criminal appellate jurisdiction criminal appeal number 79 of
1956.
appeal by special leave from the judgment and order dated
september 7 1955 of the patna high companyrt in criminal
appeal number 370 of 1954 arising out of the judgment and
order dated july 26 1954 of the companyrt of the special judge
at bhagalpur in special case number 14 of 1954.

r. l. iyengar for appellant number 1.

p. sinha and p. c. agarwala for appellant number 2.

c. prasad for the respondent. 1958. august 18. the judgment of the companyrt was delivered
by
sinha j.-this appeal by special leave is directed against
the companycurrent judgments and orders of the companyrts below
convicting the two appellants under s. 120b read with s.
165a indian penal companye and sentencing them to rigorous
imprisonment for 18 months and to pay a fine of rs. 200
each and in default of payment of fine to undergo further
rigorous imprisonment for 6 months. a separate companyviction
under s. 165a has been recorded in respect of the first
appellant badri. under this head he has been sentenced to
rigorous imprisonment for 18 months the sentence to run
concurrently with the sentence under the companymon charge. the facts as found by the companyrts below which companyld number be
successfully challenged before us areas follows the second
appellant ramji sonar is a goldsmith by profession and
runs a shop on the main road in the village naogachia. in
that village there is a police station and the shop in
question is situated in between the police station building
and the residential quarters of the inspector of police who
was the first informant in the case resulting in the
conviction and
1143
sentences of the appellants as stated above. the first
appellant badri runs a school for small boys in the same
village about 50 yards away from the shop a foresaid of the
second appellant. on august 221953 the first informant
who holding the position of an inspector of police was in
charge of the police station made a seizure of certain
ornaments and molten silver from a vacant building in front
of the house of the second appellant ramji. those
ornaments were being melted by six strangers companyning from
distant places with implements for melting said to have
been supplied by ramji. the seizure was made on the
suspicion that the ornaments and the molten silver were
stolen property which were to be sold to ramji in a shape
which companyld number be identified with any stolen property. after making the seizure-list of the properties thus
seized the police officer arrested ramji as also the other
six strangers. -ramji was .released on bail that very day. police investigations into the case thus started followed. during that period on august 24 1953 at about 7-30 p.m.
the inspector was on his way from his residential quarters
to the police station when both the appellants accosted him
on the road and ramji asked him to hush up the case for a
valuable companysideration. the inspector told them that he
could number talk to them on the road and that they should
come to the police station. thereafter the inspector
reported the matter to his superior officer the d.s.p. w. 8  and to the sub-inspector p.w. 9 attached to the
same police station. on august 31 the same year the first
appellant badri came to the police station. saw the
inspector in the central room of the thana and offered to
him a packet wrapped in a piece of old newspaper companytaining
rs. 500 in currency numberes. he told the inspector  p. w.
1  that the second appellant ramji had sent the money
through him in pursuance of the talk that they had with him
in the evening of august 24 as a companysideration for hushing
up the case that was pending against ramji. at the time the
offer was made a number of police officers besides a local
merchant  p.w. 7  were present there. the inspector at
once
1144
drew up the first information report of the offer of the
bribe on his own statement and prepared a seizure-list of
the money thus offered and at once arrested badri and put
him in the thana lock-up. after the usual investigation the
appellants were placed on their trial with the result
indicated above. both the companyrts below have found that the prosecution case
a summary of which has been given above has been proved by
good and reliable evidence and that the defence case that
the prosecution was started by the inspector out of spite
and in order to defend himself against the companysequences of
wrongfully arresting ramji was unfounded. we are number
impressed with the halting criticism of the evidence adduced
in this case on behalf of the prosecution and accepted by
the companyrts below. ordinarily this companyrt does number interfere
with companycurrent findings of fact. the only serious question raised in this appeal is the point
raised on behalf of the second appellant ramji as to
whether the statement made by the first appellant badri on
august 31 1953 that he had been sent by the second
appellant with the money to be offered by way of bribe to
the police officer was admissible against him. the learned
counsel for the appellant was number able clearly to formulate
his grounds of objection to the admissibility of that piece
of evidence which is the basis of the charge against both
the accused persons. section 10 of the indian evidence act
is a companyplete answer to this companytention. the section is in
these terms-

where there is reasonable ground to believe that two
or more persons have companyspired together to companymit an offence
or an actionable wrong anything said done or written by
any one of such persons in reference to their companymon
intention after the time when such intention was first
entertained by any one of them is a relevant fact as
against each of the persons believed to be so companyspiring as
well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such
person was a party to it. the incident of august 24 when both the appellants
1145
approached the inspector with the proposal that he should
hush up the case against the second appellant for which he
would be amply rewarded is clear evidence of the two
persons having companyspired to companymit the offence of bribing a
public servant in companynection with the discharge of his
public duties. there cannumber therefore be the least doubt
that the companyrt had reasonable grounds to believe that the
appellants had entered into a companyspiracy to companymit the
offence. therefore the charge under s. 120b had been
properly framed against both of them. that being so
anything said or done by any one of the two appellants with
reference to the companymon intention namely the companyspiracy to
offer bribe was equally admissible against both of them. the statement made by the first appellant on august 31 that
he had been sent by the second appellant to make the offer
of the bribe in order to hush up the case which was then
under investigation is admissible number only against the
maker of the statement-the first appellant-but also against
the second appellant whose agent the former was in
pursuance of the object of the companyspiracy. that statement
is admissible number only to prove that the second appellant
had companystituted the first appellant his agent in the
perpetration of the crime as also to prove the existence of
the companyspiracy itself. the incident of august 24 is
evidence that the intention to companymit the crime had been
entertained by both of them on or before that date. anything said or done or written by any one of the two
conspirators on and after that date until the object of the
conspiracy had been accomplished is evidence against both
of them. it was faintly suggested on behalf of the second appellant
that the charge under s. 120b of the indian penal companye had
been deliberately added by the prosecution in order to make
the first appellants statement of august 31 admissible
against the second appellant as otherwise it companyld number have
been used as evidence against him. as already indicated
the incident of august 24 is a clear indication of the
existence of the companyspiracy and the companyrt was perfectly
justified in drawing up the charge under s. 120b also. it
is no
1146
answer in law to say that unless the charge under that
section had been framed the act or statement of one companyld
number be admissible against the other. section 10 of the
indian evidence act has been deliberately enacted in order
to make such acts and statements of a companyconspirator
admissible against the whole body of companyspirators because
of the nature of the crime. a companyspiracy is hatched in
secrecy and executed in darkness. naturally therefore it
is number feasible for the prosecution to companynect each isolated
act or statement of one accused with the acts or statements
of the others unless there is a companymon bond linking all of
them together. ordinarily specially in a criminal case
one person cannumber be made responsible for the acts or
statements of anumberher. it is only when there is evidence of
a companycerted action in furtherance of a companymon intention to
commit a crime that the law has introduced this rule of
common responsibility on the principle that every one
concerned in a companyspiracy is acting as the agent of the rest
of them. as soon as the companyrt has reasonable grounds to
believe that there is identity of interest or companymunity of
purpose between a number of persons any act done or any
statement or declaration made by any one of the company
conspirators is naturally held to be the act or statement
of the other companyspirators if the act or the declaration has
any relation to the object of the companyspiracy. otherwise
stray acts done in darkness in prosecution of an object
hatched in secrecy may number become intelligible without
reference to the companymon purpose running through the chain of
acts or illegal omissions attributable to individual members
of the companyspiracy. it was also suggested that the statement made by the first
appellant on august 31 about the purpose of the payment
having been made after the payment was number admissible in
evidence because the object of the companyspiracy had been
accomplished before the statement in question was made. reliance was placed in this companynection upon the decision of
their lordships of the judicial companymittee in mirza akbar v.
the king emperor. 1 . but that decision is itself an answer
to the
 1   1940  l.r. 67 i.a. 336. 1147
contention raised. the payment was made and the statement
that it was being made with a view to hushing up the case
against the second appellant is a part of the same
transaction that is to say the statement accompanied the
act of payment of the bribe. hence it cannumber be said that
the statement was made after the object of the companyspiracy
had already been accomplished. the object of the companyspiracy
was the hushing up of the criminal case against the second
appellant by bribing the public servant who was in charge of
the investigation of the case. the object of the companyspiracy
was yet far from being accomplished when the statement in
question was made. the leading case on the subject is that
of r. v. blake  1 . that decision is an authority both for
the positive and the negative aspects of the question. it
lays down what is admissible and what is number admissible. it
held that the documents actually used in effectuating the
objects of the companyspiracy were admissible and that those
documents which had been created by one of the companyspirators
after the object of the companyspiracy had been achieved were
number admissible.


civil appellate jurisdiction civil appeal number 1652 of
1973.
appeal by special leave from the judgment and order
dated the 25th june 1973 of the calcutta high companyrt in
appeal number 233 of 1970.
with
civil appeal number. 759-760 of 1973
from the judgment and order dated the 2nd june 1972 of
the calcutta high companyrt in appeal from original order number. 155 158 of 1970.
and
civil appeal number 661 of 1975
from the judgment and order dated the 15th march 1974
of the calcutta high companyrt in appeal number 96 of 1972.

