MANSOOR & ORS.

STATE OF MADHYA PRADESH

May 6, 1971

[I. D. DUA AND V. BHARGAVA, JJ.J

Code of Criminal Pracedure, 1898, s. 4(1) (t), 492, 411(3}-Presentatio11 of opp.al In High Court against acquittal of accused-Additional Govern ment Advocate when appointed Public Prosecutor can present appeal-

Such appeal is a 'case' in which the Public Prosecutor is entitled to act- Power of High Court in hearing appeal against acquittal-Principles.

731'

Constitution of India, Art. 136-Scope of arguments in appeal by c special leave.

The appellants were charged along with five others for the offences of murder and attempt to murder. Five accused persons were acquitted by the trial court. Four of the appellants were convicted by the trial court, the conviction being upheld by the High Court. The fifth appellant was acquitted by the trial court but convicted by .the High Court m an appeal D. by the State. In appeal by special leave it was contended before this Court; (i) that the conviction of the appellants coulli not be sustained on the evidence ; (ii) that the High Court in reversing the judgment of acquittal by the trial court against one of the appellants had not followed the prin ciples laid down by this Court ; and (iii) that the Additional Government Advocate was not authorised to present the a\'P°"l against acquittal in the High Court because such appeal was not a 'case.

HELD: {!) Under Art. 136 of the Constitution this Court does not norm8.Uy re-appraise the evidence for considering. the credibility of the witnesses. Unless the trial is -vitiated by some illegality Qr irregularity of procedures or their is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage of justice, this Court does not as a rule proceed to eyaluate the evidence

for coming to its own independent conclusion.

No such infirmity had F been made out by the appellants' counsel in the present case. [736 Fl

(ii) The appellants' . counsel was also unable to show that the High Court in reversing the judgment of the trial court against one of the appellants had failed to observe !he principles laid down by this Court.

[737 HJ

Sanwat Singh & Ors. v. State of Ra; asthan, [1961] 3 S.C.R. 120, Keshav Ganga Ram Navaga & Anr. v. State of Maharashtra, Cr. A. No. 100/68 dt 3-2-1971, Sheo Swarup v. King Emperor, (1934) L.R. 61 I.A. 398 and

Laxman Kalu v. State of Maharashtra, A.I.R. 1968 S.C. 1390, referred fo.

(iii) The Additional Government Advocate who presented the appeal against acquittal in the High Court was notified as Public Prosecutor for

th• High Court in respect of cases arising in the State of Madhya Pradesh.

The case re~tilll in the acquittal of the accused persons would clearly

~· a cue lf!Stnl in the State and within the contemplation of the notifica lien.

Read1n1 s. 4(f)(t) Cr. P.C. which defines 'public prosecutor' toaother

. D

SUPREMB COtlRT REPORTS

[1971] SUPP. 9.1:.1..

with s. 492 Cr. P. C. under which the State Government is empowered to appoint Public Prosecutors, the Additional Government Advocate when appointed as a Public Prosecutor for tho High Court in respect of caseo arising in tho State of Madhya Pradesh must be held to be a Public Prosecutor lawfully empowered to present appeals in High Court against orders of acquittal. [740 C] •

Bhimappa Basappa Bhu Sannayar v. Laxman Shivrayappa Samagoud" & Ors. A.I.R. 1970 S.C. 1153 and Bhagwan Das v. The King, Al.R. 1949 P.C 263, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 30 and 31 of 1967.

Appeals by special leave from the judgment and order dated April 21, 1966 of the Madhya Pradesh High Court, Indore Bench in Criminal Appeals Nos. 248 and 313 of 1965.

Nur-ud-din Ahmed, C.L. Sareen, 1. C. Talwar and R. L.

Kohli for the appellants (in Cr. A. No. 30 of 1967).

I. N. Shroff, for the appellant (in Cr. A. No. 31 of 1967).

Nurud-din Ahmed, C. L. Sareen, S. K. Mehta and K. L .

Mehta, for respondents Nos. 1 to 4 and 9 (in Cr. A. No. 31 of 1967).

The Judgment of the Court was delivered by

Dua, J.-These are two appeals by special leave. In one appeal, Mansoor, Rashid, Ishaq, Yunus and Mehmood sf o Bhondekhan are the appellants and in the other the State has appealed. against the acquittal of Ajimkhan, Hakimkhan, Mahmood.khan sf o Dilawarkhan, Gabbu and. Mehmood s/ o Bhondekhan.

All the ten accused, namely, Mansoor sf o Bhondekhan, Rashid sfo Allabeli, Ishaq sfo .Wali Mohammad, Yunus sfo Mohammed Hussain, Ajimkhan s/o Wariskhan, Hakimkhan s/o Anaskhan, Mahmood.khan s Io Dilawarkhan, Gab bu s Io Mohammad Sharif, Mahmood s/o Bhondekhan and Makku s/o Bhondekhan, were charged and tried by Additional Sessions Judge, Indore, for offences under ss. 302134, 3021149, 307134 and 307 /149 I.P.C. Out of them 8 accused persons, namely Mansoor, Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan, Mahmood.khan s Io Dilawarkhan and Mehmood s Io Bhondekhan, were in addition charged under ss. 302, 307 and 148 I.P.C.

All these charges relate to the murder of one Karamat Beg Pahalwan s/o Mirza Karim Beg at Bombay Bazar Choraha on January 19, 1965, at about 12·30 P.M. and to an attempt on the life of Ikbal Beg s/o the deceased Karamat Beg Pahalwan at the same time and place.

The Trial Court convicted Mansoor,. Rashid, Ishaq and Yunus and acquitted the rest giving them benefit of doubt ni regard to Gabbu it was observed that he had not been shoo

llANSOOll. p, MADHYA Pll.ADISH (Dua,/.)

73:J

to be in possession of any weapon of offence and that it could not be said that he had any knowledge of the object of the members of the party led by Mansoor. m, was, therefore, held not to be member of this assembly. No other case was sought to be made out against him.

Each of the three itijuries (Nos. 2, 3 & 9) inflicted on the deceased Karamat Beg were held by the Trial Court to be indivftlually sufficient in the ordinary course of nature to cause Karamat's death.

But as none of the accused persons were proved beyond doubt to have inflicted any particular fatal injury to the deceased, they , were all convicted under s. 302 read with s. 34 I.P.C.

For coliiing to the finding of common intention, reliance was placed on Mathurala Adi Reddy v. The State of Hyderabad. (') The injury. inllicted on Ikbal Beg was imputed to Mansoor, but this injury was held to constitute an offence only under s. 324 I.P.C. As all the four accused had joined in this assault with common intention they were all convicted under s. 324 read with s. 34 I.P.C. Under s. 302/34 I.P.C. all the four accused were sentenced to imprisonment for life and under s. 324/34 I.P.C. they were sentenced to 6 months rigorous im prisonment.

The convicted persons appealed to the High Court against their conviction, and the State appealed against acquittal of the others. The State also presented a revision petition for enhancoment of the sentences imposed on those convicted.

The High Court upheld the conviction of Mansoor, Rashid, Ishaq and Yunus and dismissed their appeal.

It allowed the State appeal only against the acquittal of Mehmood sf o Bhondekhan and convicted him along with four persons convicted by 'the Trial Court. The result was that the charges under s. 148

f:P.C. and s. 302/149 I.P.C. were also held proved against all the five convicted accused persons. This charge was held established in addition to the charge under s. 302/34 I.P.C. Similarly with respect to the injury inflicted on Ikbal Beg, the charge under s. 324/ 149 I.P.C. was held proved. In the final result, Mehmood s/o Bhondekhan along with the four accused persons convicted by the Trial Court were all held guilty of offences under s. 302 / 34 I.P.C., s. 302/149 I.P.C. and s. 148 I.P.C. With respect to tho injuries inflicted on Ikbal Beg also all these five persons were held guilty of offences under s. 324 read with ss. 34 and 149

I.P.C.

The sentence for this offence was maintained, but they were in llddition sentenced under s. 148 I.P.C. to one year's rigorous imprisonment The High Court did not find any cogent ground for enhilncing tho sentence of life imprisonment to that

(I) A.t.R.. 1956 S.C. 177.

SUPRRMB COURT REPORTS [1971] SUPP. s.c.a.

of death for the offence under S. 302 read with Ss. 34 and 149 I.P.C. The revision was accordingly dismissed.

In this Court. again there are two appeals-one by the five accused convicted by the High Court, and the other by the State against the acquittal of the remaining five accused persons.

