PETITIONER: MANAGEMENT OF <ORG> Vs. RESPONDENT: ITS WORKMEN DATE OF JUDGMENT: 27/07/1962 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS MUDHOLKAR, J.R. CITATION: 1963 AIR 295 1963 SCR (3) 461 CITATOR INFO : RF 1972 SC1031 (21,44,47,56) R 1973 SC1227 (20) R 1975 SC1900 (10,11) R 1978 SC1380 (8) R 1979 SC1652 (16,28) R 1981 SC1626 (10) D 1987 SC1629 (14) ACT: Industrial Dispute-Termination of relation of master and servant--Procedure--Domestic enquiry--Additional evidence before <ORG>--Powers of <ORG> regarding merits of case--Scope of--Procedure of departmental enquiry-- Industrial Disputes Act , 1947 . HEADNOTE: The appellant is a company which carries on the business of exhibiting cinema films in its theatre' The respondents <NAME> and <NAME>, were its employees for the past many years. Charge-sheets were served on them and the charges were enquired into by the Enquiry Officers appointed by the appellant. At the enquiry, the appellant 462 led evidence, both oral and documentry. Eleven witnesses were examined on behalf of the appellant and an equal' number of witnesses was examined on behalf of the respon- dents. The Enquiry Officer considered all the evidence led before him and came to the conclusion that the charges framed against the respondents had been fully established. He recommended that the services of the respondents be dispensed with for misconduct. He also recommended the making of certain payments to the respondents. The appellant accepted the report of the Enquiry Officer and <NAME> was dismissed on 15th January, 1959, and <NAME> on 1st May, 1959. <ORG> referred the matter to <ORG> for adjudication whether the respondent& should be re-instated with full back wages or whether they were entitled to any other relief. When the case was heard before the <ORG>, the appellant asked for an opportunity to adduce additional evidence and the <ORG> allowed both the parties to lead further evidence. The decision of the <ORG> was that the dismissal of <NAME> was not justified and the findings recorded against him at the departmental enquiry were baseless. As regards <NAME>. the <ORG> held that no order of dismissal had been served on him, and hence it could not be said that his services had been duly terminated by an order of dismissal. On these grounds, the <ORG> ordered the reinstatement of both the respondents. The appellant came to this Court by special leave. Held, that the order of dismissal passed against <NAME> was proper and valid. As regards <NAME>, the appellant had failed to prove that the order of dismissal was served on him as required by law. The relationship of employer and employee can be effectively terminated not merely by the decision of the employer to terminate the employee's services but by the communication of the said decision to the employee, and that was not done in this case. Therefore, the appellant was directed to pay to <NAME> the wages to which he would have been entitled if he had been In actual employment from December 1, 1958, to July 27, 1962, the date of the decision. As regards the scope of the powers of the <ORG> it wag held that it is only where the <ORG> is satisfied that a proper enquiry has not been held or that the enquiry having 463 been held properly the findings recorded at such an enquiry are perverse, that the <ORG> has jurisdiction to deal with the merits of the dispute. The employer may rely on the domestic enquiry in the first instance, and alternatively and without prejudice to his plea that the said enquiry is proper and binding, may seek to lead additional evidence. By adopting such a course, the employer does not give up his plea that the enquiry was proper and the <ORG> cannot go into the merits of the dispute for itself If the view of the <ORG> was accepted that as the appellant sought permission to lead additional evidence it was open to it to consider the merits of the dismissal of the employees for itself in the light of the whole of the evidence before it, it will lead to the anamoly that the employer would be precluded from justifying the dismissal of his employees by leading additional evidence unless he took the risk of inviting the <ORG> to deal with the merits for itself. The true and correct legal position is that if the employer seeks to lead evidence in addition to the evidence adduced at the departmental enquiry and the employees are also given permission to lead additional evidence it is necessary for the <ORG> to first consider the preliminary issue as to the validity of the domestic enquiry and then proceed to deal with the merits in case the preliminary issue is decided against the employer. <CITATION> (1961)2 L.L.J. 644 and <ORG> v. Workmen of Nahortali Tea Estate, (1961) 2 L.L.J. 625. referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 111 of 1962. Appeal by special leave from the Award dated February 9. 1960 of <ORG> in I.D. No. 601 'of 1959.

<NAME>, <NAME> and <NAME> for the appellant.

<NAME> and <NAME>, for the respondents.

1962. July 27. Judgment of the Court was delivered by GAJENDRAGADKAR, J An industrial dispute between the appellant, <ORG>.. and the respondents, its, Workmen, from which this,appeal arises was referred for adjudication to <ORG> at Delhi by <ORG> on November 13, 1959. The dispute was in 'regard to the termination of services of two of the appellant's employees, Jai Jai Ram and <NAME> and the, question referred for adjudication' was whether the said two workmen should be reinstated with full back wages and to what relief they were entitled,.

The appellant is a company, which carries on the business of exhibiting cinema films in its theatre, <ORG>, and the two workmen had, been its employees for several years past., it' appears that in August, 1958, charg sheets were, served on the two workmen. Against <NAME>, four charges were framed. The first charge was that on 1st August, 1958, 'he along with Mohd. <NAME> had given a beating with slaps and fist blows, while on duty to <NAME> another employee at about 6 P. M. during the <NAME> show of 'Nausherwane-Adil"; the second, charge was that he had misappropriated carbons belonging to the management; the third was that he had run Reel No. 9 on the picture "Bhabi" upside down on 19th August, 1958, during the 6-30 P. M., show; and the last charge was that he had run over the Film Print of picture "Mother India" and thereby damaged the film print.

Against <NAME>, three charges were framed. The first was in regard to the incident which took place on 1st August,, 1958 in which he and <NAME> had acted together in 'seating with slaps and fist blows <NAME>; the second was that on 25th August, 1958, at about 3 P. M. during the show, he had threatened <NAME> another employee and had abused him and pushed him out of the cabin; and the third was that on 23rd August, 1958, while on duty he had left his cabin for half an hour without leave or permission or even without giving any information and was found taking tea in the restaurant during duty hours.

These charges were enquired into by the Enquiry Officer appointed by the appellant. At the enquiry, the appellant led evidence, both oral and documentary. Eleven witnesses were examined on behalf of the appellant whereas eleven witnesses were examined on behalf of the workmen. The Enquiry Officer examined the evidence adduced before him by the respective parties, considered their rival contentions and came to the conclusion that the charges firamed against both the workmen bad been fully established. Accordingly, the Officer recommended that the services of both the workmen should be dispensed with for misconduct. He added that in case his recommendation for dismissing the employees was accepted, certain payments should be made to them as indicated in the report. The appellant's case is that the report made by the Enquiry Officer was accepted by it and in accordance with the recommendation made by the said report, <NAME> and <NAME> were dismissed on 15th January, 1959, and 1st May, 1959 respectively.

