PETITIONER: THE STATE OF WEST BENGAL Vs. RESPONDENT: NRIPENDRA NATH BAGCHI DATE OF JUDGMENT: 10/09/1965 BENCH: <NAME>, M. BENCH: <NAME>, M. <NAME>, P.B. (CJ) <NAME>, K.N. <NAME>, J.C. SIKRI, S.M. CITATION: 1966 AIR 447 1966 SCR (1) 771 CITATOR INFO : R 1967 SC 903 (8) D 1968 SC 647 (11,12,13) RF 1970 SC 158 (11) RF 1970 SC1494 (9,10) RF 1970 SC1616 (4) RF 1972 SC1028 (14) R 1974 SC 710 (46) E 1975 SC 613 (25,26,27,28) R 1976 SC1841 (11,15) RF 1976 SC1899 (20,23) RF 1976 SC2490 (17) RF 1977 SC2328 (53) E&R 1978 SC 68 (226,259) R 1979 SC 193 (22,38) R 1979 SC 478 (152) R 1982 SC 149 (618,696,1007) F 1982 SC1579 (16,17) F 1984 SC 626 (3) R 1988 SC1388 (12) F 1992 SC2000 (5) ACT: Constitution of India Art. 235- <ORG>'s Control over subordinate courts--Control whether includes disciplinary powers-Inquiry into Conduct of District Judge whether to be made by <ORG> or by <ORG>-West Bengal Set-vice Rules-Rule 75(a)-Service period whether can be extended for purpose of enquiry against officer. HEADNOTE: The respondent was appointed a Munsif on November 10, 1927. After promotion he became an Additional District and Sessions Judge and officiated at several stations as District and Sessions Judge but was never confirmed as such. In the ordinary course he was due to superannuate and retire on July 31, 1953. By an order dated July 14, 1953 <ORG> ordered that the respondent be retained in service for a period of two months commencing from August 1, 1953. The order purported to be under Rule 75(a) of the West Bengal Service Rules, Part 1. By another order dated July 20, 1953, the respondent was placed under suspension and on the following day he wag served with charges and asked to file a written reply within 15 days. An enquiry into the charges was made by an officer appointed for the purpose. During the period of the enquiry the respondent was retained in service, though kept in suspen- sion, by repeated orders under rule 75(a). The enquiry officer reported that some of the charges were proved. On March 18, 1954 the respondent was asked to show cause why he should not be dismissed from service and after be had shown cause he was dismissed on May 27, 1954. <ORG> was consulted but not the <ORG>. The respondent appealed to the Governor unsuccessfully. Thereafter he applied to the <ORG> at Calcutta under Arts. 226 and 227 of the Constitution against his dismissal. The <ORG> quashed the order of dismissal as well as the enquiry. <ORG> appealed to this Court on a certificate granted by the <ORG>. The questions that fell for consideration were : (1) Whether the enquiry ordered by the Government and conducted by an <ORG> Officer of the Government against a District and Sessions Judge contravened the provisions of Art. 235 of the Constitution which vests in the <ORG> the control over <ORG> and the courts subordinate thereto; and (2) whether the provisions of rule 75(a) West Bengal Service Rules could be utilised to extend the service of the respondent beyond the normal age of retirement. HELD : (i) Rule 75(a) which was modelled on Rule 56(a) of the Fundamental Rules was not designed to be used for the purpose of retaining a person in service for enquiry against him but to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds. If retention in service for the first reason was considered necessary a rule like Rule 56(d) of the Fundamental Rules was required. [777 E-C] 7 72 (ii) There is special provision for District Judges in the Constitution in Arts. 233 to 237. These articles deal with the appointment of persons to be, and postings and promotions of, District Judges and appointment, postings and promotions of Judges subordinate to <ORG> and the courts subordinate thereto. They also provide for special rules to be made by the Governor of the State after consultation with <ORG> and the <ORG> exercising jurisdiction in relation to each State. These articles were not placed in the Chapter on services but immediately after the provisions in regard to the <ORG>s. The articles went a little further than the corresponding sections of the Government of India Act, 1935. They vested the 'control' of the district courts and the courts subordinate thereto in the <ORG>s. [779 B-E; 785 B] (iii) The word 'control' as used in Art. 235 includes disciplinary control or jurisdiction over District Judges. The history which lies behind the enactment of these articles indicates that 'control' was vested in the <ORG> to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. [786 B] The word 'control', moreover, is accompanied by the word 'vest' which is a strong word. It shows that the <ORG> is made the sole custodian ,of the control over the judiciary. Control therefore is not merely the power to arrange the day-to-day working of the court but contemplates disciplinary jurisdiction on the presiding Judge. [786 C-D] Article 227 gives to the <ORG> superintendence over these Courts and enables the <ORG> to call for returns etc. The word 'control' in Art. 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of Judges. The inclusion of a right of appeal against the orders of the <ORG> in the conditions of service necessarily indicates an order passed in disciplinary jurisdiction, and the word 'deal' also points to disciplinary and not mere administrative jurisdiction. [786 D-F] (iv) Although the term used is "district court" the word 'court' is used compendiously to denote not only the court proper but also the presiding Judge. [786 G-H] (v) That the <ORG> has under Art. 309 the power to make laws relating to the services does not show that the <ORG> under Art. 162 enjoys corresponding executive power, when the Constitution indicates otherwise. [787 F-G] (vi) There is nothing in Art. 311 which compels the conclusion that the <ORG> is ousted of the jurisdiction to hold the inquiry if Art. 235 vested some power in it. The control which is vested in the <ORG> is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the <ORG>, the <ORG> can bold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the ,giving of an opportunity of showing cause as required by cl. (2) of Art. 31 1. unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. [790 A-C] The <ORG> alone could have held inquiry in this case. To hold otherwise would be to reverse the trend which has moved determinedly in this direction. [790 C-D] 773 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 391 of 1964. Appeal from the judgment and order dated July 1, 1960 of <ORG> in Civil Rule No. 520 of 1955. <NAME>, Attorney-General, <NAME>, <NAME> and <NAME>, for the appellants.

<NAME>, <NAME> for <NAME>, for the respondent.

<NAME>, <NAME> and <NAME>, for inter- vener No. 1.

<NAME> and <NAME>, for intervener No. 2. <NAME>, for intervener No. 3.

<NAME>, Solicitor-General and <NAME>, for intervener No. 4.

<NAME>, Advocate-General, Madras and <NAME>, for intervener No. 5.

<NAME>, Advocate-General, Orissa, <NAME> and <NAME> for intervener No. 6.

<NAME>, for intervener No. 7.

<NAME>, for intervener No. 8.

The Judgment of the Court was delivered by <NAME> This is an appeal by the State of West Bengal and its Chief Secretary against the judgment of <ORG> dated July 1, 1960 by which the order dismissing <NAME> (the respondent) from service was quashed. <ORG> certified the case as fit for appeal to this Court under Arts. 132(1) and 133(1)(c) of the Constitution.

<NAME> was appointed a <ORG> on November 10, 1927. After promotions he became an Additional <ORG> Judge and officiated at several stations as <ORG> Judge but he was never confirmed as such. He last acted as a <ORG> Judge at Birbhum in March 1953. In April of the same year he was transferred to Alipore as an Additional <ORG> Judge. In the ordinary course <NAME> was due to superannuate and retire on July 31, 1953. On April 17, 1953 he applied for leave from April 27, 1953 to July 31, 1953 preparatory to retirement. The leave was held inadmissible. He was, however, granted leave from July 17, 1953 to the end of his service. <NAME>, however, reported on April 27, 1953 that he had gone to Puri on April 25, 1953 because his son was ill and asked for one month's leave from April 27, 1953. Leave for 3 weeks was granted which, at his request, was extended to June 5, 1953.

By an order dated July 14, 1953 Government ordered that <NAME> be retained in service for a period of two months commencing from August 1, 1953. The order reads :

"I am directed to state that Government have been pleased to sanction, under Rule 75(a) of the West Bengal Service Rules, Part 1, the retention in service of <NAME>, Additional District and Sessions Judge, 24- Parganas for a period of two months with effect from 1st August, 1953, the date of his compulsory retirement, in the interest of the public service".

Rule 75(a) which was invoked reads as follows Rule-"75(a). Except as otherwise provided in this rule, the date of compulsory retirement of a <ORG> servant other than a member of the clerical staff or a servant in inferior service is the date on which he attains the age of 55 years. He may, however, be retained in service beyond that date with the sanction of <ORG> on public grounds which should be recorded in writing; but he shall not be retained after attaining the age of 60 years except in very special circumstances."

