judgement:
tition No. 443 of 1988.
(Under Article 32 of the Constitution of India).
Rajiv K. Garg and N.D. Garg for the Petitioner.
Soli J. Sorabjee, Attorney General, M. Chandrasekharan and P. Parmeswaran for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is an application under Article 32 of the Constitution.
Northern Corporation is the petitioner in the instant application and the Union of India, the Collector of Customs and the Assistant Collector of Customs (Bond Department) are the respondents.
On 11th May, 1983, the licensing authority issued import licence No. 2959845 for Rs.20, 12,729 in favour of M/s Industrial Cable India Ltd., Rajpura.
The licence holder transferred the same in favour of M/s Metalic metal Indus tries.
The transferee licence holder issued a letter of authority in favour of the petitioner for the import of MSCR defective sheets or coils.
The letter of authority was issued on 21st May, 1984.
The petitioner herein placed order on M/s Sayani Enter prises Pvt.
Ltd., Singapore for the supply of MSCR defective sheets or coils on 30th May, 1984.
The foreign supplier shipped the material in three consignments and the goods arrived at the Bombay Port on 12th June, 1984.
The clearing agent of the petitioner filed bills of entry on 30th July, 1984 for warehousing under section 59 of the .
1962 (hereinafter referred to as 'the Act '), and the same was allowed.
The goods were bounded on 7th August, 1984.
It may be mentioned that the rate of duty on the day was 60% + 40% + Rs.650 per M.T. and 10% C.V.D.
The total duty on the consignment was assessed as Rs.26,20,109.55.
624 On 21th August, 1984, the petitioner 's clearing agent filed six bills of entry for ex bond clearance.
However, the bills of entry were returned with the remark that "please obtain no objection from the income tax".
This was endorsed on 24th August, 1984.
The petitioner states that thereafter he came to know that the income tax authorities had imposed ban under section 132(1) of the Income Tax Act, 1961.
The petitioner asserted that he was ever ready and willing, rather was anxious, to get the material on payment of the then prevailing customs duty.
However, due to circumstances beyond the control of the petitioner, that it to say, by the order of the Income Tax Authorities the goods could not be released.
This factor was not of the petitioner 's making, according to the petitioner. ' On 30th March, 1988, the Income Tax Department issued the necessary no objection certificate, thus lifting the ban.
On 4th April, 1988, the petitioner 's agent contacted the customs authority for clearance of the goods.
The duty as is prevalent now is Rs.5,000 per M.T. + addl.
duty 45% and C.V.D. at Rs.325 per M.T.
The total duty came to a very large sum of money.
The demand, according to the petitioner, was arbitrary, illegal and unconstitutional.
The instant writ was filed under Article 32 of the Constitution on 16th April, 1988 and on 22nd April, 1988, this Court passed the following order: "Pending notice, there will be limited stay to the extent that the goods name, "MSCR defective sheets/coils" which have arrived at Bombay Port per S.S. "SEA PRIMROSE" will be released forthwith on petitioner 's paying customs and other duties as leviable on 21.8.84.
In addition to the above payment the petitioner will deposit Rs.5 lakhs and for the balance amount petitioner will furnish surety (which may consist of ITC bond but excluding cash/bank guarantee/NSC/FDR) to the satisfaction of the Collector of Customs.
" We directed that the notice should be given to the revenue authority to appear before us.
Learned Attorney General had appeared pursuant to the notice on behalf of the respond ents.
It is contended on behalf of the respondents that for the payment of duty, the liability of the petitioner to pay the duty is the duty at the time of clearance of the goods.
Our attention was drawn to section 15(1)(b) of the Act which postulates that the rate of duty and tariff valuation, if any, applicable 625 to any imported goods, shall be the rate and valuation in force, in case the goods are cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse.
Section 15 of the Act reads as under: "section 15.
Date for determination of rate of duty and tariff valuation of imported goods.
(1) The rate of duty and tariff valuation, if any, applica ble to any imported goods, shall be the rate and valuation in force (a) in the case of goods entered for home con sumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actual ly removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been present ed before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.
(2) The provisions of this section shall not apply to bag gage and goods imported by post." Learned Attorney General laid emphasis on the expression "actually removed" in clause (b) of section 15(1) of the Act.
Our attention was also drawn to section 16 of the Act which reads as under: "section 16.
Date for determination of rate of duty and tariff valuation of export goods.
(1) The rate of duty and tariff valuation, if any, applica ble to any export goods, shall be the rate and valuation in force (a) in the case of goods entered for export under 626 section 50, on the date"on which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; (b) in the case of any other goods, on the date of payment of duty.
(2) The provisions of this section shall not apply, to baggage and goods exported by post.
" It was contended on behalf of the revenue that in view of the aforesaid, it would not be possible for the petition er to clear the goods on payment of duty on the date when the petitioner was actualling expressed willingness to remove the goods.
Our attention was drawn to the decision of this Court in Prakash Cotton Mills (P) Ltd. vs B. Sen & Ors., [1979] 2 SCR 1142.
In that case,the appellant stored on December 22, 1965 in the Customs warehouse, goods import ed by him under a licence, and cleared them on various dates between September 1, 1966 and February 20, 1967.
Under protest, they paid customs duty at the enhanced rates in accordance with the amended provisions.
Later, they claimed rebate alleging that since the consignments had been re ceived, stored and assessed to duty much before the promul gation of the Ordinance, they were liable to pay duty at the rate prevailing on the date of warehousing.
Their appeals and revision were unsuccessful.
In appeal to this Court it was contended that the material change in section 15 being only the substitution of the words "the rate of duty" the customs authorities were not entitled to take into account the new rate of exchange at the appreciated value of currency in respect of the consignments stored in the warehouse prior to the coming into force of the Ordinance.
Dismissing the appeal, this Court held that the customs authorities were right intaking the view that the rate of duty applicable to the imported goods should be determined according to the law prevalent on the date they were actually removed from the warehouse.
Section 15(1)(b) clearly requires that the rate of duty, rate of exchange and tariff applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actually removed from the ware house.
Under section 49 and importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance and he may be permitted to do so; and section 68 provides that an importer of any warehoused goods may clear them if the import duty leviable on them has been paid.
In that case, it was found that as the goods were removed from the warehouse after the amending Ordinance had come 627 into force, the customs authorities and the Central Govern ment were right in taking the view that the rate of duty applicable to the imported goods should be determined ac cording the law prevalent on the date these were actually removed from the warehouse.
Mr. Garg, appearing for the petitioner, on the other hand contended before us that his client was willing indeed to pay the duty when the goods crossed the customs barrier and were in the process of being cleared, but could not be cleared because of the prohibitory orders of the Income Tax Department under section 102 of the .
In that light, it was not possible, Mr. Garg contended, for the Income Tax Department to claim enhanced duty due to facts which were not for the fault of the petitioner.
In view of the language used in section 15(1)(b) of the Act, it is difficult to accept this contention specially in the light of the expression used 'actually removed '.
It must be ac cepted that the prohibitory orders, arbitrary or not, would postpone the date of clearance and as such would postpone the determination of the duty.
Therefore, it is difficult to accept Mr. Garg 's contention.
However, there is a far more serious objection in enter taining this application under Article 32 of the Constitu tion.
Article 32 of the Constitution guarantees the right to move the Supreme Court for enforcement of fundamental rights.
If there is breach of the fundamental rights, the petitioner can certainly have recourse to Article 32 of the Constitution provided other conditions are satisfied.
But we must, in all such cases, be circumventive of what is the right claimed.
In this case, the petitioner as such has no fundamental fight to clear the goods imported except in due process of law.
Now in the facts of this case, such clear ance can only be made on payment of duty as enjoined by the .
In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined under the four corners of the .
The petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law.
There is procedure provided by law for determination of the payment of customs duty.
The reve nue has proceeded on that basis.
The petitioner contends that duty at a particular rate prevalent at a particular date was not payable.
The petitioner cannot seek to remove the goods without payment at that rate or without having the matter determined by the procedure envisaged and enjoined by the law for that determination.
The petitioner without seeking to take any relief within the procedure envisaged under the Act had moved this Court for breach of fundamental right.
This is not permissible and should never be 628 entertained.
In a matter of this nature where liability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute for which elaborate procedure is pre scribed, it cannot conceivably be contended that enforcing of those provisions of the Act would breach fundamental right which entitle a citizen to seek recourse to Article 32 of the Constitution.
We are, therefore, clearly of the opinion that relief under Article 32 of the Constitution is wholly inappropriate in the facts and the circumstances of this case.
