JUDGMENT <NAME>, J.

1. This appeal under special leave is directed against the judgment passed by <ORG> at Jabalpur disposing Criminal Reference No. 1 of 1977 submitted by the learned Sessions Judge, Raipur under Section 366(1) of the Criminal Procedure Code for confirmation of the sentence of death awarded by him in Session Trial No. 5 of 1977 and the Criminal Appeal No. 307 of 1977 preferred by the appellant, <NAME> challenging the correctness and legality of the judgment made by <ORG> convicting him under Sections 302 and 201  and sentencing to death and to undergo rigorous imprisonment for 3 years respectively.

2. The facts of the case briefly stated are as follows.

3. The deceased <NAME>, who was 19 years of age at the time of occurrence in 1976 was the son of <NAME> who was employed in Bhatapara as Laboratory Assistant in <ORG>. He hailed from West Bengal. The appellant, aged about 22 years, is a cousin of <NAME>.

4. <NAME> was living with his wife (PW-2), his only daughter, aged about 15 years namely <NAME> @ Bina and the appellant in Bhatapara in the house of PW-11. The deceased who was a student in <ORG> had come to Bhatapara during the summer vacation.

5. Though the motive for the appellant to murder <NAME>, as put forth now by the prosecution, is that there was a quarrel between <NAME> and the appellant on some money matters, the real motive seems to be a story of shameful intrigue as disclosed from the evidence of PW-2, the wife of <NAME>. According to PW-2, her husband <NAME> was a man of very bad and indecent character and he was living in a private hell of his own satisfying his lust with his own daughter, <NAME>. In the cross-examination also PW-2 affirms that her husband had illicit relations with <NAME>. On account of this abnormal sexual and obnoxious behaviour of <NAME>, there used to be frequent quarrels between PW-2 and her husband. It further transpires from the evidence that the appellant who was none other than the cousin brother of <NAME>, was also making overtures to <NAME> and this was resented by the deceased <NAME> who was in the prime of his youth.

6. During that summer vacation, PW-2 along with her daughter <NAME> had been to her village Gangoria, leaving her husband the appellant and the deceased at Bhatapara. Sometimes later, <NAME> also came to the village where PW-2 and her daughter <NAME> were staying. After the arrival of <NAME>, PW-2 left the village taking her daughter with her to Bhadria by travelling in a bus. But even before she reached Bhadria, she sent her daughter back to Gangoria from Barasal probably a place in the mid-way between Gangoria and Bhadria. In Gangoria, <NAME> mother and brother were living.

7. <NAME> came to Bhadria from Bhatapara. By that time <NAME> also came there. PW-2 took a strong objection to the conduct of her husband coming to Bhadria and had a quarrel with him. Then she sent <NAME> back to Gangoria on the very next day of the arrival of her husband. Thereafter PW-2 and her husband went to the village Mongram where the appellant also joined with them. It may be stated that the appellant's parents and brothers were residing at Mongram. At Mongram PW-2 made enquiries with the appellant about her son <NAME> to which the appellant replied that <NAME> had gone to Bombay in search of some employment. Leaving the appellant and <NAME> at Mongram PW-2 went Gangoria. After some days PW-2 with her mother came to Bhatapara and asked her husband and the appellant about her son <NAME> to which both of them replied that <NAME> had pone in search of a job somewhere. PW-2 asked them to make a search of her son and if they failed to do so, she would herself make a search by handing over a photo of her son to the Police.

8. Be that as it may, it appears from the evidence that the deceased was last seen with the appellant in Bhatapara on 8.6.76. On 11.6.76, a headless body of a male without the limbs was found by PW-1 and the villagers in a field at Bhatapara. Some of the limbs of the body were also found at different places on the same day. At about 8.15 AM on 11.6.76, PW-1 lodged a report (Ex P-1) before PW-20, the then <ORG> of <ORG>. On the basis of Ex P-1, the First Information Report, P-57 was prepared.

9. PW-20 took up investigation, proceeded to the scene, held inquest over the headless body and the limbs and prepared the inquest report Ex. P-23. He also prepared a sketch of the scene Ex. P-50 and seized a rope, a pair of shoes and a cycle lying there.

10. He sent that trunk and the limbs for post mortem examination. On the very next day i.e. on 12.6.76 on information, near the <ORG>. station he seized the decapitated head, over which he held an inquest and prepared the report Ex. P-59. He caused the photograph of the head to be taken under Ex. P-12. Then he sent the head for postmortem.

11. PW-10, the Medical Officer who conducted the autopsy on the headless trunk and the decapitated head opined that both were parts of the same body of a male of fair complexion of an estimated age of 17 to 25 years. According to the prosecution, the dead body was of <NAME> who was of a fair complexion aged 19 years at that time. Exs. P-45 and P-47 are the post-mortem certificates. PW-10 states the body had not decomposed.

12. PW-21, at the instruction of PW-20, inspected the house of the deceased and drew a sketch Ex. P-60. He found blood stains at wooden door at three points which he scrapped.

13. While the matter stood thus, PW-2 not being satisfied with the reply of her husband and the appellant both at Mongram and thereafter at Bhatapara about the missing of her son <NAME>, went to the Police Station of Bhatapara and handed over two photographs of her son Ex. P-2 and Ex. P-3 and also gave a report Ex. P-82 dated 13.7.76.

14. On the same day i.e. on 13.7.76 after PW-2 had submitted the report Ex. P-82 to the Police, <NAME> committed suicide by throwing himself before a running train.

15. PWs 6 and 7 who were the Lecturers of the High School in which <NAME> was employed and in which the deceased studied and completed his matriculation, came to the <ORG> Station and informed the suicidal death of <NAME> to PW-30 (Station House Officer). While PWs 6 and 7 were returning from the Station, they saw the appellant entering the <ORG> Station. The appellant told both these two witnesses that he knew the death of <NAME> and further confessed that he was the person who murdered the deceased <NAME> and added that he had come there to surrender before the <ORG>.

16. PW-30 arrested the accused, examined him and recorded his confessional statement in the presence of PWs 6 and 7. In pursuance of that statement, several articles and letters were seized. On 16.6.77, certain applications written by <NAME> were also recovered. During the inspection of the house, PW-30 found blood stains on the walls of the house which he scrapped and recovered. Ex. P-20 is the recovery mahazor. Among the letters seized, Exs. P-13 to P-15 (letters written in Bengali) and Ex. P-29 and Ex. P-31 (letters written in Hindi) and the envelopes Exs. P-30 and P-32 were found. Exs. P-61 and P-63 are the specimen Hindi writings of the appellant and Exs. P-18 to P-20 are the specimen Bengali writing of the appellant. These letters alongwith specimen handwriting were sent to PWs 22 and 23 who were the Additional and Assistant Station Examiners of Questioned Documents (i.e. handwriting experts) for comparison of the writings of these letters with the specimen writings of the appellant. The experts on comparison have opined that all the seized letters were in the handwriting of the appellant.

