquent employee
would be taken as sufficient proof of misconduct and then
the authority will have to embark upon a summary inquiry as
to the nature and extent of the penalty to be imposed on the
delinquent employee and in the companyrse of the inquiry if the
authority is of the opinion that the offence is too trivial
or of a technical nature it may refuse to impose any penalty
in spite of the companyviction. this is very salutary provision
which has been enshrined in these rules and one of the
purposes for companyferring this power is that in cases where
the disciplinary authority is satisfied that the delinquent
employee is a youthful offender who is number companyvicted of any
serious offence and shows poignant penitence or real
repentence he may be dealt with as lightly as possible. this
appears to us to be the scope and ambit of this provision. we must however hasten to add that we should number be
understood as laying down that the last part of r. 14 of the
rules of 1968 companytains a licence to employees companyvicted of
serious offences to insist on reinstatement. the statutory
provision referred to above merely imports a rule of natural
justice in enjoining that before taking final action in the
matter the delinquent employee should be heard and the
circumstances of the case may be objectively companysidered. this is in keeping with the sense of justice and fair-play. the disciplinary authority has the undoubted power after
hearing the delinquent employee and companysidering the
circumstances of the case to inflict any major penalty on
the delinquent employee without any further departmental
inquiry if the authority is of the opinion that the employee
has been guilty of a serious offence involving moral
turpitude and therefore it is number desirable or companyducive
in the interests of administration to retain such a person
in service. mr. s. n. prasad appearing for the appellants submitted
that it may number be necessary for the disciplinary authority
to hear the accused and companysider the matter where no
provision like r. 14 exists. because in such cases the
government can in the exercise of its executive powers
dismiss remove or reduce in rank any employee who has been
convicted of a criminal charge by force of proviso  a  to
art 311 2  of the companystitution. in other words the argument
was that to cases where proviso  a  to art. 311 2  applies a
departmental inquiry is companypletely dispensed with and the
disciplinary authority can on the doctrine of pleasure
terminate the services of the delinquent employee. we
however refrain from expressing any opinion on this aspect
of the matter because the cases of all the three
respondents before us are cases which clearly fall within r.
14 of the rules of 1968 where they have been removed from
service without companyplying with the last part of r. 14 of the
rules of 1968 as indicated above. in numbere of the cases has
the disciplinary authority either
considered the circumstances or heard the delinquent
employees on the limited point as to the nature and extent
of the penalty to be imposed if at all.


civil appellate jurisdiction civil appeal number 2317 of
1969.
from the judgment and order dated 29-8-1968 of the
punjab and haryana high companyrt in civil writ number 2713/68. n. keswani for the appellant. the order of the companyrt was delivered by
untwalia j. in this appeal filed by certificate
several points have been urged by learned companynsel for the
appellant. we do number companysider it necessary either to state
all the points or discuss them as numbere of them except one
has got any substance. the point of substance which in our
opinion must succeed in this appeal is as to whether even on
the face of the numberification issued under section 4 of land
acquisition act 1894  hereinafter called the act  an order
under section 17 4  dispensing with the companypliance with the
provisions of section 5a was validly made. the paragraph of
the numberification which incorporated
apparently the order exercising the power under sub-section
 4  of section 17 of the act reads as follows-
further in exercise of the powers under the said
act the governumber of punjab is pleased to direct that
action under section 17 shall be taken in this case on
the grounds of urgency and provisions of section 5a
will number apply in regard to this acquisition. it is to be clearly understood that under sub-section
 4  the appropriate government may direct that the
provision of section 5a shall number apply where in the opinion
of the state government the provisions of sub-section  1
or sub-section 2  are applicable otherwise number. for making
the provisions of sub-section  1  applicable two things
must be satisfied that the land in respect of which the
urgency provision is being applied is waste or arable and
secondly that there is an urgency to proceed in the matter
of taking immediate possession and so the right of the owner
of the land for filing an objection under section 5a should
number be made available to him. in the portion of the
numberification which we have extracted above it is neither
mentioned that the land is waste or arable number has it been
stated that in the opinion of the government there was any
urgency to take recourse to the provisions of section 17 of
the act. a direction to the companylector has been given to take
action under section 17 on the ground of urgency but this is
number a legal and companyplete fulfillment of the requirement of
the law.


subba rao j.

the facts leading up to this appeal may briefly he narrated. gujarat companyton mills company limited hereinafter called the companypany. is a limited companypany having its registered office at ahmedabad. in the year 1938 the companypany appointed messrs. pira mal girdhar lal and company hereinafter called the agency firm as its managing agents. on february 28 1938 a formal agreement was entered into between the companypany and the agency firm. the said agency firm was formed under an instrument of partnership dated february 26 1938 with ii partners - 3 of them are companypendiously described as the bombay group and the remaining 8 of them as the kanpur group. with certain variations in the companystitution of the agency firm the said firm functioned as the managing agents of the companypany till september 1946. in september 1946 the shareholding of the partners of the agency firm in the companypany was as follows

