judgement:
Appeal No.426 of 1957.
Appeal from the judgment and order dated April 21, 1955, of the Orissa High Court at Cuttack in Special Jurisdiction Case No. 179 of 1951.
A. N. Kripal, R. H. Dhebar and D. Gupta, for the appellant.
A. V. Viswanatha Sastri, M. section K. Sastri and R. Jagannatha Rao, for the respondent.
October 14.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
This is an appeal against the judgment of the High Court of Orrissa in a reference under section 66(1) of the Indian Income tax Act, 1922, hereinafter referred to as the Act, and the point for decision is whether income received by the respondent by the sale of trees growing in his forests is agricultural income exempt from taxation under section 4(3)(viii) of the Act.
The respondent is the proprietor of the impartable zamin of Jaipur in Koraput District.
The estate is of the area of 12,000 sq.
miles of which 1540 sq.
miles are reserve forest and 100 sq. miles, protected forest.
The respondent derives income from the forests by the sale of timber such as teak, salwood, lac, myrabolam, tamarind, cashewnuts and firewood.
There is no 23 178 dispute either as to the receipt of such income or as to its quantum.
All tat appears in the account books of the respondent.
The point in controversy is as to whether this income is chargeable to tax.
It is the contention of the respondent that this is agricultural income as defined ins.
2(1) of the Act, and that it is, in consequence, exempt under section 4(3)(viii).
By his 31, 1943, the Income tax order dated January Officer held that the forests in question had not been proved to have been planted by the respondent, that the trees were of spontaneous growth, and that the income therefrom was not within the exemption under section 4(3)(viii); and this order was confirmed on appeal by the Appellate Assistant Commissioner.
The respondent took the matter in further appeal to the Appellate Tribunal, and there put forward the contention that the Incometax Officer had failed to take into account a letter of the Dewan dated June 3, 1942, which gave a detailed account of the operations carried on by the estate in the rearing and maintenance of forests and that on the facts mentioned in that letter, his finding that there had been no plantation of trees was errolieous.
By its order dated April 9, 1946, the Tribunal accepted this contention, and directed a fresh enquiry into the facts mentioned in the said letter.
Pursuant to this order, the Income tax Officer again enquired into the matter.
He observed that though he gave ample opportunities to the respondent to prove that there was plantation of trees by the estate, no materials were placed in proof of that fact and that neither plantation books nor any working plans for timber plantation had been produced.
He accordingly held that the forests had grown naturally, and that the income therefrom was assessable to tax.
On this report, the appeal again came up for hearing before the Tribunal.
The main contention urged by the respondent at the hearing was that the facts showed that the forests which had yielded income during the year, ' of account could not have been the virgin forests which had originally grown spontaneously on the hills, because they had been periodically denuded by the hill tribes in the process of Podu cultivation carried on by 179 them.
What this Podu cultivation means is thus stated in the ]District Gazetteer, Vishakapatnam, 1907: " This consists in felling a piece of jungle, burning the felled trees and undergrowth, sowing dry grain broadcast in the ashes (without any kind of tilling) for two years in succession, and then abandoning the plot for another elsewhere.
" The argument of the respondent was that as a result of the Podu cultivation, the original forests should have disappeared and that the trees that had subsequently grown into forest and sold as timber must have been planted by human agency and their sale proceeds must accordingly be agricultural income.
Dealing with this contention, the Tribunal observed that though there had been extensive destruction of forests in the process of Podu cultivation, nevertheless, considerable areas of virgin forests still survived, that the evidence of actual cultivation and plantation by the zamin authorities was meagre and unsubstantial, that no expenses were shown to have been incurred on this account prior to 1904, that the amount shown as spent during that year was negligible, that the trees planted then could not have been the trees sold as timber during the assessment years, and that the respondent bad failed to establish facts on which he could claim exemption.
It should be mentioned that this order covered the assessments for five years from 1942 43 to 1946 47, the facts relating to the character of the income being the same for all the years.
On the application of the respondent, the Tribunal referred the following question for the decision of the High Court : " Whether on the facts and in the circumstances the income derived from forest in this case is taxable under the Indian Income tax Act.
" The reference was heard by Panigrahi, C. J., and Misra, J., who answered it in the negative.
They observed : " It appears to us that the cases as set out by both parties have been put too high.
The department takes the view that unless there is actual cultivation of the 180 soil the income from the forest trees cannot be regard.
,led as agricultural income.
The fact that the assessee has spent some money and planted valuable trees in some areas is not sufficient to free the income out of the extensive forests which owe their existence to spontaneous growth, from its liability to taxation.
The assessee on the other hand seeks to create an impression that there is not a single tree of spontaneous growth, in these forests, and such trees as now constitute forests have sprung up out of the stumps left by the hillmen as a result of the system of I Podu ' cultivation adopted by them.
It appears to us that neither of these claims can be regarded as precise or correct." The learned Judges then observed that the forests in the Koraput area had been under Podu cultivation for a long period, and that as the result of that cultivation they had practically disappeared even by the year 1870, that the trees had subsequently grown into forests and they had also been destroyed by about the year 1901, and that therefore there could not have been any virgin forest left surviving.
Then they referred to the fact that the respondent had been maintaining a large establishment for the preservation of the forests, and that there had been organised activities (1) " in fostering the growth of the trees and preserving them from destruction by man and cattle; (2) in cultivation of the soil by felling and burning trees from time to time; (3) in planned exploitation of trees by marking out the areas into blocks; (4) in systematic cutting down of trees of particular girth and at particular heights; (5) in planting new trees where patches occur; and (6) in watering, pruning, dibbling and digging operations carried on from time to time ".
And they stated their conclusion thus: " All these and similar operations which have been undertaken by the assessee through his huge forest establishment, show that there has been both cultivation of the soil as well as application of human skill and labour, both upon the land and on the trees themselves.
It cannot be assumed therefore that all the trees are of spontaneous growth.
The indications, on 181 the other hand, appear to be that most of them are sprouts springing from burnt stumps.