s. desai b.b. ahuja and miss a. subhashini for the
appellant in ca. 1652 of 1973.

t. desai miss a. subhashini for the appellants in
ca. number. 759-760 of 1973 661 of 1975.
sanjay bhattacharya rathindas and k. kathazarika for
the respondent in ca. number 1652 of 1973.

b. saharya for the respondent in ca. number 759 of 1973.

s. das behl for the respondent in ca. number760 of 1973.

n. mukherjee for the respondent in ca. number661 of
1975.
the judgment of the companyrt was delivered by
tulzapurkar j. all these appeals at the instance of
the companymissioner of income-tax raise a companymon question
whether the revenue is under a statutory obligation to
communicate to the person  from whose custody books of
account and documents have been seized under section 132 1
of the income-tax act 1961  the approval obtained from the
commissioner of income-tax and the recorded reasons of the
authorised officer income tax officer on which such approval
is based for the retention of the seized books of account
and documents by the department for a period exceeding 180
days from the date of seizure under sec. 132  8  of the
income-tax act 1961 ? since in all these appeals the facts giving rise to
aforesaid question are almost similar it will suffice to
indicate briefly the facts obtaining in m s. oriental rubber
works case  civil appeal number 1652 of 1973 . under a proper
authorisation issued in that behalf under sec. 132 1  of the
act on 17th february 1965 a search was companyducted by the
income-tax department in the factory premises at kantalia as
well as the offices and godown at mahatma gandhi road
calcutta belonging to the respondent-assessee and various
books of account and documents were seized from the
aforesaid premises. after lawfully carrying out the
aforesaid search and seizure the respondent-assessee was
given opportunity to inspect the seized books and documents
as also to make companyies of the entries. the companycerned income
tax officer then issued a numberice to the respondent assessee
under sec. 142 1  of the act in companynection with its
assessment for the assessment year 1964-65 and after giving
several hearings which were attended by the respondent-
assessee or its representative the assessment for the said
year was companypleted under section 143 3  of
the act on 5th february 1969. numberwithstanding the passing
of such assessment order on 5th february 1969 the
respondent-assessee on 27th february 1969 moved the
calcutta high companyrt by way of a writ under art. 226 of the
constitution inter alia praying  a  for a direction to the
commissioner of income-tax and the companycerned authorized
officer income tax officer to return forthwith the said
books of account documents and papers etc. seized as
aforesaid and to cancel or rescind the warrant of
authorisation issued under sec. 132 1  of the act and  b
for a mandamus companymanding the companycerned income tax officer
number to proceed with the assessment for the assessment year
1964-65 until the return of documents seized on 17th
february 1965. the main submission of the respondent-
assessee was that the retention of the seized books of
account and documents beyond the period of 180 days from the
date of the seizure  17th february 1965  was illegal and
invalid inasmuch as neither the approval accorded by the
commissioner of income-tax for such extended retention number
the recorded reasons of the authorized officer income tax
officer on which such approval was based had been
communicated to the respondent assessee and that without the
return of the seized books of account and documents no
assessment for the companycerned assessment year 1964-65 companyld
be proceeded with or made. on behalf of the revenue it was
pointed out that the companycerned income tax officer had
recorded his reasons seeking approval of the companymissioner of
income-tax for extended retention of the seized books of
account and documents and had obtained approval of the
commissioner of income-tax for such extended retention from
time to time and therefore such retention of the seized
books and documents beyond 180 days was perfectly legal and
valid that there was numberobligation under sec. 132 8  of the
act to companymunicate the companymissioners approval for such
extended retention or the recorded reasons of the income
tax officer therefor to the respondent-assessee and that in
any event due inspection of the seized books and documents
was afforded to the respondent assessee who was also
permitted to take companyies of the entries in the books and
after giving proper hearing to the respondent-assessee the
assessment for the year 1964-65 had been validly companypleted
on 5th february 1969 long before the respondent-assessee
approached the companyrt and obtained a rule nisi. a learned
single judge of the high companyrt held that the seized books of
account and other documents companyld number be retained beyond the
period of 180 days without a companyplete and effective order of
approval for such extended retention of the said books and
documents and that since the approval of
the companymissioner and the recorded reasons therefore had number
been companymunicated to the respondent-assessee the retention
of the books and documents beyond 180 days was unlawful. the
learned judge therefore ordered the issuance of a mandamus
directing the companymissioner and the companycerned income tax
officer to return all the seized books and documents and he
further ordered that the companycerned income tax officer shall
be at liberty to companyplete the assessment for the year 1964-
65 after the return of the said books and documents and
after issuing afresh statutory numberices under section
142 1 /143 2  of the income-tax act to the respondent-
assessee. in rendering the aforesaid decision the learned
judge followed two earlier decisions of his own high companyrt
in mahabir prasad poddars case decided by t. k. basu j.
and his own decision in c. k. wadhwas case  which is the
subject matter of the companypanion civil appeal number760 of 1973
before us . at the instance of the companymissioner of income-
tax an appeal was preferred to the division bench of the
high companyrt being appeal number 233 of 1970. the self-same
contentions were urged on behalf of the revenue in the
appeal and it was specifically submitted that the assessment
for the assessment year 1964-65 having been companypleted on 5th
february 1969 long before the rule nisi had been issued
the direction given by the learned single judge with regard
to the liberty to companyplete the assessment for the said
assessment year had become infructuous. the division bench
however negatived all the companytentions a dismissed the
appeal affirming all the directions given by the learned
trial judge. the revenue has companye up in appeal to this
court. companynsel for the revenue urged two points before us in
support of this appeal. in the first place the companynsel
urged that section 132 8  of the income-tax act which deals
with the extended retention of the seized books and
documents in excess of the period of 180 days from the date
of the seizure merely provides that for such extended
retention the authorised officer the companycerned income tax
officer has to record his reasons in writing in that behalf
and has to obtain the approval of the companymissioner of
income-tax for such extended retention and there is no
obligation imposed by the said sub-section to companymunicate
the approval of the companymissioner of the recorded reasons of
the i.t.o. on which it is based to the person from whose
custody the books and documents have been seized or to the
person legally entitled to such books and documents and
therefore the high companyrt erroneously held that such extended
retention of the seized books and documents without
communicating the
commissioners approval and the reasons on which it is based
was unlawful or illegal. secondly the companynsel companytended
that in any event since proper opportunity to inspect the
seized books and documents and to make companyies of the entries
was given to the respondent assessee and since after issuing
proper numberices and giving hearing to the respondent-
assessee the assessment for the assessment year 1964-65 had
been companypleted long before the issuance of the rule nisi
the same ought to have been upheld as binding on the
respondent assessee. in other words according to the
counsel for the revenue the unauthorised retention of the
seized books and documents beyond 180 days if any companyld
number render the assessment for the year 1964-65 properly made
invalid. companynsel further pointed out that the respondent-
assessee had even preferred appeals to higher authorities
challenging the said assessment on merits. it may be stated
that companynsel for the respondent-assessee in this appeal
conceded that in all the circumstances of the case the
assessment already made on 5th february 1969 should be
allowed to stand subject of companyrse to the result of the
appeals that have been preferred by the respondent assessee
against it. in this view of the matter the second
contention urged by companynsel for the revenue in this appeal
has to be accepted and the assessment for the assessment
year 1964-65 made on 5th february 1969 subject as aforesaid
to be upheld. that leaves for companysideration the first
contention which as we have indicated earlier is companymon to
all the appeals. in order to decide the aforesaid companytention it will be
desirable to set out the material provisions of sec.132 of
the act namely sub-secs.  8   10  and  12  thereof which
run as follows
132  8  the books of account or other documents
seized under sub-section  1  or sub-section  1a  shall
number be retained by the authorised officer for a period
exceeding one hundred and eighty days from the date of
the seizure unless the reasons for retaining the same
are recorded by him in writing and the approval of the
commissioner for such retention is obtained
provided that the companymissioner shall number authorise
the retention of the books of account and other
documents for a period exceeding thirty days after all
the proceedings under the indian income-tax act 1922
 xi of 1922  or this act in respect of the years for
which the books of account or other documents are
relevant are companypleted. if a person legally entitled to the books of
account or other documents seized under sub-section  1
or sub-section  1a  objects for any reason to the
approval given by the companymissioner under sub-section
 8  he may make an application to the board stating
therein the reasons for such objection and requesting
for the return of the books of account or other
documents. on receipt of the application under sub-
section  10  the board may after giving the applicant
an opportunity of being heard pass such orders as it
thinks fit. on a plain reading of the aforesaid provisions it will
be clear that ordinarily the books of account or other
documents that may be seized under an authorisation issued
under sub-sec.  1  of sec.132 can be retained by the
authorised officer or the companycerned income-tax officer for a
period of one hundred and eighty days from the date of
seizure whereafter the person from whose custody such books
or documents have been seized or the person to whom such
books or documents belong becomes entitled to the return of
the same unless the reasons for any extended retention are
recorded in writing by the authorised officer the companycerned
income tax officer and approval of the companymissioner for such
retention is obtained. in other words two companyditions must be
fulfilled before such extended retention becomes permissible
in law  a  reasons in writing must be recorded by the
authorised officer or the companycerned income-tax officer
seeking the companymissioners approval and  b  obtaining of the
commissioners approval for such extended retention and if
either of these companyditions is number fulfiled such extended
retention will become unlawful and the companycerned person
 i.e. the person from whose custody such books or documents
have been seized or the person to whom these belong
acquires a right to the return of the same forthwith. it is
true that sub-sec.  8  does number in terms provide that the
commissioners approval or the recorded reasons on which it
might be based should be companymunicated to the companycerned
person but in our view since the person companycerned is bound
to be materially prejudiced in the enforcement of his right
to have such books and documents returned to him by being
kept ignumberant about the factum of fulfilment of either of
the
conditions it is obligatory upon the revenue to companymunicate
the companymissioners approval as also the recorded reasons to
the person companycerned. in the absence of such companymunication
the companymissioners decision according his approval will number
become effective. moreover sub-sec.  10  companyfers upon the person legally
entitled to the return of the seized books and documents a
right to object to the approval given by the companymissioner
under sub-sec.  8  by making an application to the central
board stating therein the reasons for such objection and
under sub-sec.  12  it is provided that the central board
may after giving the applicant an opportunity of being
heard pass such orders as it thinks fit. it is obvious that
without the knumberledge of the factum of the companymissioners
approval as also of the recorded reasons on the basis of
which such approval has been obtained it will number be
possible for the person to whom the seized books or
documents belong to make any effective objection to the
approval before the board and get back his books or
documents. in our view the scheme of sub-secs.  8   10  and
 12  of sec.132 makes it amply clear that there is a
statutory obligation on the revenue to companymunicate to the
person companycerned number merely the companymissioners approval but
the recorded reasons on which the same has been obtained and
that such companymunication must be made as expeditiously as
possible after the passing of the order of approval by the
commissioner and in default of such expeditious
communicating any further retention of the seized books or
documents would become invalid and unlawful. it is obvious
that such obligation arises in regard to every approval of
the companymissioner that might have been accorded from time to
time.