By another order dated July 20, 1953 <NAME> was placed under suspension and on the following day he was served with 11 charges and was asked to file a written reply within 15 days. An enquiry into these charges followed and it was entrusted to Mr. <NAME>. <NAME>, Commissioner, (later Member, <ORG>) by <ORG>. The enquiry continued for a long time and <NAME> was retained in service, though kept under suspension, by repeated orders of different durations under rule 75(a). Mr. <NAME> made his report to the Government on December 21, 1953 holding that some of the charges were proved. He did not recommend any punishment as he thought that punishment would depend upon <NAME>'s record of service. On March 18, 1954 <NAME> was asked to show cause why he should not be dismissed from service and after he had 77 5 shown cause he was dismissed on May 27, 1954. <ORG> was consulted but not <ORG>. He appealed to the Governor unsuccessfully. On February 15, 1955 he applied to <ORG> at Calcutta under Arts. 226 and 227 of the Constitution against his dismissal and a rule was issued. On the recommendation of Mr. Justice <NAME>, the case was placed before <ORG>, as important questions of constitutional law were involved. <ORG> by its judgment dated July 1, 1960 made the rule absolute and quashed the order of dismissal as well as the enquiry. On the application of <ORG> <ORG> certified the case as fit for appeal to this Court and the present appeal was filed. At an earlier hearing this Court ordered that notices be issued to all the Advocates General of the States and to <ORG>s, because the questions involved were of considerable general and constitutional importance. In answer to the notices some of the States and <ORG>s intervened arguing either in favour of or against the judgment under appeal. While making his recommendation <NAME> J. drew up the points of controversy in the case. They may be set down here :

"(1) That the provisions of Rule 75(a) of the West Bengal Service Rules have not been compiled with.

(2) That the service of a civil servant cannot be extended merely for the purpose of dismissal.

(3) That the control over the District Courts and the Courts subordinate thereto are vested with <ORG> under Article 235 of the Constitution, and the authority competent to take disciplinary proceedings and action against the petitioner or to deal with in any way was <ORG> and not any other authority.

(4) That the provisions of the Civil Service (Control, Classification and Appeal) Rules in so far as they authorise any authority other than <ORG> to take disciplinary action against the person holding the post of petitioner are ultra vires and void under Article 235 of the Constitution. (5) That, in any event, the entire departmental enquiry and proceedings have been conducted in violation of the principle of natural justice.

7 76 At the final hearing this appeal was confined to the first three points. The fourth point and the allegations about denial of natural justice were not discussed. The three points may be summarized into two : (1) whether the enquiry ordered by the <ORG> and conducted by an Executive Officer of the <ORG> against a <ORG> contravened the provisions of Art. 235 of the Constitution which vests in <ORG> the control over <ORG> and the courts subordinate thereto; and (2) whether the provisions of rule 75(a) West Bengal Service Rules could be utilized to extend the service of Bagchi beyond the normal age of retirement. On hearing arguments we are satisfied that the answer to both the questions must be against the <ORG>. We shall now proceed to give our reasons.

We may begin with Rule 75(a) because that question, although not so important as the other, causes less trouble. The rule, which was earlier set out-, may be compared with rules 56(a) and 56(d) of the Fundamental Rules-

"56(a) Except as otherwise provided in the other Clauses of this Rule the date of Compulsory retirement of a Government servant other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of <ORG> on public grounds, which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances."

"56(d) Notwithstanding anything contained in clauses (a), (b) and (c), a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by competent authority."

It was conceded in <ORG> that rule 5 6 (d) of the Fundamental Rules framed under s. 96-B of the Government of India Act did not apply to District & Sessions Judges. The West Bengal Service Rules were made by the Governor under s. 241 of the Government of India Act, 1935 and they were made applicable to the services of <ORG>. When the West Bengal Service Rules were made, the Fundamental Rules were available. Rule 75(a) was modelled on Rule 56(a) of the Fundamental Rules but no rule like Rule 56(d), which 7 7 7 we have quoted, was included. Under s. 276 of the Govern- ment of India Act , 1935, the West Bengal Service Rules would prevail over the Fundamental Rules, and it is conceded that they alone govern this case. Even if Rule 56(d) of Fundamental Rules was available it was not utilized. Repeated orders were passed under rule 75(a), West Bengal Service Rules and these orders said that the retention of <NAME> was in the interest of public service. Rule 75(a) is hardly designed to be used for this purpose. It is intended to be used to keep in employment persons with a meritorious record of service who, although superannuated, can render some more service and whose retention in service is considered necessary on public grounds. This meaning is all the more clear when we come to the end of the rule where it is stated that a government servant is not to be retained after he attains the age of sixty years except in very special circumstances. This language hardly suits retention for purposes of departmental enquiries.

Mr. Justice <NAME> pointed out very appositely the contrast between rule 56(a) and (d) of the Fundamental Rules. Rule 56(a) corresponds to rule 75(a) but rule 56(d) opens with the words "notwithstanding anything contained in clause (a). . ." (of Rule 56). This shows that they cover different situations and the matters in Rule 56(d) do not cover matters in Rule 56(a). In dealing with the application of the rules the learned Judge observed "No consent of the petitioner for retaining his service was called 'or obtained. The two expressions in the above order (1) "Retention in Service" and (2) "in the interest of public service" do not on the facts of this case mean what they say. Here "retention in service" means suspension from service because from the date when he was "retained" in service he was suspended from service. The other expression "the interest of the public service" does not mean actual service to the public but meant only departmental enquiry against him. His service was extended from time to time with a view to enable the <ORG> to start and conclude the departmental enquiry against him during which the petitioner was allowed to live on a bare subsistence allowance."

We find it sufficient to say that we agree that the retention of <NAME> in service under rule 75(a) for the purpose of enquiry was not proper and the extension of the service was illegal.

We now come to the next question whether Government Or the High Court should order, initiate, and hold enquiries into the conduct of District Judges. This problem would not have arisen if there was no special provision for District Judges in the Constitution in Chapter VI entitled "Subordinate Courts" immediately after Chapter V which deals with the High Courts in the States. Chapter VI consists of five articles, Nos. 233 to 237. The last article in this list merely provides for the application of the provisions of this Chapter to Magistrates in the State as they apply in relation to persons appointed to <ORG> subject, however, to such exceptions and modifications as may be specified. The expression "judicial service" is defined in the preceding Art. 236(b) and it means service consisting exclusively of persons intended to fill the post of district Judge and other civil judicial posts inferior to the post of district judge. The word "district judge" is also' defined in the same article by cl. (a) and it includes, among others, an additional district judge. The other three articles are important and the relevant parts may be set out here :

"254. Appointment of district judges. (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with <ORG> exercising jurisdiction in relation to such State.

"234. Recruitment of persons other than district judges to the judicial service. Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with <ORG> and with <ORG> exercising jurisdiction in relation to such State."

"235. Control over subordinate courts. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in <ORG>, but nothing in this article shall be construed as 77 9 taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising <ORG> to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."

These articles deal with the appointments of the persons to be, and postings and promotions of district judges and appointment, postings and promotions of judges subordinate to the District Judge and the control over <ORG> and the courts subordinate thereto. They also provide for special rules to be made by the Governor of the State after consultation with <ORG> and <ORG> exercising jurisdiction in relation to each State. This group of articles is intended to make special provision for the judicial service of the State. What it intends to do is, of course, the bone of contention between the parties. To understand why this special Chapter was necessary when there is Part XIV dealing with <ORG> under the Union and the States, it is necessary to go into a little history of this constitutional provision. Before we set down briefly how this Chapter came to be enacted outside the Part dealing with <ORG> and also why the articles were worded, as they are, we may set down the corresponding provisions of the Government of India Act, 1935. There too a special provision was made in respect of judicial officers but it was included as a part of Chapter 2 of Part X which dealt with the Civil <ORG> under the Crown in India. The 'cognate sections were ss. 254 to 256 and they may be reproduced here :

"254. District Judges, & c.

(1) Appointments of persons to be, and the posting and promotion of, district judges in any Province shall be made by the Governor of the Province, exercising his individual judgment, and <ORG> shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor.

(2) A person not already in the service of His Majesty shall only be eligible to be appointed a district judge if he has been for not less than five years a barrister, a member of <ORG> in Scotland, or a pleader and is recommended by <ORG> for appointment.

7 80 (3) In this and the next succeeding section the expression "district judge" includes additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, sessions judge, additional sessions judge, and assistant sessions judge."

255. Subordinate civil judicial service. (1) The Governor of each Province shall, after consultation with <ORG> and with <ORG>, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a Province. In this section, the expression "subordinate civil judicial service" means a service consisting exclusively of persons intended to fill civil judicial posts inferior to the post of district judge.

(2) <ORG> for each Province, after holding such examinations, if any, as the Governor may think necessary, shall from time to time out of the candidates for appointment to the subordinate civil judicial service of the Province make a list or lists of the persons whom they consider fit for appointment to that service, and appointments to that service shall be made by the Governor from the persons included in the list or lists in accordance with such regulations as may from time to time be made by him as to the number of persons in the said service who are to belong to the different communities in the Province. (3) The posting and promotion of, and the grant of leave to, persons belonging to the subordinate civil judicial service of a Province and holding any post inferior to the post of district judge, shall be in the hands of <ORG>, but nothing in this section shall be construed as taking away from any such person the right of appeal required to be given to him by the foregoing provisions of this chapter, or as authorising <ORG> to deal with any such person otherwise than in accordance with the conditions of his service prescribed thereunder."