There is no basis for the assumption made by the Income tax Department that all the trees are forty years old and that they owe their existence to spontaneous growth.
Apart from that it will be noticed that what distinguishes the present case from all the reported decisions is that practically the whole of the forest area has been subjected to process of 'Podu ' cultivation spreading over several decades so that it is impossible to say that there is any virgin forest left.
The onus was certainly upon the department to prove that the income derived from the forest was chargeable, to tax and fell outside the scope of the exemption mentioned in Section 4(3)(viii).
" In this view, they held that the Department had failed to establish that the income derived from the sale of trees was not agricultural income, and answered the reference in favour of the respondent.
The learned Judges, however, granted a certificate to the appellant under section 66(A)(2) of the Act, and that is how the appeal comes before us.
At the very outset, we should dissent from the view expressed by the learned Judges that the burden is on the Department to prove that the income sought to be taxed is not agricultural income.
The law is well settled that it is for a person who claims exemption to establish it, and there is no reason why it should be otherwise when the exemption claimed is under the Income tax Act.
The learned Judges were of the opinion that their conclusion followed on the principle of the law of Income tax that " where an exemption is conferred by a statute, the State must not get the tax either directly or indirectly ", and support for this view was sought in the following observations of Lord Somervell, L. J., in Australian Mutual Provident Society vs Inland Revenue Commissioners (1): " The rule must be construed together with the exempting provisions which, in our opinion, must be regarded as paramount.
So far as the rule, if taken (I) 182 in isolation, would have the effect of indirectly depriving the company of any part of the benefit of the exemption, its operation must be cut down, so as to prevent any such result, and to allow the exemption to operate to its full extent.
" These observations have, in our opinion, no bearing on the question of burden of proof.
They merely lay down a rule of construction that in determining the scope of a rule, regard must be had to the exemptions engrafted thereon, and that the rule must be so construed as not to nullify those exemptions.
No such question arises here.
There is ample authority for the view that the principle that a person who claims the benefit of an exemption has to establish it, applies when the exemption claimed is under the provisions of the Income tax Act.
Vide the observations of the Lord President and of Lord Adam in Maughan vs Free Church of Scotland (1) and the observations of Lord Hanworth, M. R., in Keren Kayemeth Le Jisroel Ltd. vs The Commissioners of Inland Revenue (2) at p. 36 that " the right to exemption under Section 37 must be established by those who seek it.
The onus therefore lies upon the Appellants ", and of Lord Macmillian at p. 58 that, " In my opinion, the Appellants, have failed to bring it within any one of these categories and consequently have failed in what was essential for them to make out, namely, that this Company is a body of persons established for charitable purposes only.
" The decisions of Indian Courts have likewise ruled and quite rightly that it is for those who seek exemption under section 4 of the Act to establish it.
Vide Amritsar Produce Exchange Ltd. In re (3) and Sm.
Charusila Dassi and others, In re (4).
So far as exemption under section 4(3) (viii) is concerned, the matter is concluded by a decision of this Court given subsequent to the decision now under appeal.
In Commissioner of Income tax vs Venkataswamy Naidu (5), this Court held, reversing the judgment of the High Court of Madras, that it (1) , 21 O. (2) (3) , 327.
(4) , 370.
(5) , 534. 183 was for the assessee to prove that the income sought to be taxed was agricultural income exempt from taxation under section 4(3)(viii).
Bhacgwati, J., delivering the ' judgment of the Court observed: " . the High Court erroneously framed the question in the negative form and placed the burden on the Income tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income.
In order to claim an exemption from payment of incometax in respect of what the assessee considered agricultural income, the assessee had to put before the Income tax Authorities proper materials which would enable them to come to a conclusion that the income which was sought to be assessed was agricultural income.
It was not for the Income tax Authorities to prove that it was not agricultural income.
It was this wrong approach to the question which vitiated the judgment of the High Court and led it to an erroneous conclusion.
" On the inerits, the question what is agricultural income within section 2(1) of the Act is the subject of a recent decision of this Court in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1).
There, it was held that before an income could be held to be agricultural income, it must be shown to have been derived from land by agriculture or by one or the other of the operations described in cls.
(i) and (ii) of section 2(1)(b) of the Act, that the term St agriculture " meant, in its ordinary sense, cultivation of the field, that in that sense it would connote such basic operations as tilling of the land, sowing of trees, plantation and the like, and that though subsequent operations such as weeding, pruning, watering, digging the soil around the growth and removing undergrowths could be regarded as agricultural operations when they are taken in conjunction with and as continuation of the basic operations mentioned before, they could not, apart from those operations, be regarded as bearing the character of agricultural operations.
(1) ; , 155, 158, 160.
184 It is only " observed Bhagwati, J., delivering the judgment of the Court, " if the products are raised from the land by the performance of these basic operations that the subsequent operations attach themselves to the products of the land and acquire the characteristic of agricultural operations. " " But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations.
" Dealing with trees which grow wild, Bhagwati, J., observed : " It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived therefrom is not agricultural income.
There is no process of agriculture involved in the raising of these products from the land.
" The law being thus settled, in order to decide whether the income received by the respondent by the sale of trees in his forests was agricultural income or not, the crucial question to be answered is, were those trees planted by the proprietors of the estate, or did they grow spontaneously ? If it is the latter, it would be wholly immaterial that the respondent has maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees, because ex hypothes, he performed no basic operations for bringing the forests into being.
Now, the Tribunal has clearly found that there were no plantations of trees by the estate authorities worth the name, and that the trees, the income from which is the subject matter of the assessments, must have been of sponta neous growth.
That is a finding of fact which is binding on the Court in a reference under section 66(1) of the Act.
The learned Judges declined to accept this finding, because they considered that the Tribunal had not appreciated the true significance of Podu cultivation.
That, in our opinion, is a misdirection.
If the point for decision had been whether the forest was a virgin forest or whether it had subsequently sprung up, the evidence relating to Podu cultivation would have 185 been very material.
But the point for decision is not whether the forests were ancient and primeval, but whether they had been planted by the estate authorities, and on that, the Podu cultivation would have no bearing.
