PETITIONER: KHEM CHAND Vs. RESPONDENT: THE UNION OF INDIA AND OTHERS DATE OF JUDGMENT: 13/12/1957 BENCH: <NAME>, <NAME> (CJ) BENCH: <NAME>, <NAME> (CJ) AIYYAR, T.L. VENKATARAMA <NAME>, S.K. SARKAR, A.K. BOSE, VIVIAN CITATION: 1958 AIR 300 1958 SCR 1080 ACT: Constitution, Interpretation of-'Reasonable opportunity of showing cause', Meaning of-Punishment of dismissal on Government Servant-Constitutional Protection-Procedure- Constitution of India, Art. 311(2). HEADNOTE: Reasonable opportunity to show cause' in Art. 311(2) Of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent authority, as a result of the enquiry, proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant. Such reasonable opportunity must, therefore, include,- (1) opportunity to deny his guilt and establish his innocence which means that he must be told what the charges against him 1081 are and the allegations on which such charges are based ; (2)opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf and, (3)opportunity to show that the proposed punishment would not be the proper punishment to inflict, which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. High Commissioner for <CITATION> . (1948) 75 I.A. 225, explained and relied on. Secretary of <ORG> for <CITATION> , (1945) F.C.R. I03, not followed. <CITATION> , and <CITATION> for India, L.R. (1936) 64 I.A. 55, referred to. The procedure followed in such cases must, therefore, include the giving of two notices to the servant, one at the enquiry Stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a particular punishment on him. Consequently, in a case where the Government Servant sought to be proceeded against for misconduct was served with a charge-sheet and appeared before two officers conducting the enquiry, one after the other, but no notice was served upon him when the competent authority accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on him, and no cause could, therefore, be shown by him, the provision of Art. 311(2) had not been fully complied with and the order of dismissal passed against him must be declared void and inoperative. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 353 of 1957.

Appeal by special leave from the judgment and decree dated November 1, 1955, of <ORG> (Circuit Bench) at <NAME> in Regular Second Appeal No. 28-D of 1955, arising out of the judgment and decree dated December 31, 1954, of <ORG> at <NAME> in Regular Civil Appeal No. 685 of 1954, affirming the judgment and decree of Subordinate Judge Third Class <NAME> in Suit No. 273/213 of 1953.

<NAME>, for the appellant.

<NAME>, Solicitor-General of India, <NAME> and <NAME>, for the respondents.

1957. December 13. The following Judgment of the Court was delivered by DAS C. J.-This appeal by special leave granted by this Court to the plaintiff-appellant is directed against the judgment and decree passed on November 1, 1955, by a single Judge of <ORG> sitting in <ORG> at Delhi in regular second appeal No. 28-D of 1955. The facts leading up to the present appeal are shortly as follows: On April 6, 1943, the appellant was appointed a sub-inspector under <ORG>. In February 1947, he was transferred to <ORG> and posted as subinspector in <ORG>. On July 3, 1947, the the appellant was confirmed by the then Deputy Commissioner of Delhi who was also the ex-officio Registrar of <ORG>. On August 1, 1948, the appellant was transferred to <ORG> and posted as sub-inspector. On July 1, 1949, the appellant was suspended by the then Deputy Commissioner, Delhi. On July 9, 1949, the appellant was served with a charge sheet under r. 6(1) of the Rules which had been framed by the Chief Commissioner, Delhi to provide for the appointment to the subordinate services under his administrative control and the discipline and rights of appeal of members of those services. After formulating eight several charges the document concluded as follows: " You are, therefore, called upon to show cause why you should not be dismissed from the service. You should also state in your reply whether you wish to be heard in person or whether you will produce defence. The reply should reach the Asst.Registrar, <ORG>, Delhi, within ten days from the receipt of this charge sheet". The chargesheet was signed by <NAME> who was at that time the Deputy Commissioner of Delhi and was admittedly the authority competent to dismiss the appellant. The appellant duly submitted his explanation in writing. One <NAME>, Inspector, Co.

operative Societies was appointed by the Deputy Commissioner, Delhi the officer to hold the enquiry. The appellant attended two sittings before the Enquiry Officer and then applied to the Deputy Commissioner to entrust the enquiry to some Gazetted Officer under him. This request of the appellant was rejected and he was informed accordingly. Indeed, the appellant was warned that the Enquiry Officer had been authorised to proceed with the enquiry ex parte if the appellant failed to attend the enquiry. The appellant, however, did not, after October 20, 1949, attend any further sittings before the Enquiry Officer. The Enquiry Officer thereupon framed four additional charges against the appellant, namely, (1) for his refusal to attend the enquiry, (2) for his refusal to accept the service of the order of the Enquiry Officer, (3) for his absence without permission and (4) for his misconduct in snatching away papers from one <NAME> and using unparliamentary and threatening language.

It appears that at or about this time the appellant became involved in a criminal case on a charge under s. 307 of the Indian Penal Code and on October 30, 1949, he was actually arrested but was released on bail two or three days later. Eventually on May 20, 1950, the appellant was discharged from the criminal charge.

On November 14, 1951, the appellant was served with a notice signed by one <NAME>, Superintendent. The notice was in the following terms: "Please note that you are to appear before Shri <NAME>, 1. A. S., Additional District Magis-trate,on the 24th November, 1951, at 10-30 a.m., in his court room in connection with the departmental enquiry pending against you". The language employed in the notice does lead some support to the conten- tion that the Enquiry Officer, <NAME>, had not concluded the enquiry entrusted to him and that the departmental enquiry was still pending.

Pursuant to the notice the appellant appeared before <NAME> and urged two points, namely, (1)  that the enquiry of the charges framed against him ought to have been held by a Gazetted Officer of <ORG> and (2) that the enquiry should have been held in his presence. It will be noticed that both the points related to the enquiry before <NAME>. On December 13, 1951, <NAME> made a report. After reciting the charge sheet containing the notice calling upon the appellant to show cause why he should not be dismissed from service and setting out the charges contained in the notice and summarising the explanation submitted by the appellant with regard to each of the charges and reciting the prayer of the appellant that the Enquiry Officer should be changed and the rejection thereof and the framing of additional charges and the appellant's absence from the enquiry with effect from October 20, 1949, the report proceeded to set out the actual charges which <NAME> was appoint- ed to enquire into. The report then stated that the enquiry with regard to the first two charges had been held in the presence of the appellant and the rest were enquired into ex parte as the appellant had absented himself from the enquiry. Then the report recited that twelve charges had been proved against the appellant and he was given the benefit of doubt in respect of charge No. (iii) and that no charge sheet had been given with regard to charges Nos.