17. Besides the opinion of the experts, PW-2 who claims to have studied upto 3rd standard and to have been conversant with the handwriting of the appellant also has deposed that the writings in Exs. P-13 to P-15, P-29 and P-31 are in the handwriting of the appellant. In Exs. P-13 and P-15 (addressed to his father), and in Ex. P-14 (addressed to <NAME>), the appellant had given the detail of his love towards <NAME> (alias <NAME>) and of his guilt of murdering the deceased. It may be pointed out that these letters were not posted. Exs. P-29 and P-31 (dated nil) found in the postal covers (Exs. P-30 and P-32) were addressed to the Collector and the <ORG> but they too were not posted. The contents of those letters reveal that the appellant wanted to put an end to his life by committing suicide for the sin of murder he committed. It seems that the appellant could not muster courage to end his life and so surrendered before the police. Before leaving to the Police Station, the appellant wrote Ex. P-104 a post card addressed to his father and posted the same. This post card (Ex. P-104) written in Bengali was posted on 13.7.76 at Bhatapara and it reached his father in Kalopur village on 17.7.76. This is an important document about which we shall discuss in the ensuing portion of the statement.

18. During the investigation, a knife and some letters inclusive of P-104 were seized from the house of the father of the appellant in Kalopur village by PW-18. Exs. P-5 to P-11, P-16 and P-17 are the letters proved to be in the handwriting of <NAME> through PWs 2, 3 and 22. The contents of these letters show that after <NAME> and the appellant returned to Bhatapara from West Bengal the appellant confessed to <NAME> about his involvement in the murder of the deceased, and <NAME> who loved his son Ravindra and the appellant, without disclosing this confession of the appellant, decided to put an end to his life and ultimately did so. Two other letters (Exs P-6 and P-33) further show that at the initial stage both <NAME> and the appellant decided to commit sucide. However, the sequence of events reveal that <NAME> alone committed suicide after his wife lodged the complaint to the Police. We may point out at this juncture that though the letters written by <NAME> cannot be made use of as legal evidence against the appellant, we are mentioning those letters and their contents only for the proper understanding of the sequence of events and the complete narration of the prosecution case.

19. Exs. P-184 and P-185 are the reports of the Chemical Examiner and Serologist respectively. As per the report of the Serologist, the scrapping of the wall of the house and the pillow recovered from the house were stained with human blood. The blood stains on some of the items of the properties were disintegrated and as such their origin could not be determined. After completing the investigation PW-30 filed the charge-sheet on 28.10.76.

20. The appellant in his statement under 313 Cr.P.C . has denied his complicity in the offence in question and added that he does not know anything about the letters produced by the prosecution and that he was tortured and pressurised to write certain letters and documents inclusive of a post-card at the Police Station and under pressure his signatures were obtained thereon.

21. <ORG>, as pointed supra, convicted the appellant under Section 302 and 201  and sentenced him to death and to undergo rigorous imprisonment for a period of 3 years. <ORG> for the reasons assigned in its judgment affirmed the convictions recorded by <ORG> but modified the sentence of death to imprisonment for life while retaining the rigorous imprisonment for 3 years under Section 201 .

22. The learned counsel appearing on behalf of the appellant assailed the judgment of <ORG>, inter-alia, contending :

(1) That the prosecution has not satisfactorily established the guilt of the appellant through cogent, reliable and trustworthy evidence from which the guilt of the accused is to be drawn and the evidence available on record does not lead to any irresistible conclusion that the appellant alone, and none else, committed this heinous crime;

(2) All the letters except Ex. P-104 have not been posted and they were all fabricated only at the Police Station under pressure brought on the appellant who was pressurised to sign those letters and as such the contents of all those letters should be rejected in toto;

(3) The date, 11th July, 1976 mentioned in Ex. P. 104 would indicate that the appellant had been taken into custody by the Police either on 11.7.76 or much earlier and that this letter had been fabricated while he was in the police custody and was posted on 13.7.76. This post card (Ex. P-104) raises a cloud of suspicion on the veracity of the prosecution case.

23. Incidentally, a feeble argument was advanced that the prosecution has not established the identity of the trunk, limbs and the severed head as that of <NAME> beyond all reasonable doubt.

24. This <ORG> in a series of decisions has laid down the principles of law governing the exercise of powers by this <ORG> to interfere in an appeal against conviction under Article 136 of the Constitution of India of which we shall make reference to a few.

25. <CITATION> 1954 SCR 1133 this Court has clearly made the position of law thus :

Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this <ORG> does not exercise its overriding powers under Article 136(1) of the Constitution.

26. <CITATION> this Court expressed its view on this pro position of law thus :

Although the powers of this <ORG> under that article ( Article 116 of the Constitution) are very wide, this <ORG> following the practice adopted by <ORG> has prescribed limits on its own power and in criminal appeals, except under exceptional circumstances it does not interfere with the findings of facts reached by <ORG> unless it is of the opinion that <ORG> had disregarded the forms of legal process or had violated the principles of natural justice or otherwise substantial and grave injustice has resulted. This <ORG> does not ordinarily reappraise the evidence if <ORG> has approached the case before it in accordance with the guidelines laid down by this <ORG> unless some basic error on the part of <ORG> is brought to the notice of this <ORG>. It is best to bear in mind that except in certain special cases, <ORG> is the final <ORG> of appeal and this <ORG> is only a court of special jurisdiction.

27. <NAME>, J as he then was in <CITATION> . speaking for the bench said :

The powers of <ORG> under Article 136 are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances <CITATION> . () it was observed that it was best to bear in mind that normally <ORG> is a final court of appeal and <ORG> is only a court of special jurisdiction. This Court would not therefore reappraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted.

28. This Court in <CITATION> wherein <ORG> had affirmed the pure findings of facts recorded by <ORG>, observed :

Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established : (1) That the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded.

29. In a recent decision in <CITATION> 1988 SCC suppl. 241 the following dictum is laid down :

Before we consider the contentions urged for the appellants, we may recall that these are appeals by special leave under Article 136 of the Constitution. If conclusions of the <ORG> below are supported by acceptable evidence, this <ORG> will not exercise its overriding powers to interfere with the decision appealed against. This <ORG> also will not consider the contentions relating to re-appreciation of the evidence which has been believed by the <ORG> below. The fact that the special leave has been granted should not make any difference to this practice. The grant of special leave does not entitle the parties to open out and argue the whole case. The parties are not entitled to contest all findings recorded by the <ORG> below unless it is shown by error apparent on the record that substantial and grave injustice has been done to them.

30. We shall now, bearing in mind the scope of interference by this <ORG> in an appeal against concurrent findings, dispose this appeal in this light of the principle of law enunciated by this <ORG> in the above-mentioned authoritative judicial pronouncements.