As a result of the Podu cultivation, the original forests would have disappeared.
But the question would still remain whether the forest which again sprang up was of spontaneous growth, or was the result of plantation.
Now, there is no evidence that as and when the jungle had disappeared under Podu cultivation, the estate intervened and planted trees on the areas thus denuded.
On the other hand, the learned Judges themselves found that after the destruction of the original forests in the process of Podu cultivation, there was a fresh growth of forests from the stumps of the trees which had been burnt.
If that is the fact, then the new growth is also spontaneous and is not the result of any plantation.
In fairness to the learned Judges, it must be observed that at the time when they heard the reference there was a conflict of judicial opinion on the question whether subsequent operations alone directed to the preservation and improvement of forests would be agricultural operations within section 2(1) of the Act; and the view they took was that such operations when conducted on a large scale as in the present case would be within section 2(1) of the Act.
It was in that view that they observed that "it is therefore idle to regard tilling as the sole and indispensable test of agriculture ".
The decision of the learned Judges was really based on the view that though trees in the forest had not been planted by the estate authorities, the latter had performed subequent operations of a substantial character for the maintenance and improvement of the forest, and that, in consequence, the income was agricultural income.
This view is no longer tenable in view of the decision of this Court in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1).
It is contended by Mr. Viswanatha Sastri for the (1) ; , 155, 158, 160.
24 186 respondent that on the facts established in the evidence, the proper conclusion to come to is that the trees sold by the respondent had been planted by the estate authorities, and that the decision of the High Court that the income thus realised is within the exemption under section 4(3)(viii) could be supported even on the view of law taken in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1).
The argument was that there was unimpeachable evidence that the old forests had disappeared under Podu cultivation, that the estate had been regularly engaged in planting trees at least from the year 1904 as is shown by the accounts of the zamin, that it was a reasonable inference to make that there had been similar plantations even during the years prior to 1904 notwithstanding that no accounts were produced for those years, because it would not be reasonable to expect that such accounts would now be available, that though the amount shown as spent for plantation might not be considerable, that was understandable when regard is bad to the fact that the agricultural operations were conducted on the hills and not on the plains, that, on these facts, it would be proper to conclude that the forests were in their entirety the result of plantation.
It would be ail erroneous approach, it was argued, to call upon the assessee to prove tree by tree that it was planted.
Now, these are matters of appreciation of evidence on what is essentially a question of fact, viz., whether the trees were of spontaneous growth or were products of plantation.
On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under section 66 (1) of the Act.
Even the learned Judges of the High Court who considered themselves free to review that finding and, as already pointed out, without justification, could only observe that the trees must have mostly grown from the slumps left when the forests were burnt for purposes of Podu cultivations finding which is fatal to the contention now urged for the respondent that they (I) ; , 155, 158, 160.
187 were the result of plantation.
We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in these proceedings.
It remains to deal with one other contention urged on behalf of the respondent, and that is based on the fact that the amounts spent in the upkeep of the forrests were large in comparison with the receipts therefrom.
The following are the figures relating to the forest receipts and expenses for the years with which the present assessments are concerned: Years Receipts Expenses 1942 43 Rs. 438,894 Rs. 174,437 1943 44 Rs. 407,447 Rs. 209,895 1944 45 Rs. 552,122 Rs. 228,830 1945 46 Rs. 372,971 Rs. 247,216 1946 47 Rs. 689,366 Rs. 460,369 The argument is that from the high proportion of the expenses in relation to the receipts it could be inferred that the income from trees planted by the estate formed a substantial portion of the income derived from the forests.
And support for this conclusion is sought in the following observations in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1): " The expenditure shown by the assessee for the maintenance of the forest is about Rs. 17,000 as against a total income of about Rs. 51,000.
Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves.
" To appreciate the true import of these observations, we must have regard to the context in which they occur.
The facts found in that case were that portions of the forest which was originally of spontaneous growth had gradually been denuded, that the propritor had planted trees in the areas so denuded, that this had gone on for a period of over 150 years, and that therefore " the whole of the income derived from (1) ; , 155, 158, 160.
188 the forest cannot be treated as non agricultural income ".
It was then observed that " If the enquiry had been directed on proper lines, it would have been possible for the Income tax authorities to ascertain how much of the income is attributable to forest of a spontaneous growth and how much to trees Planted by the proprietors ", but that, in view of the long lapse of time, it was not desirable to remand the case for enquiry into the matter.
Then follow the observations on which the respondent relies, and when read in the light of the findings that the plantations made by the proprietors were not negligible, they mean nothing more than that out of the total income a substantial portion was likely to be agricultural income, and that it was therefore not a fit case for ordering fresh enquiry These observations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors.
They only mean that if a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom.
And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all the facts found.
In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent.
It is scarcely necessary to add that the observations " If the enquiry bad been directed on proper lines, it would have been possible for the Income tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors " quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income.
That, in their context, is not the true meaning of the observations, and the law is as laid down in Commissioner of Income tax vs Venkataswamy Naidu (1) , 534. 189 In the result, this appeal is allowed, the order of the Court below is set aside and the reference is answered in the affirmative.
The respondent will pay the costs of the appellant here and in the Court below.
Appeal allowed.

summary/full:
The respondent, the proprietor of an estate, derived income from the sale of trees growing in his forests and claimed that it was agricultural income as defined in section 2(1) of the Indian Income tax Act, 1922, and that it was exempt from payment of income tax under section 4(3)(viii).
The Appellate Tribunal found that the evidence to show that there was plantation by the estate authorities was meagre and unsubstantial, that the trees in question must have been of spontaneous growth and that the respondent had failed to establish facts on which he could claim exemption.
On reference, the High Court took the view that though trees in the forest had not been planted by the estate authorities, the latter had performed subsequent operations of a substantial character for the maintenance and improvement of the forest, and that the income was, therefore, agricultural income.
It also held that the onus was on the income tax authorities to prove that the income derived from the sale of trees was not agricultural income and that they had failed to show that the income fell outside the scope of the exemption mentioned in section 4(3)(viii) Of the Act.