(xiii) and (xiv) and that no enquiry had been held on those charges. Out of the twelve charges said to have been proved against the appellant, <NAME> found that no charge had been actually framed in one case and, therefore, he reduced the number of proved charges to eleven and proceeded to base his recommendation on them. After stating that the charges of embezzlemient, acceptance of illegal gratification and borrowing of money from societies were so serious that even one of them alone was sufficient to demand the appellant's dismissal and that the entries made in his character roll disclosed that his work and conduct had not been satisfactory and explaining that the enquiry had been held up by reason of the appellant having been challaned under s. 307 , Indian Penal Code , <NAME>

<NAME>, in his report, formulated the following points for consideration: namely, (1) what penalty should be imposed on <NAME> for the eleven charges proved against him? (2) Whether his gun licence should be cancelled and (3) whether the dues of societies, which had been proved, might be realised out of the security deposit furnished by him? Then, after stating that a personal hearing was given to the appellant who raised the two points mentioned above and holding that there was no substance in either of them, paragraph 16 of the report ran as follows:

" The charges of embezzlement, acceptance of illegal gratification, making wrong statement, misbehaviour at the time of enquiry and refusal to receive orders to attend enquiry which had been proved against him are so serious that, I am sorry, I cannot suggest lesser punishment than dismissal from service and he may be dismissed." The report also recommended that the appellant's gun licence be cancelled and that he be directed to surrender his licence and deposit the gun in the district Malkhana and that the money, which had been proved to have been taken by the appellant from various societies, might also be recovered from the security deposit furnished by him. There is no positive and definite statement in <NAME> report that <NAME> had concluded the enquiry or submitted a formal report. The general tenor of <NAME> report, however suggests that <NAME> did arrive, at definite findings on twelve charges. The appellant's grievance is that he was not given a copy of the report of <NAME>, if any had been made, and no such report has been exhibited in this case. At the foot of <NAME> report the following endorsement appears over the signature of the Deputy Commissioner, Delhi under date December 14, 1951: " The report is approved. Action accordingly." Thereupon on December 17, 1951, a formal order was issued over the signature of the Deputy Commissioner, Delhi. It was in the following terms: -

"I, the undersigned, do hereby dismiss <NAME>, sub-inspector, <ORG>, Delhi, from <ORG> with effect from the date of this order. He has been found guilty of the charges of embezzlement, acceptance of illegal gratification, making wrong statement,misbehaviour at the time of the enquiry and refusal to receive order to attend the enquiry. I further order that money which has been proved to have been taken by <NAME> from various societies be recovered from the security deposit furnished by him.

On March 15, 1952, the appellant appealed to the Chief Commissioner, but his appeal was dismissed on December 8, 1952. Thereafter the appellant served a notice of suit on the respondents under s. 80 of the Code of Civil Procedure and on May 21, 1953, filed civil suit No. 213 of 1953 complaining, inter alia, that Art. 311(2) had not been complied with. The suit was decreed by the subordinate judge, Delhi on May 31, 1954, declaring that the plaintiff's dismissal was void and inoperative and that the plaintiff continued to be in the. service of the State of Delhi at the date of the institution of the suit and awarding costs to the plaintiff. <ORG> preferred an appeal against the judgment of the subordinate judge, Delhi, but the appeal was dismissed by the senior subordinate judge, Delhi on December 21, 1954, and the decree of the trial court was confirmed. A second appeal was taken by the defendants to <ORG>. By his judgment dated November 1, 1955, the Single Judge held that there had been a substantial compliance with the provisions of Art. 311 and accordingly accepted the appeal, set aside the decree of the courts below and dismissed the plaintiff's suit. On September 6, 1956, the plaintiff obtained special leave from this <ORG> and has preferred this appeal against the order of the learned Single Judge. The appellant has also been allowed to prosecute the appeal in forma pauperis. In the courts below a point was raised as to whether the appellant was a member of any of the services referred to in Art. 311. But it was a conceded before the High <ORG> and has also been admitted before us that the appellant was such a member and consequently that point does not arise. The only point that has been canvassed before us, as it had been before the High <ORG>, is: Was the appellant given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ? There is no dispute that the appellant was served with a charge sheet on July 9, 1949, as required by r. 6 of the Rules which had been framed by the Chief Commissioner, Delhi and which governed the appellant's conditions of service. It is also conceded that the appellant actually appeared at two hearings before the Enquiry Officer, <NAME>, but that subsequently he wanted a transfer of the enquiry to some other officer and that that prayer having been refused he did not take any further part in the enquiry before that officer. There is no grievance that no opportunity had been given to him to defend himself against the charges levelled against him in that enquiry. It is also an admitted fact that some time after the appellant was discharged from the criminal case, be received a notice on November 14, 1951, requiring him to appear before <NAME> on November 25, 1951, in connection with the pending enquiry. The appellant did appear on the appointed day, bad been given a personal hearing and in fact raised two several objections against the enquiry held by <NAME>. His only grievance is that, after <NAME> had made his report on December 13, 1951, recommending the dismissal of the appellant and the Deputy Commissioner had on the very next day approved of the report and proposed to take action accordingly, the appellant was not given an opportunity to show cause against the action so pro. posed to be taken in regard to him, as he was entitled to under Art. 311 of the Constitution.

In order to appreciate the arguments advanced by learned counsel for the parties, it is necessary at this stage to set out the provisions of the Constitution qearing on them. The relevant portions of Arts. 310 and 311 of the Constitution, which substantially reproduce sub-ss. (1), (2) and (3) of s. 240 of the Government of India Act, 1935, are as follows:-

" 310(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the <ORG> or of an all- India service or holds any post connected with defence or any civil post under the <ORG>, holds office during the pleasure-of the President, and every person who is a member of a civil service of a <ORG> or holds any civil post under a <ORG> holds office during the pleasure of the Governor of the <ORG>.

(2)...................................................... 311(1) No person who is a member of a civil service of the <ORG> or an all-India service or a civil service of a <ORG> or holds a civil post under the <ORG> or a <ORG> shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2)No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided................................................. (3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final." The answer to the question canvassed before us depends on a true construction of the aforesaid pro,visions and in particular on the view we take as to the meaning, scope and ambit of Art. 311(2). In <NAME> case (1) it wag said that the word "removed " was not in s. 240(3) but had been introduced in Art. 311(2). It may be mentioned that although the word " removed " was not actually used in s. 240(3), the reference to dismissal, according to s. 277 , included a reference to removal.

(1) Civil Appeal No. 65 Of 1957, decided on November 1, 1957.

<NAME>

Article 310(1) no doubt provides that every person falling within it holds office during the pleasure of the President or the Governor, as the case may be. The language of both cls. (1) and (2) of Art. 311 are prohibitory in form and was held by <ORG> in High Commissioner for India v. <NAME> to be inconsistent with their being merely permissive and consequently those provisions have to be read as qualifications or provisos to Art. 310(1) as has been held by <ORG> in that case and recently by this Court in <CITATION> (2) in a judgment pronounced on November 1, 1957. The limitations thus imposed on the exercise of the pleasure of the President or the Governor in the matter of the dismissal, removal or reduction in rank of government servants constitute the measure of the constitutional protection afforded to the government servants by Art. 311(2).

Clause (1) of Art. 311 is quite explicit and protects government servants of the kinds referred to therein by providing that they cannot be dismissed, or re. moved or reduced in rank by a lesser authority than that which appointed them. Likewise cl. (2) protects government servants against being dismissed, removed or reduced in rank without being given a reasonable opportunity to show cause against the action proposed to be taken in regard to them. As has been explained by this Court in <NAME> case (2), the expressions 'dismissed', 'removed' and ,reduced in rank' are technical words taken from the service rules where they are used to denote the three major categories of punishments.