7 81 "256. Subordinate criminal magistracy. No recommendation shall be made for the grant of magisterial powers or of enhanced magisterial powers to, or the withdrawal of any magisterial powers from, any person save after consultation with the district magistrate of the district in which he is working, or with the Chief Presidency magistrate, as the case may be."

It way be pointed out at once that in the present Constitution these provisions have been lifted from the Chapter dealing with Services in India and placed separately after the provisions relating to <ORG>.

As far back as 1912 <ORG> stated that the witnesses before the <ORG> demanded two things : (1) recruitment from the <ORG> to the superior judicial service, namely, the District judgeship; and (2) the separation of the judiciary from the executive. The <ORG> stated in its report : "Opinion in India is much exercised on the question of the separation of the executive and the judicial functions of the officers" .... and observed that "to bring this about legislation would be required". The <ORG> made its report on August 14, 1915 a few days after the Government of India Act, 1915 (5 & 6 Geo. V, c. 61) was enacted. The Act did not, therefore, contain any special provision about the judicial services in India. The World War I was also going on. In 1919, Part VII-A consisting of ss. 96-B to 96-E was added in the Government of India Act 1915. Section 96-B provided that every person in <ORG> in India held office during His Majesty's pleasure but no person in that service might be dismissed by any authority subordinate to that by which he was appointed. The only section that concerns us is S. 96- B. Sub-s. (2) of that section reads as follows "(2) The Secretary of State in <ORG> may make rules for regulating the classification of the civil service in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct. Such rules may, to such extent and in respect of such matters as may be prescribed, delegate the power of making rules to the Governor-General in <ORG> or to local Governments, or authorise the Indian legislature or local legislatures to make laws regulating the public services : "

7 82 The Fundamental Rules and the Civil Services (Classification, Control and Appeal) Rules were made by the Secretary of <ORG> in <ORG> under the above rule-making power. These rules governed the judicial services except <ORG>. Part IX of the Government of India Act dealt with <ORG>, their constitution and jurisdiction. Section 107 gave to <ORG>s superintendence over all courts for the time being subject to its appellate jurisdiction and enumerated the things <ORG> could do. They did not include the appointment, promotion, transfer or control of the District Judges. <ORG> could only exercise such control as came within their superintendence over the courts subordinate to their appellate jurisdiction. In the Devolution Rules, item 17 in Part II dealing with the Provincial subjects read as follows :-

"Administration of justice, including constitution, powers, maintenance and Organisation of civil courts and criminal jurisdiction within the Province; subject to legislation by the Indian legislature as regards <ORG>, Chief Courts, and Courts of Judicial Commissioners and any Courts of criminal jurisdiction".

It would thus appear that the problem about the independence of judicial officers, which was exercising the minds of the people did not receive full attention and to all intents and purposes <ORG> and Legislatures controlled them. The recommendations of <ORG> remained a dead letter. When the Montague- Chelmsford enquiry took place the object was to find out how much share in the legislative and executive fields could be given to Indians. The post of the District Judge was previously reserved for Europeans. The disability regarding Indians was removed as a result of the Queen's Proclamation in 1870 and rules were framed first in 1873. In 1875 Lord <NAME>'s Government framed rules allowing Indians to be appointed and Lord <NAME>'s Government framed Rules fixing 1/5th quota for the Indians. There was no fixed principle on which Indians were appointed and the report of <ORG> presided over by Sir <NAME> in 1886 contains the system followed in different Provinces. This continued down to 1919. The Government of India Act had introduced Dyarchy in India and the question of control of services in the transferred field was closely examined when the Government of India Act, 1935 was enacted. It was apprehended that if transference of power enabled the Ministers to control the services, the flow of Europeans to the civil services would become low. Government appointed several Committees, chief among them <ORG> considered the position of the Europeans vis-a-vis the services, There was more concern about Europeans than about the independence of the judiciary.

<ORG> did not deal with the sub- ject of judicial services but <ORG> dealt with it in detail. It is interesting to know that the Secretary of <ORG> made a preliminary statement on the subject of subordinate civil judiciary and his suggestion was "to leave to <ORG> the general power" but to introduce in the Constitution "a provision which would in one respect override those powers, namely, a provision vesting in <ORG>, as part of their administrative authority, power to select the individuals for appointment to <ORG>, to lay down their qualifications, and to exercise over the members of the service the necessary administrative control." He said that "the powers of the local Government should be "to fix the strength and pay of the services to which <ORG> would recruit" and to lay down, if they so thought fit, any general requirements......... During the debates Marquis of Salisbury asked a question with regard to the general powers of <ORG> and the control over the subordinate courts. It was :

"As I understood <NAME> in his statement, the control of <ORG> over the Subordinate judges in civil matters has to be as complete as possible and maintained. Is that so ?" The answer was, "Yes". (No. 7937). The recommendations of <ORG> also followed the same objective. In the report (paragraph 337 p. 201) the following observations were made :

"337. Necessity for securing independence of subordinate judiciary.

by the <ORG> and their independence is secure; but appointments to the Subordinate Judiciary must necessarily be made by authorities in India who will also exercise a certain measure of control over the Judges after appointment, especially in the matter of promotion and posting. We have been greatly impressed by the mischiefs which have resulted elsewhere from a system under which promotion from grade to grade in a judicial hierarchy is in the hands of a Minister exposed 7 84 to pressure from members of a popularly elected <ORG>. Nothing is more likely to sap the independence of a magistrate than the knowledge that his career depends upon the favour of a Minister; and recent examples (not in India) have shown very clearly the pressure which may be exerted upon a magistracy thus situated by men who are known, or believed, to have the means of bringing influence to bear upon a Minister. It is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges.

As a result, when the Government of India Act 1935 was passed it contained special provisions ( sections 254-256 already quoted) with regard to District Judges and the subordinate judiciary. It will be noticed that there was no immediate attempt to put the subordinate criminal magistracy under <ORG> but the posting and promotion and grant of leave of persons belonging to the subordinate judicial service of a Province was put in the hands of <ORG> though there was right of appeal to any authority named in the rules and <ORG> were asked not to act except in accordance with the conditions of the service prescribed by the Rules. As regards the District Judges the posting and promotions of a District Judge was to be made by the Governor of the Province exercising his individual judgment and the <ORG> was to be consulted before a recommendation to the making of such an appointment was submitted to the Governor. Since s. 240 of the Government of India Act, 1935 provided that a civil servant was not to be dismissed by an authority subordinate to that which appointed him, the Governor was also the dismissing authority. The Government of India Act, 1935 was silent about the control over the District Judge and the subordinate judicial services. The administrative control of the <ORG> under s. 224 over the courts subordinate to it extended only to the enumerated topics and to superintendence over them. The independence of the subordinate judiciary and of the District Judges was thus assured to a certain extent, but not quite. When the Constitution was being drafted the advance made by the 1935 Act was unfortunately lost sight of. The draft Constitution made no mention of the special provisions, not even similar to those made by the Government of India Act, 1935, in respect of the subordinate judiciary. If that had remained, the judicial services would have come under Part XIV dealing with the services in India. An amendment, fortunately, was accepted and led to the inclusion of Arts. 233 to 237. These articles were not placed in the Chapter on services but immediately after the provisions in regard to <ORG>. The articles went a little further than the corresponding sections of the Government of India Act. They vested the "control" of the district courts and the courts subordinate thereto in <ORG> and the main question is what is meant by the word "control". The <ORG> has held that the word "control" means not only a general superintendence of the working of the courts but includes disciplinary control of the presiding judges, that is to say, the District Judge and judges subordinate to him. It is this conclusion which is challenged before us on various grounds.

Mr. <NAME> appearing for <ORG> contends that the word "control" must be given a restricted meaning He deduces this (a) on a suggested reading of Art. 235 itself and (b) on a comparison of the provisions of Chapter VI with those of Part XIV of the Constitution. We shall examine these two arguments separately as they admit of separate treatment. The first contention is that "control" means only control of the day to day working of the courts and emphasis is laid on the words of Art. 235 " district courts" and "courts subordinate thereto". It is pointed out that the expressions "district judge" and "judges subordinate to him are not used. It is submitted that if the incumbents were mentioned control might have meant disciplinary control but not when the word "court" is used. Lastly, it is contended that conditions of service are outside "control" envisaged by Art. 235 because the conditions of service are to be determined by the Governor in the case of the District Judge and in the case of judges subordinate to the District Judge by the Rules made by the Governor in that behalf after consultation with <ORG> and with <ORG>. We do not accept this construction. The word "control" is not defined in the Constitution at all. In Part XIV which deals with Services under the Union and the States the words "disciplinary control" or "disciplinary jurisdiction" have not at all been used. It is not to be thought that disciplinary jurisdiction of services is not contemplated. In the context the word "control" must, in our judgment, include disciplinary jurisdiction. Indeed. L8Sup.C1/65 -7 the word may be said to be used as a term of art because the Civil Services (Classification Control and Appeal) Rules used the word "control" and the only rules which can legitimately come under the word "control" are the Disciplinary Rules. Further as we have already shown, the history which lies behin the enactment of these articles indicate that "control" was vested in <ORG> to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. This aid to construction is admissible because to find out the meaning of a law, recourse may legitimately be had to the prior state of the law, the evil sought to be removed and the process by which the law was evolved. The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word. It shows that <ORG> is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge. Art. 227 gives to <ORG> superintendence over these court--, and enables <ORG> to call for returns etc. The word " control" in Art. 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the judges. This conclusion is further strengthened by two other indications pointing clearly in the same direction. The first is that the order of <ORG> is made subject to an appeal if so provided in the law regulating the conditions of service and this necessarily indicates an order passed in disciplinary jurisdiction. Secondly, the words are that <ORG> shall "deal" with the judge in accordance with his rules of service and the word "deal" also points to disciplinary and not mere administrative jurisdiction.