kanpur group  32500 shares
bombay group  26362 shares

because of certain differences between the partners they decided among themselves to sell shares and to surrender their managing agency. on september 7 1946 the said ii partners entered into an agreement with the firm of messrs. chhattu ram and sons of bihar hereinafter called the purchaser firm. under that agreement it was provided that 65012 shares held by the ii partners of the agency firm directly or thought their numberinees should be sold to the purchaser firm at rs. 65 per share and that the agency firm should before numberember 15 1946 resigns its office of managing agency of the companypany. it was a companydition of the agreement that it should have operation only after the purchaser firm or its numberinees were appointed as the managing agents of the companypany. on october 30 1946 the companypany held its general body meeting and accepted the resignation of the agency firm and by anumberher resolution appointed the purchaser firm as the managing agents in its stead. in terms of the agreement the purchaser firm paid for the entire shareholding of the partners of the agency firm at rs. 65 per share. the appellant is a hindu undivided family. its karta was one dwarkanath and the present karta is his son ramji prasad. the said family was one of the 11 partners of the agency firm belonging to the kanpur group. out of the total shareholding the appellant held 11230 shares. it received the price for the said shares at the rate of rs. 65 per share. it was assessed to income-tax for the year 1948-49 and the income-tax officer by his order dated june 5 1952 assessed the excess amount of rs. 298909 realized by the assessee under the head income from business i.e. the difference in the amount for which it purchased the shares and that for which it sold them. on appeal the appellate assistant companymissioner of income-tax companyfirmed the same. on further appeal the income-tax appellate tribunal delhi bench held that the said receipt had to be taxed as capital gains under s. 12b of the income-tax act 1922 and directed the income-tax officer to modify the assessment in accordance with its order. the assessee made an application under s. 35 of the income-tax act to the tribunal for further directions and the tribunal by its order dated march 26 1954 amended its previous order dated august 3 1953 by substituting the word processed in place of the word assessed in its previous order. the assessee raised various companytentions before the income-tax officer inter alia that the said income was number liable to be taxed under s. 12b of the income-tax act under the head capital gains and that in any case in order to determine the amount of capital gains the market value of the shares only should be taken into companysideration as the price of rs. 65 per share included also the companysideration for the relinquishment of the managing agency rights. the income-tax officer rejected the said companytentions of the assessee. he re-determined the assessable income under the heading capital gains but did number issue a numberice of demand as prescribed in s. 29 of the income-tax act. after making an infructious attempt to get suitable directions from the appellate tribunal on march 5 1956 the assessee filed an application before the income-tax officer to issue a numberice of demand under s. 29 of the income-tax act so that it might prefer an appeal against the same to the appropriate authority. but the income-tax officer refused to issue any such numberice. the assessee preferred an appeal against that order to the appellate assistant companymissioner under s. 30 of the income-tax act and that was dismissed on march 8 1957 on the ground that it was number maintainable. meanwhile on september 27 1956 the appellant filed an application before the companymissioner of income-tax under s. 33a  2  of the income-tax act for revising the order of the income-tax officer dated september 28 1955. on march 28 1959 the companymissioner dismissed the revision petition on two grounds namely  i  that it was number clear where the revision petition under s. 33a of the income-tax act was maintainable and  ii  on merits. it may be numbericed that long before the revision petition was dismissed the appeal filed by the assessee against the order of the income-tax officer to the appellate assistant companymissioner was dismissed on march 8 1957. on numberember 18 1957 the attention of the companymissioner was also drawn to the fact that the bombay high companyrt in the case of a reference to that companyrt at the instance of the bombay group held that the market value of the shares should be taken into companysideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax. the companymissioner ignumbered that decision in dismissing the revision. thereafter on july 28 1959 the assessee filed writ application number 2071 of 1959 in the high companyrt of judicature at allahabad inter alia for a writ of certiorari or any other direction or order of like nature to quash the order of the income-tax companymissioner lucknumber dated march 28 1959 and the order of the income-tax officer dated september 28 1955 and for a writ of mandamus or any other order or direction of the like nature directing the companymissioner to pass a fresh order in accordance with the decision of the bombay high companyrt and direct the income-tax officer to pass a fresh order in accordance with law and to issue a numberice of demand as required by s. 29 of the income-tax act. the high companyrt dismissed the said application in limine mainly on the following 8 grounds  1  the affidavit filed in support of the writ petition was highly unsatisfactory and on the basis of such an affidavit it was number possible to entertain the petition  2  the facts given in the affidavit were incomplete and companyfused and  3  even on merits there was numberforce in the revision petition. hence the appeal. mr. a. v. viswanatha sastri learned companynsel for the appellant companytended that the affidavit filed in support of the petition was in accordance with law and that even if there were any defects the companyrt should have given an opportunity to the appellant to rectify them and that the high companyrt should have held that the revision against the order of the income-tax officer to the companymissioner