Held, that the High Court erred in placing the burden on the income tax authorities to prove that the income sought to be taxed was not agricultural income.
The principle has been well established that where a person claims the benefit of an exemption under the provisions of the Act, he has to establish it.
177 Commissioner of Income tax vs Venkataswamy Naidu, [1956] 291.T.R. 529, followed.
The question whether the trees were of spontaneous growth or were products of plantation was essentially a question of fact and the finding of the Tribunal on this point was binding on the High Court in a reference under section 66(1) of the Act.
Held, further, that the income received by the respondent by the sale of trees in his forests was not agricultural income as the trees had not been planted by him, and that it was immaterial that he had maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees.
The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy; , , explained and followed.


judgement:
Criminal Appeal No. 328 of 1979.
From the Judgment and Order dated 2.1.1979 of the Alla habad High Court in Government Appeal No. 663 of 1973.
Pramod Swarup for the Appellant.
Manoj Swarup, Prashant Choudhary and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Khanjan Pal, the appellant, was con victed by the High Court for the offence punishable under Section 302, I.P.C. and sentenced to undergo imprisonment for life, in reversal of the order of acquittal passed by the Sessions Judge, Agra.
The brief facts of the case are as under: The appellant, Khanjan Pal, and the deceased, Deep Singh, were working in the bangles welding factory of Data Ram in Mohalla Rajputana, Thana Firozabad.
The prosecution case was that while working in the factory at about 2.30 P.M. on 8.4.1972, the appellant 608 said to the deceased that he had illicit relationship with one Tara.
Deep Singh said that he considered Tara to be his sister.
The altercation ensued between the appellant and the deceased and in the course of the altercation, the appellant stabbed the deceased with a knife and this incident was witnessed by P.W. 2, Ram Pratap Singh, and P.W. 4, Maharaj Singh besides Umrao Singh, P.W. 1.
The injury sustained by the deceased was a punctured wound penetrating into chest cavity.
The occurrence was reported at the police station by Umrao Singh, father of the deceased at 3.00 P.M. the same day.
In the course of the investigation, blood stained shirt was seized from the appellant and sent for chemical examina tion.
The certificate was to the effect that it was stained with human blood.
The trial court acquitted the appellant discarding the testimony of the eye witnesses mainly for the reasons that the occurrence could not have happened at the alleged time and place as the place of occurrence was not mentioned in the first information report, the postmortem report referred to the presence of undigested food in the abdomen of the deceased, the presence of Umrao Singh (P.W. 1), Ram Pratap Singh (P.W. 2), and Maharaj Singh (P.W. 4) was doubtful in the light of the conduct of P.W. 3, Data Ram and that since the attendance register was not produced, it was doubtful whether the factory was opened on that day or not.
The appellant was therefore given the benefit of doubt by the trial court.
The High Court on a careful analysis of the entire evidence dislodged the finding of the trial court, accepted the testimony of P.W. 2 and P.W. 4 and concluded that the prosecution had established the charge against the appel lant.
We have been taken through the judgments ' and the relevant records of the case.
We are satisfied that the High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High Court that the appellant has caused the death of the deceased, Deep Singh, by stabbing with a knife in the manner alleged by the prose cution is unassailable.
The approach by the trial court was clearly wrong and the finding is perverse.
The testimony of the two independent eye witnesses had not been properly appreciated.
Their presence at the scene could not at all be doubted in the light of what P.W. 3 has deposed.
They are probable witnesses and there had not been any infirmity in their evidence as rightly pointed out by the High Court.
The evidence of P.W. 1, rejected by the trial court was also not accepted by the High Court.
The reasoning adopted by the trial court, in our opinion, was so perverse that the High Court was justified in upsetting the finding and 609 arriving at an independent conclusion which is fully sup ported by the evidence on record.
We do not, therefore, see any merit in the contention advanced on behalf of the appel lant that the conviction is wrong.
however, agree with the learned counsel for the appellant that on the basis of the facts proved, the offence is not murder punishable under Section 302, I.P.C., and that the act of the appellant as proved would fail only under Section 304 Part II, I.P.C. The appellant had in statement under Section 3 13, Cr.P.C., admitted that there had been an altercation between the two and the deceased received the injury in the course of a scuffle.
The evidence clearly established that the whole incident was a sudden development and that the appellant had acted at the spur of the moment and without any pre meditation.
There had been no ill will or enmity between the two.
A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife.
The appellant used the knife only once and did not act in any cruel man ner.
It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased.
In such circumstances.
the act of the appellant falls under Excep tion 4 to Section 300, I.P.C., and the appellant is liable to be convicted only under Section 304, Part II, I.P.C. We accordingly alter the conviction to one under Section 304, Part II, I.P.C. We are told that the appellant had already undergone imprisonment for over one year.
He had been released on bail by order of this Court dated 16.7.
The appellant, a young man who had been at large for over nearly 12 years, in our opinion, cannot be committed to prison for any further period at this stage.
To meet the ends of justice, we direct the appellant to pay a fine of Rs.50,000 in addition to the term of imprisonment he has already suffered.
We, thus modify the sentence awarded by the High Court.
We also direct that the fine, if realised, shall be paid to P.W. 1, Umrao Singh, the father of the deceased and other legal heirs of Deep Singh.
In case of default in payment of fine, the appellant shall undergo further imprisonment for one year.
The appeal is partly allowed.
G.N. Appeal partly allowed.

dataset_name: IN-Abs

summary/full:
The appellant was charged with the murder of a co worker at the factory in which they were working.
The Trial Court discarded the testimony of eye witnesses and other circum stances and acquitted the appellant, by giving him the benefit of doubt.
On appeal, the High Court accepted the testimony of the eyewitnesses and convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment.
This appeal is against the High Court 's judgment.
Allowing the appeal in part, HELD: 1.
The High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High Court that the appellant has caused the death of the deceased, by stabbing with a knife in the manner alleged by the prosecution is unassailable.
The approach by the trial court was clearly wrong and the finding is perverse.
