Judgment Case ID: 1605

Judgment:
ivil Appeal No. 626 of 1961. Appeal by special leave from the judgment and order dated November 18	 1959	 of the Andhra Pradesh High Court in Writ Petition No. 922 of 1956. T.V.R. Tatachari and P.D. Menon	 for the appellants. K. Bhimasankaram and T. Satyanarayana	 for the respondent. April 10. The Judgment of the Court was delivered by SHAH J. On March 10	 1955	 the Deputy Inspector General of Police	 State of Andhra	 passed an order dismissing the respondent (who was a sub inspector of police appointed on probation) from service. On appeal to the Inspector General of Police	 the order was altered into one of removal from service. The respondent then. moved the High Court of Andhra pradesh by a petition under article 226 of the Constitution for a writ of certiorari or other appropriate 27 writ or direction quashing the proceedings of the Inspector General of Police including his order dated September 24	 1955	 and the order of the Deputy Inspector General of Police dated March 10	 1955	 and for such other orders as the Court may deem fit. The High Court quashed the two impugned orders. Against the order passed by the High Court	 this appeal is preferred with special leave. It is necessary to set out in some detail the facts which gave rise to the departmental proceedings against the respondent resulting in his removal from service. The respondent was at the material time in charge of the police station Kodur	 Visakhapatnam District. On February 18	 1954	 an offence of house breaking and theft was reported at the police station and was registered on February 19	1954. It was recited in the report of the Village Munsif of Vechalam that one Durgalu who was then absconding was suspected to be the offender. This Durgalu was apprehended by the Village Munsif of Kalogotla on March 5	 1954	 and was handed over to the Village Munsif of Vechalam	 who in his turn sent Durgalu to Kodur police station with village servants V. Polayya	 Vechalapu Simhachalam	 Kodamanchali Simhachalam and Koduru Sumudram. It is the case of the State that Durgalu was handed over to the respondent on the night of March 5	 1954	 but no written acknowledgment in token of having received Durgalu from the village servants was given by the respondent	 nor was any entry posted in the station diary	 and Durgalu was thereafter confined in the police station from the night of March 5	 1954	 without any order from a Magistrate remanding him to police custody. On March 7	 1954	 the ' respondent entrusted charge of the police station to a head constable and left for Kakinada on casual leave for five days. He returned to Kodur on March 12	 1954. After the departure of the respondent	 28 some constables arrested one Reddy Simhachalam and brought him to the police station in the evening of March 7	 1954. It is the case of the State that as a result of torture by police constables Nos. 1199	 363 and 662	 Reddy Simhachalam became unconscious. The dead body of Reddy Simhachalam was found floating in a well near the police station on the morning of March 9	 1954	 and an enquiry into the circumstances in which the death took place was commenced by the Revenue Divisional Officer	 Narsipatnam. In the enquiry	 Durgalu made a statement that he had witnessed the torture of Reddy Simhachalam	 in the police station	 by the three constables. Police constables Nos. 1199	 363 ' and 662 were then charged before the Sub Magistrate	 Chodavaram	 for offences under sections 304(2) and 201 read with section 114 I.P. Code	 for causing the death of Reddy Simhachalam by torturing him and for causing disappearence of the evidence of his death. Before the Sub Magistrate	 Durgalu retracted his earlier statement and stated that the statement that he was an eye witness to the torture of Reddy Simhachalam was untrue and that he was induced to make that statement by the police. He deposed that he had escaped from the custody of the village servants before he reached the police station Kodur on March 5	 1954	 and that he was re arrested on March 8	 1954. The Sub Magistrate discharged the police constables holding that once Durgalu the only eye witness turned hostile	 there was no direct evidence on which even a prima facie case could be made out against them. The record of the case before the Sub Magistrate was called by the Sessions Judge	 Visakhapatnam	 suo motu. The Sessions Judge held it proved on the evidence that Durgalu was arrested on March 5	 1954 and was taken to the police station Kodur and was wrongfully confined since that date in the police station	 and the story of Durgalu before the Sub Magistrate that after he was arrested on March 5	 1954 and was taken to the 29 Kodur village on that very day he had escaped from custody and that he remained in his village Vechalam could not be believed. A departmental enquiry was commenced in May 1954: against the respondent. The charge in the disciplinary proceedings against the respondent after it was amended ran as follows : "Reprehensible conduct in wrongfully confining a K.D	 Chandana Durgalu accused in Cr. No.17/54: of Kodur Police Station from the night of 5 3 54: to 7 3 1954: in the Police Station when he went on five days casual leave. ' ' To the charge was appended a "statement of facts" reciting inter aria	 that Durgalu was apprehended by the Village Munsif	 Kaligotla and was handed over to the Village Munsif	 Vechalam	 that Durgalu was sent by the latter with the written report with the assistance of village