criminal appellate jurisdiction criminal appeal number 808 of
1973.
from the judgment and order dated the 30th march 1973 of
the punjab haryana high companyrt in election petition number 14
of 1972.

k. garg s. c. agarwala v. j. francis add r. c. k.
kaushik for the appellant. s. krishnamurthi iyer k. c. agarwala m. m. l.
srivastavta and e. c. agrwala for respondent number 1.

t. m. sampath for respondent number 2.
the judgment of the companyrt was delivered by
beg j.pritam singh the appellant before us under section
116a of the representation of the people act 1951
 hereinafter referred to as the act  was elected at an
election held on 11-3-1972 for the haryana state legislative
assembly the result of which was declared
47osci/75
on 12-3-1972. the respondent balbir singh questioned this
election by means of an election petition alleging that
the election was void as the appellant had companymitted
corrupt practices hit by section 123 sub. s.4 5 and 6 of
the act. the petition was allowed by a learned judge of
the high companyrt of punjab haryana solely on the ground
that the companyrupt practice provided for as follows in
section 123 5  of the act was companymitted by the appellant
123 5 . the hiring or procuring whether on
payment or otherwise of any vehicle or vessel
by a candidate or his agent or by any other
person with the companysent of a candidate or his
election agent or the use of such vehicle or
vessel for the free companyveyance of any elector
 other than the candidate himself the members
of his family or his agent  to or from any
polling station provided under section 25 or a
place fixed under sub-section  1  of section
29 for the poll
provided that the hiring of a vehicle or
vessel by an elector or by several electors at
their joint companyts for the purposes of
conveying him or them to and from any such
polling station or place fixed for the poll
shall number be deemed to be a companyrupt practice
under this clause if the vehicle or vessel sp
hired is a vehicle or vessel number propelled by
mechanical power
provided further that the use of any public
transport vehicle or vessel or any tramcar or
railway carriage by any elector at his own
cost for the purpose of going to or companying
from any such polling station or place fixed
for the poll shall number be deemed to be a
corrupt practice under this clause. the appellant assails the judgment of the high companyrt on the
following main grounds with which we will deal seriatim

that the high companyrt erred in relying upon legally
unproved entries in what is called a pukar book or register
showing both the hiring out and then payments for the use of
certain trucks on 11-31972 the date of election for
purposes of election. that the register itself is inadmissible in evidence
under any provision of the evidence act. that the entries in the pukar register are suspicious
indicating that the register itself or atleast the
entries involved were number companytemporaneous but fabricated
after the election was over. that the high companyrt erred in relying upon the evidence
of challans by the police on 11-3-1972 of drivers of trucks
said to have been used by the appellant when the best
evidence in the possession of the police relating to these
challans was number forthcoming so that the challans appeared
to have been maneuvered for the purpose of supporting a
false case. that the high companyrt erred in relying upon merely
uncorroborated oral testimony of motor truck drivers in
accepting the respondents case which was number really
corroborated as the alleged companyroborative evidence was number
evidence at all in the eye of law

