COAL MINES PROVIDENT FUND COMMISSIONER

DHANBAD & OTHER

J. LALA & SONS

February 13, 1976

[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J

Coal Mines Provident Fund and Bonus Schen1e Act 1948 (XLVI of 1948)- Seclion IOF and 78-Payn1e11t of dun1ages payable by the ernpioyer-W/lether the Coal Mines Prorident Fund Con1nlissioner should give a11 hearillf? to the en1ployer-Mea11i11g of the words '\wtch da1nages" ..... "as it 1nay think -fit to .inipose".

Section 1 OF of the Coal Mines Provident Fund and Bonus Scheme Act 1948 is a penal section under which for default in the payment of any Provi- dent Fund contribution, the Central Government may recover from such employer or person as the case may bi!, such damages, not exceeding 25% of the amount of arrears, as it may think fit to impose. ln respect of the period from July to September, 1968, the respondent employer was asked to pay a sum of Rs. 1455.50 as damages being 25o/o of the arrears of Provident Fund contributions by the appellant to which he filed an objection explaining the delay.

The employer's request for waiving the damages was negatived.

The writ application of the employer against that order was allowed by the High Court on two grounds, riz. (i) that the computation of damages should arise upon consideration of the facts and circumstances, and (ii) the authorities should have given an opportunity to the employer to represent the case.

Dismissing the appeal by special leave, the Court, HELD: (1) The provisions contained in s. 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and seco_nd, for this purpose he may conduct such enquiry as he may deem necessary.

Therefore, an enquiry is contemplated.

Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case.

The provision in s. 1 OF of the Act also indicates that determination of damages is not a mechanical process.

The words of importance in s. lOF of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to imnose".

Here the two important features are these : "First the words of importance are "damages not exceeding 25%" show that the determination of damages is not an inflexible application of a rigid formula.

Second, the words "as it may think fit to impose" in s. 10F show that the authorities are required to apply their mind to the facts and circumstances of the case.

[368A-C]

(2) When a body or authority has to determine a matter involving rights judicially, the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests.

[368E-F]

Indian Sugars & Manufacturers l, td. v. Amravati Services Co-operative

Society Ltd. & Anr. fl9761 2 S.C.R. 740 and State of Puniab v. K. R. Erry & G Sobhag Rai Mehta [1973] 2 S.C.R. 405, applied.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1363 of I 974.

Appeal by special leave from the judgment and order dated the 20th May, 1971 of the Patna High Court at Patna in C.WJ.C. No. 306 of 1969.

L. N. Sinha (Ind Giri.ih Chandra, for the appellants H

S. N. Mishra, B. P. Singh and A. K. Srivastava, for the respondents.

9-L522SC!/76

A The Judgment of the Court was delivered by

RAY, C.J.-This appeal by special leave turns on the question whether the Coal Mines Provident Fund Commissioner is to hear an employer before making an order requiring the employer to pay damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1948 (hereinafter referred to as the Act).

B The employer being the respondent to this appeal was directed by

a letter dated 3 I 4 January, 1969 to pay provident fund contributions amounting to Rs. 5821.21 for the months of July to September, 1968 and damages at the rate of 25 per cent on the above dues amounting to Rs. 1455.50. The employer was required to pay damages under the provisions of section 1 OF of the Act.

The employer filed an objection explaining the circumstances under which there was delay in the payment of provident fund contributions.

The employer prayed that damages might not be imposed at the rate of 25 per cent for the delay in payment.

The employer paid the provident fund contributions.

The employer was informed that damages charged on the delayed payments of provident fund contribution could not be waived.

The employer thereafter filed an application in the High Court for an order that the demand notice be quashed.

The High Court acceded to the application of the employer.

The High Court gave two reasons.

First, that the computation of amount of damages should arise upon consideration of facts and circumstances and a mechanical computation of damages is not contemplated.

Second, the authorities should have given opportunity to the employer to represent the case.

The High Court did not accept the contention of the employer that section lOF of the Act suffered from the vice of excessive delegation.

The provision contained in section 1 OF of the Act are as follows:-

"Where an employer makes default in the payment of any contribution or bonus or any charges payable by him under any scheme framed under this act, or where any person who is required to transfer provident fund accumulations in accordance with the provisions of section 3D makes default in the transfer of such accumulations, the Central Government may recover from such employer or person, as the case may be, such damages, not exceeding twenty-five per cent of the amount of arrears, as it may think fit to impose."

The Central Government under sub-section (1) of section lOC of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed thereunder, to the Coal Mines Provident Fund Commissioner or any other officer.

The Central Government in exercise of the power conferred under section lOC(l) of the Act by notification dated 1st October,

COAL MINES COMMR. V. J. LALA (Ray, C.J.) 36 7

1966 directed that powers exercisable by it under sections lOA and A lOF of the Act and specified in column ( 1) of the Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C ( 1) of the Act. There is a Schedule attached to the notification where sliding scale of damages has been fixed by the Central Government under section 1 OF of the Act.

The Schedule

B attached to the notification is as follows :-

"Sliding rate of recovery of damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1949."

S.No. of Period of default default during One Over Over Over Over Over the year. month one two three four five or less month months months months months up to up to up to up to two three four five months months months months

2 3 4 5 6 7

!st default 2%of 5% of 18% of 15% of 20%of 25%of arrears arrears arrefili arrears arrears arrears 2nd default 5% " 10% .. 15% .. 20%,, 25%" 25%" 3rd default 10% ,, 15% " 20% .. 25% ,, 25%" 25% " 4th default 15% .. 20%" 25% .. 25% .. 25% .. 25% " 5th default 20% ,, 25%" 25%" 25% " 25%" 25% ,. 6th or subsequent 25% " 25% .. 25%" 25%" 25% .. 25% " default

Under section 78 of the Act the Coal Mines Provident Fund Commissioner or any other officer authorised in that behalf by the Central Government may, by order, determine the amount due from any employer under any provision of this Act or any scheme framed thereunder and for this purpose may conduct such enquiry as he may deem necessary.

Section 78 (3) also contemplates giving of reasonable opportunity to represent the case.

The High Court held that the provisions of section 78 are attracted in the case of an order relating to determination of damages for delay in payment of contribution under the Act.

The Solicitor General contended that section 78 of the Act does not apply for two reasons.