servants	 that on the same night the latter handed over Durgalu to the respondent in the police station Kodur at about 12 mid night	 with the report of the Village Munsif and demanded acknowledgment but the acknowledgment was refused by the respondent	 and that the respondent did not mention these facts in any of the station records and wrongfully confined Durgalu in the police station till March 7	 1954:	 when he proceeded on casual leave for five days. This	 the "statement of facts" added	 constituted grave and reprehensible conduct and hence the charge. The respondent submitted an explanation in which he submitted that Durgalu was not handed over to him on March S	 1954:	 as alleged nor at any time before he proceeded on March 7	 1904:	 on casual leave. His plea was that when he proceeded on leave he entrusted charge of the police station to the head constable leaving instructions to trace Durgalu and to take action. 30 The Deputy Superintendent of Police held the departmental enquiry and submitted his report on October 27	 1954	 setting out the evidence of the witnesses examined on behalf of the State and the respondent	 and summing up the conclusion by reciting that the evidence in the case for the State made out a strong case against the respondent	 that it was established that Durgalu was arrested on March 5	 1954	 and was sent by the Village Munsif to Vechalam who in his turn sent him with the village servants to the police station Kodur	 and Durgalu was handed over to the respondent on the night o.f March 5	 1954	 that the story of Durgalu that after he was arrested on March 5	 1954	 he escaped from the custody of the village servants and was again arrested on March 8	 1954	 was false. The report then concluded "All these facts go to show that he was arrested on the 5th without a shadow of doubt	 but if the judgment of the learned Court which is based on the retracted statement of Durgalu is considered the 'sacred truth ' the delinquent may have benefit of doubt. " This report was considered by the authority competent to impose punishment and a provisional conclusion that the respondent merited punishment of dismissal for the charges held established by the report was recorded. A copy of the report of the Enquiry Officer was sent to the respondent and he was called upon to submit his representation against the action proposed to be taken in regard to him. The respondent submitted his representation which was considered by the Deputy Inspector General of Police	 Northern Range	 Waltair. That Officer referred to the evidence of witnesses for the State about the arrest of Durgalu on March 5	 1954	 and the handing over of Durgalu to the respondent on the same day. He observed that the evidence of Durgalu 'that after he was arrested on March 5: 1954	 he had made good his escape and was again arrested on March 8	 1954	 could not be accepted. Holding that the charge 31 against the respondent was serious and had on the evidence been adequately proved	 in his view the only punishment which the respondent deserved was of dismissal from the police force. In appeal the Inspector General of Police accepted the evidence of the witnesses who had deposed that they had handed over Durgalu to the respondent on March 5	 1954. In his view the respondent had "betrayed gross dishonesty and lack of character in falsifying the records by omitting to write what he had done and what happened in the police station	 thereby .proving himself thoroughly dishonest and untrustworthy	 and showing himself unfit to hold the responsible post of a SubInspector of police	 and that his records as a probationary Sub Inspector of police are generally unsatisfactory. and he has earned a reputation for inefficiency and lack of interest in work for weakness in dealing with his subordinates	 which are all attributes that militate against his becoming useful SubInspector of Police. " But taking into consideration his young age and inexperience	 the Inspector General of Police reduced the order of dismissal into one for removal from service. In the departmental proceeding a simple question of fact fell to be determined viz. whether Durgalu was arrested on March 5	 1954	 and was delivered over by the village servants to the respondent at police station Kodur on the night of March 5	 1954. There is no dispute that Durgalu was arrested on March 5	 1954	 and was sent by the Village Munsif	 Vechalam with his report to the police station Kodur. The only question in dispute was whether Durgalu was handed over to the respondent on March 5	 1954	 as stated by the witnesses for the State. The case of the State was accepted by the Deputy Inspect.or .General of Police who passed the order of dismissal and the Inspector 32 General of Police in appeal. But the High Court declined to accept this view of the evidence. In so doing	 with respect it must be observed	 the High Court assumed to itself jurisdiction which it did not possess. The High Court was of the view that the conclusion of the departmental authorities was vitiated	 because the Enquiry Officer dealt with the evidences of witnesses for the State	 and the witnesses for the respondent separately	 and the Deputy Inspector General of Police and the Inspector General of Police did not in recording their orders refer to all the evidence led before the Enquiry Officer and they "failed to appreciate the full significance of the rule concerning the onus of proving. The rule meant that everything essential to the establishment