::-,>-···.

L. ROBERT D'SOUZA

THE EXECUTIVE ENGINEER SOUTHERN

RAILWAY & ANR .

February 16, 1982

(D.A. DESAI AND R.B. MISRA, JJ.]

Industrial Disputes Act, 19471 sections 2(oo) and 25F, scope of-"Termlnation of sevice for any reason whatsoever'' in the definition "retrench.ient"·

darified.

Construction of Section_ 9A-Casuaf labour, termination of services Qf- Railway Establishme1u Code, Rules 2501 and 2505, explained.

The appellant joined service as a gangm1-n in Southern Railway on July 1, 1948. In course of his service be was transferred to varioui places. While

he wa:s working as a Lascar at Ernakulam, he was transferred, some time in D March 1970 by way of punishment for his Union activities in the capacity of _General Secretary of the Southern Railway Construction Workers Union, Eroakulam, to Podannur in Tamil Nadu. However, bis transfer was cancelled and he joined duty on 20-2-1971 at Ernakulam. The Ministry of Labour, Government of India, by its letter dated April 23, 1974 directed treatment of his entire period of absence from 8tb March, 1970 to 19th February, 1971 as duty.

Later, the appellant approached the Labour Court for recovering some of his dues ll which remained pending fo[ a long time.

As the appellctnt and thoie similarly situated were likely to reach the age of superannuation and by the unfair labour practice, namely, treating them only as 'daily rated labour', of the Railway Administration, they were likely o be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala, praying for a direction that they should be treated at least as temporary railway servant with attendant benefits. During the pendency of the matter, in connection, with the demand for a 11 the benefits granted by the Central Pay Commission being extended to the category of employees t-0 which the appellant belonged the appellant undertook a fast. but-broke the rsame on September 28, 1974 at the intervention of [the Assistant Labour Commissioner. Taking advantage of the appellant's absence, the .respondents termina.ted his service with retrospective effect, i.e., from 18~9-1974 on the gronnd of unauthorised absence. A learned single Judge having dismissed the liame, the Jmatter was taken. in appeal before the Division Bench.

In the appe1l, it was coaten, ded that the terminatioti of service of the appellant in the circumstances wo.uld constitute retrenchment within the meaning. of section 2SF of the Industrial Disputes Act, 1947 and, therefore:, the order ()f termination was invalid. , The matter was referred to the Full Bench which held that there , was no retrencbme0t and cjismi$$ed the appeal: Hence, the appeal by special leave.

Allowing the appeal, the Gou.rt,

HELD : 1. The expression "termination of service for any reason whatsoever" in the definition "retrenchmnt" in section 2(oo) of the Industrial Disputes Act, 1947 covers every kind of termination of service except those not expressly included in section 25F or not expressly provided ior by other pro visions of the Act such as sections 25FF and 25FFF. The excepted categories are (i) termination by way ·-or punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the workman; (iii) retirement of the workman on reaching the age of superannuation if the contract of emplo}ment between the employer and the workman concerned contains a _-stipulation in that behalf;

(iv) or termination of the services on the ground of continued illhealth. _ Once the case does npt fall in any of the excepted categories, the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in -section 2(oo) of the Act. It must as a corollary follow that if the name of the workman is struck off the roll, that itself would constitute retrenchment. -

[259 B-C, 206 H, 261 A-B]

. Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherji, [1978] I 1,_ SCR 591, followed •.

State Bank of India v. N. Sundera Money, [1976] 3 S.C. R. 160; Hindustan Steel Ltd. v. Presiding Officer, Labour Court, [1977] 1 S.C.R. 586; Santosh Gupta v, State Bank of Patia/a, [1980] 2 S.C.R 884 at 892; Mohan Lal v. Bharat Electronics Ltd., [1981] 3 S.C.C. 225, referred to.

1:2. There is neither apparent nor real conflict between the decision of the constitution bench in Hariprasad Shivshanker Shukla v. A..D. Divikar, [1957] S.C.R. 121 and the later five decisions commencing from Sundera Money and ending with Mohan/al' s case.

Reex:amining a contention over again so as to cover the familiar ground would, apart from giving a go bye to _the doctrine of stare decisis, would be a sheer waste of time and mere lengthening of the judgment. [260 C'D]

2:1. Notice contemplated by clause (a) of section 25F would not be dispensed with, in.view of the provision contained in proviso (b) of section 9A, which is n independent provision having no co-relation with section 25F.

[264 BJ

2:2. Section 9A imposes an otligation on the employer, who pro~·. ses to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the F_ourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be effected by such change, notice in the prescribed manner of the nature of the change proposed to be effected, and the change cannot be effected within 21 days of the giving of such notice. In order to attract .section 9A tbc; 1.; pange propose<; l must be.in tbe conditions of service applicable to

~··

L.R. D'SOUZA V. EX ENG., S; RAILWAY 253

the workman in respect of any matters specified in. the Fourth Schedule. If the proposed.change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days affer giving such notice. In order to attract section 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule. If the change proposed does not cover any matter in Fourth Schedale section 9A is not attracted and no notice is necessary.

[262 E-0]

Workmen of Sur Iron & Steel Co. (P) Ltd. v. Sur Iron & Steel Comppny (P) Ltd., [1971] LLJ 570; Tata Iron & Sttel Company Ltd. v. Workmen, [1973] I SCR 594; Assam Moth Co. Ltd. v. Bijoy Loi Sen, [1974] l SCR ll6, referred to.

2:3. Retrenchment to be valid must comply with three conditions set out in section 25F. They are, (a) subject to the proviSo to clause (a) one month's notice in writing specifyin.g the reasons for retrenchment or wages in lieu of notice: (b) compensation to l:!'e paid according to the measure provided in the clause, the payment to be simultaneous with the retrenchment; and (c) the notice in the prescribed manner to be served on the appropriate Government.

It was obligatory upon the employer, who wants to l'retrench the workmen to give notice as contemplated by clause (a) of section 25. [262 C-E]

2:4. A careful reading of sections 9A and 25F makes it clear that when a workman is retrenched, no change in his conditions of service is effected. No item in Fourth Schedule which sets out the conditions of service covers the case of retrenchment. In fact retrenchtnent is specifica1ly covered by item IO of the Third Schedule. If retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule saction 9A would not be attracted. If section 9A is not attracted, the question of seeking exemption from it in the case falling under the ,_proviso would hardly arise.

Therfore, neither seciion 9A nor the proviso is attracted •in this case. That apart, none of the other pre-conditions to a valid retrenchment have been tomplied with, because the very letter of termination of service shows that services were deemed to have been termitiated from a back date which clearly indicates nonotice being given~

no compensation being paid and no noice being given to. the prescribed authority.