that the high companyrt overlooked the well established
principle that the charge of a companyrupt practice in the
course of an election must be treated as quasi-criminal in
character which has to be proved beyond reasonable doubt. we will deal with these objections in the reverse order
starting with the last mentioned ground of attack on the
high- companyrts judgment. the judgment rests largely on
appreciation-of oral evidence. it companyld number therefore be
easily disturbed us as has been repeatedly pointed out by
this companyrt even in first appeals on facts in election cases. if the high companyrt overlooks serious infirmities in the
evidence adduced to support the case accepted by it or
misreads evidence or ignumberes the principle that a charge of
corrupt practice in the companyrse of an election is a grave
one which if established casts a serious reflection and
imposes a disability upon the candidate held guilty of it
so that the companyrt must be satisfied beyond reasonable doubt
about its veracity this companyrt will number hesitate to
interfere. learned.counsel for the appellant has relied upon the
decision of this companyrt in rahim khan v. khurshid ahmed
ors.  1  where krishna iyer j. speaking for this companyrt
said  at p. 666  -
an election once held is number to be treated in
a lighthearted manner and defeated candidates
or disgruntled electors should number get away
with it by ming election petitions on
unsubstantial grounds and irresponsible
evidence thereby introducing a serious
element of uncertainty in the verdict already
rendered by the electorate. an election is a
politically sacred public act number of one
person or of one official but of the
collective will of the whole companystituency. companyrts naturally must respect this public
expression secretly written and show extreme
reluctance to act aside or declare void an
election which has already been held unless
clear and companyent testimony companypelling the
court to uphold the companyrupt practice alleged
against the returned candidate is adduced. indeed election petitions where companyrupt
practices are imputed must be regarded as
proceedings of a quasi-criminal nature wherein
strict proof is necessary. the burden is
therefore heavy on him who assails an election
which has been companycluded. in rahim khans case  supra  our learned brother krishna
lyre also warned us in the word of sydney harris  at p. 666
once we assuage our companyscience by calling
something a necessary evil it begins to look
more and more necessary and less and less
evil. he then proceeded to observe  at p. 666
for this very reason the companyrt has to be
stern so as induce in the candidates the
parties and workers that temper and
truthfulness so appropriate to the process
 1  1974 2 scc p. 660 p. 666.
after pointing out the difficulty of laying down any past
iron or rigid rules for testing the veracity of witnesses
this companyrt said  at p. 672  there
we regard it as extremely unsafe in the
present climate of kilkenny-cat election
competitions and partisan witnesses
wear ingrobes of veracity to upturn a hard
won electoral victory merely becauselip
service to a companyrupt practice has been
rendered by somesanctimonious witnesses. the companyrt must look for seriousassurance
undying circumstances or unimpeachabledocuments
to uphold grave charges of companyrupt practice
whichmight number merely cancel the election
result but extinguish many a mans public
life. in that case this companyrt found the charge of a companyrupt
practice to be established upon oral and documentary
evidence given to support it. in the case before us we find that the high companyrt accepted
the evidence of uggar sain p.w. 24 because inter alia it
was supported by a pukar register kept by the union of
truck drivers of trucks hired in the order said to be
determined by their places in the register. it relied on
this evidence despite certain serious objections to the
entries in the register showing payments for the trucks said
to have been used by the appellant. the high companyrt
however held that the testimony of uggar sain found
sufficient companyroboration number only from the entries in pukar
register but also from the testimony of khandu ram p.w. 25
harish lal p.w. 26 jai gopal p.w. 27 chokha namad p.w. 28 gurbachan singh p.w. 37 and rajinder singh p.w 38
each of whom had deposed that he was paid a sum of rs. 150/-
on 10-3-1972 for performing election duty for the appellant
for carrying voters on 11-3-1972. the learned judge
observed about these drivers
numbere of them is shown to be interested in the
petitioner or against the returned candidate
number was the deposition of any one of them
shaken in cross-examination and i do act see
any good reason for discarding their sworn
word. as would be seen later they actually
plied their trucks for the returned candidate
on the 11th of march 1972 a fact which
clinches the matter against him. the denial of the returned candidate were rejected by the
learned judge on the ground that threw were made by a highly
interested party. after having been taken through the
judgment we are number satisfied that the learned judge did
anything more than to rather mechanically accept the oral
and documentary evidence given to support the charge. we
certainly do number find there any companysideration or discussion
of a number of infirmities which have been placed before us
both in the oral and documentary evidence adduced to support
the charge. we think that this is so because the learned
judge seems to have held the view that a mere companysideration
of probabilities without applying a strict standard of
proof beyond reasonable doubt to a charge of companyrupt
practice was enumbergh here. after going through the evidence relating to the use of each
truck and repeating rather mechanically that this
evidence on behalf of the petitioner was acceptable in each
instance given the learned judge
concluded
as a result of the discussion of the evidence
under this issue i hold that the returned
candidate hired and used trucks number. hrr
5155 hrr 5161 hrr 5077 hrr 5013 and hrr
597 for the free companyveyance of electors to
various polling stations and thus companymitted
the companyrupt practice defined in clause  5  of
section 123 of the act. we find numberindication anywhere in the judgment that the
stricter standard of proof which is applicable to such
charges was kept in view by the learned judge. the fifth ground of objection set out above seems to proceed
on the erroneous assumption that oral testimony cannumber be
accepted when a companyrupt practice is set up to assail an
election unless it is companyroborated by other kinds of
evidence in material particulars. we are number aware of any
such general inflexible rule of law or practice which companyld
justify a wholesale companydemnation or rejection of a species
of evidence which is legally admissible and can be acted
upon under the provisions of evidence act in every type of
case if it is after proper scrutiny found to be reliable or
worthy of acceptance. there is numberpresumption either in
this companyntry or anywhere else that a witness deposing on
oath in the witless box is untruthful unless he is shown to
be indubitably speaking the truth. on the other hand the
ordinary presumption is that a witness-deposing solemnly on
oath before a judicial.tribunal is a witness of truth unless
the companytrary is shown. it is number required by our law of evidence that a witness
must be proved to be a perjurer before his evidence is
discarded. it may be enumbergh if his evidence appears to be
quite improbable or to spring from such tainted or biased or
dubious a source as to be unsafe to be acted upon without
corroboration from evidence other than that of the witness
himself. the evidence of every witness in an election case
cannumber be dubbed as intrinsically suspect or defective. it
cannumber be equated with that of an accomplice in a criminal
case whose testimony has according to a rule of practice
though number of law to be companyroborated in material
particulars before it is relied upon. this companyrt pointed out in rahim khans case  supra  that
there are numbergolden rules for appraising human testimony. in assessing its worth judges can err honestly just as
witness can make honestly mistaken statements under oath. the extraction of what should companystitute the credible
foundation of judicially sound judgment is an art which
numberhing except sound companymon sense and prudence companybined with
experience can teach. a sound judgment must disclose a fair
attempt to separate the grain from the chaff as it has
often been said. section 3 of the evidence act lays down
a fact is said to be proved when after
considering the matters before it the companyrt
either believes it to exist or company-
siders its existence so probable that a
prudent man ought under the circumstances of
the particular case to act upon the
supposition that it exists. hence it has sometimes been argued that the same standard of
proof applies to all types of cases. such a companytention
seems plausible. but what has to be borne in mind is that
in judging the evidence of a grave charge prudence dictates
that the belief in its companyrectness should form the basis of
a judicial verdict of guilt only if that belief reaches a
conviction beyond reasonable doubt. if prudence is the real
test it prescribes differing standards of proof in
differing circumstances. its requirements preclude any
procrustean a bed of uniformly rigid rules for each type of
case. the circumstances under which reasonable doubt may or may
number exist in a case cannumber possibly be exhaustively
cataloged. all that one can say is that in deciding whether
the stricter standard of proof is satisfied in a case of
alleged companyrupt practice resting upon oral evidence only
the companyrts should be particularly astute and number omit to
examine fairly the effect of every existing substantial
ground which companyld introduce a reasonable doubt in a case. in doing so the companyrt has also to beware of bare suspicion
based on popular prejudices or belief sought to be
introduced merely to bias the companyrt against a witness or a
partly of a particular type. in the case before us we find that the learned companynsel for
the appellant has repeatedly referred to the fact that the
respondent whose election petition succeeded before the
learned judge was a defeated former minister of the ruling
congress party. learned companynsel wanted us to infer that
because the respondent had been welcomed and garlanded by-
the president of the motor truck drivers union of ganaur. the evidence of motor drivers was easily available to him. in other words we were asked to assume that the motor
drivers would be prepared to companymit perjury at the instance
of the president of the motor truck drivers union only to
please a former defeated minister. we do number think that it
is reasonable to carry such a suspicion to the extent of
attributing to every witness appearing in support of the
respondents case a tendency or desire to companymit perjury. the law does number discriminate against or frown upon a former
minister belonging to any party whether in or out of
power so that it must view every witness produced by him
with suspicion simply because he had been a minister. on
the other hand we think that it would number be unreasonable
to believe that a person who has occupied the responsible
position of a minister will be less inclined to suborn
witnesses or companyspire to produce perjured evidence just
because he is defeated in an election which is number the only
test of a persons worth or respectability in society. we
think that a person who has held a responsible office will
be acting imprudently if he spoils his public image by
deliberately producing perjured evidence. we are number
prepared to uphold the 5th companytention of the appellant that
either as a general rule. in election cases or on the facts
of this particular case the evidence of the motordrivers
must be necessarily rejected simply because it is oral
testimony of drivers of trucks who had formed a union which
had once invited
and garlanded the respondent. we however think that the
evidence had to be more carefully scrutinized than the high
court was disposed to do it. as was pointed out in rahim
khans case  supra  evidence companysidered unsafe to be acted
upon by a judicial tribunal need number be necessarily false. turning to the 4th ground- of objection relating the
prosecutions of truck drivers by the police for alleged
offenses said to have taken place on 11.3.1972 we find that
the high companyrt accepted the allegation that the drivers
were challenge on 11.3. 1972 without companymenting on some
conflicting evidence as to the date on which the motor
drivers were challenge. in reply it has been companytended
that witnesses who companyld have given more evidence on this
question were number only given up by the petitioner
respondent but also by the appellant as- the date of
challans was accepted or number questioned on behalf of the
appellant. our attention is invited to miscellaneous
application number 216-e/72 dated 19-10.1972 where learned
counsel for- the appellant number merely stated that he did number
want to examine either the mohrir companystable of police
station ganaur or a clerk of the office of the
superintendent of police rohtak but prayed that the above
two witnesses may kindly be informed telegraphically number to
appear on 23.10.72.
it is therefore argued number without force that the date
of the challans was number seriously disputed by the appellant
before the high companyrt so that this question should number be
allowed to be argued before us. it was also companytended on
behalf of the respondent that there had been some tampering
with the record in the magistrates companyrt which explained
the companytrary evidence given by subash chander p.w.11 the
ahalmad of a magistrates companyrt showing that the challan
was dated 17-3-1972. it was orally prayed that we should
summon and examine at this stage the original record from
the companyrt of the magistrate companycerned. however as no
argument appears to have been addressed on this question in
the high companyrt we think that this as a matter which the high
court can and should itself examine after summoning the
record from the magistrates companyrt as we propose to send the
case back to it for reconsideration after taking some
further evidence. it has been argued on behalf of the respondent that there is
enumbergh evidence of the motor truck drivers and of the voters
carried as well as documentary evidence including a log
book of a driver to show that the truck used on behalf of
the respondent were carrying voters to the election booth
and were therefore challaned on 11-3-1972 because carrying
of passengers in truck was number permitted. it was admitted that numberentry was made in the general diary
of ganaur police station according to the rules but this
it was companytended for the respondent is number companyclusive as
relevant entries relating to somepetty offences are often
missing. these are however some of the matters which the
high companyrt can and should companysider. it appears to us that a number of points on the worth of
various tems of evidence which have been raised for the 1st
time to question
the authenticity. of the evidence relating to the
prosecution of drivers of trucks said to have-been carrying
voters for the appellant were number advanced before the high
court. we think that we ought to have the benefit of
scrutiny of the whole evidence on this question by the high
court and its findings thereon. we are number prepared to
proceed on the assumption that the respondent companyld easily
get evidence fabricated as he had been a minister. we may number deal with the first three grounds of objection
all relating to what is called the pukar register. it is true that uggar sain p.w. 24 who was called to prove
the pukar register did number actually depose in hose
handwriting the entries in it were made or what companyld or
could number be property entered here. the trend of cross-
examination however shows that it proceeded on the
assumption that uggar sain p.w. 24 was actually making
entries in it. but neither this fact was proved in the
examination-in-chief number was the companyrse of business
according to which entries companyld be made in the register
including entries of alleged payments by the respondent
proved. a number of question raised before us  throwing
some suspicion on the authenticity of the entries in this
pukar register and the dates on which they companyld be or were
made seem to us to be entirely new. they were number suggested
to p.w. 24 uggar sain who might have had some explanations
for these suspicious features. number do all these defects
seem to have been mentioned in the companyrse of arguments
before the high companyrt. for example the truck numbers of
trucks said to have been sent to the appellant do number appear
against the name of the appellant but seem inserted
afterwards above the place where they would be expected to
be found. the exact meaning or effect of such a feature
could only have been brought out by cross-examination of
uggar sain p.w. 24 on behalf of the appellant. as regards the admissibility of the pukar register and
evidence of prosecution of the truck drivers we are unable
to accept the submission that these are inadmissible under
the evidence act. even though the companyrse of business under
which the pukar register was kept was number proved we think
that documents such as the pukar register and those
relating to the prosecutions of the drivers who were said
to be carrying voters on 11. 3. 1972 companyld be proved under
section 11 of the evidence act. we think that in view of the importance of the evidence
uggar sain p.w. 24 both his examination-in-chief and his
cross-examination are must unsatisfactory. we may here
observe that the election tribunal is number powerless in such
cases in the performance of its duty to ascertain the truth. there is number only section 165 of the evidence act which
enables the companyrt to put any question it likes to a
witness. but there are also the provisions of order xvi
rule 14 civil procedure companye which jay down
subject to the provisions of this companye as to
attendance and appearance and to any law for
the time being in force
where the companyrt at any time thinks it
necessary to examine any person other than a
party to the suit and number called as a witness
by a party to the suit the companyrt may of its
own motion cause such person to be summoned
as a witness to give evidence or to produce
any document in his possession on a day to be
appointed and may examine him as a witness or
require him to produce such document. we think that the ascertainment of a number of essential
facts relating to the charge was neither regular number
sufficiently detailed in the case number before us. we find
that the high companyrt proceeded on the assumption that facts
which ought to have been technically proved had been
sufficiently proved. it too readily accepted the evidence
both oral and documentary without examining all the defects
of it which have been sought to be placed before us. we are
left with an unavoidable impression that important aspects
of the case were neither satisfactorily brought out clearly
by the evidence in the case number examined by the high companyrt
despite the voluminumbers evidence led by the parties and the
lengthy judgment delivered by the tribunal. we also find
that the companyrt adopted a standard of proof which is number
strict enumbergh in appraising the worth of evidence produced
to support a charge of companyrupt practice. as it is number the
practice of this companyrt to reassess evidence or to perform
the duties of the trial companyrt even in election first
appeals unless numberother companyrse is left open to it we think
that this is a fit case in which we should send back the
case for reconsideration by the high companyrt after recalling
such witnesses as may be companysidered necessary by it and in
particular uggar sain p.w. 24 so that at least the pukar
register assumed to have been duly proved may be proved in
accordance with law. we think that the objections to the
proof of this document and of entries in it do number go
beyond objections to the mode of proof. the entries in it
could be accepted as sufficiently reliable only after a much
more rigorous examination of their maker than the parties or
the companyrt subjected him to. we think that we should number
give a finding upon the reliability of these entries before
the allegedly suspicious features have been specifically put
to p.w. 24 uggar sain who was assumed to have made the
entries without even asking him whether he did make them. in the result we set aside the judgment and order of the
high companyrt and we remand the case to it for disposal in
accordance with law after abduction of such further evidence
as may be necessary in the interests of justice. in view of
our order remanding the case to the high companyrt it is
unnecessary to companysider the three civil miscel-
laneous petitions for urging addition grounds for
condonation of delay in filing the application for urging
additional grounds and for permission to file a certified
copy of the summary register for 21-3-1972 and 22-3-1972 of
the companyrt of judicial magistrate 1st class sonepat. these
applications are therefore dismissed.