of a charge lies on the person	 who seeks to establish the charge. It further means that the two sets of evidence in the case must not be examined separately in order to ascertain first whether those for establishing the charge have proved it and then to examine the defence in order to see how far the conclusions are unjustified. The better approach	 which has been described as the golden thread in the web of criminal law is to examine the law	 the whole evidence in order to ascertain how far the liability of the person proceeded against has been established beyond reasonable doubt". The High Court then observed that ordinarily the conclusions on questions of fact by a body or tribunal in a proceeding under article 226 of the Constitution are accepted by the High Court but that general rule does not apply "whenever an important principle of jurisprudence is discarded in reaching such findings"	 and since the fundamental rule that a person should be punished only after the entire evidence in the case had been considered and he is found liable beyond reasonable doubt	 had not been followed	 the conclusions of the departmental authorities were vitiated. The High Court again observed that the orders passed by the departmental authorities were vitiated because of two 33 other matters: (i) that the Enquiry Officer declined to summon and examine two witnesses for the defence even though a request in that behalf was made; and (ii) that there was no charge against the respondent of "falsifying the record by omitting to write what he had done or what happened in the police station"	 and he had not been given an opportunity of meeting such a charge and therefore the respondent had no fair hearing consistent with the principles of natural justice. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him	 the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court	 must be applied	 and if that rule be not applied	 the High Court in a petition under Art	 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: iris concerned to determine whether the enquiry is held by an authority competent in that behalf	 and according to the procedure prescribed in that behalf	 and whether the rules of natural justice are not violated. Where there is some evidence	 which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge	 it is not the function of the High Court in a petition for a writ under article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the 34 rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or ;where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion	 or on similar grounds. But the departmental authorities are	 if the enquiry is otherwise properly held	 the sole judges of facts and if there be some legal evidence on which their findings can be based	 the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under article 226 of the Constitution. The Enquiry Officer had accepted the evidence of witnesses for the Sate that Durgalu was handed over to the respondent on March 5	 1954	 and the observation that the respondent may have the benefit of doubt if the judgment of the Magistrate is considered "sacred truth" appears to have been made in a somewhat sarcastic vein	 and does not cast any doubt upon the conclusion recorded by him. The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant. in so stating	 the Enquiry Officer did not commit any error. The first ground on which the High Court interfered with the order of the punishing authorities is therefore wholly unsustainable. The two other grounds on which the High Court also based its conclusion	 namely	 refusal to summon and examine witnesses for the respondent and holding the respondent guilty of a charge of which he had no 35 notice are equally without substance. It appears that the respondent desired to examine police constables Nos. 178	 506 and 569 to prove that Durgalu was not in the lock up till March 8	 1954. Police constable No. 506 was examined as a witness for the respondent	 and the Enquiry Officer has not accepted his evidence. The other two witnesses were neither summoned nor examined	 but it appears from the record that on September 20	 1954	 the respondent promised to produce the witnesses whom he had cited in his defence. At the hearing dated September 26	 1954	 three witnesses were examined by the respondent and the respondent was given another opportunity to secure the presence of the remaining defence witnesses. On September 27	 1954 police constable 506 was examined and it appears that the respondent expressed his desire not to examine any more witnesses. In the proceeding of the Enquiry Officer there is a note that "your defence witnesses have been examined and such documents you required have been produced and exhibited". The respondent subscribed his signature in acknowledgment of the correctness of that recital. He did not raise any objection in the representation made by him before the Deputy Inspector General of Police when notice was issued on him to show cause why he should not be punished. In the memo of appeal to the Inspector General of Police	 it was submitted by the respondent that the police witnesses were to be summoned by the Enquiry Officer	 and that he did not summon them. It was also submitted that the statement signed by the respondent was only in respect of private witnesses	 and not police witnesses. But the endorsement made by the Enquiry Officer is not susceptible of any such interpretation	 which refers to all witnesses for the