First, section 78 of the Act would be applicable only where liability is to be determined. Neither liability to pay nor default in payment is disputed in the present case. Second, under section 1 OF of the Act the amount of damages is quantified and a

personal hearing is not necessary because the employer has said everything in his representation and an order for payment of damages. is not one of punishment.

The provisions contained in section 7 8 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary.

Therefore, an enquiry is contemplated .. Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case. The provisions in section 1 OF of the Act also indicate that detennination of damages is not a mechanical process.

The. words of importance in section 1 OF of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose".

Herc the two important features are these.

First, the words of importance arc "damages not exceeding 25 per cent".

These words show that the determination of damages is not an inflexible application of a rigid formula.

Second, the words "as it may think fit to impose" in section 1 OF of the Act show that the -authorities are required to apply their mind to the facts and circumstances of the case.

This Court in The India Sugars and Refineries Ltd. v. Amravathi Service Co-op. Society Ltd. & Anr. etc.(1) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated.

A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that additional price would be paid.

The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved".

When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests.

Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. (See State of Punjab v. K. R.

Erry & Sobhag Rai Mehta. ( 2)

The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were determined.

The appeal is, therefore, dismissed with costs.

s. R.

Appeal dismissed.

COAL MINES PROVIDENT FUND COMMISSIONER, DHANBAD & OTHER

J. LALA & SONS

February 13, 1976

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, JJ

Section 1

Central Government

s. 78

Section 78(3)

s. 1

s. 10F

[1973] 2 S.C.R. 405

CIVIL APPELLATE JURISDICTION

L. N. Sinha

H

S. N. Mishra

B. P. Singh

A. K. Srivastava

RAY

section 1

section 1

section 3D

Coal Mines Provident Fund Commissioner

COAL MINES COMMR.

V. J. LALA

Ray

OA and A lOF of the Act

section 3C

section 1

section 78

Section 78

section 78

section 78

section 78

section 1

section 7

Section 78(3)

section 1

section 1

section 1


WORKMEN OF MIS FIRESTONE TYRE & RUBBER CO.

OF 11\IDIA (P) LIMITED

FIRESTONE TYRE & RUBBER COMPANY

February 13, 1976

(V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.J

' Lay-off-Meaning of-Section 2(kkk) of the Industrial Disputes Act (Act

XIV of 1947), 1947.

Lay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act (Act XIV of 1947), 1947, to lay-off workmen-Section 2(kkk), 25A, 25B(2) (i) and 25C of the Act-Scope of-Effect of s. 251.

Conzpensation-"Lay-off compensation"-Whether laid-off workmen who do 1101 come under Chapter VA of the Industrial Disputes Act, 1947 by virtue of s. 2SA are entitled to any co1npensation.

Industrial Disputes Act (Act XIV of 1947), 1947-Section 10(1), 33(c)(2), powers of the tribunal /court to award lay-off conipensation.

The respondent-company manufacturing tyres in Bombay, due to the general strike in its factory between the oeriod 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lav-off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office.

The workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively.

The workmen were not given their wages or compensation for the period of lay-off.

An industrial dispute was raised and referred to the tribunal by the Delhi Administration even when the lay-off was in operation. The Presiding Officer of the Additional Industrial Tribunal, Delhi held that the work.men were not entitled to any layoff compensation.

The workmen in Madras filed petitions under s. 33C(2) of the Industrial Disputes Act for computation of their wages for the period of their lay-off.

The Presiding officer of the Additional Labour Court. Madras, holding that the lay-off was justified, dismissed their applications.

On appeal to this Court by special leave, HELD : ( 1) The sim!)le dictionary meaning according to the concise Oxford Dictionary of the term "lay-off' is "period during which a workman is temporarily discharged".

Lay-off means the failure, refusal or inability of employer on account of contingencies mentioned in cl. (kkk) of s. 2 of the Industrial Disputes Act, 1947, to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment. It has' been called a temporary discharge of the workmen or a temporary suspension of his contract of service.

Strictly speaking, it is not so.

It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment.

Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in cl. (kkk) of s. 2 is not a temporary discharge of the workman.

[372A, 374A, B, G] Goya Cotton & Jute Mith Ltd. v. Gaya Cotton & Jute Mills Labour L'nion

J l 9521 IT Labour Law Journal 37, referred to.

(2) (i) That the power to lay-off a workman is inherent in the definition in .:l. (kkk) of s. 2 is not correct, since no words in the definition clause to indicate the conferment of any power on the employer to lay-off a \Vorkman can be found.

His failure or inability to give employment, by itself militates against the theory of conferment of power.

No section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to lay-off a workman.

TQere is no provision in the Act specifically providing that an employer would be entitled to lay-off his workmen

for the reasons prescribed by s. 2 (kkk). Such a power, therefore, must be found out from the terms of contract of service or the Standing Orders governing the Establishment.

[374 B-G]

(ii) In the instant case, the number of workmen being only ~3, there being no Standing Orders certified under the Industrial Employment (Standing Orders) Act (Act 20 of 1946), 1946, and there being no contract of service conferring any such right of lay-off, the inescapable conclusion that the workmen were laid-off without any authority of law or the power m the management under ll the contract of service.

[374 G-H] The Management of Hotel [mperial, New Delhi & others V. Hotel Workers' Union [1960] 1 S.C.R. 476 and V. P. Gindroniya v. State of Madhya Pradesh & Ors. [1970] 3 S.C.R. 448, referred to.

Veiyra (M.A.) Fernandez

(C.P.) and another, [19561 1 Labour La\V Journal, 54 7. reversed.

Workmen oj Dewan Tea Estate and Ors. v. The Management [19641 5 C S.C.R. 548, applied.

Sanghi Jeevarai Ghewar Chand & Ors. v. Secretary, Madras Chillies. Grains Kirana Merchants Workers' Union and Anr. [1969] 1 S.C.C. 366, distinguished.

(3) If the terms of a cop.tract of service or the statutory terms engrafted in the Standing Orders do not give the power to lay-off to the employer, the employer would be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the fu11 wages of the concerned workman.

If, however, the terms of employment confer a right of lay-off on the management. then in the case of an Industrial Establishment which is governed by Chapter VA, compensation will be payable in accordance wit& the provisions contained therein.