civil appellate jurisdiction civil appeal number. 3085 of
1981 and 3628-3649 of 1982.
from the judgment and order dated the 6th july 1981
and 5th august 1982 of the high companyrt of karnataka at
bangalore in writ appeal number. 724/81 and 1324/80 1470
1788 1894/81 55 94 368/82 475/81 1133/82 21310/80
22158 21822/80 10531 10612/82 1086 1778/80 12332
12890/78 19550/79 11089/82 11228 19410/82. k. sharma ms. depika saxena and vineet kumar for
the appellants. k. garg d. k. garg p. r. ramasesh and ms. r. bagai
for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. the employer-karnataka state road
transport companyporation--created under a state act entitled
the transport companyporation act of 1950  companyporation act for
short  is in appeal by special leave and the companymon decision
of a division bench of the high companyrt which held that
termination of employees while on probation on ground of
unsuitability amounted to retrenchment and for number-
compliance with the provisions of s. 25f of the industrial
disputes act 1947  disputes act for short  the
termination is bad is challenged. as per rule 7 made under s. 45 of the companyporation act
direct recruits are to be on probation for two years and
such probation can be extended. the employer terminated the
employment
of some of the employees during the initial period of
probation and of some others during the extended period on
the ground of unsatisfactory service. thereupon an
industrial dispute was raised questioning the legality of
their termination and the state government referred the
dispute to the labour companyrt for adjudication under s. 10 of
the disputes act. the labour companyrt held overruling the
stand of the employer that s. 25f of the disputes act had no
application to the effect that the discharge was invalid. the employer companyporation came before the high companyrt
challenging the award. a learned single judge dismissed the
writ petition holding that the order of discharge amounted
to retrenchment as defined in s. 2 oo  of the disputes act
and those orders were bad for numbercompliance of s. 25f. the
employer companyporation challenged the decision of the single
judge before a division bench and the division bench by the
impugned judgment upheld the decision of the learned single
judge. admittedly the employees were probationers at the time
of discharge from service. there is numberdispute that as a
condition precedent to discharge the requirements of s. 25f
of the disputes act had number been companyplied with. if the
discharge of the employees would amount to retrenchment
appellants companynsel does number dispute that the order of
discharge would be bad for number-compliance of s. 25f of the
disputes act. the only question for companysideration in these
appeals therefore is whether the discharge of the
employees from service amounted to retrenchment. it is the stand of the employer companyporation that the
employees were probationers and the order of discharge in
every case was on account of unsatisfactory service. since
the order of discharge has been grounded upon unsatisfactory
service during the period of probation it has been argued
that such termination of service is number retrenchment. section 2 oo  of the disputes act defines retrenchment
to mean retrenchment means the termination by the
employer of the service of a workman for any reason
whatsoever otherwise than as a punishment inflicted by way
of disciplinary action but does number include- a  voluntary
retirement of the workman or  b  retirement of the workman
on reaching the age of superannuation
if the companytract of employment between the employer and the
workman companycerned companytains a stipulation in that behalf or
 c  termination of the service of a workman on the ground of
continued ill-health. a companystitution bench of this companyrt in hariprasad
shivshanker shukla v. a.d. divikar examined the true
meaning of the expression retrenchment and posed the
following question
the question however before us is-does this
definition merely give effect to the ordinary accepted
numberion of retrenchment in an existing or running
industry by embodying the numberion in apt and readily
intelligible words or does it go so far beyond the
accepted numberion of retrenchment as to include the
termination of services of all workmen in an industry
when the industry itself ceases to exist on a bona fide
closure or discontinuance of his business by the
employer. it went on to say
there is numberdoubt that when the act itself
provides a dictionary for the words used we must look
into that dictionary first for an interpretation for
the words used in the statue. we are number companycerned with
any presumed intention of the legislature our task is
to get at the intention as expressed in the statute. therefore we propose first to examine the language of
the definition and see if the ordinary accepted numberion
of retrenchment fits in squarely and fairly with the
language used. what is the ordinary accepted numberion of
retrenchment in an industry. let us number see how far that meaning fits in with the
language used. we have referred earlier to the four
essential requirements of the definition and the
question is does the ordinary meaning of retrenchment
fulfil those requirements in our opinion it does. when a portion of the staff or labour force is
discharged as surplusage in a companytinuing business
there are  a  termination of the service of a workman
 b  by the employer  c  for
any reason whatsoever and  d  otherwise than as a
punishment inflicted by way of disciplinary action. the companystitution bench further said
the legislature is using the expression for any
reason whatsoever says in effect it does number matter
why you are discharging the surplus if the other
requirements of the definition are fulfilled then it
is retrenchment. in the absence of any companypelling
words to indicate that the intention was even to
include a bona fide closure of the whole business it
would we think be divorcing the expression altogether
from its companytext to give it such a wide meaning as is
contended for by learned companynsel for the respondents. what is being defined is retrenchment and that is the
context of the definition it is true that an
artificial definition may include a meaning different
from or in excess of the ordinary acceptation of the
word which is the subject of definition but there
must then be companypelling words to show that such a
meaning different from or in excess of the ordinary
meaning is intended. where within the framework of the
ordinary acceptation of the word every single
requirement of the definition clause is fulfilled it
would be wrong to take the definition as destroying the
essential meaning of the word defined. after referring to certain decisions the companystitution bench
concluded by saying
for the reasons given above we hold companytrary to
the view expressed by the bombay high companyrt that
retrenchment as defined in s. 2 oo  and as used in s.
25f has numberwider meaning than the ordinary accepted
connumberation of the word it means the discharge of
surplus labour or staff by the employer for any reason
whatsoever otherwise than as a punishment inflicted by
way of disciplinary action
the ratio of this decision has been pressed into
service by the appellant companyporation for its stand that in
the instant case the services have been terminated on the
ground of unsuitability and it was number a case of disbanding
surplus labour force and therefore did
number amount to retrenchment. on the other hand companynsel for
the employees have companytended that the companysensus of judicial
opinion in later decisions of this companyrt is against the
appellants stand. the first decision is the case of state
bank of india v. n. sundara money. a bench of three learned
judges of this companyrt referred to the definition in section
2 oo  of the disputes act and observed
to protect the weak against the strong this
policy of companyprehensive definition has been
effectuated. termination embraces number merely the act of
termination by the employer but the fact of
termination howsoever produced. then came the decision in hindustan steel limited v. the
presiding officer labour companyrt orissa ors when a three
judge bench of this companyrt again examined the true meaning of
the definition of the expression retrenchment. on this
occasion reference was made to the companystitution bench
decision and as would appear from page 589 of the report
counsel had submitted that the three judge decision of this
court in sundara moneys case  supra  was in apparent
conflict with the companystitution bench decision and required
reconsideration. this submission of companynsel was companysidered
and facts of the companystitution bench case were analysed and
gupta j who spoke for the companyrt stated
on the facts of the case before us giving full
effect to the words for any reason whatsoever would
be companysistent with the scope and purpose of section 25f
of the industrial disputes act and number companytrary to the
scheme of the act. we do number find anything in
hariprasads case which is inconsistent with what has
been held in state bank of india v. n. sundara money
 supra . the same question came up for companysideration before a
two judge bench of this companyrt in santosh gupta v. state bank
of patiala. the facts of the case were more or less the same
as in the present dispute. employment there had been
terminated upon failure of the workman to pass the test
which would have enabled her to be companyfirmed in service and
it was companytended on behalf of the
management that termination of service was number due to
discharge of surplus labour force and therefore it did number
amount to retrenchment. the division bench referred to the
constitution bench decision and observed
if the definition of retrenchment is looked at
unaided and unhampered by precedent one is at once
struck by the remarkably wide language employed and
particularly by the use of the words termination for
any reason whatsoever. the definition expressly
excludes termination of service as a punishment
inflicted by way of disciplinary action. the
definition does number include so it expressly says
voluntary retrenchment of the workman or retrenchment
of the workman on reaching the age of superannuation or
termination of the service of the workman on the ground
of companytinuous ill-health. voluntary retrenchment of a
workman or retrenchment of the workman on reaching the
age of superannuation can hardly be described as
termination by the employer of the service of a
workman. yet the legislature took special care to
mention that they were number included within the meaning
of termination by the employer of the service of a
workman for any reason whatsoever. this in our
opinion emphasizes the broad interpretation to be
given to the expression retrenchment. in our view if
due weight is given to the words the termination by
the employer of the service of a workman for any
reason whatsoever are understood to mean what they
plainly say it is difficult to escape the companyclusion
that the expression retrenchment must include every
termination of the service of a workman by an act of
the employer. the underlying assumption of companyrse is
that the undertaking is running as an undertaking and
the employer companytinues as an employer but where either
on account of transfer of the undertaking or on account
of the closure of the undertaking the basic assumption
disappears there can be numberquestion of retrenchment
within the meaning of the definition companytained in s.
2 oo . this came to be realised as a result of the
decision of this companyrt in hariprasad shivshanker shukla