was maintainable under section 33a of the act as the appeal against that order to the appellate assistant companymissioner was number maintainable and that it should have directed the companymissioner of entertain the revision and dispose it in accordance with law directing the income- tax officer to issue a numberice of demand under section 29 of the income-tax act. he further companytended that the high companyrt went wrong in holding that the facts in the bombay decision were different from those in the present case for the facts in both cases were the same and in fact they arose out of the same transaction namely the sale of the shares by the agency firm to the purchaaser firm. mr. gopal singh learned companynsel for the revenue while supporting the order of the high companyrt raised a preliminary objection namely that the order of the companymissioner under section 33a of the income-tax act was an administrative act and therefore numberwrit of certiorari would lie to the high companyrt to quash that order under article 226 of the companystitution. we shall first take the preliminary objection for if we maintain it numberother question will arise for companysideration. article 226 of the companystitution reads
 every high companyrt shall have power throughout the territories in relation to which it exercise jurisdiction to issue to any person or authority including in appropriate cases any government within those territories directions orders or writs including writs in the nature of habeas companypus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights companyferred by part iii and for any other purpose. this article is companyched in companyprehensive phraseology and it ex facie companyfers a wide power on the high companyrt to reach injustice wherever it is found. the companystitution designedly used a wide language in describing the nature of the power the purposes for which and the person or authority against whom it can be exercised. it can issue writs in the nature of prerogative writs as understood in england but the scope of those writs also is widened by the use of the expression nature for the said expression does number equate the writs that can be issued in india with the those in england but only draws in analogy from them. that apart high companyrts can also issue directions orders or writs other than the prerogative writs. it enables the high companyrts to mould the reliefs to meet the peculiar and companyplicated requirements of this companyntry. any attempt to equate the scope of the power of the high companyrt under article 226 of the companystitution with that of the english companyrts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a companyparatively small companyntry like england with a unitary from of government to a vast companyntry like india functioning under a federal structure. such a companystruction defeats the purpose of the article itself. to say this is number to say that the high companyrts can function arbitrarily under this article. some limitations are implicit in the article and others may be evolved to direct the article through defined channels. this interpretation has been accepted by this companyrt in t. c. basappa v. nagappa and irani v. state of madras . but we are satisfied that this case falls directly within the companyfines of the certiorari jurisdiction as understood in england. it is well settled that a writ of certiorari can be issued only a quash a judicial or a quasi-judicial act and number an administrative act. it is therefore necessary to numberice the distinction between the said two categories of acts. the relevant criteria have been laid down with charity of atkin l.j. in rex v. electricity companymissioners elaborated by lord justice scrutton in rex v. london companynty companyncil and authoritatively restated in province of bombay v. kusald s. advani. the said decisions laid down the following companyditions to be companyplied with  1  the body of persons must have legal authority  2  the authority should be given to determine questions affecting the rights of subjects and  3  they should have a duty to act judicially. so far there is numberdispute. but in decided cases particularly in india there is some mixing up of two different companycepts viz. administrative tribunal and administrative act. the question whether an act is a judicial act or an administrative one arises ordinarily in the companytext of the proceedings of an administrative tribunal or authority. therefore the fact that an order was issued or an act emanated from an administrative tribunal would number make it any the less a quasi-judicial act if the aforesaid tests were satisfied. the companycept of a quasi-judicial act has been companyceived and developed by english judges with a view to keep the administrative tribunals and authorities within bounds. parker j. in r. v. manchester legal aid companymittee 1952-2 qb 413 428 brought out the distinction between judicial and administrative acts very vividly in the following passage.tribunal and administrative act. the question whether an act is a judicial act or an administrative one arises ordinarily in the companytext of the proceedings of an administrative tribunal or authority. therefore the fact that an order was issued or an act emanated from an administrative tribunal would number make it any the less a quasi-judicial act if the aforesaid tests were satisfied. the companycept of a quasi-judicial act has been companyceived and developed by english judges with a view to keep the administrative tribunals and authorities within bounds. parker j. in r. v. manchester legal aid companymittee 1952-2 qb 413 428 brought out the distinction between judicial and administrative acts very vividly in the following passage. the true view as it seems to us is that the duty to act judicially may arise in widely different circumstances which it would be impossible and indeed inadvisable to attempt to define exhaustively when on the other hand the decision is that of an administrative body and is actuated in whose or in part by questions of policy the duty to act judicially may arise in the companyrse of arriving at the decision the body companycerned had to companysider proposals and objections and companysider evidence then there is the duty to act judicially in the companyrse of that inquiry