In the !\ppeal by the State the sentence for life imprisonment has been stated to be inadequate for the gruesome murder in broaq day-light. Both these appeals have been presented in this Court by special leave under Art. 136 of the Constitution. They were first heard by us on August 27 & 28 and September 22, 1970.

It appears from the record that the accused persons had not filed any list of defence witnesses in the Court of Committing Magistrate.

A list of 13 witnesses was, however, filed in the Court of the Additional Sessions Judge and summons were issued with res pect to those witnesses. On the day when the defence witnesses were to be examined they were not present with the result that the Trial Court declined further adjournment for their production.

At the time of arguments in the Trial Court the question ot prejudice to the accused persons because of the refusal to grant adjournment for the production of the defence witnesses was raised, but the Court did not consider that any prejudice had resulted to the accused persons who wanted to examine them.

From the record we findthat only Mansoor.

Mebmood s/o Bhondekhan, Mahmoodkhan s Io Dilawarkhan, Hakimkhan and Ajimkhan desired to examine defence witnesses. The other accused persons had declined to examine any witness in defence. . Out of the list of 13 witnesses Shri Bonge the hand-writing expert was given up. The circumstances in which the defence witnesses were disallowed by the Trial Court are that on June 10, 1965, the accused persons were called upon to enter upon their defence.

It was found that none of the defence witnesses were present in the Court on that day. It also appears that the plea in support of which the witnesses, except witnesses Nos. 9 & 13, were sought to be examined was one of alibi. The Trial Court granted an adjournment only for one day to enable the accused persons to secure the attendance of the witnesses on June 11, 1965.

On that day, two witnesses were reported to be out of station and with respect to one witness it was reported that there was no person of that name at the alidress which had been taken from the list of defence witnesses furnished by the accused.

The summons to Munshi had not been received baek. The defence was, in the circumstances, closed.

After Shrl Nuruddin bad addtessed us on thls grievance, Wll asked hjm if he at this stage considered 'it necessary to examine. the witrtesses in defence.

The learned counsel, after consulting his clients and considering the matter, stated in the Court that

MANSOOR v. MADHYA PRADe$H (Dua, J.)

lie was not interested in producing any defence evidence at this late stage. Arguments were then continued and practically at the close of the arguments Shri Nuruddin on reconsideration of the matter expressed his desire to be permitted to produce defence evidence. We accordingly made an order on September 22, 1970 directing the Trial Court to permit the accused persons to examine IO witnesses. This request, though belated, was allowed in the interests of justice. In the Trial Court, however, only one witness Munshi Khan s Io Kasam was examined in defence.

According to this witness he had gone to the Trial Court on June 16, 1965 but was informed by some clerk or peon that the case had already been decided : thereupon he returned home. According to his evidence about S or 6 years ago during the days when the incident in question took place his mother was ill and had been admitted in the M.Y. Hospital. The incident in question had, according to him, taken place in Bombay Bazar llear Agra Hotel. The witness used to visit Mehrabkhan Patel who had a milk shop in Bombay Bazar and indeed he used to sleep at Mehrabkhan's place. At about 12 noon on the date of the incident the witness and Chhotekhan were talking to each other near Asra Hotel when they saw Karamat Pahalwan coming from Mochipura side uttering abuses to lshaq and Mansoor. Mansoor was also seen standing opposite Agra Hotel. Karamat Pahalwan saying that Mansoor's servants had started thinking too much of them selves because of incitement from their master rushed at Mansoor with a stick measuring 2 or 21 ft. in length and 1 or I! inches thick. Karamat gave a blow to Mansoor with the stick hitting him on the head. Mansoor started bleeding. Chhotekhan took Mansoor on his bi-cycle to the police station.

A big crowd. collected there but the witness went away. This i~ all that. this witness stated in his examination-in-chief. In cross-examination he said that he could not remember the date of the incident and also that he did not know whether Chhotekhan was alive or dead.

According to him none pf the accused present in the Court were present at the scene of the occurrence except Mansoor.

The witness remained in the M.Y. Hospital for about eight days in connection with his mother's treatment. He denied that Ikbal s/o Karamat had any stick in his hand or that he gave any blow to Mansoor. This evidence seems to us to be wholly on-impressive and does not call for any serious consideration or comment.

When these appeals came up for hearing before us with the remand report of the Trial Court and the record of the defence evidence, Shri C. L. Sareen the learned counsel appearing in support of the appeal by the convicted appellants again took us through the relevant record and addressed arguments challenging the. conviction of the appellants. After reading the testimony of

M; unshikhan he made a .faint attempt to persuade us to acrept

8llPREMll COURT REPORTS [1971] .stJPP. s.c.R.

his evidence, but realising the futility of this venture he soon gave up the attempt.

His main and principal contention, however, was that the witnesses whose evidence was not relied upon by the Trial Court with respect to the presence of the five accused persons, whose acquittal was upheld by the High Court, should. not have been believed for convicting the present appellants. In support of this contention be took us thtough the evidence of Iqbal Beg s/ o the deceased (P.W. 1) and submitted that be was an interested witness and his evidence was unbelievable because his iesdmony did not tally with the evidence of Narayansingh P.W. 25 who had prepared the site plan. The counsel also referred to certain portions of the statements of Ahmed Khan P.W. 2, Mohammad Shafi P.W. 3, Ismail P.W. 6, Dr. B. N.

Chatterjee, P.W. 10, Shitlaprasad P.W. 24 and. Abd11lkadar P.W.

29 for the purpose of persuading us to bold that their evidence is not worthy of credane. His attack was also di!'Prted to the First Information Report According to him the F .LR. lodged by Ikbal Beg was not in reality the first information in point of time, because the information with regard to this incident hacf already been made by Mansoor. We are wholly unable to agree with the counsel that the information lodged by lkbal Beg was not the F.I.R. and that Mansoor had made the reporl earlier.

The case diary of the police was also subjected to some criticism for the purpose of discrediting the investigation.

All these arguments which the learned counsel has taken pains to advance are misconceived in this Court for ihe simple reason that under Art. 136 of the Constitution this Court does not normally re-appraise the evidence for considering the cre0.ibility of the witnesses as if it is a court of first appeal. Unless the criminal trial is vitiated by some illegality or irregularty of procedure or there is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage of justice, this Court does not as a rule proceed to evaluate the evidence for coming to its own independent conclusion. No such infirmity has been made out by the appellants' learned counsel.

We may briefly state the broad essential features of the prosecution story as narrated by the eye witnesses and as accepted by the High Court. Mansoor has employed accused Isbaq. Yunus and Gabbu.

Rashid is a friend of Mansoor since childhood.

Accused Mahmoodkhan s/o Dilawarkhan, Ajimkhan and Hakimkhan are three Pathans who usually visited Mansoor's shop. They are stated to indulge together in the nefarious trade of smuggling opium.

Karamat Beg and his son Ikbal Beg are opposed to Mansoor's party.

Indeed there have been incessant quarrelll between the two factions. Mansoor' s servants often nsed to ac1

MANSOOR v. MADHYA PRADESH (Dua, J.)

in offensive and provocative manner tow; irds Karamat and his son.

As a result of fresh trouble about a couple of months prior to the present occurrence, proceedings under s. 107 Cr.

P.C. were also initiated between the parties.

On January 19, 1965, Karamat started from Taj Laundry at about noon time for going to his house with 'some guava fruit and a bottle. Those were Rwnzan days. He was proceeding along Jawahar Marg and as he turned towards Bombay Bazar he met Ishaq and Yunus Ishaq spot at Karamat which infuriated him.

In his younger days Karamat used to be known as a renowned wrestler. Ishaq ran away followect by Kramat who was shouting at Ishaq. When they reached near the Grand National Bakery they saw Mansoor there. On Karamat's complaint about misbehaviour of Mansoor's servants, Mansoor retorted that the matter should be settled once for all right then. Ikbal hearing his father's shouts also followed him.

In response to Karamat's enquiry as to what was to be settled, Mansoor directed his servants to start the job.

Rashid than assaulted Karamat with a knife.

Mansoor also suggested that Karamat's veins should be cut off.

Ikbal who had also reached there snatched a stick from a faqir who happened to be closeby and tried to save his father. But before he could intervene Mansoor had given one knife blow to Karamat on his neck and another on his chest.

Yunus and Ishaq also started grappling with Karamat. Ikbal gave stick blows to them. On this Mansoor

asked Rashid to cut off Ikbal's veins and he himself also aimed a knife blow at Ikbal but the blow missed the mark.