But compensation or no compensation will be payable in the case of an Industrial Establishment to which the provisions of Chapter VA do not apply and it will be so as per the terms of empJ9yment. [377-B-Dl

Kanhaiya Lal Gupta v. Ajeet Kumar Dey and others, [1967] II Labour Law Journal. 761 and Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others, [1972] 1 Labour Law Journal, 284, approved.

K. T. Rolling Mills Private Ltd. and another v. M. R. Meher and others, A.l.R. 1963 Bombay 146. reversed.

(4) In a reference under s. 10(1) of the Act. it is ooen to the tribunal or court to award coIIl{Jensation which may not be equal to the full amount of basic wages and dearness allowance.

But no such oower exists in the Labour F Court under s. 33C(2) of the Act.

Only the money due has to be quantified.

If the lay-off could be held to be in accordance with the terms of contract of service. no com!Jensation at all could be allowed under s. 33C(2) of the Act, while in the reference some compensation could be allowed. [378-B-C]

[In the instant case as regards the workmen in the Delhi case. the court held 75% of the basic wages and dearness a11owance would be the adequate compensation for the lay-off period.]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2307 of 1969

(Appeal by Special leave from the Award dated the ls! April 1969 of the Addi. Industrial Tribunal, Delhi in I. D. No. 83 of 1968) and Civil Appeals Nos. 1857-1859/70. (Appeals by Special Leave from the Judgment and Order dated the 17th November 1969 of the Addi. Labour Court. Madras in claim Petition Nos. 627 and 629 of 1968).

M. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals.

S. N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857- 59/70) for respondents in both the appeals.

I The Judgment of the Court was delivered by

UNTWALIA, J.-As the main question for determination in these t' appeals by special leave is common, they have been heard together and

are being disposed of by this judgment.

Civil Appeal No. 2307 of 1969

The respondent company in this appeal has its Head Office at Bombay. It manufactures tyres at its Bombay factory and sells the tyres and other accessories in the markets throughout the country.

The company has a Distribution office at Nicholson Road, Delhi.

There was a strike in the Bombay factory from 3rd March, 1967 to !6th May, 1967 and again from 4th October, 1967. As a result of the strike there was a short supply of tyres etc. to the Distribution office.

In the Delhi Office, there were 30 employees at the relevant time. 17 workmen out of 30 were laid-off by the management as per their notice dated the 3rd February, 1968, which was to the following effect:

"Management is unable to give employment to the following workmen due to much reduced production in the company's factory resulting from strike in one of the factory departments.

These workmen are, therefore, laid-off in accordance with law with effect from 5th February, 1968."

The lay-off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April, 1968.

The workmen were not given their wages or compensation for the period of lay-off.

An industrial dispute was raised and referred by the Delhi Administration on the 17th April, 1968 even when the layoff was in operation.

The reference was in the following terms :

"Whether the action of the management to 'lay-off' 17 workmen with effect from 5th Feb. 1968 is illegal and/or unjustified, and if so, to what relief are these workmen entitled?"

The Presiding Officer of the Additional Industrial Tribunal, Delhi has held that the workmen are not entitled to any lay-off compensation.

Hence this is an appeal by their Union.

We were informed at the Bar that some of the workmen out of the batch, of 17 have settled their disputes with the management and their cases were not represented by the Union in this appeal.

Heuce this judgment will not affect the compromise or the settlement arrived at between the management and some of the workmen.

The question which for our determination is whether the management had a right to lay-off their workmen and whether the workmen are entitled to claim wages or compensation.

The simple dictionary meaning according to the Concise Oxford Dictionary of the term 'lay-off' is "period during which a workman is temporarily discharged." The term 'lay-off' has been wellknown in the industrial arena.

Disputes were often raised in relation to the 'lay-off' of the workmen in various industries. Sometime compensation was awarded for the period of lay-oft but many a time when the lay-off was found to be justified workmen were not found entitled to any wages or compensation. In Gaya Cotton & lute Mills Ltd. v. Gaya Cotton & Jute Mills Labour Union( 1) the standing order of the company provided that the company could under certain circumstances "stop any machine or machines or department or departments, wholly or partially for any period or periods without notice or without compensation in lieu of notice." In such a situation for the closure of the factory for a certain period, no claim for compensation was allowed by the Labour Appellate Tribunal of India. We are aware of the distinction betwen a lay-off and a closure. But just to point out the history of the law we have referred to this case.

Then came an amendment in the Industrial Disputes Act, 194 7 -hereinafter referred to as the Act-by Act 43 ot 1953. [n section 2 clause (kkk) was added to say:

"lay-off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

Explanation-Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause :

Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day :

Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day."

(I) [19521 II Labour Law Journal, 37.

By the same Amending Act, Chapter VA was introduced in the Act to provide for lay-off and retrenchment compensation. Section 2SA excluded the Industrial Establishment in which less than SO workmen on an average per working day had been employed in the preceding calendar month from the application of Sections 2SC to 2SE. Section 25-C provides for the right of laid-off workmen for compensation and broadly speaking compensation allowable is 50% of the total of the basic wages and dearness allowance that would have been payable to the workman had he not been laid-off. It would be noticed that the sections dealing with the matters of lay-off in Chapter VA are not applicable to certain types of Industrial Establishments. The respondent is one such Establishment because it employed only 30 workmen at its Delhi Office at the relevant time. In such a situation the question beset with difficulty of solution is whether the laid-off workmen were entitled to any compensation, if so, what'?

We shall now read section 25-J. It says:

"(!) The provisions of this Chapter shall have effect notwithstanding anything inconsisent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 : Provided that where under the provisions of any other Act or Rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.

For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to layoff and retrenchment shall be determined in accordance with the provisions of this Chapter."

The effect of the provisions aforesaid is that for the period of lay-off in an Industrial Establishment to which the said provisions apply, compensation will have to be paid in accordance with section 25C. But if a workman is entitled to benefits which are more favourable to him than those provided in the Act, he shall continue to be entitled to t]je more favourable benefits. The rights and liabilities of employers and workmen in so far as it relate to lay-off and retrenchment, except as provided in section 25J, have ot to be determined in accordance with the provisions of Chapter VA.

The ticklish question which does not admit of an easy answer Is as to the source of the power of management to lay-off a workman. The employer has a right to terminate the services of a workman.