In exercise of powers conferred by s. 96-B(2) of the Government of India Act, 1915, the Secretary of <ORG> in <ORG> framed Civil Service (Governors Provinces Classification) Rules. Rules (x) and (xiii) of those rules provided that local government might, for good and ,sufficient reasons, inflict the several punishments therein mentioned on persons therein indicated. Rule (xiv) prescribed the procedure for all cases in which dismissal, removal or reduction in rank of any officer was intended (1) L.R. (1948) 75 I.A. 225 at P. 241.

to be ordered. These rules were reproduced with some modifications in the Civil Services (Classification, Control and Appeal) Rules which were, on May 27, 1930, ,promulgated by the Secretary of <ORG> in <ORG> in exercise of the same powers under s. 96-B of the Government of India Act, 1915. Rule 49 of those rules specified seven different kinds of punishments which could, for good and sufficient reasons, be imposed upon the members of the services therein specified. Rule 55 reproduced old r. (xiv) with greater details. It provided:

" Without prejudice to the provisions of the Public Servants (Inquiries) Act , 1850, no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communi- cated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to crossexamine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to com- municate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged."

Similar rules were framed and are to be found in the Indian Railway Establishment Code which governs the railway servants. Rule 6 of the Rules framed by the Chief Commissioner, Delhi, referred to above, is more or less on the same lines.

<CITATION> for India it was held, with reference to the rules made under s.96-B of the Government of India Act, 1915, that while that section assured that the tenure of office, though at pleasure, would not be subject to capricious and arbitrary action, but would be regulated by the rules, it gave no right to the appellant, enforceable by action, to hold his office in accordance with those rules. It was held that s. 96-B and the rules made thereunder only made provisions for the redress of grievances by administrative process. The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of the <ORG> under the Government of India Act, 1915, the rules could not over-ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself. The only protection that the Government servants had was that, by virtue of s. 96- B(1), they could not be dismissed by an authority subordinate to that by which they were appointed. The position, however, improved to some extent under the 1935 Act which, by s. 240(3) , gave a further protection, in addition to that provided in s. 240(2) which reproduced the protection of s 96-B(1) of the Government of India Act, 1915. We have, therefore, to determine the true meaning, scope and ambit of this now protection given by s. 240(3) of (1) L. R. (1936) 64 I.A. 55.

the Government of India Act, 1935, which has been reproduced in Art. 311(2).

The majority of the Judges of <ORG> (<NAME>, <NAME>, and <NAME>, J.) in <NAME> case (1) took the view that in sub-s. (3) of s. 240 there had been enacted provisions of a very limited scope in permanent statutory form as compared with the provisions under the rules considered in <NAME> case (2). Further down, after referring to the fact that prior to 1935 a sort of protection for the servants of the Crown provided by sub-s. (3) was merely to be found in the rules, many and various and liable to change, their Lordships proceeded to state that from those rules had been picked out and enacted in the section itself certain limited specific provisions only. The majority of <ORG> at page 138 construed s. 240(3) as follows:

"In our judgment the words "against the action proposed to be taken in regard to him " require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon. It should be noted that the sub-section does not require any inquiry, any formulation of charges, or any opportunity of defence against those charges. All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him. It is also significant that there is no indication as to the authority by whom the action is to be proposed. It does, however, seem to us that the sub- section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the (I) (1945) F.C.R. I03, 136.

(2) L.R. (1936) 64 I.A. 55 action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank. " The above passage indicates that in the view of the majority of the judges of <ORG> s. 240(3) corresponding now to art. 311(2) does not " require any inquiry, any formulation of charges or any opportunity to defend against those charges ". According to them " all that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him ".Their Lordships added that as that opportunity had to be a reasonable opportunity the section must be taken to require "not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given reasonable time to -make his representations against the proposed action and the grounds on which sit is proposed to be taken ". It is quite clear that the majority of <ORG> put a somewhat narrow interpretation on the relevant provision in that they considered that the requirement of reasonable opportunity contemplated by it arose only at a later stage when the competent authority definitely proposed to take a particular action and that this opportunity did not cover the earlier stage where charges were formulated and enquired into. <NAME>, <NAME>... in his dissenting judgment took much the same view on this point as did <ORG>. <ORG> observed as follows:

"The plaintiff's contention is that this opportunity should have been afforded to him after the finding of the enquiring officer had been considered and the punishment decided upon. With this contention we are unable to agree. Eight charges were served on the plaintiff and at the end he was asked to show cause why he should 'not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach of Government Rules and conduct unbecoming to the Indian Civil Service. He was aware 'from the very start of the enquiry against him that removal from service was one of the various actions that could have been taken against him in the event of some or all the charges being established, and in this sense he was showing cause during the course of the inquiry against the action proposed. The plaintiff's contention that there should be two enquiries the first to establish that be had been guilty and the second to determine what should be the appropriate punishment, and that in each stage he should have reasonable and independent opportunities to defend and show cause does not appear to be correct or intended by the <ORG> (1). " In agreement with <ORG> <NAME> held that the requirements of sub-s. (3) of s. 240 (1) (1944) I. L. R. 25 Lah. 325, 347, 348.

demanded nothing beyond what was required for compliance with the provisions of r. 55 of the Civil Services (Classification, Control and Appeal) Rules. His Lordship found nothing in the language of el. (3) to indicate that anything more or anything different was contemplated or to suggest that a further opportunity was to be given after the enquiry had been completed in the presence of the officer charged and the enquiring officer had made his report. The learned Judge was unable to accept the suggestion that the words of the statute were appropriate only to the stage when the authorities would be in a position to indicate definitely what action they intended to take, namely, whether it was to be one of dismissal or one of reduction and that this could be predicated only after the Enquiring Officer had made his report.

In our judgment neither of the two views can be accepted as a completely correct exposition of the intendment of the provisions of s. 240(3) of the Government of India Act, 1935, now embodied in Art. 311(2) of the Constitution. Indeed the learned Solicitor-General does riot contend that this provision is confined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him. We think that the learned Solicitor General is entirely right in not pressing for such a limited construction of the provisions under consideration. It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punish-

ment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. If this is the correct meaning of the clause, as we think it is, what consequences follow ? If it is open to the <ORG> servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implict in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case.

To summarise: the reasonable opportunity envisaged by the provision under consideration includes-

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by crossexamining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant. In short the substance of the protection provided by rules, like r. 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in s. 240 (3) of the Government of India Act, 1935 so as to give astatutory protection to the government servants and has now been incorporated in Art. 311 (2) so as to convert the protection into a constitutional safeguard. We find support for our above mentioned conclusion in the judgment of <ORG> in <NAME> case (1). It is true that after quoting a portion of the passage from the judgment of the majority of <ORG> set out above their Lordships at page 242 stated that they agreed with the view taken by the majority of <ORG>, but their Lordships did not stop there and went on to say: " In their opinion, sub-s. 3 of s. 240 was not intended to be, and was not, a reproduction of r. 55, which was left unaffected as an administrative rule. , Rule 55 is concerned that the civil servant shall be informed " of the grounds on which it is proposed to take action ", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of " a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ". In the (1) L.R. (1948) 75 I.A. 225 at 241.

opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which sub-s. 3 makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an inquiry under r. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry."