The testimony of the two independent eye witnesses had not been properly appreciated.
Their presence at the scene could not at all be doubted in the light of what P.W. 3 has deposed.
They are probable witnesses and there had not been any infirmity in their evidence.
[608F G] 2.
However, the offence is not murder punishable under Section 302 IPC, and that the act of the appellant as proved would fail only under Section 304 Part II, IPC.
The appel lant had admitted that there had been an altercation between the two and the deceased received the injury in the course of a scuffle.
The evidence clearly established that the whole incident was a sudden development and that the appel lant had acted at the spur of the moment and without any pre meditation.
607 There had been no ill will or enmity between the two.
A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife.
The appellant used the knife only once and did not act in any cruel manner.
It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased.
[609B D] 3.
The conviction is altered to one under Section 304, Part II, IPC.
Appellant had already undergone imprisonment for over one year.
He had been released on bail by order of this Court.
The appellant, a young man who had been at large for over nearly 12 years, cannot be committed to prison for any further period at this stage.
[609E] 4.
To meet the ends of justice, it is directed that the appellant should pay a fine of Rs.50,000 in addition to the term of imprisonment he has already suffered.
This amount would be paid to the father of the deceased and other legal heirs.
In case of default in payment of fine, the appellant should undergo further imprisonment for six months.
[609F G]


judgement:
ivil Appeal No. 671 of 1985.
From the Judgment and Order dated 24th August, 1984 of the Calcutta High Court in Appeal from Appellate Decree No. 263 of 1979.
N.S. Nesargi and Dr. Meera Agarwal for the Appellant.
Rajan Mahapatra and Rathin Das for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The matter arises under the West Bengal Premises Tenancy Act, 1956 ( 'Act ' for short).
The appellant is the tenant occupying the premises belonging to the respondent 612 on a monthly rent of Rs.475.
The respondent landlady filed a Suit No. T.S. 84/73 on the ground of default of rent for the period from May to August, 1973.
The appellant deposited the rent and made an application under Section 17(2) of the Act.
The trial court vide its order dated 27.2.74 held that the rent payable is only Rs.450 per month and directed the appellant to deposit the balance of arrears of rent within 15 days.
At this stage a compromise memo was filed and the suit was compromised in terms of the compromise memo.
In the memo it was mentioned that the default was of the first instance and that there would be no decree for khas posses sion.
It appears the appellant again committed default in payment of rent from June to December, 1975 (both months inclusive).
The respondent landlady filed Title Suit No. 3/76 after giving notice for eviction.
In that suit the appellant filed a petition under Section 17(2) and Section 17(2A) of the Act.
By Order No. 26 dated 23.3.77 the trial court decided that the rent payable was Rs.475 per month and the appellant was asked to deposit the arrears at the rate of Rs.3 15 per month by the 15th of each month commencing from April, 1977.
The appellant contested the suit and filed a written statement claiming benefit under Section 17(4) of the Act pleading that it was the first default.
The respond ent landlady contested the same stating that no such relief can be granted as per the proviso to the Section since such a relief was already granted once and that at any rate the appellant did not comply with the order while making the deposit of the arrears by 15th of each month and on that ground also no relief can be granted under Section 17(4).
The trial court decreed the suit and the first appellate court as well as the High Court dismissed the appeals pre ferred by the appellant.
In this appeal firstly it is contended that though there was delay in paying the installments as per Order dated 23.3.77 passed under Sections 17(2) and 17(2A) the Court did not order striking off the defence as provided under Section 17(3) and therefore the delay must be deemed to have been condoned and consequently it must be held that the appellant made the deposits as required by sub sections (2) and (2A) of Section 17 and hence he is entitled to claim relief under Section 17 (4).
The second contention is that the default which is the subject matter of Title Suit No. 3/76 should be treated as the first default inasmuch as the relief granted in Title Suit No. 84/73 in respect of the default for the period from May to August, 1973 was not one under Section 17(4) since the suit was decreed by way of compromise.
When this matter came up before another Bench of this Court consisting of two Hon 'ble Judges, in support of the second contention, 613 reliance was placed on Jagan Nath vs Ram Kishan Das & Anr., ; , (a decision of three Judges) where a similar provision in the Delhi Rent Control Act, 1958 was considered in a case where the earlier suit was withdrawn.
The Bench felt that the provision was construed in a narrow and technical sense and referred this matter to a Bench of three Judges and that is how this matter has come up before us.
All the three courts below have held that the appellant did not make the deposits before 15th day of each month as per the order dated 23.3.77 passed under Section 17(2) and Section 17(2A).
Unless such a deposit is duly made no relief can be granted under Section 17(4) of the Act.
At this stage it becomes relevant to refer to the provisions of Section 17.
Section 17 reads as under: "section 17.
When a tenant can get the benefit of protection against eviction (1) On a suit or proceeding being insti tuted by the landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of sub section (2) within one month of the service of the writ of summons on him or where he appears in the suit or pro ceeding without the writ of summons being served on him, within one month of his appearance deposit in court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one third per cent, per annum from the date when any such amount was payable up to the date of deposit, and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.
(2) If in any suit or proceeding referred to in subsection (1) there is any dispute as to the amount of rent payable by the tenant, the tenant shall within the time specified in sub section ( 1), deposit in court the amount admitted by him to be due from him together with an applica tion to the Court for determination of the rent payable.
No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable, On receipt of such application, the Court shall 614 (a) having regard to the rate at which rent was last paid, and the period for which default may have been made, by the tenant, make, as soon as possible within a period not ex ceeding one year, a preliminary order, pending final deci sion of the dispute, specifying the amount, if any, due from the tenant and thereupon the tenant shall, within one month of the date of such preliminary order, deposit in court or pay to the landlord the amount so specified in the prelimi nary order; and (b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in Court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.