Therefore, termination of strvice, being retrenchment, for failttre to comply with section 25F, would be void ob initio. [263 D-11, H, 264 A, C-DJ

. . 3:1: The test provided is that for the putpose of determining the eligi-

, bih~ of casual labour to be treated as temporary, the criterion shoo Id be the penod of continuous work put in by each individuai labour on . the same type of work and not the period put in collectively by any particular gang or group of labourers. It is thus abundantly clea; that if a person belonging to the category of casual labour employed in construction work other than workcharge~ projects renders six months' contiriuous service without a break, by the operation of statutory rule the nerson would be treated as temporary railway servant after the expiry of six months of continuous .. employment. It is equally true of even seasonal labour. Qnce the peon acquird the statua_of temorar¥

railway servant by operatlon of ; law, the conditions of his service wout~ be governed as set out in Chapter XXIII. The serice of a temporary railway servant may be termined only as provided in Rule 2301. [266 H, 267 A-B, El

3:2. The underlying intendment of the Rule 2501(~) (i) & (ii~) and note below Rule 2505 is that a casual labour who bas rendered six months conqnuous service would-be-placed in the categ'ory of temporary ra.ilway servant nless he is employed on work-charged project. Rule 250l(b) (1) clearly. provides that even where staff is paid from contingencies, they would acquire !he sttus of temporary railway servants after expiry of six months of continuous employment. [271 E-H] •

In the instant case : (i) tbe appellant acquired the status of ten1porary railway servant Jong before the termination Of his service and, therefore, his service could not have been terminated under Rule 2505; (ii) he nevet worked on projects but on a construction Unit. Construction Unit is a regular Unit anti cannot be equated to Project. Every construction work does not imply Project.

Project is correlated to planned projects in wli.ich the workman is treated as

work-Charged. Persons belonging to casual Jabour category cannot be transferred but the appellant was transferred on innumerable occassions; (iii) as a result of the appellant and others filing a writ petition, three co-appellants were informed that they were treated as on regular employments and ceased to belong to the category of casual labour. But for impugned termination orders the appellant also would have been treated as temporary and therefore1 the iappellant received discriminatory treatment offending Article 14 & 16 of the Constitution; and (iv) section 25F of the Industrial Disputes- Act provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the conditions set out in Act are satisfied. The appellant would be a workman within the meaning of that ex:pression in section 2(s) of the Act. 'He has rendered continuous service for a period over twenty years. Therefore, the first condition of section 25F that appe11ant is a workman who has rendered service for not Jess than one year under the Railway administration, an employer carrying on an industry, is satisfied. His service is terminated which for the reasons hereinbefore given would .costitute etrenchment. It is immaterial that he. is a daily 1'ated worker. He ts either doing manual or technical work and hiS salary was Jess than Rs. 500 and the termination of his service does not faJJ in any of the excepte9 categories.

Theefore, assuming that he was a daily ra1ed worker once he has rendered continuous uninterrupted service for a priod of one yea; or more, within the meaning of section 25B of the Act and his service is terminated for any reason whatsoever and. the case doe<; not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment the order of termination would be illegal and invalid. [271 D, 272 A, G, 275 D-G]

. 3:3. Absence without leave constitutes misconduct and it is' not open to the employer to terminate service without notice and inquiry or at any rate

witout complyiµg with tile minimum principle of natural justice.

Further~

-~ ' . '

Rule, 2302 clearly prescribes the mode, manner and 'methodology of terminating service of a temporary railway servant and admittedly the procedure therein prescribed having not been carried out, the termination is void and invalid; Accordingly, the same conclusion would Qe reached even while accepting for the purpose of the facts of this case simultaneously rejecting it in law that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative. [273 A-CJ

OBSERVATION: Rule 2501 which permits a man serving for 10, 20, 30 years at a stretch without break being treated as daily rated servant, is thl"¥1ugJily opposed to the notions of socio-economic justice and it is high time that Railway administration brings this part of the provision of the Manual, antequarian and antidiluvian, in conformity with the Directive Principles of State Policy as enunciated in Part IV of the Constitution. It is high time that these utterly unfir (provisions wholly den:Ying socio-economic juStice are properly modified and brought in conformity with the modern concepi of justice and faieplay to the lowest and the lowliest in Railway administration.

[273 C-D, 274 A-BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1613 of 1979.

Appeal by special leave from the Judgment and Order dated the 9th January, 1979 _of the Kerala High Court in O.P. No. 4401 of 1974.

K.R.R. Pillai for the Appellant.

P.A. Francis and Miss A. Subhashini for the Respondents.

The Judgment of the Court was delivered by

DESAI, J.

Appellant L. Robert D'Souza joined service as a gangman at Mangalapuram in. Southern Railway on July !, 1948.

In course of his service he was transferred to various places.

When he was last working as Lascar at Ernakulam, on October 8, 1974 the Executive Engineer (Construction), Erna:kulam intimated to him that his services were deemed to have been terminated from September 18, 1974, from which date the appellant was _said to have absented himself from duty.

This letter has an important bearing on the issues raised in this appeal, and, therefore, relevant portion may be extracted here :

"You have absented yourself unauthorisedly from 18.9.1974 and hence your se1vices are deemed to have been terminated from the day you have absented yourself.

Please note.

l!l

Since you are no longer on the rolls of this office yoa should vacate the quarters allotted to you i rnmediately failing which action will be taken to evict you".

According to the appellant, up to the date of unauthorised and illegal termination of his service he had rendered coiitinuou• service for a period of 26 years yet the Railway administration wrongfully denied him the status of a temporary and/or regular workman and treated him a daily rated casual labourer.

This treatment according to the appellant was so unfair that it prompted persons who were victims of this unfair treatment by the Railway administration to form a Union named Southern Railway Construction Workers Union, Ernakulam, of which the appellant was the General Secretary.

The Union submitted a charter of demands which presumably irritated the authorities and chagrined by it, the appellant was transferred to Podannur in Tamil Nadu by way of punishment.

As the late Shri A.K. Gopalan, who was a renowned trade union leader, espoused the cause of the appellant, his transfer was cancelled and he was reposted and allowed to continue at Ernakulam after paying the arrears of wages and granting continuity of service for the period he did not join duty at the place of his transfer. This is quite evident from the Jetter of the Under Secretary, Ministry of Labour, dated April 23, 1974, which reads as under :

"With reference to your letter dated the 28th May, 1973, on the above subject, I am directed to say that it has been reported by the Ministry of Railways that the Southern Railway Administration bas been advised that as you were transferred back to Ernaku!am on 19th March, 1971, you should be deemed to have been on duty for the intervening period from 8th March', 1970 to 19th February,

1971, and your wages paid accordingly".

The local superiors of the appellant were annoyed by the success of the appellant and they were on a look out for settling the score with the appellant. In the meantime the appellant approached the Labour Court for rocovering some of his dues which remained pending for a long time.

As the appellant and those similarly 'ituated were likely to reach the age of suptrannuation and by the unfair labour practice of the Railway administration they were likely to be denied the full retirement benefits, appellant and several others filed a writ petition in the High Court of Kerala .. According

to the appellant, for the various reawns stated in the petition, appellant and those similarly situated could not be treated as daily rated casual labour and under the relevant rules appellant and his

co-workers would at least acquire the status of temporary railway servants and their services could not be terminated in the manner in which the appellant's service was terminated and that they woul.I be entitled to all the retiral benefits.

The petition came up before a learned single judge who dismissed the same. The matter was taken in appeal before the Division Bench.