Ikbal in the meantime slipped away but not before Ishaq had caused him an injury on his left hand.

Mehmood also gave a blow on Ikbal's left arm. Karamat who was given further blows by the pacty of Mansoor became unconscious.

Ikbal straight went to the police station and lodged the report. These broad features of the prosecution version as given by the eye witnesses were accepted by the High Court and since it was a case of party factio!ls the evidance was sifted. by both the Courts to see that if there was some element of doubt with respect to any individual accus.ed person he should be given its benefit.

Mr. Sarin next submitted that the High Court had not followed the standard laid down by this Court for dealing with the appeals against acquittal and in support of this submission he relied on the decisions of this Court in Sanwat Singh & others

v. State of Rajasthan(') and on an unreported judgment of this Court in lfeshav Ganga Ram Navge & Anr v. State of Maha. rashtra('). In our opinion, this submission is wholly unfounded.

The High Court did not ignore the standard laid down by this

c1> [19611Js.c.R.120.

(2) Cr. A. No. 100 of 1968 decided on Febru, ry 3. 197!.

47-1 S.C. lndia/71

SUPREME COURT REPORTS [1971) SUPP. s.c.R.

Court in Sanwat Singh's case('). According to that decision the words "substantial and compelling reasons" for setting aside an order of acquittal used in this Court's earlier decisions are intend ed to convey the idea that an appellate court shall not only bear in mind the principles laid down by the Privy Council in Sheo Swarup v. King Emperor,(') but must also give its clear reasons for coming to the conclusion that the order of acquittal was wrong. In the case before us the High Court has kept these observations in view when dealing with the acquittal appeal.

In Keshav Ganga Ram Navge's case(') the Additional Se.sions Judge had disbelieved the evidence of the eye witnesses, who according to him, had spoken about the incident in a parrot-like manner. The three dying declarations were also rejected by the Trial Court and the other evidence was also held untrust worthy. The High Court on appeal against the acquittal relied on two out of the three dying declarations and while dealing with the evidence of the eye witnesses did not consider the discrepancies and improbabilities of the version given by those witnesses as pointed out by the Trial Court. The Court quoted with approval some observations made in Laxman Kalu v. State of Maharashtra(') in which it was said that the powers of the High Court in an appeal against acquittal are not different from the powers of the same Court in hearing an appeal against conviction, but the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. The High Court in the case before us, in our opinion did not go against these observations.

Indeed the appellants' learned counsel was unable to show how the High Court had ignored the principles laid down by this.

Court in the decisions cited while dealing with appeals against acquittal. In Sanwat Singh's case('), it is worth-noting, this Court had dismissed the appeal and had made the following observations with regard to the exercise of power of this Court under Art. 136 of the Constitution. It was said there :

"Article 136 of the Constitution confers a wide discretionary power on this Court to entertain appeals in suitable cases not othenvise provided for by the Constitution. It is implicit in the reserve power that it cannot be exhaustively defined, but decided cases do not permit interference unless "by disregard to the forms of legal process or some violation of the principles of natural

(0 [1961] 3 S. C.R. 120.

(2) (1934) L.R. 61 I.A. 398.

(3) Cr. A. No. 130of1968 decided on Feb. 3, 1961.

(4) A.I.R. 1968 S.C. 1390.

MAN'SOOR v. MADHYA PRADESH (Dua, J.)

justice or otherwise, substantial and grave injustice has been done".

Though Art. 136 is couched in widest terms, the practice of this Court is not to interfere on questions of fact except in exceptional cases when the finding is such that it shocks the conscience of the court.

In the present case, the High Court has not contravened any of the principles laid down in Sheo Swarup's case (') and bas also given reasons which led it to hold that the acquittal was not justified. In the circumstances, no case has been made out for our not accepting the said findings."

In the present case we further find that Mahmood. who was convicted on appeal against acquittal has since served out his sentence and is no longer in jail. The counsel contended that if Mahmood's conviction were to be set aside then there would be no justification for applying ss. 148 and 149 l.P.C. We are not persuaded to hold that the judgment of the High Court suffers from any such grave or serious error as would justify our interference with the order conviCting Mahmood.

The High Court considered the evidence and came to its own conclusion.

No legal error suggesting miscarriage of justice has been pointed out by the learned counsel.

The conviction of the present appellants, it may be pointed out, is also under s. 302 read with s. 34 I.P.C. and this conviction would, iu any event, be un assailable even though s. 148 I.P.C. is not attracted. We, however, do not accept the contention that Mahmood was wrongly convicted and s. 148 I.P.C. is not attracted.

Finally the counsel laid stress on the submission that the appeal in the High Court was incompetent because the Additional Government Advocate who had presented the appeal was not the Public Prosecutor. The Gazette Notification to which our attention has been drawn shows. that Mr. Dubey, the Additional Government Advocate, was notified as Public Prosecutor for the High Court in respect of the cases arising in the State of Madhya Pradesh.

The counsel raised an ingenious argument, namely, that Mr. Dubey could not be considered to be a Public Prosecutor for presenting appeals in the High Court against orders of acquittal, because the appeal could not be described as a case, which arose in the High Court in which eventuality alone, he would act as a Public Prosecutor. The argument has merely to be stated to be rejected. The counsel tried to seek support from a decision of this Court reported as Bhimappa Bassappa Bhu Sannavat v. Laxman Shivrayappa Samagouda and others.(') In this decision it was said that the word "case" which is not

(I) (1934) L. R. 61I.A.398.

(2) A.l.R. 1970 S.C. 1153.

SUPREME COURT REPORTS

(1971) SUPP. S.C.R.

defined. by the Code of Criminal Procedure is well understood in legal circles and it ordinarily means a proceeding for the prosecution of a person alleged to have committed an offence.

It was added that in other contexts this word may represent other kinds of proceedings. But in the context of s. 417(3) the Court said it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person.

If ianything, this decision goes against the appellants' contention.

The case resulting in the acquittal of the accused persons would deary be a case arising in the State and within the contemplation of the notification, and the Additional Government Advocate who is the Public Prosecutor for the High Court would be entitled' to present the appeal in such a case. Reading s. 4(l)(i) Cr. P.C., which defines "Public Prosecutor" together with s. 492 Cr. P.C. under which the State Government is empowered to appoint Public Prosecutors. the Additional Government Advocate when appointed as a Public Prosecutor for the High Court in respect of the cases arising in the State of Madhya Pradesh must, in our opinion, be held to be a Public Prosecutor lawfully empowered to present the appeals in the High Court against orders of acquittal. The Privy Council decision reported as BhagwanDas

v. The King(') cited by Shri Sarin also goes against his contention. rt is further note-worthy that this objection was not raised in the High Court. We are, therefore, unable to sustain the submission that the appeal against the order of acquittal wa~ filed in the High Court by an unauthorised person.

The appeal on behalf of the accused persons mnst, therefore. fail.

Mr. Shroff rightly did not press the appeal against acquittal of the five accused persons, which was based on the concurrent order by both the courts below. In regard to Mahmood also, who having served ont his sentence hs already been released, be did not seriously press his appeal fof enhancement of sentences.

Otherwise too, in regard to the prayer for enhancement of the sentences, we do not find any cogent grounds for differing with the order of the High Court.

In the final result, both the appeals fail and are dismissed.

G. C.

Appeals dismissed.

(I) A.I.R. 1949 P.C. 263.

MANSOOR & ORS

STATE OF MADHYA PRADESH

I. D. DUA

V. BHARGAVA, JJ

Code of Criminal Pracedure, 1898

s. 4(1)

Constitution of India

Art. 136

Art. 136

[1961] 3 S.C.R. 120

(1934) L.R. 61 I.A. 398

s. 4(f)(t)

s. 492

ss. 302134, 3021149, 307134 and 307

I.P.C

ss. 302, 307 and 148

I.P.C

s. 302

s. 34

I.P.C

s. 324

I.P.C

s. 324

s. 34

I.P.C

s. 302

I.P.C

s. 324

I.P.C

s. 148

s. 302

I.P.C

s. 302

I.P.C

s. 324

I.P.C

s. 302

I.P.C

s. 302

I.P.C

s. 148

I.P.C

s. 324

ss. 34 and 149

I.P.C

s. 148

I.P.C

S. 302

Ss. 34 and 149

I.P.C

Art. 136

Art. 136

s. 107

Art. 136

Article 136

[1961] 3 S. C.R. 120

(1934) L.R. 61 I.A. 398

Art. 136

ss. 148 and 149

s. 302

s. 34

I.P.C

s. 148

I.P.C

s. 148

I.P.C

Code of Criminal Procedure

s. 417(3)

s. 4(l)(i)

s. 492


B. NARAYANA MURTHY & ORS. ETC.

STATE OF ANDHRA PRADESH ETC.

