WORKERS EMPLOYED IN HIRAKUD DAM v.

STATE OF ORISSA AND ANR.

February 2, 1971

[J. M. SHELAT, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.]

Ceritra/ Public. Works Department Code, Paragraph 11-Word 'disniissed'. in paragrf!-Ph;· . '!leaning of-Whether means dismissal for serious

misconduct onlv or include~, erminatioli simp/ic:iter.

The construction of the Hitakud Dam was entrusted by the State of Orissa to the Central Water Irrigation anc!o Navigation Commission as their agent.

The Commission tor this purpose employed a large number of persons in the worked-charged establishment 0.1 scales of remuneration at the rate paid by the Central Public Works Depart• ment. Their service conditions were to be governed by the Central Public Works Department Code of 1929.

After completion of the firs( stage of the Hirakud project the State Government took it over from the aforesaid Commission.

The employees of the work charged establishment , were given an option to work for the State on the scales of remuneration and the conditions of service in the Code.

However, since there was wide disparity between the, e employees and the work charged employees of the State's own Public Works Department, the services of the fo:mer wert" terminateC.

Such of then1 who a-; cepted re-employment were employed by the State on the terms and conditions of service of t'1e State Public .Works Department.

They were given compensation for termination of service and one month's salary in lieu of notice.

Subsequently they raised a dispute contesting the termination of their services bv the State.

The Iodustr; al Tribunal held that under paragraph . J l of the Central Public Works Deartment Code which applied to them at the relevant time the emoloyees were entitled to ren:ain, in service till the completion of the Project.

The High Court in petitions under Art. 226 and 227 of the Constitution bv the State held the termination justified under paragraph 11 of the CO<'e because it provided

inter alia that the members of the work charged establishment \Vere entitled if diSmissed otherwise than for serious misconduct. before the completion of the work in which thev were engaged, to a month's notice or a month's pay in lieu of notice.

Paragraph 11 also pro,; ded that the workers could resign after a month's notice or forfeiture of pay in lieu of one month's notice.

In appeal by the employees against the High Court"s judgment it was contended before this Court that 'dismissal' within the meaning of paragraph 11 was to be understod only as d.ismissaJ for seriOtis misconduct and not dlismissal sitnpliciter.

Support for this contention was sought fi:_om the fact that the word 'dismissal' as used in the Governmenf of India Act, 1935, and In Art. 311 of the Constitution as well as the Service Rules had been interpreted bY the Courts to mean only dismissal by way of punishment.

HELD : The word 'dismissal' used in the Government of India .t.ct, 1935 as also in Art. 311 of the Constitution an& the Senice Rules has no doubt beeri interpreted' to mean ti::rmination of a person's ser:vices by wav of punishment. But there is clear indication in paragraph 11 of .the

Cod'-' that the word 'dismissal' has not been used to denote the termna tion of the services of an employee only as and by wav of punIShment.[654 Fl

WORKERS OF HJRAKUD DAM v. ORISSA (Vaidialingam, J.) 647

Having made provisions for the automatic termination of the services of an employee when the work comes to an end it is but natural that provisions should be made to terminate the ::icrvices of an em~ ployee even when the work has not been completed If tho employee wants to give up the job then under paragraph 11 he has to give a month's notice, tailing which he forfeits a month's pay in lieu or such notice. Having provided for the voluntary resignation , by an employee even when the work has not been completecl, it will be odd to hold that a similar right has not been given to the employer to terminate the •ervices of a workman, even though the work has not finished.

It will again be incongruous to hold that when a person is dismissed, though .not for a serious misconduct, the workman will be entitled to a month's notice or a month's pay in lieu of notice, if otherwise there can be dismissal for a minor misconduct as and by way of punishment.

No 'decision has laid down that even in case of dismissal a workman will be entitled to a months notice ur a month's pay.

The fact that paragraph 11 provides for giving a month's notice or a month's pay when a workman is dismissed otherwise than for serious misconduct indicates that the work 'dismissed' has not been used in the sense of termination of service by way of punishment alone but it covers also other cases of termination 0f the services of an employee even before the completion of the work. [654 H-655 GJ

The word 'dismissed' according to its dictionary meaning is 'to send away, to discard, to remove from office or employment ........ '. The dictionary meaning makes it clear that in substance the word means •termination of service'. The High Court was therefore right in holding that the expression 'dismissed' irr paragraph 11 of the Code, has been used to take in the termination of the services of the employees mentioned therein , both as a measure of punishm1,,.nt for serious misconduct as well as terinination simpliciter of the services of an employee in \vhich con tingency one month's notice or a month's pay in lieu of noti.ce is obli

gatory.[656 B; 658 Dl Dr. Boal Chand v. Chancellor, Kurukshetra University, [1968] 1 S.C.R. 434, applied,

Purshotam Lal Dhingra v. Unio11 of India, [1958) S.C.R. 828, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1492 of 1966.

Appeal by special leave from the judgment and Qrder dated April 5, 1968 of the Orissa High Court in O.J.C. No. 58 of 1965.

G M. K. Ramamurthi, A. K. Gupta, R. A. Gupta and Uma Datta,

for the appellants.

M .. C. Bhandare, Santosh Chatterjee and R. N. Sachthey, for respondent No. 1.

The Judgment of the Court was delivered by

 Vaidialingam, J.-In this appeal by special leave the short question that arises for consideration is whether the State has got

power to terminate the services of any member of the work-charged establishment under paragraph 11 of the Central Public Works Department Code (hereinafter to be referred as the Code) on giving one month's notice or a month's pay in lieu of notice.

The circumstances leading up to this appe.al may be stated : A decision was taken to construct three dams right across the Mahanadi river, one at Hirakud, the second at Tikerpara and the third al Naraj as a miiltipurpose measure tor preventing flood ravage in the Delta area, generating electricity. and providing irri; gation The construction of Hirakud Dam was entrusted by the le ssa to the Central Waterivays, Irrigation and Navigation C"otnmission as their agent. For the purpose of the construetion o.f Hirakud Dam, the C.W.I.N. Commission employed a large number of persons in the work-charged establishment on scales of remuneration at the rate paid by the Central Public Works Department and the service conditions of the persons so employed were governed by the provisions contained in the Code.

After completion of the first stage of the Hirakud Dam project, the State of Qrissa decided to take over the said project from their agent the C.W.LN. Commission with effect from April 1, 1960.

The State further decided to proceed with the construction of sec0nd stage of the project through its own Public Works Department.

An option was given by the State to the employees in the workcharged establishment to decide whether they would conti.nue to work under the State on the same pay and allowances and subject to other conditions of service provided in the Code for the said work-charged establishment.

The employees agreed to work ur, der the State of Orissa and accordingly the employees were allowed to continue under the State Government.

The State, however, later on found tha1 the pay,. allowances and conditions of service between the work-chaged personnel of the Hirakud Dam project who had bien allowed to be continued and the work-charged perspnnel in the establishment of the State Public Works Department showed a marked difference giving rise to various complications.

The Hirakud Control Board recommended to the State Government to terminate the services of the workcharged personnel of the Hirakud Dam by giving one month's notice with effect from March 31, 1963. Accordingly the State Government terminated the services of the said personnel with effect from March 31, 1963 by giving one month's notice; but the State also made it clear that uch of those who elected to be re-employed on the scales of pay and conditions of service of the State Public Works Department would be so re-employed.

On the issue of the notice by the State, 1200 out of2300 personnel who had continued from before in the work-charged establishment left their services

WORKERS OF H!RAKUD DAM v. OR!SSA (Vaidia!ingam, J.) 649

and the remaining ll 00 agreed to be re-employed on scales of pay a.nd conditions of service of the State Public Work Department. The employees were paid an amount equal to .what they would have received by way of retrenchment compensation or by way of wages in lieu of notice.

• Subsequently the prsonnel of the ork-chared est.ablislunent raised a dispute contestmg the termmation of their services by the State. As conciliation failed, the Government by its order dated February 13, 19?4 eferred, the d!spute to the Industrial .Tr!bual, Orissa for adjudication.

The pomts referred for ad1ud1ca1Jon were:

1. Whether the Retrenchment of Workmen by the authorities of Hirakud Dam Project effected in pursuance of the decision taken by the Control Board, Hirakud Dam Project on the 19th December, 1962, is valid and legal? If not, to what 1elief the workmen are entitled'?

2. Whether the workers who are proposed to be retrenched in pursuance of the decision of the Control Board, Hirakud and are still continuing in Employment are entitled to their original conditions of service ?

3. Whether the workmen, who have completed three years of services or more should be confirmed in their respective posts ?

The main stand taken by the employees before the Industrial Tribunal was that their service conditions being governed by the Code they are entitled to remain iin service till the termination of the work connected with the Projects.

The work connected with the Project not having come to an end, the State has no power to terminate their services.

On the other hand, the State of Orissa took up the position that it has power under paragraph 11 of the Code they are entitled to remain in service 'till the termination of notice or one month's pay in lieu of notice even before the completion of the work. .

:nie Industrial Tbunal recorded broadly the following findmgs : ( 1) the action of the State cannot be considered to be by way of retrenchment under the Industrial Disputes Act as this is not a case of discharge of surplus labour, (2) the mere fact that the employees have accepted the notice, pay or compensation

oes not stop them from challenging the legality of their termina- . uon, ( 3) paragraph 11 of the Code does not authorise the State

to terminate the services of an employee befor!! the work is com

p1eted.

Th~ said paragraph gives only a limited power to. terminate the services of an employee by way of a punitive action taken as a measure of punishment.