31. This appeal arises against the concurrent findings of facts except for the modification of the sentence made by <ORG>. There is no direct evidence to prove this case and the conviction is founded solely on circumstantial evidence. This <ORG> in a line of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests :

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively; should from o chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ( <CITATION> ).

32. See also <CITATION> , <CITATION> , Earabhadrapa alias Krishnappa v. State of Karnataka Gian Singh v. State of Punjab 1986 Suppl. SCC 676 <CITATION> .

33. Before adverting to the arguments advanced by the learned counsel, we shall first of all dispose of the contention with reference to the identity of the victim.

34. The unfortunate victim in this case is one <NAME> who was aged about 19 years at the time of the occurrence and who was the only son of <NAME> and PW-2. According to the prosecution, the scene of occurrence was the house of the deceased himself and he was done away with at about 4.45 A.M. on 10.6.76. Indisputably, it, is a very macabre incident in which the deceased had been brutally cut into pieces and all the cut pieces had been thrown at different parts of Bhatapara city. Though the headless body and the various limbs were seen and recovered on 11.6.76, the decapitated head was seen and recovered only on 12.6.76. A photograph of the head was taken uncles Ex. P-12. Though PW-2, the mother of <NAME> on seeing Ex. P-12 identified it to be that of her son, the learned Judges held that since the features of the face in Ex. P-12 cannot be deciphered, it is impossible for any person to identify the deceased from Ex. P-12. In view of this, they were reluctant to place reliance on the identification by PW-2 on seeing P-12. However, <ORG> relying on other facts of the case concurring with the trial Court came to the conclusion that the deceased was <NAME>. According to the evidence, <NAME> was of a fair complexion aged about 19 years. The Medical Officer has deposed that the skin of the deceased was of fair complexion. In the post-mortem certificate (Exh. P-45), the approximate age of the male body is given as 18 to 29 years and the skin was of fair colour. The Medical Officer has further stated that the decapitated head was that of the body recovered on the earlier day. The scrappings of the wall of the kitchen portion of the scene house are proved to have been stained with human blood. The pillow recovered from the house also is proved to have stained with human blood. These circumstances indicate that the occurrence had taken place inside the house of the deceased. In the number of letters inclusive of Exhibit P-104 the appellant himself has unequivocally confessed that the deceased was <NAME>. The letters written by <NAME> about which we have made reference in the narrative portion of this judgment also refer to the murder of <NAME>. In view of the above unassailable circumstances, we are fortified in our view that both the <ORG> have rightly found that the dead body was that of <NAME> and we do not see any reason to dislodge that concurrent finding.

35. The prosecution rests its case on a number of attending circumstances, which establish the guilt of the appellant. As was pointed out during the earlier part of this judgment though the prosecution has suggested the motive for the accused to commit this murder on a money dealing the real motive behind the occurrence seems to be a gross indecent behaviour of the appellant towards <NAME> alias <NAME>, who is none other than the sister of the deceased. It is in the evidence of PW-2 that even <NAME>, the father of <NAME> had sexually assaulted his own daughter on earlier occasions and that this appellant was also making overtures towards <NAME> thereby exhibiting his asinine behaviour. Therefore, it is but natural that the deceased should have taken a strong objection to the conduct of the appellant and this had resulted in the murder of <NAME>.

36. At the time when the victim was murdered except the appellant and the deceased, there was none in the scene house because PW-12 had left Bhatapara with her daughter and <NAME> had followed them sometimes later. In the evidence of PW-11 who is the landlord of the scene house it is said that <NAME> was seen in the house in the company of the appellant upto 8th June 1976. The appellant was not found in the village after this murder till he surrendered before the police i.e. on 13.6.76. After this incident, the appellant went to Mongram where his parents and brothers reside and met <NAME> and PW-2. When PW-2 asked the appellant at Mongram about her son's whereabouts, the appellant falsely replied that <NAME> had gone to Bombay in search of some employment. The conduct of the appellant in giving this manifestly blatant false reply to PW-2's enquiry, spells out his guilty conscience. The number of letters namely Exs. P-13 to P-15, Exs. P-29 and P-31 written in Bengali and Hindi were seized from the house. These letters are proved to be under the handwriting of the appellant, as seen from the evidence of PW-22 and PW-23 who were the State Examiners of Questioned Documents. PW-2 who claims to have studied upto 3rd standard has also deposed that the writing of those letters are in the handwriting of the appellant. In fact the accused also did not deny his handwriting but would try to explain those letters were get written under pressure brought out by the <ORG> on him. In these letters which were not posted, the accused had confessed that he had murdered the deceased. There is one more clinching evidence connecting the appellant with the crime in question is the contents of the post-card (Exh. P. 104). This post-card had been posted at Bhatapara on 13.7.76 i.e. on the very same day of the suicidal death of <NAME>. Much argument was advanced on this post-card. According to the prosecution this post-card which was posted at Bhatapara on 13.7.77 reached the appellant's father on 17.7.76 at Kalopur. This post-card is written in Bengali. PW-23 has proved that the writing in the post-card is that of the appellant. This Ex. P-104 is dated 11.7.76. The learned counsel for the defence advanced his argument contending that since the post-card is dated 11.7.76, the appellant should have been taken to the police custody even much earlier to 13.7.76 and this letter was fabricated. We are unable to accept this contention. In fact, a similar argument was raised before <ORG> which repelled the same. Admittedly <NAME> committed suicide on 13.7.76. In the post-card there is reference about the death of <NAME>. Therefore, it is evident that this post-card should have been written after the death of <NAME> and then posted. Presumably, the appellant would have put the date on the post-card as 11.7.76 by mistake. In view of the surrounding circumstances and the contents found in the post-card we are in total agreement with the finding of <ORG> that the appellant should have put the date by mistake, and hold that this argument of the learned counsel for the appellant is not acceptable. The contents of this letter clearly show that <NAME> was murdered by the appellant on 10.6.76 and that the appellant coming to know about the suicide of his cousin brother, <NAME> had decided to surrender before the <ORG> and suffer the consequences. Though the appellant in general had stated that he was tortured by the police and pressurised to write certain letters and documents and to sign them, he when specifically questioned under Section 313 . answered that he did not know anything about those letters.

37. The learned defence counsel in support of his contention that there was police torture would draw the attention of this Court to certain admissions of PW-2 in the cross-examination admitting that the police had harassed all of them and persistently enquired about the reason for <NAME> to commit suicide, and that the appellant on being arrested by the police was highly perplexed and all of them went on admitting what the police said. We have carefully scanned these admissions of PW-2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed albeit, <NAME> committed suicide in very tragic circumstances by throwing himself before a running train, only after PW-2 had approached the police by lodging Ex. P-82 and handing over two photographs of her son with the request to make an investigation about the missing of her son. Evidently <NAME> who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have restored in putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW-2 by then had not come out with the story of her husband's abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death of <NAME> should have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of <NAME>, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of <NAME> who on account of his uncivilized and filthy conduct in our opinion was only a beast in the human form.