respondent. The record does not show that an application for summoning the police witnesses was made and the Enquiry Officer in breach of the rules declined to summon them. We are in the light of this evidence 36 of the view that the respondent did not	 after the examination of police constable No. 506	 desire to examine the two police constables Nos. 178 and 569	 whom he. originally wanted to examine. It was next urged that the findings recorded were not in respect of the charge which the respondent was called upon to answer. The charge against the respondent was that he had wrongfully confined Durgalu on March 5	 1954	 to March 7	 1954	 in the police station. In the statement of facts which accompanied the charge sheet it was stated in express terms that the respondent had not recorded in any of the diaries of the police station that Durgalu was handed over to him on March 5	 1954. The charge and the "statement of facts" form part of a single document on the basis of which proceedings were started against the respondent and it would be hypercritical to proceed ' on the view that though the respondent was expressly told in the statement of facts which formed part of the charge sheet	 that he had failed to record that Durgalu was handed over to him	 that ground of reprehensible conduct ' was not included in the charge	 and on that account the enquiry was vitiated. No objection appears to have been raised before the Deputy Inspector General or even the Inspector General of police	 that there was infirmity in the charge on that account	 and that infirmity had prejudiced the respondent in the enquiry. The respondent had full notice of the charge against him	 and he examined witnesses in support of his defence and made several argumentative representations before the Deputy Inspector General	 the Inspector General of Police and the Government of Andhra Pradesh. In our Judgment the proceedings before the departmental authorities were regular and were not vitiated on account of any breach of the rules of natural justice. The conclusions of the departmental 37 officers were fully borne out by the evidence before them and the High Court had no jurisdiction to set aside the order either on the ground that the "approach to the evidence was not consistent with the approach in a criminal case	 nor on the ground that the High Court would have on that evidence come to a different conclusion. The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him. The conclusion recorded by the punishing authority was therefore not open to be canvassed, nor was the liability of the respondent to be punished by removal from service open to question before the High Court. The appeal is allowed and the order passed by the High Court is set aside. The petition filed by the respondent is dismissed. There will be no order as to costs. The order as to costs passed by the High Court will stand. Appeal allowed. 
391	Appeal No. 206 of 1955, 63 On appeal from the judgment and order dated the 5th May 1954 of the Patna High Court in Appeal from the Original Order No. 284 of 1951 arising, out of the order dated the llth July 1951 of the Court of Subordinate Judge, Motihari in Misc. Case No. 30 of 1951. Veda Vyas, (section K. Kapur and Ganpat Rai, with him) for the appellant. C.K. Daphtary, Solicitor General of India (K. B. Asthana and C. P. Lal, with him) for respondent NO. 1. 1956. January 31. The Judgment of the Court was delivered by BOSE J. This appeal arises out of certain execution proceedings. The decree which the appellant, Jainarain Rain Lundia, seeks to execute is one that directsspecific performance of a contract to sell certain shares in a private limited company known as the Ganga Devi Sugar Mills, together with a five annas share in a partnership firm called the Marwari Brothers, on payment of a sum of Rs. 2,45,000. The facts are as follows. The partnership firm, known as the Marwari Brothers, was formed on the 29th of February 1936. The partners consisted of two groups called the Bettia Group and the Padrauna Group. The Padrauna Group consisted of (1) Kedarnath Khetan and (2) a firm called Surajmal. These two were the plaintiffs in the suit. Kedarnath was one of the partners of the Surajmal firm. The Bettia Group consisted of (1) Gobardhan Das (2) Jainarain Ram Lundia (3) Badri Prasad and (4) Bisheshwar Nath. On Bisheshwar Nath 's death his son Madan Lal Jhunjhunwalla stepped into his shoes. These persons were the defendants. The Marwari Brothers Firm was formed for the purpose of promoting a company for starting a sugar mill in Champaran and for securing the managing agency of the company for itself for a period of ninety years. This was done. The capital of the company consisted of Rs. 8,00,000 divided into 800 shares of 64 Rs. 1,000 each. The shares were distributed as follows. In the Bettia Group Gobardhan Das and his brother Badri Prasad had 100 shares; Jainarain had 150 and Madan Lal had 100. The Bettia Group thus had 350 shares between them. The other group (Padrauna) held the remaining 450 shares. About five years later the two sets of partners fell out and, as a result, the Bettia Group agreed, on 1 1 1941, to sell a certain number of their shares in the Ganga Devi Sugar Mills Limited to the Padrauna Group along with a certain share in the Marwari Brothers firm. The exact number of shares agreed to be sold and the extent of the share in the firm was amatter of dispute but that does not concern us at this stage because we are only concerned