In this connection the Tribunal has

placed considerable reliance on the expression 'dismissed' used in paragraph 11 of the Code, ( 4) as the work had not been completed and as the action had not been taken by way of punishment, the order of termination is without jurisdiction, ( 5) the termination of employment is arbitrary and anti-contractual, ( 6) •the order of termination is invalid and inoperative.

The contention raised ]Jy the State that the Project was not an industry was also overruled.

The Tribunal ultimately held that the action taken by the Management of the Hirakud Dam Project in purs, uance of the Notice dated February 9, 1963 was invalid and illegal and that the work-charged employees then working in different divisions of the Project and who had beeµ recruited prior to April l, 1960 are entitled to have thi; ir original conditions of service including scales of pay and dearness allowance.

The Tribunal further held that the employees are entitled to continuity of service and that their services cannot be terminated before the comple\ion of.work except as a measure of punishment.

The State challenged this award before the High Court of Orissa in Writ Petition (0.J.C. No. 58 of 1965) under Articles 226 and 227 of the con.stitution.

Though the State contended that the Hirakud Dam Project was not an industry and that the Tribunal .has acted beyond the scope of reference when it gave certain directions regarding pay and allowances etc., ultimately these contentions were given up.

The only contention pressed before the High Court was that the Industrial Tribunal had committed an error of law in construing paragraph 11 of the Code when it held that the State had no power during the progress of the work to terminate simpliciter the services of any of 'the work-chared employees.

The High Court agreed with the contention of the State and 'held that under paragraph 11 of the Code, the State Government bad power to terminate the services of an employee even' during the progress of the work on giving one month's notice or one month's pay in lieu of notice.

Mr. M. K. Ramamurthy, learned counsel for the appellants, contended that the construction placed by the High Court on paragraph 11 of the Code is \ncorrect.

His contentions ran as follows : The employees in the work-charged establishment were entitled to continue in service till the work for which they have been employed was completed.

For serious misconduct the employer has got the power to dismiss such an employee without giving a month's notice -or a month's pay in. lieu of notice.

But if an employee was being dismissed for reasons other than for serious misconduct, the employee is entitled to a month's notice or a month's pay in lieu of notice. There is no power in the employer to terminate simpliciter the

WORKERS m H!RAKUD DAM v. ORISSA (Vaidialingam, /.) 651

A services of an employee so lo, ug as the work has not been cOm

pleted.

The expression "dismissal" has always been understood and interpreted by the courts as action taken against an emp1oyee by way of punishment and that expression can, uot be interprete<! to include also the termination of the service of an employee

c:eerwise than by way of punishment.

Mr. Bhandari, learned cou.nsel for the State, on the other hand, urged that paragraph 11 is really intended to govern the relationship between the employer and the elJl.ployees of the work-charged establishment and the expression "dismissal" has not been used in the sense that action should necesswly have been only as and by way of punishment.

According to the learned counsel the expression "dismissal" has been used in a loose sense meaning termination of the services of an employee either by way of punishment for misconduct or for any other reason.

We are not inclined to accept the contention of Mr. Ramamurthy that the expression "dismissal" in paragraph 11 has been used to 'denote only action taken against a workman as and by way of punishment.

No doubt, the expression has not been very happily used in the said paragraph.

Paragraph 11 of the Code is as follows:

"l L Members of the temporary and work-charged establiShments, who are engaged locally, are on the footing of monthly servants. If they are engaged for a specific work, their e, ngagement Jasts only for the period during which the work lasts. If dismissed, otherwise than for serious misconduct, before the completion of the work for which they were engaged, they are entitled to a month's notice or a month's pay in lieu -Of, notice; but other.wise, with o.r ; without aotice, their engagement terminates when the work en'.ds. If they desire to resign their appointments they inUSt give a month's notice of their intention to do so, failing which they will be required to forfeit a month's pay in lieu of such notice. The terms of engage.inent should be clearly. explained to men employed in the circumstances mentioned above."

The following aspects emerge from paragraph 11 of the Code :

(i) the members of the temporary and work-charged establishments. are treated to be on the footing of monthly servants;

(ii) if they are engaged for specific M>rk, their ser •

vices last only for the period during which the 12-918 Sup Cl/71

work lasts.

To put it differently there will be automatic termination of the services of an employee when the specific work for which he was engaged is completed;

(iii) before the completior. of a work, a workman can be dismissed for serious misconduct. In such a case no question of giving a month's notice or a month's pay in lieu of notice arises;

(iv) before the completion of the work, the workman can also be dismissed otherwise than for serious misconduct, i'l which case the workman will be entitled to a month's notice or a month's pay in lieu of notice;

(v) in other cases the workman's services terminate when the work ends;

(vi) if the workman desires to resign his appointment, D he must give one month's notice of his intention to do so, failing which he will be required to forfeit a month's pay in lieu of such notice.

That the above are terms of engagement of a workman, is c:ear from the concluding part of paragraph 11 to the effect that "the terms of engageme.nt should be clearly explained to men employed in the circumstances mentioned above."

The question that arises for consideration is about the connotation of the expression "dismissed" used in paragraph 11. The contention of Mr. Ramamurthy that the expression "dismissed" has reference only to termination of the services of an employee as and by way of punishment is largely based upon the provisions contained in the Governmi<nt of India Act and in Art. 3 li of the Constitution.

Based upon those provisions Mr.

Ramamurthy claims that the expression "dismissal" is a technical word used in cases in which a person's services are terminated by way of punishment. Quite natural!y he rlied upon the Service Rules where the word "dismissal" has been used to denote a major punishment inflicted upon an employee for misconduct.

Mr. Ramamurthy, no doubt, is well-founded in his contention that the word "dismissal" used in the Govenment of India Act as also in the Constitution and the Service Rules has been interpreted to mean termination of a person's service by way of punishment.

Bv section 45 of the Government of 1, ndia Act, 1919 read with Part I of the second schedule to that Act, several sections includ-

WORKERS OF HIRAKUD DAM v. ORISSA (Vaitlialingam. J.) 1151

ing s. 9613 were introduced in the Government of India Act, 1915.

Among other things s. 96B provided that no person in the civil service of the Crown in India may be dismissed by any authority subordinate to that by which he was appointed.

Section 96-B for the first time gave statutory recognition and force to the English Common Law rule that the servants of the Crown held their Offices during the pleasure of the Crown. It also at the same time imposed one important qualification upon the exercise of the Crown's

pleasure, namely, that a servant might not be dismissed by un authority subordinate to that by which he had been appointed.

Section 96-B(l) waveproduced as sub-sections (1) and (2) of section 240 of.the Government of India Act, 1935 and a new section was adde'd to section 240 as uh-section ( 3). Sub-section

( 2) of section 240 provided that no person referred to in subsection (1) shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

Sub-section (3) provided that no such person shall be dismissed or reduced n rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

Then came our Constitution on January 26, 1950.

Articles 311 (I ) and ( 2) provided as follows :

"311 (I ) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which. he was appointed. ( 2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after a'n inquiry in which he has been infonru:d of the charge against him and given a reasonable opportunity .of being heard in respect of those charges and where i1 is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :"

It will be 'l!oted that Art. 311 gives a twofold protection to persons who come within the article, namely, (i) against dismissal or removal by an authority subordinate to that by which they were appointed and (ii) as against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them.

li54 Mil'kl!ME 'C'OllkT REPORTS [197 ! J .l S, C.k

Discussing the aboveprovisions in Parshotam L(1/ Dhiugm v.

Union of India('), this Court obsqrved as follows:

"It foilQW.s from the above discussion that both at the date of \he commencement of the 1935 Act and of our CQnstitution the words "dismissed", "removed" and .. reduced in rank", as used in the service rules, were all understo<AI as signifying or denoting the three major punishments which could be inflicted on Government servants: The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was Incorporated in sub-ss. ( I ) and ( 2) of s. 240 to give them a statutory protection by indicating a procedure which had to be followi:d before the pu:nishments of dismissal, removal or reduction in rank could be imposed on them, and which could be enforced in law.

These protections have now been incorporated in Art. 311 ot our Constitution . . . . . . . . . .

Thus under Art. 311 (I) the punishments of dismissal, or re1noval cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Art. 311 (2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government servants without giving him a reasonable opportunity to defend himself."

If the interpretatio:n placed upon the word "dismissal" in the Government of India Act i11nd the Constitution as w-;,:I as the service rules is adopted for construing the said wurd in paragraph 11 of the Code, the contention of Mr. Ramamurthy will have to be accepted.

But there is a clear indication in paragraph I I of the Code that the word "dismissed" has not been used to denote the termination of the services of an employee only as and by way o.f punishment. . Paragraph I I. in our oph:ion, contains the terms of engagement of the workmen.

In view of the very nature of the employmeat in the work which may either finish quickly or may take a considerably long time for completion, Paragraph I. I has been tncorporated to govern the relationship between the Central Public Works Department and a workman. In his ca5e there is no controversy that even after the State took over the construction of the Project. relationship between the State and the employees is governed by Paragraph 11.

Having made provisions for the automatic termination of the services of an employee; when the work comes to an end. it is but natural that provisions should be made to terminate the services of an employee even when the work

f II f19S8] S, C.R. 820.

, __

WORKERS OF HIRAKU[) DAM v. ORISSA (Vaidia/ingam, /.)

H55

has not bee.n completed.

In this connection it. should be. noted that if the employee wants to give up the job, he has to give a month's notice, failing which he forfeits a month's pay in lieu of such notice.