Articles 233 and 235 make a mention of two distinct powers first is power of appointments of persons, their postings and promotion and the other is power of control. In the case of the District Judges, appointments of persons to be and posting and promotion are to be made by the Governor but the control over the District Judge is of <ORG>. We are not impressed by the argument that the term used is "district court" because the rest of the article clearly indicates that the word "court" is used compendiously to denote not only the court proper but also the presiding Judge. The latter part of Art. 235 talks of the man who holds the office. In the case of the judicial service subordinate to the District judge the appointment has to be made 7 87 by the Governor in accordance with the rules to be framed after consultation with <ORG> and <ORG> but the power of posting, promotion and grant of leave and the control of the courts are vested in <ORG>. What is vested includes disciplinary jurisdiction. Control is useless if it is not accompanied by disciplinary powers. It is not to be expected that <ORG> would run to the Government or the Governor in every case of indiscretion however small and which may not even require the punishment of dismissal or removal. These articles go to show that by vesting "control" in <ORG> the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution. This construction is also in accord with the Directive Principles in Art. 50 of the Constitution which reads :

"50. The <ORG> shall take steps to separate the judiciary from the executive in the public services of the <ORG>". Mr. <NAME> next argues that Arts. 309 to 311 (particularly Art.

311) gave a clue to the meaning of the word "control". The argument is that the legislation regarding services of the <ORG> falls within the jurisdiction of the <ORG> <ORG> and Art. 309 gives the power to the <ORG> <ORG> to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the <ORG>. This is perhaps true. But Mr. <NAME> seems to make no distinction between lelegislative and executive powers. Under Art. 162 the power of the <ORG> of the <ORG> is coextensive with that of the <ORG> of the <ORG> but all that is subject to the other provisions of the Constitution. That the <ORG> has the power to make laws relating to the services does not show that the <ORG> enjoys corresponding executive power if the Constitution indicates otherwise. Art. 310 does no more than state the tenure of the office of the persons serving the <ORG> or the <ORG>. That has no bearing upon the present dispute. Art. 311 is, therefore, the only article which has relevance. That article reads as follows :-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the <ORG> or a <ORG>.

(1) No person who is a member of a civil service of the <ORG> or an all-India service or a civil service of the <ORG> or holds a civil post under the <ORG> or a <ORG> shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.

(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final."

Mr. <NAME> argues somewhat syllogistically as follows : Under clause (1) of the Article no person in the service of the <ORG> or the <ORG> can be dismissed or removed by an authority subordinate to that by which he is appointed. Under cl. (2) no such person can be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause. Reading the above with Arts. 233 and 234 he contends, and rightly, that a District Judge or a Judge subordinate to the District Judge cannot be dismissed or removed by any authority other than the Governor. Mr. <NAME> argues that this power of the Governor determines that the enquiry must be made by or under the directions of the Governor or the Government To lend support to this contention Mr. <NAME> draws pointed attention to provisos (b) and (c) to cl. (2). He says that by reason of proviso (b), cl. (2) does not apply if the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that it is not reasonably practicable to give to that person an opportunity of showing cause and under cl. (3) the decision of that authority is made final. Again, by the proviso (c), says he, the Governor may dispense with the enquiry altogether if he is satisfied that in the interest of the security of the <ORG> it is not expedient to give to any person an opportunity of showing cause. Mr. <NAME> contends that as the Governor alone can appoint or dismiss or remove District Judges and as he alone can decide whether, for any of the two reasons mentioned in provisos (b) and (c) an opportunity to a District Judge of showing cause against the charges leveled against him shall be denied, the Governor alone can initiate enquiries and cause them to be held and <ORG> cannot claim to hold them. In this way, he contends, the extent of control exercisable by <ORG>s under Art. 235 must be so cut down as to keep disciplinary jurisdiction out. This argument was not presented in <ORG> and does credit to the ingenuity of Mr. <NAME> but it is fallacious. That the Governor appoints District Judges and the Governor alone can dismiss or remove them goes without saying. That does not impinge upon the control of <ORG>. It only means that <ORG> cannot appoint or dismiss or remove District Judges. In the same way <ORG> cannot use the special jurisdiction conferred by the two provisos. <ORG> cannot decide that it is not reasonably practicable to give a District Judge an opportunity of showing cause or that in the interest of the security of the <ORG> it is not expedient to give such an opportunity. This the Governor alone can decide. That certain powers are to be exercised by the Governor and not by <ORG> does not necessarily take away other powers from <ORG>s. The provisos can be given their full effect without giving rise to other implications. It is obvious that if a case arose for the exercise of the special powers under the two provisos, <ORG> must leave the matter to the Governor. In this connection we may incidentally add that we have no doubt that in exercising these special powers in relation to inquiries against District Judges, the Governor will always have regard to the opinion of <ORG> in the matter. This will be so whoever be the inquiring authority in the <ORG>. But this does not lead to the further conclusion that <ORG> must not hold the enquiry any more than that the Governor should personally hold the enquiry.

There is, therefore, nothing in Art. 311 which compels the A conclusion that <ORG> is ousted of the jurisdiction to hold the enquiry if Art. 235 vested such a power in it. In our judgment, the control which is vested in <ORG> is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in <ORG>, <ORG> can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by cl. (2) of Art. 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. <ORG> alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction.

<ORG> was thus right in its conclusions. The appeal fails and is dismissed. It is clear that the conduct of <NAME> may not now be inquired into but that is a result which we can only regret. In the circumstances we make no order about costs.

Appeal dismissed.


PETITIONER: <ORG> Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX, BOMBAY NORTH DATE OF JUDGMENT: 08/02/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) SUBBARAO, K. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M. BACHAWAT, R.S. CITATION: 1965 AIR 1636 1965 SCR (2) 908 CITATOR INFO : R 1966 SC1466 (7) RF 1967 SC1643 (120) R 1968 SC 779 (12) R 1970 SC2067 (14) R 1972 SC 236 (5) F 1972 SC1880 (3,27,49) RF 1972 SC1982 (91) R 1976 SC1141 (5) RF 1980 SC2056 (61) F 1989 SC1298 (7) R 1989 SC1933 (24) ACT: Indian Income-tax Act , s. 66(4) -Power of High <ORG> to ask <ORG> to submit supplementary statement of case after further investigation of facts-Stare decisis- Power of Supreme <ORG> to review and revise earlier judgments-When should be exercised. HEADNOTE: The appellant was a company registered in the erstwhile Baroda State. In connection with the assessment year 1942- 43 the Income-tax Officer Ahemdabad held that certain sale proceeds were received by the appellant in British India and the profit thereon was taxable under the Indian income-tax Act, 1922. One of the items in dispute related to the sale- proceeds collected by collecting cheques on British India <ORG>. In respect of the said item the Appellate Assistant Commissioner as well as the Appellate <ORG> decided against the appellant, and thereafter, reference was made to <ORG>. <ORG> felt that it required further facts to decide the reference and twice remanded the case to the <ORG> for investigation of those facts. The <ORG> after taking evidence submitted a supplementary Statement of Case on each occasion. Finally <ORG> decided the question against the appellant, but granted it a certificate of fitness to appeal to <ORG>. It was contended on behalf of the appellant that <ORG> had no jurisdiction to direct the <ORG> to collect additional material and make it a part of the supplementary Statement of Case under s. 66(4) as had been decided by this <ORG> in the cases of <ORG> and <ORG>. On behalf of the <ORG> it was contended that these two cases required reconsideration. The <ORG> therefore had to consider whether it should review and revise its earlier view taken in the said two cases. HELD : (i) The view contended for on behalf of the <ORG> namely, that <ORG> had power to ask the <ORG> to investigate further facts and submit a supplementary Statement of Case was a reasonably possible view. But on the other hand the opposite view taken by this <ORG> in <ORG> case and the <ORG> case was also reasonably possible. The latter view had been followed by this <ORG> on several occasions and it had regulated the procedure in reference proceedings in <ORG>s ever since the decision in <ORG> case was pronounced. Besides, no reported decision had been cited at the bar where the question about the constitution of s. 66(4) was considered and decided in favour of the view con- tended for by the <ORG>. No case therefore was made out for a revision or review of the <ORG>'s decisions in <ORG> and <ORG> cases. [928 C-F] Case law discussed. The New jahangir <CITATION> - tax, Bombay North,  1 S.C.R. 249 and' The Petlad Turkey Red Dye 909 <CITATION> ,  Supp. 1 S.C.R. 871, affirmed. (ii) The principle of stare decisis cannot be pressed into service in cases where the power of this <ORG> to reconsider and revise its earlier decisions is invoked, because that power is inherent in this <ORG>; but nevertheless the normal principle that judgments pronounced by this <ORG> would be final cannot be ignored. Unless considerations of a subs- tantial and compelling character make it necessary to do so this <ORG> should and would be reluctant to review and revise its earlier decisions. [923 B-D] Bengal Immunity Company Ltd. v. State of Bihar  2 S.C.R. 603, distinguished. (iii) If the <ORG> is satisfied that its earlier decision was clearly erroneous, it should not hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the <ORG> must be satis- fied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the <ORG> in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations-What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based ? On the earlier occasion, did some patent aspects of question remain unnoticed, or was the attention of the <ORG> not drawn to any relevant and material statutory provision, or was any previous decision of this <ORG> bearing on the point not noticed ? Is the <ORG> hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on subquent occasions either by this <ORG> or by <ORG>s ? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ? These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this <ORG> [922 B-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1017 of 1963. Appeal from the judgment and order dated March 30th and 31st, 1960 of <ORG> in Income-tax Reference No. 2 of 1949.