It has further to be reiterated that for enforce ment of fundamental right which is dependent upon adjudica tion or determination of questions of law as well as ques tion of fact without taking any resort to the provisions of the Act, it is not permissible to move this Court on the theoretical basis that there is breach of the fundamental right.
Whenever a person complains and claims that there is a violation of law, it does not automatically involve breach of fundamental right for the enforcement of which alone Article 32 of the Constitution is attracted.
It appears that the facts of this nature require elaborate procedural inves tigation and this Court should not be moved and should not entertain on these averments of the Article 32 of the Con stitution.
This position is clearly well settled, but some times we are persuaded to accept that an allegation of breach of law is an action in breach of fundamental right.
In this connection, reference may be made to the decision of this Court in Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1 SCR 778, where this Court observed at p. 842 of the report as under: "In my opinion, the correct answer to the two questions which have been referred to this larger Bench must be in the negative.
An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is ,passed ,on a misconstruction of a provision of the Act or of a notification issued thereunder.
Nor can the validity of such an order be questioned in a petition under article 32 of the Constitution.
The proper remedy for correcting an error in such an order is to pro ceed by way of appeal, or if the error is an error apparent on the face of the record, they by an application under article 226 of the Constitution.
It is necessary to observe here that article 32 of the Constitution does not give this Court an appellate jurisdiction Such.
as is given by articles 132 to 136.
Article 32 guarantees the right to a constitutional remedy and relates only to the enforcement of the rights conferred 629 by Part 111 of the Constitution.
Unless a question of the enforcement of a fundamental right arises, article 32 does not apply.
There can be no question of the enforcement of a fundamental fight if the order challenged is a valid and legal order, in spite of the allegation that it is errone ous.
I have, therefore, come to the conclusion that no question of the enforcement of a fundamental fight arises in this case and the writ petition is not maintainable.
" In the aforesaid view of the matter, we are clearly of the opinion that Article 32 of the Constitution should not have been resorted to and this application does not lie under Article 32 of the Constitution.
However, it appears that this Court has passed an order on 22nd April, as indicated hereinbefore.
It is stated that the goods have been cleared pursuant to that order.
The revenue would be at liberty to take appropriate action in accordance with law for the recovery of the dues.
This writ petition is accordingly disposed of.
N.P.V. Petition disposed of.

summary:
The petitioner Corporation imported certain goods.
The goods were bounded.
and could not be got released due to the ban imposed by the Income Tax authorities, under Section 132(1) of the Income Tax Act.
Subsequently after the ban was lifted, the petitioner approached the authorities for clearance of the goods, but the customs authorities demanded payment of customs duty at the enhanced rate which was prevailing at the time of clearance.
Hence the petition er filed a Writ Petition before this Court challenging the demand as arbitrary.
illegal and unconstitutional.
It was contended that though the petitioner was willing to clear the goods on payment of the then prevailing custom duty, the goods could not be cleared due to circumstances beyond its control, by the order of the Income Tax authori ties and, therefore, the authorities could not claim en hanced duty.
On behalf of the respondents it was contended that in view of Section 15(1)(b) of the , especially the expression "actually removed" used therein, the liability of the petitioner to pay the duty was the duty at the time of clearance of the goods.
Disposing of the Writ Petition, this Court, 622 HELD: 1.
Section 15(1)(b) of the clearly requires that the rate of duty, rate of exchange and tariff applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actu ally removed from the warehouse.
Therefore, in view of the language used in Section 15(1)(b) of the Act, specially in the light of the expression 'actually removed ' the petition er was liable to pay excise duty at enhanced rate prevailing on the date the goods were cleared.
The prohibitory orders, arbitrary or not, would postpone the date of clearance, and as such would postpone the determination of the duty.
[626F; 627C] Prakash Cotton Mills (P) Ltd. vs B. Sen & Ors., [1979] 2 SCR 1142, relied on.
2.1 Recourse to article 32 of the Constitution can be had if there is a breach of the fundamental rights, provided the other conditions are satisfied.
BUt in a matter where li ability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute, for which elaborate procedure is prescribed, enforcing of those provisions of the Act would not breach fundamental right and, without taking any resort to the provisions of the Act, it is not permissible to move this Court on the theoretical basis that there is breach of fundamental right.
Whenever a person complains and claims that there is a violation of law, it does not involve breach of fundamental right for the en forcement of which alone article 32 of the Constitution is attracted.
[627E; 628A D] Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1 SCR 778, relied on.
2.2 In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined under the four corners of the .
[627F] In the instant case, the petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law.
There is procedure pro vided by law for determination of the payment of customs duty.
The revenue has proceeded on that basis.
The petition er cannot seek to remove the goods without payment at that rate or without having the matter determined by the proce dure envisaged and enjoined by the law for that determina tion.
The petitioner, without seeking to take any relief within the procedure envisaged under the Act, had moved this Court for breach of funda 623 mental right.
This is not permissible and should never be entertained.
[627F H] Relief under Article 32 of the Constitution is there fore, wholly inappropriate in the facts and circumstances of the instant case.
[628B]


judgement:
Civil Appeal No.2877 of 1977.
From the Judgment and Decree dated 19.8.1977 of the Punjab and Haryana High Court in R.S.A. No. 334 of 1975.
R. Bana for the Appellants.
Harbans Lal and G.K. Bansal for the Respondents.
The following Order of the Court was delivered: Kehar Singh had two wives, Basant Kaur and Sahib Devi.
Sahib Devi died during Kehar Singh 's life time.
Sahib Devi 's son was Niranjan Singh who also died during Kehar Singh 's life time.
Niranjan Singh had four sons and one daughter.
On 26th April, 1947 Kehar Singh in lieu of maintenance made three oral gifts of properties situated in three different villages in favour of his wife Basant Kaur.
The question which arose for consideration before the lower Court was whether Basant Kaur got an absolute estate in the gifted properties as result of the passing of the .
In regard to the land in village Ballowal the lower Courts have held that she got an absolute estate.
The High Court was concerned in the second Appeal with the lands in village Dhaipai and Chominda, and it held the gift having been without any power of alienation would fall under Section 14(2).
The Exhibit D I was the report of the Patwari in connection with the mutation proceedings and it said: "Today Kehar Singh owner of Khewat came alongwith Narain Singh Lambardar and stated that he had on 14th April, 1947, made an oral gift of land half of total land measuring 8 bighas Pukhta, 3 Biswas and 3 Biswani, which is 4 Bighas Pukhta, 12 Biswas and 1 Biswani as detailed in favour of his wife Mst.
Basant Kaur, and given possession of the same.
I had only one son who is dead and he had four sons and no other male issue.
There is no certainty of life.
She served me.
Lambardar attests so the mutation is entered.
" 387 On 30th July, 1947, the Assistant Collector made the following orders: "In the gathering, Kehar Singh donor and Basant Kaur donee, identified by Kishan Singh Lambardar are present.
The change of possession of this case is admitted and verified by the donor and the donee.
Donor stated that he has got no son.
I had got two wives.
My grand sons, it is possible may not gift maintenance to my wife.
With this view I make the gift.
Gift is for maintenance.
After gift there would be no powers of mortgage or sale.
After the death of Basant Kaur Malkiat Singh, Amar Singh, Gurdeep Singh and Mohan Singh, children would be heirs.
This gift is of 1/2 share or Khasra No.4658/2468 measuring 4 Bighas, 12 Biswas 1 Biswani, Khewat Nos. 324 to 326, which is attested in favour of Mst.
Basant Kaur donee.
" The High Court on interpretation of the Assistant Collector 's report came into conclusion that Basant Kaur derived only a limited estate inasmuch as such a gift, according to the high Court, would fall directly under section 14(2) of the and as such the limited estate of Basant Kaur would not stand enlarged into an absolute estate.
The challenge was to the gift made by Basant Kaur in favour of two step grand sons ignoring the other two.
There is no doubt that Basant Kaur had the right of maintenance and the gift was explicitly in lieu of maintenance.
As such we are of the view that it was not a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift.
It was a property acquired by gift in lieu of maintenance.
This acquisition on 26th April, 1947 having been prior to the , we are of the view that she having acquired this property by way of gift in lieu of her antecedent right to maintenance, it would fall under sub section (1) and not under sub section (2) of section 14 of the .