Having provided for the voluntary resignation by an employee even when the work has not been-=p'.eted, it will he odd to hold that a similar right has not been gi to an employer to terminate the services of a workman, even tho . the work has not finished.

It is quite understandable that provisions should be made for dismissing an employee even before the completion of . the work, for serious misconduct. In such a case, it is.admitted .by the learned counsel for the appellants, that the question of giving a month's notice or a month's pay in lieu of notice does not arise.

In that cQhtingency, it is easy to hold that the termination of the services of an employee is dismi§sal as and by way of puni-hment.

Paragraph 11 further provides that if an employee is dismissed before the completion of the work otherwise than for serious misconduct, he; wiir be entitled to a month's notice or a month's pay in lieu of notice.

According to Mr. Ramamurthy, there is nothing incongruous in holding that when a workman is dismissed for a minor misconduct he will be entitled to a month's notice or a month's pay in lieu of notice. In our opinion it will be incongruous to hold that whe>n a person is dismissed, though not for a serious misconduct but even for a minor misconduct, the werkman will be entitled to a month's notice or a month's pay in lieu of notice, if otherwise there can' be a dismissal for a minor misconduct as and by way of punishment.

So far as. we dmld see no decision has laid down that even in cases of dismissal a workman will be entitled to a month's notice or a month's pay. If it is a dismissal by way of punishment, no question of a month's notice or a month's pay in lieu of notice ever arises. The fact that Pararaph 11 provide•. for giving a month's notice or a month's pay when a workman is dismissed otherwi~~ than for. serious misccinduci indicates that the word "dismissed" has not been used in the sense of termination of service by Y<ay of punishment alone but it covers also other cases of termination of the services of an employee even before. the completion of the work.

Interpreted in this manner, the position will be that the services of an emplovee can be terminated as punishment for serious misconduct and the services of an employee can be terminated also for other reasons.

If the services are terminated for other reasons. Paragraph 1 t provides for giving a month's notice or a month's pay in lieu of notiC'e.

From the above reasoning it is clear tliat the word "dismissed;' has been used loosely to denote both termination of service for misconduct by way of punishment ind also tennination of service

11mpliriltr.

656 Sl!PRF.ME COURT REPORTS [1971] 3 s.c.R.

It must also be noted that the Code has been framed in 1929 A long before the Government of India Act, 1935, came into force.

In Burrows "Words and Phrases" the word "dismissal" has been stated to be a word of very ambiguous meaning and that it is merely a convenient expression for the termination of an employment. whatever its nature may be.

The word "dismissed" according to i.ts dictionary meaning is "to send away, to discard, to remove from B office or employment ........ " The dictionary, mea, ning makes it clear that in substunce the word means "termination of service."

In Dr. Boo/ Chand v.

The Chancei/or, Kurukshetra University( 1 ), the import of the expression "dismissed" came up for consideration oofore this Court.

The appellant in that case, who wi1s Professor and Head of the Department of Political Science in the Punjab University, was appointed on June 18, 1965, as the Vice- Chancellor of the Kurukshetra University.

On March 31, 1966, the Chancellor of the University suspended the appellant from the office of Vice-Chancdlor and by another order the appellant was required to show cause why his services as Vice-Chancellor be not terminated.

The appellant after submitting his representation, filed a writ petition in the Pm.jab High Court for quashing the order dated March 31, 1966.

On May 8, 1966, the Chancellor of the University, in ex.ercise of the power under sub-cl. (vi) of cl. 4 of Sch. I to the Kurukshetra University Act, 1956, read with s. 14 of the Punjab General Clauses Act, 1898, passed an order terminating the services of the appellant as Vice-Chancellor with jmmediat, effect.

The writ petition was suitably amended challenging this order terminating the appellant's service as Vic~-C'hancellor.

The relevant sub-clause of Cl. 4 of Schedule I of the Kurukshetra University Act provided that the Vice-Chancellor will held the office ordinarily for a period of three years.

One of the contentions raised before this Court was that the Chance!1or of the University had no power to terminate the services of a Vice-Chancellor before the expiry of the period for which he was app0inted and that s. 14 of the Punjab General Clauses Act,

1898, while providing for .dismissal did not empower the appointing authority to terminate the services of an officer. While holding that there was no express provision in the Kurukshetra University Act or the statutes thereunder dealing with the termination of the tenure of office of the Vice-Chancellor, this Court held :

"But on that account we are unable to accept the plea of the appellant that the tenure of office of a Vice-

C'hancellor under the Act cannot be determined before

(I) [1%8] 1 S.C.R. 434.

 l ,•-1;, ,., -

.\ •

f. )It r ' ' •

WORKERS OF HIRAKUD DAM v. ORISSA ( Vaidia/ingam, J.) 6 57

the expiry of •the period for which he is appointed. A power to appoint ordinarily implies a power to determine the employment." Regarding the further contention that s. 14 of the Punjab General Clauses Act only empowers the appointing authoity to dismiss an officer by way of punishment, but not to determine an employment this Court after referring to s. 14 observe as follows :

"But s. 14 of the General Clauses Act is a genetal provision : it does not merely deal with he appointment of public servants. It deals with all appointments, anti there is no reason to hold, having regard to the context in which. the expression occurs, th~ the authority invested with the power of appointment has the power to determine employment as a penalty, but not otherwise.

The expression 'dismiss' does not in rts etymological sense necessarily involve any such meaning as is urged by counsel for the appellant.

The implication that dismis:lal of a servant involves determination of employment as a penalty has been a matter of recent development since the Government of India Act, 1935 was enacted.

By that Act certain restrictions were imposed upon the power o~ the authorities to dismiss or remove members of the civil service, from employment. There is no warrant however for assuming that in the General Clauses Act, 1898, the expressicm "dismiss" which was generally used in conneaion with the termination of appointments was intended to be used only in the s-; mse of determination of employment as a measure of punishment."

From the above extract it is clear that the word "dismissal" has to be understood in the context in which it occurs and that it denotes the determination of an employment as a penalty is a matter of recent development since the Government of ln"Clia Act, 1935 was enactert.

In the case before us, we have already pointed out that the Cc•de has l:ieen framed as early as 1929 and there is no warrant tor assuming that the expression "dismissed" has been used in the sense that the word was understood since the Government of India Act. 1935. Further the word 'dismissed' occurring in the context in which the said expression occurs in paragraph 11, as pointed out by us earlier. clearly denotes the termination of the services of an employee fr serious misconduct and for other reasons. That expression is not used in the sense only to denote determination of employment as and by way of punhhment.

Mr. Ramamurthy raised the contention that even if there is a power of termination simp/iciter in the emoloyer uµder Paragra?h

11. the High Court should R, Ot have interfered with the award of

the Industrial Tribunal as the Tribunal has recorded a finding that the State has not acted bona fide. In support of this contention, the learned counsel relied on the reasoning contained in paragraph 18 of the award.

We have gone through the reasoning contained in the said paragraph and we do not find any finding recorded by the Tribunl\l that the State has not acted bona fide, when it passed an order terminating the services of the employees.

On _the other hand, what the Tribunal has held in the said paragraph is that the termination of the ser'Vices of the employees is invalid and illegal as it is not warranted by Paragraph 11 of the Code and hence the ·.order of termination is/ invalid i; n law and inoperative.

There is absolutely no basis 'for the contention that these findings are to the effect that the action df the State is not bona fide. Thus the findings recorded by the Tribunal are finngs on the basis of the interpretation placed by it on Paragraph 11 that the State has no powe.r to terminate simpliciter the services of a work-charged establishment. The(efore, this contention of Mr. Ramamurthy has to be

rejected.

To conclude we are in agreement with the High Court in hold- D ing that the expression "dismissed" in Paragraph 11 of the Code, has been used to take in the termination of the services of the employees mentione.d therein both as a measure of punishment for serious misconduct as well as termination simpliciter of the servies of an employee in which conti:ngency one month's notice or a month's pay in lieu of notice is obligatory.

In the result the appeal is dismissed but in the circumstaucr~ without any order as to costs.

G.C.

Appeal. dismissed.

WORKERS EMPLOYED IN HIRAKUD DAM

STATE OF ORISSA AND ANR

February 2, 1971

M. SHELAT

V. BHARGAVA

Works Department Code

State of Orissa

Central Public Works Depart• ment

Art. 226 and 227

Governmenf of India Act, 1935

Art. 311

Art. 311

[1968] 1 S.C.R. 434

CIVIL APPELLATE JURISDICTION

G M. K. Ramamurthi

A. K. Gupta

R. A. Gupta

Uma Datta

M .. C. Bhandare

Santosh Chatterjee

R. N. Sachthey

Vaidialingam

Hirakud

Tikerpara

C.W.I.N. Commission

Central Public Works Department

State of Qrissa

C.W.LN

April 1, 1960

Hirakud Dam project

Hirakud Control Board

Hirakud Dam

March 31, 1963

February 13, 19?4

Control Board, Hirakud Dam Project

19th December, 1962

Industrial Disputes Act

Hirakud Dam Project

February 9, 1963

High Court of Orissa

Articles 226 and 227

M. K. Ramamurthy

Bhandari

Ramamurthy

Art. 3

Ramamurthy

section 45

s. 9613

Government of India Act, 1915

s. 96B

India

Section 96

Section 96

section 240

Government of India Act, 1935

section 240

section 240

January 26, 1950

Articles 311

Art. 311

s. 240

Art. 311

Art. 311

Art. 311

Government of India Act, 1935

March 31, 1966

Pm.jab High Court

May 8, 1966

cl. 4

Kurukshetra University Act, 1956

s. 14

Punjab General Clauses Act, 1898

Cl. 4

s. 14

Punjab General Clauses Act

s. 14

General Clauses Act

s. 14

s. 14

General Clauses Act

Government of India Act, 1935

Clia Act, 1935


T. N. ANGAMI v.

SMf. RA VOLUEU

February 2, 1971

[G. K. MIJ'TER AND A. N. RAY, JJ.)