<NAME> and <NAME>, for the appellant. <NAME>, Attorney-General, <NAME>, <NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, C.J. When this appeal was argued before a Division Bench of this Court on October 23, 1964, it was urged on behalf of the appellant, <ORG>, that in view of the present decisions of this Court in <CITATION> and. Saurashtra(1), and <CITATION> - tax, Bombay, Ahmedabad (2), the appeal must be allowed and the case sent back to <ORG> for disposal in accordance with the principles laid down in the latter decision. At that stage, the learned Attorney-General for the respondent, the Commissioner of Income-tax, Bombay North, Ahmedabad, urged that he wanted this Court to reconsider the said two decisions. He fairly conceded that if the said two decisions were to be followed, the appeal would have to be allowed and sent back as suggested by the appellant. The learned Judges constituting <ORG> took the view that an opportunity should be given to the learned Attorney-General to press his contention, and so, they directed that the appeal be placed before a Bench of five Judges. Thereafter, this appeal came on for hearing before <ORG> on November 5, 1964. On this occasion again, the same contentions were raised on behalf of the appellant and the respondent respectively Mr. <NAME> for the appellant urged that it would be inappropriate to reconsider the recent decisions on which he relied, and he argued that on the merits, the view taken by this Court in the said two decisions was sound and correct. On the other hand, the learned Attorney-General contended that he wanted this Court to reconsider the said two decisions, and he pointed out that the matter was of importance, and so, the appeal should be referred to a larger Bench in view of the fact that the decision in the case of <ORG> (2) was a unanimous decision of a Bench consisting of five Judges of this Court. It was under these circumstances that the Court directed that the appeal should be placed before <ORG> of seven Judges. 'Mat is how it has come on for a final decision before a Bench of seven Judges; and the only point which has been raised for the decision of the Special Bench is whether the two decisions in question should be reviewed and revised. Let us begin by stating the relevant facts leading up to the main point of controversy between the parties. The appellant is a company registered in the Baroda State as it then was. The assessment year with which the proceedings giving rise to this appeal are concerned is 1942-43 (the accounting year being calendar year 1941). During the said year, the appellant was a 'non-resident'. It carried on business of manufacturing and (1)  1 S. C. R. 249. (2)  Supp. 1 S. C. R.

871. selling textile goods in the Baroda State. The operations in relation to all sales of goods manufactured by the appellant's Mills were completed at the appellant's premises at Petlad on the footing of ex-Mill delivery in every case. It appears that on March 22, 1947, the Income-tax Officer, E.P.T. Circle, Ward B, Ahmedabad, passed an order under sec- tions 23 (3) and 34 of the Indian Income-tax Act , 1. 922 (No. 11 of 1922) (hereinafter called 'the Act) and held that sale proceeds in respect of the sales aggregating each of the following three items were received by the appellant in British India. These items were :

(i) Sale-proceeds actually received in the accounting Year through <ORG>

Rs. 12,68,460

(ii) Sale-proceeds through British Indian Banks through Drafts:

Rs, 4,40,878

(iii) Sale proceeds collected by collecting cheques on British Indian Banks and Hundis onBritish Indian Shorff and Merchants Rs. 6,71,735 It is with this last item that the present appeal is concerned.

Aggrieved by the order thus passed by <ORG>, the appellant preferred an appeal before the Appellate Assistant Commissioner of Income-tax, Ahmedabad Range. <ORG> held that <ORG> was in error in not excluding items (i) and (iii) respectively from computation of the taxable profits of the appellant. Thus, the appellant succeeded before the appellate authority in respect of the item in dispute. This decision of the appellate authority led to two cross-- appeals, one by <ORG> and the other by the appellant before <ORG>-hereafter called the <ORG>. The <ORG> dismissed the appellant's appeal in respect of Rs. 4,40,878/- and allowed the Income- tax Officer's appeal in part and held that the item of Rs. 12,68,460/had been wrongly excluded by <ORG>. In respect of item (iii) relating to Rs. 6,71,735/-, the <ORG> held that in the circumstances of the case the sale proceeds represented by the said item were not received in British India but in the State itself. This decision of the <ORG> led to two cross-applications by the appellant and <ORG> for raising the questions of law before it in relation to the items in respect of which they had respectively failed. As a result of these proceedings, the <ORG> drew up the statement of the case on November 5, 1948, and raised' the following question to <ORG> :-

"Whether on the facts and in the circumstances of the case, the sums of Rs. 12,68,460/-, Rs. 4,40,878/and Rs. 6,71,735/- , or any of them, which represents receipts by the assessee company of its sale-proceeds in British India, include any portion of its income in British India ?"

In other words, all the three items in dispute between the appeal]ant and the Income-tax Officer formed the subject- matter of the question raised by the <ORG> before <ORG>. This reference was registered as Income- tax Reference No. 2 of 1949.

By its judgment and order delivered on the 14th/15th Sep- tember, 1949, in relation to items (i) and (ii) <ORG> held that the two sums in question were not debts due from British Indian Merchants but sale proceeds of the goods sold by the appellant to merchants in British India and that such sale proceeds were received by the appellant in British India. In other words, the answers rendered by <ORG> in respect of the said two items were against the appellant. The appellant came to this Court in appeal against the decision of <ORG>, but its appeal failed and the view taken by <ORG> was affirmed (vide <CITATION> )(). In the result, the controversy between the appellant and the Income-tax Officer in respect of the said items has been finally decided against the appellant. Reverting then to item (iii) with which the present appeal is concerned, <ORG> took the view that before it could render an answer to the question in relation to the said item, it would like the <ORG> to furnish to <ORG> further facts. Accordingly, <ORG> directed that the <ORG> should submit a supplementary statement of case and state therein as to whether there was any arrangement or agreement between the Assessee and the merchants that the giving of cheques or hundis by the merchants to the Assessee would result in an unconditional discharge of the liability of the merchants. <ORG> also issued some other directions asking the <ORG> to clarify (1) [19531 S. C. R. 950.

<NAME>

some of its relevant findings which appeared to <ORG> to be somewhat confused.

As a result of this order, the case went back to the <ORG> which in turn remanded it to the Income-tax Officer for getting the requisite information. On receiving the report of the Income-tax Officer, the <ORG> submitted its Supplementary Statement of Case to <ORG> on August 13, 1954.

Whilst these proceedings were thus pending in <ORG>, the decision of this Court in <CITATION> . <ORG>, Ogale Wadi(1) was pronounced. In that case, one of the points which arose for decision was whether <ORG> which takes the cheque from the sender to the addressee is the agent of the sender or the addressee; and on this point, the Court held that as between the sender and the addressee, it is the request of the addressee that makes the <ORG>-office, the agent of the addressee and after such request, the addressee cannot be heard to say that the <ORG>- office was not his agent. On the other hand, if there is no such request by the addressee, express or implied, then on delivery of the letter or the cheque to <ORG> by the sender, the <ORG>-office acts as the agent of the sender. This decision had a significant impact on the further progress of the present dispute.