In the present dispute, the respondents' case was that the departmental enquiry instituted by the appellant against the two workmen was unfair, unjust and inequitable and so it was urged that the termination of services of both the workmen was not justified. In regard to <NAME>, the respondents took an additional specific plea that the said workman had not been dismissed but had continued to be under suspension from 11th September, 1958 and on this additional plea, reinstate-

ment of <NAME> was claimed. Both them allegations were denied by the appellant; it urged that the departmental enquiry held by its Officer was fair and just and that fullest opportunity had, been given to the employees to explain their position, and meet the charges framed against them. In regard to <NAME>, it was averred that after the management decided to terminate his services, the order of dismissal was in fact- served on him on let May, 1959. it is in the light of these pleadings that the <ORG> proceeded to deal with the dispute referred to it for its adjudication. It appears that when the trial began before the <ORG>, an application was made by the appellant &eking for permission to lead additional evidence. In this application the appellant stated that some additional evidence had- come to its knowledge since the holding of the enquiry and so production of the said additional evidence may be allowed. Thereupon, the respondents urged that they should also be allowed an opportunity to adduce additional evidence and on the 27th January 1960, the <ORG> ordered that as both parties desired to lead further evidence, permission was granted; and in accordance with this order, evidence had been led before the <ORG> both by the appellant and the respondents. In addition to the evidence thus led, the appellant produced before the <ORG> all the papers of the departmental enquiry containing evidence recorded therein and the report made by the Officer. The <ORG> has held that since the appellant sought for permission to lead additional evidence, it' was open to it to consider the merits of the dismissal of the two employees for itself in the light of the whole of the evidence before it. it took the view that since the appellant wanted. to cite further evidence before it, the jurisdiction of the <ORG> to deal with the merits of the dispute became wider; and considering the evidence from this point of view, it came to the conclusion that the dismissal of <NAME> was not justified and that the findings recorded against him at the departmental enquiry were baseless. In regard to the termination of <NAME>'s services, the <ORG> held that no order of dismissal had been served on him and so it could not be said that his services had been duly terminated by an order of dismissal at all. On these grounds, the <ORG> ordered reinstatement of both the employees and gave them additional consequential reliefs. It is against this order that the appellant has come to this <ORG> by special leave. The first point which Mr. <NAME> has raised before us is that in dealing with the dispute on the merits, the <ORG> has exceeded its jurisdiction. Industrial disputes arising from orders passed by employers terminating the services of their employees have frequently come to this court in appeal and the principles which govern the limits, and the due. scope, of the exercise of the Industrial <ORG>s jurisdiction in respect of such dispute have been examined by this <ORG> on several occasions. It is well-settled that if an employer serves the relevant charge or charges on his employee and holds a proper and fair enquiry, it would be open to him to act upon the report submitted to him by the Enquiry Officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against-the employee as a result of such an enquiry can be challenged if it is shown that the conclusions rea- ched at the departmental enquiry were perverse or the impugned dismissal is vindictive or mala fide, and amounts to an unfair labour practice. In such an enquiry before the <ORG>, it is not open to the <ORG> to sit in appeal over the findings recorded at the domestic enquiry. This <ORG> has held that when an proper enquiry has been held, it would be open to- the Enquiry Officer holding the domestic enquiry to deal with the matter on the merits bona fide and come to his own conclusion.

It has also been held that if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the <ORG> would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the <ORG> is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied test no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the <ORG>. This position also is wellsettled. In regard to cases falling under this last category of cases, it is however open to the employer to adduce additional evidence and satisfy the <ORG> that the dismissal of the employee concerned is justified. And in such a case, the <ORG> would give opportunity to the employer to lead such evidence, would give an opportunity to the employee to meet that evidence, and deal with the dispute between the parties in the light of the whole of the evidence thus adduced before it. There can be little doubt even about this position.

Mr. <NAME> however contends that there can be an intermediate class of oases where the emp-

<NAME> no doubt rests his case on the fact that an enquiry has been held, but apprehensive about the validity, of the enquiry, he seeks for permission to lead evidence to justify his action before the <ORG> and he contends that whenever the emp<NAME> seeks:, to adduce additional evidence before the <ORG> after having produced the papers in regard to the enquiry proceedings, it should he held that the <ORG> is entitled to deal with the merits of the dispute for itself, because the course adopted by the emp<NAME> in seeking to adduce additional evidence should by itself justify an inference that the concedes that the enquiry has not been proper. That is' the view which apparently the <ORG> has taken in the present proceedings and Mr. <NAME> naturally seeks to suppot it.

We do no think that this view can be accepted as correct. In enquiries of this kind, the first question which the <ORG> has to consider is whether a proper enquiry has been held or not. Logically, it is only where the <ORG> is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the finding recorded at such an enquiry are perverse, that the ,<ORG> derives jurisdiction to deal with the merits of the dispute. It, is quite conceivable, and in fact it happens in many cases, that the employer may rely on the enquiry in the first instance and alternatively and without prejudice to his plea that the enquiry is proper and binding, may seek to lead additional evidence. It would, we think, be unfair to hold that merely by adopting such a course, the employer gives up his plea that the enquiry was proper and that the <ORG> should not go into the 'merits of the dispute for itself'. If the view taken by the <ORG> was held to be correct, it would lead to this anamoly that the employer ,would be precluded from justifying the dismissal of his employee by leading . additional evidence unless he takes the risk of inviting the <ORG> to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence it would follow that he gives up his stand bowed an the holding of the domestic enquiry. Otherwise :it may have to be held that in all such came no evidence should be led on the merits unless the issue about the enquiry is tried as,& preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional need be cited by the employer; if the finding on the said issue is against him, permission will have to be given the employer to cite additional evidence,instead of following such an elaborate and somewhat cumbersome procedure. if the employer seeks to lead evidence in addition to the evidence adduced at the departmental enquiry and the employees are also given an opportunity to lead additional evidence, it would be open to the <ORG> first to consider the preliminary issue and then to proceed to deal with the merits in case the preliminary issue is decided against the employer. That, in our opinion, is the true and correct legal position in this matter. Mr. <NAME> however contends that there are two decisions which support the view which has been accepted by the <ORG> in the present case. In that connection, he has invited our attention to the decision of this court in <CITATION> (1). We do not think that this decision supports Mr. <NAME>'s contention at all. The argument which was urged before this <ORG> in that case, and which the court projected, was that in an enquiry before a <ORG> in respect of the dismissal of an industrial employee it would not be open to the employer to adduce additional evidence and justify the dismissal on the merits apart from the enquiry. And this court hold that it would be open to the employer to adduce additional evidence, (1)  2 L.L.J, 644.