65!f

_ f!.epresemation of the Peop/£ Act. 1951-Corrupt Practice-Hospita/ily and courtesy cannot be equated with corrupt practichief Minister. redressing grievances of people cannot be raid to offer inducement for

geftlng votes.

lbe appellant was elected to the N agaland legislative assembly. He was at the time of his. election Chief Minister of the State.

The respondent challenged the election of the appellant oa the grounds : (i) the appellant incurred or authorised the incurring of expilnditure beyond the prescribed limit in contravention of s. 77 of the Act and thereby committed corrupt practice within the meaning of s. 123(6) of he Act,

(ii) he offered inducements to the electors by givins feasts and entertaining them and (iii) he distributed bundles of Corrugated iri:in Sheets to a Women's Society, with the object of inducing the members tbereof to vote for him.

The High Court held that the appellant committed corrupt practice within the meaning of s. 123 ( 6) and set aside his election. The other corrupt practices were held not proved.

Allowing the appeal and dismissing the election petition,

HELD: (i) The High Court was in error in holding on the evidence that expenditure bevond the prescribed limit was incurred or authorised by the appellant.[663 Fl

(ii) There was no evidence to indicate that the appellant or any Person with his consent or knowledge induced any of the voters to vote for him by offering them food.

On the contrary the evidence on both sides indicated that it was customary practice in Nagaland to offer hospitality to the people who visit their house. It would not be rorrect to equate ordinary hospitability or courtesy with corrupt practice.

(iii) There was no corrupt motive in the distribution of bundles of iron sheets.

The Society asked for corrugated iron sheets for a public cause. The appellant was the Chief Minister at the time of the election and it would not be unnatural for people to make requests to the Chief Minister for a public cause. It would also be reasonable to expect that the Chief Minister would try to redress th~ grievances of the people. [665 Bl G CivJL APPELLATE JURJSDJCTION: Civil Appeal No. 1125 of 1970.

Appeal under s. 116-A of the Representation of the People Act, 1951 from the Judgment and order dated March 1970 of the Assam and Nagaland High Court in Election Petition No. 2 of 1969.

S. V. Gupte, S. K. Ghose, Advocate-General, Nagaland, Naunit Lal, A. R. Barthakar, R. C. Chowdhurv and B. K. Dass, fer the nppellant. ·

SUPREME COIJRT REPORTS

[1971] 3 S.C.R.

D. P. Singh, A. K. Gupta, V. /. Francis and S. P. Singh, for A the respondent.

The Judgment of the Court was delivered by

Ray, J. This is an appeal from the judgment dated 26 March 1970 of the Assam and Nagaland High Court declaring the election of the appellant void under section 100 ( 1 )(b) of the Representation of the People Act (hereinafter referred to as.the Act) and further declaring tlie appellant to have committed a corrupt praC'tice within the meanin!l of section 123(6) of the Act for incurring or authorising expenditure in contravention of' section 77 of the Act.

The gist of the finding of the High Court is that the appellant showed in his return a sum(~ Rs. 900/- as electio:n expenses after claiming a refund of Rs. 100/- but the appellant is found to havr

incurred or . authorised expenditure of a further amount of Rs. 154.15 which the appellant did not incli.Ide in his return and thereby the appellant exceeded the permissible limit of Rs. 1000 I - by Rs. 54.15.

The finding of the High Court is that the appellant incurred or authorised the expenditure of Rs. 90 /- for what is described ,, as pink identity cards and secondly incurred or authorised the expenditure of Rs. 22.65 in respect of purchase of forms and election handbooks and thirdly incurred or authorised the expenditure of

Rs. 42.50 on 18 trunk calls between 15 January, 1969 and 11 E February, 1969 aggregating Rs. 154.15 which sum was not included in the return of election expenses.

The appellant was at the time of the election Chief Minister of the State of Nagaland.

The appellant and the respondent were two candidates at the General' Election in the year 1969 to the Nagafand Legis!ative Assembly from No. 6 Western Angami F Constituency.

The polling: took place on 6, 8 and 10 February, 1969 and counting of votes took place on 12 February, 1969.

The appellant poll~ 1933 votes.

The respondent polled 935 votes.

On 12 February, 1969 the result of the election was declared and the appellant having secured the majority of valid votes was declared to be elected.

The respondent in the election petition alleged that the appellant included in his retur; n as election expenses the sum of Rs. 75/- paid by him to Kohima Printing Press on 17 January, 1969 for printing blue identity cards but the appellant did not include in the Said return a sum of Rs. 90/- by him to Kohima Printing Pres~ on 29 January. 1969 for printing a set o.f pink identity cards issued by him.

The appellant in his written statement denied that he spent Rs. 90/- for the purpose of printing identity cards that were

• H

used by him in any way in his election. _ The appellant stated that he spent Rs. 75 /- only for printing the identity cards which were used in the election nd the same has been properly accounted for in his statement for his election expenses.

Under section 123(6) of the Representation of the People Act the incurring or authorising of expenditure in contravention of section 77 is a corrupt practice f6'r the purpose of the Act. Section 77 deals with account of election expenses and maximum thereof.

The fil'S'I sub-section states that every candidate at an election shall, either by himself or by his e'.ectin agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date or publication of. the notification caning the election and the date of declaration of the result thereof both dates inclusive.

The second sub-section states that the account shall contain such particulars,. as may be preseribed.

The third sub-ection state' that the total amount shall not exceed such amount as may be prescribed.

The prescribed maximum for election expenses is the sum of Rs. 1.000 as will be found in Rule 90(2) of the Conduct of Election Rules.

That is the sum prescribed for the State of Nagaland for State Assembv Election.

For other States different amounts are prescribed as the maximum of election expenses for the State Assemolies.

The relevant issue with regard to the alleged expenditure ot Rs. 90 raises the question as to whether the appellant incurred or authorised the expenditure of the said amount. On behalf of the appelalnt the owner of the printing press Vipikejeye gave evidence.

He said that the appellant placed an order (Ex. 10) for 5000

identity cards. for election and ho~ also said that Exhibit 11 the blue identity cards were printed in his press. The owner of the press further said that the appellant did not personally come to place the order but his party-men came nd placed the order. The blue identity card was not found suitable and the owner of the printing press printed the pink identity card.

The owner was paid Rs. 75 for printing 5000 blue identity cards. As for the pink cards tho~ evidence of the owner of the printing press was that the order for the pink cards was placed on 29 January, 1969 "by the

y~:mng man" of the _appellant. The owner of the press supplied 'the pmk cards numbenng 6000 and be received the sum of Rs. 90 on I February, 1969 and one Pralie Peseyie paid that sum and took away the pink identity cards. Pralie P.seyie was said to be a man of 'the appellant. There was no written order for the printing job.

The owner of the press specifically said that he did not receive Rs. 90 from the appellant.

1'62 SUPREME COURT REPORtS

The appe!Iant jn his oral evidence said that the blue identity card was ordered by him to be printed and he entrusted one-of his worker, to do it. On his return the appellant found that there was something WI"ong in the blue identity cai:ds which contained the words 'Vote for T. N. Angami'. The appellant said that he became annoyed an<! asked the person entrusted with the printing of the identity cards to go immediately to the printing pr_ess and get the cards "reprinted correctly''.

After that "the man" brought the pink identity card but he' did not tell anything about the payment of such printing work and that is how the appdlant did not account for them.

The appdlant accounted for Rs. 75 as the cost of printing identity cards.

In cross-examination the appellant was asked whether he asked Pralie Peseyie to pay the cost of the blue identity card because of the appellant's an11Qyance.

His answer was •that he did not say anything specifically but Pralie Peseyie did something wrong and the latter felt shy and did not ask ally money from the appellant.

The appellant's evidence was that the press submitted the bill for the printing of the blue identity card and the payme.Iit-was made by the appellant but he did not personally go and pay.

In crossexamination the appellant was -specifica!1y asked whether the pink identity cards were produced before him with the bill.

The appellant a, nswered iri. the negative.

The appellant was then asked whether before filing the return the appellant had askeJl. from the press as to what the cost of the printing, of the pink identity cards was.

The appellant's answer was ur had not paid personally and the. bill was not produced before me I did n6t e.iiquire".

The appellant was again asked whether the amount for printing' pink . identity cards was paid.

His answer was that the amount was paid 'by Pralie Peseyie. ·

.. Pralie Peseyie gave evidence Ol\, alf of the appellant aild said f .that the appellt was "much , ann.s>Yed'' because Pralie . Peseyie ·.

without the appellant's knowledge put the word~ "Please vote for T. N. Angami" on. the blue identity cards and the appellant asked Pralie Peseyie' to get the identity. cards teprintcd. . Pralie Peseyie therefore placed order to get 6000 identity cards printed again.· He sa.id that he paid Rs .. 90 from his .own/pocket as he felf that it G 'Was his responsibility to get the cards printed correctly.

He also said that he never asked the appellant to re-imburse him for .that amount of Rs. 9P.

In cross-examination he was asked whether ile told the i!'p0ellant that he paid Rs. 90. His answer was in the ne:itative. ; Pralie ~yie further said that the words "Please

vote for T. N. Angam1" were not pn the sample that the appellant H :ci@e but the witness added those words without the knowledge of

the ; ippellant. The witness was asked a dirct question. as to whl amount the witness spent for the appelfant m the election and his

answer was ·"I paid Rs. 90 for the prill'ting of the pink identity cards and no more".