After receiving the Supplementary Statement of Case from the <ORG>, the matter was argued before <ORG> on the 15th February, 1955. On this occasion, <ORG> referred the matter back again to the <ORG> with the direction : "that the <ORG> will determine on the evidence led by both parties whether the sum in question was paid by various merchants by sending drafts, hundis or cheques by post and that if the <ORG> found that in some cases the amount was not sent by post, then the <ORG> should determine what amount was sent otherwise than by post and the <ORG> should then submit a Supplementary Statement of the Case". It would be noticed that this direction was given by <ORG> obviously because <ORG> wanted to deal with the question referred to it in the light of the decision of this Court in the case of <ORG>" In fact, in giving this second direction, <ORG> observed that when it had called for the first Supplementary Statement of the Case, it did not have the benefit of the decision of this Court in the case of <ORG>,(1) and that after the said decision was pronounced, the position with regard' (1) [1955] 1 S. C. R. 185.

to receipt of the cheque by the appellant had been considerably simplified.

Pursuant to the second order of remand made by <ORG>, the <ORG> submitted its second Supplementary Statement of the Case on the 26th October, 1959. After receipt of the second Supplementary Statement, the Reference again came up for hearing before the high <ORG>. After hearing the parties, <ORG> has rendered its answer against the appellant on the question in relation to the item in dispute. It is against this order passed by <ORG> on the 30th and 31St March, 1960, that the appellant has come to this <ORG> with a certificate granted by <ORG>; and on its behalf, Mr. <NAME> has urged that in view of the decisions of this <ORG> in the <ORG>) case and <ORG>) case, the appeal must be allowed and the case remitted to <ORG> to be dealt with in accordance with the principles laid down by this <ORG> in the latter case.

It is common ground that as a result of the two orders of remand passed by <ORG> in the present Reference proceedings, some material evidence which was not on the record when the question was framed by the <ORG> and sent to <ORG> under s. 66(1) of the Act, has been collected and made a part of the Supplementary Statement of the Case; and basing himself on this fact, Mr. <NAME> contends that <ORG> had no jurisdiction to direct the <ORG> to collect additional material and form it a part of the Supplementary Statement under s. 66(4) of the Act. It is in support of this contention that reliance is placed on the two decisions in question. Before addressing ourselves to the problem as to whether the view taken by this <ORG> in the said two decisions needs to be reconsidered and revised, it is necessary that we should refer to the said two decisions as well as other decisions on which both the parties have relied before us in the course of the arguments.

The first decision on which Mr. <NAME> relies is the New Jehangir Mills(1) case. In that case, the question which was referred by the <ORG> to <ORG> was whether the receipt of the cheques in Bhavnagar amounted to receipt of sale proceeds in Bhavnagar. Before rendering its answer to this question, <ORG> had directed the <ORG> to furnish a Supplementary Statement of the Case on the following points "On the finding of the <ORG> that all the cheques were received in Bhavnagar, the <ORG> should find (1) [1960] S. C. R. 249.

(2) [1963] SUPP. S. C. R. 871.

what portion of these cheques were received by post, whether there was any request by the assessee, express or implied, that the amounts which are the subject-matter of these cheques should be remitted to Bhavnagar by post".

It would be noticed that as a result of this direction, the question which would really have to be considered by <ORG> would be whether the posting of the cheques in British India at the. request, express or implied, of the appellant, amounted to. receipt of sale-proceeds in British India. It was urged by the appellant in that case that as a result of the direction issued by <ORG> calling for a supplementary,.statement of the case, the nature of the question formulated by the <ORG> had been altered, and that was beyond the competence of <ORG> under s. 66(4) . In substance, this plea was upheld by this Court and it was held that in calling for the supplementary statement of the case, <ORG> had misconceived its powers. under s. 66(4) of the Act. According to this decision, S. 66(4) must be read with S. 66(1) and S. 66(2) , and so read, it did not empower <ORG> to raise a new question of law which did not arise out of the <ORG>'s order or direct the, <ORG> to investigate new and further facts necessary to determine the new question which had not been referred to it under S. 66(1) or s. 66(2) of the Act and direct the <ORG> to submit, supplementary statement of case. The additions and alterations in the statement of case which can be directed under S. 66(4) could, in the opinion of this Court relate only to such facts as already formed part of the record but were not included by the. <ORG> in the statement of the case. Mr. <NAME> contends that in the light of the decision, we ought to hold that in so far as the two orders of remand passed by <ORG> in the present Reference proceedings have led to the collection of' additional material and evidence and their inclusion in the supplementary statements of the case, <ORG> has exceeded its jurisdiction under s. 66(4) . The other case on which Mr. <NAME> strongly relies is the decision of this Court in <ORG> (1). In that case, one of the points decided by this Court had reference to the extent of the powers and authority of <ORG> under s. 66(4) . It was held that though <ORG> had power to direct a supplemental statement to be made, it was beyond its competence to direct additional evidence to be taken. In other (1)  Supp. 1 S. C. R. 871.

words, this Court took the view that when <ORG> makes an order of remand under S. 66(4) and directs the <ORG> to furnish a supplemental statement of the case, it can require the <ORG> to include in such supplemental statement material and evidence which may. already be on the record, but which had not been included in the statement of the case initially made under Is. 66(1). The result of this decision is that S. 66(4) does not confer on <ORG> power to require the <ORG> to take additional evidence before it renders its answers on the questions formulated under S. 66(1) or s. 66(2) . In accordance with the view thus taken by this Court, the direction issued by <ORG> to submit a supplemental statement of the case after taking additional evidence was reversed, and following the precedent in the New Jehangir Mills(1) case, an order was passed that the appeals should be allowed and the matter remitted to <ORG> to give its decision on the question of law referred to it as required under s. 66(5) of the Act.

Before the decision of this Court in <ORG> (2 was pronounced, a similar point had been raised in the case of <CITATION> (now Madhya Pradesh(2). In this latter case, the question referred to <ORG> for its decision was whether on the facts and circumstances of the case, the profits and gains in respect of the sales made to <ORG> were received by the assessee in the taxable territories ? While dealing with this question, <ORG> thought it necessary to remand the case to the <ORG> for a supplemental statement of the case calling for a finding on the question whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assessee firm given to the department in the matter ? The validity and correctness of this direction was challenged by the appellant before this Court in view of the decision of this Court in the care of <NAME>). While dealing with this objection raised by the appellant, this Court held that the question as it was framed, was wide enough to include an enquiry as to whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the <ORG> Works(4) case or in <CITATION> (5) and since it did not appear (1)  1 S. C. R. 249.

(2) [1963] Supp. 1 S. C. R. 871.

(3) [1961] 1 S. C. R. 210.

(4) [1955] 1 S. C. IL 185.

(5) [1960] 1 S. C. R. 236.

from the order of remand passed by <ORG> that <ORG> intended that the <ORG> should admit fresh evidence before submitting its supplemental statement, the impugned direction could not be said to be invalid. This decision shows that when a question is framed for the decision of <ORG> in wide terms, and <ORG> finds that before rendering its answer on the said question some new aspects have to be considered and it feels that for dealing with the said new aspects of the matter, a supplemental statement of the case should be called for, <ORG> is authorised to call such a supplemental statement, provided, of course, <ORG> does not require the <ORG> to collect additional material or evidence before submitting its supplemental statement. The same view has been expressed by this Court in the case of <CITATION> - liar(1). According to this decision, a supplementary statement of case may contain such alterations or additions as <ORG> may direct, but the statement must necessarily be based on facts which are already on the record. While exercising its jurisdiction under S. 66(4) , <ORG> has no power to ask for a fresh statement of case with a direction that the <ORG> should go into the matter again and record further evidence. There is one more decision to which reference may inciden- tally be made before we part with the series of decisions on which Mr. <NAME> relies. <CITATION> ., (2) this Court had occasion to consider the scope and denotation of the expression "any question of law arising out of such order' occurring in S. 66(1) of the Act. The majority decision has summed up the result of the discussion as to the scope and effect of the provisions of s. 66 in these words :

(1) When a question is raised before the <ORG> and is dealt with by it is clearly one arising out of its order. (2) When a question of law is raised before the <ORG> but the <ORG> fails to deal with it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order.

(3) When a question is not raised before the <ORG> but the <ORG> deals with it, that will also be a question arising out of its order.

(4) When a question of law is neither raised before the Tribunal nor considered by it will not be a question arising (1) [1964] 53 1 I.T.R. 623.

(2) [1962] 1 S. C. R. 788, out of its order notwithstanding that it may arise on the findings given by it.