The above passage quite clearly explains that the point on which their Lordships of <ORG> agreed with the majority of <ORG> is that a further opportunity is to be given to the government servant after the charges have been established against him and a, particular punishment is proposed to be meted out to him. The opening sentence in the above passage, namely, that s. 240 (3) was not a reproduction of r. 55 and that r. 55 was left unaffected as an administrative rule does seem to suggest that s. 240 (3) is not at all concerned with the enquiry into the charges which comes at the earlier stage, but a close reading of the rest of that passage will indicate that in their Lordships' view the substance of the protection of r. 55 is also included in s. 240 (3) and to that is superadded, by way of further protection, the neces- sity of giving yet another opportunity to the government servant at the stage where the charges are proved against him and a particular punishment is tentatively proposed to be inflicted on him. Their Lordships referred to " statutory opportunity being reasonably afforded at more than one stage ", that is to say, that the opportunities at more stages than one are comprised within the opportunity contemplated by the statute itself. Of course if the government servant has been through the enquiry under r. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, which implies that if no enquiry has been held under r. 55 or any analogous rule applicable to the particular servant then it will be quite reasonable for him to ask for an enquiry. Therefore, in a case where there is no rule like r. 55 the necessity of an enquiry was implicit in s. 240 (3) and is so in Art. 311(2) itself. Further their Lordships say that an enquiry under r. 55 " would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry ". This clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his " statutory right " and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant.

The learned Solicitor General appearing for <ORG>, then, contends that assuming that the government servant is entitled to have an opportunity not only to show cause against his guilt but also an opportunity to show cause against the punishment proposed to be inflicted on him, the appellant in the present case has had both such opportunities, for by the notice served on him on July 9, 1949, the appellant was called upon to show cause against the charges as well as against the punishment of dismissal in case the charges were established. He points out that in <NAME> case (1) the notice given to <NAME> did not specify dismissal as the only and particular punishment proposed to be imposed on him, but called upon him to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority, might think fit to enforce, whereas in the present case the notice referred to above clearly indicated that the punishment of dismissal alone was proposed to be inflicted.

L.R. (1948) 75 1. A. 225.

The learned Solicitor General in support of his contention relies on the observations of the majority of <ORG> quoted above and in particular on the passage where their Lordships stated " that in some cases it would be quite sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced in rank if all or any of the charges are proved, dismissal or reduction in rank would follow and that this would be sufficient in some cases." He also strongly relies on the circumstance that their Lordships of <ORG>, after quoting the above passage, stated that they agreed with the view taken by the majority of <ORG>. But as we have already explained, the other observations of their Lordships of <ORG>, which follow immediately, quite clearly indicate that what they agreed with was that a second opportunity was to be given to the government servant concerned after the charges had been brought home to him as a result of the enquiry. Their Lordships made it clear that no action could, in their view, be said to be proposed within the meaning of the section until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on, for before that stage the charges remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for which sub-s. (3) made provision. A close perusal of the Judgment of <ORG> in <NAME> case will, however, show that the decision in that case did not proceed on the ground that an opportunity had not been given to <NAME> against the proposed punishment merely because in the notice several punishments were included, but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment. There is as the Solicitor-General fairly concedes, no practical difficulty in following this procedure of giving two notices at the two stages. This procedure also has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him. If the competent authority were to determine, before the charges were proved, that a particular punishment would be meted out to the government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject matter of the charge or, at any rate, as regards the punishment itself. Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done.

It is on the facts quite clear that, when <NAME> concluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case. <NAME> was not, however, the competent authority to dismiss the appellant and, therefore, he could only make a report to the Deputy Commissioner who was the person competent to dismiss the appellant. When the Deputy Commissioner accept- ed the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have a further opportunity given to him to show cause why that particular punishment should not be inflicted on him. There is, therefore, no getting away from the fact that Art. 311(2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported. We, therefore, accept this appeal and set' aside the order of the Single Judge and decree the appellant's suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on December 17,1951, purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which this appeal has arisen. The appellant will get costs throughout in all courts. He must pay all court fees that may be due from him. Under order XIV, Rule 7 of the Supreme Court Rules were direct that the appellants could be paid his fees which we assess at Rs. 250.

Appeal allowed.


JUDGMENT

1. The only question for determination is whether the defendant No. 3 took with notice of the plaintiff's right of pre-emption and of the necessity of his consent. The partition-deed was the first defendant's deed of title. By the partition he obtained a right to the specific portion of the house which he conveyed to the defendant No. 3. As remarked by <NAME>, Master of the Rolls, in <NAME> v. <ORG>, 17 Ch. D., 353 constructive notice of a deed is constructive notice of its contents, provided that the deed is a deed relating to the title and forming part of the chain of title. <NAME> v. <NAME> I Hare, 43, which is relied on by the respondent, was referred to and it was held that that class of cases has no bearing at all on a case where the vendee knows that the deed of which he has notice is a deed affecting the land, and the question as to the extent to which it does affect the land can be ascertained only by looking at the deed itself. The third defendant's attention was drawn by the sale-deed to the deed of partition, and his omission to ascertain its contents must, with reference to the principle indicated in the remarks of the Master of the Rolls in the above case, be construed as wilful abstention from an inquiry which he ought to have made.

2. With reference to the question of tender, we observe that the plaintiff expressed his readiness to pay the price fixed by the <ORG> and that he offered to pay the Rs. 130 paid by third defendant to first defendant. We cannot, therefore, concur with the opinion of the Subordinate Judge that the absence of tender deprived appellant of his right of pre-emption.

3. As for the contention of the respondents' pleader that the Subordinate Judge recorded no finding on the first issue, we observe that this point was not pressed upon him, although it was taken in the memorandum of appeal. Both <ORG> found that the covenant was beneficial to both parties, and we cannot, therefore, allow the contention that the covenant was not binding on first defendant because concluded by his guardian. We cannot adopt the suggestion that the covenant is binding only on the guardian, and it is clearly not in contravention of the rule against perpetuity.

4. The decree of the lower <ORG> is reversed and that of the District Munsif restored with costs in this and the lower <ORG>.


PETITIONER: COMMISSIONER OF SALES TAX, <NAME> Vs. RESPONDENT: JASWANT SINGH CHARAN SINGH DATE OF JUDGMENT: 23/02/1967 BENCH: <NAME>, J.M. BENCH: <NAME>, J.M. MITTER, G.K. CITATION: 1967 AIR 1454 1967 SCR (2) 720 CITATOR INFO : E 1973 SC 78 (5) F 1973 SC2440 (3) R 1974 SC1362 (3) R 1977 SC 153 (7) R 1977 SC 597 (34) R 1981 SC1079 (4) D 1985 SC1201 (12) R 1985 SC1387 (11) F 1985 SC1644 (8) RF 1989 SC 516 (27) R 1990 SC1579 (39) RF 1991 SC 583 (29) ACT: Madhya Pradesh General Sales Tax Act, 1958-- Charcoal whether 'coal' within meaning of Entry I Part III of Sch. II to the Act-rate of tax applicable. HEADNOTE: The respondent was a dealer in firewood and charcoal. in ings for assessment of sales tax under the Madhya Pradesh, General sales Tax Act . 1958, the respondent claimed that charcoal was 'coal' within the meaning of Entry I of Part Ell of the Schedule II to the Act and fore was taxable at the rate of 2%. The sales tax authorities however held that charcoal was not 'coal' and was taxable at 4% as it fell the rwsiduary Entry I of Part VI of Schedule II. <ORG> the High Court held in favour of the respondent relying on the dictionaty meaning of the word 'coal'. The Commissioner of <ORG> appealed. It was urged on behalf of the appellant that coal wag a mineral while charcoal was manufactured from products like wood and other things by human agency and therefore the dictionary meaning ought not to have been relied upon. Reliance was also placed on legislative practice which had treated coal and charcoal as different items. In interpreting items in statutes like the Sales Tax resort should be had not to the scientific or technical meaning of the terms used but to their popular meaning or the meaning attached ter them by those dealing in them, that is to say, in their commercial sense. Viewed from this angl both a merchant dealing in coal and a consumer wanting to purchase it would reaard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoar in the term 'coal'. Under the Entries.' 'coal' as well as 'firewood' were taxed at 2%. It could not have been intended to tax charcoal alone at 4%. Entry I of Part III of Sch. II must therefore be read broadly and held to include charcoal. It was not possible to adopt its connotation from other statues passed for different purposes or in the context of different objects.[713 B; 725 A-E; 726 c] <NAME> etc. v. Assistant Sales Tax Officer, <NAME>,  1 S.C.R. 279 and His Majesty the King v. <ORG>,  C.L.R. (Ex.) 122, relied on. Attorney-General v. <NAME>, (1831) 2 D & Cl. 302, Grenfell v. Inland Revenue Commissioner, (1876) 1 Ex-. D. 242 Holt & Co. v. <NAME>, (1881) 16 Ch. D. 718, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2011 of 1966.