38. Hence we hold that this argument of the learned counsel does not merit consideration.

39. For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, <NAME> in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that this cold-blooded murder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of <ORG> does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence. Hence we hold that the findings of facts recorded by the Courts below do not call for any interference.

40. In the result, the appeal is dismissed.


JUDGMENT <NAME>, J.

1. The principal question in this appeal is, whether probate of the will of <NAME>, who died on the 9th October 1892, ought to be granted. The appellant was the applicant for the probate, and in his petition for it, presented to the District Judge on the 20th January 1893, he stated that he was the adopted son of <NAME> and one of the executors, mentioned in the will. He also stated that another will had been executed by <NAME> on the 4th October 1892, which was revoked by the later will and was filed in <ORG>. The application was opposed by <NAME>, the widow of <NAME>, in a petition put in on the 31st January 1893, in, which she denied the genuineness of the second will, refused to admit the first will, and also asserted that <NAME> the appellant, was not the adopted son of the deceased. On the 23rd February, <NAME> presented a petition withdrawing her objections. Thereupon, on the 27th February 1893, the respondent, who is one of the daughters of the deceased, filed a petition of objection denying the genuineness of the will, asserting that <NAME> was not the adopted son, and that the withdrawal by <NAME> was the result of collusion, and praying to be made a party to the suit. The District Judge having refused to do this the will was proved in common form, and probate granted. The respondent appealed to the High <ORG> which set aside the decision of the District Judge and remanded the matter in order that she might have an opportunity of contesting the case, and that the will might be proved in solemn form. On the 25th June 1894, the District Judge decided in favour of the will; he found that it was executed by <NAME> and that he was then of sound and disposing mind. As to the adoption of <NAME> he said:

I have mentioned that an allegation was made by the objector denying that <NAME> was the adopted son of <NAME>, in order to show that it was not probable the deceased should have executed such a will. Evidence was given that <NAME> was treated by <NAME> as an adopted son, was spoken of as an adopted son by <NAME> when giving evidence. Not a particle of testimony to support the objector's allegation was given. Though two sons-in-law, a cousin, and a servant of <NAME> were examined, not one of them was asked a single question whether <NAME> had adopted <NAME>. The alleged improbability therefore fails.

2. The evidence in the record fully supports this opinion.

3. On the 29th July 1895 <ORG> on the appeal of <NAME> reversed the decree of the District Judge and ordered the application for probate, to be dismissed.

4. The first witness examined in support of the will was <NAME> the writer of it. His evidence was that <NAME>, another witness, was sitting near <NAME> and repeated what he had said, although the witness could hear it himself; that at the time of the will being written out <NAME> said: "There are Rs. 6,000 due to me on a mortgage. Of this sum Rs. 2,000 are to be given to <NAME>, <NAME>, and <NAME> each;" that just then some one came in and said that <NAME> was dead, and some one asked what was to be done with the Rs. 2,000 allotted to <NAME>. <NAME> said "Let Rs. 1,000 be given to his widow and Rs. 1,000 to his mother." The witness said he made provision accordingly in the will; he forgot whether it had already been written in the will, that <NAME> was to get Rs. 2,000 or whether this had only been mentioned by <NAME>, he could not say without looking at the will. Now the second paragraph of the will contains a gift of Rs. 2,000 to <NAME> and the ninth the gifts of Rs. 1,000 each to his mother and widow. <NAME> deposed that Sri <NAME> wrote the will and be asked questions and <NAME> "made known the terms of the will" that he said Rs. 6,000 would be given to his three nephews, this was written, and then the document was read over and <NAME> signed it and after him the witnesses. Some one said "Let the will remain in <NAME>'s keeping," and so it was given to him and he took it. He went on to say that afterwards <NAME> said to him "What is written in the will is false." He said "How is that?" <NAME> said "My brother is dead, and he has been given Rs. 2,000 "(<NAME> having shortly before died of cholera). <NAME> said" He did not know of your brother's death. If you wish I will enquire from <NAME> to whom he wishes that Rs. 2,000 to be given." Then three or four of them went and said 'Your nephew is very ill, if he dies to whom should his money be given? "He thought for a long time, perhaps a quarter of an hour, and said,' Let Rs. 1,000 be given to his wife and Rs. 1,000 to his mother." Then this was inserted in the will. This was after the will had been executed. There was a space and the provision was inserted. There was no signature of the testator or the "witnesses." The District Judge who had the will before him was satisfied with this evidence and accordingly excluded this addition to the will from the probate. No doubt there is a discrepancy between the evidence on this point of Sri <NAME> and that of <NAME>. But Sri <NAME> may have forgotten the exact circumstances under which the ninth paragraph was inserted or may have been over zealous in his desire to support the whole will. At any rate the District Judge accepted <NAME>'s version, and on that basis their Lordships cannot agree with the learned Judges of <ORG> who thought that the discrepancy between the second and ninth paragraphs had not been satisfactorily explained and that it was a circumstance to excite suspicion. <NAME>, one of the attesting witnesses, deposed to the execution of the will and said that <NAME> was all the time in his senses. <NAME> Kundu, a pleader, one of the nephews of the testator to whom the Rs. 6,000 were given, who was present during part of the time when as he said "Sri <NAME> was writing and <NAME> was asking <NAME> and then telling Sri <NAME> what to write" added that "<NAME> was in his senses. He seemed to understand everything that was said to him and he was able to give replies." The District Judge says in his judgment that it was clear to him that <NAME> was an unwilling witness. In his evidence he appears to have been dissatisfied with what he took under the will and being one of the executors was unwilling to join in the application for probate.

5. The case of the respondent against the will was that no will was executed. The effect of the evidence of the six witnesses called in support of it is that during the morning when the will was said to been have executed <NAME> was in an unconscious state, unable to sign a will and that no will was made. The District Judge, who saw the witnesses, has found that the will was executed by the deceased and that he was of sound disposing mind when he executed it.

6. The judgment of <ORG> reversing this decision appears in the conclusion of it to be founded upon what is said by <NAME>, L.J., in <NAME> v. <NAME> (1894) P., 151, that whenever circumstances exist which excite the suspicion of the <ORG> and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document. In this case, the suspicion, if there was one, would be that on the morning, when the will was said to have been made, the deceased was in an unconscious state and unable either to sign the will or to understand what he was doing, that is, that the witnesses in support of the will were not telling the truth. If they were their Lordships do not see anything to excite suspicion. The question was simply which set of witnesses should be believed. The District Judge saw them and the remarks in his judgment show that he observed their demeanour. The High <ORG> had not that advantage. In their Lordships opinion the probate was rightly granted and the decree for it should not have been reversed It is not necessary to decide the other questions raised in the appellant's case. Their Lordships will, therefore, humbly advise Her Majesty to reverse the decree of <ORG> and order the appeal to be dismissed with costs. The respondent will pay the costs of this appeal.