The High Court held that the amount of Rs. 90 must have been paid to the press by Pralie Peseyie on behalf of the app!llant and therefore the expenditure was incurred by the appellant as well as authorised by him in connection with his election.

The respondent in the election petition alleged that the appellant" paid Rs. 90. The Representation of the People Act uses !he words 'incurring' and 'authorising' the expenditure. The appellant denied that he paid Rs. 90. It was never sugg!Sted to the

appellant that he had authorised the expenditure of Rs. 90. On the contrary, the positive evidence of the appellant is that he was annoyed with Pralie Peseyie for introducing the words 'Vote for T. N .. Angami' on the blue identity cards and therefore the appellant .wanted Pralie Peseyie to get the cards reprinted correctly. It is also the evide; nce of Pralie Peseyie that he did something wrong

andA1e had to have it corrected. . He therefore paid Rs. 90 out of his own pocket. The most significant feature in the evidence is that the bill for Rs. 90 was never produced 9r sent to the appellant whereas the bill for the blue identity cards was sent to the appellant. The manner in which the appellant reprimanded Pralie

Peseyie for adding the words "Vore for T. N. Angami" would not necessarily invo]ve an obligation to pay and authorise an expenditure for getting the cards reprinted correctly1 If it were the fault of the press, the pre!iS would have to rect1y the same. On the other hand,· 1f thi: blame ftll on Pra!ie Peseyie he would have to bear the brunt . The fact that the b.ill was. not sent to the appellant shows that the fault was of the Witness Pra1ie Peseyie. The oral evidence also points to that inescapable conclusion.

The High Court was in error i, n holding on the evidence that the expenditure for Rs. 90 'was incurred or authorised by the appellant. This finding is not supported bv the evidence and on the contracy it ia repelled,~}'. the eviden~.- We cannot help

~!>serving tha~ both the apa, nt and Pi:ali6 Peseyie gave evidence 111 a very str111ghtforward and truthful manner. They narrated the correct course of events. We a<; cept their evidence and hold that the appellant neither incurred nor authorised the oxpenditurr: of Rs. 90 for the pink identity cards.

It would, therefore, not be necessary for us to go into the ques.. lion whethet. the sum of Rs. 41.50 for trunk calls and .e of Rs: 22.65 for purchase of forms and hand-books were mcurred or authoris¢ by the appellant. Even if those two sums of money were added, the return' would not be in violation of the maxiiiliim amount of Rs. 1000/-.

SUPREME COURT REPORTS

(197 J J 3 S.C.R.

Counsel for the respondent contended that the findings of the High Court on allegations contained in paragraph l (a), (i) and

(j) of particulars of corrupt practice mentioned in paragraph 6 of the petition were incorrect and the High Court should have held that the appellant was guilty of corrupt practice.

Paragraph 1 (a) relates to a charge against 'the appellant of having paid Rs. 200 in cash to Dolhoutha Gaonbura of Zubra :i; nd one bag of sugar for entertainment of electors attending a function at Zubra on 25 J anuary, 1969.

Paragraph l (f) alleges that on 27 January, 1969 a women's meeting was held at Daklane when it was announced that a procession would be taken out on 1 February, 1969.

About 200 people mostly women formed a procession shouted slogans to vote for the appellant and the appeJ.lant asked them to vote for him and after the meeting a feast was held at the appellant's house at which drinks were served to the people. Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in

connection with the election and held a meeting where the appellarrt and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing diem to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people.

The appellant in the written statement denied the charges.

The respondent did. not have personal knowledge of the feast alleged in paragraph 1 (a) of the particulars but three witnesses were examined on behalt of the, respondent.

On behalf of the appellant there was the evidence of Dolhoutha <!!nd Shitovi Hesso.

The High Court held that the three witnesses on behalf of the respondent were interested in the success of the respondent and the three witnesses attributed statements about fest and distribution of sugar to Dolhoutha who denied the same and said that the . people of the village organised the feast with their money.

The High Court correctly found that the quality of evidence on behalf of the respondent was such that no reliance could be placed upon it.

As to allegations of corrupt practice in paragraph 1 ( f) about the women's meeting the High Court held that there was no evidence to indicate that the respondent or any person induced the persons present to vote or offered them food and fruit.

On the contrary, the High Court found that evidence of both sides indicated that it was customary practice in Nagaland to offer hospitality to the people who visit their house. It will not be correct to equate ordinary hospitality or courtesy with corrupt practice.

With regard to allegations mentioned in paragraph 1 Ci) and the distribution of bundles of corrugated iron sheets the High Court

held that the women's society asked for corrugated sheets for a public cause.

The appellant was the Chief Minister at the time of the election.

It would not be unnatural for people to make requests to the Chief Minister for a public cause. It would also be reasonable to expect that the Chief Minister would try to redress grievances of the people.

There is no proof of corrupt motive.

We ag1ee with the High Court that there is no proof of corrupt pracficc allged in paragraphs 1 (a), ( f) and (j) of the particular& dealt with above.

For these reasons we accept the appeal and hold that the appellant is not guilty of any violation of section 123 ( 6) and section 77 of the Representation o.f the People Act.

The judgment of the High Co\lrt is set aside.

The charge of corrupt practice under section 123 ( 6) is set aside. The order setting aside the election of the appellant and the declaration avoiding the election under section 100(1 )(b} of the Act are both set aside.

The election petition of the respondent is dismissed.

The appellant will be entitled to costs.

K.B.N.

Appeal allowed.

T. N. ANGAMI

RA VOLUEU

February 2, 1971

A. N. RAY, JJ.

s. 77

s. 123(6)

s. 123

Nagaland

s. 116

Representation of the People Act, 1951

S. V. Gupte

S. K. Ghose

Naunit Lal

A. R. Barthakar

R. C. Chowdhurv

B. K. Dass

SUPREME COIJRT REPORTS

D. P. Singh

A. K. Gupta

V. /. Francis

S. P. Singh

Ray

section 100

Representation of the People Act

section 123(6)

section 77

15 January, 1969

11 E February, 1969

State of Nagaland

6, 8 and 10 February, 1969

12 February, 1969

Kohima Printing Press

17 January, 1969

Kohima Printing Pres~

29 January. 1969

section 123(6)

Representation of the People Act

section 77

Section 77

Vipikejeye

Pralie Peseyie

Pralie P.seyie

T. N. Angami

Pralie . Peseyie

Pralie

T. N. Angam1

Representation of the People Act

T. N .. Angami

Pralie

Peseyie

Pra!ie Peseyie

Pra1ie Peseyie

Peseyie

Zubra

25 J anuary, 1969

27 January, 1969

Daklane

Pedugei

Kiruphema

Dimapur

Mizielhouto

Dolhoutha <!!nd Shitovi Hesso

Dolhoutha

section 123

section 77

section 123

section 100(1 )


PROKASH ~HANDRA MUKHERJEE & ORS.

SARADINDU KUMAR MUKHERJEE & ORS.

February 4, 1971

(G. K. MITTER AND A. N. RAY, JJ.]

Defence of India Act, 1939 and Rules, r. 15-A-Requisition and possession h.v Government-Period, whether could be tacked for purposes of Umitation by person to whom possession was restored.

P/eadings-pr•yer for possession-When can be inferred.

The plaintiff became a co-sharer with the defendant in the suit property in the year 19411 as a result of some corveyances by members of the defendants' family. The property was in the occupation of military authorities by requisition under the Defence of India Act, 1939, and the Rules made thereunder, for four years from 1942 to 1946. .The defendants were in exclusive possession thereafter from 1946 to 1955 when the , plaintiff filed a suit for partition and possession of his share. ·

On the question whether the suit was bared by limitation under art. 144 of Limitation Act, 1908, on the plea that as the military autholrities had taken possession ofthe property from the defendants and had restored the possession to them in 1946-the possession of the said authorities was really under or on behalf of the defendants without causing an)' break in the continuity of their, possesion,

HELD ;. The possession of the Government was neither by permissionof the defendants nor in the character of an agent of the defendants. The orders of requisition, relinquishment of possession and payment of compen91ttion under the Defence of India Act read with Act and the Rules show that the possession was taken l>y Virtue of the powers under the Act ad the Rules irrespective of any consideration as to the rights of the true owner Or the occupier __ who could make a claim to compensation.

Therefore, possession of Government by requisition under rule 75-A cannot enure for the 1i>enefit of the person who was in possession before, for lhe pmpose of enabling such person to acquire a prescriptjve title. f669 E-F; 670 B-Dl

Karan Singh v. Bakar Ali Khan, 9 I.A. 99, applied.

Boi>ett v. South Eastern Railway Co. [1882] 9 Q.B. 424 and Dagdu v.

Ka/u, 22 Bombay 733, explained.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of 1966.

Appeal by special leave from the judgment and decree dated June 26, 1964 of the Calcutta High Court in Appeal from Appellate Decree No. 1011 of 1962.

 S. V. Gupte and D. N. Mukherjee, for the appellants ..

' ,

Bislum Narain and P. K. Ghosh, for respondents Nos. 1, 2(c), 2(d), 2(f) and 2(g).

The Judgment of the Court was delivered by.

Mitter, J. The main question in this appeal is, whether the defendants-appellants perfected their title to the property in respect of which partition was claimed by the plaintifls by adverse possession for the prescriptive period of twelve years or more.