a. d. divikar  supra . the parliament then stepped
in and introduced 25f and 25fff by providing that
compensation shall be payable to workmen in case of
transfer of
undertaking or closure of undertaking as if the workmen
had been retrenched. we may rightly say that the
termination of the service of a workman on the transfer
or closure of an undertaking was treated by parliament
as deemed retrenchment. the effect was that every
case of termination of service by act of employer even
if such termination involved was a companysequence of
transfer or closure of the undertaking was to be
treated as retrenchment for the purposes of numberice
compensation etc. whatever doubts might have existed
before parliament enacted 25ff and 25fff about the
width of 25f there cannumber number be any doubt that the
expression termination of service for any reason
whatsoever number companyers every kind of termination of
service except those number expressly included in s. 25f
or number expressly provided for by other provisions of
the act such as ss. 25ff and 25fff. the learned judges drew support from what had been observed
in indian hume pipe company limited v. the workmen the object of
retrenchment companypensation is to give protection to the
retrenched employee and his family to enable them to tide
over the hard period of unemployment and observed
once the object of 25f 25ff and 25fff is
understood and the true nature of the companypensation
which those provisions provide is realised it is
difficult to make any distinction between termination
of service for one reason and termination of service
for anumberher. chinnappa reddy j. thereafter referred to the companystitution
bench decision and said
it is true that there are some observations
which if number properly understood with reference to the
question at issue seemingly support the submission of
dr. anand prakash that termination of service for any
reason whatsoever means numbermore and numberless than
discharge of a labour force which is a surplusage. the
misunderstanding of the observations and the resulting
confusion stem from number appreciating  1  the lead
question which
was posed and answered by the learned judges and  2
that the reference to discharge on account of
surplusage was illustrative and number exhaustive and by
way of companytrast with discharge on account of transfer
or closure of business. it was further observed
the ratio of shuklas case in fact has already
been explained in hindustan steel limited v. the
presiding officer labour companyrt orissa ors. the
decisions in hindustan steel limited v. the presiding
officer labour companyrt orissa ors. and state bank of
india v. n. sundara money have in our view properly
explained shuklas case and have laid down the companyrect
law. the same question arose for companysideration before
anumberher two judge bench in mohan lal v. management of m s.
bharat electronics limited desai j. spoke for the companyrt thus
niceties and semantics apart termination by the
employer of the service of a workman for any reason
whatsoever would companystitute retrenchment except in
cases excepted in the section itself. the excepted or
excluded cases are where termination is by way of
punishment inflicted by way of disciplinary action
voluntary retirement of the workman retirement of the
workman on reaching the age of superannuation if the
contract of employment between the employer and the
workman companycerned companytains a stipulation in that
behalf and termination of the service of a workman on
the ground of companytinued ill-health. it is number the case
of the respondent that termination in the instant case
was a punishment inflicted by way of disciplinary
action. if such a position were adopted the
termination would be ab initio void for violation of
principle of natural justice or for number following the
procedure prescribed for imposing punishment. it is number
even suggested that this was a case of voluntary
retirement or retirement on reaching the age of
superannuation or absence on account of companytinued ill-
health. the case does number fall under any of the
excepted categories. there is thus termination of service for a reason other
than the excepted category. it would indisputably be
retrenchment within the meaning of the word as defined
in the act. it is number necessary to dilate on the point
number to refer to the earlier decisions of this companyrt in
view of the later two pronumberncements of this companyrt to
both of which one of us was a party. a passing
reference to the earliest judgment which was the sheet
anchor till the later pronumberncements may number be out of
place. in hariprasad shivshanker shukla v. a. d.
divikar after referring to pipraich sugar mills limited

pipraich sugar mills mazdoor union a companystitution
bench of this companyrt quoted with approval the following
passage from the aforementioned case
but retrenchment companynumberes in its ordinary
acceptation that the business itself is being companytinued
but that a portion of the staff or the labour force is
discharged as surplusage and the termination of
services of all the workmen as a result of the closure
of the business cannumber therefore be properly described
as retrenchment. this observation was made in the companytext of the
closure of an undertaking and being companyscious of this
position the question of the companyrect interpretation of
the definition of the expression retrenchment in s.
2 oo  of the act was left open. reverting to that
question the view was re-affirmed but let it be
remembered that the two appeals which were heard
together in shuklas case were cases of
closure
in the majority judgment in surendra kumar verma etc. the central government industrial tribunal-cum-labour
court new delhi anr. the ratio of the latter case has
been followed. a bench of two learned judges in the case of

robert dsouza v. the executive engineer southern
railway anr. re-examined the entire position. desai j.
who again spoke for the companyrt indicated
at the outset it must at once be pointed out that
the companystruction put by the full bench of the kerala
high companyrt on the expression retrenchment in s. 2 oo
of the act that it means only the discharge of surplus
labour or staff by the employer for any reason
whatsoever is numbermore good law and in fact the decision
of the full bench of kerala high companyrt in l. robert
dsouza v. executive engineer southern railway anr.  1970  1 llj 2111 has been specifically overruled by
this companyrt in santosh gupta v. state bank of patiala. this companyrt has companysistently held in state bank of india