In substance, these propositions mean that it is only a question that has been raised before or decided by the <ORG> that could be held to arise out of its order. Let us now refer to the decisions on which the learned Attorney-General has relied in support of his contention that <ORG> has power under s. 66(4) to call for new additional evidence if it takes the view that such additional evidence is necessary to enable it to determine the question raised for its decision satisfactorily. The learned Attorney-General has fairly conceded that he has not been able to find any decision where this question has been answered in favour of the view for which he contends after construing the relevant provisions of S. 66(4) of the Act. He, however, urges that there is high authority in support of the practice for which he contends inasmuch as <ORG> appears to have assumed that <ORG> can, in exercise of its powers under S. 66(4) , call for additional evidence. The first decision of <ORG> on which he relies is in the case of ( <CITATION> .(1). In that case, two of the questions which arose were : whether the steps taken by the assessee to vest in his wife and sons an interest in the immovable assets of the business were not legally effective, e.g., for want of a registered instrument of transfer; and if the factory, land and buildings in question were joint family property, whether it was shown that a partition at the hands of the father of the said properties could not be effected without a written instrument ? The question of law formulated for the decision of <ORG> was : "In all the circumstances of the case, having regard to the personal law governing the assessee and the requirements of the Transfer of Property Act (IV of 1882) and the Stamp Act , has the deed of partnership dated February 12, 1933, brought into existence a genuine firm entitled to registration under the provisions of s. 26- A of the Act ?" While answering this question, one of the points which had to be decided was whether the immovable properties were the self-acquisitions of the father or not. <ORG> took the view that before a satisfactory answer could be rendered on the question framed, several facts had to be ascertained, and in its judgment <ORG> has indicated the nature of these facts. "It is necessary to know", says the judgment, "as regards (a) the business, machinery, plant (1)  10 I.T.R. 457.

and other movables; (b) the factory buildings and land whether they were before 1931 the self-acquired property of the father or his ancestral property or joint family property or whether they fall into some other and what category according to the customary law". The judgment also points out that the rights of the members of the family in respect of the said property would have to be ascertained and the conduct of the parties considered. Then, in regard to the agreement in question, <ORG> pointed out that it would be necessary to enquire what agreement, if any, was made prior to February 12, 1933, and when as to a partnership being constituted to carry on the sugar factory and as to the assets which it was to have as a firm. "None of these essential facts", says the judgment, "have been found and stated by the Commissioner, with the result that the question referred cannot be answered until <ORG> has exercised its powers under sub-section (4) of section 66 of the Act". Having made these observations, <ORG> left it to the discretion of <ORG> to specify the particular additions and alterations which the Commissioner should be directed to make. In the result, the advice tendered by <ORG> was "that the case be remanded to <ORG> for disposal after taking such action under sub-section (4) of s. 66 of the Act as <ORG> may think fit in the light of this judgment". The argument is that the facts which <ORG> thought it necessary to ascertain before answering the question, indicate that they could not have been on the record at the time when the question was originally framed by the Commissioner, and so, the suggestion is that inasmuch as <ORG> indicated that <ORG> should call for a supplemental statement in regard to facts which were apparently not already on the record, this decision should be taken to support the contention that s. 66(4) authorised <ORG> to call for new additional material before it renders its answers to the questions formulated under s. 66(1) or s. 66(2) .

A similar argument is based on another decision of <ORG> in Trustees of <ORG>, Lahore v. Commissioner of Income-tax, Punjab, Lahore(1). In that case, the questions which were referred to <ORG> were : "(1) whether the income of <ORG> was liable to be assessed in the hands of the Trustees under the provisions of the Income-tax Act ?; and (2) if it was, whether it was not exempt under s. 4(3) (1) of the Act?" In <ORG>, there was a sharp difference of opinion between the Judges who heard the reference; but ultimately the 4 Sup./65-13 answers went against the <ORG>, and so, the dispute was taken to <ORG> by the Trustees of <ORG>. At the first hearing of the said appeal before <ORG>, it was considered by the <ORG> to be desirable that the powers conferred by sub-s. 4 of s. 66 of the Act should be employed to obtain further information. Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice tendered by the <ORG> that the case ought to be remitted to <ORG> of Judicature at Lahore with a direction that the said <ORG> shall refer the case back to the Commissioner under s. 66(4) , first for the addition of such facts during the life- time of the testator <NAME> as may bear upon the proper interpretation of the expression 'keeping up the liberal policy of the said newspaper in clause XXI of the will of the said testator dated the 15th Day of June, 1895, and secondly, for the addition of such facts as to a compromise dated the 1st day of December, 1906, as may show whether the said compromise is binding on all parties interested in the estate of the said testator. Thereafter, a supplementary statement made by the Commissioner was filed and it appears that before he made the said statement, the Commissioner "carefully assembled considerable material explanatory of the direction given by the testator in the phrase 'keeping up the liberal policy of the said newspaper, and showing as their Lordships think, very fairly, the nature and purpose of the trust". After considering the said material, <ORG> allowed the appeal preferred by the Trustees, because in its opinion the second question framed for the decision of <ORG> had to be answered in favour of the assessee. It is urged that this decision also shows that <ORG> called for additional material and evidence by requiring <ORG> to exercise its powers in that behalf under s. 66(4) of the Act.

The learned Attorney-General also stated that there were some other decisions of <ORG> in India where similar additional evidence had been called for by <ORG> under s. 66(4) , and by way of illustration, he cited before us the decision of <ORG> in Messrs. <NAME> <CITATION> (1). It is, however, clear that in none of the decisions on which the learned Attorney-General relies has the question about the construction of S. 66(4) been argued, considered and decided. That, broadly stated, is the position disclosed by the judicial decisions bearing on the point with which we are concerned in the present appeal. (1) 14 I.T.R. 764.

In dealing with the question as to whether the earlier decisions of this <ORG> in the <ORG>) case, and the <ORG>) case should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases. Mr. <NAME> has not disputed the fact that in a proper case, this <ORG> has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this <ORG> or not need not detain us. In exercising this inherent power, however, this <ORG> would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision-making is often very difficult and delicate. When this <ORG> hears appeals against decisions of the High <ORG>s and is required to consider the propriety or correctness of the view taken by the High <ORG>s on any point of law, it would be open to this <ORG> to hold that though the view taken by the High <ORG> is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case, the choice is between the view taken by the High <ORG> whose judgment is under appeal, and the alternative view which appears to this <ORG> to be more reasonable; and in accept- ing its own view in preference to that of the High <ORG>, this <ORG> would be discharging its duty as a <ORG> of Appeal. But different considerations must inevitably arise where a previous decision of this <ORG> has taken a particular view as to the construction of a statutory provision as, for instance, s. 66(4) of the Act. When it is urged that the view already taken by this <ORG> should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this <ORG> should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this <ORG> decides questions of law, its decisions are, under Art. 141 , binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of (1)  1 S.C.R. 249.

(2) [1963] Supp. 1 S.C.R. 871.

A Sup./65-14 this <ORG> to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this <ORG> of its power to review its earlier decisions on the ground that the view pressed before it later appears to the <ORG> to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the <ORG> is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the <ORG> must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the <ORG> in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations :What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based ? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the <ORG> not drawn to any relevant and material statutory provision, or was any previous decision of this <ORG> bearing on the point not noticed ? Is the <ORG> hearing such plea fairly unanimous that there is such an error in the earlier view ? What would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on subsequent occasions either by this <ORG> or by the High <ORG>s ? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ? These and other relevant considerations must be carefully borne in mind whenever this <ORG> is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this <ORG>. It is true that in the case of the <CITATION> . (1) this <ORG> by a majority of 4 : 3 reversed its earlier majority decision (4 : 1) in the <CITATION> . (2); but that course was adopted by the majority of Judges in that case, because they were persuaded to take the view that there were several circumstances which made it necessary to adopt that course. (1)  2 S.C.R. 603.

(2) [1953] S.C.R. 1069.

On the other hand, dealing with a similar problem in the case of <NAME> etc. v. The State of Rajasthan etc.(1), this <ORG> unanimously rejected the request made on behalf of the petitioners that its earlier decision in <CITATION> (2) should be reviewed and revised. <NAME> and <NAME>, JJ. who were somewhat impressed by some of the pleas made in support of the contention that the earlier decision should be revised, in substance agreed with the ultimate decision of the <ORG> that no case had been made out for a review or revision of the said earlier decision. The principle of stare decision, no doubt, cannot be pressed into service in cases where the jurisdiction of this <ORG> to reconsider and revise its earlier decisions is invoked; but nevertheless, the normal principle that judgments pronounced by this <ORG> would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, this <ORG> should and would be reluctant to review and revise its earlier decisions. That, broadly stated, is the approach which we propose to adopt in dealing with the point made by the learned Attorney-General that the earlier decisions of this <ORG> in the <ORG>) case, and the <ORG> (4 ) case should be reconsidered and revised. Let us then consider the question of construing S. 66(4) of the Act. Before we do so, it is necessary to read sub- section (1), (2) and (4) of s. 66 . Section 66(1) reads thus :-

"Within sixty days of the date upon which he is served with notice of an order under sub- section (4) of section 33 , the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the appellate Tribunal to refer to <ORG> any question of law arising out of such order, and <ORG> shall within ninety days of the receipt of such application draw up a state- ment of the case and refer it to <ORG>".

There is a proviso to this sub-section which is not relevant for our purpose. Section 66(2) reads thus :

"If on any application being made under sub- section (1), <ORG> refuses to state the (1) [1965] 1 S.C.R. 933.

(2) [1952] S.C.R. 89.

(3) [1960] 1 S.C.R. 249.

(4) [1963] Supp. 1 S.C.R. 871.

case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the date on which he is served with notice of the refusal, apply to <ORG>, and <ORG> may, if it is not satisfied of the correctness of the decision of <ORG>, require <ORG> to state the case and to refer it, and on receipt of any such requisition <ORG> shall state the case and refer it accordingly".