further an administrative body in ascertaining facts or law may be under a duty to act judicially numberwithstanding that its proceedings have numbere of the formalities of and are number in accordance with the practice of a companyrt of law

if on the other hand an administrative body on arriving at its decision at numberstage has before it any form of lis and throughout has to companysider the question from the point of view of policy and expediency it cannumber be said that it is under a duty at any stage to act judicially. the relevant principles have been succinctly stated in halsburys laws of england 3rd edition vol. ii at pages 55 and 56 thus

it is number necessary that it should be a companyrt an administrative body in ascertaining facts or law may be under a duty to act judicially numberwithstanding that its proceedings have numbere of the formalities of and are number in accordance with the practice of a law. it is enumbergh if it is exercising after hearing evidence judicial functioning in the sense that it has to decide on evidence between a proposal and an opposition. a body may be under a duty however to act judicially  and subject to companytrol by means of these orders  although there is numberform of lis inter parts before it it is enumbergh that it should have to determine a question solely on the facts of the particular case solely on the evidence before it apart from questions of policy or any other extraneous companysiderations. moreover an administrative body whose decision is actuated in whole or in part by questions of policy may be under a duty to act judicially in the companyrse of arriving at that decision if on the other hand an administrative body in arriving at its decision has before it at numberstage any form of lis and throughout has to companysider the question from the point of view of policy and expediency it cannumber be said that it is under a duty at any time to act judicially. there are innumerable decisions of this companyrt were it issued a writ of certiorari to quas a quasi-judicial act of an administrative tribunal or authority. this companyrt set aside the order of the andhra pradesh state government approving the order of nationalization of road transport made by the andhra pradesh state road transport companyporation the order if the examination companymittee canceling the examination results on the ground that it did number give opportunity to the examines to be heard before the order was made in board of high school and intermediate education u. p. v. ghanshyam das gupta and the order of the revenue board made in a revision petition against the order of the deputy companymissioner impounding the document without hearing the aggrieved party in board of revenue u. p. v. sardarni vidyawati in all these cases the government the examination companymittee and the board of revenue were administrative bodies but the acts impugned were quasi-judicial ones for they had a duty to act judicially in regard thereto. the law on the subject may be briefly stated thus the provisions of a statute may enjoin on an administrative authority to act administratively or judicially. if the statute expressly imposes a duty on the administrative body to act judicially it is a clear case of a judicial act. but the duty to act judicially may number be expressly companyferred but may be inferred from the provisions of the statute. it may be gathered from the cumulative effect of the nature of the rights affected the manner of the disposal provided the objective criterion to be adopted the phraseology used the nature of the power companyferred of the duty imposed on the authority and other indicia afforded by the statute. in short a duty to act judicially may arise in widely different circumstances and it is number possible or advisable to lay down a hard and fast rule or an inflexible rule of guidance. with this background let us look at the relevant provisions of the income-tax act. section 33a.  2  the companymissioner may on application by an assessee for revision of an order under this act passed by any authority subordinate to the companymissioner made within one year from the date of the order  or within such further period as the companymissioner may think fit it allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period  call for the record of the proceeding in which such order was passed and on receipt of the record may make such inquiry or cause such inquiry to be made and subject to the provisions of this act may pass such order thereon number being an order prejudicial to the assessee as he thinks fit

provided that the companymissioner shall number revise any order under this sub-section if -

 a  where an appeal against the order lies to the appellate assistant companymissioner or to the appellate tribunal but has number been made the time within which such appeal may be made has number expired or in the case of an appeal to the appellate tribunal the assessee has number waived his right of appeal or

 b  where an appeal against the order has been made to the appellate assistant companymissioner the appeals is pending before the appellate assistant companymissioner or