It was observed in the course of the judgment that "where there has been a proper enquiry by the management itself, the <ORG>, it has been settled by a number of decisions of this Court, has to accept the finding arrived at in that.,enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide." Then this court proceeded to add that "the more fact no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the <ORG> of its duty to decide whether the case that the work.man has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enqu- iry by the management is for the <ORG> to take evidence of both sides in respect of the alleged misconduct." It would thus be seen that this decision lays down the principle that even if no enquiry has been held and an industrial employee has been dismissed, where a dispute is referred to the Industrial <ORG> for its adjudication, the failure to hold the enquiry would not necessarily be fatal to the employer's case and it would be open to him to justify the dismissal by citing evidence before the <ORG> in support of his that the employee was guilty of misconduct which justified his dismissal. This conclusion cannot by any stretch of imagination support Mr. <NAME>'s contention that as soon as evidence is led by the employer, the plea raised by him on the ground of the enquiry held by him prior to the dismissal of the employee is not available to him and that the <ORG> is at liberty to examine the question and decide it on the merits for itself.

The other decision on which Mr. <NAME> has relied is a judgment delivered by this court in <ORG> v.

<NAME>

Workmen of <ORG> (1). In that case, it appears that all that had happened in the Course of the departmental enquiry held by the employer was that certain questions were put to the employee Dhaneawar to which he gave. answers. When he was asked to sign the statement, he refused to 'do so. Thereafter, no further enquiry was held and it did not appear that Dhaneawar refused to take Dart

-in the enquiry. Before the <ORG>, the sought to justify the dismissal by adducing evidence. It is in the light of these facts that this court observed that from the fact; that evidence was led, "it was practically accepted before the Industrial <ORG> that there was no proper managerial enquiry and it was left to the Industrial <ORG> to decide for itself whether the dismissal of Dhaneswar was justified." Mr. <NAME> reads this sentence literally and contends that it lays down the principles that whenever the employer seeks to lead evidence before the <ORG>, it should be held that he -accepts the position that there was no proper managerial .enquiry. We are satisfied that this literal, and so what mechanical way of reading this solitary sentence in the judgment from 1 its context not justified. Therefore we do not think that there is any authority for the proposition that wherever : the employer seeks to lead additional evidence -before the <ORG> in support of the dismissal of his employee, it must necessarily follow that he has given up his stand based on the previous departmental enquiry and the <ORG> is entitled to examine,the dispute on the merits for itself; and on principle of fair play and justice the said proposition is unsound. That is why we held that the <ORG> was in error in proceeding to examine the evidence for itself in coming to the conclusion that the dismissal of <NAME> was not justified on the merits. It is true. that the <ORG> has observed that the findings recorded (1) (1961) (2) L.L.J. 625, at the departmental enquiry were baseless, but that clearly is the result of its appreciation of the whole of the evidence adduced before it and this course should not have been adopted by the <ORG>.

It appears from the award that no attempt was made before the <ORG> by the respondents to justify their plea that the enquiry was improper or unfair. In fact, as we have already indicated, the <ORG> took the view that because evidence was led by the employer the scope of the enquiry automatically became wider, However, we have heard Mr. <NAME> in support of his argument that in fact the enquiry was unfair. In dealing with this point, it may be necessary to recall that the enquiry in the present case has been very elaborate. As we have already pointed out, eleven witnesses each were examined by both the parties, and documentary evidence was also adduced; and the enquiry Officer has made an elaborate and well-considered report. He has examined the oral evidence cited before him, considered the documents to which his attention was drawn and has also examined the probabilities in the case. Therefore prima facie, it would be difficult to entertain the plea that the enquiry was unfair or that the conclusions reached by the Enquiry Offi- cer were baseless. The record of the enquiry shows that all the witnesses examined by the employer were cross examined by the respondents either to test the record does not show that any opportunity was refused to the respondents either to test the employer's evidence or to lead their own evidence.

Mr. <NAME> however contends that soon after the enquiry commenced, an application was made by the Secretary of the <ORG> to which the two workmen belonged setting forth in detail their objections to the course adopted by the Enquiry Officer (Ex. M/20 dated September 30, 1958). It is true that in this application ten separate grounds had been set out alleging irregularities committed at the said enquiry. But it is significant that no attempt has been made before the <ORG> to justify these allegations. The Secretary who signed that document has given evidence in this case., but he has no personal knowledge about the said allegations and he has said nothing about them. <NAME> has also given evidence but he has also not said anything about those allegations. <NAME> has not given evidence before the <ORG>. Therefore it is quite clear that on the record before the <ORG>, there is no evidence whatever to justify the several allegations made in the document on which Mr. <NAME> relies. That is why we think this ground of attack against the propriety or the fairness of the enquiry must be rejected.

Mr. <NAME> has then contended that a fair opportunity was not given to the respondents when the Enquiry Officer obtained a statement about the actual verification of the carbon consumption. It appears that the Enquiry Officer wanted an actual verification of carbon consumption and go he directed that a sort of mathematical stipulation should be submitted by the management in that behalf That brings out clearly the thorough manner in which the Enquiry Officer conducted the enquiry. The report shows that whilst this material was being prop-.red, the workmen did not cooperate and Mr. <NAME>'s grievance is that they were not given an opportunity to cooperate in this matter. This contention is not justified by the record at all. It appears that <NAME> wanted that he should work the machines when the said material was being collected, and that request was naturally not accepted by the Enquiry officer; but the fact that this request was turned down did not justify <NAME>'s non- cooperation when the calculations were made and documents were prepared in that behalf. Therefore it seems to us, that the Enquiry Officer was justified in criticising the employees for not cooperating with the employer when the said statement was prepared. The argument that, a proper opportunity was not given to the employee in that behalf must there fore be rejected. The result is that the grievance made by Mr, <NAME> before us that the enquiry was unfair or otherwise improper cannot be sustained. If that be, the true position,, it follows that the order of dismissal passed against <NAME> must be sustained.

That takes us to the case of <NAME>, <NAME>. The <ORG> has found that no order of dismissal had been served on him. We have already noticed that this was the specific plea made by the respondents in their statement before the '<ORG> and that had been specifically traversed by the appellant. In support of its plea that the order of dismissal had been served on the employee, the appellant had examined certain witnesses and before deciding the question as to whether the finding of the <ORG> is based on any evidence or not, it may be necessary to consider that evidence broadly. It does appear that a document bad been produced by the appellant (Ex. M/8) which purports to be the order of dismissal and which purports to bear the signature of <NAME>. <NAME>. <NAME>. <NAME> took oath before the <ORG> that signature was not his and that in fact no order had been served on him. He has not been cross-examined on this point. But apart from this aspect of the matter, the evidence given by the appellant in sup. port of its case, that the order of dismissal has been served on <NAME>. <NAME> is so completely discrepant that it must be discarded as worthless. <NAME> who is the Manager of <ORG> Stated that when, he received the. order of dismissal of <NAME>. <NAME>. from the Managing Director's Head Office at Delhi, he gave it to the Assistant Manager to be served on the employee. He no doubt purported to say that it contained the signature of <NAME>. <NAME>; but he knew nothing about-the actual service and so his evidence is not of much assistance. <NAME>, the Assistance Manager stated that he in his trun gave the order of dismissal to his staff to get it served on <NAME>. <NAME>. He frankly stated that Mobd. <NAME> did not put his signature on the order in his presence, and so his evidence also does not help. It would be noticed that the evidence of <NAME> and <NAME> makes it clear that neither of them was present when the order was alleged to have been served on <NAME>. <NAME>. Now, when we come to the evidence of <NAME>, he stated that the order was given by Mr. <NAME> to <NAME>. <NAME> in his presence. In other words, the evidence of this witness purports to show that the order of dismissal was served on <NAME>. <NAME> by the Assistant Manager in the presence of this witness, and that clearly is inconsistent with the testimony of <NAME> himself. Similarly, <NAME> stated that <NAME>, <NAME> and <NAME> were all present when the order was served, so that this witness went one step further when he stated that not only the Assistant Manager but the Manager was also present when the order was served. Having regard to the nature of this evidence there is no difficulty in appreciating how the tribunal came to the conclusion that the appellant had failed to prove its allegation that the order of dismissal had been served on <NAME>. <NAME>. It is to be regretted that the appellant should have taken this plea and should have sought to support it by such discrepant and worthless evidence.