The relevant facts are as follows. The parties are all descendants of one Durgadas Mukherjee who died many years back, leaving six sons and inter alia the property which is the subject ..

C matter of this litigation, recorded as Dag No. 444 Khatian No. 72 in Mauja Barasat, District 24 Parganas during the last Cadastral survey. Of the two plaintiffs the first Saradindu is a great grandson of the said Durgadas Mukherjee of the branch of the youngest son, his co-plaintill' being a grandson in another branch.

The defendants belong to other branches of the said family. The D first plaintiff based his title on several conveyances from other members of the family as also purchase at an execution sale of

a fractional interest of the members of the branch of Bama Charan, the second son of Durgadas. The second plaintill' claims by inheritance. Tue property consists of . 34 acres together with two structures th\lreon which are quite separate from each other. One E portion of the structures i.e. that to the east, popularly known as Bamacharan Babu's Bati is a fairly commodious building with a separate municipal number. The other structure in the western portion known as Baitakhana Bati was and is admittedly the-joint

property of the descendants of Durgadas with a municipal number of itS own. The plaintill's claim that the land and the two buildings are joint property while the contesting defendants, some of F whom are appellants before this Court, claim exclusive title to the said eastern building with the land on which it stands. The case of the appellants was that the eastern structure was constructed by Bama Charan with his own money and thafthe co-sharers of Bama Charan, by ekramamas, gave up their interest in the land on which the same stood. The High Court agreeing with G the finding of the first appellate court found that there was no evidence on record to show that Barna Charan had put up the said building with his own money ()r that he was the exclusive owner of the said two-storeyed building or that the other cosharers gave up their ownership of the subjacent soil and rejected the exclwiive title sought to be set up with regard thereto. This- H is a conclusion of fact which does not require furtl}er scrutiny.

The High Court also agreed with the. lower appellate court in. rejecting the story of permissive possession of the defendants over the said building set µp by the plaintiffs and came to the conclu- 13-918 Sup. C.I./71

sion that "at all material times the heirs in the line of Barna Charan including the appellants were in separate possession of the eastern two-storeyed building."

The point for consideration before the High Court was and before us is, whether by such exclusive possessi_on the heirs in the line of Barna Charan including the appellants acquired title by .adverse possession to the eastern portion i.e. Barna charan Babu's Bati.

With regard to the Baitakhana Bati there is no dispute about its jointness.

No question can be raised about the first plaintiffs having become a co-sharer wi1h the heirs in line of Barna Charan in the year 1941 by private treaties and the auction :purcha!; e of the shares of three of his sons in execution of an .award under a Co-operative Societies Act.

By the kobalas the nrst plaintiff acquired fractional interest in the shares of .some 0£ :the descendants of Barna Charan as also of the descendants of his hrother Shyama Charan. . In the sale certificate following the .auction purchase there is a reference to "Dalan 3 Privy 2" but there is no express reference to these :n the koabalas (Ex. 6 series). In the courts below the defondants-appellants contended -ihat the eastern two-storeyed building was neither intended to be nor was conveyed under Ex. 6 series kobalas aml Ex. 9(a), the sale certificate. Both the trial court and the first appellate court held that the kobalas and sale certificate were sufficiently comprehensiw so as to include all or any structures which stood on the aforesaid plot of land at the material time and that there was nothing express or implied in the kobalas to how that the twostoreyed building on the eastern side was intended to be excluded from their operation. The High Court also found that so far as the sale certificate was concerned the first plaintiff had acquired

'the interest of three sons of Baba Charan.

The point as to adverse possession canvassed by 1the appellants arises in the following manner.

Their conten, tJon i~ that although the sale certificate was obtained in 1941 inasmuch as the suit for partition was filed in 1955 the requisite.period of 12 years under Art. 144 of the Limitation Act of 1908 had elapsed in the meanwhile resulting in the perfection of their title by exclusive separate possession of the property. To this the plaintiffs' rejoinder was that the two, storeyed building in the eastern wint had indisputably been in the occupation of the military authc:>rrties by requisition under the Defence of India Act and the Rules, 1939 for four years from 1942 to 1946. It was argued that there was thus a break in the claim to the prescriptive title set up and adverse possesion, if any, was limited to the period between 1946 and 1955. This was sought to be repelled by the plea that the military authorities had taken possession -of the property from

the defendants and had restored possession to them in 1946 and

-'

E >

that their possession was really under or on behal; f of the defendants without causing a break in the continuinty of their possession.

An attempt was made to substantiate this by reference to several documents which f-0rm part of the record. The order of requisition dated May 28, 1942 made under rule 75-A of the - Defence of India Rules issued by the Collector of the District of 24 Parganas shows that the building together with fixtures, fittings etc. was to be placed at the disposal and under the control of

Brigadier Commander 36 Indian Infantry Brigasfe Barrackpore on and ; from 8-2-1942 until six months after the termination of the war unless relinquished earlier.

A copy of the notice-was served on Prokash Chandra Mukherjee of Barasat des_cribed as "the owner/ occupier" of the said property.

The notice of an award under s. 19 of the Defence of India Act 1939 addressed to Prokash Chandra Mukherjee, another descendant of Bama Charan shows that compensaiion had been adjudged and awarded in respect -0f the property at Rs. 125. A third notice dated June 24, 1946 set out from the office of the Land Acquisition Collector addressed to Pankaj Kumar' Mukherjee and others shows tha possession of Cadastrai survey plot No. 444 Mouza Barasat. requisitioned under rule 75-A would be restored to the addressee on July 2, -1946. Ex. D, a memo .forwarding a cheque for Rs.

2.100 was addressed to Prokash Chandra Mukherjee and others by way of rent for terminal compensation in respect .of_ the premises which had been requisitioned.

In our view possession by Government pr the military authorities of immovable property under rule 75-A of the Defence of India Rules 1939 cannot be said to be in the charac, ter of an

agent or by virtue of any implied p¢rmission from the true owner or occupier.

S. 2 of the Act of 1939 under which rules were made and in particular cl. (xxiv) of sub-s. (2) of that section empowered the authorities mentioned to make orders providing for the requisitioning of any property, movable or immovable, including the taking possession thereof and the issue of any orders in respect thereof. S. 19 (1 ) of the Act only enjoined upon the Government to pay compensation in every case of sue~ requisition and under s. 19-B(l) Government was under an obltgation, wbenever any property requisitioned nde~ any rule was to be released therefrom, to make such enquiry, if any, as was considered necessary and specify by order in writinf? te pcon to whom possession was to be given. Sub-s. (2) of this sect10n

clearly shows that delivery of possession of the property to the person specified in an order under sub-s. (1) was to operate as full discharge to the Government f!om all l!abilit!es in respect of the" property but was not to prejudice any nj!hts Ill respect thereof which ay other pc; rson might be entitled by ue process of law to enforce against' the person to whom possession of the property was given. Rule 75-A enabled the Central Government or the Provincial _Government to requisition any property, movable or immovable, subject to certain exceptions mentioned therein.

The net result of the Act and the Rules and the effect of orders of requisition and relinquishment of possession an!l/ or payment

of Compensation must be taken to be that. possession was taken B by virtue of the powers under the Act and the rules irrespective of any consideration as to the rights of the tru~ owner _or the occupier who could only make a claim to compensation. It iS further clear that even if possession was taken from A but was made over to B after relinquishment, A could have no cause of action against Government if relinquishment was in terms of cl. C

(2) of s. 19-B(l). In other words possession of Government was neither by permission nor in the character of an agent. I( possession under the requisition had been taken from a trespasser but had been restored to the lawful owner after' the end of the period of requisition, the trespasser could not contend that he was wrongfully deprived of possession or that the period of Government's occupation should be added to the penod of his preceding trespass to enable him to claim a prescriptive right by adverse possession.

The High Court relied on the decision of the Judicial C~ mittee of the Privy Council in Karan Singh v. Bakar Ali Khan(') in coming to the conclusion that such requisition put an end to the claim for adverse possession, if any, which might have started from an anterior date. The Judicial Committee held that possession of the defendants since 1863 when the Collector had relinquished possession was not, 12 years' possession but it was contended on behalf of the defendant that he was justified in tacking to his possession: the possession of the Collector from 1861. The Board found that pending a dispute between the parties the Collector, in order to secure the Government revenue had attached and taken possession of the property and retained possession of it from 1861 until October 1863 when in consequence of the decree of the civil court he delivered possession to the defendant and paid over to him the surplus profitS of the estate after deducting the Government revenue and expenses. As the suit was brought in the year 1874 the period of 12 years had to commence some time in 1862. The Board observed that it must be assumed that "the Collector properly took possession for the purpose of protecting the Government revenue. It was the duty of the Coll_ectQr. whilst-in posse8sion under the attachment, to collect The rents from the ryots, and having paid the Government revenue and the expenses of collection to pay over the surplus to the real owner; If the defendant was the real owner the surplus belonged

(I) 9 I.A. 99.

P. c. MUKHERJEE v. s. K. MUKHERJBE (Mitter, J.) 671

to him; but if, on the other hand, the infants were the right owners, then the surplus belonged to them. . . . The Coilector, by paying over the money to Karan Singh, did not give Karan Singh a title." Accordingly it was held that the suit was not barred by limitation .

Mr. Gupte on behalf of the appellants relied on Halsbury's Laws of England (Third Edition, Vol. 24) Art. 484 at p. 253 in support of his contention that the exclusive possession of his client was not disturbed by the requisition. The article relied on reads :

"The mere fact that land is taken under the Lands Clauses Consolidation Ai:t, 1845, for the purposes of a public undertaking, and is not sUperfluous land, does not prevent a person, who has exclusive possession of such land for the46tatutory period, from acquiring title under the statute;"

The decision relied on by Mr. Gupte is that of Bobett v. The South Eastern Railway Co. (I).