In this view we are in consonance with the decisions in Bai Vijia (Dead) by Lrs.
vs Thakorbhai Chelabhai & Ors., ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., [19871 3 SCC 674; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thillanayakom Pillai & Anr., ; and Jaswant Kaur vs Major Harpal Singh, In view of the facts and circumstances, we are of the view that the decisions of Mst.
Karmi vs Amru & Ors., [ and Kothi Satyanarayana vs Galla Sithayya & Ors.
, [ ; are distinguishable on facts.
388 In the result, the Judgment and decree of the High Court are set aside, this appeal is allowed and the suit is dismissed.
However, under the facts and circumstances of the case, we make no orders as to costs.
G.N. Appeal allowed.

dataset_name: IN-Abs

summary:
The grandfather of the appellants and respondents had two wives.
The first wife and her only son died during his life time.
The pre deceased son left behind four sons and a daughter.
In 1947, the grand father made three oral gifts of certain properties in favour of his second wife, in lieu of maintenance.
Later, the grandmother gifted some of these properties to two step grandsons.
The gift was challenged by the other two grandsons.
The lower court held that she had the absolute estate in the properties after the possing of the .
In Second Appeal, the High Court held that she derived only a limited estate inasmuch as the gift in her favour would fall directly under section 14(2) of the and as such her limited estate would not stand enlarged into an absolute estate.
This appeal is against the said judgment of the High Court.
Allowing the appeal, this Court, HELD: 1.
There is no doubt that the donee had the right of maintenance and the gift was explicitly in lieu of maintenance.
It was a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift.
It was a property acquired by gift in lieu of maintenance.
The acquisition made on 26th April, 1947 having been prior to the , and she having acquired the property by way of gift in lieu of her antecedent right to maintenance, it would fail under sub section (1) and not under sub section (2) of section 14 of the and she derived absolute estate in the properties.
[387E F] Bai Vajia (Dead) by Lrs.
vs Thakorbhai Chelabhai & Ors. ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., ; ; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thillanayakom Pillai & Anr.
, ; ; Jaswant Kaur V. Major 386 Harpal Singh, ; relied on.
Karmi vs Amru & Ors., ; Kothi Satyanarayana vs Galla Sithayya & Ors.
, ; ; distinguished.


judgement:
Civil Appeal No. 739 of 1991.
From the Judgment and Order dated 16.3.1990 of the Punjab and Haryana High Court in Regular Second Appeal No. 405 of 1990.
G.B. Pai, and P.N. Gupta for the Appellant.
Ashok K. Mahajan for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This is an appeal by Special Leave against the decision of a learned Single Judge of the Punjab and Haryana High Court, dismissing summarily Regular Second appeal No. 405 of 1990 in that Court.
The relevant facts can be stated very shortly.
At the relevant time respondent No. 1 was an officer being the Manager in the Hardwar Branch of the appellant Bank, a Government of India Undertaking.
On April 2, 1982 a show cause notice was served on respondent No. 1 in respect of several irregularities, lapses, acts, omissions and so on.
On May 4,1982 respondent No. I submitted his reply to the said show cause notice denying the charges made against him and asking for the holding of an enquiry into the allegations.
On July 17, 1984 respondent No. 1 was promoted from Scale II to Scale Ill by the appellant.
It appears from the record that disciplinary action was contemplated against respondent No. I but in November 1984, the disciplinary proceedings contemplated against respondent No. 1 were kept in abeyance as some of the allegations against him were under investigation by the Central Bureau of Investigation (CBI) On March 11, 1988 interviews for promotion from Scale III to Scale IV were conducted and respondent No. 1 was one of the officers interviewed for promotion.
On April 27, 1988 a charge sheet was served on respondent No. 1.
On May 27, 1988 an enquiry was ordered against him and the Commissioner of Departmental Enquiries, Government of India, was appointed as the Enquiry Officer.
On June 30, 1988, respondent No. 1 filed a suit in the Court of Sub Judge, Second Class, Jallandhar 476 for a declaration that the Order dated April 27,1988 by which respondent No. I was served with charge sheet was illegal and in violation of the Service Regulations and unsustainable in law and prayed for permanent injunction restraining the appellant and others from proceeding with the enquiry on the basis of the said charge sheet.
One of the main contentions urged on behalf of respondent No. 1 in the said suit was that by reason of the promotion granted to him from Scale II to Scale Ill on July 17, 1984 as aforestated, which was after the irregularities and misconduct aileged against him had been committed and in view of the said promotion the appellant must be deemed to have condoned the earlier misconduct, if any, of respondent No. 1 and thereafter it was not open to the appellant to take any action against respondent No. I in respect of the said misconduct.
This contention found favour with learned Trial Judge who gave a declaration that the order, serving the charge sheet on respondent No. 1 was illegal and restrained the appellant and others from proceeding with the enquiry on the basis of the said charge sheet.
An appeal was preferred by the appellant against the said order in the court of learned Additional District Judge, Jallandhar but it was dismissed as learned Additional District Judge accepted the reasoning and conclusions of the learned Trial Judge.
The second appeal against the decision of learned Additional District Judge was dismissed by the High Court and this is an appeal directed against the judgment of the High Court.
It was submitted before us by Mr. Pai, learned Counsel for the appellant that the promotion granted to respondent No. 1 from Scale II to Scale Ill on July 17, 1984, could not be regarded in law as condonation of the earlier acts of misconduct committed by respondent No. 1.
It was urged by him that at that time no disciplinary proceedings had been initiated against respondent No. I and in view of this, the appellant had no option but to consider respondent No. 1 for promotion for which he was entitled to be considered and to promote him if he was found fit for promotion.
It was, on the other hand, contended by Mr.Rao, learned counsel for the respondent that the earlier acts of respondent No. 1, even if they constituted misconduct, could not be relied upon to take any disciplinary action against respondent No. I because they were condoned by reason of the aforesaid promotion.
In considering the submissions of the respective parties, we have to bear in mind that it is accepted before us that in law the mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of 477 consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion.
In the present case, we find that this legal position is reinforced by clause (9) of the Promotion Policy of the appellant Bank.
Clause (9) reads as follows: "Clause 9.
Officers in respect of whom disciplinary action is in process will be permitted to take part in the promotion process, subject to the condition that the promotions (if they are selected) will be withheld until the Officer is exonerated from the charges.
In such an event the promotion will be given effect to from the date on which it would have been otherwise effective but for the disciplinary action.
The officer will not be eligible for promotion if punishment, except censure, was awarded as a result of the disciplinary action.
" On a plain reading of this clause it is clear that even if disciplinary action is in process against an officer of the appellant Bank, that would not entitle the appellant Bank to exclude from consideration for promotion the officer concerned if he is otherwise entitled to be so considered.
The only right given to the appellant in such cases is that, in case such an officer is otherwise found fit for promotion and selected for promotion, that promotion can be withheld until the officer is exonerated from the charges.
It is significant that the said clause goes to state that in case such an officer is exonerated from the charges, promotion will have to be given effect to from the date on which it would have been otherwise effective but for the disciplinary action.
This rule gives rise to the implication that till disciplinary action is in process or initiated, the officer concerned, against whom allegations of misconduct might be made, can neither be excluded from consideration for promotion if he is entitled to be considered otherwise nor can the promotion be denied to him.
In these circumstances, when the promotion from Scale II to Scale Ill was granted to respondent No. 1 on July 17, 1984, there could be no question of condonation of the earlier acts of misconduct by reason of this promotion because in law and in view of the said Regulation (9) the appellant had no option but to consider respondent No. 1 for promotion and if he was otherwise found fit for promotion to promote him.
In view of this conclusion, it must follow that the charge sheet submitted against respondent No. 1 and the disciplinary proceedings pursuant to the said charge sheet cannot be said to be bad in law and cannot be interfered with on the ground of condonation.
In our view, the courts below were 478 in error in holding that the earlier alleged acts of misconduct of respondent No. I had been condoned by the appellant and basing their conclusions thereon.
In support of his submissions relating to the question of condonation, Mr. Rao relied upon the decision of a Division Bench of the Calcutta High Court in L. W. Middleton vs
Horry Playfair, AIR (1925) Calcutta 87 and the decision of a learned Single Judge of the Nagpur High Court in District Council, Amraoti through Secretary vs Vithal, Vinayak Bapat, AIR (1941) Nagpur 125.
Both these cases lay down that once a master has condoned any misconduct on the part of servant which would have justified dismissal or a fine, he cannot, after such condonation, go back upon his election to condone and claim a right to dismiss him or impose a fine or any other punishment in respect of the offence which has been condoned.