(2A) Notwithstanding anything contained in subsec tion (1) or sub section (2), on the application of the tenant, the Court may, by order, (a) extend the time specified in sub section (I) or sub section (2) for the deposit or payment of any amount re ferred to therein; (b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive or interest required to be deposited or paid under subsection (1) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such installments and by such dates as the Court may fix; Provided that where payment is permitted by in stallments such sum shall include all amounts, calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this sub section is to be made with interest on any such amount calculated at the rate 615 specified in sub section (1) from the date when such amount was payable upto the date of such order.
(2B) No application for extension of time for the deposit or payment of any amount under clause (a) of subsec tion (2A) shall be entertained unless it is made before the expiry of the time specified therefore in sub section (1) or sub section (2), and no application for permission to pay in installment under clause (b) or sub section (2A) shall be entertained unless it ' is made before the expiry of the time specified in sub section (1) for the deposit or payment of the amount due on account of default in the payment of rent.
(3) If a tenant fails to deposit, or pay any amount referred to in sub section (1) or sub section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub section (2A), or fails to deposit or pay any installment permitted under clause (b) of sub section (2A) within the time fixed therefore, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.
(4) If a tenant makes deposit or payment as re quired of sub section (1), sub section (2) or sub section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the land lord: Provided that a tenant shall not be entitled to any relief under this sub section if, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a period of twelve months.
" The learned counsel for the appellant submits that assuming that there was delay in making the deposit of installments of the rent as per the said order, the follow up action by the Court as contemplated under Section 17(3) namely strik ing off the defence has not been ordered and therefore it should be presumed that the delay was condoned or deemed to have been condoned.
We are unable to agree with this submis sion of the learned counsel for the appellant.
As already 616 mentioned, the appellant filed petition under Sections 17(2) and 17(2A) pending the present suit disputing the amount of rent and also seeking permission to deposit the rent by way of installments.
The rent was held to be Rs.475 per month and the same was directed by the Court to be paid by monthly installments before 15th of each month but the appellant did not make the deposits duly.
Admittedly no application was made for extension of time.
Section 17(2) provides that if in any suit there is dispute as to the amount of rent pay able the tenant within the time specified shall deposit in court the amount admitted by him to be due from him with an application for determination of rent.
Section 17(2A) pro vides for extension of the specified time and also to depos it the rent by way of installment under the orders of the Court.
Section 17(2B) lays down that no application for extension of time shall be entertained unless it is made before the expiry of the specified time under sub section(1) or sub section (2) and it further lays down that no applica tion for permission to pay in installments under clause (b) of sub section (2A) shall be entertained unless it is made before the expiry of the time specified.
Section 17(3), on which reliance is placed by the appellant lays down that if a tenant fails to deposit, or pay any amount referred to in sub section (1) or sub section (2) ' within the time speci fied therein or within such extended time as may be allowed under clause (a) of sub section (2A), or fails to deposit or pay any installment permitted under clause (b) of sub sec tion (2A), the Court shall order the defence against deliv ery of possession to be struck out shall proceed with the hearing of the suit.
We have already noted that no applica tion for extension of time was made.
The mere fact that the court has not passed an order striking off the defence as contemplated under Section 17(3) because of the tenant 's failure to deposit within the time specified in the order passed under Sections 17(2) and 17(2A) does not necessarily lead to a presumption that the time was extended.
On the other hand Section (2B) which is a mandatory provision laid down that no application for extension of time for the deposit or payment of any amount under clause (a) of sub section (2A) shall be entertained unless it is made before the expiry of the time specified in sub section (1).
There fore in the absence of such application it be contended that the Court is deemed to have condoned the delay.
That being the position it must be held that the appellant tenant to make the deposit of the rent as per Order No. 26 dated 25, 3.77 passed under Section 17(2) and 17(2A).
Since such a deposit is the condition precedent for seeking relief under Section 17(4) the appellant who has not fulfilled the same cannot claim the said relief.
On this ground alone the orders of the courts below have to be confirmed.
In this view of the matter we do not propose to go into the 617 second contention in this appeal.
It may be decided in any other appropriate case where the question directly arises.
The premises in question is in Calcutta City where accommo dation problem is very acute.
Therefore the appellant is given time till 31st March, 1991 to vacate the premises on filing the usual undertaking within three weeks from today.
The appeal is accordingly dismissed.
In the circumstances of the case there will be no order as to costs.
T.N.A. Appeal dis missed.

summary/full:
The respondent landlady filed a suit for eviction of the appellanttenant on the ground of default in payment of rent.
The appellant deposited the rent and made an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956.
The Trial Court determined the rent payable and di rected deposit of the arrears of rent.
The suit was subse quently compromised.
The appellant again committed a default in payment of rent and the respondent filed another suit for eviction.
The appellant filed petition under section 17(2) and (2A), disputing the amount of rent and also seeking permission to deposit rent by installments.
The Trial Court decided the rent payable and directed the appellant to deposit the arrears of rent in monthly installments by the 15th of each month.
Thereupon the appellant tenant claimed protection under section 17(4) which was resisted by the landlady on the ground that (i) the protection cannot be granted as per the proviso to section 17(4), since he has already been granted relief once in the earlier suit, and (ii) Appel lant 's non compliance with the Court 's order in depositing the rent disentitled him from claiming relief under section 17(4).
The Trial Court decreed the respondent 's suit and the first appellate Court as well as the High Court confirmed the same by dismissing the appeals preferred by the appel lant.
611 In the appeal to this Court it was contended on behalf of the appellant that since the follow up action of the Court under section 17(3) viz. striking off the defence has not been ordered, it should be presumed that the delay in depositing the rent was condoned thereby entitling the appellant to relief under section 17(4).
Dismissing the appeal, this Court, HELD: The mere fact that the Court has not passed an order striking off the defence as contemplated under Section 17(3) because of the tenant 's failure to deposit within the time specified in the order passed under Section 17(2) and 17(2A), does not necessarily lead to a presumption that the time was extended.
On the other hand Section 17(2B) which is a mandatory provision lays down that no application for extension of time for the deposit or payment of any amount under clause (a) of sub section (2A) shall be entertained unless it is made before the expiry of the time specified in sub section (1).
[615H; 616C] In the instant case no application for extension of time was made by the appellant.