In our view neither the above passage nor this judgment helps the appellants in any way. One of the points raised in Bobett's case was, whether the plaintiff in an action of trespass and to recover possession of land could be allowed to set up a plea that inasmuch as he had been let into possession by the defendants or that he had beien in possession to the exclusion of the defendants without any tenancy at all during the time required by the Statute of Limitation for the acquisition of a prescriptive title, he was absolutely entitled to the land when ousted by the defendants. It was argued on behalf of the defendants that even if the plaintiff was a tenant at will for the requisite period and in exclusiye possession of the l'and the Statute of Limitation did not apply to the case for the land in question was inalie11able by the company under s. 12 7 of the Lands Clauses Act and therefore could, by the mere !aches of its officers have vested in the plaintiff contrary to the intention of the Legislature which only allowed the company to take. possession of the land for the purposes of the undertaking and subject to the provisions of its Acts and not give it up to others. There on a consideration of s. 7 of 3 and 4 wm. 4, c. 27 and other statutory provisions Denman, J. arrived at the conclusion :

" .... that the inere fact that the property in question was land taken for the purposes of the undertakmg and not superfluous land, would not prevent the plaintiff if he had exclusive possession since 18 63, either as a

(I) [1882] 9 Q.B.424.

wrongdoer or as ienant at will in the first instance, from being entitled to the land by virtue of the Statute of Limitations."

Put simply the dictum only meant that the Statute of Limitation would be applicable to possession of a trespasser notwithstanding the provisions of the Lands Clauses Act, 1845.

The question be.fore us is altogether of a different character.

If the defendants-appellants could have established that an order under r. 7 5-A of the Defence of India Rules merely enabled the. military authoritie~ to take possession of the land for the period of their need by their permission or in the character of agents. they would have probably been on firm ground. But, as already. observed by us, the nature of the order of requisition under r. 75-A is altogether different and such posS>ssiori cannot enure for the benefit of the person who was jn possession before for the purpose of acquisition of a prescriptive title.

The only other decision to which our attention was drawn is that of Dagdu v. Kalu(1). In this case it was found that the plaintiff had been admjttedly out of possession of the lands since 1881 and -the defendant had been in adverse possession of them from that time until the date of suit October 2, 1895, with the exception of a period of three years during which period he had been dispossessed by one Barsu who wrongly alleged that l:e was a donee of the plaintiffs. On that allegation the donee obtained ppssession of the land under the decree of the court of first instance but it was reversed by the High Court and the land was as a reversal restored by the court to the defendant on 9th April 1895.

It was observed by the High Court that (p. 736) :

"The erroneous action of the Court of first instance cannot, we think, prejudice the defendant, or put him in a worse position that he would have occupied, had the erroneous decree not been made."

This decision too, in our opinion, does not help the appellants.

The possession of the defendants was disturbed by a wrong order of .the court which was ultimately putright and the court no doubt acted on the maxim that a litigant is not to be prejudiced by any wrong order of the. court.

A faint attempt was made to re-agitate the question that the auction sale of 1941 did not include the eastern portion. This in our opinion is concluded by the finaing of the High Court already noted.

(l) 22 Bombay 733.

B. • '

,,,

E ~

A The last point put forward was that the plaintiffs had not asked for possession in their plaint. This can be rejected summarily.

The prayers in the plaint not only include one for preliminary decree for partition but for the appointment of a commissioner for effecting partition of the property by separating. the shares of the plaintiffs from those of the defendants in the suit B property.

Clearly the plaintiffs were asking for demarcation of the portion of the property which should be theirs as a result of the partition. Imbedded in this prayer is a claim for possession.

In the result the appeal fails and is dismissed with costs.

V.P.S.

Appeal dismissed.

PROKASH ~HANDRA MUKHERJEE & ORS

SARADINDU KUMAR MUKHERJEE & ORS

February 4, 1971

G. K. MITTER

A. N. RAY, JJ.

Defence of India Act, 1939

art. 144

Limitation Act, 1908

CIVIL APPELLATE JURISDICTION

S. V. Gupte

D. N. Mukherjee

Bislum Narain

P. K. Ghosh

Mitter

Durgadas Mukherjee

Parganas

Saradindu

Bama Charan

Durgadas

Barna Charan

Baitakhana Bati

Co-operative Societies Act

Shyama Charan

Baba Charan

Art. 144

Limitation Act

May 28, 1942

Defence of India Rules

Prokash Chandra Mukherjee

s. 19

Defence of India Act 1939

June 24, 1946

Pankaj Kumar' Mukherjee

July 2, -1946

Defence of India Rules 1939

S. 2

S. 19

s. 19

Central Government

s. 19

Karan Singh

Gupte

Art. 484

Bobett

s. 12

s. 7

Denman

October 2, 1895

Barsu


HAZARA SINGH & ORS .

...

STATE OF PUNJAB

February 4, 1971

[K. S. HEGDE AND A. N. GROVER, JJ.]

!..dian Penal Code, ss. 307, 146, 148 and 349-Miscreants firing shots <>n p:Jlice party in darkness-No evidence that shots , were fired in direction

of members of police party--Offence of attempt to' murder could not be said to be made out-Firing of such shots is not use of force as defined in .s. 349--0ffenders even though more than five do not commit "riot within meaning of s. 146-Cannot be held guilty of offence under s. 148.

Evidence-Excessive similarity between evidence of two witnesses-.- lnference of tutoring can be drawn specially when the witnesses are clearly not independent.

The six appellants we're challenged by a police party when they were proceeding towards Pakistan territory with contraband goods.

Two of them, H and B, had fire-arms with which they fired shots. No member of the police party was injured. There was darkness except for: a tempo- 'rary illumination created by the firing of two shots from a light pistol.

The police claimed to have recognised H and B, in this light even though they lied away from the scene. The remaining f•ur persons were arrested on the spot. H and B, were arrested later and on their pointing out, two unlicensed arms were >ecovered. The Sessions Judge held"H and 11,_ to be guilty under s. 307 of the Indian Penal Code as well as s. 2S of the.

Arms Act. The remaining four appellants were convicted under s. 307 read with s. 149 I.P.C. All the appellants were convicted under s. 148.

The High Court maintained the convictions of the appellants though in the case of those without fire arms it reduced the sentences. With special leave the appellants filed appeals in this Court, ·

HELD : ( 1) From the evidence it was quite clear that the shots which were fired by H and B, were not fired during the few seconds there was light as a result of the light pis!()! shcts. In other words the shots were fired in complete darkness when it was not possible for any membe'r of police party to see the direction in which they were fired or the aim which was taken by H and B. It was not possible to say from this evidence that H and B fired the shots in the direction of the police party or at them and the possibility that the shots were fired in the air could not be excluded.

Thus the conviction under s. 307 of H and B and of the other appellants under s. 307 read with s. 149 coulo not be maintained.[678 B-D]

(2) Rioting is defined by s. 146 which i>rovides that whenever force or violence is used by an unlawful assembly or any memJ>er thereof in prosecution of the common object of sucli assembly every member of such assembly is guilty of the offence of rioting. Section 349 gives the meaning -0f the word 'force'. Jn the present incident no force or violence was proved to have been used by the appellants in prosecution of the common object of the unlawful assembly of. whic~ thy wer~ members. With the . exception of the firing of the shots in a d1rectton which could not be determined, no attempt was made by any of the appellants to use any force or

A violence on any member of the police party. Accordingly, the conviction of the appellants under s. 148 must also be set aside. [678 FGJ

( 3) The discloure statements made by H and B in respect of fire arms recovered at their instance could not be acted upon because the two wit ne'8cs produced in this connection gave statement which by their similarity appeared to be tutored and unconvincing. These witnesses were associated with the police raids over a Jong period. The other witness was proved to be inimical to H and B. The _High Court erred in ignoring these facts.

The conviction of H and B under s. 25 of the Arms Acf could not be sustained; -{679 B-DJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 139 to 141of1968. e .

Appeals by special leave from the judgments and orders dated January 31, 1968 of the Punjab and Haryana High Court in Criminal Appeals Nos. 653, 655 and 654 of 1967 respectively.

R. L. Kohli, for the appellants (in all the appeals).

Harbans Singh, for the resondent (in all the appeals).

The Judgment of the Court was delivered by

Grover, J.-Hazara Singh, his brothers Bachan Singh and Jarnail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under s. 148 of the Indian Fenal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to , murder the police party, while these persons were armed with deadly weapons like pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964. Hazara

Singh and Hhajan Singh were also charged under s. 307, Indian Penal Code, while the other four were charged under s .• 307 read with s. 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had thereby caused the death of any member of the police party they would have been guilty of murder.

Hazara Singh and Bhajan Singh were forth.er tried on a charge under s. 25 of the Indian Arms Act. 'Qie learned

Session~ Judge found that all the six persOl)S were proceeding towards Pakistan in order to smuggle six bags containing 40 Kg. cardamom each.

Hazara Singh and Bhajan Singh were armed with a rifle and a pistol respectively and when challenged by the police party they fired shots from their weapons at the police party in their attempt to murder them in pursuance of the common object of them all and as such they were guilty of an >Offence under s. 148 of the Indian Penal Code. They were con

victed and sentenced to one year's rigorous imprisonment . on that count.