Appeal by special leave from the judgment and order dated February 23, 1966 of <ORG> in M.C.C. No. 169 of 1965.

<NAME> and <NAME> for the appellant.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, J. The appellant has been carrying on business and s a dealer in firewood and charcoal. For the period from March 29, 1962 to April 29, 1962, he was assessed to sales tax under s. 18(6) of the Madhya Pradesh General Sales Tax Act, 1958 as he did not have any registration certificate in respect of this period. The Additional Sales Tax Officer, Ujjain, and the Additional Appellate Assistant Commissioner, <NAME>, both held that charcoal in which the appellant was dealing was not covered by Entry I of Part III of Sch. II to the Act, but that it fell under the residuary Entry I of part VI of that Schedule; and consequently was liable to be assessed at the rate of 4 % of the price of charcoal. In a further appeal before <ORG>, the <ORG>, relying on the dictionary meaning of the word 'coal' as given in Blackies' concise Dictionary, held that charcoal would be included in the term 'coal', and, therefore, Entry I in Part III of Schedule II would Apply and the tax chargeable would be at 2 % only. At the instance of the Commissioner of Sales Tax, the <ORG> referred the following question to <ORG> "Whether charcoal is covered under Entry I of Part III of Sch. 11 to the M.P. General.

Sales Tax Act , 1958, and is taxable at the rate of 2 % or will be taxable at the rate of 4 % under Entry I of Part VI of Sch. II to the M.P. General Sales Tax Act, 1958 ?"

<ORG> held that while construing entries in a sta- tute like the Sales Tax Act s, the court should prefer the popular meaning of the terms used in such entries and not their dictionary meanings and that so construed charcoal would be included in the word 'coal'. Consequently, it answered the question, in favour of the respondent. According to <ORG>, charcoal would be covered by Entry I of Part III of Sch. 11 and was taxable at 2 %. Hence this appeal by special leave.

Entry I of- Part III of Sch. 11 reads as follows "1. Coal, including coke in ill its forms..2 per cent" Entry I of Part VI of the said Schedule reads as follows "I All other goods not included in Schedule 1 or any other part of this Schedule. 4 per cent"

We may also reproduce Entry 8 of Part III of Schedule II2 percent" which is "8. Firewood The meaning given to the word 'Coal' in Blackies' Concise Dictionary, New Edition, page 134 relied on by the <ORG> reads as follows :-

"Coal : Kol : A piece of wood or other combustible substance burning or charred; charcoal; a cinder; now, usually a solid black substance found in the earth, largely employed as fuel, and formed from vast masses of vege- table matter deposited through the luxurious growth of plants in former epochs of the earth's history."

The Shorter Oxford English Dictionary at pages 330 and 331 gives the meaning of coal as follows :-

"1. A piece of carbon glowing without a flame.

2. A piece of burnt wood, etc. that is still capable of combustion without flame, cinder, ashes, 3. Charcoal. 4. A mineral, solid, hard, opaque black or blackish, found in seams in the earth, and largely used as fuel; it consists of carbonized vegetable matter". At page 293, the said Dictionary gives the meaning of charcoal as follows "The suggestion that Char=chare v. or sb. as if turn coal, i.e. wood turned into coal, lacks support. 1. The black porous residue, consisting (when pure) wholly of carbon, obtained from partly burnt wood, bones, etc. Hence specified as wood, vegetable, animal etc.".

The Webster's New International Dictionary gives the following meaning of charcoal at page 452 :-

"(Char to burn, reduce to coal; Coal);

1.A dark coloured or black porous form of carbon prepared from vegetable or animal substance, as that made by charging wood in a kiln, retort, etc., from which air is excluded."

According to these Dictionaries 'coal' would appear to in- clude 'charcoal'. The contention of the respondent was that charcoal is one of the species of coal, and, therefore, would be covered by Entry I of Part 111, and, therefore, the answer given by <ORG> is correct. Counsel for the <ORG>, however, raised three contentions; (1) that coal and charcoal are different products, one being a mineral product and the other prepared from wood and other articles by human agency, and, therefore, the term 'coal' would not cover charcoal; (2) that while construing such entries, the dictionary meaning should not be preferred to the popular meaning or the meaning in the commercial sense; and (3) that the <ORG> policy in reference to the term 'coal' shows that it is not used by the <ORG> in India so as to include charcoal.

Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well-settled that while interpreting items in statutes like the Sales Tax Act s, resort should be had not to the scientific or the technical meaning of such terms' but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense. In <NAME> v. Assistant Sales Tax Officer, Akola,(1) the petitioners who were dealers in betel leaves were assessed to sales tax under the C.P. and Berar Sales Tax Act, 1947. They contended that under section 6 read with the Second Schedule of the Act betel leaves were not taxable. Section 6 provided that articles mentioned in that Schedule were exempt from gales tax and articles not mentioned were taxable. There were two items in the, Schedule, namely, item 6, "vegetables", and item 36, "betel leaves", but subsequently item. No. 36 was deleted by an amendment of the Act. This Court held that the use of two distinct and different items i.e., 'vegetables' and 'betel leaves' and the subsequent removal of betel leaves from the Schedule were indicative of the <ORG>'s intention of not exempting betel leaves from taxation. The Court laid down that the word 'vegetable' must be interpreted not in a technical sense but in its popular sense as understood in common language i.e., denoting a class of vegetables which are grown in a kitchen garden or on a farm and are used for the table. The same principle was also laid down in <NAME>. The question there was whether salted peanuts and cashew nuts fell within the category of either fruits or vegetables. A considerable expert opinion was led in that case, but the court ultimately found that the <ORG> in enacting the, Excise Tax Act, 1927, Part XIII and Schedule III was not using words which were applied to any particular science or art and, therefore, the words used are to be construed as they are understood in common language. It also held that what constitutes a 'fruit' or 'vegetable' within the meaning of the Excise Tax. Act is what would ordinarily in matters of commerce in Canada be included therein and not what would, be a botanist's conception of the subject matter. If a statute uses the ordinary words in every day use, such words should be construed according to- their popular sense. At page 128 of the Report <NAME>, <NAME> observed, "The object of the Excise Tax Act is to raise revenue, and for this purpose to class substance according to the general usage and known denominations of trade. In my view, therefore, it is not the botanist's conception as to what constitutes a (1)  1 S.C.R. 279.