That takes us to sub-section (4) which reads thus "if <ORG> is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the <ORG> may refer the case back to <ORG> to make such additions thereto or alterations therein as the <ORG> may direct in that behalf".

Section 66(5) provides that <ORG> upon hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment to <ORG> which shall pass such orders as are necessary to dispose of the case conformably to such judgment.

It is clear that when the <ORG> draws up a statement of the case and refers a question of law to <ORG> under s. 66(1) , the said question must arise out of its order, and the statement of the case would necessarily be limited to the statement of facts already brought on the record either before the Income-tax Officer or before the Appellate Assistant Commissioner, or before the <ORG>. There is no doubt and indeed no dispute before us that the question of law must arise from the <ORG>'s order and the statement of the case must be confined to the facts already brought on the record. The same would be the position where <ORG> requires the <ORG> to state the case and refer to it under s. 66(2) . The position, therefore, is that when <ORG> is exercising its advisory jurisdiction under S. 66(4) , it is dealing with a question of law arising from the order of the <ORG> and has to answer the said question in the light of the statement of the case submitted to it by the <ORG>. in normal course, the statement of the case would refer to facts selected by the <ORG> from out of the material already on the record and it is in the light of the said statement of the case that the question has to be answered by <ORG>. Thus far, there is no controversy or dispute.

Section 66(4) , however, authorises <ORG> to refer the case back to the <ORG> to make such additions to the statement of the case or alterations therein as the <ORG> may direct in that behalf. This power can be exercised by <ORG> if it is satisfied that the statement of the case is not sufficient to enable it to determine the question raised by it. If <ORG> feels that in order to answer satisfactorily the question referred to it is necessary to have additional material included in the statement of the case, <ORG> can make an appropriate direction in that behalf. If <ORG> is satisfied that some alterations should be made in the statement of the case to enable it to determine the question satisfactorily, it can make an appropriate direction in that behalf. The question is whether in issuing appropriate directions under $. 66(4), <ORG> can ask the Tribu- nal to travel outside the record and call for and collect material which is not already produced on the record. If s. 66(4) is read along with s. 66(1) and s. 66(2) , it may tend to show that the power of <ORG> is limited to requiring the <ORG> to add to or alter the statement of the case in the light of the material and evidence already on the record. If the question that can be raised under s. 66(1) and s. 66(2) can arise only out of the order of the <ORG> and if the statement of the case required to be drawn up by the <ORG> under the said two provisions would inevitably be confined to the facts and material already on the record, it seems unlikely that s. 66(4) would authorise <ORG> to direct the <ORG> to collect additional material or evidence not on the record.

The scheme of the Act appears to be that before the Income- tax Officer all the relevant and material evidence is adduced. When the matter goes before the Appellate Assistant Commissioner, he is authorised under s. 31(2) to make such further enquiry as he thinks fit, or cause further enquiry to be made by the Income-tax Officer before he disposes of the appeal filed before him. Section 31 (2) means that at the appellate stage additional evidence may be taken and further enquiry may be made in the discretion of the Appellate Assistant Commissioner. When the matter goes before <ORG> under s. 33 , the question about the admission of additional evidence is governed by Rule 29 of the Income (Appellate <ORG>) Rules, 1963. This Rule provides that the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the <ORG>, but if 4 Sup./65-15 the <ORG> requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Income-tax Officer has decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by him or not specified by him, the <ORG> may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.

After the <ORG> has passed orders on the appeal before it, the stage is reached to take the matter by way of reference proceedings before <ORG> under s. 66 . This scheme indicates that evidence has to be led primarily before the Income-tax Officer, though additional evidence may be led before the Appellate Assistant Commissioner or even before the <ORG>, subject to the provisions of s. 31(2) of the Act and Rule 29 respectively, and that means that when the <ORG> has disposed of the matter and is preparing a statement of the case either under s. 66(1) or under S. 66(2) , there is no scope for any further or additional evidence. When the matter goes to <ORG>, it has to be dealt with on the evidence which has already been brought on the record. If the statement of the case does not refer to the relevant and material facts which are already on the record, <ORG> may call for a supplementary statement under s. 66(4) , but the power of <ORG> under s. 66(4) can be exercised only in respect of material and evidence which has already been brought on the record.

There is another consideration which is relevant in dealing with the question about the scope and effect of the provisions contained in S. 66(4) . Proceedings taken for the recovery of tax under the provisions of the Act are naturally intended to be over without unnecessary delay, and so, it is the duty of the parties, both the department and the assessee, to lead all their evidence at the stage when the matter is in charge of the Income-tax Officer. Oppor- tunity is, however, given for additional evidence by s. 31(2) and Rule 29; but if further evidence is allowed to be taken under the directions of <ORG> under s. 66(4) , it is likely that tax proceedings may be prolonged interminably, and that could not be the object of the Act as it is evidenced by the relevant provisions to which we have already referred. These mainly are the grounds on which the earlier decisions of this <ORG> in the <ORG>) case and the <ORG> (2) case substantially rest.

On the other hand, it must be conceded that the words used in s. 66(4) are wide enough and they may, on a liberal construction, include the power to call for additional evidence by directing the <ORG> to file supplementary statement of the case. It is true that S. 66(4) in terms does not confer such a power and it may be that having regard to the scheme of s. 66(1) and (2), one would have expected specific and express terms conferring such power on <ORG> in s. 66(4) if the <ORG> had intended that <ORG> would be competent to call for additional evidence; but there are no terms of limitation in s. 66(4), and it would be reasonably possible to construe s. 66(4) as enabling <ORG> to call for additional evidence if it is satisfied that the material in the statement of the case is not sufficient to answer satisfactorily the question raised by the statement of the case. When <ORG> is dealing with the statement of the case under s. 66(4) , it is its duty to answer the question submitted to it. As has been held by this Court in <CITATION> (1), where the question involved is one of law and <ORG> finds it difficult to answer the question owing to the unsatisfactory nature of the statement of the case submitted by the <ORG>, the proper procedure is to call for a further statement of the case and then decide the question itself. <ORG> would be adjuring its advisory function if it merely gives some directions and orders the <ORG> to dispose of the matter according to law and in the light of the directions given by it without referring the matter again to <ORG>; and so, if <ORG> finds that in order to deal with the question referred to it satisfactorily it is necessary to ascertain some relevant and material facts, it should be open to <ORG> to direct the <ORG> to make a supplementary statement containing the said material and facts. There is no provision in s. 66(4) which prevents the exercise of such a power.

In some cases, the question of law referred to <ORG> may have to be considered in several aspects some of which may not have been appreciated by the <ORG>. There is no doubt that if a question of law is framed in general terms and in dealing with it several aspects fall to be considered, they have to be considered by <ORG> even though the <ORG> may not have considered them. In such a case, if in dealing with some aspects (1) [1960] 1 S.C.R. 249.

(2) [1963] Supp. 1 S.C.R. 871.

(3)(1955] 28 I.T.R. 184 of the matter it becomes necessary to ascertain additional facts, it would be unsatisfactory to require <ORG> to answer the question without such additional facts on the ground that they have not been introduced on the record already. Refusal to recognise the jurisdiction of <ORG> to call for such additional evidence may lead to hardship in many cases, and since there are no words expressly limiting the powers of <ORG> under S. 68(4) , there is no reason why the said powers should receive a narrow and limited construction. That is the view for which the learned Attorney-General contends. It must be conceded that the view for which the learned Attorney-General contends is a reasonably possible view, though we must hasten to add that the view which has been taken by this <ORG> in its earlier decisions is also reasonably possible. The said earlier view has been followed by this <ORG> on several occasions and has regulated the procedure in reference proceedings in <ORG>s in this country ever since the decision of this <ORG> in <ORG>) was pronounced on May 12, 1959. Besides, it is somewhat remarkable that no reported decision has been cited before us where the question about the construction of S. 66(4) was considered and decided in favour of the Attorney-General's contention. Having carefully weighed the pros and cons of the controversy which have been pressed, before us on the present occasion, we are not satisfied that a case has been made out to review and revise our decisions in the case of <ORG>) and the case of <ORG> (2) . That is why we think that the contention raised by Mr. <NAME> must be upheld. In the result, the order passed by <ORG> is set aside and the matter is sent back to <ORG> with a direction that <ORG> should deal with it in the light of the two relevant decisions in <ORG>) and <ORG> (2 ). Before we part with this appeal, however, we would like to add that in the course of the debate in the present appeal, Rule 39 of the Income-tax (Appellate Tribunal) Rules was incidentally referred to, though neither party based any argument on it. That being so, the question as to the true scope and effect of the provisions contained in the said Rule does not fall to be considered in the present proceedings and we express no opinion on it. There would be no order as to costs throughout.

Appeal allowed and remanded.

(1) [1960] 1 S.C.R. 249, (2) [1963] Supp, 1 S.C.R. 871,