Hazara Singh and Bhajan Singh were found gutlty of the offence under s. 307 of the Indian Penal Code while their co-accused were found guilty of the offence under ss. 307 and 149, Indian Penal Code, and each one of them was sentenced to rigorous imprisonment for a period of five years and pa}ment of a fine of Rs. 500/. The sentences were to run concurrently.

Bhajan Singh and Haara Singh were further found guilty of the illegal possession of fireanns under s. 25 of the Arms Act and were sentenced to rigorous imprisonment for one year each.

On appeals to the High Court the conviction of the aforesaid persons was upheld but the !>'W1ences of Bachan Singh, J arnail Singh, Baj Singh and Balwant Singh were reduced to three years' rigorous imprisonment.

All the convicted persons have filed appeals to •this Court (Cr. As. 139-141/68) by special leave.

These shall stand disposed of by this judgment.

The prosecution story was that Inderjit Singh P.W. 1 who was posied as Deputy Superintendent of Police P.A.P. Border, Khem Karan, had received information on 31st July 1964 that a party of smugglers w0uld be smuggling some goods to Pakistan during the night.

He organised a raiding party consisting of Sub- Inspector Ajit Singh P.W. 15, Agya Ram P.W. 12, AS.Is.

Darshan Sini:h. Nand Singh and Mula!41 Raj, Head Constables

Surjit Singh P.W. 3, and Ajai Singh P.W. 13. The entire raiding party was divided into four groups. Each group was headed by one of the officers including Inderjit Singh D.S.P.

At about midnight the police party noticed some persons coming from the side of village Lakhna by the katcha path with some mares.

The path Jed to Pakistan. It was a moonlit night but was cloudy at that time. It is unnecessary to go into the details which will be presently noticed of how the firing of the shots took place by the accused persons and how they were identified and arrested. Four of them were taken into custody at the spot !; mt Hazara Singh and Bhajan Singh escaped on their mares.

They were arrested later and on their disclosure a rifle and a revolver were recovered.

No one was injured and although some empry cartridges were found but no attempt was made to find the bullets which are alleged to have been fired by the party of the appellants.

The evidence of the police officers was consistent and we may only refer to the deposition of Inderjit Singh D.S.P. who appeared as P.W. I According to him when the culprits were at a distance of 25 to 30 karams (One karam is equal to 5

feet) he alerted members of the police party to be on their

uard and direoted Sub-Inspector Ajit .Singh to challenge the culprits and inform them that the police party was holding its positions and they should stop proceeding further.

Ajit Singh accordingly challenged the culprits. Thereupon the leader of the party fired a shot at the police party. Inderjit Singh then ordered Sub-Inspector Agya Ram to fire a light pistol so that there might be light and it might be possible to identify the culprits.

Agya Ram fired a shot and in the light that emerg.w the leader of the party was identified as Hazara Singh appellam: who was riding a mare and who had a rifle in his hand. He was followed by Bhajan Singh or Harbhajan Singh who also was riding a mare and had a loaded bag and was armed with pistol. He was followed by the other four on foot.

These persons then shouted to their companions Hazara Singh and Bhajan Singh that they should open fire on the police party.

Thereupon Hazara Singh and Bhajan Singh started firing shots fr@m their respective weapons ..

Sub-Inspector Ajit Singh ordered the p@lice party to open fire in defence.

Four Head Constables fired two &11, ots each from their rifles at the culji>rits. At this stage Agya Ram fired another light pistol shot. Hazara Singh and Bhajan Singh ran away on their mares throwing away the bags. The other four persons were found lying down on the ground.

There can be no manner of doubt that if Hazara Singh and Bhajan Singh fired hots at the police party and even though no one was injured the appellants would be guilty of the offences with which they w-re charged.

The real question is whether it had been proved beyond doubt that the shots were fired at the police party.

There could be two possibilities in such a situation, one could be of the shots being fired in the direction of the police party or taking aim at them and the other could be of the shots being fired in the air or in some other direction and not in the direction of the police "Party merely to create confusion for the; purpose of running away.

On the evidence of Inderjit Singh P.W. 1 himself it was a moonlit night but owing to the weather being. cloucly it was dark and light pistol shots had to be fired by Sub-Inspector Agya Ram on two occasions in order to provide sufficient light for seeing and identifying them.

The light provided by these pistol shots admittedly lasted only for 2 or 2t seconds. If the shots which are alleged to have been fired by Hazara Singh and Bhajan Singh had been fired at the time when there was light as a result of the firing of the li.!!ht pistol shots by Sub-Inspector Agya Ram then it could be said to have been established that the Deputy Superintendent of Police and the other witnesses could have seen . in which direction the fire arms were fired by Hazara Singh and

Bhajan Singh and !!heir statement could have been accepted !; hat A the shots had been fired at them. But from the evidence of Inderjit Singh as also of Sub-Inspector Agya Ram who actually fired the light pistol shots which provided the light on two occas.ions it is quite clear that the shots which were fired by Hazara Smgh and Bhajan Singh vx:re not fired during the few. seconds there was light as a result of the light pistol shots of Agya Ram. In other words. the shots which are stated .to have. been fired by the aforesaid two appellan!ts were fired in complete darkness when it was not possible for any member of the police party to see the direc• tion in which they were fired or the aim which was taken by Hazara Singh and Bhajan Singh. It is not possible to say from this evidence that Hazara Singh and Bhajan Singh fired the shots

in the direction of the police party or at them, and the possibility that the shots were fired in the air cannot be excluded. Thus the conviction under s. 307 of Hazara Sinh .and Bhajan Singh and

of the other appellants under s. 307 read\vith s. 149, Indian Penal Code cannot be maintained and they must be acquitted . of that charge. It is unfortunate th.at the judgment of the High Court is very sketchy and ithere is hardly any discussion or examination of all the above material facts.

As regards the conviction of the appellants under s. 148 of the Indian Penal Code we find it difficult to uphold the same.

According to that section whoever is guilty of roiting being armed with deadly weapons or with anything which used as -a weapon of offence, is lik<>..ly to cause death, shall be punished with imprisonment of either description for a term ''!iich may extend to three years, or with fine, or with both. Rioting is defined by s. 146 which provides that whenever force or violence

is used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly every member F of such assembly is guilty of the offence of rioting.

Section 349 gives the meaning of the word "force". The learned counsel for the Stare has not been able to show how any force or violence is proved to have been used by the appellants in prosecution of the common ob.iect of the un!awfµl assembly of which they were members. With the execption of the firing of the shots in a direction which cannot be determined no attemnt was made by any of the appellants to use any force or violence on any member of the police party. Consequently the conviction of the appellants under s. 148 must also be set aside.

As regards t}le conviction of Hazara Singh and. Bhajan Singh H under s. 25 of the Indian Arms Act it is most unfortunate that the witnesses who were produced with regard to the disclosure statements made by them and the recoveries effected at their

instance are of such a type that their evidence could never have been believed by any court. Lal Singh P.W. and Karnail Singh P. W. admitted that 'they had been joining in the police raids and had been appearing as witnesses for the police for the last 15 years.

Apart from that the statements made by them were so similar particularly with regard to t)le manner in which they happened to join the investigation that their whole evidence looks tutored and unconvincing. P.W.11 Hakam Singh admitted that 1Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment. Charan Singh, uncle of the two apnts had appeared as a witness against Pooran Singh in that case.

He was obviously an inimical witness. It is again surprising that the High Court in its very sketchy judgment had made no mention of these salient facts and has contended itself by saying that there was nothing on the record to indicate that the appel. lants had been falsely implicated.

The conviction of Hazara Singh and Bhajan Singh, therefore, cannot be maintained under s. 25 of the Arms Act.

In the result the appeals are allowed and the convictions and sentences of all the appellants are hereby set aside.

The bail bonds of the appellants who were ordered to be released on bait by this Court on July 15, 1968 shall stand discharged.

G.C.

Appeals allowed;

HAZARA SINGH & ORS

STATE OF PUNJAB

February 4, 1971

K. S. HEGDE

A. N. GROVER, JJ.

Penal Code

ss. 307, 146, 148 and 349

s. 349

s. 146

s. 148

Pakistan

s. 307

Indian Penal Code

s. 2S

Arms Act

s. 307

s. 149

I.P.C

s. 148

s. 307

s. 307

s. 149

s. 146

Section 349

s. 148

s. 25

R. L. Kohli

Harbans Singh

Grover

J.-Hazara Singh

Bachan Singh

Jarnail Singh

Bhajan Singh

Baj Singh

Balwant Singh

s. 148

21st and 22nd July 1964

Singh

Hhajan Singh

s. 307

Indian Penal Code

s. 149

Hazara Singh

s. 25

Arms Act

s. 148

Indian Penal Code

s. 307

Indian Penal Code

ss. 307 and 149

Indian Penal Code

Haara Singh

s. 25

Arms Act

J arnail Singh

Inderjit Singh

31st July 1964

Ajit Singh

Agya Ram

Darshan Sini

h. Nand Singh

Mula!41 Raj

Surjit Singh

Ajai Singh

Inderjit Singh

Lakhna

Ajit .Singh

Ajit Singh

Agya Ram

Harbhajan Singh

Hazara Smgh

s. 307

Hazara Sinh

Bhajan Singh

s. 307

s. 149

Indian Penal Code

s. 148

Indian Penal Code

s. 146

Section 349

s. 148

s. 25

Arms Act

Lal Singh

Karnail Singh

Hakam Singh

1Pooran Singh

Geja Singh

Charan Singh

Pooran Singh

s. 25

Arms Act

July 15, 1968