with the final result embodied in the decree now under execution. The Padratuna Group sued for specific performance and the dispute was carried as far as the Federal Court. That Court affirmed the decree of the Calcutta High Court on 6 5 1949. The substance of the decree was this: 1.It is declared that upon payment and or tender to the defendants appellants Jainarain Ram Lundia and Madan Lal Jhunjhunwala of the sum of Rs. 2	45	000 with interest thereon by the plaintiffs	 the plaintiffs are entitled to 250 shares belonging to the said defendants in the Ganga Devi Sugar Mills Limited and five annas share belonging to them in the Marwari Brothers and to all dividends and profits in respect thereof with effect from 1 2 1941 2."And it is further ordered and decreed that against payment or tender by. the plaintiffs to the said defendants of the said sum of Rs. 2	45	000 with interest as aforesaid the said defendants appel]ants and all proper parties do execute in favour of the plaintiffs proper deed or deeds of transfer or assignment of the said 250 shares in the Ganga Devi Sugar Mills Limited and the said five annas share in the Marwari Brothers This was in slight variation of the first Court 's decree. The exact variation does not matter. All 65 that it is necessary to note is that the plaintiffs (that is	 the Padrauna Group) tendered the money some time after the first Court 's decree and before the Calcutta High Court 's decree. The tender was not accepted as the defendants (the Bettia Group) had appealed. It is admitted that there was no second tender after the High Court 's decree. After the Federal Court had settled the matter	 one of the defendants	 Jainarain Ram Lundia	 applied to the Calcutta High Court for execution. The decree was transferred to the Subordinate Judge	 Motihari	 and the execution proceedings started there on 25 1 1951. One of the plaintiffs	 Kedarnath Khetan	 filed an objection petition on 20 3 1951. That is the objection we are concerned with. Among other things	 one of the objections was that the defendants were not in a position to implement the conditions imposed on them by the decree because the Marwari Brothers firm was dissolved by agreement between the parties before the Federal Court 's decree and was no longer in existence. The present appeal turns almost entirely on that fact and on the conseq uences that flow from it. The first Court	 that is	 the Subordinate Judge 's Court at Motihari to whom the decree bad been transferred	 declined to go into this holding that it had no jurisdiction as a transferee Court. The plaintiff Kedarnath appealed to the High Court and succeeded. The High Court held that the transferee Court had jurisdiction	 that the Marwari Brothers had been dissolved and that because of that the defendants could not execute the decree. The defendants appealed here. We will first consider the question of fact	 namely	 whether the Marwari Brothers was still in existence as a firm at the date of the execution application. On this point we agree with the High Court that it was not	 for the following reasons. The plaintiff Kedarnath asserted in his objection petition that the firm had been dissolved by agreement between the parties "including the plaintiffs and the defendants". This fact was not denied by 9 66 the defendant Jainarain Ram Lundia in his rejoinder though the fact was specifically alleged to be within his personal knowledge. Even if he did not know whether the firm bad been dissolved or not (a fact which cannot be the case for reasons that we shall give later) he was certainly in a position to admit or deny whether the fact was within his personal knowledge. His silence can therefore only have one meaning. The defendant 's learned counsel contended before us that the fact had been denied by implication because Kedarnath stated that his side was	 and had always been	 ready to perform their part of the decree. Counsel argued that as the plaintiffs contended that performance was not possible after the dissolution of the Marwari Brothers firm this meant that the firm was still in existence. We reject this contention and remark in passing that this is inconsistent with another argument which was also urged in this Court	 namely that the fact of dissolution was no bar to performance on the defendant 's part. Quite apart from the language of the rejoinder	 the defendant Jainarain said in paragraph 15 of his application dated 12 7 1954 made to the High Court for leave to appeal here that "the said Marwari Brothers was in existence on the date of the said conveyance	 namely 14th September 1950	 and died a natural death on the conveyance of the Ganga Devi Sugar Mills to North Bihar Sugar Mills". This is a clear admission that the firm was dissolved	 at any rate	 on 14 9 1950. The plaintiff 's contention is that it was dissolved much earlier but whether that was so or not will make no difference to this appeal because 14 9 1950 is also before the date of the application for execution. The defendant 's learned counsel tried to explain this away also. He said that the defendant did not mean that the firm was dissolved on that date but that as the only purpose for which the firm existed	 namely	 the managing agency of the Ganga Devi Sugar Mills	 had gone the firm could no longer function. 