In our view, these decisions are of no relevance in the present case.
At the time these decisions were rendered under the general law of master and servant it was open to the master to dismiss his servant or fine him on the ground of misconduct.
On the facts of both these cases the master had the option of dismissing the servant or finding him on the ground of misconduct but voluntarily did not take the action of dismissing or fining him on the ground of misconduct and it was held that thereby the master had condoned the earlier misconduct and could not thereafter rely on the said misconduct for punishing the servant.
In the case before us, however, at the time when the promotion was granted to respondent No. I on July 17, 1984, the appellant had no option but to consider respondent No. I for promotion and to promote him if he was found fit as no disciplinary proceedings had been initiated against him or could be said to be in process against him, as we have set out earlier.
In such a case, no question of condonation could arise.
The ratio of decision in Lal Audhraj Singh vs State of Madhya Pradesh, AIR 1967 M.P. 284 is also of no application to the case before us as that again was a case where the employer, namely, the State, had the option of punishing the employee and voluntarily refrained from doing so.
It was next contended by Mr. Rao that even if the disciplinary proceedings against respondent No. 1 were liable to be continued that constitutes no ground for holding up the promotion of respondent No. 1 from Scale III to Scale IV if he was otherwise found fit for promotion, as, on the date when the selections for that promotion were made, no charge sheet had been served on respondent No. I and it is the accepted position here that till the charge sheet was submitted it could not be said that disciplinary proceedings were in process or 479 had been initiated.
It was submitted by Mr. Rao that this contention was fortified by the provisions of Clause (9) of the Promotional Policy of the appellant, which we have discussed earlier.
It was urged by him that it was on this ground that the appellant had based its case regarding the validity of the disciplinary proceedings against respondent No. 1 and on the same basis respondent No. I was entitled to be promoted from Scale Ill to Scale IV as from March 1988 if he was found fit.
It was submitted by him that since the charge sheet was served on respondent No. 1 over a month after he was considered for promotion from Scale Ill to Scale IV, it was not open to the appellant to hold back the consideration of the case of respondent No. I for promotion from Scale III to Scale IV or to deny him the promotion if he was found fit.
It appears to us prima facie that the submissions of Mr. Rao in connection with promotion of respondent No. 1 from Scale Ill to Scale IV are not without substance.
However, it is unnecessary for us to decide this question because Mr. Pai, learned counsel for the appellant has agreed that without creating a precedent, the appellant will grant promotion to respondent No. 1 from Scale Ill to Scale IV if it is found that the Departmental Promotion Committee found him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmental enquiry being contemplated against him.
In the result, the appeal is allowed to the extent aforestated and the impugned order of the High Court quashing the departmental proceedings is set aside.
The departmental enquiry shall be proceeded with and completed within a period of six months according to law.
As far as question of promotion of respondent No. 1 from Scale III to Scale IV is concerned, that question will be considered in the light what has been agreed to by Mr. Pai, as set out earlier.
Parties shall bear and pay their own costs throughout.
T. N. A. Appeal allowed.

summary:
Clause 9 of the promotion policy of the Appellant Bank provides that an officer in respect of whom disciplinary action is in process will be permitted to take Part in the promotion process, subject to the condition that his promotion will be withheld until the officer is exonerated from the charges and in case such an officer is exonerated from the charges, the promotion shall take effect from the date on which it would have been otherwise effective but for the disciplinary action.
Respondent 1, a Bank Manager, was Promoted from Scale II to Scale Ill under the aforesaid clause while disciplinary proceedings were contemplated against him.
Later he was also interviewed for promotion from Scale IlI to Scale IV.
thereafter the appellant Bank charge sheeted him and initiated a departmental inquiry against him.
He challenged the legality of the bank 's action by filing a declartory suit contending that in view of the promotion granted to him, the appellant Bank must be deemed to have condoned the earner misconduct and subsequent to his promotion it was not open to the Bank to take any action against himn.
The Trial Court allowed the suit and restraied the appellant bank from Proceeding with the inquiry by holding the charge sheet illegal.
The order of the trial court was affirmed by the first appellate court and the second appeal filed by the bank was also dismissed by the High Court.
In appeal to this court, it was contended on behalf of the bank that the grant of promotion to the appellant under clause 9 cannot be regarded in law as condonation of pre promotion misconduct.
On behalf of the respondent, it was contended that even if the continuation of 474 disciplinary proceedings was valid, it was not a ground for holding up of his promotion from Scale Ill to Scale IV because on the date of interview no charge sheet was served on him.
Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
The mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion.
Clause 9 of the Promotion Policy of the Bank gives rise to the implication that the disciplinary action is in process or initiated, the officer concerned, against whom allegations of misconduct might be made, can neither be excluded from consideration for promotion if he is entitled to be considered for promotion otherwise nor can the promotion be denied to him.
In these circumstances, when the promotion from Scale II to Scale III was granted to respondent, there could be no question of condonation of the earlier acts of misconduct by reason of this promotion because in law and in view of clause 9 of the Promotion policy appellant had no option but to consider respondent for promotion and if he was otherwise found fit for promotion to promote him.
Hence the charge sheet submitted against respondent and the disciplinary proceedings pursuant to the said charge sheet cannot be said to be bad in law and cannot be interfered with on the ground of condonation.
Therefore, the courts below were in error in holding that the earlier alleged acts of misconduct of respondent had been condoned by the appellant and basing their conclusions thereon.
[476G H; 477F H; 488A] L.W. Middleton vs Horry Play Fair, AIR 1925 Cal. 87; District Council, Amraoti through Secretary vs Vithal Vinayak Bapat, AER 1941 Nagpur 125 and Audhraj Singh vs State of Madhya Pradesh, AIR.
M.P. 284; held inapplicable.
In view of the fact that the appellant bank has agreed that without creating a precedent it will grant promotion to respondent from Scale Ill to Scale IV, if the departmental promotion Committee finds him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmentl inquiry being contemplated against him, it is unnecessary to express any opinion on the submission that since on the date of selection for promotion from Scale III to Scale IV, no charge sheet was served on the 475 respondent it was not open to the bank to hold back the respondent 's promotion from Scale IH to Scale IV.
[479C D]


judgement:
ivil Appeal No. 822 of 1978.
From the Judgment and Order dated 23.3.1977 of the Andhra Pradesh High Court in Case Referred (Estate Duty Case) No. 6 of 1975.
450 T.A. Ramachandran and Ms. Janki Ramachandran for the Appellant.
S.C. Manchanda, Ms. A. Subhashini (NP) and K.P. Bhatnagar for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
This appeal by certificate arises from the judgment of the Andhra Pradesh High Court dated 23.3.1977 in Estate Duty Case No. 6 of 1975.
Answering the questions referred to it against the appellant and in favour of the Revenue, the High Court held that, in computing the net principal value of the estate for the purpose of the ("the Act"), the appellant was not entitled to deduct either the estate duty payable on the estate or the amount attributable to the maintenance of the wife of the deceased.
The appellant 's counsel, Mr. T.A. Ramachandran, submits that the duty payable on the estate of the deceased is an encumbrance on the estate, being a first charge on the property passing on the death, and is, therefore, deductible in terms of Section 44 of the Act.
According to counsel, all properties passing on the death of the deceased are encumbered to the extent of the duty payable by reason of the charge created by section 74 of the Act and that duty has to be deducted from the total value of the estate which is subjected to the levy of duty in terms of section 5.
Counsel further submits that the amount attributable to the maintenance of the wife during the life of her husband must also be treated as a debt deductible under section 44.
Mr. S.C. Manchanda, appearing for the Revenue, submits that the claim of the appellant has no warrant in the law and is totally unsupported by any judicial decision.
He submits that estate duty falls upon the property passing upon the death.
The property at the time of the passing was not encumbered by the duty, for duty became payable only upon its passing and was, therefore, not a liability to which the estate was subjected during the life of the deceased.
It becomes so encumbered only subsequent to and consequent on the death.
He futher submits that there is not the smallest foundation for the claim for deduction in respect of the maintenance of the wife during the life of the husband, as contended by the appellant 's counsel, for the estate was never charged with the amount attributable to the maintenance of the wife.
A wife 's claim for maintenance either during the life her 451 husband, or subsequent to the death of her husband, is not a charge on the property and is not a deductible amount in terms of the Act.
We shall first deal with the claim for deduction of estate duty.
Section of the 5 of the Act, insofar as it is material, reads: "Levy of estate duty.