That takes up to the question as to the proper order which should be passed in respect of <NAME> <NAME>. The grievance made by the respondents before the <ORG> was that <NAME> <NAME> had been suspended from September 11, 1958, and had continued under suspension ever since. That is why they claimed that be was entitled to reinstatement 'Mr. <NAME> contends that though it may not be Possible for him to rely on the evidence led by the appellant in support of its plea that the order of dismissal had in fact been served on <NAME> <NAME>. it would be open to him to contend that atleast on the date of reference <NAME> <NAME> had; notice -,that he had been dismissed and so the relationship of master and servant should be deemed to have been terminated from that date in any event. We are not prepared to accept this argument, particularly when we are satisfied that the appellants has taken a different plea and sought to support it by evidence which it should not have done of the employer and the employee can be effectively terminated in such a case not merely by the decision of the employer to terminate the employee's services but by the communication of the said decision to the employee; and as it happened, such a communication had not been made even till the date when the award was pronounced. We are told by Mr. <NAME> to-day, and Mr. <NAME> concedes, that effective steps have now been taken by the employer to terminate the services of <NAME> <NAME> and that from to-day in any case he is not an employee of the appellant. That being so, the further question which we have to consider is the amount which we should direct the appellant to pay to <NAME> <NAME>. Mr. <NAME> has fairly conceded that in the model standing orders usually a provision is made that if an industrial employee is suspended pending an enquiry into his misconduct the period of suspension should not extend beyond a fortnight. There are no standing orders in the appellant's concern and Mr. <NAME> has therefore requested us to hold that the suspension of <NAME> <NAME> was reasonable for the period of the enquiry before he is held entitled to claim his wages from the appellant. We are inclined to, accept this argument partially; because in the circumstances of this case, we think it would be fair to hold that the order of suspension passed on, <NAME> <NAME> on September 11, 1958 was justified until December 1, 1958; and so we direct that from December

1. 1958 until to-day the appellant should, pay <NAME> the wages to which, he would have, been entitled if he had been in the, actual employment of the appellant and had been working in its concern from day to day.

The result is the appeal partially succeeds. The order of reinstatement passed by the <ORG> in favour of <NAME> is set aside and his dismissal is affirmed; and an order is made against the appellant to pay <NAME> wages as indicated. <NAME> would not be entitled to reinstatement. There would be no order as to costs. Appeal allowed in part.


PETITIONER: STATE OF GUJARAT Vs. RESPONDENT: BAI FATIMA & ANR. DATE OF JUDGMENT19/03/1975 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A. CITATION: 1975 AIR 1478 1975 SCR (3) 933 1975 SCC (2) 7 CITATOR INFO : F 1975 SC1674 (19,20) R 1975 SC1703 (6,9) R 1976 SC2263 (11) RF 1977 SC2226 (5) RF 1988 SC 863 (17) ACT: Evidence--Appreciation of--Right of private defence--How established. HEADNOTE: Respondents Nos. 1 and 2 were mother and daughter. The deceased was the brother-in-law of respondent No. 1. For some days before the date of the Occurrence, the relations between the two families were none too cordial. On the clay of the occurrence there was a scuffle between the respondents and the deceased. A little later, when the deceased was sitting in the house of his father-in-law in the opposite row of houses, respondent No. 1 was alleged to have gone to the deceased with a stick to beat him. Some neighbours intervened and tried to pacify both the parties. When the deceased was going out, respondent No. 1 put her leg across the legs of the deceased, as a result of which he fell down on his back. Respondent No. 2 immediately caught hold of both the hands of the deceased and respondent No. 1 is stated to have squeezed his testicles and pulled them. Eventually the deceased succumbed to the injury. After the incident respondent No. 1 lodged a complaint before the police stating that the deceased, his wife and his mother-in-law caught hold of her and gave her blows and kicks with a stick as a result of Which she fell down. Holding that the prosecution case was proved beyond reasonable doubt, the Sessions Judge convicted respondent No. 1 under S. 304, Part-I I.P.C . Respondent No. 2 was convicted under s. 323 read with s. 144 , I.P.C . On appeal, <ORG>, even after believing the main part of the occurrence, acquitted respondent No. 1 of the charges levelled against her and consequently respondent No. 2 also on the ground that she must have done so in exercise of her right of private defence inasmuch as she must have squeezed the testicles of the deceased when be was showering blows with a stick on her in order to protect herself. Allowing the appeal of the <ORG>. HELD : (1) The trial Court was right in believing the evidence of the proSecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident. <ORG> differed from the view of the trial judge on flimsy and unsustainable grounds. [998 D- E] (2) There was absolutely no basis or material on the record to enable <ORG> to record an order of acquittal in favour of the respondents by extending them a right of private defence. Even going to the maximum extent in favour of the respondents that respondent No. 1 got the blows with a stick at the hands of the deceased and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death. The counterattack could in no sense be an attack in exercise of the right of private defence. [100 F-G] (3) Neither in her complaint before the police nor in the statement under s.342 Cr. P.C. Was there a whisper by respondent No. 1 of her having squeezed the testicles and private parts of the deceased in exercise of her right of private defence. Not only was the plea of private defence not taken by the respondents in their statements under s. 342 , Cr. P.C. but no basis for the plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. The burden of establishing that plea was not discharged in any way by the respondents even applying the test of preponderance of probabilities in favour of that plea. There is absolutely no material on the record to lead to any such conclusion. [999 G-H] Munhi Ram and Others v. <ORG> [19681 2 S.C.R. 455, followed. 994 JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of 1971.

Appeal by special leave from the judgment & Order dated the 17th July, 1970 of <ORG> in Crl. A. Nos. 287 and 128 of 1969.

<NAME> and <NAME>, for the appellant. <NAME>, <NAME> and <NAME>, for the respondents.