Therefore, his power to retrench presents no difficulty as retrenchment means the termination by the employer of the service of a workman for any reason whatsoever as mentioned in clause ( oo) of section 2 of the

Act. But lay-off means the failure, refusal or inability of employer on account of contingencies mentioned in clause (kkk) to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment. It has been called a temporary discharge of the workman or a temporary suspension of his contract of service.

Strictly speaking, it is not so. It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment.

Mr. S. N. Andley submitted with reference , o the explanation and the provisions appended to clause (kkk) that the power to lay-off a workman is inherent in the definition. We do not find any words in the definition clause to indicate the conferment of any power on the employer to lay-off a workman.

His fail., re or inability to give employment by itself militates against the theory of conferment of power. The power to lay-off for the failure or inability to give employment has to be searched somewhere else. No section in the Act confers this power.

There are two small matters which present some difliculty in the solution of the problem.

In explanation ( 1) appended to sub-section

(2) of section 25B the words used are :

"he has been laid-off under an agreement or as permitted by standing order made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment." indicating that a workman can be laid-off under the Industrial Disputes Act also.

But it is strange to find that no section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to Jay-off a workman.

Clause (ii) of section 25E says :

"No compensation shall be paid to a workman who has been laid-off-- If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day." This indicates that there is neither a temporary discharge of the workman nor a temporary suspension of his contract of service. Under the general law of Master and Servant. an employer may discharge an employee either temporarily or premanently but that cannot be without adequate notice.

Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause (kkk) of section 2 is not a temporary discharge of the workman. Such a power, therefore, must be found out from the terms of contract of service or the Standing Orders governing the establishment. In the instant case the number of workmen being only 30, there were no Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946. Nor was there any term of contract of service conferring any such right of lay-off. In such a situation the conclusion seems to be inescapable that the workmen were laid-off without any authority of Jaw or the power in the management under the contract of service. In Industrial Establishments where there is a power in the management to lay-off a workman and to which the

provisions of Chapter VA apply, the qestion of payment of compensa- A tion will be governed and determined by the said provisions. Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay-off compensation. This case, therefore, goes out of Chapter VA. Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10 ( 1 ) of the Act, it is open to the Tribunal or the Court to a ward a lesser sum finding the justifiability B of the lay-off.

In The Management of Hotel Imperial, New Delhi & others v .

Hotel Workers' Union(') in a case of suspension of a workman it was said by Wanchoo, J. as he then was, delivering the judgment on behalf of the Court at page 482:

"Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work. he will have to pay wages during the so-called period of suspension. Where, however. there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay."

The same principle was reiterated in V. P. Gindroniya v. State of Madhya Pradesh & Ors. (2) We have referred to the suspension cases because in our opinion the principles governing the case of lay-off arc very akin to those applicable to a suspension case.

In Veiyra (M. A.) v. Fernandez (C. P.) and another(') a Bench of the Bombay High Court opined that under the general law the employer was free to dispense with the services of a workman, but under the Industrial Disputes Act he was under an obligation to lay him off; that being so, the action of lay-off by the employer could not be questioned as being ultra vires.

We do not think that the view expressed by the Bomby High Court is correct.

There is an important decision of this Court in Workmen of Dewan Tea Estate and Ors. v. The Management(') on which reliance was placed heavily by Mr. M. K. Ramamurti appearing for the appel)ant and also. by r. Andley for the respondent. One of the quest10n for consideration was whether section 25C of the Act recognises the common law right of the management to declare a lay-off for reasons other than those specified in the relevant clause of the Standing Order. While considering this question, Gajcndragadkar, J. as he then was. said at page 554:

"The question which we are concerned with at this stage is _. jh'hether _it__ ca~_Jie said that s.25C recognises a common law

(I) [1960] 1S.C.R.476.

(3) [1956] 1 Labour Law Journal, 547.

right of the industrial employer to lay off his workmen. This question must, in our opinion, be answered in the negative.

When the laying off of the workmen is referred to in s. 25C, it is the laying off as defined by s. 2 (kkk) and so, workmen who can claim the benefit of s. 25C must be workmen who are laid off and laid off for reasons contemplated by s. 2 (kkk); that is all that s. 25C means.

Then follows a sentence which was pressed into service by the respondent. It says :

"lf any case is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and layoff would be permissible only where one or the other of the factors mentioned by s. 2 (kkk) is present, and for such lay off compensation would be awarded under s. 25C." In our opinion, in the context, the sentence aforesaid means that if the power of lay-off is there in the Standing Orders but the grounds of lay-off are not covered by them, rather, are governed by the provisions of the Act, then lay-off would be permissible only on one or the other of the factors mentioned in clause (kkk). Subsequent discussions at pages 558 and 559 lend ample support to the appellant's argument that there is no provision in the Act specifically providing that an employer would be entitled to lay-off his workmen for the reasons prescribed by section 2 (kkk).

Mr. Andley placed strong reliance upon the decision of this Court in Sanjhi leevraj Ghewar Chand & Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Workers' Union & Anr.( 1) The statute under

COl)sideration in this case was the Payment of Bonus Act, 1965 and it was held that the Act was intended to be a comprehensive and exhaustive Jaw dealing with the entire subject of bonus of the persons to whom it should apply. The Bonus Act was not to apply to certain Establishments.

Argument before the Court was that bonus was. payable de hors the Act in such establishment also.

This argument was repelled and in that connection it was observed at page 381 :

"It will be noticed that though the Industrial Disputes Act confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for investigation and settlement of disputes raised thereunder.

There was, therefore, no question of Parliament having to delete or modify item 5 in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus thereunder by any categorical exclusion in the present case." And finally it was held at page 385 :

"Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the

(I) [1969] 1 s.c.c. 366.

r ,

WORKMEN v. FIRliSTONE TYRE & RUBBER co. (Untwalia, J.) 377

object of the Act and its scheme, it is not possible to accept the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the Industrial Disputes Act or other corresponding law." In a case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory term• engrafted in the Standing Orders do not give the power of lay-off to the employer, the employer will be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen.

If. however, the terms of employment confer a right of lay-off on the management, then, in the

case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein.

But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment.

In Kanhaiya Lal Gupta v. Ajeet Kuniar Dey and others(1) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer bas no right to lay-off a workman without paying him wages.

A learned single Judge of the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others.(2 ) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another v. M. R.