Therefore, in the absence of such application it cannot be contended that the Court is deemed to have condoned the delay.
[616G] Since deposit of rent as per Court 's order under Section 17(2) and (2A) is the condition precedent for seeking relief under section 17(4) the appellant who has not fulfilled the same cannot claim the said relief.
The orders of the Court below are therefore confirmed.
[616H]


judgement:
ivil Appeal No. 5025 of 1985.
From the Judgment and Order dated 25.3.1985 of the Delhi High Court in C.W.P. No. 686 of 1985.
Arun K. Sinha for the Appellant.
N.S Hegde, Additional Solicitor General, T.C. Sharma and Mrs. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by 700 K. RAMASWAMY, J.
1.
This appeal by special leave under article 136 of the Constitution arises against the decision of the Delhi High Court in C.W.P. No. 686 of 1985 dated March 25, 1985.
The appellant was working as an Assistant Grade IV of the Indian Foreign Service, Branch 'B ' in Indian High Commission at London.
On November 8, 1978 he was transferred to the Ministry of External Affairs, New Delhi, but he did not join duty as commanded, resulting in initiation of disciplinary proceedings against him on August 23, 1979.
Pending the proceedings, on February 26, 1980 the appellant sought voluntary retirement from service and by proceedings dated October 24, 1980 he was allowed to retire but was put on notice that the disciplinary proceedings initiated against him would be continued under rule 9 of Civil Serv ices Pension Rules, 1972 for short 'Rules '.
His main defence in the explanation was that his wife was ailing at London and, therefore, he sought for leave for six days in the first instance and 30 days later, which was granted, but as she did not recover from the ailment, he could not undertake travel.
So he sought for more leave, but when it was reject ed, he was constrained to opt for voluntary retirement.
After conducting the enquiry the Inquiry Officer submitted his report dated May 19, 1981.
The gravemen of charges as stated earlier are that the appellant absented himself from duty from December 15, 1978 without any authorisation and despite his being asked to join duty he remained absent from duty which is wilful contravention of Rule 3(i)(ii) and 3(i)(iii) of the Civil Services Conduct Rule 1964.
The Inquiry Officer found that "it is however difficult to say whether his absenting himself from duty was entirely wilful".
In the concluding portion he says that both the articles of charges have been established, the circumstances in which the appellant violated the rules require a sympa thetic consideration while deciding the case under Rule 9 of the Rules.
The President, on consideration of the report, agreed with the findings of the Inquiry Officer and in consultation with the Union Public Service Commission decid ed that the entire gratuity and pension otherwise admissible to the appellant was withheld on permanent basis as a meas ure of punishment through the proceedings dated November 24,.
When the appellant challenged the legality there of, the High Court dismissed the writ petition in limine on the ground that it would not interfere in its discretionary jurisdiction under article 226 of the Constitution.
The contention of Mr. Kapoor, learned counsel for the appellant is that the appellant having been allowed to retire voluntarily the authorities are devoid of jurisdic tion to impose the penalty of withholding gratuity and pension as a measure of punishment and the 701 proceedings stand abated.
We find no substance in the con tention.
Rule 9(2) of the Rules provided that the departmen tal proceedings if instituted while the Government servant was in service whether before his retirement or during his re employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
Therefore, merely because the appellant was allowed to retire, the Government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto.
The disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceedings under the rules and shall be continued and concluded by the authori ties by which the proceedings have been commenced in the same manner as if the Government servant had continued in service.
The only inhibition thereafter is as provided in the proviso namely "provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report record ing its findings to the President".
That has been done in this case and the President passed the impugned order.
Accordingly we hold that the proceedings are valid in law and they are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authority, i.e.the President of India.
His further contention that the appellant must be found to have committed "grave misconduct" or "negligence" within the meaning of Rule 8(5)(2) of the Rules which alone gives power and jurisdiction to the authority to withhold by way of disciplinary measure the gratuity and payment of pension: Public employee holding a civil post or office under the State has a legitimate right to earn his pension at the evening of his life after retirement, be it on super annuation or voluntary retirement.
It is not a bounty of the State.
Equally too of gratuity, a statutory right.
earned by him.
Article 141 of the Constitution accords right to as sistance at the old aged or sickness or disablement.
In D.S. Nakara & Ors.
vs Union of India, ; the Con stitution Bench of this Court held that pension is not only compensation for loyal service rendered in the past, but also by the broader significance in that it is a social welfare measure rendering socioeconomic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to ageing process and, therefore, one is required to fall back on savings.
One such saving in kind is when one had given his best in the hey day of life to his employer, in days of invalidity, economic security by way of periodical 702 payment is assured.
Therefore, it is a sort of stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service.
Thus pension is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered.
In one sentence one can say that the most practical raison d 'etre for pension is the inability to provide for one self due to old age.
One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.
At page 190 D it is stated that pension as a retire ment benefit is in consonance with and furtherance of the goals of the Constitution.
The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security from gradle to grave is assured at least when it is mostly needed and least available, namely in the fall of life.
Therefore, when a Government employee is sought to be deprived of his pensionary right when the had earned while rendering services under the State, such a deprivation must be in accordance with law.
Rule 9(1) of the rules provides thus: "The President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanent ly or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental of judicial proceedings, the pensioner is found guilty or grave miscon duct or negligence during the period of his service includ ing service rendered upon re employment after retirement.
Provided that the Union Public Service Commission shall be consulted before any final orders are passed.
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees sixty per mensum.
" Therefore, it is clear that the President reserves to himself the right to withhold or withdraw the whole pension or a part thereof whether permanently or for specified period.
The President also is empowered to order recovery from a pensioner of the whole or part of any pecuniary loss caused to the Government, if in any, proceeding in the departmental enquiry or judicial proceedings, the pensioner is 703 found guilty of grave misconduct or negligence during the period of his service including service rendered upon re employment after retirement.
Rule 8(5), explanation (b) defines 'grave misconduct ' thus ' "The expression 'grave misconduct ' includes the communica tion or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Offi cial Secrets, Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudi cially affect the interest of the general public of the security of the State.