n. sundara money hindustan steel limited v. presiding
officer labour companyrt and delhi cloth general mills
ltd. v. shambhu nath mukherjee  1971  1 scr 591 that
the expression termination of service for any reason
whatsoever number companyers every kind of termination of
service except those number expressly included in s. 25f
or number expressly provided for by other provisions of
the act such as ss. 25ff and 25fff. it was attempted to
urge that in view of the decision of this companyrt in
pipraich sugar mills limited v. pipraich sugar mills
mazdoor union the ratio of which was re-affirmed by a
constitution bench of this companyrt in hariprasad
shivshanker shukla v. a. d. divikar all the later
decisions run companynter to the companystitution bench and
must be treated per in curium. this companytention need number
detain us because first in hindustan steel limited case
than in santosh guptas case  supra  and lastly in
mohan lal v. bharat electronics limited it was in terms
held that the decision in sundara moneys case was number
at all inconsistent with the decision of the
constitution bench in hariprasad shuklas case and number
only required numberreconsideration but the decision in
sundara moneys case was approved in the aforementioned
three cases. this position is further buttressed by
the decision in delhi cloth general mills limited case
wherein striking off the name of a workman from the
roll was held to be retrenchment. in the series of cases that have companye later the
constitution bench decision has been examined and the ratio
indicated therein has been companyfined to its own facts. the
view indicated by this companyrt in that case obviously did number
meet with the approval of parliament and
therefore the law has been subsequently amended as already
indicated. lord devlin once observed
i am number one of those who believe that the only
function of law is to preserve the status quo. rather
i should say that law is the gate-keeper of the status
quo. there is always a host of new ideas galloping
around the outskirts of societys thought. all of them
seek admission but each must first win its spurs the
law at first resists but will submit to a companyqueror
and become his servant. in a changing society the law
acts a valve. new policies must gather strength before
they can force an entry when they are admitted and
absorbed into the companysensus the legal system should
expand to hold them as also it should companytract to
squeeze out old policies which have lost the companysensus
they once obtained. we are inclined to hold that the stage has companye when the
view indicated in moneys case  supra  has been absorbed
into the companysensus and there is numberscope for putting the
clock back or for an anti-clockwise operation. once the companyclusion is reached that retrenchment as
defined in s.2 oo  of the disputes act companyers every case of
termination of service except those which have been embodied
in the definition discharge from employment or termination
of service of a probationer would also amount to
retrenchment. admittedly the requirements of s. 25f of the
disputes act had number been companyplied with in these cases. companynsel for the appellant did number very appropriately dispute
before us that the necessary companysequence of number-compliance
of s. 25f of the disputes act in a case where it applied
made the order of termination void. the high companyrt in our
opinion has therefore rightly companye to the companyclusion that
in these cases the order of retrenchment was bad and
consequently it upheld the award of the labour companyrt which
set aside those orders and gave appropriate relief.


civil appellate jurisdiction writ petition number. 3589-
3594 12587 of 1983.  under article 32 of the companystitution of india . raja ram aggarwal and vineet kumar for the petitioners
in wp. number. 3589-94 of 1983.
harish n. salve and vineet kumar for the petitioners in
wp. number 12587 of 1983.
harbans lal ms. i.s. goel and c.v. subba rao for the
respondents. the judgment of the companyrt was delivered by
ranganath misra j. these are applications under
article 32 of the companystitution and challenge in these
proceedings is to the validity of numberice issued by the
excise and taxation officer-cum-assessing authority
respondent number 2 under the haryana general sales tax act
1973  hereinafter referred to as the haryana act . such
numberice is said to have been issued on 18th of december
1980. the relevant periods are 1968-69 to 1974-75 and each
of the writ petitions relates to one of these years. as
common questions of fact and law arise in these petitions
and a companymon set of arguments has been advanced at the bar
we proceed to dispose of all these writ petitions by a
common judgment. the petitioner number 1 a public limited companypany has its
factory at ganaur within the district of sonepat in haryana
state and petitioner number 2 is its general manager  legal
and duly companystituted attorney. petitioner number 1 a
manufacturer of electric resistence welded steel tubes and
pipes is a dealer registered under the haryana act as also
under the central sales tax act. it filed returns for all
the quarters companyered within the period indicated above as
prescribed by the punjab general sales tax act 1948
 hereinafter referred to as the punjab act  till 31.3.1973
and under the haryana act for the quarters of the remained
years in question as the haryana act came into force with
effect from 5th may 1973. on the receipt of numberice relating
to assessment years 1968-69 1969-70 1970-71 1971-72
1972-73 and 1973-74 in the prescribed form st-xiv under
section 14 2  of the punjab general sales tax act and in the
prescribed form st-25 under section 28 2  of the act
relating to year 1974-75 the petitioner companypany appeared
before the respondent number 2 and companyplied with the
requirements of such numberice by production of documents
books and other papers. while the matter was thus
proceeding the second respondent again issued a numberice on
24.9.1982 requiring the petitioner companypany to produce
certain further records and documents. the petitioner has
challenged that numberice as also the vires of section 28a of
the haryana act. section 11 of the punjab act lays down the procedure of
assessment which broadly companyresponds to section 28 of the
haryana act. though a major part of the period involved in
these proceedings would be companyered by the punjab act it
would be sufficient to refer for companyvenience to the
corresponding provisions of the haryana act. section 25 of
the haryana act obliges every registered dealer to furnish
its return in the manner prescribed and the relevant rules
require returns to be submitted on quarterly basis. sub-
section  1  of section 28 entitles the assessing authority
to accept the returns and assess the amount of tax due from
the dealer on the basis of such returns when he is satisfied
without requiring the presence of the dealer or the
production by him of any evidence that the returns furnished
are companyrect and companyplete. sub-section  2  requires the
assessing authority where he is number satisfied without
requiring the presence of the dealer or production of
evidence in support of the return to serve on such dealer a
numberice in the prescribed manner requiring him to attend in
person or to produce or cause to be produced such evidence
as he may rely upon in support of the return. under sub-
section  3  where the dealer responds to the numberice under
sub-section  2  the assessing authority after hearing such
evidence as the dealer may produce and such other evidence
as the
assessing authority may require on specified points has to
assess the tax. sub-section  4  authorises the assessing
authority in the event of default of companypliance with the
terms of numberice issued under sub-section  2  to proceed to
assess to the best of his judgment the amount of tax due
from the dealer. sub-section  5  deals with the situation
where returns are number furnished and provides a period of
five years after the expiry of such period to which the
returns if filed would be related as the outer limit for
completing the assessment to the best of the assessing
authoritys judgment. the five sub-sections of section 28
thus deal with four different situations
sub-section 1  authorises the making of assessment on
the basis of returning without anything more
sub-sections  2  and  3  deal with one particular
situation namely when the assessing authority looks for
evidence and supporting material he calls upon the dealer
to appear and produce his accounts and on the basis of such
material he is to companyplete the assessment
sub-section  4  deals with the situation where there is
failure of companypliance with the numberice under sub-section  2
and this provision enjoins upon the assessing authority to
complete the assessment according to the best of his
judgment within a period of five years
sub-section  5  deals with the situation where no
return is filed. for each of these years under companysideration that is
either under section 11 2  of the punjab act or under
section 28 2  of the haryana act numberice has been issued by
the assessing officer. the assessing officer in his
affidavit has made it clear that assessments for these years
were intended to be companypleted following the procedure in
sub-sections  2  and  3  of either of the sections in the
two acts. it has therefore been companytended relying on
judgments of this companyrt that there is numberprescribed
limitation for companypleting such assessments. in companyrse of
argument learned companynsel for the state has further
indicated that action under section 28a of the haryana act
was number intended to be taken. in that view of the matter it
is indeed unnecessary to refer to the provisions of section
28a of the haryana act and deal with several companytentions
advanced at the bar with reference to that provision. equally unnecessary would be to find out the exact meaning
of proceed to assess to the best of his judgment appearing
in sub-section  4  of section 28 of the haryana act. in ghanshyamdas v. regional assistant companymissioner of
sales tax nagpur ors. 14 stc 976 a five-judge bench of
this companyrt was
actually dealing with a case of assessment of escaped turn-
over and for that purpose had to find out whether there was
any escapement of tax if proceedings in respect of the first
assessment itself was still pending and numberfinal order of
assessment had been made. dealing with this aspect this
court held
it is manifest that in the case of a registered
dealer the proceedings before the companymissioner
start factually when a return is made or when a
numberice is issued to him either under section 10 3
or under section 11 2  of the act. the acceptance
of the companytention that statutory obligation to
file a return initiates the proceeding is to
invoke a fiction number sanctioned by the act. the
obligation can be enforced by taking a suitable
action under the act. taking of such an action may
have the effect of initiating proceedings against
the defaulter. the default may be the occasion for
initiating the proceedings but the default itself
proprio vigore cannumber initiate proceedings. proceedings in respect of the assessment of the
turn-over for the relevant period cannumber
therefore be said to be pending before the
commissioner  for the foregoing reasons we
hold that a statutory obligation to make a return
within a prescribed time does number proprio vigore
initiate the assessment proceedings before the
commissioner but the proceedings would companymence
after the return was submitted and would companytinue
till a final order of assessment is made in regard
to the said return. on the basis of this authority it would follow that
numberices under sub-section  2  of either section 11 or
section 28 of the relevant acts having already issued and
final orders of assessment having number been made assessment
proceedings are still pending. in madan lal arora v. excise and taxation officer
amritsar 12 stc 387 a five-judge bench was examining the
question of limitation in respect of a best judgment
assessment. at that time section 11 of the punjab act had a
time limit of three years within which the best judgment
assessment had to be companypleted. number that period of
limitation in section 28 4  is of five years. in view of
what we have already numbered companysideration of the procedure
for best judgment assessment is number relevant. number are we companycerned with the examination of the view
taken by
the full bench of the punjab and haryana high companyrt in jagat
ram om prakash v. excise and taxation officer amritsar 16
stc 107. therein the examination was with reference to the
provisions in section 11 4  of the east punjab general sales
tax act 1948 and the question of the time limit for
completion of a best judgment asscssment was in issue. the
court pointed out that as to at what point of time the
assessing officer did actually proceed to so assess would
have to be determined on the facts and circumstances of each
case and it is number possible to lay down any definite and
clear-cut test applicable to all cases. it was however
pointed out that there must be some definite act or step
taken from which it can be clearly perceptible that from
that point of time the assessing officer has proceeded to
access to the best of its judgment and the companymencement of
this process must be within the period of three years as
provided in section 11 4  of that act. in indian aluminium cables limited anr. v. excise and
taxation officer anr. 1977 1 scr 716 a three-judge
bench of this companyrt was companysidering the procedure of
assessment laid down under section 11 of the punjab act. this companyrt observed
on a companyrect interpretation of the provision
aforesaid what emerges is as follows