May 6, 1971 IS. M. SnCRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM, B

I. D. DUA AND V. BHARGAVA, JJ.J

J'., d11cr1tio11af /11.rtir11rions-Raili11g agr of retire111enf of tcachers-Refixing ; t at lower age-Validity-Whether violative of Ans. 14 and 16 of Const; tf(fion.

The retirement age of teachers in the service of the Andhra Pradesh

overnmcnt. Zilla Parishads. Panchavat Samitis and Municipalities was fix- ed at 55 years till 1964 when Govern.meal raised the age o.f superannuation to 58 years.

In 196(1 the age was raised to 60 years, but, on Nove1nbi.:r 3,

1967. Governn1ent issued a G.0. cancelling with etfecl fro111 November 30, 1967, the' two earlier G.Os. extending the age of retirement; 1nd corresponding changes were made in the rules relating to teachers in the service of Zilla Parishads, Panchayat San1itis and !vlunicipalities.

Some teachers challenged the G.0. dated November 3, 1967 and the High Court, holding that the teachers whose term had already been extended had a vested right to continue, directed the State Government not to give effect to the G. 0. and the consequential rules as against such teachers.

In pursuance of 'the judgment of the High Court Govrnrnent issued a memorandum dated November 8, 1968, giving effect to the directions of the High Court and also providing that teachers who had attained the age

of 55 years after November 30, 1967, should be dealt with under the G.0. dated 3rd November, 1967, and should be retired on attaining the age of 55 years.

The petitioners challenged the memorandum on the ground !hat by not extending the benefit of the judgn1ent of the High Court to them, and by fixing November 30, 1967, as the date for determining who should retire, Government acted arbitrarily and violated the equality rule en1bo- died in Arts. 14 and 16 of the Constitution.

HELD: (l) It was open to the Government to reduce the age of retire~ ment without exposing such reduction to any constitutional infirmity, Fixing November 30, 1967, as the date for the classification of teachers who should retire at the age of 55 years could not be considered irrational or unreasonable. The object of raising the retirement age was to solve the problem of the dearth of qualified teachers because of the opening of new -schools and the need for maximum utilisation of trained intelligensia. As soon as the dearth of qualified teachers disappeared Government restored the retiring age to 55 years.

[748F, 750C]

(2) If the Government order dated November 3, 1967, was valid then the petitioners had to retire at the age of 55 years notwithstanding the fact that after their initial employment the retirement age was raised first to 58 years and then to 60 years, because, those intermediary orders had been cancelled by the G.O. dated November 3, 1967, before the earlier >Government orders became operative by actually retaining in service the

present petitioners after their superannuation under the earlier rule. The

]!'

other employees were given benefit pursuant to the order of th~ High.

Court which had since become final.

Merely because by some subsequent_ orders the extended date of retirement was accepted in respect of thoseemployees it would not entitle, by itself, the present petitioner.;; to claim similar extension of age of retirement. The directions given by the High Court provide a valid differentia and the ,, etitioners could not claim to be equated with those employees who had been given such benefit. [748G-

749C]

(3) It could not be said that the Government having accepted the judg. n1ent of the High Court, the earlier orders increasing the age of com-· pulsory retirement must automatically be held to be revived. The Government only gave the benefit of the decision of the High Court to those em ployees whose cases were covered by the principle laid down by the High <; ourt.

[749H ; 750B]

(4) Fundamental rule 56(a) does not govern the teachers employed by the Municipalities, Zilla Parishads and Panchayat Samitis.

[751AJ

(5) The submission that the rules applicable to the teachers employed by such bodies were intended to be in conformity with the fundamental rule is of no avail to the petitioners because those rule& could not be con• sidered to have been automatically modified as a result of any amendment in the fundamental rule 56(a}, when there is no consequent modification of the rules governing teachers employed in such bodies. [75lB]

ORIGINAL JURISDICTION: Writ Petitions Nos. 144, 216, 217,. 221, 223, 242, 247 to 249, 308 and 324 of 1970.

Petition under Article 32 of the Constiution of India for the- E enforcement of fundamental rights.

L. M. Singhvi, Kanta Rao and K. Rajendra Chaudhuri, for the petitioners (in W. P. No. 144/1970.).

B. Kanta Rao and K. Rajendra Chaudhuri, for the petitioners (in W. P. No. 21 of 1970).

F M. C. Chag/a, S. S. Shukla and B. Kanta Rao; for the petitioners (in W. P. No. 249 of 1970). ·

S. S. Shukla and B. Kanta Rao, for the petitioners (in W. P.

Nos. 216, 248 and 324 of 1970).

Sarjoo Prasad and A. Subba Rao. for the petitioners (in W. p, G No. 217 of 1970).

A. Subbh Rao, for the petitioners (in W. P. No. 247 /1970}

K. Jayaram, for the p@titioners (in W. P. Nos. 223 and 242' of 1970).

B. Kanta Rao and G. Narasimhulu, for the petitioner (iIL H W. P. No. 308 of 1970).

P. Ram Reddy and A. V. V. Nair, for respondents No. t W. P. Nos. 144, 216, 217, 221, 223, 242, 247, 248 and 249 of 1970.

B. N. MURTHY v. A. P. STATE (Dua, J.)

P. Ram Reddy and P. Parameswara Rao, for respondent Nos. 6 and 28 (in W. P. No. 217 vf 1970), respondents Nos. 4 and 10 (in W. P. No. 223 /70), respondents Nos. 84, 38, 52, 83 ".nd 120

(in W. P. No. 247/1970), respondent No. 2 (in W. P. \lo. 248).

The Judgment of the Court was delivered by

Dua, J.-This batch of writ petitions raise common questi<; ms of fact and law and have, there.fore, been heard together ood are being disposed of by a common judgment. As the salient features of all the writ petitions are similar in essential particulMS, we may, for understanding the nature of the controversy, only refer to the facts of writ Petition No. 217 of 1970 (B. V. Subhaiah & Ors v. State of Andhra Pradesh & Ors.), because Shri Sarjoo Prasad who led the arguments on behalf of the petitioners addressed us by reference to this writ petition as illustrative of the common controversy.

Writ Petition No. 217 of 1970 has been presented in this Court by 387 teachers under Art. 32 of the Constitution praying for a writ in the nature of mandamus or order or direction restraining the respondents from giving effect to, (i) the orders, G. 0. Ms. No. 2219 dated November 3, 1967, read with Government of Andhra Pradesh Memo No. 6573 dated Noveinber 8, 1968 and G. 0. Ms. No. 1321 dated June 17, 1969, (ii) the substituted r. 14 of the Rules made under the Andhra Pradesh Muni- CiP, alities Act, and (iii) the substituted r. 16 of the Rules made under the Panchayat Samitis and Zilla Parishads Act. A declaration is also claimed to the effect that order No. G. 0. Ms. No. 2219 dated November 3, 1967 read with Government Memo No. 6573 dated November 8, 1968 and G. 0. Ms. No. 1321 dated June 17, 1969, Note 2 of the FundamentaL Rule 56(a) and the Rules made under the Andhra Municipalities Act and Andhra Pradesh Panchayat Samitis Zilla Parishads Act are illegal and unconstitutional and for a further declaration that the rules laid down in G. 0. Ms. No. 3099 dated November 30,. 1964 and No. 1596 dated June 26, 1966 are applicable to the petitioners subject to the conditions stipulated in those orders.

These petitioners claim/to be working as permanent teachers in. the service of Zilla Parishads, Panchayat Samitis and Municipalities for the last 25 or .30 years. According to their a.verments, the retirement age for the teachers in the service of the Andhra Pradesh Government, Zilla Parishads, Panchayat Samitis ood the . Municipalities is fixed at 55 years. Under F. R. 56(a) and the Subsidiary Rules of. the Andhra. Pradesh Government 1962, a government servant may however be retained in service after completing 55 years with the sanction of the Government and in

SUPREME COURT REPORTS [1971) Sl:PP. S.C.R.

A special circumstances he may even be retained in service after 60 years.

Rule 14 of the Establishment Rules made under the Andhra Pradesh Municipalities Act, 1959, and r. 16 of the Rules made under the Andhra Pradesh Zilla Parishads and Panchaya.t Samitis Act, 1959. also fix the age of retirement at 55 years for the employees of these bodies.