In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all peroperty, settled or not settled, includng agricultral land. . which passes on the death of such person, a duty called "estate duty" at the rats fixed in accordance wth section 35.
(2). . . . ." Sub section (1) of section 5 imposes a duty upon the net principal value ascertained of 'all property" which passes on the death of a person.
All properties passing on a death, other than those which are exempted from duty (See section 21 to 33), are, for the purpose of levy under the Act, aggregated into one estate, which is the "property" on which duty is levied at the rates applicable in respect of its principal value (Section 34 and 35), but subject to the deductions permitted under of the Act.
The properties are valued, for the purpose of levy under the Act, in accordance with the provisions of Section 36 says that the principal value of any property shall be estimated to be price which, in the opinion of the Controller, such property would fetch if sold in the open market at the time of the death of the deceased.
of the Act contains section 44 to 50B dealing with deductions in determining the chargeable value of the estate.
Section 44 says that, in determining the value of an estate, allowance has to be made for funeral expenses not exceeding rupees one thousand and for debts and incumbrances.
The section, however, provides that no allowance shall be made in respect of matters enumerated under clauses (a) to (d) of the section.
The "debts and encumbrances" mentioned in section 44 are, as a 452 general rule, debts and encumbrances incurred before the death of the deceased.
Certain exceptions are, specifically provided in section 44 and the other provisions of Reasonable funeral expenses, cost of realising or administering foreign property, allowance for duty paid in a non reciprocating country, relief from estate duty where court fees have been paid in any State for obtaining probate, letters of administration or a succession certificate, and, relief from estate duty where tax has been paid on capital gains are, in the specified curcumstances, allowable deductions in the determination of the value of the estate for the purpose of estate duty, notwithstanding that such liabilities arose subsequent to the death.
In no other case does the Act postulate deduction or allowance for any debt or encumbrance incurred subsequent to the passing of the property upon the death.
Singinficantly, estate duty payable on the estate of the deceased is not one of those exceptions to the general rule.
Section 53 makes certain persons accountable for the whole of the estate duty on the property passing on the death.
These are the legal representatives, trustees, guardians, committees or other persons in whom any interest in the property or the management thereof at the any time vested.
They are accountable for the whole of the estate duty on the property passing on the death of the deceased, but their liability is limited to the assest of the deceased which they have actually received or which, but for their own neglect or default, they might have received.
Any default or concealment on their part in the discharge of their duties will make them liable for the penalty provided under section 60.
Section 74 says that duty payable in respect of property, passing on the death of the deceased, is a first charge on the property so passing.
Any claim in respect of such duty is not liable to be defeated by any private transfer or delivery of such property.
Any such private transfer or delivery is void against such a claim.
Section 74 reads: "Estate duty a first charge on property liable thereto.
74(1).
Subject to the provisions of section 19, the estate duty payable in respect of property, movable or immovable, passing on the death of the deceased, shall be a first charge on the immovable property so passing (including agricultural land) in whomsoever it may vest on his death after the debts and incumbrances allowable under of this Act; and any private transfer or delivery of such property shall void against any claim in respect of such estate duty.
(2) A rateable part of the estate duty on an estate, in proportion to the value of any beneficial interest in possession in movable property which passes to any person (other than the legal representative of the deceased) on the death of the deceased shall be a first charge on such interest: Provided that the property shall not be so chargeable as against a bona fide purchasr thereof for valuable consideration without notice.
3. . . . " The sechme of the Act, as the above provisions indicate, is to levy estate duty upon the net principal value of all property,as aggregated and ascertained under the Act, and which passes on the death of the person who was competent to dispose of such property at the time of his death (section 6) or which is deemed to pass on his death (section 7 to 17).
The expression "passes on the death" denotes change in the title or possession of the whole property taking place at the death.
It is immaterial to whom the property passes.
"The question. is not to whom has the property passed, the question is whether it has passed at all".
Per Lord Blanesburgh, Inland revenue Commissioners vs
Crossman, , 'Estate duty falls upon the property passing upon a death. " Per Lord Loreburn, L.C., Winans & Another vs Attorney General, ,30.
the levy is upon the principal value of such property ascertained as provided under the Act.
Property changes hands at the time of the death, by reason of the death, and, therefore, subsequent of the death.
The imposition of the charge under the Act does not arise until the death has actually occurred and the property has, thereupon, passed.
The liability to pay estate duty is fastened on the persons accountable.
But their liability is limited to, and will not exceed, the assets of the deceased actually received by them, or which, but for their neglect or default, they might have received.
Apart from the personal liability cast on the persons accountable, and their liability to penalty in the event of default or cocealment, the duty payable is charged on the property itself and any private transfer or delivery is void against any claim in respect of such duty.
Essentially and basi 454 cally, therefore, the duty is a burden on the estate and that burden is fastened on the estate upon the death of the deceased.
During his life, no liability under the Act arose or could arise.
Subject to the limitations and exceptions statutorily specified, the allowable deductions in the determination of the changeable value of the estate are the debts and encumbrances incurred before the death of the deceased.
Esate duty falling upon property passing upon the death had not become a debt or encumbrance utill the death of the deceased, and is, therefore, not deductible.
The view is consistent with the conclusion reached on the point by various High Courts, , [1978] 111 ITR 365 ( Gujarat), [1981] 127 ITR 642 (Allahabad), [1981] 132 ITR 871 (Madras), [1982] 137 ITR 801 (Gauhati), [1990] 186 ITR 29 (Bombay).
This conclusion was adopted by the Andhra Pradesh High Court in Controller of Estate Duty vs Estate of Late Omprakash Bajaj, and it was that decision which was followed by the High Court on this point in the judgment under appeal.
The High Court, in our view, rightly disallowed the claim for deduction of the estate duty in the computation of the net principal value of the estate.
As regards the claim for deduction of the amount attributable to the maintenance of the wife of the deceased during his life, there is no evidence or any finding to show that the estate had been burdened with any such debt or encumbrance by reason of the husband 's failure to act upto his statutory obligation to maintain his wife (see Section 18(1) of the ).
The wife is of course a sharer of the assets left behind by her husband (see Section 8 of the ).
This claim was also, in our view, rightly disallowed by the High Court.
In the curcumstance, for the reasons we have stated, the appeal is dismissed.
Howerver, we do not make any order as to costs.
V.R.R. Appeal dismissed.

summary:
The High Court in a reference under the held that in computing the net principal value of the estate for the purpose of the Act, the appellant was not entitled to deduct either the estate duty payable on the estate or the amount attributable to the maintenance of the wife of the deceased.
The question was answered accordingly in favour of the Revenue.
The appellant contended in the appeal by certificate that estate duty being a first charge on the estate passing on the death was an encumbrance and, therefore, deductible and the amount of the maintenance of the wife during her husband 's life was also deductible.
The Respondent contended that estate duty being payable only upon the estate passing on the death, it was not a liability which was deductible.
Deduction in respect of the maintenance of the wife during the life of her husband also was not permissible.
Dismissing the appeal, this Court, HELD: 1.
The levy is upon the principal value of the property ascertained as provided under the Act.
Property changes hands at the time of the death, by reason of the death, and, therefore, subsequent to the death.
The imposition of the charge under the Act does not arise until the death has actually occurred and the property has, thereupon, passed.
[453E G] 449 2.
The liability to pay estate duty is fastened on the persons accountable.
But their liability is limited to, and will not exceed, the assets of the deceased actually received by them, or which, but for their neglect or default, they might have received.
Apart from the Personal liability cast on the persons accountable, and their liability to penalty in the event of default or concealment, the duty payable is charged On the property itself and any private transfer or delivery is void against any claim in respect of such duty.
Essentially and basically, therefore, the duty is a burden on the estate and that burden is fastened on the estate upon the death of the deceased.
During his life, no liability under the Act arose or could arise.
[453G 454A] 3.
Subject to the limitations and exceptions statutorily specified, the allowable deductions in the determination of the chargeable value of the estate are the debts and encumbrances incurred before the death of the deceased.
Estate duty falling upon property passing upon the death had not become a debt or encumbrance until the death of the deceased, and is, therefore, not deductible.
[454B C] 4.
As regards the claim for deduction of the amount attributable to the maintenance of the wife of the deceased during his life, there is no evidence or any finding to show that the estate had been burdened with any such debt or encumbrance by reason of the husband 's failure to act upto his statutory obligation to maintain his wife.
[454E F] 5.
The expression "passes on the death" denotes change in the title or possession of the whole property taking place at the death.
It is immaterial to whom the property passes.