In the appeal it was contended that the termination of service of the appellant in the circumstances as set out earlier would constitute retrenchment within the meaning of section 25F of the Industrial Disputes Act, 1947 ('Act' for short), and therefore, the order of termination, Inter a/ia, is invalid The Division Bench found the question raised before it of such importance and magnitude that it referred the same to the Full Bench.

In the meantime the appellant was actively pursuing his trade union activities. A demand was made that all the benefits granted by the Central Pay Commission be extended to the category of employees to which the appellant belonged and when these demands fell on deaf ears, it was resolved to give a strike notice. The matter was taken in conciliation which ultimately resulted in failure. The appellant approached the Ceritql Government to make a reference under s. IO of the Act in respect of the demands for adjudication by National Tribunal.

As the Central Government was wobbling in its approach, the appellant declared his intention to go on fast unto death for redressal of the grievances suffered for decades by the lowest category of railway employees.

At that stage the Assistant Labour Commfssioner intervened and persuaded the appellant not to precipitate the matter.

The appellant accordingly broke his fast on Sepetember 28, 1974, in the hospital where he was confined during his fast.

Taking advantage of his absence during the fast immediately the order of termination of his service was served and this led to the present proceedings which ha¥e culminated in this appeal.

The appellant, inter alia, contended before the Full Bench of Kerala High Court that the termination of his service for the reasons and in the manner brought about is illegal and invalid, that it was victimisation for trade union activities; that it was unfair labour practice and that it was ma/a fide.

It was also contended that in view of his long uninterrupted srvice admittedly over twenty years

he was at the minimum a temporary railway servant and, therefore, his service cannot be terminated unless he was rendered surplus or by way of disciplinary measure after complying with Article 311 of the Crnstitution. The, legal submission put in the forefront was that in the circumstances herein mentioned the termination of service constituted 'retrenchment' within the meaning of s. 25F of the Act and as the pre-condition to valid retrenchment having not been satisfied, the termination is illegal and invalid. The Full Bench answered the point referred to it against the appellant holding that there is no retrenchment as contended for, on behalf of the appellant and finally dismissed the petition. Hence this appeal by special leave.

At the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expresssion 'retrenchment' in s. 2(oo) of the Act that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the Full Bench of Kerala High Court in L. Robert D' Souza v.

Executive Engineer, Southern Railway and Anr.,(') has been speci fica]ly overruled by this Court in Santosh Gupta v. Stare Bank of Patia/a.(2) This Court has consistently held in State Bank 'of India

v. N. Sundera Money,( 3) Hindustan Steel Ltd. v. Presiding Officer, Labour Court,(') and Delhi Cloth & General Mills Ltd. v. Shambhu Nath Mukherji,(5) that the expression 'termination of service for irny reason whatsoever' now covers every kind of termination of service except those not expressly included in s. 25F or not expressly provided for by other provisions of th.e Act such as ss. 25FF and

25FFF.

It was attempted to be urged that in view of the decision of this Court in Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union,(6) the ratio of which was re-affirmed by_ a Constitution Bench of this Court in Hariprasad Shivshanker Shukla v.

A.D. Divikar,(') all the later decisions run counter to the Constitution Bench and must be treated per in curium. This contention need not detain us because first in Hindustan Steel Ltd. case, then

(I) [1979] llLLJ. 2111.

(2) (1980] 2 S.C.R. 884]at 892

(4) (1971] 1 S.C.R. 586.

(5) (1978] I S.C.R. 591. <6l [1956J s.c.R. sn.

(7) [1957) s.c.R. 121.

...,_

. - ~

! ~

in Santosh Gupta's case (Supra) and lastly In Mohan Lal v. Bharat

Eleotronics Ltd.,(') it was in terms held that the decision in Sundera Money's case was not at all inconsistent with the decision of the Con$titution Bench in Harip1asad Shukla's case and not only required no reconsideration but the decision in Sundera Money's case was approved in the aforementioned three cases.

This position is furtl]er butressed by the decision in Delhi Cloth and General Mills Ltd . . case wherein striking off th' name of a workman from the roll

was held to be retrenchment. It ls, therefore, the settled law that the expression 'termination of service for any reason whatsoever' in the, definition of the expression 'retrenchment' in s. 2(oo) of the Act covers every kind of termination of service oxcept those not

expresly included in s. 25F or not es:pressly provided for by other provisions of the Act. such as ss. 25FF and 25FFF.

Two things thus emerge, firstly, that the decision of the Full Bench of Kerala High Court under appeal has been specitlcally overruled by this Court in Santosh Gupta's case (Supra) and secondly, in view of the decision in Delhi Cloth General Mills Ltd. case (Supra) striking off the',, name of a workman from the rolls without anything more constitutes retrenchment within the meaning of the expression 'retrenchment' ins. 2(00). This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court.

Shet anchor of Mr. Francis's submission is that this Court should proceed on the construction of expression 'ratrenchment' as set out i1' Hariprasad Shukla's case, and ignore the construction of the exprssion 'retrenchment' put in , the decisions of this Court in Sundera Money's Hindustan Steel Ltd. ca.se, Santosh Gupta's case, Delhi C/qt~ & . General Mills Ltd. case as being per in curium.

We are not disposed to undertake this recurring futile exercise for obvious rason that. on four different occasions, in Hindustan Steel Limited <i!ise, a Division Bench of this Court consistin.g of

Chandracud, Goswami and Gupta, JJ. in Sundera Money's case, a Bench conisting of Chandrachud, Krishna Iyer and Gupta, JJ.; in Santosh Gpta' s case, a Bench consiiting of Krishna Iyer and O. Chinnappa Reddy, JJ. and a Bench of two judges consisting of Gupta, J. and one of us in Mohanlal's case, have repeatedly undertaken this very detailed exercise and held that there is no incosis tency of any nature and kind nor any conflict, contradiction or repugnancy between the decision of the Constitution Bench in Hariprasad fihukla's case and aforementioned later four dacisions

(I) [1981} 3 s.c.c. 225.

• D

and they stand in harmony with each other and the later decisions take note of an amendment in the relevant provisions of Industrial Disputes Act and, therefore, the c0nstruction put on the expression 'retrenchment' in the aforementioned decisions pronounced the settled view of this Court.

We, therefore, consider it futile and waste of precious time of the Court to re-examine the submission of Mr. Francis negatived on four different occasions in the past.

Undoubtedly, Mr. Francis pointed out that in Surendra -Kumar -Verma & Ors. v. Central Government Industrial Tribunal-cum, Labour Court, New Delhi & Anr., (1) Pathak, J. in his concurring judgment has stated that his concurrence with the majority view propounded by Reddy, J. should not be taken to imply his agreement with the interpretation of s. 2(oo) rendered in Santosh Gupta's case It may, however, be mentioned that the majority in that case has affirmed the earlier decision. Therefore, after meticulously examining on five distinct and different occasions, it is clearly and unequivocally stated that there is neither apparent nor real conflict between the decision of the Constitution Bench in Hariprasad Shukla's case and the later five decisions commencing from Sundera Money and ending with Mohama/' s case, it would be sheer waste ot'time and merely adding to the length of the judgment to re-examine this contention over again, so as to cover the familiar ground.