Meher and other(') that it is not open to the Industrial Tribunal under the Act to award lay-off compensation to workmen employed in an 'Industrial Establishment' to which S. 25-C does not apply, is not correct. The source of the power of the employer to lay-off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment.

In the case of the Delhi office of the respondent the Tribunal bas held that the lay-off was justified. It was open to the Tribunal to award a lesser amount of compensation than the full wages. Instead of sending back the case to the Tribunal, we direct that 75% of the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay-off. As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management.

Civil Appeals 1857-1859 (NL) of 1970 In these appeals the facts are identical to those in the other appeal.

There were only 33 employees in the Madras Office of the respondent company. Certain workmen were laid-off for identical reasons from the

(I) [1957] II Labour Law Journal, 761.

(2) [1972] I Labour Law Journal, 284.

(3) A.T.R. 1963 Bombay, 146.

5th February, 1968. The lay-off was lifted on the 29th April, 1968.

The concerned workmen filed petitions under section 33C (2) of the Act for computation of their wages for the period of lay-off. Holding that the lay-off was justified and valid the Presiding Officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay-off.

Hence these appeals.

In a reference under section 10 ( 1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under section 33C (2) of the Act.

Only the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C (2) of the Act, while, in the reference some compensation could be allowed.

Similarly on the view expressed above that the respondent company had no power to lay-off any workmen, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay-off.

D For the reasons stated above all the appeals are allowed. In Civil Appeal No. 2307 /1969 in place of the order of the Tribunal, an order is made on the lines indicated above. And in Civil Appeals 1857 to 1859/1970 the orders of the Labour Court are set aside and the cases of the appellants are remitted back to that Court for computation and quanfification of the sums payable to the concerned workmen for the period of lay-off. There will be no order as to costs in any of the E appeals.

S.R.

Appeals allowed:- Orders in CA 2307/69 mocFlicd: CAs 1857-1859/70 remitted hock to the Tribunal.

WORKMEN OF M/S FIRESTONE TYRE & RUBBER CO. OF INDIA (P) LIMITED

FIRESTONE TYRE & RUBBER COMPANY

February 13, 1976

V. R. KRISHNA IYER

N. L. UNTWALIA, JJ

Section 2(kkk)

Industrial Disputes Act

Section 2(kkk), 25A, 25B(2)

s. 251

s. 2S

Industrial Disputes Act

Section 10(1), 33(c)(2)

Bombay

4th October 1967

Delhi

Madras

22nd April 1968

29th April 1968

Delhi Administration

Additional Industrial Tribunal, Delhi

s. 33C(2)

Industrial Disputes Act

Additional Labour Court. Madras

s. 2

Industrial Disputes Act, 1947

s. 2

s. 2

s. 2

[1960] 1 S.C.R. 476

[1970] 3 S.C.R. 448

s. 10(1)

s. 33C(2)

s. 33C(2)

CIVIL APPELLATE JURISDICTION

M. K. Ramamurthi

Jitendra Sharma

Janardan Sharma

S. N. Andley

Rameshwar Nath

B. R. Mehta

UNTWALIA

3rd March, 1967

to !6th May, 1967

4th October, 1967

3rd February, 1968

5th February, 1968

22nd April, 1968

17th April, 1968

5th Feb. 1968

Labour Appellate Tribunal of India

section 2

Chapter VA was introduced in the Act

Section 2S

Sections 2S

Section 25

section 25

section 25C

section 25J

section 2

S. N. Andley

section 25B

Industrial Disputes Act

section 25E

section 2

section 10

Wanchoo

Bombay High Court

Industrial Disputes Act

Bomby High Court

M. K. Ramamurti

r. Andley

section 25C

Gajcndragadkar

s. 25C

s. 2

s. 25C

s. 2

s. 25C

s. 2

s. 25C

section 2

Andley

Payment of Bonus Act, 1965

Industrial Disputes Act

Parliament

Third Schedule

Industrial Disputes Act

Industrial Disputes Act

Allahabad High Court

Punjab and Haryana High Court

S. 25

section 33C

Additional Labour Court, Madras

section 10

section 33C

section 33C

section 33C(2)


STATE OF UTTAR PRADESH v.

RAM KISHAN & OTHERS

February 13, 1976

37~

[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.]

Appeal by State against acquittal-I11terference with the deisio_n of the High Court by the Supreme Court under Art. 136 of the Constltullon-lf the High Court reads the prosecution evidence by introducing an extraneous gloss for the purpose of its conclusion, resulting in failure of justice. this Court should interfere.

"Material prejudice'' to the acc11.ed-Alteratio11 of the conviction to section 326/34 in appeal when the original charge and conviction were under s. 302/149 is not a "nwterial preiudicl'"-Criminal Procedure Code (Act V of 1898- Sections 222, 223 and 225) The accused and the deceased are close relatives. as. per the following pedigree:-

Ram Khelawan (2)

Vishwanath Shankar

(PW)SI S2

Sheo Murat (Acd) SI

Shyam Lal (Acd)

Ram Kishan (Acd) S2

Ramcharan (1)

Bairam (3)

Kanker

Shobha (Acd) S3

Khuddi (4)

Shivnath Jagannath

(PW2)

MotiLal (Acd) S4

Bhagwantia (Sister) DI

Vishwanath, Kanker, deceased Channu, Jagannath, accused Ram Kishan E along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house.

On March 18, 1969, Vishwanath tried to pacify the quarrel between his brother Kankar's wife and Bhagwantia his cousin-sister and when she refused to heed to his words, he gave one or two slaps to Bhagwantia. The real brothers of Bhagwantia viz.. Ram Kishan, Shobha. Moti Lal and Shyamlal s /o Ram Krishan-all accused, went the next day to Vishwanath's house and demanJed an explanation for beating Bhagwantia and wanted a settlement. Since Vishwanath said there was nothing in fact to be settled, Rani. Kishan :nstigated the F rest to beat Vishwanath. Shobha caught hold of Vishwanath while Sheo Murat dealt knife blows which resulted in two grievous incised injuries. Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and h\'O abrasions to which he succumbed. On the above version of the incident by the injured Vishwanath, PW I in the complaint and in evidence at the trial, which was unerringly corroborated by PWs 9, 10. 13 and unshaken in the cross-examination, the Sessions Court convicted Sheo Murat under s. 302/149 I.P.C. for G causin?: the death of Channu and under s. 307 /149 I.P.C. for attemnting to murder Vishwanath, though the charges were under s. 302, 307 and 148-, I.P.C., and sentenced him to death under s. 302, I.P .C .. seven years' rigorous imprisonment under s. 307 I.P .C. and to two years' rigorous imprisonment under s. 148. l.P.C.