The Judgment of the Court was delivered by UNTWALIA, J.-There is a locality known as Nani Malokoad in the town of Kaloy, District Mehsena, Gujarat. In this locality is a road (lane) running north to south. <NAME>, respondent no. 1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of <NAME>. He had a younger brother named <NAME>. The victim of the occurrence is the said <NAME>. Both the brothers had their houses adjacent to each other in this lane facing east. The northern one was in occupation of and belonged to the deceased and the southern one was of Allarakha. There are a number of other houses situated around the houses of the two brothers. One such house is of <NAME> facing west abutting the road, two houses north of the house of the deceased. <NAME> is the son of <NAME>, father-in-law of the deceased <NAME>.

In the month of June, 1968 a complaint. was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that <NAME>, husband of respondent no.1 was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality. That had caused friction between the families of the two brothers.

On 27.6.1968 according to the prosecution story there were two incidents in the <NAME> i.e. space on the road in front of the houses of the parties-.one was at 5.30 p.m. and the other at 6.30 p.m. The, prosecution case is that a she-goat of <NAME> strayed in the house of <NAME>. 'She began giving blows to the goat. There, were altercations between the members of the families of the, two brothers. Res- pondent no.2. who is a married daughter of respondent no.1 and her son <NAME> who was 15 years old on the date of occurrence were also present at the time of this quarrel. They threw stones which hit P.W.3 <NAME>, wife of deceased <NAME>, one <NAME> and <NAME>-a neighbourer and a close relation of <NAME> Respondent no.1 is said to have come out with a stick from her house, and went to <NAME> to strike him. One <NAME>-a close neighbour came there, caught hold of the stick, quietened respondent no. 1 and sent her back to her house The second part of the story is that <NAME> and <NAME> went and sat in the <NAME> of <NAME> son of <NAME>, father-in-law of <NAME>. Respondent no. 1 about an hour later went with a stick in her hand and hurled a blow on <NAME>. <NAME> intervened and got the blow on her right hand finger. <NAME> directed respondent no.1 to go back to her house by gestures of his hand and he also proceeded and pushed her towards her house. When <NAME> reached the <NAME> of his house, respondent no.1 is said to have put her leg across his legs with the result that he fell down on his back. Respondent no.2 caught hold of the hands of <NAME>. Respondent no.1 sat on his legs and squeezed his testicles and pulled them. The boy <NAME> is said to have bitten the deceased on the left shoulder. <NAME> thereafter was made to recline on a cot. Eventually he. died of the shock due to the pressing of his private parts by respondent no.

1. Information was sent to the Police Station. A complaint of <NAME> was recorded at about 10.30 p.m. <NAME> was sent for trial before <ORG>. Respondent nos. 1 and 2 were tried by the Sessions Judge, <NAME>. The learned Sessions Judge held the prosecution story to be proved beyond reasonable doubt in all material particulars. Finding that the injury caused to <NAME> in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted respondent no.1 under section 304 Part-I of the Indian Penal Code and sentenced her to undergo rigorous imprisonment for 7 years. She was further convicted under section 323 and was given a concurrent sentence for 3 months under this count. Respondent no.2 was convicted of an offence under section 323 read with section 114 of the Penal Code and was sentenced to undergo rigorous imprisonment for 3 months. The respondents filed an appeal in <ORG> from the order of conviction recorded against them and the <ORG> went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respondent no.2 The <ORG> appeal was dismissed by <ORG> and that of the respondents allowed. The <ORG> came to this Court and obtained special leave from the judgment of acquittal recorded by <ORG> in the respondents appeal. The dismissal of the <ORG> appeal by <ORG> is final.

The three eye witnesses to the occurrence are <NAME>, <NAME> and <NAME>. The latter two are neighbourers and related to <NAME>. The Trial Judge believed their evidence. He also believed the evidence of <NAME>-a close neighbour of the parties to whom an oral dying declaration is said to have been made by <NAME> before his death. It may be stated here that <NAME> was sitting in the Bazar at some distance from the place of occurrence in the evening of the 27th June, 1968. He got the information at about 9.45 p.m. about the death of <NAME>. He rushed to the Police Station and merely informed about his death. It is also necessary to note here that respondent no.1 had received some injuries on her person in either of the incidents which took place on the evening of 27th June, 1968. Prosecution did not explain the injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 5.30 p.m. and not in the second which was the subject matter of the charge against the respondents.

<ORG> has held in favour of the prosecution on the main part of the occurrence, namely, squeezing of the testicles of the deceased by respondent no.1 as a result of which he died. Yet it has disbelieved the prosecution case in regard to some other aspects. It has not accepted the prosecution story that there were two incidents in the evening. Nor has it accepted the version that shortly after the first incident <NAME> and <NAME> had gone to the <NAME> of <NAME>. The, story of falling down of the deceased by the tripping of his legs by respondent no.1 has been discarded by <ORG>. So also the evidence of <NAME>. Even after believing the main part of the occurrence <ORG> has exonerated respondent no. 1 of the charges levelled against her and consequently respondent no.2 also on the ground that she must have done so in exercise of her right of private defence in as much as she must have squeezed testicles of the deceased when he was showering blows with a stick on respondent no. 1 in order to protect herself.

In our opinion there are two many conjectures, surmises and contradictions in the judgment of <ORG>. The respondents bad not examined any witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which resulted in' his death. <ORG> has said in its judgment :-

(1) "There is also no doubt that since some days prior to the date of the incident the relations between the deceased and the family of accused no.1 were not cordial." (2) "There is no doubt that a quarrel did arise on that day" (meaning thereby the date of occurrence "between the deceased and accused no. 1 in respect of a goat." (3) "It is very reasonably clear that the squeezing of the testicles of the deceased was in all probability the act of accused no.1" (4) "There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening that day at round about 8.30 p.m."

On the findings aforesaid if the claim of right or private defence put forward on behalf of respondent no.1 was untenable as we shall show hereinafter it was wholly so, then it is plain that <ORG> ought not to have interferred with the order of conviction recorded by <ORG>. Even in face of the said findings <ORG> criticized the prosecution case as regards some details of the occurrence or the ,incidents and rejected a good portion of it. We shall briefly show that the said rejection by <ORG> was wholly unjustified.

There were two incidents according to the prosecution case which happened in the evening at an interval of about an hour. <ORG> says it was not so and says so without any basis. The prosecution did not stand to gain anything by splitting up the evening incident in two parts. Even in the First Information Report, Ext.32 recorded at 10.30 p.m. in the night the two incidents were separately narrated. There was absolutely no reason for the <ORG> to interfere with the findings of <ORG> in that regard. The <ORG> does not accept the prosecution story that deceased <NAME> had gone to the `<NAME> of Jamiyatkhan and respondent no. 1 went there as an aggressor with a stick in her hand. This story has been discarded on the ground that it is not mentioned in the First Information Report nor in the statements of the other two witnesses before the police. We may observe again that the prosecution did not stand to gain anything by unnecessarily or falsely introducing the story of <NAME>'s going to the <NAME> of his father-in-law. The main occurrence happened in the <NAME> of <NAME>. The places are so very near that the story of <NAME> going to the <NAME> of his father-in-law was not an important one to be remembered by the witnesses to be recited before the police. It mattered little whether respondent no.1 went as an aggressor to the <NAME> of the deceased or a bit further North to the <NAME> of Jamiyatkhan.