PETITIONER: <NAME> Vs. RESPONDENT: <ORG>. DATE OF JUDGMENT07/05/1993 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KULDIP SINGH (J) RAMASWAMI, V. (J) II CITATION: 1993 SCR (3) 930 1993 SCC (3) 259 JT 1993 (3) 617 1993 SCALE (3)39 ACT: % Constitution of India, 1950: Articles 14 and 21-Right of private employer to terminate service under certified standing order, without holding any domestic enquiry--Whether violative of principles of natural justice and fundamental rights--Held: Since termination of service results in deprivation of right to livelihood, it is to be effected in accordance with just, fair and reasonable procedure. Article 141- Precedents-Reconsideration of on new grounds- Whether & when permissible. Industrial Disputes Act , 1947: Sections 25F , 25FF and 25FFF -Retrenchment under Certified Standing Orders-Whether attracts principles of natural justice-Whether employer's action to be fair, just and reasonable. Section 2(oo) --Retrenchment--Meaning and scope of. Industrial Employment (Standing Orders) Act , 1946: Section 5- -Certified Standing Orders-Absence from duty- Deemed termination of service without enquiry or opportunity of hearing--Validity of--Whether attract principles of natural justice and Articles 14 and 21 of the Constitution- Whether principles of natural justice to be read into clause 13 (2) (iv) of Certified Standing Orders. Administrative Law: Rule of natural justice--Aim of--Whether principles of natural justice applicable to both quasi-judicial as well as administrative action. 931 HEADNOTE: The respondent-company terminated the appellant's services on the ground that since he had willingly absented from duty continuously for more than 5 days from December 3, 1980, without leave or prior information of intimation or previous permission of the management, he had been deemed to have left the service of the company on his own and lost the lien and the appointment with effect from December 3, 1980. It relied on clause 13(2) (iv) of the Certified Standing Order in support of its action. The appellant's plea that despite his reporting to duty on December 3, 1980 and every day continuously thereafter, he was prevented entry at the gate and was not allowed to sign the attendance register and that he was not permitted to join duty without assigning any reasons, was not accepted. <ORG> upheld the termination order as legal and valid. It held that the appellant had failed to prove his case, that the action of the respondent was in accordance with the Standing Orders and it was not a termination nor retrenchment under the Industrial Disputes Act and that the appellant in terms of Standing Orders lost his lien on his appointment and was not entitled to reinstatement. Allowing the appeal of the employee, this Court HELD:1.1. The action of the management in terminating the appellant's service is violative of the principles of natural justice. Under clause 13 (2) (iv) of Certified Standing Orders, on completion of eight calendar days' absence from duty an employee shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter, the management is empowered to strike off the name from <ORG>. But it is not correct to say that expiry of eight days' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic. The prin- ciples of natural justice must be read into the Standing Order No. 13 (2) (iv). Otherwise, it would become arbitrary, unjust and unfair violating Article 14. <NAME> v. <ORG>,  Suppl. S.C.R. 1 and <CITATION> .  1 S.C.C. 13, referred to. 1.2. In the instant case,admittedly,the management did not conduct any domestic enquiry nor gave the appellant any opportunity to put forth his case. 932 <ORG> did not record any findings on the appellant's plea that despite his reporting to duty on December 3,1980 and on all subsequent days and readiness to, join duty he was prevented from reporting to duty, nor he was permitted to sign the attendance register, but held that the management had power under clause 13 of the Certified Standing Orders to terminate the service of the appellant. Under the circumstances, the award of <ORG> is set aside. The respondent should reinstate the appellant forthwith with 50 per cent of the back wages. 2.1. Certified Standing Orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely, the Industrial Disputes Act made exceptions for the application of principles of natural justice by necessary implication from specific provisions in the Act like Sections 25F , 25FF , 25FFF etc. The need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily, to a service of such temporary workmen to meet such exigencies and as soon as the work or service is completed, the need to dispense with the services may arise. In that situation, on compliance of the provisions of Section 25F resort could be had to retrench the employees in conformity therewith. Particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects, the principles of natural justice would apply unless the employer should justify the exclusion on given special and exceptional exigencies. Col. <CITATION> .,  1 S.C.R. 791, relied on. 3.1. Application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily affecting the rights of the concerned person. No decision must be taken which will affect the right of any person without first being informed of the case and be given him/her an opportunity of putting forward his/her case. An order involving civil consequences must he made consistently with the rules of natural justice. It is not so much to act judicially but to act fairly, namely, the procedure adopted must he just, fair and reasonable in the particular circumstances of the case. 3.2. The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 of the Constitution and such law would be liable to be tested on the anvil of Article 14. The procedure prescribed by a 933 statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of the Article. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 14 has a pervasive processual potency and versatile quality, equalitarian it its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. Therefore, the principles of natural justice are part of Article 14 and the procedure prescribed by law must be right, just, fair and reasonable and not arbitrary, fanciful or oppressive. <CITATION> .  2 S.C.R. 272; <CITATION> .,  2 S.C.R. 625; <CITATION> ,  S.C.R. 284 and <CITATION> ,  2 S.C.R. 621, relied on. Blak's law Dictionary 4th Edn. p. 1487; referred to. 4. Article 21 of the Constitution clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. <CITATION> .,  Suppl. 1 S.C.C. 600, relied on. 5.1. The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded. 5.2. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to 934 arrive, at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it must logically be applicable both to quasi-judicial enquiry and administrative enquiry and not only to quasi-judicial enquiry. <CITATION> .  2 S.C.C. 262, relied on. 6.1. An authoritative law laid after considering all the relevant provisions and the previous precedents is no longer open to be recanvassed on new grounds or reasons that may be put forth in its support unless the Court deemed it appropriate to refer to a larger bench in the larger public interest to advance the cause of justice. <NAME> v. State of U. P. & Ors.  3 S.C.C. 7 10 and <NAME> v. <ORG>,  Suppl. S.C.R. 1, relied on. 6.2. <ORG> in fact went into the self same question visa-vis the right of the employer to fall back upon the relevant provision of the Certified Standing Orders to terminate the service of the workman/employee. Therefore, it is not correct to say that since the present appeal was deleted from <ORG> to be dealt with separately, the finding of <ORG> deprived the respondent of putting forth the plea based on clause 13 of the Certified Standing Order to support the action in question and the respondent is entitled to canvass afresh the correctness of the view of <ORG>. 7. The definition of 'retrenchment' in Section 2(oo) of the Industrial Disputes Act, 1947 is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. <CITATION> Court, Chandigarh and Ors.,  3 S.C.C. 632; <CITATION> ,  3 S.C.R 160; <CITATION> .,  1 S.C.R. 591; <CITATION> Court,  1 S.C.R. 586: <CITATION> .,  1 S.C.C. 645 and <CITATION> .,  4 S.C.C.201, referred to. 935 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 166 (NL) of 1983.