As we are not prepared to examine the contention over again, the submission of Mr. Francis that 'retrenchment' contemplates some overt act or.. the part of the employer, that it inheres the principle of last come first go which again requires an overt act on the part of the employer; that when retrenched workmen are required to be re-employed, first option for re-employment has to be given to the retrenched workmen, which necessitatessome overt act on the part of the employer, would be beside the point and of no relevance and significance.

The reference to Rules 76, 77-and 78 of the Industrial Disputes (Central Rules). 1957, docs not advance his case a step further.

The definition of expression 'retrenchment' ins. 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction. Therefore, we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories, i.e., (i) termination by way of punishment inflkted pursuant to disciplinary action; (ii) voluntary retirement of the work-

man; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; (iv) cir

termination of the service on the ground of continued ill-health.

Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatie discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in s. 2(00). It must as a corollary follow that if the iiame of the workman is struck off the roll that itself would constitute retrenchment, as held by this-Court in Delhi Cloth & General Mills Ltd. case. We specifically refer to. this case because the facts in the caie before us are on all fours with the facts in the aforementioned cases and on parity of reasoning and judicial comity the same conclusion must follow unless something to the contrary is indicated. In , that case respondent S. N. Mukherji who was recruited as a labourer came to be promoted in course of time to the post of Motion Setter. On October I, 1964, pursuant to some re-organisation in the establishment the post of Motion Setter was abolished.

The management offered employment to the respondent S. N. Mukherji on any other suitable post, which was indicated to be the post of Assistant Line Fixer (Assistant Grade I) without loss of wages. He was to be on probation. The management found him unsuitable for this post even after extending the period of probation by 9 months and therefore offered him post of Fitter on the same pay which he, as a Motion Setter, used t<> get. The response of S. N. Mukherji to this offer was that he should be given a further opportunity to show his efficiency in his job and if he fails to improve, he would tender his resignation voluntarily. The management did not reply to the letter with the result that the workman did not report for work at the newly offered post. On January 19, 1966, the management wrote to the workman that his nllme has been struck off from the rolls with effect from August 24, 1965, for continued absence without intimation.

Such termination of service was held to be covered by the expression 'retrenchment' and it was struck down on the ground that the pre.condition to valid retrenchment was not complied with. It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the Act. And here recall the order of termination of service of the appellant wherein it is stated that "You have absented yourself unauthorisedly from 19.8.1974 and hence your services are deemed to have been terminated from the day you have absented yourself." Is any other

• n

262 SlJPREME COURT REPoars

[1982) 3 S.C.R.

' conclusion possible save and except the one recorded by this Court in Delhi Cloth &~General Mills Ltd case that this constitutes retrenchment and for non-compliance with pre-condition, it is invalid.

Before referring to other contentions of Mr. Francis, we may dispose of one contention based upon construction of s. 9A of the Act as in our opinion, it is utter)y untenable.

Mr. Francis says that if valid retrenchment presages a notiCe contemplated by s. 25F, the same would stand dispensed with in view of the proviso (b) of s. 9A of the Act and therefore even if the termination is held to be retrenchment, the same would be valid. There are two basic fallacits in this submission. Retrenchment to be valid must comply with three conditions set out in s. 25F. They are (a) subject to the provi!O to clause (a), one month's notice in writing specifying the reasons for retrenchment or wages in lieu of notice; (b) compensation to be paid according to the measure provided in the clause, the payment to be simultaneous with the retrenchment; and (c) the notice in the prescribed manner to be served on the appropriate Government. If the termination in this case otherwise constitutes retrenchment admittedly clauses (b) and (c) of s .. 25F have not been complied with. That apart, the submission that in view of the provision contained in proviso (b) of s. 9A, the notice contemplated by clause (a) of s. 25F would be dispensed with, is without merits.

Section 9A imposes an obligation on the employer, who proposes to effect any change in the .conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to give notice as therein provided and the employer is precluded from effecting the change without giving to the workman likely to be affected by such change, nollce in the prescribed manner of the nature of the change proposed to"be effected, and the change cannot be effected within 21 days of the giving of such notice. Jn order to attract s. 9A the change proposed must be in the conditions of service applicable to the workman in respect of any matters specified in the Fourth Schedule. If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescrib'd manner and waiting for 21 days after giving such notice.

There is a proviso to s. 9A which exempts the employer from giving the notice of change if the case falls in any of the two provisos. According to Mr. Francis the case would be covered by proviso (b). It reads as under :

"9A. No employer, who proposes to effect any change in the conditions of service applicable to any workman in

~, __

-- -~ . \

L.R. D'SOUZA v. EX. ENG., s. RAI~WAY (Desai, J.) 263 ..

respect of any matter specified in the Fourth Schedule, shall effect such change-

(a) x x x x

(b) x x x x

Provided thai no notice shall be required for effecting any such change :

(a) x x x x

(b) where the workmen. likely to be effected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Servic.es (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules, or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply".

It was obligatory upon the employer, who wants to retrench the workmen to give notice as contemplated by clause (a) of s. 25.

When a workman is retrenched it cannot be said that change in his conditions of service is e1fected. The conditions of service are set out in Fourth Schedule. No item in Fourth Schedule covers the case of retrenchment.

In fact, retrenchment is specifically covered by Item IO of the Third Schedule. Now, if retrenchment which connotes termination of service, cannot constitute change in conditions of service in respect of any item mentioned in Fourth Schedule, S. 9A would not be attracted. In order to attract s. 9A the employer must be desirous of effecting a 'change in conditions of service in respect of any .matter 'specified in Fourth Schedule. If the change proposed does not cover any matter in Fourth Schedule s. 9A is not attracted and no notice is necessary. See Workmen of Sur Iron & Steel Co. (P) Ltd. v. Sur Iron & Steel Company (P) Ltd.,(') Tata Iron & Steel Company Ltd. v. Workmen(') and Assam Match Co. Ltd. v. Bijoy Lal .Sen('). Thus if s. 9A is not attracted the question of seeking exemption from it in the case falling under

(1>:[1971] .1 L.L.J. 570.

(2) [1973] l S.C.R. 594.

0) [1974] l S.C.R. 116.

the proviso would hardly arise. Therefore, neither s 9A nor the proviso•is attracted in this case.

The basic fallacy in the submission is that notice of change contemplated by s. 9A and notice for a valid retrenchment under s. 25F are two different aspects of notice, one having no co-relation with the other. It is, therefore, futile to urge that even if termination of the service of the petitioner constitutes retrenchment it would nevertheless be valid because the notice contemplated by s. 25F would be dispensed with in view of the provision contained in s. 9A, proviso (b).

That apart, it is an indisputable position that none of the other pre-conditions to a valid. retrenchment have been complied wi>h in this case because the very letter of termination of service shows that services were deemed to have been terminated from a back date which clearly indicates no notice being given, no compensation being paid and no notice being given to the.prescribed authority. Therefore, termination of service, being retrenchment, for failure to comply with s. 25F, would be void ab initio.