<ORG> also discarded the story of the tripping of the legs of <NAME> because it is not mentioned in the First Information Report. But then it ought to hive been noticed that no such contradiction was to be found in the evidence of P.Ws 4 and 6 in <ORG> and their statements before the police. It must, therefore. be presumed that they had given out the tripping story before the police.

<ORG> has not thought it safe to rely upon the evidence of the three eye witnesses none of whom was found to be disinterested in the prosecution. The comment is that <NAME> and <NAME> who lived in the house opposite to the deceased have not been examined by the prosecution. According to the prosecution, case the said <NAME> had merely quietened respondent no. 1 in the first incident and <NAME> came after the second incident was over. In material particulars we find the evidence of the eye witnesses very convincing and natural. In our opinion <ORG> was not justified in thinking that it was not safe to rely on their evidence wholly and specially when the main part of the occurrence which fastened the guilt on respondent no.1 was not disbelieved.

Absence of any details in the statement recorded at the police station on the basis of the information given by P.W. 8 <NAME> unnecessarilly led <ORG> to remark that no one knew upto 10.00 on as to how <NAME> died. This contradicts the earlier findings of <ORG> that he died as a result of the squeezing of his testicles by respondent no.1 <NAME>, according to his evidence did not get the details of the occurrence and so did not give any to the police.

<ORG> has given 3 or 4 reasons for discarding the evidence of <NAME> to whom the oral dying declaration is said to have been made by the deceased. The first reason given by <ORG> is that when this witness went near <NAME> the three women who claimed to have witnessed the occurrence were sitting near him; none of them related the story to <NAME>. When. he put a question to <NAME> who being in a position to give the answer gave it, it was not necessary for him to talk to the women thereafter. <NAME> was the person who had gone to call Dr. <NAME> to examine <NAME>. Dr. <NAME> came at 8.30 p.m. and declared him to be dead. It was not necessary for <NAME> to relate the details of the occurrence to Dr. <NAME> as he himself had not witnessed it Another reason given for discarding the evidence of <NAME> is with reference to the evidence of <NAME> that upto 10.00 p.m. no one knew the exact reason for the death of <NAME>. Having accepted the prosecution story about the cause of his death it was unnecessary to dilate upon the matter any further. <ORG> has not disbelieved the lodging of the complaint before the police on the statement of <NAME> at 10.00 p.m. The last reason given is the non-examination of Dr. <NAME> by the prosecution. His evidence was of no use to it and the comment of <ORG> is not, therefore, justified.

We have unhesitatingly come to the conclusion that <ORG> was right in believing the evidence of the prosecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident. <ORG> differed from the view of the Trial Judge on flimsy and unsustainable grounds.

Now we come to deal with the question of right of private defence. It is no doubt true that the prosecution did not explain the injuries on the person of respondent no.1. P.W.5 Dr. <NAME> who had examined the injuries on the side of the prosecution also examined' <NAME>, respondent no.1 when she was sent to him by the police. <NAME> Bibi had lodged a complaint before, the police which was; found to be a non-cognizable offence at about 8.00 p.m. on 27-6-1968. That is Ext-44. In this complaint she stated that her young one of the goat had gone in the <NAME> of <NAME>. Three persons named' in the complaint were <NAME>, <NAME>, mother-in-law of <NAME> and <NAME>, his wife. The two ladies caught hold of her Odhana and began to give her blows. of kicks and fists <NAME> gave stick blows on the right hand and so she fell down on the ground and began to shout. The injuries found on the person of <NAME> Bibi were 5 in number. Three contusions on the right forearm, one contusion on posteric-parietal part of right side of scalp and one contusion on scapular part of right side of back. The injuries were all of minor character. In her statement under section 342 of the Code of Criminal Procedure, 1898 respondent no. 1 stated almost the same story and added that <NAME> was drunk while he was abusing her. Neither in Ext.44 nor in the statement under section 342 there was a whisper by by respondent no.1 of her having squeezed the testicles and the private part of <NAME>. Nothing was stated to give any inkling of her having squeezed the testicles of <NAME> in exercise of her right of private defence to protect her from further assault. Nor was any evidence adduced in Court to give any counter version of the occurrence. No foundation was laid to enable the court to acquit the respondents granting them a right of private defence. It did require a pure conjecture and imagination to hold the respondents not guilty by extending to them the right of private defence.

In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow :

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

Question is in which category the present case falls ? In <NAME> and others v. Delhi Administration(1) <NAME>, J delivering the judgment of this Court has said at page 458 "It is true that appellants in their statement under section 342 Cr. P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-

examination of the prosecution witnesses as well as by adducing defence evidence. It is well-settled that even if an accused does not plead self-defence, it is open to the <ORG> to consider such a plea if the same arises from the material on record-see In Re-jogali Bhaige Naiks and another A.I,R. 1927 Mad. 97. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."

In the instant case not only the plea of private defence was not taken by the respondents in their statement under section 342 but no basis for that plea was laid in the cross-examination of the prosecution witneses or by adducing any defence evidence. In our opinion the burden of establishing that plea was not discharged in any manner by the respondents even applying the test of preponderance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. We do not think that the Trial Judge was right in assuming that respondent no. 1 must have received the injuries in the first incident. It may well be that she received the injuries in the second incident. Since prosecution did not come forward to show in what manner she received these (1)  (2) S.C.R. 455.

injuries, assumption can be made to the farthest extent in favour of the respondents that respondent no.1 received the injuries with a stick, may be at the hands of <NAME> or any other person on his side. But surely the assumption could not be stretched to the extent it has been done by <ORG>. <ORG> is not right in saying that by the tripping of the legs <NAME> would have fallen on his face and not on his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The other error committed by <ORG> is when it says :, "It appears to us to be more probable that while the quarrel was going on in the <NAME> of the deceased and the deceased was delivering blows of stick on the accused no. 1, she squeezedhis testicles in order to liberate herself from his attack. It appears that she did so while the deceased was standing and giving blows on her."

The deceased was wearing a pant and it is impossible to imagine that the, squeezing of the testicles could be done by respondent no. 1 to the extent of causing his death soon after the squeezing when <NAME> was in a standing position. In that position he could have at once. moved back and liberated himself. The extent of squeezing done in this case was possible only if respondent no. 1 could sit on his legs after he bad fallen down at his back. This lends further support to the prosecution story that respondent no. 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent no. 1 on his legs. In our opinion, therefore, there was absolutely no basis or material in the records of this case to enable <ORG> to record an order of acquittal- in favour of the respondents by extending them a right of private defence. Even going to the maximum in favour of the respondents that respondent no.1 got the blows with a stick at the hands of <NAME> and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death. The counter-,attack could in no sense be an attack in exercise of the right of private defence.