From. the Award dated 19.4.1982 of <ORG>, Haryana at Faridabad in Reference No. 227 of 198 1.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and Ms. <NAME> for the Appellant. Dr. <NAME>, <NAME> for <ORG> and <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is against the award of <ORG>, Haryana at Faridabad dated April 19, 1982 which was published in <ORG> on August 10, 1982.It upheld the termination of the appellant's service as legal and valid. The respondent, by its letter dated December 12, 1980 which was received by the appellant on December 19, 1980, intimated that the appellant wilfully absented from duty continuously for more than 8 days from December 3, 1980 without leave or prior information or intimation or previous permission from the management and, therefore, "deemed to have left the service of the company on your own account and lost your lien and the appointment with effect from December 3, 1980." In support thereof reliance was placed on clause 13 (2) (iv) of its Certified Standing Order. The appellant averred that despite his reporting to duty on December 3, 1980 and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register. He pleaded that he was not permitted to join duty without assigning any reasons. His letter of December 3, 1980 was marked herein as Annexure 'A' wherein he explained the circumstances in which he was prevented to join duty. The <ORG> found that the appellant had failed to prove his case. The action of the respondent is in accordance with the standing Orders and it is not a termination nor retrenchment under the Industrial Disputes Act , 1947 for short 'the Act'. The appellant in terms of standing orders lost his lien on his appointment and so is not entitled to reinstatement.

Clause 13 (2) (iv) standing order reads thus:

"If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless.

(a) he returns within 3 calander days of the commencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be; and

(b) explains to the satisfaction of the manager/management the reason of his absence o r his inability to return on the expiry of the leave, as the case may. The workman not reporting for duty within 8 calander days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the Muster Rolls in such an eventuality."

A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calander days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the Manager/Management of his reasons for absence or inability to return to the duty on the expiry of the leave. On completion of eight calander days' absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from <ORG>.

Section 2(oo) of the Act defines 'Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman, or

(b) retirement of the workman on reaching the age of superannuation of the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, or

(c) termination of the service of a workman on the ground of continued ill health."

Section 25F prescribes mandatory procedure to be followed before the retrenchment becomes valid and legal and violation thereof visits with invalida-

tion of the action with consequential results. <CITATION> Court, Chandigarh and Ors.,  3 SCC 632 the Constitution Bench considered the scope of the word 'retrenchment' defined by s.2(oo) and held in para 71 at page 716 that "analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in Clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health. There would be no violational element of the employer. Their express exclusion implies that those would otherwise have been included". In para 77 at page 719 it was further held that "right of the employer and the contract of employment has been effected by introducing Section 2(oo) ". The contention of the management to terminate the service of an employee under the certified standing Orders and under the contracts of employment was negatived holding that the right of the management has been effected by introduction of s. 2(oo) and s. 25F of the Act. The second view was that the right as such has not been effected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of s. 25F of the Act to tide over the financial difficulty which subserves the social policy. This court relied on the maxim-Stat pro ratione valuntas populi; the will of the people stands in place of a reason. In paragraph 82 at page 722 this court concluded that the definition in s.2(oo) of the Act of retrenchment means "the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section". Same view was taken by three benches of three Judges of this Court in <CITATION> ;  3 SCR 160 ; Delhi Cloth & General Mills Lid. v. <NAME> & Ors  1 SCR 591 and <CITATION> . <ORG>  1 SCR 586 and two benches of two judges in <CITATION> .  1 SCC 645 and <CITATION> .  4 SCC 201 took the same view. Therefore, we find force in the contention of Sri <NAME>, the learned Senior counsel for the appellant that the definition 'retrenchment' in S.2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. We need not, however, rest our conclusion on this point as in our considered view it could be decided on the other contention raised by Sri <NAME> that the order is violative of the principles of natural justice. We are impressed with that argument. Before dealing with it, it is necessary to dispose of inter related contentions raised by Dr. <NAME>.

The contention of Dr. <NAME> that since this appeal was deleted from the constitution bench to be dealt with separately, the finding of the constitution bench deprived the respondent of putting forth the contention based on Cl. 13 of the certified standing order to support impugned action and the respondent is entitled to canvass afresh the correctness of the view of the constitution bench is devoid of force. It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the court deemed appropriate to refer to a larger bench in the larger public interest to advance the cause of justice. The constitution bench in fact went into the self same question vis-a-vis the right of the employer to fall back upon the relevant provision of the certified standing Orders to terminate the service of the workman/employee. By operation of S. 2(oo) the right of the employer under Cl.13(2) (iv), and the contract of employment has been effected. Moreover in <CITATION> .,  3 SCC 719 at 72-23 para 5 &

6. A constitution bench held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority 'merely' because it was badly argued, inadequately considered and fallaciously reasoned. In that case the ratio of this court on Art. 31A decided by 13 Judges bench in <NAME> v. <ORG>Suppl. SCR was sought to be reopened but this court negatived the same. His contention that expiry of eight days' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance. The constitution bench specifically held that the right of the employer given under the standing Orders gets effected by statutory operation. In <NAME> case (supra) in para 7, this court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done. It was further held that striking of the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consequitive days amounts to misconduct and termination of service on such grounds without complying with minimum prin- ciples of natural justice would not be justified. In <NAME>'s case three Judges bench held that striking of the name of the workman for absence of leave itself amounted to retrenchment. <CITATION> . (supra), this court held that striking of the name from the rolls amounts to an arbitrary action. <CITATION> . 1 SCC 13, a two judge bench of this court to which one of us, <NAME> was a member was to consider the effect of discharge on one month's notice or pay in lieu thereof. It was held that it was not a discharge simplicitor or a simple termination of service but one camouflaged for serious misconduct. This court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law.

The principle question is whether the impugned action is violative of principles of natural justice. <CITATION> .,  2 SCC 262 a Constitution bench of this court held that the distinction between quasi judicial and administrative order has gradually become thin. Now it is totally clipsed and obliterated. The aim of the rule of the natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded as held in Col. <CITATION> .  1 SCR 791. It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural justice necessary implication from specific provisions in the Act like Ss.25F; 25FF; 25FFF; etc, the need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service are completed, the need to dispense with the services may arise. In that situation, on compliance of the provisions of s. 25F resort could be had to retrench the employees in conformity therewith particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely' the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person.

<NAME>

It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. <CITATION> .  2 SCR 272 at 308F <ORG> held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotion every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. <CITATION> ., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.

<CITATION>  SCR 289, per majority, a seven Judge bench held that the rule of procedure laid down by law comes as much within the purview of Art. 14 of the Constitution as any rule of substantive law. <CITATION> ,.  2 SCR 62 1, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art, 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to he reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.