Mr. Francis next contended that as the appellant belonged to the category of casual labour as defined in rule 2501 in Chapter XXV of the Indian Railway Establishmeot Manual ('Manual' for short), no notice prior to termination of bis service is necessary or required by law in view of the pro.visions contained in Rule 2505.

The submission is that in the case of casual labour the service will be deemed to have been terminated when such employee absents himself or on the close of the day.

Rule 2501 reads as under:

"2501. Definition-

(a) Casual labour refers to labour whose employment is seasonal,.intermittent, sporadic or extends over shorf periods.

Labour of. this kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour, ,

(b) The casual labour on railway should be employed only in the following types of cases, namely :

(i) Staff paid from contingencies except those retained for more than six months continuously. Such of

those persons who continue to do the same work

~ -

for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment..

(ii) Lal\our on projects, irrespective of duration, except those transferred from other temporary or permanent employment.

(iii) Seasonal labour who are sanctioned for specific works of less than six months duration. If such labour is shifted from one work to another of the same type, e.g., relaying and the total continuous period of such work at any one time is mor.e than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. For the purpose of determining the eligibility of labour to be treated as temporary, the criterion should

0be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers.

x x x

Note:

(I) x x

(2) Once any individual acquires temporary status, after fulfilling the conditions indicated in (i) or (iii) above, he retains that status so Jong as he is in continuous employment on the railwayg, In other words, even if he is transferred by the administration to work of a different nature he does not lose his temporary status.

(3) x x x

(4) Casual labour should not be deliberately discharged .with. a view to causing an artificial break in their service aad thus prevent their attaining the temporary status,

SUPREMB COURT REPORTS [1982] 3 s.c.R.

(5) x x x

Rule 2505 may as well be extracted. It reads as under :

"2505.

Notice of termination of service-Except where notice is necessary under any statutory obligation, no notice is required for termination of service of the casual labour. Their service• will be deem ed to have terminated when they absent themselves or on the close of the day.

Note : In the case of a casual labourer who is to be treated as temporary after completion of six months' continuous service, the period of notice will be determined by the rules applicable to temporary Railway servants".

In order to satisfactorily establish that the applicant belonging to the category of casual labour whose service by deeming fiction enacted in Rule 2505' will stand terminated by the mere absence, it must be shown that the appellant was employed in any of the categories set out in clause (b) of role 2501.

What has been urged on behalf of the respondent is that the appellant was employed in construction work and, therefore, labour on projects irrespective of duration would belong to the category of' casual labour. That, however, does not mean that every construction work by itself becomes a work-charged project.· On the contrary sub clause (I) of clause (b) of rule 2501 would clearly show that such of those persons belonging to the category of casual labour who continued to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment.

Similarly, seasonal labour sanctioned for specific works for less than six months' duration would belong to the category of casual labour.

However, sub clause (iii) of clause (b) of rule 2501 provides that if such seasonal labour is shifted from one work to another of the same type, as for example, 'relaying' and the '.total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual

labour on the same type of work and not the period put in collectively by any particular gang or group of Jabourers. It is thus abundantly clear that if a person belonging to the category of casual labour -employed in construction work other than work-charged projects renders six months' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment. It is equally true of even seasonal labour.

Once the person acquired the status of tcmp-orary railway servant by operation of law, the conditions of his service would be governed_ as. set out in Chapter XXIII.

Rule 2301 in Chapter XXIII defines a temporary railway servant. It reads as under :

"2301.

Definition-A 'temporary railway servant' means a railway servant without a lien on a permanent post on a Railway or any other administration or

office under the Railway Board._ The term . does n not include 'casual labour', a: 'contract' or 'part- ' time' employee or an 'apprentice'."

The service of a temporary rail way servant may be terminated as provided in Rule 2301. •The benefits which a temporary railway servant enjoys are set out iri the same chapter.

The question, therefore, is whether the appellant who was recruited as \casual labour continued to be the same or he had acquired the status of temporary railway servant at the time of termination of his service. In the affidavit filed irr the High Court the respondents contended that the appellant was employed in construction work on work-charged project. The High Court did not examine this contention on merits and, therefore, it has become obligatory upon us to probe it.

The appellant has stated that he joined as a Gangman on July I, 1948 at Mangalapuram and he was transferred in 1953 to Pindur in Mysore State.

He confessed that he does not have any record to show tliis employment but urged that if the pay roll of the relevant period would be produced by "the Railway administration, the fact alleged would be completely borne out.

We would bypass this controversial period, without recording any finding on it one way or th• other. The appellant further contends that on Nov_ember

IS, 1954, on transfer he joined in th~~Qffice of lns?ector of Work~

268 SUPREME COUllT REPORTS

I . (19$2] 3 S.C.k. ·

at Mangalore and since then he has been in continuous employment in the construction branch of the Southern Railw"ay till the date of his illegal termination of .service on . Qctober 8, 1974.

These averments are incontrovertible and have not rightly been controverted before us, in view of unimpeachable evidence produced by the appellant. The Executive Engineer, Ernakulam, where the appellant at the relevant time, i.e. September 5, 1966, was working, addressed a letter to various Executive Engineers inquiring from them whether the surplus staff on his establishment could be absorbed by any of them. The material portion of the letter reads as under :

Ext. P-3 Executive Engineer's Office, Ernakulam Dated 5.9.1966

Subject :- Surplus staff (Casual labour staff) absorption of

"Since the major portion of the work in this construction unit is over the list of the C.L. staff who are likely to be rendered surplus by 30.9.66 and 31.12.66 due to expiry of sanction to the post held by them, is enclosed.

Please advise whether you can absorb any of these personn~I in your construction division so that they may .be relieved in time if they are willing''.

Enclosures :

1) List.

List of C.L. Sta.ff Working in Xen's Office/Ers.

Sr. No.

Name Presenrly working as Date of appointment x x x

. JO.

Robert D'Souza.

Peon/Lascar. 15.l l.54 x x x

This evidence furnished from the record of the respondent and not controverted by any affidavit to the contrary would establish that the appellant was in continuous service from November 15, 1954.

Recall here, the fact that his service was terminated by the impugned order contained in the letter Aunexure I dated October 8, 1974. }'herefore, apart f, r()!" the period in controversy from 1948 to 1964

'-{- ....

it is unquestionably established that the appellant was in continuous _ A uninterrupted service from Nor; ember 1954 to October 1974, a period of 20 years and he was working as Peon/Lascar. Undoubtedly he has belln referred to as belonging to casual labour staff but would it be fair to _hold that after 20 years of continuous service, he would still continue to be a casual labour and therefore, his service could be terminable at will, and he would not be entitled to any of B the benefits which a temporary or a permanent railway employee would ei; ijoy ?

There is, 'however, one more aspect to Wtlich we would refer before we proceed to pronounce upon the status of the appellant.

The definition of casual labour etracted by us above clearly indicates that person belonging to casual labour is not liable to transfer.

The appellant has stated that he was transferred to Madras in 1957, to Tuni in Andhra Pradesh in 1958, to Rajahmundry in 1960, to Samalkhotan in 1961, to Virudhnagar in 1962 and to Manamadurai in 1965 and then to Ernakulam in August 1965.