In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before <NAME> is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent no. 1. The prosecution case is not shaken at all on that account. 1n our judgment this is a case which falls in the third category as enumerated above. In agreement with <ORG>, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt.

For the reasons stated above, we allow this appeal, set aside the order of <ORG> and restore that of <ORG> as against respondent no. 1 as respects her convictions and sentences and as against respondent no. 2 only in regard to her conviction. It is no use sending the young girl back to jail for a few months. While maintaining her conviction under section 323 / 114 of the Penal Code, we reduce her sentence to the period already undergone. P. B. R. Appeal allowed.

<NAME>


PETITIONER: SALES TAX OFFICER, <NAME> AND ANOTHER Vs. RESPONDENT: M/S. SHIV RATAN G. MOHATTA DATE OF JUDGMENT: 12/02/1965 BENCH: <NAME>, S.M. BENCH: <NAME>, <NAME>, <NAME>CJ) <NAME>, M. <NAME>, J.C. CITATION: 1966 AIR 142 1965 SCR (3) 71 CITATOR INFO : RF 1975 SC1652 (12) ACT: Constitution of India. Arts. 226 and 286(1)(b)--Questions of fact to determine whether sale in the course of import--Therefore if <ORG> sales tax leviable--Whether should be decided in writ proceedings. HEADNOTE: The Sales Tax Officer rejected the assessed's claim that he was not liable to be assessed to sales tax in respect of certain .sales of cement imported from Pakistan because (i) he was not a. dealer within the meaning of s.2(f) of the Rajas than Act 29 of 1954, and (ii) the sales in question were in the course of the import within the meaning of Art. 286(1)(b) of the Constitution. In the order of assessment, there was no discussion of the question of applicability of Art. 286(1) (b). The assessee therefore filed a petition under Art. 226 challenging the assessment order on the grounds taken before the Sales Tax Officer and also claiming that the latter had failed to consider the impact and effect of Art. 286(1)(b) on the facts of the case. The <ORG> objected to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but <ORG> overruled this objection for the reason, inter alia, that the petitioner had challenged the appellant's jurisdiction to assess him to. sales tax in view of the. provisions of Art. 286(1) (b). Upon dealing with the merits of the case, <ORG> held that on the facts of the case it was clear that the sales in question took place when the goods were in the course of import and therefore, by virtue of Art. 286(1)(b) were not liable to sales tax. The court therefore quashed the order of assessment. On appeal to this Court, it was contended on behalf of the <ORG> that <ORG> should have refused to entertain the petition as many of the crucial facts had not been brought on the record by the respondent, and further-more, it was not established that the cement was sold in the course of import into India. HELD: <ORG> should not have decided the disputed questions of fact, but should merely have quashed the assessment order on the. ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case. [77 B] OBITER: <ORG> should have declined to entertain the petition, as in this case there were no exceptional circumstances to warrant the exercise of the extraordinary jurisdiction under Art. 226. It was not the object of Art. 226 to convert <ORG> into original or appellate assessing authorities whenever the assessee chose to attack an assessment order on the ground that a sale was made in the course of import and was therefore exempt from tax. The fact that an assessee might have to deposit sales tax when filing an appeal could not in every case justify his bypassing the remedies provided by the Sales Tax Act . There must be something more in a case to warrant the entertainment of a petition under Art. 226 , something going to the root of the jurisdiction of the Sales 72 Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. [75 <CITATION> , A.I.R. 1961 S.C. 1506, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 652 of 1964, Appeal from the judgment and order dated May 7, 1963 of <ORG> in D.B. Civil Misc. Writ Petition No. 157 of 1962.

<NAME>, Advocate-General for Rajasthan. <NAME>, for the appellants.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, J. This appeal by certificate of fitness granted by <ORG> is directed against its judgment dated May 7, 1963, quashing the order of assessment dated March 5, 1962, made by <ORG>, Jodhpur City, in so far as it levied sales tax on the turnover of Rs. 23,92,252.75 np.

The respondent, <ORG> <NAME>, which is a partnership firm having its head office at Jodhpur, hereinafter referred to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed to sales tax in respect of the above turnover because, firstly, the assessee was not a dealer within s. 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXlX of 1954) with respect to this turnover, and secondly, because the sales were in the course if import within Art. 286 (1)(b) of the Constitution. Although the Sales Tax Officer set out the facts of the case relating to the second ground, he deemed it sufficient to assess this turnover on the ground that the assessee was a dealer within s. 2(f) of the Rajasthan Sales Tax Act, without adverting to the second ground. The facts on which the assessee had relied upon to substantiate his second ground were these. <ORG>, Hyderabad (Pakistan), hereinafter called <ORG>, manufactured cement in Pakistan. <ORG>, hereinafter called <ORG>, entered into an agreement with <ORG> Milkhiram and <ORG>, Bombay, for the export of cement manufactured in Pakistan to India. <ORG> of India entered into an agreement with the said <ORG> Milkhiram & Sons for the purchase of, inter alia, 35,000 long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan. <ORG> appointed the assessee as its agent, broadly speaking, to look after the import and the sale of the imported cement. The modus operandi adopted by the assessee for the sale of the cement was as follows. It would obtain from a buyer in Rajasthan an order under an agreement, a sample of which is on the record The agreement fixed the price and the terms of supply. By one clause the assessee disclaimed any responsibility regarding delay in dispatch and non-receipt of consignment or any loss, damage or shortage in transit due to any reason whatsoever. The agreement further provided that "all claims for loss, damage or shortage, etc., during transit will lie with the carriers and our payments are not to be delayed on any such account whatsoever." It was further provided in the agreement that the dues were payable in advance in full, or 90% in advance and the balance within 15 days of billing plus sales tax and other local taxes. Clause 6 of the agreement is in the following terms:

"A Post Card Loading Advice will be sent to you by the Factory as soon as the wagons are loaded in respect of your orders, and it will be your responsibility to arrange for unloading the consignment timely according to Railway Rules. Ourselves. and the suppliers will not be responsible for demurrage etc. on any account whatsoever. If the consignment reaches earlier than the Railway Receipt, it is the responsibility of buyer to arrange for and get the delivery timely against indemnity bond etc. All the Railway Receipts etc. will be sent by registered post by the Suppliers in Pakistan.".