The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14.

and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right,just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative. inquiry as well as the quasi-.judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Art. 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportu- nity of being heard and fair opportunities of defence. Art. 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this <ORG> that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just, fair and reasonable.

<CITATION> ,  Suppl. 1 SCC 600 this court held that right to public employment and its concomitant right to livelihood received protective umbrella under the can copy of Arts. 14 and 21 etc. All matters relating to employment includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just. fair and reasonable procedure prescribed under the provisions of the constitution and the rules made under the provisions of the constitution and the rules made under proviso to Art. 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Part III and IV of the Constitution. Art. 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Arts. 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice is an integral part of the Guarantee of equality assured by Art. 14. Any law made or action taken by an employer must be fair,just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of' natural justice. Arts. 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the affect thereof is the end result.

It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D. 7. C. v. D. T.C. Mazdoor Congress and Ors. (supra) the constitution bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The <ORG> did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise it would become arbitrary. unjust and unfair violating Arts. 14. When so read the impugned action is violative of the principles of natural justice. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor given the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of <ORG> is set aside and the letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accord- ingly. The parties would bear their own costs.

N.P.V. Appeal allowed.


<NAME>, J.

1. This is an originating summons taken out by the Administrator-General of Bengal in the matter of the will of <NAME>, deceased.

2. The testator died on 3rd January 1928 leaving a will and a codicil of which the Administrator-General of Bengal was appointed solo executor and trustee.

3. Probate was obtained on 4th September 1928 and the Administrator-General has since that date been in possession of the estate. The difficulty arises with regard to a religions endowment for the benefit of certain deities which was created by the testator. The endowment contemplates shebaits and the will appoints four persons relations of the testator as shebaits, and provides for their places being filled on their decease or on their ceasing to act.

4. In addition to these four parsons the will appoints as shebait the Secretary for the time being of <ORG>.

5. In Clause 12 of the will the testator directs that the number of shebaits shall always be five including the Secretary of <ORG>. The question is whether this appointment is void for uncertainty, and if it is not void for uncertainty how it should be construed ?

6. <ORG> is a religious body incorporated under the Companies Act , and I have before me its Memorandum of Association and its rules and regulations which correspond to the Articles of Association in a company incorporated for gain. Regns. 15 to 22 (inclusive) deal with the executive committee of the <ORG>. Article 15 provides that the executive committee shall consist of a President, five Vice-Presidents, two Secretaries, two Assistant Secretaries, one Treasurer, one Auditor and 26 other members. By Article 57 there is power given to the <ORG> to alter any of the rules at the annual general meeting.

7. There are two Secretaries who in fact hold the office as contemplated by Regn. 15. Two cases have bean cited to me where <ORG> have had to consider language in some degree resembling the language of the will which is the subject-matter of this summons. In the Goods of Edward Baylis (decd.) [1862] 2 Sw. & Tr. 613 where A was appointed executor with any two of the testator's sons. When two of such sons applied for probate their application was rejected, the Court holding the appointment to be void for uncertainty. Similarly, In the Goods of Blackwell [1877] 2 P.D. 72 the testator appointed one of his sisters sole executrix. At the time of the will the testator had three sisters living but two of them predeceased him. The President following In the Goods of Baylis [1862] 2 Sw. & Tr. 613 held that probate could not be granted to the surviving sister as the appointment was void for uncertainty.

8. I have been referred to various sections in the Succession Act , and it is pointed out that undoubtedly the scheme of the testator's will was that among the shabaits should be some one who was unconnected with the family but was connected with <ORG>, and it is suggested that either both the Secretaries should be shebaits or that one of them to be selected by the association should be shebait. It is unfortunate, the testator must have been under the mistaken impre3sion that there was only one Secretary of the association but I do not think that I can speculate as to what directions he would have given in his will had he realized the true state of affairs and given directions accordingly.

9. It is true that the effect of excluding the Secretaries from the office of <NAME> will be to render that part of the will that provides, that "there shall always be five shabaits including the Secretary," impossible of performance, but that I think is inevitable; if any particular number of persons are appointed in a will to fill certain offices, it is inevitable that that number must be reduced if for any reason the appointment of any one or more of such persons is void. On the face of it there is no ambiguity in the language of the will but it is impossible to apply that language to existing facts, and though I regret that it is not possible to reader effective the general scheme of the testator's bequests with regard to the <NAME>s, I do not think I should be justified in, as it ware, framing a scheme to carry out the administration of the endowment on lines which I think would have commended themselves to the testator had ha known there were two Secretaries of the institution. In the circumstances I think I must follow the principle laid down in the two cases to which I have been referred. The answer to the questions will therefore be as follows:

Q. (1) The appointment is void for uncertainty.

Q. (2) Neither of the Secretaries is a shebait either jointly with his co-secretary or secretaries.

Q. (3) Does not arise.

Q. (4) (i) No. Q. (i) (ii) No answer is required to the question.

Q. (5) The subject-matter of the Administrator-General's question is already provided for by the will.

Q. (6) It appears to ma this question can only properly be answered when such a disagreement as is contemplated by the question has actually arisen and that the matter is not one which should be dealt with in anticipation.

10. That concludes the consideration of the questions raised by the summons. In the circumstances all parties may have their costs out of the trust funds. The Administrator-General will have his 303ts as between attorney and client including fee actually paid to counsel. Costs allowed as of one day's hearing.


<NAME>, J.

1. This is a reference under s. 256(1) of the I.T. Act, 1961 (hereinafter referred to as "the Act").

2. The short question that falls for our consideration in this reference whether the bound and commission paid by the assessee to its employed during the accounting year ending on March 31, 1964, is covered by the expression "benefit or amenity or perquisite" used in s. 40(c)(iii) of the Act, and, therefore, can be disallowed as a revenue expense under the Act.

3. The assessee is a private limited company carrying on business in dyes and chemicals. If paid to is employees salaries, dearness allowance and bonus. Some of the employees were also paid commission and bound There was no written agreement for the payment of the bonus or commission, and the percentage of commission paid to the employees varied from year to year and from employee to employee. In the course of the assessment proceedings for the assessment year 1964-65, the relevant previous year being the year ending on March 31, 1964, the <ORG> called for the details of the salary, dearness allowance, bound and commission paid to the employees who has been paid in all more than Rs. 7,500 per annum. The <ORG> took the view that the provisions of s. 40(c)(iii) were applicable to the said payments, and proposed to disallow a portion in excess of one-fifth of the total emoluments. The assessee-company contended that the provisions of the section were not applicable to the said payments, since the same were in cash and were not covered by the expression "benefit or amenity or perquisite". The <ORG> rejected the said submission and calculated the excess in the case of the 22 employees to who, the payments were made. The total amount worked out by the <ORG> was Rs. 18,914. He, however, took one-twelth of the said amount, viz., Rs. 4,970( ?), the relevant provision being operative from February, 1964, and the assessee's accounting year being the year ending on March 31, 1964.