[453D E] Inland Revenue Commissioner vs Crossman, ; Winans & Another vs Attorney General, , referred to ; [1978] Ill ITR 365 (Gujarat); [1981] 127 ITR 642 (Allahabad); [1981] 132 ITR 871 (Madras); [1982] 137 ITR 801 (Gauhati); [1990]186 ITR 29 (Bombay); Controller of Estate Duty vs Estate of Late Omprakash Bajaj, approved.


judgement:
N: Criminal Appeal No. 480 of 1979.
From the Judgment and Order dated 3.4.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 239 of 1974.
R.C. Kohli for the Appellant.
U.N. Bachawat and Uma Nath Sing with him for the Respondent.
457 The Judgement of the Court was delivered by AHMADI,J. The appellant has been convicted under Section 302/34, IPC, for causing the murder of one Negji, son of the Parthesingh, of village Melakhedi.
The prosecution case was that the family of the appellant and the family of the deceased were at loggerheads since quite sometime and there was bad blood between them.
In 1967, Bhowansingh, a member of the complainant 's family is stated to have been murdered by the appellant 's party.
Thereupon, the deceased along with others is stated to have fatally assaulted Bhagwansingh and Bahadursingh and inflicted grievous injuries of Govardhansingh.
These three are none other than the sons of the appellant.
The deceased and his companions were, however, acquitted.
It is said the appellant, Daryao Singh was, therefore, keen to avenge the deaths of his sons.
As a sequel to the earlier incident, it is said that the incident in question occurred on 25th September, 1970 at about 4.00 p.m.
The fact that relations between the two families were strained is, therefore, not in dispute.
On 25th September, 1970, the deceased, Negji, was working in his field along with his son PW 4 Bhanwar Singh.
At that time the appellant went there in the company of Nagusingh Govardhansingh and Bapusingh.
Nagusingh was armed with a gun and a stick with dharia like blade, Govardhansingh was armed with a similar weapon, the appellant was armed with a sword and Bapusingh possessed a gun.
They lanuched an attack on the deceased Negji whereupon the the latter raised an alarm which attracted the attention of Pw 1 Bherusingh and Pw 3 Bhuwan Singh, who were working in the adjacent filed.
They reached the spot and witnessed the incident.
On their raising a hue and cry, the appellant and his companions fled away.
PW 4 had run away frightened when a shot was fired at him.
The deceased, Negji, sustained serious injuries on the head and his right leg was cut into two.
PWs 1 and 3 went in search of PW 4 but on the way met two police constables PW 8 Chhotelal and PW 10 Itratkhan.
They narrated the incident and disclosed the names of the assailants to them.
All the four returned to the place of occurrence, placed Negji in a cart and proceeded towards the police station.
But the injured passed away on the way.
The dead body appears to have been taken to the hospital on the next day at about 5.20 p.m. PW 2 Dr.
Sharma, performed the post mortem examination on 27th September, 1970 at about 7.00 a.m. Except the appellant the rest of the assailants could not be put to trial as they were reportedly absonding.
458 The prosecution mainly relies on the evidence of PW 1,3 and 4.
In addition, the prosecution seeks corroboration from the evidence of the two Police Constables PWs 8 and 10 whom the names of the assailants were disclosed immediately after the incident.
PW 8, however, turned hostile and was permitted to be cross examined by the learned Public Prosecutor.
This, in brief, is the prosecution evidence against the appellant.
The learned Trial Judge on an appreciation of the prosecutiion evidence concluded that having regard to the long standing enmity between the two families it was hazardous to place implicit reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence.
Besides, according to the Trial Judge, the evidence of DW 3 Keshav Shanker Varang established that the appellant was a physically disabled person who could not have weilded the sword with such ferocity as to cut the right leg into two pieces.
To disbelieve the prosecution case the learned Trial Judge referrd to the evidence of the hostile Constable, PW 8, but failed to take note of the evidence or PW 10.
As the three eye withnesses were closely related to the deceased, the learned Trial Judge applied the rule of prudence and thought it wise not to base a conviction on thier uncorroborated evidence.
He therefore, acquitted the appellant.
Feeling aggrieved by the order of acquittal passed by the learnd Trial Judge, the State of Madhya Pradesh preferred an appeal of the High Court which was disposed of by a Division bench by its impugned judgment and order dated 3rd, 1979.
The Division Bench held that although the three prosecution witnesses were closely related to the deceased their evidence could not be discarded solely on the ground that they were interested and partisan witnesses, but all that the rule of prudence demanded was to evaluate their evidence with caution.
On a close scrutiny of the evidence of the said three witnesses, the Hight Court found that nothing was brought out in their cross examination to doubt their credibility.
On the contrary the High Court felt that their evidence was partly corroborated by PW 10 and medical evidence.
So far as the evidence of PW 8 is concerned the High Court observed that he had turned hostile and had deliberately departed from his earlier statement to the Police as well as the entry in his police diary.
In this view of the matter, the High Court reversed the order of acquittal and convicted the appellant under section 302/34, IPC.
It is this conviction which is assailed before us in this appeal by the appellant.
459 The learned counsel for the appeallant took us through the evidence of PWs 1,3 and 4.
PWs 1 and 3 are the brothers of the deceased and PW 4 is his son.
Indisputably there was bad blood between the two families on account of past incidents which may have ignited a desire for vendatta in the appellant and his companions.
At the same time, the High Court also cautioned itself to the possibility of false involvement on account of the long standing enmity.
The Hight Court then scrutinised the evidence of the aforesaid three witnesses and found that their evidence had no been shaken by elaborate cross examination.
That means, according to both the Courts, if their evidence can be trusted as credible, it would prove the appellant 's involvement in the crime.
Therefore, if their evidence is otherwise found to be reliable there can be no doubt that a conviction can be based on their evidence, notwithstanding (i) their close relations with the deceased, and (ii) the long standing enmity between the two families.
We too have perused their evidence and taken at its face value we find no infirmity.
Even the learned counsel for the appellant did not contend that there was any intrinsic infirmity in their evidence.
All that he submitted was that it would be unwise to convict the appellant on their evidence without seeking corroboration.
Since PW 8 has deliberately departed from his earlier version and has not told the truth his evidence cannot dilute their evidence.
Immediately after the incident , while PWs 8 and 10 were passing by, they were informed of the incident and the names of the assailants were disclosed to them, in regard to which they made enteries in their respective diaries.
The contradiction brought on record in the cross examination of PW 8 shows that the names of the assailants were disclosed to him.
This was sought to be further reinforced by the entry in his diary wherein the name of the appellant appeared as one of the assailants.
The learned Trial Judge wrongly attributed this entry to the ingenuity of the investigation officer.
It is, therefore, obvious that PW 8 is not a dependable witness.
The High Court 's conclusion in this behalf is unassailable.
The learned Trial Judge made no reference to the evidence of PW 10.
The High Court has referred to his testimony.
This witness stated that while he and PW 8 were passing by, a frightened PW 1 approached them and reported that his brother was assaulted by the appellant and his companions.
The High Court has accepted the testimony of the witness and we think rightly.
The evidence of the witness, therefore, lends corroboration to the prosecution version regarding the involvement of the appellant.
This discloseure was made to PW 10 immediately after the incident before there was any time of deliberation or concoction.
the medical evidence shows that the deceased had as many as seven injuries, one of which was on the skull.
the number and nature of the 460 injuries clearly indicate that more than one person was involved in the assault.
It is, therefore, clear that the medical evidence also lends corroboration to the prosecution version to this limited extent.
Strong reliance was, however, placed by the learned counsel for the appellant on the evidence of PW 2 Dr.
Sharma.
This witness has after describing the various injuries stated that the body was cold, rigor mortis and passed off and the body was decomposed when he performed the post mortem examination on the morning of 27th September, 1970.
He also noticed blisters containing reddish fluid all over the body.
The abdomen was swollen and greenish discoloration was noticed.
In his opinion death was caused on account of the brain injury.
In paragraph 6 of his deposition he stated "the duration of injury since death was 36 to 48 hours".
In cross examination he said: "As the dead body was decomposed externally and internally blisters had formed all over the body, scrotum distented, marks of swelling on body, presence of magets on body; all these symptoms do indicate that their duration of injury since death could be 14 to 20 days also.
" On the basis of these statements made by PW 2, counsel for the appellant strongly argued that death must have taken place long before 25th September, 1970 since blisters had appeared on the body.
In this connection, he placed reliance on the table found at page 134 of Modi 's Medical Jurisprudence and Toxicology,(12th Edn.).