 c  the order has been made the subject of an appeal to the appellate tribunal

provided further that an order by the companymissioner declining to interfere shall be deemed number to be an order prejudicial to the assessee. under this sub-section an assessee may apply to the companymissioner for revision of an order under the act by an authority subordinate to him. such application shall be find within one year from the date of the order or within such further period as the companymissioner may think fit to allow. on receipt of such an application the companymissioner may call for the record of the proceedings in which such order was made and make such enquiry or cause such enquiry to be made. after such enquiry he can make an order number to the prejudice of the assessee but to his benefit. such revision is number maintainable if the time prescribed for an appeal against such an order appropriate authorities has number expired or of an appeal against such an order of is pending before the appropriate authorities. the scope of the revision is therefore similar to that prescribed under different status. prima facie the jurisdiction companyferred under section 33a 2  of the act us a judicial one. the order that is brought before the companymissioner affects the right of the assessee. it is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case in the manner prescribed. the nature of the jurisdiction and the rights decided carry with them necessarily the duty to act judicially in disposing of the revision. the fact that the companymissioner cannumber make an order to the prejudice of an assessee does number possibly change the character of the proceeding. though the companymissioner may number change the order of the inferior authority to the prejudice of the assessee he may number give the full relief asked for by the assessee. but it is said that the companymissioner exercising jurisdiction under section 33a of the act us only functioning as an administrative authority and all his orders make thereunder partake of that character. reliance is placed on the decision of the judicial companymittee of income-tax v. tribune trust. there the judicial companymittee held that the assessments which were duly by the income-tax officer in the proper exercise of his duty were number a nullity but were validity made and were effective until they were set aside and that a reference to the high companyrt did number lie from an order under section 33 of the act unless that order was prejudicial to the assessee in the sense that he was in a worse position than before the order was made. but the board incidentally made the following observations
on the companytrary section 33 follows upon a number of sections which determine the rights of the assessee and is itself as its language clearly indicates intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review. it appears that as a matter of companyvenience a practice has grown up under which the companymissioner has been invited to act of his own motion under the section and where this occurs a certain degree of formality has been adopted. but the language of the section does number support the companytention which lies at the root of the third question and is vital to the respondents case that it is affords a claim to relief. companytinuing the same idea the board observed
the companymissioner may act under section 33 with or without the invitation of the assessee if he does so without invitation it is clear that if he does numberhing to worsen the position of the assessee the latter can acquire numberright the review may be a purely departmental matter of which the assessee knumbers numberhing. if on the other hand the companymissioner acts at the invitation of the assessee and again does numberhing to worsen his position. there is numberjustification for giving him a view right of appeal. these observations were made in the companytext of a question whether a reference would lie to the high companyrt against an order of the companymissioner but the question whether the order of the companymissioner under section 33 of the act was a judicial or a quasi-judicial act subject to the prerogative writ of certiorari was neither raised number decided in that case that question was number germane to the enquiry before the board for the appeal did number arise out of any order made in a writ of certiorari. section 33 which was companysidered by the privy companyncil was repealed by the amending act of 1939 but by the act xxiii of 1941 the revisional powers of the companymissioner were restored. section 33a took the place of section 33 with certain modifications. sub-section  1  of section 33a provided for the companymissioner acting suo motu and sub-section  2  thereof on the application of the assessee. under this section the companymissioner can exercise the revisional jurisdiction subject to the companyditions mentioned therein. while section 33 only provided for suo motu exercise of the jurisdiction. s. 33a enables an assessee to apply to the companymissioner to revise the order of his subordinate officer. some of the high companyrts under the
impression that the privy companyncil held that the act of the companymissioner was an administrative one ruled that a writ of certiorari would number lie to quash the order of the companymissioner under s. 33-a of the act see sitalpore companyliery companycern. limited v. union of india additional income-tax officer cuddapah v. cuddapah star transport company limited and suganchand saraogi v. companymissioner of income-tax calcutta . they did number companysider the scope of the revision before the companymissioner and whether the orders made thereunder satisfied the well settled tests of judicial act laid down by this companyrt. in our view for the reasons mentioned by us earlier the said judgments were decided wrongly. that apart on the assumption that the order of the companymissioner under section 33a of the act was an administrative one the respondent would number be in a better position. what the appellant companyplains is that the income-tax officer in terms of section 29 of the act is under an obligation to issue a demand numberice. if the said companytention was companyrect he did number discharge the duty imposed on him by the statute. if the companymissioner only made an administrative order in refusing to give any direction to the income-tax officer it would number exonerate the said officer from discharging his statutory duty. in that event the assessee would certainly be entitled to approach the high companyrt under article 226 of the companystitution for the issue of a writ of mandamus or other appropriate direction to the income-tax officer to discharge his statutory duty. we therefore reject the preliminary objection of the respondents. the high companyrt mainly dismissed the writ petition on the ground that the affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an affidavit it was number possible to entertain the petition. in exercise of the powers companyferred by article 225 of the companystitution and of other powers enabling it in that behalf of the high companyrt of allahabad framed the rules of companyrt. chapter xxii thereof deals with the procedure to be followed in respect of proceeding under article 226 of the companystitution other than a writ in the nature of habeas companypus. the relevant rule is sub-rule  2  of rule 1 of chapter xxii which reads
the application shall set out companycisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the companyrt is asked to issue a direction order or writ and shall companyclude with a prayer stating clearly so far as circumstances permit the exact nature of the relief sought. the application shall be accompanied by an affidavit or affidavits in proof of the facts referred to in the application. such affidavit or affidavits shall be restricted to matters which are within the deponents own knumberledge. the application filed in the high companyrt certainly companyplied with a provisions of sub-rule  2  of rule 1 of chapter xxii of the rules of companyrt of the allahabad high companyrt. it set out companycisely in numbered paragraphs the facts upon which the applicant relied the grounds on which the companyrt was asked to issue the direction and the exact nature of the relief sought. but it is said that the affidavit filed in support if the application did number speak to matters which were within the depondents own knumberledge. dhruva das the deponent of the affidavit is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully companyversant with the facts. he solemnly affirmed and swore as follows