Accused Ram Kishan. Shobha. Moti Lal and Shyamlal, the respondents in this Court were convicted under s. 302/149 I.P.C., under s. 307 read with s. 149 I.P.C. and s. 147 l.P.C. They were sentenced to one year's rigorous imprisonment under s. 147

I.P.C. to seven vears' rigorous imprisonment under s. 307 /149 I.P.C. and to imprisonment for life H under s. 307 /149.

The accused appealed to the High Court and there was a reference under s. 374 Cr. P.C. for the confirmation of death sentence.

By a common judgment, the High Court (i) set aside the conviction and sentences

of all the present respondents and also that of Shco Murat under s. 148, 1.P.C.:

(ii) maintained the convictions under s. 307 l.P.C. and also under s. 302 I.P.C'.. but altered the death sentence to one of life imprisonment and rejected the reference.

This Court rejected the State's special leave petition against the alteration of the death sentence but granted s!)ecial leave against the acquittal of the respondents alone and issued non-bailable warrants.

Allo¥.ing the appeal, and convicting the .<lccused and sentencing them to different terms with the benefit of set off under s. 428, Cr.P.C. (Act 2 of 1973), the Court,

HELD : ( 1) It is well-established that in an appeal gainst acquittal, this Court is slow to interfere under Art. 136 of the Constitution with the decision of the High Court. The possibility that it may just be reasonably feasible for the Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal.

[383-D-E]

(2) Jn the instant case, the injuries on the two victims are "res ipso loquitor" and tell-tale.

The prosecution case that Vishwanath was caught by Shobha and Channu \Vas caught hold of by Motilal and Shyamlal is corrobor<.1ted by the medical evidence.

None of the stab ¥.:ounds are on any Dart of the hand'> or arms which would have necessarily been caused. if the victims were not caught hold of by a person or persons, while they were athtcked with a knife.

It would be unnatural to expect that the victims \vould not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands.

And in that process if they were not caught hold of by some person or persons, there would have been one or two injurie~ on the hands or arms.

The High Court completely ignored this most relevant and important aspect in the prosecution. when it observed :

"It is not at all dear from the prosecution evidence whether Shobha kept on holding Vishwanath till the very end i.e. till both the knife _injuries had been caused to him, or whether he let go his hold as soon

as Sheo Murat started the attack".

"There is nothing in the prosecution evidence to indicate \vhat order those injuries were caused to Channu and \Vhether or not the injuries on the back were caused first". ' This erroneous view taken by the High Court of the prosecution evidence adduced in this case and the introduction by the High Court of an extraneous gloss for the purpose of its conclusion viz .•

"After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses". resulted in failure of justice. [383G-H, 384C-E]

(3) No prejudice is caused in the instant case to the accused by alteration of the conviction to section<; 326/34 although they had been originallv charged under s. 302/149 and ss. 307 /149, I.P.C. on the particular facts-of the prosecu- . tion case which clearly pointed to participation by the respective accused with the two attacks and which they had to meet in the trial. r385F-G]

CRIMINAL APPELLATE JURISDICTION : CRIMINAL APPEAL No. 253 of 1971.

Appeal by Special leave from the Judgment and Order dated ( 11.2.1 Q71 of !he Allahabad High Court in Criminal ".npeal "lo. 1285/7('.

0. P. Rana, for the appellant • Shiv Pujan Singh, for the respondent

The Judgment of the Court was delivered by

U.P. STATE V. RAM K!SHAN (Goswami, I.) 881

GoswAMI, J.-This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal. of the High Court of Allahabad.

Bairam, Ram Khelawan and Rhuddi are three sons of one Ram Charan.

The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Bairam.

Accused Shea Murat, Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan. Accused Shyam Lal is the son of accused Ram Kishan.

Shiv Nath (PW 2) and Jagan Nath are sons of Bhuddi.

Thus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur.

In this ancestral hcuse Vishwanath, Kankar, Chhannu, Jagan Nath and accused Ram Kishan along with his mother and married younger sister Bhagwantia resided.

All others along with the rest of the four accused lived in a nearby separate house.

On March 18, 1969, certain quarrel ensued between Bhagwantia and Kankar's wife Patia.

Vishwanath tried to pacify both the quarrelling women.

Since Bhagwantia did not heed to Vishwanath's words, the latter gave her one or two slaps.

Ram Kishan and his brothers were not in the village on that day but learning about this incident on the following day accused Sheo Murat, Ram Kishan, Shobha, Moti Lal and Shyam Lal went to Vishwanath's place at about 7.00 or

8.00 P.M. What followed may be described in the words of the in jured Vishwanath :

"On the next day at 7 or 8 P.M. I was sitting at the door of my osara. My younger brothers, Kankar and Chhannu, were sitting at a short distance from me at the weU.

Sheonath, my cousin, was also sitting near Kankar and Chhannu.

A burning lantern was hanging from a bamboo pole outside the osara; and there was sufficient light from it.

Ram Kishan, Shobha, Shea Murat, Shyam Lal and Moti, accused present in the court, came there, Ram Kishan asked from me as to why I had slapped Bhagwantia and that I should come out and settle np.

I stood up and said, "Brother, what will you settle up".

At this Ram Kishan instigated his companions saying, "Beat the salas".

At once Shobha caught hold of my hand and Sheo Murat dealt knife-blows to me.

Chhannu, my younger brother, came to save me, whereupon Shyam Lal and Moti caught hold of him and Shea Murat started giving knife-blows to him.

On hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them.

Chhannu and I fell down on sustaining injuries.

Then all the five accused persons ran away with the knife."

What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9), Phool Chand (PW 10)

and Sohan (PW 13). The story given by these witnesses remains H absolutely unshaken in the scanty cross-examination by the defence.

Indeed there was little or no cross-examination with regard to the incident itself.