67 In order to understand this	 some further facts will be necessary. While the plaintiff 's appeal was being heard in the High Court	 the defendants made an application to that Court on 14 4 1954 asking for permission to adduce further evidence in the shape of a sale deed dated 14 9 1950. The defendant con 	 tended that he had only "recently" come to know that the Ganga Devi Sugar Mills had sold all its land	 machinery	 etc. to the North Bihar Sugar Mills on 14 9 1950. This terminated the managing agency	 and as the only business of the firm was this managing agency and as that was the only purpose for which the firm was formed	 it was no longer able to function. But he said that this deed would show conclusively that the firm was in existence on that date. The High Court refused to accept this document because it considered that the only ground on which additional evidence can be admitted in appeal is when the Court is unable to pronounce judgment on the material already before it; as that was not the case here it rejected the document. We need not decide whether there is any conflict of view between the Privy Council decisions in Kessowji Issur vs G.I.P. Rly.(1) and Parsotim vs Lal Mohar(2) on the one hand and Indrajit Pratap Sahi vs Amar Singh(3) on the other because	 even if this evidence were to be admitted and were to be accepted as true	 there would still be the defendant 's admission in the High Court that the firm stood dissolved at least on 14 9 1950. We are not able to construe the statement in any other way. The plaintiff says that the dissolution was much earlier and that the firm mentioned in the sale deed now sought to be filed was not the same firm but another firm of the same name	 but even if the defendant 's version be accepted the fact still remains that even according to his statement there was a dissolution before his application for execution and that therefore the defendants were not in apposition to assign their five annas share (1) [1907] L.R. 31 I.A. 115	 122. (2) [1931] L.R. 58 I.A. 254. (3) [1928] L.R. 50 I.A. 183	 190	 191. 68 in the Marwari Brothers firm. We now have to consider the effect of that. Much of the argument about this revolved round the question whether the equitable rules that obtain before decree in a suit for specific performance con tinue at the stage of execution. It is not necessary for us to go into that here because the position in the present case is much simpler. When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered un less the party seeking execution not only offers to .perform his side but	 when objection is raised	 satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannot do. There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated	 any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which	 of course	 an executing Court cannot do. The only question therefore is whether the decree in the present case is of this nature. We are clear that it is. The relevant part of the decree has already been quoted. It directs that "against payment or tender by the plaintiffs. the said defendants. do execute in favour of the plaintiffs proper deed or deeds of transfer of . five annas share in the Marwari Brothers. This is not a case of two independent and severable directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that they cannot exist without each other. The fact that it is a decree for specific performance where the decree itself cannot be given unless the side seeking performance is ready and willing to perform his side of the bargain and is in a position to do so	 only strengthens the conclusion that that was the meaning 69 and intendment of the language used. But the principle on which we are founding is not confined to cases of specific performance. It will apply whenever a decree is so conditioned that the right of one party to seek performance from the other is conditional on his readiness and ability to perform his own obligations. The reason is	 as we have explained	 that to hold otherwise would be to permit an executing Court to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinct suits. Fry on Specific Performance was quoted to us (6th edition	 Chapter IV	 pages 546 onwards) where the learned author states that relief can often be obtained after judgment along much the same lines as before: thus a party to a contract may	 in a proper case	 apply for rescission of the contract and so forth. it was urged by the other side that even if that can be done it can only be done by the Court which passed the decree and not in execution. We do not intend to examine this because even if these remedies also exist	 provided application is made to the proper Court	 it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behind it. If the decree says that on payment being made some definite and specific thing is to be given to the other side	 the executing Court cannot alter that and allow something else to be substituted for the thing ordered to be given. The learned counsel for the defendant appellant contended that even if the Marwari Brothers had ceased to exist as a firm the plaintiff was still entitled to a five annas share in its assets on dissolution. But a five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution in the decree would be to alter it in a very material particular. The defendant may or may not have the 70 right to ask the Court which passed the decree to vary it in that way but he can certainly not	 ask the executing Court to do so. The decree must either be executed as it stands in one of the ways allowed by law or not at all. In the High Court	 and also before us	 much was made of the fact that the plaintiff had not re tendered