It appears that he was again transferred from Ernakulam which was seriously objected and he took up the matter with the higher authorities when he was re-transferred to Ernakulam on March 19, 1971.

This appears from the letter of the Under Secretary in the Ministry of Labour addressed to the' appellant in which it is stated that the Ministry of Railways was advised that the appellant be transferred back to Ernakulam, which advice has been carried out and the. intervening period for which he did not report for duty, i.e. from March 6, 1970 to.February 19, 1971, he would be paid the wages as if he was on duty. In the face of these incontrovertible facts could it at all be said that the appellant

though transferred ad nauseum. still continued to belong to the category of casual labour ?

An additional fact which butresses this conclusion may be referred to.

The appellant and several others filed petition in the High Court of Kerala from which the present appeal arises. All the petitioners before the High Court contended that each of them having rendered continuous. service for decades they could not be said to be belonging to the category of casual labour and if anything all of them had acquired. status of temporary employees. The ttSl\!lndent filed counter-affidavit and contended that the appellant and his co-petitioners in the High Court never acquired the status of temporary railway servant and each of them belonged 'to the category of casual labour.

D\!rin~ th~ pendency of the petition

in the High Court service of the appellani was terminated but his co-petitioners continued in service.• After the dismissal of the writ petition by the learned single judge appellant and three others preferred Writ Appeal No. 218 of 1973 in the same High Court. By the time the appeal came up for hearing three co-appellants of the present appellant who were appellants before the Division Bench were informed that they were treated as on regular employment and ceased to belong to the category of casual labour.

Unfortunately as the service of the appellant was already terminated' hc was not given this benefit..

This fact clearly emerges from the manner in which the Division Bench disposed of the appeal before it. The relevant observation is as under:

"In view of the letters received from the Executive j, Engineer, Southern Railway, addressed to Shri K.P.

Pathrosa, advocate, appearing for respondents in the writ appeal, it has bf come unnecessary to consider this writ "D appeal on merits".

With reference to the appellant it was stated as under :

. "As regards the first appellant, it is stated th11t he absented himself from (duty and so he had been denied employment.

Since then another Writ Petition 0. P. No. 4401/74 bas been filed by the fits! appellant and is now pending before this Court.

The contention of the first appellant incluaing what has been 'raised in this petition will be considered in O.P. 4401/74".

' By the letters referred to. by the Division Bench, the Executive Engineer informed the advocate appearing for Railway administration that appellants other than the present appellant were absorbed as regular railway employees and hence .the appeal has become infructuous. - Unfortunately for the appellant he was denied this benefit as his service was already terminated.

If his service was not terminated, his case was not distinguishable from the case of his co-appellants and he would have been entitled both in Jaw and facts to the same treatment. The approach of the Railway administration to say the least is amazing.

For years they did not act according to law and confer status of temporary railway servant on the appellant and his colleagues in the High Court. , When appellant espoused ttis cause he was thrown out but his colleagues were given the

l>enefit rjchly deserved in law. This discriminatory treatment cannot

• -·

LR.. D'souzA v. EX. ENG., s. RAILWAY (hesai, J.) 2t1

help the respondent because appellant's case cannot be distinguished.

If the status of temporary railway employee was already acquired before the tetmination of service in the manner brought about, the same would be ipso facto invalid.

At this stage we would again revert to the annexure to the letter of Executive Engineer dated September 5, 1966, in which the name of the appellant appears at

Serial No. IO, One of the co-petitioners of the appellant in the High Court, who got the benefit of regular employment pursuant to the writ petition was one Shri K.N. Balakrishna. His name appears at Serial NQ. I in the annexure to the letter of Executive Engineer referred to above.

His date of appointment is shown to be March 24, 1954. It would thus appear at a glance that the case of the appellant could not be distinguished from the case of Shri K.N. Balakrishna and if Shri Balakrishna was accorded the status of regular employee, the appellan.t coufd not be treated otherwise,. but for a singular unfortunate event of his termination of service. He . could not be singled out for such treatment, Had his service not been terminated, the Railway administration could not have denied him the status and this status he would have acquired long back.

If by operation of law, to wit, Rule 2501 the appellant had acquired the status of temporary railway servant by rendering continuous uninterrupted service for . more than six months, his service could not have been terminated under rule 2505. It, however, needed' moral force of fast and costly court proceedings by a low daily paid workman against the Railway administration in the High Court to obtain such meagre benefit. It would thus clearly appear that even 'the appeilant would have acquired the status of at least a temporary railway servant. But we would rather like to refer to the legal ' position in this behalf more accurately.

To start with, let us recall the rule 250l(b) (i) and (iii) and note below rule 2505.

The underlying intendment of the provison is that a casual labourer who has rendered six months' continuous service would be place in the category of temporary railway servant unless he is employed on work-charged project.

Rule 2501(b) (i) clearly provides that even where staff is paid from contingencies; they would acquire the status of temporary railway servants after expiry of six . months of continuous employment. But reliance was placed on rule 2501(b) (ii) which provides that lab our on projects, irrespective of duration, except those transferred from other temporary or permanent employment would be treated as casual. Jabour. In order to bring the case within the

272 StJPllEMti COUllT llEPollTS

(1982) 3 s.C.11.

ambit of this provision it must be shown that for 20 years appellant was employed on projects.

Every construction work does not imply project. Project is Correlated to planned projects in which the workman is treated as work-charged. The letter dated September 5, 1966, is by the Executive Engineer, Ernakulam, and he refers to the staff as belonging to construction unit. It will be doing violence to language to treat the construction unit as project. Expression 'project' is very well known in a planned development. Therefore, the assertion that the appellant was working on the project is belied by two facts : (i) that contrary to tlie provision in Rule 2501 that persons belonging to casual labour category cannot be transferred, the appellant was transferred on innumerable occasions as evidenced by orders Ext. P-1 dated January 24, 1962, and Ext. P-2 dated August 25, 1964, and the transfer was in the office of the Executive Engineer (Construction); (ii) there is absolutely no reference to project in the letter, but the department is described as construction unit.

Ifhe became surplus on completion of project there was nonecessity to absorb him. But the letter dated September 5, 1966, enquires from other executive engineers, not attached to projects, whether the surplus staff including appellant could be absorbed by them. This shows that. the staff concerned had acquired a status higher than. casual labour, say temporary railway servant. And again eonstruction unit is regular unit all over the Indian Railways. It is a permanent unit and cannot be equated to project. Therefore, the averment of the Railway administration that the appellant was working on project cannot be accepted.

He belonged to the construction unit. He was transferred fairly often and he worked contjnuously for 20 years and when he questii>ned the bona }ides of his transfer he had to be re-transferred and paid wages for the period he did not report for duty at the place where he was transferred.

Cumulative effect of these facts complettily belie the suggestion that the appellant worked on project. Having rendered continuous uninterrupted service for over six months, be acquirea the status of a temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505.

Once it is held that by operation of statntory rule in the . Manual, the appellant had acquired a status oftemporary railway servant and assuming, as contended by Mr. Francis, that the termination of service in the circumstances alleged does not constitute retrenchment stricto sensu, would the termination be still valid ?