After this agreement had been entered into, the assessee would send despatch instructions to <ORG>. These instructions indicated the name of the buyer-consignee and the destination, and provided that the railway receipt and D/A should be sent by registered post to the consignee. These instructions were sent with a covering letter to <ORG> requesting that these instructions be passed on to <ORG> for necessary action. <ORG> would then forward these despatch instructions to <ORG>. Later, <ORG> would advise the consignee that they had "consigned to <ORG>, Karachi, the particular quantity as per enclosed railway receipt and invoice." <ORG>, Karachi, would endorse the railway receipt in favour of the consignee and send it to him by post. The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt. The Sales Tax Officer did set out most of these facts and the contentions of the assessee in the assessment order but disposed of the case with the following observations:

"All the above went to prove that the assessee was an Agent of the non-resident dealer for the supplies in the State. The Assessee was an importer and hence submitted an application to <ORG> for the same. It booked orders and issued sale bills. Under the terms of an agreement of appointment of Agent, sale was to be effec-

ted by the Agent. Again while obtaining orders from the buyers under condition 5 Sales Tax was to be paid by the buyers to the assessee. Thus to all intents and purposes the assessee is a dealer who is liable for payment of Sales Tax to the State. They have rightly collected this amount from the buying dealers and retained with them. This should come to the Government.".

We can find no discussion in the order on the question raised by the assessee that the sales were made in the course of import within Art. 286(1)(b) of the Constitution.

The assessee then filed a petition under art. 226 of the Constitution and raised two contentions before <ORG>, namely, (1) that the Sales Tax Officer failed to consider the impact and the effect of Art. 286(1)(b) on the facts of the case, and (2) that the Sales Tax Officer illegally held that the petitioner for all intents and purposes was a dealer liable to pay sales tax. The <ORG> raised an objection to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but <ORG> overruled this objection on the ground that "the contention of the petitioner is that in view of Art. 286(1)(b) of the Constitution, the respondent had no jurisdiction to assess the petitioner to pay the sales tax on the sale of goods in the course of the import into the territory of India", and that even if there was no total lack of jurisdiction in assessing the petitioner to pay sales tax. the principle enunciated in <NAME> v Ram chand <NAME> (1) applied, and it was a case which should not be dismissed in litnine.

Then <ORG> proceeded to deal with the merits of the case. It first dealt with the question whether the petitioner was a dealer within the meaning of s. 2(f) of the Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said s. 2(f) .

Then it proceeded to deal with the question whether the sales had taken place in the course of import. <ORG> held that in the circumstances of the case these sales had not occasioned the movement of goods but it was the first sale made by <ORG> and Sons to <ORG> which had occasioned the movement of goods. Secondly, it held that in the circumstances of the case "the property in goods after the delivery had been taken by the petitioner on behalf of <ORG> passed to <ORG> and simultaneously to the ultimate buyers. Thus the property in the (1) [1962] 1 S.C.R. 753.

goods passed to the ultimate buyers in Rajasthan when the goods had not reached the territory of India and were in course of import. In view of the authority of their Lordships of <ORG> in <CITATION> , ('), it must be taken that the sale took place when the goods were in the course of the import and they should not be liable to the payment of the Sales Tax by virtue of Art. 286(1)(b).". In the result, <ORG> quashed the order of assessment in so far as it sought to levy tax on the turnover in dispute. The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from <ORG> filed this appeal.

The learned Advocate-General has raised two points before us: First, on the facts of this case <ORG> should have refused to entertain the petition, and secondly, that it has not been established that the cement was sold in the course of import within Art. 286(1)(b). Regarding the first point, he urges that an appeal lay against the order of the Sales Tax Officer; no question of the validity of the Sales Tax Act was involved and the taxability of the turnover depended on where the property passed in each consignment. This involved consideration of various facts and, according to him.the crucial facts had not been brought on the record by the assessee on whom lay the onus to establish that the sales were in the course of import. He says that the assessee should have proved that each railway receipt was endorsed by <ORG>, Karachi, to the buyer before each consignment crossed the frontier.

We are of the opinion that <ORG> should have declined to entertain the petition. No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under Art. 226. It was not the object of art. 226 to convert <ORG> into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing an appeal. Even if this is so. does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales Tax Act ? Surely not. There must be something more in a case to warrant the entertainment of a petition under art. 226 , something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. But as <ORG> chose to entertain the petition, we are not inclined to dismiss the petition on this ground at this stage.

(1)[1960] 2 S.C.R. 852.

Regarding the second point, the learned Advocate- General .argues that the onus was on the assessee to bring his case within Art. 286(1)(b) of the Constitution in respect of the sales to the various consignees. He says that there is no evidence on record as to when <ORG> endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and without this evidence it cannot be said that the title to the goods passed to the ultimate buyer at Khokhropar or in the course of import. He further urges that it would have to be investigated in each case as to when <ORG> endorsed the railway receipt and when the goods crossed the customs barrier. He says that it is not contested that the ultimate buyer took delivery of goods without producing the railway receipt by virtue of special arrangements entered into with the railway, and according to him. it is only when the delivery was taken by the buyer in Rajasthan that the title passed. By that time, according to him, the course of import had ceased.

We do not think it necessary to consider the various arguments addressed by the learned Advocate-General or the soundness of the view of <ORG> on this point, because we are of the opinion that <ORG> should not have gone into this question on the facts of this case. The Sales Tax Officer had not dealt with the question at all, and it is not the function of <ORG> under art. 226 , in taxing matters, to constitute itself into an original authority or an appellate authority to determine questions relating to the taxability of a particular turnover. The proper order in the circumstances of this case would have been to quash the order of assessment and send the case back to the Sales Tax Officer to dispose of it according to law. Under the Rajasthan Sales Tax Act, and other Sales Tax Act s, the facts have to be found by the assessing authorities. If any facts are not found by the Sales Tax Officer, they would be found by the appellate authority. and it is not the function of <ORG> to find facts. <ORG> should not encourage the tendency on the part of the assesses to rush to <ORG> after an assessment order is made. It is only in very exceptional circumstances that <ORG> should entertain petitions under art. 226 of the Constitution in respect of taxing matters after an assessment order has been made. It is true, as said by this Court in <CITATION> (1) that it would not be .desirable to lay down inflexible rules which should be applied with rigidity in every case, but even so when the question of taxability depends upon a precise determination of facts and some of the facts are in dispute or missing, <ORG> should decline to decide such questions. It is true that at times the assessee alleges some additional facts not found in the assessment order and the <ORG>, after a fresh investigation, admits these facts, but in a petition under art.

(1)[1962] 1 S.C.R. 753.

226 where the prayer is for quashing an assessment order, <ORG> is necessarily confined to the facts as stated in the order or appearing on the record of the case. In this case, as already indicated, we have come to the conclusion that <ORG> should not have decided disputed questions of fact, but should merely have quashed the assessment order on the ground that the <ORG> had not dealt with the question raised before him and remanded the case. Accordingly. we allow the appeal, set aside the order of <ORG>, quash the assessment order in so far as it relates to the. turnover of Rs. 23,92.252.75 up, and remit the case to the <ORG> to decide the case in accordance with law. He will find all the facts necessary for the determination of the question and come to an independent conclusion untrammeled by the views expressed by <ORG>. We may make it clear that we are not expressing any view whether the finding of <ORG> that the property in the goods passed simultaneously at Khokhropar to <ORG> and the ultimate buyer is correct or not. There would be no order as to costs in this appeal. Appeal allowed.

B(N)3SCI --7