The Fundamental Rule provi- B ding for extension of the age of retirement with the sanction of the Government on public ground was also claimed in the petition to be applicable to the employees under the Municipalities, Zilla Parishads and Panchaya, t Samitis, though at the hearing no serious attempt was made to substantiate this avcrm.ent, or to 'how it advances their cae. c

On November 20, 1964, the Government of Andhra Pradesh issued G. 0. Ms. No. 3099 raising the age of superannuation to 58 years subject to medical fitness and satisfactory work a, nd conduct in respect of the Head-Masters and teaching staff in Government service and also in the institutions under the Zilla Parishads and Panchayat Samitis and Municipalities.

On June 28, 1966. the Education Department of Andhra Pradesh issued G. 0. Ms: No. 1596 raising the age of retirement to 60 years subject to certain conditions. On August 26, 1966, a clarification was issued whereby extension of service upto 60 years was sta.ted to be subject to only two conditions, r:amely, medical fitness and satisfactory work and conduct. On November 3, 1967 the Government of Andhra Pradesh issued G. 0. Ms. No. 2219 cancelling with effect from November 30, 1967, the earlier Government orders extending the age of retirement of teachers, first from 55 .lo 58 and then from 58 to 60 years. This order also contained a direction for making suitable rules under the Panchayat Samitis and Municipalities Act sepa.rately. by the Panchayat Raj and

Health, Housing and Municipal Administration Departments so . as to give effect to the Government's decision. It was howeve.r provided in this order that the teachers affected thereby would be continued in service till the end of the academic year 1967-68 in order to ensure continuity in the academic teaching.

On November 16, 1967, new r. 16 was substituted for old r. 16 by means of which the age of superannuation of officers and svants of Panchayat Samits and Zilla Parishads was reduced to 55 years. ·

On November 20, 1967, new r. 14 was substituted for the old r. 14, similarly reducing the retirement age to 55 years, in respect of the employees of the establishments under the Municipalities.

On March 14, 1968, Funda-mental Rules 56(a) was amended by the Governor under Art. 309 of the Constitution by adding to it Note 2, according to which a government servant retained in service after the date of compulsory retirement could be retired at any time without notice and without assigning any reason.

It appears that some teachers, other than the present petitioners, feeling aggrieved by these orders approached the Andhra Pradesh High Court for relief under Art. 226 of the Constitution.

On April 16, 1968, Chinnappa Reddy, J., allowed those writ petitions and directed the Andhra Pradesh Government not to give effect to G. 0. Ms. No. 2219 dated November 3, 1967, and the 31mendment to the Fundamental Rule and the Rules under the Municipalities Act, Panchayat Samitis and Zilla Parishads Act, insofar as they affected the rights of the petitioners in those petitions.

Another batch of teachers employed by the Zilla Parishads, Panchayat Samitis and the Municipalities, other than the present petitioners, along with a few teachers employed by private esta-blishments also applied to that High Court under Art. 226 of the Constitution with similar grievance.

Those writ petitions were disposed of by the same learned Judge on August 7, 1968.

The State in those cases tried, without success, to get over the earlier judgment in the case of the teachers by relying on the 1lecision of the Supreme Court in B. S. Vadera v. Union of India & Ors.(') which upheld the validity of retrospective operation of Rules made under Art. 309 of the Constitution.

On appeal from the earlier judgment of the learned Single Judge, a Division Bench of the Andhra Pradesh High Court on April 14, 1969, agreed with the single bench in holding that the cancellation of the extension of the service of the writ petitioners

by the impugned orders was inoperative. In the meantime, in pursu- E ance of the judgment of the learned Single Judge the Government had on November 8, 1968, issued a Government Memo providing as under :

"I. Teachers employed by Municipalities, Zilla Parishad and Panchayat Samithis.

la) Teachers whose services have been extended up to the age of 60 years by specific individual orders should be retained in service until they atta-in that age.

(b) Teachers who attained the age of 55 years before 30-11-1967 and in whose favour there are specific individual orders extending their services up to 58 years 'Should be retained in service until they attain the age of 58 years and therea.fter their cases for further extension up to the age of 60 years should be considered by the competent authorities in accordance with the G. 0. Ms.

3099 Edn. dated 20-11-1964 and G. 0. Ms. No. 1596 Edn. dated 28-6-1966.

(l) W.P.No. 96of1967 de<ided on March 27, 1968, since reported as

[t96SJ 3 s.c.R. 575.

(c) The cases of teachers who attained the age of 55 yea; rs before 30-11-1967 but in whose favour there are . no specific individual orders of extension of service should be considered by the competent authorities in accordance with G. 0. Ms. No. 3099 Edn. dated 20-11-64 and G. 0. Ms. No. 1596 Edn. dated 28-6-1966.

(d) Teachers who attained the age of 55 years after 30-11-1967 should be dealt with under G. 0. Ms. No.

2219. Education dt. 3-11-1967 &nd they should be retired on attaining the age of 55 years. Any such person continued in service after attaining 55 years as a result of the High Court's stay orders should be consider.ed as on extension and their extension terminated immedi&tely."

On March 17, 1969, the Government issued a Memorandum (No. 5929 /HI/ 68) directing all the Block Development Officers.

Secretaries of Zilla Parishads and Secretaries of Municipal Coun cils not to oust the teachers who had &ttained 55 years of ag'e before November 30, 1967, merely because there were no exten-. sion orders in their favour.

This Memorandum also desired that proposals for extension of service of teachers be promptly forwarded to the District Educational Officers concerned without delay.

On June 17, 1969, r. 16(2) of the Rules relating to the establishments under the Panchayat Samitis and Zilla Parishads was. amended so as to bring it in conformity with the decision arrived at pursuant to the judgment of the High Court.

Th~ petitioners before us are feeling aggrieved by cl. (d) of the Memorandum issued by the Government on November S, 1968, and it is this clause which is the main target of challenge on behalf of the petitioners. ' i Mr. Sarjoo Praad. who led the attack on behalf of the petitioners and addressed us in support of Writ Petition No. 217 of 1970 categorized his challenge under three heads :

(!) that the classification made by the Government order fixing November 30, 1967, as the da.te for deter mining as to who should retire at the age of 55 years and whose service should be extended is arbitrary and highly discriminatory;

(2) that the Government order dated November 3, 1967 can only affect persons joining service after that date and not those who were already in service because their service conditions could not be unilaterailly changed to their prejudice; and

(3) that Government is estopped to vary the date of retirement of the petitioners because they had on the faith of the modified conditions of their service arranged their affairs on the basis of their retirement at the age of 60 years. By way of illustration it was pointed that their contributions to the provident fund and their life insurance policies had been so planned as to suitably fit in with their retirement at the completion of 60 years.

We did not permit Mr. Sarjoo Prasad to raise points Nos.

(2) & (3) because they did not pertain to any fundamental right of the petitioners. In so far as point No. (1) is concerned the learned counsel concentraited on the contention that the classification based on November 30, 1967 as the dividing line for determining the age of retirement was arbitrary and highly discriminatory, and it denied to the petitioners on irrational grounds equal opportunity with those employed along with them.

The Government Order No. 2219 daited November 3. 1967, which cancelled the earlier orders extending the age of retirement reads as under :

"G. 0. Ms. No. 2219 Edn. Dated 3rd Nov., 1967.

Reading the following :-

1. G. 0. Ms. No. 3099 Education dated 22-11-1964

2. G. 0. Ms. No. 1596 Education dated 28-6-1966, and ·

3. Memo No. 8553-H. l /66-1-1 Education daited 26-8-1966

ORDER: The Government hereby direct that the orders contained in the Government Orders first and second read above, as subsequeRtly amended, extending the age of retirement of teachers from 55 to 58 and from 58 to 60 years be cancelled with effect from 30th November 1967.

Suitable rules under the Panchayat and Municipalities Act will be made. separately by the Panchayat Raj and Health, Housing and Municipal Administration Depart ments to give effect to the above decision.

(2) The teachers who are affected by the orders in para I above, will however be continued in service till the er.d of the academic year 1'907-68 in order to ensure continuity in the academic teaching." ·

On behq)f of the respondents justification for first increasing the a.ge of co)ipulsory retirement to 58 and then to 60 years and

:','

later restoring it to 55 years is stated in the counter-affidavit in the following words :

. the G. 0. did not contemplate any classification for it fixed a uniform date for retirement of teachers, who have completed 55 years but who got extension of the period of service, even before they a.ttained their 60th year. It is only in compliance with the order of the Hon'ble High Court of Andhra Pradesh dated 16-4-1968 in Writ Petitions Nos. 3105 of 1967, etc. holding that teachers whose term has already been extended up to their 60th year have got a vested right to continue till their 60th year that they were a.Uowed to continue. It is also significant that the Writ Appeal preferred by this respondent against the judgment was also dismissed.