--~-

l..k. ti1SOUZA v. llX. ENG., s. RAILWAY (Desai, J.) 273

The answer is an emphatic no. On the admission of the Railway administration, .service was terminated on account of absence during the period appellant was on fast.

Absence wjtbout leave constitutes misconduct and it is not open to the employer to terminate .service without notice and inquiry or at any rate without complying with the minimum principle of natural justice. Further, rule 2302 clearly prescribes the mode, manner and methodology of terminating service ofa temporary railway servant and admittedly the procedure therein prescribed having. not been carried out, the termination is void and invalid. Accordingly, the same conclusion would be reachep even while accepting for the purpose of the facts of this case simultaneously rejecting it in i, Iaw that the termination does not constitute retrenchment yet nonetheless it would be void and inoperative.

We would be guilty of turning a blind eye to a situation apart from being highly unethical, wholly contrary to constitutional philosophy of secio-economic justice if we fail to point out that Rule 250 I which J)ermits a man serving for 10, 20, 30 years at a str•tch without break bein.g treated as daily rated servant, is thoroughly opposed to the notion of socio-economic justice and it is high time that the Rai!Way administration brings this part of .the provision of the Manual, antequarian and antidiluvian, in conformity with the Directive Principles of State Policy as enunciated. in Part IV . of the Constitution. It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour, the daily wage is fixed by dividing montli.ly minimum wage by 26 so as to provide a paid holiday. Maybe, for seasonal employment, or for other intermittent work daily rated workmen may have to be employed. It may as well be that on projects workcharged staff may have to be employed because on the completion of the projects the staff may become surplus. That was at a time when planning and projects were foreign to the Indian economy. Today, Railways perspective plans spreading over decades. If one project is complete another has to be taken over. Railway administration bas miles to go and promises to keep and this becomes clear from the fact that the appellant, a daily rated workman, continued to render continuous service for twenty years which wo!ild imply that there was work for daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily rated casual labour whose service can be terminated at the whim

SUPREME COURT REPokTS (1982] .3 s.c.k. _

and fanc/of the local satraps." .Itis high .time that theS(: µiterly unfair provisions wholly denying socio-economic justice are properly modified and brought in conformity with the modern concept of justice and fairplay to the lowest and lowliest in Railway admi11istration.

Now, if appellant had become at least a temporary railway servant he is entitled to many benefits set out in Rule 23_03 onwards.

We have no doubt in our minds that the appellant whose case was on par with Shri K.N. Balakrishna who had already been offered regular employee status, would be entitled to be placed in the same category and that too from the date much earlier -to the date of termination of his service. In this situation terminatiOn of his service not being covered by any of the excepted categories and not after notice would be retrenchment within the meaning of the expression as used in the Act _and for the failure to comply with -the pre condition the termination of service would be void.

Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that be conti. nued to belong to the category of casual labour, would the termination of the service in the circumstances mentioned by the Railway administration constitute retrenchment under the Act ?

Section 25F of the Act provides that no workman employed i.n any industry who bas been in continuous service for not less than one year under an employer shall beretrenched by that employer untill the conditions set out in Act ate satisfiecJ. The expression 'workman' is defined as nnder :

"In this Act, unless there is anything repugnant in the subjeePor context :

"Workman" means any person (including an apprentice) employed in any industry to do any skilled or ' tinskil!Cd manual, superisory, technieal or Clericl\l work for .hire or reward, whether the terms of employment be

- expresssed or implied, and for the purposes of any proceeding under this Act in relation to an industriaf dispute, includes any such person 'Who has been dismissed, discharged or retrenched in connection with, or as a consequence of,

- that dispute, or whose dismisa'.li discharge or retrenchment ,

.,..

7 .-

~ I -i -~

.... hi!~ Jed to tl; tat dispute, but d\)es. nQt. uclue any., such , person,- . ,. . .

 (i) who. is subject tp tb'e'rmy Act, 1950, oi'the Ai.t . Force Act, 19SO or the Navy (Discipline) Act, 1934, or

(ii) who is employed in the police service or as an'-; officer or other employee of a prison; or

(iii) who is employed mainly in a.managerial or admi

nistrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the

duties attached to the. office or by reason of the powers vested in him, functions mainly of a manageri!tl nature!'

There is no dispute that the ajlflellant would be a workman within the meaning of the expression in s. 2(s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over twenty years. Therefore, the first condition of s. 25F that appellant is a workman who has rendered service for not less than one year under the Railway administration, an employer carrying on an industry, and that his service is terminated which for the reason hereinbefore given would constitute retrenchment. It is immaterial that he is a. daily rated worker. He is either doing mannual or technical work and his salary was less_ than Rs. 500/· and the termination of his service does not fall in any of the except

ted _catagoris. Therefore, assuming that he was. a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more. within the meaning of s. 25F of the Act and his service is terminated for any reason. whatsoever and the

case does not fall in any of the excepted catagories. notwithstanding the fact that Rule 2505, would be attracted, it would have to be read subject to the provisions of the Aet. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditiOJ!S to valid retrenchment, the ordr of termination would be illegal and invalid.

27~ St1Pil!MB cotllT ll!POlts il982J !I s.C.l.

'Accordingly, we allow this appeal, set aside the order of the High Court and declare that the termination of service of the

appllant was illegal and invalid and the appellant continues to be in service and he would be entitled to full back wages and costs quantified at Rs. 2,000. ·

S.R.

Appeal allowed.

~ / .- .•

L. ROBERT D'SOUZA

D.A. DESAI

R.B. MISRA, JJ.

Industrial Disputes Act, 1947

sections 2(oo) and 25F

Ernakulam

Podannur

Tamil Nadu

Ministry of Labour, Government of India

April 23, 1974

tb March, 1970

19th February, 1971

High Court of Kerala

Central Pay Commission

September 28, 1974

section 2S

Industrial Disputes Act, 1947

section 2(oo)

Industrial Disputes Act, 1947

section 25F

sections 25F

section 2(oo)

[1976] 3 S.C. R. 160

[1977] 1 S.C.R. 586

[1980] 2 S.C.R 884

Sundera Money

Mohan

al

section 25F

section 9A

section 25F

Section 9A

section 9A

Fourth Schedule

Fourth Schedule

section 9A

Fourth Schedule

section 9A

section 25F

section 25

sections 9A and 25F

Fourth Schedule

Third Schedule

Fourth Schedule

section 9A

section 25F

underlying intendment of the Rule 2501

Article 14 & 16

section 25F

section 2(s)

section 25F

section 25B

CIVIL APPELLATE JURISDICTION

K.R.R. Pillai

P.A. Francis

A. Subhashini

DESAI

L. Robert D'Souza

A.K. Gopalan

28th May, 1973

Ministry of Railways

Southern Railway Administration

Ernaku!am

19th March, 1971

8th March', 1970

19th February,

1971

section 25F

Industrial Disputes Act, 1947

Ceritql Government

Central Government

Sepetember 28, 1974

Kerala High Court

Article 311

s. 25F

s. 2(oo)

s. 25F

ss. 25F

Hindustan Steel Ltd.