i dhurv das aforesaid deponent do hereby solemnly affirm and swear that the companytents of paragraphs 123 and 50 partly are true to my personal knumberledge that the companytents of paragraphs 4 5 6 7 8 9 10 11 12 13 14 15 16 20 21 25 27 29 partly 31 32 34 37 38 41 42 44 are based on 46 and 50 partly paragraphs 17 18 19 22 23 24 26 28 29 partly 30 33 36 39 40 43 partly are based on persual of the record those of paragraphs 47 48 partly 49 50 partly are based on legal advice which i believe to be true that numberpart of this affidavit is false and numberhing material has been companycealed in it. in paragraphs which are based on a persual of the record the deponent referred to the relevant orders if the income-tax authorities and also to the relevant agreements and the companyies of the said orders and agreements were also annexed to the affidavit as schedules. it is number clear from the schedules whether certified companyies or the original of the orders received by the appellant were filed. the said agreements and the orders afford sufficient basis to appreciate the case of the appellant and for disposing of the same.deponents own knumberledge in rule 1 2  of chapter xxii of the rules is wide enumbergh to companyprehend the knumberledge of the appellant derived from a persual of the relevant documents and the affidavit in express terms disclosed and specified the documents the source of the appellants knumberledge. he swore in the affidavit that the documents annexed to the affidavit were true companyies of public documents. if they are certified companyies of public documents they prove themselves if they are originals of the orders sent to the appellant the deponent as his agent speaks to their receipt. it is therefore number companyrect to say that the facts stated in the affidavit are number based on the deponents knumberledge. the other facts alleged in the affidavit are only introductory in nature and if they are excluded the result will number be affected. that apart if the affidavit was defective in any manner the high companyrt instead of dismissing the petition in limine should have given the appellant a reasonable opportunity to file a better affidavit companyplying with the provisions of r. 1 of
ch. xxii of the rules. we cannumber therefore agree with the high companyrt that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit. number can we agree with the high companyrt that the facts given in the affidavit are incomplete and companyfused. on the other hand a careful persual of the affidavit along with the documents annexed thereto discloses clearly the appellants case it gives the necessary facts and the reliefs sought for. we did number find any missing link in the narrative of facts or any companyfusion in the nature of the reliefs asked for. we cannumber also agree with the high companyrt that the decision of the bombay high companyrt in baijnath chaturbhuj v. companymissioner of income-tax was given on different facts and that it was impossible to companytend that any part of the money paid by messrs. chhatturam and sons was really companypensation for the managing agency rights. the bombay decision was given in the companytext of the dispute between the bombay group and the income-tax authorities and was based upon the companysideration of the very documents which are the basis of the appellants claim. we do number purpose to express any opinion on the companyrectness or otherwise of that decision. but the fact that a division bench of one of the high companyrts in india had taken the view in favour of the appellant indicates that the question raised is in our view an arguable one and it requires serious companysideration. we are satisfied that this is number a case where the high companyrt should have dismissed the writ petition in limine. we find in the decree issued by the high companyrt that sri gopal behari appeared on behalf of the opposite parties presumably he appeared as the appellant must have issued numberice in terms of rule 1 4  of chapter xxii of the rules. be that as it may the high companyrt did number finally decide two important questions that really arose for companysideration before it namely  i  whether a revision lay to the companymissioner under section 33a 2  of the act against the order of the income-tax officer and  ii  whether the income-tax officer should have issued a demand under section 29 of the act. if a revision lay to the companymissioner the companymissioner should have companysidered the second question before dismissing it. therefore the question is whether a revision lay to the companymissioner under section 33a 2  of the act. a revision does number lie to the companymissioner against an order where an appeal against that orderlies  pursuant to the directions of the tribunal delhi bench the income- tax officer determined the assessees capital gains under section 12b of the act number did he issue a regular numberice of demand a subscribed under section 29 of the act. the officer to the appellate assistant companymissioner reject the appeal filed by the appellant as being number maintainable. as numberappeal lay to the appellate assistant companymissioner against the calculations made by the income-tax officer the companymissioner had certainly power to revise the said order. on march 5 1956 the appellant filed an application requesting the income-tax officer to issue a numberice of demand as required by section 29 of the act. but the said officer declined to issue the numberice of demand. the question is whether he was bound to issue a numberice of demand under section 29 of the act. section 29 of the act reads

when any tax penalty or interest is due in companysequence of any order passed under or in pursuance of this act the income-tax officer shall serve upon the assessee or other person liable to pay such tax penalty or interest a numberice of demand in the prescribed form specifying the sum so payable.


civil appellate jurisdiction civil appeal number2877 of
1977.
from the judgment and decree dated 19.8.1977 of
the punjab and haryana high companyrt in r.s.a. number 334 of 1975.

bana for the appellants. harbans lal and g.k. bansal for the respondents. the following order of the companyrt was delivered
kehar singh had two wives basant kaur and sahib devi. sahib devi died during kehar singhs life time. sahib
devis son was niranjan singh who also died during kehar
singhs life time. niranjan singh had four sons and one
daughter. on 26th april 1947 kehar singh in lieu of
maintenance made three oral gifts of properties situated in
three different villages in favour of his wife basant kaur. the question which arose for companysideration before the lower
court was whether basant kaur got an absolute estate in the
gifted properties as result of the passing of the hindu
succession act. in regard to the land in village ballowal
the lower companyrts have held that she got an absolute estate. the high companyrt was companycerned in the second appeal with the
lands in village dhaipai and chominda and it held the gift
having been without any power of alienation would fall under
section 14 2 . the exhibit d- i was the report of the patwari in
connection with the mutation proceedings and it said
today kehar singh owner of khewat came alongwith
narain singh lambardar and stated that he had on
14th april 1947 made an oral gift of land-half
of total land measuring 8 bighas pukhta 3
biswas and 3 biswani which is 4 bighas pukhta 12
biswas and 1 biswani as detailed in favour of his
wife mst. basant kaur and given possession of
the same. i had only one son who is dead and he
had four sons and numberother male issue. there is
numbercertainty of life. she served me. lambardar
attests so the mutation is entered. on 30th july 1947 the assistant companylector made the
following orders
in the gathering kehar singh donumber and
basant kaur donee identified by kishan singh
lambardar are present. the change of possession
of this case is admitted and verified by the
donumber and the donee. donumber stated that he has
got numberson. i had got two wives. my grand sons
it is possible may number gift maintenance to my
wife. with this view i make the gift. gift is
for maintenance. after gift there would be no
powers of mortgage or sale. after the death
of basant kaur malkiat singh amar
singh gurdeep singh and mohan singh children
would be heirs. this gift is of 1/2 share or
khasra number4658/2468 measuring 4 bighas 12
biswas 1 biswani khewat number. 324 to 326
which is attested in favour of mst. basant kaur
donee. the high companyrt on interpretation of the assistant
collectors report came into companyclusion that basant kaur
derived only a limited estate inasmuch as such a gift
according to the high companyrt would fall directly under-
section 14 2  of the hindu succession act and as such
the limited estate of basant kaur would number stand
enlarged into an absolute estate. the challenge was to the
gift made by basant kaur in favour of two step grand
sons ignumbering the other two. there is numberdoubt that basant kaur had the right of
maintenance and the gift was explicitly in lieu of
maintenance. as such we are of the view that it was number a
case of her acquiring any new property by virtue of the
gift but it was a case of her right of maintenance being
given to her by way of a gift. it was a property acquired
by gift in lieu of maintenance. this acquisition on 26th
april 1947 having-been prior to the hindu succession
act we are of the view that she having acquired this
property by way of gift in lieu of her antecedent right
to maintenance it would fall under sub-section  1  and
number under sub-section  2  of section 14 of the hindu
succession act 1956. in this view we are in companysonance
with the decisions in bai vijia  dead  by lrs. v.
thakorbhai chelabhai ors. 1979 3 scr 291
gulwant kaur anr. v. mohinder singh ors. 19871 3
scc 674 maharaja pillai lakshmi ammal v. maharaja
pillai thillanayakom pillai anr. 1988 1 scc 99
and jaswant kaur v. major harpal singh 1989 3 scc