The writ petitions filed by the teachers who did not complete their 55th year before the G. 0. reducing the age of retirement was pa.ssed were dismissed by the same High Court in Judgment dated 7-8-1968 in W. P. Nos. 1741 of 1968 etc. As such even if there are some anomalies in the working out of the G. 0. that will not be a ground for striking out the G. 0. as it treats alike all in the same c&tegory. x x x the object for raising the retirement age was to solve the problem of dearth of qualified teachers because of the opening of new schools and the need for the maximum utilisation of trained intelligensia."

It is further explained in the counter-affidavit that as soon as the dearth of qualified teachers disappeared, the retirement 1ge was a•gain restored to 55 years.

In this counter-affidavit it is also pointed out that "if the G. 0. is struck down, it will me1n extension of services of thousands of teachers, when there is rea!ly no need for them."

After a faint attempt to challenge the validity of the Government Order No. 2219 dated November 3, 1967, the learned counsel expressly confined his challenge only to the subsequent orders mooe by the Government. Now if G. 0. No. 2219 dated November 3, 1967 is valid, then obviously the petitioners have to retire at the age of 55 years notwithstanding the fact that after their initial employment their retirement age was raised by Government orders, first from 55 to 58 years and then to 60 years because those intermediary orders had been cancelled by G. 0. No. 2219 before they became operative by actually retaining in service the present petitioners after their superannuation under the earlier rules.

Merely because by some subsequent orders the extended

dae of retirement was accepted in respect of those employees

' ,, I

in whose favour either specific orders had been made extending A thdr age of retirement from 55 to 58 or to 6(1 years, or who had,

aft~' crossing the 55 years age limit, been actually retained in service pursuant to the modified directions, notwithstanding that those directions were Jailer canceUed, would not by itself entitle the present petitioners to claim similar extension in their age of refrement on the basis of the equality rule embodied in Arts.

B 14 & 16 of the Constitution.

The other employees were given bee efit of the directions pursuant to the orders of the High Court wi1ich have since become final.

This clearly provides a valid difierentia and the present petitioners cannot claim to be equaited with those employees who had been given such benefits.

The learned counsel contended that the case of the present petitioners is identical with that of the teachers who had applied to the Andhra Pradesh High Court and ha, d secured orders in the':" favour. The present petitioners, it was argued, having also acquired a vested right by virtue of the Government orders raising their retirement age to 60 years are entitled to claim from this Co.; ct similar orders as were made by the High Court in .favour of the petitioners in the two writ petitions.

We do not think there is any such fundamental right possessed by the present pet'tioners as would entitle them to claim similar relief from this Court in the present proceedings. The two categories of the tea ' chers employed by tile three local bodies are distinct and separate.

We are not concerned with the question whether tile High Court wa; right in grainting relief to the petitioners in the two earlier cases. though the respondent has in the counter-affidavit questioned the correctness of those orders.

They became final and are binding on the parties to those proceedings.

The present petitioners did not secure similar orders and now their retirement age having been restored to the original limit of 55 yearn the petitioners cannot claim the higher age limit. No doubt during a short period the increased age limit for retirement remained in force. But, as is rightly conceded by aU the counsel for the various petitioners, it is open to the Government in this case to reduce the age of retirement wiiliout exposing such reduction to any constitutional infirmity.

Jn this connection it may be pointed out that the Andhra Pradesh High Court also had by a subsequent order denied relief to some of the teachers similarly plaiced as tile present petitioners, holding their case to be distinguishable from ilia! of tile teachers who had successfully applied for relief in tile earlier two writ peti tions.

The submission, that when the Government itself accepted the judgment of the Andhra Pradesh High Court striking down the Government order reducing the retirement age to 55 years,

then the earlier order increasing the age of compulsory retirement must automatically be held to be revived, is unacceptable.

The Government, it is noteworthy, made the impugned orders after the decision of the Andhra Pradesh High Court with the object of giving the benefit of that decision to a.JI the employees whose cases were covered by the principal laid down by the High Court.

The case of the present petitioners is quite different and is not covered by the rule laid down by the High Court.

The impugned Government order fixing November 30, 1967, as the date for founding the classification of teachers who should retire at the n-ge of 55 years and those who should get the benefit of the interim orders e;<tending the age of retirement to 58 or 60 years cannot be considered to be either irrational, or unreasonable or having no nexus with the object to be achieved by reducing the age of retirement.

The problem of unemployment in our country is undoubtedly a complex problem and opinions ma-y differ how best to solve it.

But that would not raise any question of fundamenta! right with which alone we are concerned in the present proceedings. The position as stated in the counter-affidavit in the case before us, however, furnishes a complete answer to the petitioner's contention. The cJa.ssification made by the Government does not suffer from any infirmity as it is founded on rational nexus with the object to be achieved.

Shri Chagla appearing in support of Writ Petition No. 249 of 1970 also made aittempt to challenge the Government Order dated November 3, 1967. But nothing new was urged and the learned counsel had, with his usual candour, to concede that the Government could lawfully reduce the a•ge of retirement with out attracting constitutional infirmity.

Dr. Singhvi appearing in support of Writ Petition No. 144 of 1970 drew our attention to Fundamental Rule 56(a) as amended by the Andhra Pra<leh Government in 1965 and submitted that according to the amended sub-rule "the date of compulsory retirement of a Governmet servant, whether ministerial or nonrninisterial and in the last erade service is the date on which he attains to the a.ge of 55 years and 60 years respectively". According to the learned counsel the petitioners are non-'111inisterial government servants in the last grade service and are, therefore, er!itled to remain in service till they attain 60 years of age. This submission appears to us to be inconsistent with the petitioners' case as pleaded in the writ petitions. In the writ petitions it has been assumed that according to the F. R. 56(a) the teachers have ordinarily to retire at the age of 55 years. In any event, whether or not the amended F. R. 56(a) fixed the retirement age of nonministerial government servants at 60 years, and whether or not

the petitioners are covered by this rule, seems to be immaterial A because it has not been shown that the teachers employed by the Municipalities, Zilla Parishads and Panchayat Samitis are governed directly by this Fundamental Rule.

The submission that the rule applicable to the teachers employed by such bodies was intended to be in conformity with the Fundamental Rule is of little avail to the petitioners becimse those Rules could not be B considered to have been automatically modified as result of the amendment in F. R. 56(a) in 1965. It is not disputed that there is no such modification in the Rules which directly govern such teachers.

The argument ba6ed on the amended F. R. 56(a) is, therecore. of no assistance to the petitioners.

Dr. Singhvi's criticism that the position taken up in the coun-

C • !er-affidavit that the rule "last come, first go" applies to the petitioners is unfounded also cannot benefit the petitioners.

The petitioners have to retire at the age of 55 years because the benefit under the intermediary directions, whi2h have since been cancelled, cannot after cancellation be claimed by them under any provision of law. This conkntion is, therefore, also repelled. Dr. Singhvi D referred us to Bis!; un Narain Mishra v. State of Uttar Pradesh

and Othcrs(1\; State of Assam and others v. Premadhar Baruah and others('); and to an unreported decision of this Court in The State of U. P. and Anr. v. Kishan Chand Dlzaun0). These decisions do not advance the petitioners' case.

In Bishun Narain Mishra(') this Court observed:

"Now it cannot be urged that if Government decides to reta.in the services of some public servants after the age of retirement it must retain every public servant for the satne length of time.

The retention of public servants after the period of retirenent depends upon their efficiency and the exiencies cf public service, and in the present case the difference in the oerioJ of retention has arisen on accou1t of exigencies Of nublic service." - ·

In Premadhar !Jarua!z(') it was obsened b:· this Court :

"As 'we have already iwlkated rragr~"11 4 cf the memorandum flowed from F. R. 56(a).

The Government could retain a Government servant bevond the 3'.!e of superannuation. The Government has also the discretion to withdraw such retention in service because the retention does not confer any right on the Government servant."

(I) [1965]1 S.C. R. 693.

(2) A.LR. [1970] S.C. 1314.

(l) C.A. No. 1832of1968 decided on Dec. 12, 1968.