the money after the decree was varied by the High Court and it was argued that that precluded him from contesting the defendant 's right to attach his property under Order XXI	 rule 32(1)	 of the Civil Procedure Code. The remedy provided in Order XXI	 rule 32(1)	 is	 of course	 one of the remedies available in execution of a decree for specific performance but it can only be used by a person who is entitled to execute the decree	 and if	 by reason of his own incapacity to perform his part	 he is precluded from seeking execution	 Order XXI	 rule 32 (1)	 cannot apply. The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can? The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else	 so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution	 discharge and satisfaction of the decree and so	 under section 47 of the Civil Procedure Code	 it can only be determined by the Court executing the decree. And as for the first Court 's conclusion that it could not decide these matters because it was not the Court that passed the decree	 it is enough to say	 as the High Court did	 that section 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such decree as if it bad been passed by itself. The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal Court when it passed its decree he 71 is precluded from doing so now. It is true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection to execution. The defendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree	 in view of its language and intendment	 must either be executed as a whole or not at all; it cannot be split up into different and un correlated parts and be executed unilaterally. It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree	 or modification of the terms of the decree later if he did not know these facts at the time	 as he says	 it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifies it. Then it was argued that this objection to execution should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for transfer of the decree to Motihari and that as that was not done it is too late now. But here also the answer is the same. The only question before the Calcutta High Court on the application made to it was whether the decree should be transferred or not. Whether the plaintiff might or could have taken the objection in the High Court is beside the point because it is evident that he need not have done so on the only issue which the application for transfer raised	 namely	 whether the decree should be transferred or not; at best it could only be said that the plaintiff had a choice of two forums. If the appellant 's contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine. In our opinion section 42 of the Civil Procedure Code is a complete answer to this contention. The appeal fails and is dismissed with costs.

Summary:
The respondent was a Sub Inspector of Police in charge 01 a police station. One D	 suspected of having committed an offence	 was apprehended by the village Munsif and was sent to the police station. He was handed over to the respondent. The respondent declined to give a written acknowledgment of having received 1)and made no entries in the station diary regarding him. D was confined in the police station for several days without being produced before a Magistrate. A departmental inquiry was started against him for reprehensible conduct in wrongfully confining D. The defence set up by him was that D had never been handed over to him because he had escaped while on his way to the police station. The Deputy Superintendent of Police	 who held the enquiry	 found him guilty of the charge. The Deputy Inspector General of Police gave him a show cause notice and after considering his explanation ordered that he be dismissed from service. On appeal	 the Inspector General of Police modified the order of dismissal and converted it into one for removal from service. The respondent filed a writ petition before the High Court challenging the validity of the order and the High Court quashed the orders. Held that the High Court had no jurisdiction to interfere with the orders. The High Court was wrong in its view that in a departmental enquiry the rule followed in a criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court must be applied and that if such a rule was not applied the high court could set aside the order of the departmental authority in exercise of its power .under article 226 of the constitution. The High Court does not sit as a court of appeal over the decision of the authority holding a departmental enquiry: 26 it has only to see whether the enquiry has been held by a competent authority and according to the procedure prescribed and whether the rules of natural justice have been observed. Where there is some evidence which the authority has accepted and which evidence may reasonably support the conclusion that the officer is guilty	 it is not the function of the High Court exercising its jurisdiction under article 226 to review the evidence and to arrive at an independent finding on the evidence. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be convassed before the High Court. In the present case	 the proceedings before the departmental authorities were regular	 no rules of natural justice were voilated	 the conclusions were borne out by the evidence and the respondent had ample opportunity of examining his witnesses. Therefore	 the conclusions of the punishing authority were not open tO be questioned before the High Court.