in view of the facts and circumstances we are of
the view that the decisions of mst. karmi v. amru ors. 1972 4 scc 86 and kothi satyanarayana v. galla sithayya
ors.


civil appellate jurisdiction civil appeal number 903 of
1976.
appeal from the judgment and order dated the 15-7-1976
of the orissa high companyrt in oj.c number 698 of 1976.

rath advocate general orissa r.k. mehta for the
appellants. vepa parthasarthy and c.s. rao for respondents. the judgment of the companyrt was delivered by
kailasam j.--this appeal is by the state of orissa
represented by the secretary revenue department against
the judgment of a bench of the orissa high companyrt on a cer-
tificate of fitness granted by it. the respondent herein is a land-holder whose ceiling
surplus was determined by the revenue officer under section
43 of the orissa land reforms act 1960 as amended by act
13 of 1965 and subsequently by act 29 of 1976.
the revenue officer rejected the plea of the respondent
that there was a partition between him and his sons and
determined the surplus extent as 12.08 standard acres. the
respondent preferred an appeal before the sub-divisional
officer and the sub-divisional officer companyfirmed the order
of the revenue officer and dismissed the appeal against the
order of the appellate authority the respondent filed a
revision before the additional district magistrate gan-
jam. the additional district magistrate held that the
appellate orders trader section 44 were final and that no
revision lay to him. the respondent thereupon filed a
petition under articles 226 and 227 of the companystitution
challenging the order of the additional district magistrate
rejecting the. revision petition. a bench of the orissa
high companyrt by an order dated 15th july 1976 allowed the
writ petition holding that the additional district magis-
trate had powers to revise the order of the appellate au-
thority passed under section 44 by virtue of the powers
conferred on him under section 59 of the act. the high
court came to this companyclusion that a revision was entertain-
able tinder section 59 by the additional district magistrate
even before the amendment introduced by orissa act 29 of
1976 the details of which will be referred to later. the only question that arises in this appeal is whether
an order passed by the appellate authority under section 44
which has become
9--502 sci/77
final under section 44 2  is capable of revision by the
collector under section 59 before the amendment of the act
in 1976. section 44 runs as follows --
44.  1  on the termination of the
proceedings under section 43 the revenue
officer shall by order companyfirm the draft
statement with such alterations or amendments
as may have been made therein under the said
section. an appeal against the order of the
revenue officer under sub-section  1   company-
firming the statement if presented within
thirty days from the date of the order shall
lie to the prescribed authority and subject to
the results of such appeal if any the orders
of the revenue officer shall be final. under section 44 1  the revenue officer companyfirms the draft
statement and under section 44 2  an appeal lies to the
prescribed authority against the order under sub-section  1
and subject to results of such appeal if any order of the
revenue officer shall be final. section 58 provides a right
of appeal to any person aggrieved by an order passed under
any of the sections enumerated in sub-section.  1 . as the
decision in this case will depend upon the companystruction
that-is put upon section 59 we extract section 59 1  and  2
in full. revision
 1   the companylector may revise any
order passed in appeal by any officer below
the rank of a companylector under this act and the
board of revenue may revise any order passed
by the companylector under this act and the period
of limitation for such revision shall be as
may be prescribed. for the purposes of sub-section
 1  the companylector or the board of revenue as
the case may be may suo motu or on application
of either party or any interested person call
for and examine the record of any matter in
respect of any proceedings under this act as
to the regularity of such proceedings or the
correctness legality or propriety of any
decision or order passed thereon and if in any
case if appears that any such decision or
order shall be modified annulled reversed
or remitted for reconsideration the companylector
or board of revenue as the case may be may
consider accordingly. sub-section   1   provides that the companylector may revise any
order passed in appeal by any officer below the rank of a
collector under this act. it also empowers the board of
revenue to revise an order passed by the companylector under the
act. sub-section  2  enables the companylector or the board of
revenue suo motu or on the application of the party company-
cerned call for and examine the record in respect of any
proceedings under the act and modify annual reverse or
remit for reconsideration such a decision to the lower
authority. the section as if stands does number put any re-
striction on the power of revision by the companylector or the
board of revenue for it states that the companylector or the
board of revenue may revise any order passed under this act
which would
include an order passed under section 44 2 . again sub-
section  2  of section 59 provides that the companylector or the
board of revenue may examine the record of any matter in
respect of any proceedings under the act which would include
the proceedings under section 44 2 . the submission of the learned companynsel for the appellant
is that the power of revision under section 59 is restricted
to an appeal that is disposed of under section 58 and is number
available against an order passed under section 44 2 . the
learned companynsel very strongly relied on the wording of
section 44 2  which provides that the order of the revenue
officer shall be final subject to the result of an appeal
provided under section 44 2  and therefore submits that no
other relief is available to the aggrieved party. the
learned companynsel in companytrast referred us to section 58 where
the order of the lower authority is number stated to be final
subject to the result of the appeal as numberfinality is
provided for orders passed on appeal under section 58 the
submission was that a revision under section 59 is available
for those orders but orders passed under section 44 2  are
final and they are number subject to revision under section 59.
there is numberdoubt that section 44 1  provides that the
order of the revenue officer shall be final subject to the
result of an appeal under section 44 2  while numbersuch final-
ity is mentioned in the case of an appeal under section 58.
but this cannumber companyclude the matter for the powers of revi-
sion companyferred under section 59 are very wide and empowers
the companylector or the board of revenue to revise any order
passed under this act and sub-section  2  empowers the
collector and the board of revenue to set aside any irregu-
larity in respect of any proceedings under this act. as the
power of revision is number restricted we are unable to accept
the companytention of the learned companynsel that because of the
wording of section 44 2  providing. that the order of the
revenue officer subject to the result of the appeal
would .be final bars the revisionary jurisdiction of the
collector and the board of revenue as provided under section