It is not understood how these decisions are helpful to the counsel. The unreported decision had to deal with a different problem and nothing said in that judgment has been shown to assist the petitioners before us.

In the other writ petitions the counsel merely adopted the arguments raised by Mr .. Sarjoo Prasad and Mr.· Chag!a, and therefore they do not call for any comment.

In the final result, all the writ petitions oce dismissed, but in the circumatances with no order as to costs.

V.P.S.

Petitions dismissed.

B. NARAYANA MURTHY & ORS. ETC

STATE OF ANDHRA PRADESH ETC

G. K. MITTER

I. D. DUA

V. BHARGAVA, JJ

Arts. 14 and 16

Article 32

Art. 32

Samitis Act, 1959

Art. 309

Art. 226

Art. 226

Art. 309


• '

UNION OF INDIA

RAM KISHAN May 7, 1971

[S. M. SIKRI, c. I., G. K. MITTER, c. A. VAIDIALINGAM, P. JAGAN-

MOHAN REDDY AND I. D DUA, JJ.]

Punjab Police Rules, r. 16 38-Dismissal of foot constable-Order of dismissal by Superintendent of Police (Traffic) compelent-Order illegal f, Jr non-compliance wit~ first Part of r. 16, 38.

The respondent, a foot constable. filed a Suit challenging his dismissal on the main grounds (i) the Superintendent of Police (Traffic) was not competent to pass the order of dismissal; and (ii) the order v1as illegal as the provisions of Punjab Police Rule 16.38 were not complied with. The Sub-Judge upheld the first ground and decreed the suit.

On the second ground it was held_ that the necessary permission for taking departmental action was obtained from the District Magistrate. On appeal the High Court, following its earlier decision held that the Superintendent of Polke

(Traffic) was not competent to dismiss the respondent. Dismissing the appeal to this Court,

HELD : (i) The first ground is concluded against the plaintiff (respondent) by a decision of this Court in Union of India v. Jagjit Singh.

[754H]

(ii) However the appeal must fail on the ground that the provisions of r. 16.38 were not comp'lied with in this case. No in1mediate information was given to the District Magistrate in respect of the complaint received against the plaintiff nor did the District Magistrate decide whethrr the investigation shall be conducted by a police officer, or made over to a selected magistrate having 1st.Class powers. No doubt the District Magistrate purported to give permission under sub-r. 2 of r. 16.38, but as the first part of the rule was not complied with at all the departmental inquiry is vitiated and the order of dismissal must be declared jlJegal.

[754H, 7560]

U11io11 of India v. Jagjit Singh, [1970] I S.C.R. 163, 168 and Delhi Administration v. Chanan Shah, [1969]· 3 S.C.R. 658, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 571 of 1967 .

I 53

Appeal by special leave from the judgment and decree dated October 12, 1966 of the Punjab High Court. Circuit Bench at G Delhi in Regular Second Appeal No. 28-D of 1966.

R. N. Sachthey, for the appellanl

N. D. Bali and D. D. Sharma, for the respondent.

The Judgment of the Court was delivered by Sikri, C. J.-The respondent Ram Kishan, hereinafter ri> H ferred to as the plaintiff, a Foot Constable, filed a suit in the Court

48-1 S.C. lndia/71

SUPREME COURT REPORTS

(1971] SUPP.S.C.R

of Sub-Judge I st Oass, Delhi, challenging his dismissal from service by an order da.ted 25th October, 1960. This order was passed by Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi.

It was alleged by the plaintiff that this order was bad and illegal on various grounds.

Two grounds , may be mentioned here : (!) ThBlt Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi was not a District Superintendent of Police; (2) That the mandatory provisions of Punjab Police Rule 16.38 had been violated inasmuch as no information was given to the District Magistrate as laid down in the Punjab Police Rule 16.38(1) and the District Magistrate never decided whether the preliminary investigation was to be conducted by the police or by a selected Magistrate !st Qass.

It was further alleged that even the provisions of sub-Rule

(2) of Rule 16.38 were not observed. The learned Sub-Judge decreed the suit and gave a• declaration that the dismissal of the plantiff was void. A decree for Rs. 1151/- was passed in favour of the Foot Constable.

Among other issues framed, the following issues may be noticed :

(!) Whether the Superintendent of Police (Traffic) was not competent to pass the impugned order as alleged?

(2) Whether the provisions of Rules 16.38 and 16.24 of the Punjab Police Rules were complied with by the defenda0nt ? If not, to what effect ?

The learned Sub-Judge held and decided issue No. 1 against the Government and held the order of dismissal to be vitiated.

Regarding issue No. 2, however, he held that there was a complete compliance of Rule 16.24. He further held that even as regards Rule 16.38, the necessary permission of the District Magistrate, Delhi for taking the departmental action aga-inst the plaintiff was obtained from the District Magistrate vide Ex. P.9A.

The Government filed an appeal and the Additional Dist- Jict Judge dismissed the a.ppeal.

The Government then filed an appeal before the High Court.

Mehar Singh., J. following an earlier decision('\ "f the Division Bench of that Court dated March 4, 1964 held that Mr. M. K. • Saxena, Superintendent of Police (Traffic), Delhi, was not competent to dismiss the plaintiff.

The learned Judge did not give leave to file Letters Patent Appeal and the Government having obtained Special Leave, the appeal is now before us.

The first issue is now concluded against the plaintiff by a , decision of this Court in the case Union of India v. lagjit Singh ('). However, the appeal must fail on the ground that the

(!) Union ofln1ia v. RMI Kilhan-Rogu'ar Second Appeal No. 258-D of 1962.

(2) [1970] l S.C.R. 163, 168.

U'l!ON v. RAM KISHAN (Sikri, C.J.)

provisions of Rule 16.38 were not complied with in this case.

In a similar case Delhi Admn. v. Chanan Shah (') this Court observed :

"It is not necessary to decide in this case whether the provisions of Rule 16.38 of the Punjab Police Rules are maindatory or directory. Even assuming that the rule is directory we find that there has been no substantial compliance with its provisions. The complaint fell within rule 16.38, and it was for the District Magistrate to decide who should investigate the case. No investigation of any kind was made under his directions.

Without obtaining his directions, the Superintendent of Police held an inquiry and passed an order of censure.

The order was set aside by the Deputy Inspector-General.

Thereafter by D. 0. letter No. 2165-C. the Superintendent of Police, asked for the sanction of the District Magistraite to proceed departmentally. Even at this stage, the District Magistrate was not informed that the Superintendent of Police held an inquiry and passed an order of censure and that his order was set aside by the Deputy Inspector-General. The inquiry held by the Superintendent of Police wa"' not authorised by the District Magistrate nor did it receive his approval.

The District Magistrate gave his sanction without recording any reasons and without applying his mind to the requirement of r. 16.38. In the circumstances, we are constrained to hold thait the departmental action taken against the respondent is invalid."

In this case the permission relied on by the Government is in following terms :

"MEMO

Referring your memorandum No. 4425 /T dated the 8th February, 1960 on the subject noted above.

I agree to departmental action being taken against F. C. Ram Kishan No. 4494."

We may hare reproduce relevant part of Rule 16.38;

"16.38. (1). Immediate information shall be given to the District Magistrate of any complaint received by

(1) [1969] 3 S.C.11,. 658.

SUPREME COUR.T REPORTS [1971) SUPP. s.c.a.

the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in con nection with his official relations with the public. The District !Magistrate will decide whether the investiga,. tion of the complaint shall be conducted by a police officer, or made over to a selected Magistrate having 1st class powers.

(2). When investigation of such a complait establishes a pn'ma facie case, a judicial prosecution shali normally follow ; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded.

When it is decided to proceed de partmentally the procedure prescribed in rule 16.24 shall be followed.

An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed."

In the present case no immediate information was given to the District Magistrate in respect of the complaint received against the plaintiff nor did the District Magistrate decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers. It is true that the District Magistrate purported to give permission under sub-Rule 2 of Rule 16.38 but as the Jst part of the Rule was not complied with at all the departmel!tal

inquiry is vitiated and the order of dismissal must be declared illegal. In the result we dismiss the appeal with costs.

K.B.N.

Appeal dismissed.

UNION OF INDIA

RAM KISHAN

S. M. SIKRI

G. K. MITTER

MOHAN REDDY

I. D DUA, JJ.

Punjab Police Rules

Punjab Police Rule


UNION OF INDIA

RAM KISH.AN

May 7, 1971

. IS. M. SiKiu, C. J., G. K. MrrrER, C. A. \I' AIDIALINGAM, P. J AGAN- 8 .