It read as under: Putrefactive changes Time 1 to 3 days after 1.
Greenish coloration death.
over the iliac fossae The eyeballs, soft and yielding.
Green coloration spreading 3 to 6 days over the whole abdomen, after death.
external genitals and other parts of the body.
Frothy blood from mouth and nostrils.
Abdomen distrended with gas.
Cornea 8 to 10 days fallen in and concave.
Pur after death.
lish red streaks of veins prominent on the extremities, Sphincters relaxed, Nails firm.
461 4.
Body greenish brown.
Blisters 14 to 20 days froming all over the body.
Skin after death.
peels off.
Features unrecogniz able.
Scrotum distension.
Body swallow up owing to distorsiopn Maggots on the body.
Nails and hair loose and easily detached.
Soft parts changed into a thick, semi 2 to 5 fluid, black mass.
Skull, abdomen and months thorax burst.
Bones exposed.
Orbits after empty.
death.
_______________________________________________________ It is indeed suprising that no such submission was made on behalf of defence before the Trial Court as well as the High Court.
Even in the memo of appeal no such precise contention appears.
Hoeever, we have thought it proper to examine the submission on merits rather than reject it on a technical ground.
Counsel of the appellant strongly relied on this statement of PW 2 Dr.
Sharma and contended that the presence of blisters all over the body is a sure pointer to the fact that death had taken place 14 to 20 days before the post mortem examiniation.
It may be recalled that the deceased was 45 years of age and was the victim of violent attack with lethal weapons in which he had suffered a fatal semi circular woundon the scalp 6" x 4" extended by 2" to the left mid line.
In addition thereto he had received incised wounds on his left forearm resulting in fractures.
His right leg was cut into two pieces 6" below the tibia, liquified blood was oozing out, maggots were prersent, blisters were seen all over the body and the soft cuticle peeled off easily.
There was another cut wound on the left leg exposing the tibia.
A 5" wound was seen at the right side of the mouth.
It was the scalp injury which caused the death.
It is common knowledge that after death the body starts to cool down to the surrounding temperature.
The cooling of the body is the earliest phenomenon which is followed by post mortem lividity resulting from discontinuance of blood circulation and collection of blood in certain parts under gravitational action, depending on the position of the dead body.
the stoppage of blood circulation and the inaction of the natural defensive mechanism result in the bacteria present in the body as well as those that enter from outside getting scattered in everypart of the body setting in the process of putrefaction, unless special 462 care is taken to prevent the same.
Decomposition in thus essentially the process of putrefaction which is dependent on environmental climatic conditions.
In the present case death had occurred on 25th September and the dead body lay in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day.
The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post mortem examination was undertaken.
The bdy thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off.
Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity.
Body changing colour and emitting foul smell, are the two special characteristics of the decomposition process.
The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body within twelve to eighteen hours of death.
As time passes they deepen in colour and become purple.
With the spread of bacteria, there is gradual development of gases in the intestines within twelve to eighteen hours and liquefaction also takes place and soon spreads to other parts of the body.
Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed, as in the present case, files lay eggs on exposed wounds forming maggots.
The body gets bloated and liquified, the skin looses coherence, the superficial layers peel off easily and blisters are formed.
it is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots.
Before we answer the contention it is essential to notice a few facts.
The evidence of PWs 1,3 and 4 is that the incident occurred in the field of the deceased.
This fact is corroborated of PW 5 Motilal and PW 6 Parbatsingh.
The find of blood on the grass blades and on the earth attached under the seizure memo Exh.
p 8 confirms their testimony.
The evidence of these witnesses further shows that the injured was taken in a cart to the village and from there to the Bhakheda police station.
this is further established by PW 10 who has deposed that the vitim was brought in a cart to the village.
the circle Inspector PW 12 also deposes that the corpse was brought to the police station and from there it was sent to the hospital for post mortem examination which was undertaken on 27th September, 1970 at 7.00 a.m.
This evidence establishes the chain of events showing the movement of the dead body and rules out of the theory that death had taken 463 place many days before 25th September, 1970, a theory not put to the witnesses in cross examination.
The direct testimony, therefore, does not support the theory urged on behalf of the appellant.
Counsel for the appellant, however, emphasised that the statement of PW 2 in cross examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970.
It is interesting to note that table on which the learned counsel for the appellant relies is omitted from the 19th and 20th edition of the book.
But that apart at pages 128 129 of the bok (Twentieth Edition) it is stated as under: "From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals. . .
Side by side with the appearance of the greenish patch on the abodomen the body begins to emit a nauseating and unpleasant smell owing to gradual develoment of the gases of decomposition, some of which are sulphuretted hydrogen, marsh gas, carbon dioxide, ammonia and phosphoretted hydrogen.
From twelve to eighteen hours after death in summer these gases collect in the intestine, consequently abdomen swells up.
The sphincters relax, and the urine and faeces may escape.
From eighteen to thirty six or forty eight hours after death the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distored, the eyes are forcedout of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted.
A frothy, reddish fluid or mucus is forced from the mouth and nostrils.
Ultimately the features become obilterated and unrecognizable.
The abdomen becomes greately distended; hence on opening the cavity the gas escapes with a loud explosive noise.
Owing to the pressure of the gases the stomach contents are forced into the mouth the larynx and are seen running out of the mouth and nostrils.
The breast of female bodies are greatly distended.
The penis and scrotum become enormously swollen.
The cellular tissues are inflated throughout, so that the shole body appears stouter and older than it actually is.
464 These gases from blisters under the skin containing a reddish coloured fluid on the various parts of the body.
When these bursts, the cuticle being softened peels of easily.
These are characterised by absence of vital reaction.
It will thus be seen that blisters appear after the process of decomposition sets in whithin eighteen to fotry eight hours.
It shows that the existence of blisters does not mean that death had taken place 14 to 20 days ago.
That is why PW 2 is cautious to use the pharseology 'the duration of the injury since death could be 14 to 20 days also '.
Having regard to the nature of the direct testimony to which we have adverted earlier andthe passage reproduced above, we find it difficult to accept the belated submissions of the learnd counsel for the appellant that the opinion of the medical expert PW 2 destroys the version of the prosecution witnesses, particularly PWs 1,3,4 and 10, that the deceased suffered a fatal wound on the evening of 25th September, 1970 to which he succumbed on that very day.
We, therefore, reject this submission.
It was lastly submitted that the evidence of the radiologist.
Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts.
In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellant 's leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts.
In cross examination he has admitted that he had not examined the muscle power the appellant.
He conceded that the elbow was free and, therefore, he could use the weapon but not with great force.
The High Court has considered this submission in paragraph 8 of its judgment and has rejected it.
We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses.
High Court has rigtly rejected this submission and we need not dilate on it.
For the above reason, we see no merit in this appeal and dismiss the same.
Bail cancelled.
The appellant will surrender forthwith.

summary:
The appellant has been convicted under Section 302/34, Indian Penal Code, by the high Court, for the murder of one Nagji, with whom he had strained relations.
According to the prosecution there was bad blood between the family of the appellant and the deceased and there have incidents in the past, the last being the murder of two sons of the appellant and inflicting of grievous injuries on the third son, by the deceased, in which case, the deceased and his companions were acquitted.
The appellant was keen to avenge the deaths of his sons and with that end in view, on 25th Septemeber, 1970, he along with three others, duly armed with guns and sticks, attacked the deceased, Negji, while he along with his son PW4 was working in his field.
The deceased Negji raised an alarm which attacted the attention of PW 1 and PW 3, who were working in the adjacent field.
They reached the spot and withnessed the incdent.
On thier raising hue and cry, the appellant and his companions fled away PW 4 had run away frightened when a shot was fired at him.
The deceased Nagaji received serious injuries on the head and his leg was cut into two peices.
PWs 1 and 3 went in search of PW 4 and on the way met two police constables PW 8 and PW 10 to whom they narrated the whole incident and disclosed the names of the assailants.
The deceased passed away, when his body was being taken to the police station.
The postmortem examination was performed on the 27th at 7 a.m.
The appellant was put up for trial, as others were abscondng.
The learned trial Judge n appreciation of the prosecution evidence held that having regard to the long standing enmity between the two families, it was hazardous to place implict reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence.
The Trial Judge applying the rule of prudence, did not convict the appellant on uncorroborated evidence of interest withnesses and accordigly acquitted the appellant.
The State preferred an appeal to the 456 High Court.