(2), [1951] C.L.R. 122.

'fruit' or 'vegetable' which must govern the interpretation to be placed on the words, but rather what would ordinarily in matters of. commerce in Canada be included therein. Botanically, oranges and lemons are berries, but otherwise no one would consider them as such." This rule was stated as early as 1831 by Lord <NAME> in Attorney-General v. <NAME>). Similarly, in Grenfell v. Inland Revenue Commissioner(2) <NAME>, <NAME> observed, "that if a statute contains language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words 'popular-sense', that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.". But "if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that <ORG> merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adapted to the fitness of the matter of the statute"., On the other hand, as <ORG> said in <ORG> v. <NAME>) "If it is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning, namely, its technical or scientific meaning."

Our attention was drawn to the decision in <NAME>, Agricultural Income Tax and Rural Sales Tax Officer, <NAME> and others(4), where green leaves plucked from tea bushes were held to fall under the word 'tea'. But this decision turned on the definitions of turnover in s. 3 of the Travancore General Sales Tax Act, XVIII of 1124 which while including sales of agricultural ,or horticultural produce included 'tea, coffee, rubber' etc. in the turnover. The court held there that 'tea' was not in the statute in the sense in which it is used in commerce but in the sense of a product of plant life, and, therefore, green leaves plucked from tea plants were covered by the term 'tea. The result emerging from these decisions is that while cons- truing the word 'coal' in Entry I of Part III of Sch. II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute is being one levying a tax on goods must in the absence of a technical term or a term of science or art, be presumed to hive used an ordinary term as coal according to the meaning ascribed 'to it in common parlance. Viewed (1) 11831] 2 D & Cl. 302.

(3) [1881]16 Ch. D. 718,720.

(2) [1876] I Ex-D. 242,248.

(4) [1954] S S.T.C. 384.

from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal. There is another aspect also from which Entry I of Part III may be considered. Section 14 of the Central Sales Tax Act, 1956 declares certain goods as goods of special importance in inter-<ORG> trade or commerce. One of these is 'coal including coke in all its forms'. Section 15 of that Act provides that the <ORG> <ORG> in theirrespective sales tax laws can impose only 2 % tax on these goods.That is why in Entry I of Part III 'coal' is stated to include 'coke in all its forms', and coal including coke in all its forms is charged at 2 % tax. <ORG>, however, knew or must be presumed to know that firewood is also used by the people as fuel, but would not fall within that Entry, and, therefore, provided 2 % tax on it by a separate entry, namely, Entry 8 in Part III. Having taxed coal and firewood at 2 %, it does not appear to be possible that the <ORG> deliberately left out charcoal from the connotation of the word 'coal' and left it to be charged ,it 4% under the residuary Entry 1 in Part VI. The object of the <ORG> clearly was to tax coal and firewood as articles used as fuel and did not make a separate entry in regard to charcoal as it must be aware that coal is understood in ordinary and commercial sense would include charcoal. Had that not been so, instead of leaving it to be dealt with under the residuary item, it would have enacted a separate entry just as it did in the case of firewood which it knew would not in its ordinary meaning fall under the term 'coal'. In this view, the contention of counsel for the <ORG> must be rejected.

Counsel then relied upon s. 5 of the Colliery Control Order, 1945, in order to show that the <ORG> there had dealt with coal in its strict and technical meaning. He also relied upon certain other statutory provisions with a view to show that the <ORG> has all along been using the word 'coal' as a mineral product only. The Colliery Control Order deals with collieries and obviously, therefore, the term 'coal' there is used as a mineral product. It is a well-settled principle that in construing a word in an Act motion is necessary in adopting a meaning ascribed to that word in other statutes. As Lord <NAME> stated in <NAME> v. Chislett,(1) 'it would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural (1)  A.C. 220.224.

sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone'. The strict sense in which such a word is to be found in another statute may mean the.etymological or scientific sense and would not in the context of another statute be applicable. From the Colliery Control Order, 1945 or the other provisions to which our attention was drawn, it would neither be possible nor safe to adopt the meaning of the word 'coal' given in those provisions for the purposes of the Act under construction. Nor can we infer that there is a Legislative policy consistently followed by the <ORG> merely because the word 'coal' has been used as meaning a mineral product in the context of these statutes, It would not, therefore, be possible to discard the meaning of the word 'coal' in this statute as understood in its commercial or popular sense and to adopt its connotation from other statutes passed for dif- ferent purposes or in context of different objects. We agree with the meaning of the word 'coal' given by <ORG> and hold that charcoal would be taxable at the rate of 2 % only.

The appeal is consequently dismissed with costs. Appeal dismissed.


JUDGMENT <NAME>, J.

1. This is an appeal under Section 2(1)(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The appellants were tried by the Sessions Judge, Panaji for the offence of intentionally causing the death of one <NAME> (hereinafter referred to as the deceased) on 19th October, 1971 at a place between two villages in Goa, namely, Cananguinim and Nuvem. The learned Sessions Judge acquitted both the appellants since in his opinion the evidence led on behalf of the prosecution suffered from serious infirmities and did not bring home the offence against the appellants beyond reasonable doubt. The State preferred an appeal against the acquittal of the appellants to <ORG>, Goa. The learned Additional Judicial Commissioner, who heard the appeal, disagreed with the view taken by the learned Sessions Judge reversing the acquittal of the appellants, convicted them of the offence under Section 302 read with Section 34 of the Indian Penal Code for intentionally causing the death of the deceased and sentenced each of them to suffer imprisonment for life. The appellants challenge their conviction and sentence in the present appeal.

2. The prosecution case against the appellants was that the incident which took place on 19th October, 1971 resulting in the death of the deceased was the culmination of a long standing feud between the deceased and the members of his family on the one side and almost the entire village of Canenguinim on the other. The conflict centered round a plot of land adjoining the property of <ORG> and though the plot was in the actual possession of the deceased and the members of his family, a claim was made to it on behalf of the <ORG> and the rest of the villagers were supporting the claim of the <ORG>. There were various incidents of violence between the two groups since 1969 and there were complaints and cross-complaints resulting in prosecutions of persons belonging to both groups. This had led to great tension in the village and as a security measure, two con stables had been posted in the village as duty guards.

3. It appears that on 19th October, 1971 the deceased, who was an old man aged more than 60 years, accompanied by his grandson <NAME>, went to the neighbouring village Nuvem to engage labourers for work in his paddy field. He left village Cananguinim at about 2.30 p.m. and after arranging for labourers in village Nuvam, he started for the return journey along with <NAME>. The road from Nuvem to Kananguinim was a mere footpath and it led across a hill covered with dense thorny shrubs and trees. Whilst the deceased and <NAME> were passing through the forest on the hill, the appellants came from behind and attacked the deceased. The first appellant had a knife and the second appellant a 'coita' and with these weapons they caused injuries on the neck and other parts of the body of the deceased resulting in his death. The appellants then dragged the dead-body from the footpath inside the forest. On seeing this <NAME> ran towards the village shouting that his grand-father has been cut. On the way, he met his father <NAME> who was returning from his field and on being questioned by <NAME>, <NAME> told him that '<NAME>', meaning thereby the first appellant, and <NAME>'s son, meaning thereby appellant No. 2, had killed his grand-father. <NAME> was accompanied by his servant <NAME> and he sent <NAME> home along with <NAME> and himself rushed to the scene of the offence. After he had gone a little distance, he noticed a black cloth bag lying on the footpath and he also found blood stains and chappals of his father and following drag marks on the grass, which also bore blood stains, he walked down the slope of hill inside the forest and saw the dead body of the deceased lying on the ground with both the appellants gazing at it. On seeing this he shouted "<NAME>, why are you killing my father" and also pretended to call for help, on which the appellants ran away. <NAME> thereafter proceeded towards the village and on the way he met his sister, mother, daughter of his sister and <NAME> who were coming towards the scene of the offence. <NAME> took all of them to the place where the dead body was lying and after leaving them to guard the dead body, he came home with <NAME> and then after leaving <NAME> at home, he proceeded to Quepem for the purpose of lodging the first information report. The first information report was taken down by <NAME> and he immediately thereafter, started the investigation. On the completion of the investigation the appellants were ultimately charge-sheeted and tried before the learned Sessions Judge. The trial ended in the acquittal of the appellants, but on appeal the acquittal was reversed and the appellants were convicted under Section 302 read with Section 34 and sentenced to suffer life imprisonment. Hence the present appeal.