1D-1.522SCI /76

Deceased Chhannn had the following external injuries on his person as stated by Dr. U. P. Singh who held the autopsy :

(1) Incised stab wound t Xl/3", on right side chest, l"

medical to right nipple going into the chest cavity.

(2) Incised stab wound t" X t" X 1" lo the right of left nipple and 1" below it, going into the chest cavity. ( 3) Incised stab wound t" X !"abdominal cavity deep, on lower part of right side abdomen. ( 4) Incised stab wound t" X t" on lower part of abdomen,

3" above the joint of hip-bones. ( 5) Incised stab wound t" X t" X lt" deep, on left hip. ( 6) Incised stab wound t"X f' chest cavity deep, on left side back, 6" below scapula. ( 7) Abrasion Y' X t" on lateral aspect of right elbow.

(8) Abrasion t" X t" on lateral aspect of right hand.

Internal examination revealed that the cartilage of fifth rib had been cut under injury No. (3).

There were punctured wouuds in the chest cavity in relation to injury Nos. (1), (2) and (6). Right vertrical of heart had a punctured wouud !" X t" and the pericardia! cavity contained blood.

The upper lobe of left lung had a punctured \Vound t'' X t" in relation to injury No. 2.

In the opinion of the Doctor death was due to shock and haemorrhage resulting from injuries to heart and lungs.

Another Doctor Siddiqui (PW 5) found the following injuries on the person of Vishwanath :-

( 1) Incised wound t" X t" X H" deep, on front side of lower part of neck, directed downwards, backwards and leftwards.

The wound was in the middle of the neck and 1" above the bone.

On coughing air passed through the wound.

(2) Incised wound t"Xt"X3" or more than this, abdominal cavity deep, H" above and to the left of umbilious.

Direction of wound was backwards, slightly upwards and towards centre of abdomen.

The injuries were fresh and described by the Doctor as dangerous.

G All the five accused were charged under section 302/149 IPC for causing the death of Chhannu and also under section 307 /149 IPC

for attempting to murder Vishwanath.

While Sheo Murat was charged under section 149 IPC the other four accused were charged ( also under section 14 7 IPC.

The Sessions Judge convicted accused Sheo Murat under section 148, 307 and 302 IPC.

He was sentenced to death under section 302 IPC, to seven years rigorous impri- H sonment under section 307 IPC, and to two years rigorous imprison- ; ment under section 148 IPC.

Accused Ram Kishan, Shobha. Moti Lal and Sh yam Lal (the present respondents) were convicted nuder section 302/149 IPC, section 307 read with section 149 and section

U.P. STATE v. RAM KISHAN (Goswamz, J.) 3 83

147 IPC.

These four accused were sentenced to one year's rigorous A imprisonment under section 147 IPC, to seven years' rigorons impri- EOnment under section 307 /149 IPC and to imprisonment for life

under section 302/149 IPC.

The sentences of all the accused were to run concurrently.

The accused appealed to the High Court.

There was also a reference under section 3 7 4, Criminal Procedure Code, to the High Court for confirmation of the death sentence on

Sheo Murat. Both the matters were heard together by the High B Court and a common judgment was delivered on February 11, 1971.

The High Court maintained conviction and sentence of the accused Sheo Murat under section 307 IPC and also maintained .his conviction under section 302 I PC but reduced the sentence to imprisonment for life.

The conviction and sentence of Shea Murat under section 148 IPC were, however, set aside.

The conviction and sentence of the four other accused (the present respondents) were set C aside. The State prayed for special leave against the rejection of the reference by reducing the death sentence to imprisonment for life but this Court rejected the same.

The State's special leave application with regard to the respondents' acquittal was, however, admitted on October 13, 1971 and non-bailable warrants were issued against them. We are, therefore, not concerned in this appeal with the conviction of accused Sheo Murat, who was the assailant of the deceased as well as oi Vishwanath.

We have to consider whether the High Court has committed a grave and palpable error in acquitting the respondents resulting in miscarriage oi justice.

It is well-settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court, even though it has interfered with the conviction by the trial court, where the same is reached after a proper appreciation of the entire evidence. The possibility that it may just be reasonably feasible for this Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal. Even so, we are unable in this case to sustain the order of the High Court for the reasons, which will presently follow.

We have already quoted the evidence of Vishwanath which is unerringly corroborated by all the other eye witnesses. Both the trial court as well as the Hight Court believed the evidence.

Indeed the High Court lias observed and, in our opinion, rightly that "there is no infirmity in the prosecution case". We then find that the High Court G has read the evidence in a rather unusual way which is at once obvious when we peruse the judgment.

We are not told wherefrom the High Court could describe the evidence as follows :- " "After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses".

The High Court also observed that- H "it is not at all clear from the prosecution evidence whether Shobha kept on holding Vishwanath till the very end i.e.

till both the knife injuries had been caused to him, or whether he let go his hold as soon as Shea Murat started the attack".

The High Court further observed that-

"there is nothing in the prosecution evidence to indicate in what order those injuries were caused to Chhannu, and whether or not the injuries on the back were caused first".

The High Court further gave unusual importance to the statement of PW 13 when he deposed in cross-examination to the following effects:-

"I cannot remember whether the two persons who had caught hold of Chhannu had held him from the front or from the back or from the side. Further, I do not remember whether they were holding) him each with both his arms or whether each of them held him only with one arm. I do not recollect whether Shea Murat had caused injuries to Chhannu from the front side or from the back side".

We are unable to appreciate how the evidence of PW 13, who could not remember certain details, could help the court in coming to any conclusion for the purpose of displacing the clear and unambiguous prosecution evidence.

The injuries on the two victims are res, ipso loquiter and tell-tale.

Accused Shobha caught hold of Vishwanath's hands and Shea Murat gave him two stab blows, one on the neck and the other on the abdomen.

When deceased Chhannu advanced in order to save Vishwanath he was caught by accused Shyam Lal and Moti Lal and Shea Murat gave as many as six stab injuries in quick succession. None of these stab wounds are on any part of the hands or arms which would have necessarily been caused if the victims were not caught hold of by a person or persons while they were attacked with a knife. It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands.

And in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms. This wonld clearly go to show that the story that Vishwanath was caught by Shobha and Chhannu was caught by Moti Lal and Shyam Lal, as deposed to by the PWs, stands corroborated by the medical evidence.