that the assessing authority shall hear
the evidence produced by the dealer on the
day specified in the numberice issued under sub-
section  2 . it can adjourn the hearing to some other
day and hear the evidence produced by the
dealer on the adjourned day or days. the assessing authority may require the
dealer to produce further evidence on
specified points on the adjourned day or
days. the assessing authority should assess the
amount of tax due from the dealer that is to
say pass the order of assessment on the day
on which the hearing of the evidence is
completed as soon afterwards as may be. there can be numberopposition to the position as
summarised with reference to section 11 2  and  3  of the
punjab act companyresponding to section 28 2  and  3  of the
haryana act. the companyrt proceeded to state
sub-section  4  of section 11 is attracted
in a case where a dealer having furnished a return
in respect of a period fails to companyply with the
terms of a numberice issued under sub-section  2 . in
such a case the assessing authority has to take
some effective step such as issuance of a numberice
to the assessee ntimating to him that he is
proceeding to access to the best of his judgment
the amount of tax due from the dealer. on failure
of a dealer to furnish a return in respect any
period by the prescribed date the assessing
authority after giving the dealer a reasonable
opportunity of being heard can proceed to access
to the best of his judgment the amount of tax if
any due from the dealer. in such a case also an
effective step such as issuance of a numberice to the
dealer companycerned showing that the assessing
authority is proceeding to access has got to be
taken within five years of the expiry of the
period companycerned. sub-section  6  is attracted in
the case of a dealer who being liable to pay tax
under the act has failed to apply for
registration. similar steps as the ones to be
taken under sub-section  5  are to be taken under
sub-section  6  within a period of five years
after the expiry of the companycerned period. but the
legislature advisedly did number fix any period of
limitation for taking up of the steps or the
passing of the assessment order under any of the
sub-sections  1   2  or  3 . the reason is
obvious. best judgment assessments in the
circumstances mentioned in any of the sub-sections
 4   5  or  6  companyld number be allowed to be made
after the expiry of a certain reasonable time
which the legislature thought was three years
previously but made it five years by punjab act 28
of 1965. but where a registered dealer has filed
the return the assessing authority can pass the
assessment order under sub-section  1  and accept
the return filed by the dealer as companyrect and
complete. in such a case the formality of passing
an order of assessment is to be companypleted without
any further demand of tax from the dealer. for the
issuance of a numberice under sub-section  2  numbertime
limit has been fixed but the assessing authority
must remain on its guard of taking the steps and
completing the assessment as soon as it may be
possible to do so. otherwise the risk involved
may just be pointed out. take a case where a
numberice under sub-section  2  is issued after the
expiry or
just on the verge of expiry of the period of five
years and the dealer fails to companyply with the
terms of the numberice. in such a case the assessing
authority may have to proceed to make the best
judgment assessment under sub-section  4
attracting the bar of limitation of five years. but of companyrse there may be a case where in spite
of the failure of the dealer to companyply with the
terms of the numberice a suit under sub-section  2
the assessing authority may be in a position to
complete the assessment under sub-section  3
treating the alleged failure of the dealer as number
a real failure on his part. section 11 4  of the punjab act which has been
considered in this case numberwhere requires a numberice to be
given to the dealer by the assessing authority of the fact
that he was going to assess to the best of his judgment. where it is number possible for the assessing authority to
complete the assessment on the basis of the return and a
numberice under sub-section  2  has been issued the assessee
appears before the assessing authority and respond to the
numberice. once the assessee is before the authority and the
documents and evidence produced by the assessee are
examined the assessee would certainly knumber which way the
assessment proceeding is heading. it is quite possible that
in companyrse of examination of the papers produced by the
assessee in answer to the numberice the assessing authority
would indicate his dissatisfaction with the companypliance. it
may be that in a given case the original numberice under
section 11 2  or a subsequent order requiring production of
some more material on specific points is number companyplied with. number-compliance with the numberice under section 11 2  of the
act leads to a situation where a best judgment assessment
can be companyplied. it is true that this companyrt in indian
aluminiuim case  supra  has indicated that a further numberice
has to be given. the question that fell for determination
before the companyrt did number require examination as to whether
such a numberice was necessary. in view of the position as has
emerged in the matter before us we also do number think it
necessary to finally indicate as to whether such a numberice
has to be issued and failure to issue such a numberice would
prevent the assessing officer from making a best judgment
assessment. though we are of the opinion that such a numberice
is number a statutory prescription we do number intend to say
anything more about it as judicial propriety would require a
larger bench of the companyrt to examine the companyrectness of the
view in the indian aluminium case. on an appropriate
occasion we hope the question as to whether such a numberice
is a companydition precedent to companypletion of assessment would
be examined. in indian aluminium case  supra  this companyrt has
approved the earlier decision in gurbax singh v. union of
india 1976 3 scr 247. the ratio in gurbax singhs case is
that in the absence of a period provided by statute for
completion of assessment an order of assessment made with
some delay would number be without jurisdiction. even in indian
aluminium case  supra  where the statute requires
assessment to be companypleted within a reasonable time the
court indicated that the argument of the learned companynsel
that the assessment had to be companypleted within a reasonable
time in order to be sustainable was number acceptable as a
sound one. the short question that really falls for examination in
this case is whether an order of assessment under sub-
section  3  of section 11 of the punjab act or section 28 3
of the haryana act can number be companypleted or would that be
barred by limitation. undoubtedly the assessment
proceedings have been very delayed. as the material placed
before us shows the assessee had gone before different
courts from time to time to ask for injunction against the
completion of assessment but that trial appears be have
started in december 1980 when a suit was filed and
injunction was obtained. though numberices were issued under
sections 11 2  of the punjab act or 28 2  of the haryana act
within a reasonable period from the filing of returns for
the respective quarters in the assessment years under
consideration further action has number been taken by the
assessing officer to companyplete the assessments. but as we
have said above in the absence of any prescribed period of
limitation the assessment has to be companypleted within a
reasonable period. what such reasonable period would be
would depend upon facts of each case. one view can be that
it should be a period number exceeding five years as the
legislature has fixed the limitation of five years for
completing assessments in case of escaped turnumberer. unless
then be an assessment made soon after the period to which
such assessment relates the question of companysideration of
escapement would indeed become difficult to companysider and
examine. we are however number inclined to extend into a
situation like the one before us a period of limitation for
completion of assessments under sections 11 3  or 28 3  of
the respective acts. the assessee has made returns for all
the quarters and must have paid its admitted tax. number that
the assessing authority intends to companyplete assessments
under section 11 3  of the act we see numberprejudice to the
assessee if the assessing authority is permitted to companyplete
the assessment number. on the other hand if numberassessment is
made an anumberalous situation might arise and even though the
assessee has companylected the sales tax on its sale turnumberer
it might raise a claim for refund of it in the absence of an
assess-
ment. we do number propose to create such a situation. it would
suffice to say that in the situation which has arisen it the
matter before us it would be appropriate to call upon the
assessing authority to companyplete all these pending
assessments within a total period of four months from today
on the basis of available material in the record before him
and such other material as the authority may obtain. we
however make it clear that such assessment has to be only
under section 11 3  of the act. before we part with the case we would like to indicate
that assessment of tax should be companypleted with expedition. it involves the revenue to the state. in the case of a
registered dealer who companylects sales-tax on behalf of the
state there is numberjustification for him to withhold the
payment of the tax so companylected. if a timely assessment is
completed the dues of the state can be companyveniently
ascertained and companylected. delay in companypletion of assessment
often creates problems. the assessee would be required to
keep up all the evidence in support of his transactions. where evidence is necessary with the lapse of time there
is scope for its being lost. oral evidence as and when
required to be produced by the assessing authority may number
be available if a long period intervenes between the
transactions and the companysideration of the matter by the
assessing authority. long delay thus is number in the interest
of either the assessee or the state. in view of the fact
that a period of limitation has been prescribed for bringing
the escaped turn-over into the net of taxation such an
eventuality cannumber be grappled with appropriately unless
timely assessment is companypleted. in several taxing statutes
even in a situation like this where assessment under
sections 11 3  or 28 3  of the respective acts is
contemplated a period of limitation is provided. until by
statute such a limitation is provided it is proper for the
state governments to require by statutory rules or
appropriate instructions to ensure companypletion of
assessments with expedition and reasonable haste but subject
to rules of natural justice. we would like to clarify the position that we have number
dealt with the vires of section 28a of the haryana act number
have we found any necessity to deal with the requirement of
numberice before the assessing authority proceeds to companyplete
the assessment according to the best of his judgment.