4. It is evident from the judgment of the learned Additional Judicial Commissioner that the conviction of the appellants rests primarily on the oral evidence of <NAME> and <NAME> and certain circumstantial evidence relating to the arrest of appellant No. 1 and the recovery of 'coita' as a result of statement made by appellant No. 2. We will presently examine first the evidence, but before we do so, we must point out that this is a case where the acquittal of the appellants by the learned Sessions Judge has been reversed by the learned Additional Judicial Commissioner. It is now well settled that though the appellate court has the same powers as <ORG> of appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it finds that the view taken by <ORG> is unreasonable or perverse. If the view taken by <ORG> is a reasonably possible view, the appellate court should not disturb an acquittal merely because it thinks that another view is better or more preferable. It is from this point of view that we must proceed to examine whether the learned Additional Judicial Commissioner was right in reversing the acquittal of the appellants.

5. Turning first to the evidence of <NAME>, it may be pointed out straightway that he was a child witness aged only 6 years at the time when he gave evidence. His evidence is, therefore, to be approached with great caution. He was, according to the prosecution, the only eye-witness to the crime. We have carefully gone through his evidence, but we are constrained to observe that even after making the utmost allowance in his favour in view of the fact that he is a child witness, we find it difficult to accept his testimony. There are several contradictions from which his evidence suffers, such as who had which weapon, but it is not merely on account of these contradictions of a minor character that we are inclined to reject his evidence. There are serious infirmities affecting his evidence and of them, the most important is that he is supposed to have given the name of appellant No. 2 as the assailant of the deceased even though he had never seen him before the date of the incident. He stated in his evidence that when on seeing the appellants dragging the body of the deceased after attacking him, he ran towards the village, he met his father <NAME> on the way and on being questioned by <NAME>, he said that the deceased had been cut by <NAME> and <NAME>, that is appellants Nos. 1 and 2. However, in cross-examination, he admitted that he had not seen appellant No. 2 earlier and it was only at the time when appellant No. 2 attacked the deceased that he saw appellant No. 2 for the first time. Apprehending that the answer given by him in cross-examination may be the result of some confusion or misunderstanding, the learned Sessions Judge gave another opportunity and asked him whether he was knowing appellant No. 2 from before, to which he answered by saying that he had not seen appellant No. 2 at any earlier point of time. Now, if this witness had never seen appellant No. 2 before, it is impossible to understand how he could give his name as the assailant of the deceased when he met <NAME> on the way to the village. How could he say that <NAME> had participated in the attack on the deceased when he had never seen <NAME> before. This answer given by <NAME> clearly impairs the value of his evidence and casts a serious doubt on his veracity. It shows that he had been prevailed upon by the prosecution to falsely implicate appellant No. 2 and if his evidence in regard to the presence of appellant No. 2 cannot be accepted, it must react adversely against his evidence in regard also to appellant No. 1. There is also one other contradiction of a serious nature in the evidence of <NAME>. He stated in his evidence that each of the two appellants dealt one blow : appellant No. 2 cut the throat of the deceased first with the coita and then appellant No. 2 cut his neck with the knife. Now, if only one blow was delivered by each of the appellants, there would be two injuries on the deceased, but the medical evidence shows that the deceased had received as many as nine injuries, which would mean that more than two blows were given to him. Then again, according to <NAME>, his father <NAME> sent him back home with <NAME> and atone proceeded to the place where the body of the deceased was lying. That was also the evidence of <NAME>. But it is difficult to believe that <NAME> would send <NAME> home with <NAME> and proceed alone to find out the dead body of the deceased when he did not know the place where the offence was committed nor was he informed by <NAME> as to where the dead body of the deceased was lying. Would he not take <NAME> with him in order that <NAME> may show him the place where the deceased had been killed, instead of going on a chase for hunting out the dead body of the deceased in the forest? Would he also not prefer to take <NAME> with him rather than go alone to the spot where his father had been done to death? The only explanation given by <NAME> for not taking <NAME> with him was that <NAME> was afraid of going with him, but that is hardly an explanation which can carry conviction. <NAME> was his servant and it is difficult to believe that he would refuse to go with his master. However, turning back to the evidence of <NAME>, we find that in the committal court <NAME> narrated an entirely different story. There he stated that he accompanied his father <NAME> back to the scene of offence and showed him the place where the deceased had been assaulted and then <NAME> walked to the place where the dead body of the deceased was lying. When <NAME> was confronted with this statement made by him in the committal court, he first refused to admit that he had made such a statement, but then he accepted it. This contradiction is again of a very serious nature and we do not think it would be safe at all to rely on the testimony of <NAME>.

6. The evidence of <NAME> also suffers from inherent improbabilities. It is difficult to accept that <NAME> asked <NAME> to take <NAME> home and proceeded alone to the scene of offence not knowing where the offence had taken place. His entire conduct in not taking <NAME> and <NAME> with him to the scene of offence is unnatural and wholly inconsistent with the ordinary course of human nature. Then again, when <NAME> traces the body of the deceased by following the clues left on the foot path, he finds the appellants standing near the body gazing at it. That is again something wholly impossible to believe. <NAME>, according to the evidence given by him, started running towards the village after the appellants had assaulted the deceased and dragged his body into the forest. <NAME> ran for about 3 or 4 minutes before he met <NAME>. Then he had a talk with <NAME> and after sending <NAME> back home with <NAME>, <NAME> proceeded towards the scene of offence. <NAME> did not know where the offence had been committed, nor did he know where the dead body was lying and he must, therefore, naturally have taken some time before he could discover the place where the dead body of the deceased had been draged by the appellants. In the meantime, <NAME> also met his sister <NAME> on the way and he told her that the deceased had been killed. <NAME> must have, therefore, taken at least 10 minutes to reach the place where the dead body of the deceased was lying. It is difficult to believe that during this period of 10 minutes, the appellants should be patiently waiting near the dead body in order that <NAME> should be able to see them. It is not as if the appellants were trying to burn the dead body of the deceased or to bury it. They were, according to <NAME>, gazing at the dead body as if they were hypnotized or entranced by it. This story narrated by <NAME> is wholly improbable and has been introduced in order to strengthen the prosecution case which otherwise would have to depend only on the evidence of the child witness <NAME>.