" In one of the decisions of the Government as compiled by Swamy 's Pension Compilation, 1987 Edition, it is stated that: "Pensions are not in the nature of reward but there is a 2binding obligation on Government which can be claimed as a fight.
Their forfeiture is only on resignation, removal or dismissal from service.
After a pension is sanctioned its continuance depends on future good conduct, but it cannot be stopped or reduced for other reasons.
It is seen that the President has reserved to himself the right withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum.
The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re employment.
The condition precedent thereto is that there should be a find ing that the deliquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case.
Myriad situation may arise depending on the ingenuinity with which misconduct or irregularity was committed.
It is not necessary to further probe into the scope and meaning of the words 'grave miscon duct or negligence ' and under what circumstances the find ings in this regard are held proved.
It is suffice that charges in this case are that the appellant was guilty of wilful misconduct in not reporting to duty after his trans fer from Indian High Commission at London to the Office of External Affairs Ministry, Government of India, New Delhi.
The Inquiry Officer found that though the appellants dere licted his duty to report to duty, it is not 704 wilful for the reason that he could not move due to his wife 's illness and he recommended to sympathetically consid er the case of the appellant and the President accepted this finding, but decided to withhold gratuity and payment of pension in consultation with the Union Public Service Com mission.
As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceed ings that the pensioner committed grave misconduct or negli gence in the discharge of his duty while in office, subject of the charge.
In the absence of such a finding the Presi dent is without authority of law to impose penalty of with holding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60. 7.
Rule 9 of the rules empowers the President only to with hold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum.
The employee 's right to pension is a statutory fight.
The measure of deprivation therefore, must be correl ative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to as sistance at the evening of his life as assured under article 41 of the Constitution.
The impugned 'order discloses that the President withheld on permanent basis the payment of gratui ty in addition to pension.
The fight to gratuity is also a statutory right.
The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment.
No provision of law has been brought to our notice under which, the President is empow ered to withhold gratuity as well, after his retirement as a measure of punishment.
Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.
In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved.
Accordingly the appeal is allowed and the impugned order dated November 24, 1981 is quashed but in the circumstances parties are directed to bear their own costs.
N.P.V. Appeal allowed.

summary/full:
Disciplinary proceedings were initiated against the appellant for wilful contravention of Rules 3(1)(i) and 3(1)(iii) of the Central Civil Services (Conduct) Rules.
1964 by absenting himself from duty without authorisation and in not reporting to duty at New Delhi office on transfer from London office.
Pending proceedings, he was allowed to retire voluntarily but was put on notice that the discipli nary proceedings would be continued under rule 9 of the Civil Services Pension Rules, 1972.
Thereafter, on comple tion of the enquiry, the President of India in consultation with the Union Public Service Commission, decided to with hold the entire gratuity and pension otherwise admissible to the appellant, on permanent basis, as a measure of punish ment.
The appellant 's writ petition challenging the legality of the order was dismissed by the High Court, in limine.
In the appeal by special leave, before this Court, on behalf of the appellant it was contended that since the appellant had been allowed to retire voluntarily, the pro ceedings stood abated, and the authorities were devoid of jurisdiction to impose the penalty of withholding gratuity and pension as a measure of punishment, and that for award ing the said punishment the appellant must be found to have committed grave misconduct or negligence within the meaning of Rule 8(5), Explanation (b).
698 Allowing the appeal, this Court, HELD: 1.
Rule 9(2) of the Central Civil Services (Pen sion) Rules, 1972 provided that the departmental proceedings if instituted while the Government servant was in service, whether before his retirement or during his re employment, should, after the final retirement of the Government serv ant, be deemed to be proceedings under the rule and should be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
[701A B] In the instant case, merely because the appellant was allowed to retire, the Government is not lacking jurisdic tion or power to continue the proceedings already initiated to the logical conclusion thereto.
The only inhibition is that where the departmental proceedings are instituted by an authority subordinate to the President, that authority should submit a report recording its findings to the Presi dent.
That has been done, and the President passed the order under challenge.
Therefore, the proceedings are valid in law and are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authori ty, i.e. the President of India.
[701B D] 2.1 Public employee holding a civil post or office under the State has a legitimate right to earn his pension at the evening of his life after retirement be it on superannuation or voluntary retirement.
It is not a bounty of the State.
Equally too of gratuity, a statutory right, earned by him Article 41 of the Constitution accords right to assistance at the old age of sickness or disablement.
Therefore, when a Government employee is sought to be deprived of his pension ary right which he had earned while rendering services under the State, such a deprivation must be in accordance with law.
[701F G; 702D] D.S. Nakara & Ors.
vs Union of India, ; , relied on.
2.2 Under Rule 9(1) of the Central Civil Services (Pension) Rules, 1972, the President has reserved to himself the right to withhold pension in whole or in part, whether permanently or for a specified period, or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum.
However, the exercise of the power is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner com 699 mitted grave misconduct or negligence in the discharge of his duty while in office, as defined in Rule 8(5), Explana tion (b), which is an inclusive definition, i.e. the scope is wide of mark, dependent on the facts or circumstances in a given case.
In the absence of such a finding, the Presi dent is without authority of law to impose penalty or with holding pension as a measure of punishment either in whole or in part, permanently or for a specified period.
[702G H; 704B; 703E F] In the instant case, the Inquiry Officer found that though the appellant derelicted his duty to report to duty, at New Delhi on transfer from London, it was not wilful for the reason that he could not move due to his wife 's illness and he recommended to sympathetically consider the case of the appellant and the President accepted this finding, but decided to withhold gratuity and payment of pension perma nently, in consultation with the Union Public Service Com mission.
[703G H; 704A] The employee 's right to pension is a statutory right.
The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution.
The right to gratuity is also a statutory right.
The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment.
There is no provision of law under which the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment.
Therefore, the order to withhold the gratuity as a measure of penalty is illegal and devoid of jurisdiction.
Since there is no find ing that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct, was not proved.
[704D G]