4. The assessee appealed to the <ORG>. In the appeal, the <ORG> took the view that the language of the said provision as applicable to the relevant assessment year 1963-64 had undergone a change, since by an amendment the word "remuneration" was dropped therefrom. This indicated, according to him, the intention of the <ORG> to exclude cash emoluments from the expression "benefit or amenity or perquisite". In this view of the matters, the <ORG> restricted the disallowance to Rs. 781, being the benefit which was given by way of the use of the company, s car and the reimbursement of the medical expenses, and deleted the balance of Rs. 18,133.

5. Against the order of the <ORG> the department went in appeal before the <ORG> and urged before it that the expression "benefit or amenity or perquisite" used in the said s. 40(c)(iii) would include payment by way of bound and commission. The <ORG>, accepting the reasoning of the <ORG>, affirmed the finding and dismissed the appeal. Thereafter, the department applied to the <ORG> for making a reference to this court, and by its order dated the November, 28 1970, the <ORG> referred the following question of law :

"Whether, on the facts and in the circumstances of the case and on a proper interpretation of section 40(c)(iii) of the Income-tax Act, 1961, the sum of Rs. 18,133 was not deductible in computing the income under the head 'profits and gains of the business' ?"

6. That is how the present reference has come up before use for final hearing. Since the answer to the question depends upon the interpretation of the phrase "any benefit or amenity or perquisite" occurring in the said sub-cl. (iii) of cl. (c) of s. 40 of the Act, it will be helpful for a correct conclusion on the point to know the history of the said clause. When the Finance Act , 1963, for the first time added the said cl. (c)(iii) to s. 40 which came into effect from April 1, 1963, it ran as follows :

"(iii) any expenditure which results directly or indirectly in the provision of any remuneration or benefit or amenity to an employee who is a citizen of India, to the extent such expenditure exceeds the amount calculated at the rate of five thousand rupees per months for any period of his employment after the day of February 28, 1963 :

Provided that in computing the aforesaid expenditure, any payment by way of gratuity or any sums comprised in the transferred balance of an employee participating in a recognised provident fund referred to in clause (vii) of sub-section (1) of section' 17, or the amount of any compensation referred to in clause (i) or any payment referred to in clause (ii) of sub-section (3) of that section shall not be taken into account."

7. The said sub-clause was substituted by the following sub-clause by the Finance Act , 1964, with effect from April 1, 1964 :

"(iii) any expenditure incurred after the day of February 2, 1964, which results directly or indirectly in the provision of any benefit or amenity or perquisite, whether convertible into money or not, to an employee (including any sum paid by the company in respect of any obligation which but for such payment would have been payable by such employee), to the extent such expenditure exceeds one-fifth of the amount of salary payable to the employee for any period of his employment after the aforesaid date :

Provided that in computing the aforesaid expenditure any payment by way of gratuity of the value of any travel concession or assistance referred to in clause (5) of section 10 or passage moneys or the value of any free or concessional passage referred to in sub-clause (i) or any payment of tax referred to in sub-clause(vii) of clause (6) of that section or any sum referred to in clause (vii) of sub-section(1) of section 17 or in clause (v) of sub-section(2) of that section or the amount of any compensation referred to in clause (i) or any payment referred to in clause (ii) of sub-section(3) of that section or any payment referred to in clause(iv) or clause (v) or any expenditure referred to in clause (ix) of sub-section (1) of section 36 shall not be taken into account :

Provided further that nothing in this sub-clause shall apply to any expenditure which results directly or indirectly in the provision of any benefit or amenity or perquisite to an employee whose income chargeable under the head 'Salaries' is seven thousand five hundred rupees or less."

8. What is relevant for our purpose is the language of the clause as it stood amended from April 1, 1964, since we are concerned in the present case with assessment year 1964-65, the relevant previous year of the assessee being the year ending on March 31, 1964. It is thus apparent that by the amendment of the Finance Act , 1964, the word "remuneration" was dropped from the relevant phrase, giving an indication that the legislature did not intend to include cash emoluments in any of the words "benefit" or "amenity" or "perquisite". This is also clear from the the fact that by the said amendment the <ORG> also added the words "whether convertible into money or not". If the <ORG> has intended to include in any of the said words "benefit", "amenity" and "perquisite" cash to the employees, the question of the cash being convertible into money or not would not arise, that was yet another pointer that the <ORG> has no intention to include cash or money paid directly to the employees, in the said sub-clause, yet another indication of the said intention of the <ORG> was the fact that in sub-cl. (i) of the said cl. (c) of s. 40 , the word "remuneration" was retained along with the other words "benefit" and "amenity" even after the aforesaid amendment of sub cl. (iii). This also further showed that the <ORG> was conscious of the distinction between the relevant words and keeping in mind the said distinction the <ORG> has deliberately chosen to delete the expression" remuneration" from sub cl. (iii). All these factors show that the expression "any benefit or amenity or perquisite whether convertible into money or not" used in the said sub-cl. (iii) was not intended to include cash or money paid directly to the employee. This court has taken this view of the said provisions consistently so far, and it also appears that <ORG> has upheld the said view.

9. We may also point out that at least two other <ORG> have taken a similar view of the said provisions. The Calcutta <ORG> in a decision in <CITATION> . (1979) 119 ITR 431, for similar reasons, has held that the amounts paid as overseas allowance, managing allowance, devaluation allowance and transport allowance to the employees did not fall within the expressions "benefit", "amenity" or perquisite used in the said provisions and, therefore, were deductible in computing the business profit of the assessee-company. Similarly, the Madras <ORG> in <CITATION> . (1980) 125 ITR 150, relying upon the aforesaid decision of the Calcutta <ORG> as well as the decision of <ORG> in a batch of petitions arising from the decisions of this court, has taken the same view. Before the Madras <ORG> the question was whether the cash payment made as leave allowance was salary or benefit or amenity or perquisite and whether their disallowance by the <ORG> was proper. The <ORG> took the view that in order to term a payment as a perquisite it has to be a payment other than a cash payment in pursuance of a contract of service. As the payment in that case was cash payment, the same did not constitute perquisite and hence could not be disallowed under s. 40(c)(iii) or s. 40(a)(v) of the Act. We are, therefore, of the view that the finding recorded by the <ORG> that the amount paid by way of bonus and commission to the employees was not covered by the provisions of sub-cl. (iii) of cl. (c) of s. 40 of the Act and, therefore, the same could not have been disallowed as a revenue expenditure by the <ORG> is correct and proper.

10. In the circumstances we answer the question as follows :

That the said amount would be deductible since it is not covered by the provisions of s. 40(c)(iii) of the Act.

11. The assessee to get the costs from the revenue.