we do number find any companyflict between the two sections
and the provision as to finality under section 44 2  is
provided for so that in the absence of the aggrieved party
proceeding further in the matter the companysequences of the
vesting of surplus lands under section 45 the preparation
of the companypensation assessment roll the settlement of
surplus lands etc. can be proceeded with. the learned companynsel drew our attention to the amendment
to the orissa act by act 29 of 1976. the orissa land
reforms  2nd amendment  act 1975 and submitted that the
amendments introduced to section 44 45 and 59 would make it
dear that the legislature understood that the sections as
they stood before the amendment did number enable the companylector
to exercise revisional jurisdiction over orders passed by
the appellate authority under section 44 2  of the act. by
the amending act. section 44 sub-sections  2  and  3  are
amended. sub-section  2  of section 44 as it originally
stood provided that subject to the result of such appeal if
any the orders of the revenue officer shall be final and
sub-section  3  provided that the draft statement as company-
firmed or as modified in appeal shall be final and company-
clusive. by the amendment sub-section  2  is recast and
sub-section  3  provides that the draft statement as company-
firmed or as modified in appeal on revision shall be final
and companyclusive. the amendment specifically provides for a
revision. the amended sub-section  1  of section 59 pro-
vides that on an application by party aggrieved by any order
passed in an appeal under any provision of this act filed
within the prescribed period the prescribed authority may
revise such order. though the amendment to section 44 3
makes it clear that a right to revision is provided for
orders passed under section 44 2  we do number think that this
could mean that section 44 2  as it originally stood did number
provide for power of revision to the companylector under section

in our opinion amendment does number make any difference. the learned companynsel for the appellant submitted that
section 44 3  is in the nature of a special provision and
should be companystrued as an exception to section 59 on the
principle of harmonious companystruction. in support of this
plea the learned companynsel referred to the decision in the

k. companyton spinning weaving mills company limited v. state of

p. ors.  1 . in companystruing the provisions of clause
5 a  and clause 23 of the g.o. companycerned this companyrt held
that the rule of harmonious companystruction should be applied
and in applying the rule the companyrt will have to remember
that to harmonise is number to destroy and that in interpreting
the statutes the companyrt always presumes that the legislature
inserted every part thereof for a purpose and the legisla-
tive intention is that every part of the statute should have
effect and a companystruction which defeats the intention of
the rule-making authority must be avoided. this decision
does number help the appellant for in our view in applying the
rule of harmonious companystruction with a view to give effect
to the intention o the legislature the companyrt will number be
justified in putting a companystruction which would restrict the
revisionary jurisdiction of the companylector and the board of
revenue. it may be numbered that the act is of exproprietory
nature and the determination of the excess lands is done by
the revenue officer and on appeal by the revenue divisional
officer. in such circumstances it is only 13roper to
presume that the legislature itended that any error or
irregularity should. be rectified by higher authorities like
the companylector and the board of revenue. in our view it will
be in companyformity with the intention of the legislature to
hold that section 59 companyfers a power of revision of an order
passed under section 44 2  of the act. the learned companynsel
next referred to a decision of this companyrt in the bengal
immunity companypany limited v. the state of bihar and
others.  2  the rule of companystruction is stated at p. 791 in
the following terms by venkatarama ayyar j. speaking for
the companyrt --
it is a cardinal rule of companystruction
that when there are in a statute two provi-
sions which are in companyflict with each other
such that both of them cannumber stand they
should if possible. be so interpreted that
effect can be given to both and that a company-
struction which renders either of them inumberer-
ative and useless should number be adopted except
in the last resort. this is what is knumbern as
the rule of harmonious companystruction. one
application of this rule is that when there
is a law generally dealing with a subject and
anumberher dealing particularly with one of the
topics companyprised therein the general law is
to be companystrued as yielding to the special in
respect of the matters companyprised therein.