7. Then again, according to the first information report lodged by him, <NAME> started running and shouting "don't kill my father, don't kill" as soon as he saw his father's chappals and the pool of blood near the foot tract. But in his evidence <NAME> asserted that he did not shout before he discovered the dead body of the deceased and saw the appellants standing by its side. This is a rather important contradiction, because if what <NAME> stated in his first information report were true, namely that he started shouting as soon as he saw his father's chappals and the pool of blood, the appellants would obviously, on hearing the shouts, have run away, but the prosecution wanted that <NAME> should see the appellants standing by the side of the dead body of the deceased so that he could identify them as the assailants of the deceased and, therefore, <NAME> had to change his story in his evidence before the Court and say that he did not shout until he saw the appellants near the dead body of the deceased. It is also interesting to note that though <NAME> is supposed to have given the names of the appellants as the assailants of the deceased when he met. <NAME> and <NAME> is also supposed to have given their names to his sister, daughter of his sister and mother so that every one in the family must have known that the appellants had killed the deceased, no member of the family mentioned to constables <NAME> and <NAME> that the appellants were assailants of the deceased. <NAME> and <NAME> were the two constables who, it appears, were on duty in village Cananguinim and when they came to the village at about 5.30 p.m. in the evening, they heard some one crying in the house of the deceased and going into the house, they asked the daughter-in-law of the deceased as to what had happened. She answered by saying that her father-in-law, that is the deceased had been killed. But strangely enough, neither did <NAME> and <NAME> ask her as to who had killed the deceased nor did she tell them as to who were the assailants. It is impossible to understand this conduct on the part of constables <NAME> and <NAME>. They were policemen and when they were told by the daughter-in-law that the deceased had been killed, their immediate query would have been : how was he killed and who killed him? But, according to <NAME> and <NAME>, they did not inquire about the names of the assailants at that time, nor did they make any inquiry from the relatives of the deceased who were present when they were taken to the place where the dead body of the deceased was lying. It was only after <NAME> came back to the house of the deceased, after leaving <NAME> to guard the dead body, that he asked the daughter-in-law and was informed that the appellants had killed the deceased. This is indeed strange and unnatural conduct on the part of <NAME> and <NAME> and we find it difficult to accept their testimony. It appears to us clearly that <NAME> and <NAME> must have asked the members of the family of the deceased as to who had killed and no names of the assailants must have been given to them, since the members of the family were possibly not aware as to who had killed the deceased. The evidence of <NAME> also does not, therefore, inspire any confidence , and it cannot form the basis of conviction of the appellants.

8. There was also evidence of test identification parade of the appellants held by <NAME>, <NAME> of Salceta. <NAME> deposed to the holding of the test identification parade at which <NAME> was supposed to have identified appellants as the assailants of the deceased. But this evidence as to the test identification parade has no meaning, since <NAME> in his evidence did not depose that he had identified the appellants at the test identification parade; Ordinarily, the person who is supposed to have identified the assailants at the test identification parade must himself give evidence in regard to the identification. If he does not himself give such evidence and leaves it to the officer holding the identification parade to do so, the defence would be deprived of an opportunity of cross-examination for the purpose of showing that the witness had an opportunity of seeing the accused before they were brought for identification. In any event, the evidence in regard to identification at the test identification parade is at the highest corroborative piece of evidence and if the evidence of <NAME> suffers from serious infirmities and cannot be accepted, the evidence in regard to identification by him at the test identification parade cannot improve the situation.

9. Then we come to three circumstances on which strong reliance was placed on behalf of the prosecution. The first circumstance was that when the police went to arrest appellant No. 1, he did not open the door for the purpose of letting in the police. But this cannot be regarded as an incriminating circumstance when it is remembered that the time at which the police went to the house of appellant No. 1 was about mid-night and there was nothing unnatural in appellant No. 1 refusing to open the door at such an unearthly hour. Another circumstance relied upon on behalf of the prosecution was the recovery of a black piece of cloth, a cord and a reel of white thread from the house of appellant No. 1. It was argued that the cloth of the black bag, which was found near the scene of offence, tallied with the back piece of cloth seized from the house of the first appellant and also the cord of the black bag and the thread used in the black bag tallied with the cord and the white thread recovered from his house and this circumstance showed that the black bag belonged to appellant No. 1 and established his presence at the scene of offence. But this circumstance has hardly any probative value because the black cloth, cord and white thread seized from the house of the first appellant were ordinary articles which would be found in many houses in the village and they had no such identifying marks as would establish their connection with the first appellant. The last circumstance on which reliance was placed was the, recovery of a coita as a result of a statement made by appellant No. 2, but the evidence in regard to this recovery is far from satisfactory. <NAME> was one of the <NAME> who witnessed the recovery of the coita and he stated in his evidence that appellant No. 2 said in the presence of P. 1. <NAME> and the Panch witnesses that he was going to show them 'something' and then they all got into a jeep, went to Cananguinim, stopped the jeep there at a place which was on a higher level and then appellant No. 2 walked for about half a mile and after searching for a while, produced from under the leaves a coita and handed it over to them. Appellant No. 2 did not, according to the evidence of <NAME>, say anything about the commission of the offence, nor did he mention that he would show the place where he had kept the coita or the weapon used in the commission of the offence. The only thing which he said was that he would show something. But when we turn to the statement of appellant No. 2, Ex. P-27, we find that according to that statement, appellant No, 2 offered "to show the spot where I have kept the coita" and the <ORG> Ex. P-23, signed by <NAME> also mentioned that appellant No. 2 stated before the <NAME> that he was going to show "the place where he has kept the weapon used for the commission of the offence". It will, therefore, be seen that there was material contradiction between the evidence given by <NAME> on the one hand and the statement of appellant No. 2 Ex. P-27 and the <ORG> Ex. P-23. Then again, according to <NAME>, the entire <ORG> Ex. P-23 was written at the scene of offence and no part of the <ORG> was written either in the jeep or at the police station before going to the spot. But, according to P. I. <NAME>, the <ORG> regarding the recovery of the 'coita' M.O. 9 was written partly at the Margao Rural Police Station and the rest on the way and still one part (the concluding portion) at Kananguinim. The middle portion of the <ORG> was written in the jeep itself whilst it was moving from Margao to Kananguinim. I also wrote something when we stopped at Kananguinim. I made a mention in the panchanama that the accused told us to stop. The remaining portion of the panchanama was written after the 'coita' M.O. 9 was recovered.

This is also a material contradiction which shows that in fact the Panchanama Ex. P-23 was not a genuine document, but it was prepared at the police station and the signature of <NAME> was obtained on it. It cannot, in any event, be regarded as a piece of evidence inspiring confidence. The evidence regarding the recovery of coita cannot, therefore, be accepted by us and we cannot rely upon it as an incriminating piece of evidence against appellant No. 2.

10. We are, therefore, of the view that the learned Sessions Judge was right in not relying on the prosecution evidence and acquitting the appellants of the offence of intentionally causing the death of the deceased. The circumstances of the case, no doubt, raise suspicion against the appellants, especially appellant No. 1, but suspicion cannot take the place of proof. It may be stated that in any event, the view taken by the learned Sessions Judge was a highly possible view and the learned Additional Judicial Commissioner was in error in reversing that view and convicting the appellants. We accordingly allow the appeal, set aside the order of conviction and sentence recorded against the appellants and acquit them of the offence charged against them. The appellants are directed to be set at liberty forthwith.