MOHAN REDDY AND I. D. DUA, JJ.)

l'tMtlab Police Rules, r. 16.3S-Police Officer in plain c/athes cammittisg ot/£nct! while raiding a p/~Failure ta give in/armation ta District

MQ/IUlral~Yalidity of departmental inquiry and dismissal af.police officer.

 .

The respondent, a. police constable, raided a place, and in the course el. lbe raid caused a knife injury to one of th• persons ill the place. Ho -t to the aceno of occurrence without his uniform. A caso under s. 324, LP.C., wu registered agaiDst him. A departmental inquiry was also ordr.red ap.inst him and he was dismissed from service. He filed a sui~ challent!- ilol the order of dismissal on tho ground, inter alia, that the procedure preocribed by the r. 16. 38 of the Punjab Police Rules was not followed.

The High Court, in appeal, decreed the suit.

In appeal to this Court,

HELD: The plaintiff was purporting to exercise the authority of a police officer even if he was in plain clothes. The acts alleged against him constituted a criminal offence in connection with his official relation with the public and their description in the charge in the departmental proceed- E ings as negligence was an atten1pt to avoid the effect of r. 16.38. Under sul>-r .. (1) of the rule immediate information regarding the commission of the offence sbold have been given to the District Magistrate.

In the present case there was no evidence of any such infortnation being given to the District Magistrate, nor was there evidence that tho District Magistrate decided that the investigation shall be conducted by P die police officers who conducted it. Since there was a breach of sub-r. (I) of the rule the order of dismissal was illegal. (759B-H, 760H]

Delhi Administration v. Chanan Shah, [1969] 3 S.C.R. 653 followed.

OVIL APPELLATE JURISDICTION : Civil Appeal No. 750 of 1966.

Appeal by special leave from judgment and order dated March 4, 1964 of the Punjab High Court, Circuit Bench, Delhi io. C.R.S.A. No. 256-D of 1962.

Jagadish Swarup, Solicitor-General, and R. N. Sachthcy, for the appellant

N. D. Bali and D. D. Shmma. for the respondent.

Ji'

WPREMB COURT REPORTS [1971] SUPP. s.c.R.

The Judgment of the Court was delivered by

Sikri, C.J.-The respondent, Ram Kishan, Head Constable, (hereinafter referred to as the Plantiff) failed a suit challenging the order of dismissal passed against him on 3rd September, 1957 by Shri D. C. Sharma, Superintendent. of Police (CentraD.

The main attack was twofold.

First it was alleged that Shri D. C. Sharma was not a District Superintendent of Police and, therefore not entitled to dismiss the plaintiff.. Secondly it was alleged that as the procedure. prescribed by Rule 16.38 of the Punjab Police Rules was not followed, the departmental action taken against the plaintiff was illegal.

The version of the plaintiff as to what happened on 22nd June, 1957 was this.

On 22nd June, 1957 he was on duty "for prevention of crime and while on his round he received information that some gamblers were gambling in a public place on Rouse Avenue. Consequently, he organised a raiding party.

The gamblers, who were Harijans, out-numbered the police party and inflicted some injuries on the members of the party. Fearing that they would be hauled up, they approached !II Harijan member of the Corporation as well as a Harijan Member of the Parliament, who telephoned to the plaintiff's officers, at the police station, before the plaintiff reached the police station from the scene of affray in order to lodge his report.

The version of the Government was that the plantiff was deputed for the checking of cycle theft duty near Employment Exchange, Darya Gunj and he had not been posted at Rouse Avenue, Harding Bridge.

It was denied that the plaintiff received any information regarding gambling at a public place in Rouse Avenue. On the contrary it was alleged on behalf of the Government that the plaintiff alongwith other constables wanted to implicate Mohan Lal, Nathu etc., and a scuffle took place between the plaintiff and his other associates on the one hand and Mohan Lal and others on the other hand.

The Sub-Judge dismissed the suit.

The plaiintiff filed an appeal before the Additional District Judge, who accepted the appeal and granted the plaintiff a decree for a declaration that the order dated 3rd September, 1957 dismissing him from service is illegal and ultra vires. He also passed a decree for Rs. 1926/10/· on account of pay and allowances.

The Government filed an appeal in the High Court. The case came up before Mahajan J., who observed that there was a breach of Rule 16.38 of the Punjab Police Rules but as it was

UNION v. RAM Kll!HAN (Sikri, C.J.)

contended that the Police Rule 16.38 was directory and not mand&tory, he referred the case to a Division Bench.

Mchar Singh J. speaking for the Bench held that "in view of Babu Ram Upadhya's (') case this rule must be held to be mandatory, though even otherwise, on the language of the rule itself I am of the opinion that it is a rule moodatory in nature".

He further observed that "In this case it is an admitted fact that there was no reference of the information to the District Magistrate and he had no opportunity to take a decision first under subrule (!) and then under sub-rule(2)." He agreed with the first appellate court that the chairge in the statement of allegations was an information indicating the commission by the respondent of a criminal offence in connection with his official relation with the pUblic, as not only B31tto was injured in the incident but also some Foot Constables.

It was contended before us that the first part of the rule 16.38 does not apply because the plaintiff went to the scene of occurrence without any uniform and that the question of commission of a criminaJ offence by a police officer in connection with his official relations with the public can only arise if he commits the offence when he is in a uniform. It was further urged that before an offence can be said to have been committed by 31 police officer it must be not in exercise of purported authority but real authority. We are unable to see any force in these contentions. On the facts of this case it is quite clear that the plantiff was purporting to exercise authority of a police officer 31nd even if he was in plain clothes it does not mean that he was not purporting to act as 31 police officer.

1n our view, in this case there was a breach of sub-rule (I) of Rule 16.38. D.W. 2, Raghu Nath, admitted that on 22nd June 1957 a case under s. 324 I. P. C. wais registered at the instance of Harijans and that investigation was made by A.l.C.

Hori Lal and then S. I. Daulat Ram.

The allegations against Ram Kishan and others were that they had inflicted a knil:e injury on Mst. Batto, a Harijan womwn and medical report showed that the injury was with a blunt weapon though the injury was simple. He further said that S. P. ordered him to start a departmental inquiry against the plaintiff. There is no evidence that any immediate information was given to the District Magistrate of the complaint Nceived against the plaintiff. Neither is there any evidence that the District Magistrate decided that the investigation shall be conducted by the police officers, who conducted it.

(1) A.l.R. 1961 S.C. 751

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

The learned counsel for the Government further contended

tht the charge agaiast the .Plantiff in the departmental proceedmgs was a• charge of negbgence and not a charge in connection with the commission of a criminal offence in c<innection with his official relations with public. The charge reads as under :

"That you on 22-6-57 at 8.30 a.m. were sent for checking cycle thieves vlde D. D. No. 9 dated 22-6-57 P. S. Faiz Bazar, but left your place of duty and alongwith F. C. Thakur Dayal No. 6105 went to Asaf Ali Road from where you took F. Cs. Lekh Raj No. 6512 and Bhagat Ram No. 1952.

You accomp81!1ied by the three F. Cs. mentioned above went to the Harijan Basti in the area of Rouse Avenue in search of some 'Sattabaz'.

That you or any of your F. Cs. were not in Police Uniform.

That you ra.ided some Harijans who were sitting on the cots under a tree without giving your identity under the pretext of gambling.

That altercation took place between your two F. Cs.

Thakur Dayal No. 6105 and Bhagat Rain No. 1952 a.nd the Harijans, where in these two F. Cs. and Mst. Batto mother of Mohan Lal were injured.

That no independent witness or informer were produced by you before the investigation officer to show whether or not your raid was of bona fide nature.

I, therefore, charge you for gross negligence of duty."

But according to the final sentence in the summary of allegations this action amounted to gross neglince of duty and misconduct.

It seems to us that it wai; a colourable attempt to a void the effect of Police Rule 16.38 sub-rule(!). It is a clear case of criminal offence and it was a mere device to call it gross negligence.

Following the case Delhi Administration v. Chanan Shah(') we hold tha.t as in this case there has been no compliance whatsoever of Rule 16.38, sub-rule(l), the order of dismissal is illegal. In the result the appeal fails and is dismissed with costs.

V.P.S.

Appeal dismissed.

O) [I 969J 3 s.c.R. 653.

UNION OF INDIA

RAM KISH.AN

MOHAN REDDY

I. D. DUA, JJ.

Mtlab Police Rules

s. 324

[1969] 3 S.C.R. 653

s. 324