The High Court held that although the three prosecution witnesses were closely related to the deceased, their evidence could not be discards solely on the ground they were interested and partisan witnesses.
The High Court found their evidence duly corroborated and therefore reversed and order of acquittal and convicted the appellant under Section 302/34, I.P.C.
In this appeal the appellant had challenged his conviction.
Apart from the question of appraisal of evidence,the appellants has placed strong reliance on the testimony of PW 2, Dr. Sharma and argued for the first time in the Court that his testimony shws that the death must have taken place long before 25the September 1970 there being blisters containing reddish fluid all over the body.
Dismissing the appeal, this Court, HELD: Death had occurred on 25th September 1970 and the dead body law in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day.
The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post mortem examination was undertaken.
The body thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off.
Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity.[462A C] The evidence establishes the chain of events showing the movement of the dead body and rules out the theory that death had taken place many days before 25th September 1970, a theory not put to the witnesses in corss examination.[462H 463] Blisters appear after the process of decomposition sets in within eighteen to forty eight hours.
It shows that the existence of blisters does not mean that death had taken 14 to 20 days ago.[464B]


judgement:
ivil Appeal No. 1430 of 1990.
From the Judgment and Order dated 21.10.1989 of the Central Government Industrial Tribunal, New Delhi in I.D. No. 40 of 1986.
N.B. Shetye and A.M. Khanwilkar for the Appellant.
Ashok H. Desai, R.P. Bhatt.
P.H. Parekh and Mrs. Sumita Sharma for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the Award of the Central Government Industrial Tribunal, New Delhi, in I.D. No. 40 of 1986 published in the Gazette of India, New Delhi dated 21.10 89.
The appellant is the Mathura Refinery Mazdoor Sangh (here after referred to as 'Union ').
The contesting respondent is the Indian Oil Corporation Ltd., Mathura Refinery Project, Mathura, U.P. (hereafter referred to as the 'Refinery ').
The Union represents about 900 casual labourers working in the Refinery.
These labourers are contract labourers coming under the Contract Labour (Regulation & Abolition) Act, 1971.
The nature of their work has grouped them .Some of the labourers have formed themselves into cooperative societies and those societies have entered into labour contracts with 470 the Refinery.
Other labourers are working under labour contractors who have contracts with the Refinery.
Theirs is not a constant relationship with one contractor and these labourers keep shifting from one contractor to another.
However it is claimed that these casual labourers, have been working in the Refinery for so many years in the past ranging between ten to fifteen years but they are denied wages and other benefits as also other beneficial service conditions enjoyed by workmen who are regular employees of the Refinery.
Claiming that they had a right to be treated at par with regular employees, the Union filed Writ Petition No. 2876 of 1985 under Article 32 of the Constitution of India in this Court which was disposed of on January 16, 1986 by directing the Central Government to refer to the Industrial Tribunal for adjudication the following questions: 1.
Whether, in law, the petitioners and the 48 workmen whose services have been terminated are employees of the Indian Oil Corporation, Mathura Refinery Project, Mathura? 2.
Whether the termination of the services of 48 workmen was justified? and 3.
To what relief are the workmen entitled?" Status quo was ordered to be maintained and the services of the workmen were ordered not to be terminated.
At that time, the services of 48 workmen alone were involved but as is evident the adjudication of the Tribunal would have affected others too.
Pursuant to the order of this Court, the Central Government referred and the Industrial Tribunal decided the above referred questions holding that the workmen were not employees of the Refinery and were rather the employees of the contractors.
With regard to the termination of the services of the workmen and to what relief they were entitled, the Tribunal, after answering the questions against the Union and in favour of the Refinery, suggested the following steps in the interest of Industrial harmony: (i) Though the Union should have pressed their demand for abolition of the contract labour system in the Refinery to the Central Advisory Board constituted under the Act, and even though it had been pursuing its remedies before this Court and the Tribunal, suggestions were made to the Refinery to approach 471 the Advisory Board to make a study with regard to the desirability of continuance of the contract labour system in the Refinery.
(ii) Till the Central Advisory Board makes its recommendations and the action is taken, the management of the Refinery to ensure that the contract labour is paid at least the minimum of the pay scale of its regular employees performing the same or similar duties as the workmen of the contract labour and further that the workmen among the contract labour who have put in 5 years or more of work at the Mathura Refinery shall be continued to be employed in the same work even if there is a change in the contractor and such workmen shall not be terminated except as a punishment inflicted by way of disciplinary action for misconduct, etc., voluntary retirement or retirement on reaching the age of superannuation (which may be taken as the superannuation age for the I.O.C. employees) or on ground of continuous ill health.
(iii) Refinery to give preference to those workmen in its employment by waiving the requirement of age and other qualifications wherever possible and it may also consider the creation of a benevolent fund for the contract labour wherein it may make a lumpsum contribution initially and then make equivalent or even more contribution to match the contribution made by the workmen of the contract labour.
Having suggested these, the Tribunal has clarified that these ameliorative steps, if taken by the Refinery, shall not be taken to mean that the contract labour has become the direct employees of the Refinery.
Learned counsel for the appellant says that though the above suggestions, which have the colour of directions, are in accord with the decision of this Court in 13HEL workers Association, Hardwar and Others etc.
vs Union of India and Others, [ ; yet they fall short of the expectancies of the Union and in particular to the wide sweep of the principles laid down by this Court in Dharwad Distt P.W.D. Literate Daily Wage Employees Association and Others vs State of Karnataka and Others, [ ; and prayed for directions such as those given to the State of Karnataka in the Dharwad 's case (supra).
The argument of the learned counsel has barely to be noted and 472 rejected.
The Tribunal has given to the appellant Union the maximum which could be given in the facts and circumstances of the, case.
In Dharwad 's case (supra), the State of Karnataka had itself come out with a scheme to absorb the casual workers in regular government service in a phased manner and though it did not satisfy all concerned, yet it was given a workable final shape.
This Court observed as follows: "Though the, scheme so finalised is not the ideal one but it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it.
Under the scheme of the Constitution the purse remains in the hands of the executive.
The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met.
The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer.
Therefore, unduly burdening the State for implementing the constitutional obligation forth with would create problems which the State may not be able to handle.
Therefore, the directions have been made with judicious restraint.
" Those casual workers were under the employment of the State and the State came out with a scheme for phased absorption and a graded financial responsibility.
In the instant case before us, the contract labourers are not, and have also not been found to be, having a direct connection with the Refinery, even though it is a State for the purpose of enforcement of fundamental rights.
The suggestions/directions given by the Tribunal, appear to us to be the only relief which was due to the appellant and its members in the given situation and circumstances.
Therefore, the impugned Award of the Tribunal cannot be improved upon.
Finding no merit in the appeal, we dismiss the same.
No costs.
T.N.A. Appeal dismissed.

summary:
The appellant Union, representing about 900 casual labourers falling under the Contract Labour (Regulation and Abolition) Act, 1971 some of whom formed Co operative societies and entered into contracts with the respondent refinery while others worked for contractors who had contracts with the refinery, filed a writ petition in this court claiming parity in wages and service conditions with the regular workmen of the respondent refinery.
This Court disposed the petition by directing the Central Government to refer to the Industrial Tribunal for adjudication the questions whether the petitioners and some of the workmen whose services were terminated were employees of the refinery; whether their termination was justified and to what relief they were entitled to.
The Government referred and the Tribunal decided the questions against the appellant union by holding that the labourers were employees of the contractors and not of the refinery and their termination was justified.
But the Tribunal gave certain directions by way of relief for consideration by the Advisory Board about the desirability of continuance of the contract system in the refinery, for providing minimum pay of scale of regular employees to the contract labour and giving them preference in the regular employment.
Against the award of the Industrial Tribunal, the Union filed an appeal in this Court praying for directions to the refinery to absorb and regularise the casual labourers in a phased manner.
Dismissing the appeal, this Court, 469 HELD:The contract laboures are not, and have also not been found to be, having a direct connection with the Refinery, even though it is a State for the purpose of enforcement of fundamental rights.
The directions given by the Tribunal was the only relief which was due to the appellant_union and its members.
Hence the Tribunal has given to the appellant union the maximum which could be given in the facts and circumstances of the case.
Therefore, the impugned Award of the Tribunal cannot be improved upon.
[472E F] BHEL Workers Association, Hardwar and Ors.
vs Union of India and Ors.
, ; , referred to.
Dharwad Distt.
P.W.D. Literate Daily Wage Employees Association and Ors.
V. State Of Karnataka and Ors.
, ; , distinguished.