The High Court completely ignored this most relevant and important aspect in the prosecution case but felt satisfied to acquit the accused on the sole ground that there was no evidence to show whether Shobha caught Vishwanath all the time when the two blows were given and also whether Moti Lal and Shyam Lal were catching hold of deceased Chhannu during the entire period of the assault. The High Court particularly felt in that direction because PW 13 being an independent witness co;; ld not recollect certain things to which we have already referred to above. The injuries would clearly show that the victims were caught hold of by a person or persons when these were inflicted upon them.

We are clearly of opinion that this is a completely erroneous view of the prosecution evidence adduced in this case resulting in failure of justice. We are further satisfied that if the High Court had not read

U.P. STATE v. RAM KRISHAN (Goswami, J.) 385

the, evidence by introducing al). extraneous gloss for the purpose of its A conclusion it could not have acquitted the accused.

It is also evidence that the accused came in a body to challenge Vishwanath for the previous day's incident. Although the four respondents were unarmed, Sheo Murat had a knife with him. There is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons. He only replied to the challenge by saying "Brother, what will you settle np" ? j\t this Ram Kishan instigted the other accused persons saying "beat tl1e salas".

At once accused Shobha caught held of Vishwanath's hands and Sheo Murat stabbed! him twice with his knife.

Assuming the respondents had no earlier knowledge about Sheo Murat's carrying a knife, from this moment they came to know that Sheo Murat had a knife with which he had already stabbed Vishwanath. What did they then do wheu deceased Chhannu came to the aid of Vishwanath to save him from further assault? Now Moti Lal and Shyam Lal canght hold of Chhannu and Sheo Murat inflicted several stab blows in quick succession. It is, therefore, clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault.

Sheo Murat has been convicted under section 302 IPC. We may only give these two accused Moti Lal and Shyam Lal benefit of doubt with regard to participation with Sheo Murat in the common intention

to cause death of Chhannu. It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when E Sheo Murat was inflicting the stab wounds. There is no escape from the conclusion on this evidence that Moti Lal and Shyam Lal shared at least th~ common intention with Shea Murat to cause grievous hurt under section 326 IPC.

A clear case has been established against both the accused persons under section 326/34 IPC. They are, thelffore, convicted under section 326/34 IPC and sentenced to four years' rigorous imprisonment.

With regard to accused Ram Kishan he merely instigated by saying "beat the salas''. He is the person who started the affair by challenging Vishwanath and also instigating the other accused persons to beat.

From this alone it is not possible to attribu!El to him any common intention to cause more than simple assault.

He is, therefore, found guilty only under section ~323/109 IPC.

He is, therefore, convicted G under section 323/l 09 IPC and sentenced to rigorous iniprisonment for one year.

Accused Shobha, who caught hold of Vishwanath to facilitate the two stab injuries on him by Sheo Murat, is also guilty under section 326/34 IPC. We are prepared to give him the benefit of doubt only with regard to section 307 IPC but the evidence clearly establishes H the case under section 326/34 IPC.

He is accordingly convicted under section 326/34 IPC and sentenced to four years' rigorous imprisonment.

A We should observe that no prejudice is caused to the accused by

alteration of the conviction to section 326/34 although they had been originally charged under section 302/ 149 and section 307 !l'19 IPC on the particular facts of the prosecution case which clearly pointed to participation by the respective accused in the two attacks and which they had to meet in the trial.

Since the respondents are detained in jail in pursuance of the non-bailable warrants issued by this Court on October 13, 1971, at the time of granting special leave, they will be entitled to the benefit of section 438, Criminal Procedure Codes, and that period shall be set off against the sentences which we have passed in this apepal.

In the result the judgment of the High Court is set aside, the appeal is allowed and the four accused stand convicted and sentenced as aforesaid subject to the observations mentioned above.

S.R.

Appeal allowed.

' \

STATE OF UTTAR PRADESH

RAM KISHAN & OTHERS

February 13, 1976

P. N. BHAGWATI

P. K. GOSWAMI, JJ.

Art. 136

section 326

s. 302

Criminal Procedure Code

Sections 222, 223 and 225

Ram Khelawan

Shivnath Jagannath

Ram Kishan E

Bhagwantia

Vishwanath

Kankar

Ram Kishan

Shobha

Moti Lal

Shyamlal

Ram Krishan

Rani. Kishan

Sheo Murat

Channu

Shyam Lal

Moti

Vishwanath

s. 302

I.P.C

s. 307

I.P.C

s. 302, 307 and 148

I.P.C

s. 302

s. 307

s. 148

Shobha. Moti Lal

Shyamlal

s. 302

I.P.C

s. 307

s. 149

I.P.C

s. 147

s. 147

I.P.C

s. 307

I.P.C

s. 307

s. 374

Shco Murat

s. 148, 1

s. 307

s. 302

I.P.C

s. 428

Cr.P.C

Art. 136

Channu \Vas

Motilal

as Sheo Murat

\Vhether

s. 302

ss. 307

I.P.C

P. Rana

Shiv Pujan Singh

GoswAMI

State of Uttar Pradesh

High Court of Allahabad

Bairam

Ram Khelawan

Rhuddi

Ram Charan

Shankar

Kankar

Chhannu

Bairam

Shea Murat

Shobha

Shiv Nath

Jagan Nath

Bhuddi

Bhiwanipur

Jagan Nath

March 18, 1969

Patia

Sheonath

Mohan

Phool Chand

Budhi

Shiv Nath

Hansla Prasad

Phool Chand

and Sohan

Chhannn

U. P. Singh

Siddiqui

section 302

IPC

section 307

IPC

section 149

IPC

section 14

IPC

section 148, 307 and 302

IPC

section 302

IPC

section 307

IPC

section 148

IPC

Ram Kishan

Sh yam Lal

section 302

IPC

section 307

section 149

IPC

section 147

IPC

section 307

IPC

section 302

IPC

section 3

Criminal Procedure Code

February 11, 1971

section 307

IPC

section 302

section 148

IPC

October 13, 1971

Goswami

section 302

IPC

Chhanu

E Sheo Murat

section 326

IPC

section 326

IPC

section 326

IPC

IPC

section 323

IPC

section 326

IPC

section 307

IPC

section 326

IPC

section 326

IPC

section 326

section 302

section 307

IPC

section 438

Criminal Procedure Code