(1980] 2 S.C.R. 884

(1971] 1 S.C.R. 586

Santosh Gupta

Harip1asad Shukla

Delhi Cloth and General Mills Ltd

s. 2(oo)

s. 25F

ss. 25F

Delhi Cloth General Mills Ltd.

Francis

Hariprasad Shukla

Sundera Money's Hindustan Steel Ltd.

Delhi

Hindustan

Chandracud

Goswami

Gupta

Chandrachud

Krishna Iyer

Santosh Gpta

O. Chinnappa Reddy

Mohanlal

Constitution Bench

Hariprasad fihukla

Industrial Disputes Act

Pathak

Reddy

s. 2(oo)

Mohama/

s. 2(00)

Delhi Cloth & General Mills Ltd.

S. N. Mukherji

October I, 1964

S. N. Mukherji

January 19, 1966

Delhi Cloth &~General Mills Ltd

s. 9A

s. 25F

s. 9A

s. 25F

s. 9A

s. 25F

Section 9A

Fourth Schedule

s. 9A

Fourth Schedule

Fourth Schedule

s. 9A

Fourth Schedule

Revised Leave Rules

Civil Services Regulations

s. 25

Fourth Schedule

Fourth Schedule

Third Schedule

Fourth Schedule

S. 9A

s. 9A

Fourth Schedule

Fourth Schedule

s. 9A

s. 9A

s 9A

s. 9A

s. 25F

s. 25F

s. 9A

s. 25F

SUPREMB COURT REPORTS [1982] 3 s.c.

July I, 1948

Mangalapuram

Pindur

Mysore

Nov_ember

IS, 1954

Mangalore

September 5, 1966

Madras

Tuni

Andhra Pradesh

Rajahmundry

Samalkhotan

Virudhnagar

Manamadurai

March 19, 1971

March 6, 1970

February 19, 1971

K.P.

Pathrosa

hesai

K.N. Balakrishna

Balakrishna

January 24, 1962

August 25, 1964

Indian Railways

SUPREME COURT REPokTS (1982

Section 25F

s. 2(s)

s. 25F

s. 25F


11 •I

-""'

-.-.

MOHANLAl GANGARAM GEHANI

STATE .OF MAHARASHTRA

February 17, 1982

(S. MURTAZA FAZAL ALI, 0.A. DESAI AND

A. VARADARAIAN, JJ.]

Evidence Act-Section 145-Scope of-Identification parade-Accused identified by witMssfor the first time in court-Evidence-Validity of.

The prosecution case against the appellant was that on tho night of occurrence between 11 and 11.30 , the informer and two of his friends were standing on a road when suddenly the three accused emerged out of the car and tho appellant assaulted and stabbed the injured )lerson with a dagger. The prosecution alleged that there was !!Dcmity between the assailants and the injured person; that the informer lodged a F.I.R. at 00.50 hrs. and that the injured man was picked up by a Polic~ Wireless Van and adniitted in the hopital.

The trial court convicted the accused under section 326/34 l.P.C. and sentenced them variously.

The High Cdurt acquitted two of the three accused. In regard to the appellant, disbelieving the evidence of the doctor on the ground that the name 9f the assailant was first written by her as "Tony'' but later changed.-to read as titiny" and that secondly there was no particular .columa in the register where the name ofthe ... ailant could be written, the High Court altered the conviction to one under section 326 I.P.C. and sentenced him to rigorous imprisonment for three years.

On appeal to this Court it was contended on behalf of the appellant that (I) the F.I.R. was not lodged at 00.SO hrs. as claimed by the prosecution; (2) the injured did not know the. appellant fore the occurrence; (3) the version of the injured that the name of the assailant was disclosed-to him by a friend of the informer should not he accepted and (4) the discrepancy in the name of the assailant recorded by the doctor was not •uch as to completely discredit her

evidence.

Allowing the appeal,

HELD : (a) The change of name "Tony" into "Tiny" in the hospital register might be due to mis-hearing of the name in the first instance aod correct ing it later. Much could not be made of this circumstance. The doctor had initialled the alteration. The prosecution has not \made any attempt to declare

278 SUPkBME cOUkT kBPOld's [1982) 3 s.c.il.

td'. doctor a h<;>stile witness and to cross-examine her. Therefore'tbc change in the name could be a bonafide mistake. That apart, the injured was fully conscious at the time he made the statement to the doctor, [282 A-CJ

(b) The High Court was in error in. stating that there was no particular coluiiln in the hospital register in which the name of the assailcint could be mentioned. The entire part of the register where the statement had been recorded by the doctor is described as the "RegiStrar's note" which comprehends everything including the nature of injuries to the injured, any statement made by him or similar other matters. [281 E-F]

(c) There is no-evidence on record to show that the doctor was in any way friendly with the appellant or inimical towards the injured man; she was an absolutely dis-interested and independent witness. (281 OJ

~ 2 (a) The High Court had erred in holding that the doctor's evidence was inadmissible in that the provisions of section 145 of the Evidence Act had not been complied with. [282 F]

(b) Section 145 applies only to cases where the same person makes two contradictory statements-either in different proceedings or in two different stages of a proceeding. If the maker of. a statement Is sought to be contradicted, his attention should be drawn to bis previous statements under section 145, that is to say, where the statements made by a person or a witness is contradicted not by bis own statement but by the statement of another prosecution witness the question ofapplicatioo of section 145 docs not arise. [283 A-CJ

(c) The doctor's .stateme11t was an admission of a Prosecution witness.

If it was inconsistent with the statement made by another prosecuti1)n witness there .was no question of application of section 145 of the Evidence Act. [283-.C]

In the instant case the statement of the injured to the doctor being first in 'point of time it must be preferred to any subecqueot statement made by the injured.

There is much evidence to show that the injured did not know the appc} ..

Jant before the date of the incident. No test identification parade had been held.

The appellant was shown by the police before he identified him. If the accused was not known to the injured and his friends before the incident and was identi . fied for the first time in the court, this evidence has no value and cannot be relied , upoD. in the absence Of a test identification. parade, {285 E, C, F]

 V.C. Shukla v. State (Di/hi Administration), (1980] 3 S.C.R. SOO.aod Sahdeo Gosain & Anr. v. The King Emperor [1944] FCR 223, referred to.

CRIMINAL APPELLATE JUklSDICTION : Criminal Appeal No. 4 ofJ976. .

MOHANLAL V. MAHARASHTRA (Fazal Ali, J.) 279

Appeal by special leave from the judgment and order dated the 29th August 1975/lst Sept., 1975 of the Bombay High Court in Criminal Appeal No. 1639 of 1972.

Ram Jethmalani, Mrs. S. Bhandare, A.N. Karkhanis, T. Srldharan and C.K." Sucharita for the Appellant.

J.L. Nain, and H R. Khanna and M. N. Shroff for the Respondent.

The Judgment of tile Court was delivered by

FAZAL Au, J. This appeal by special leave is directed against a judgment dated 29th August 1975/lst September 1975, of the Bombay High Court convicting the appellant, Mohanlal Gangaram Gehani (hereinafter referred to as A-1) under section 326, I.P.C. and sentencing him t.o rigorous imprisonment for three years.

He was also convicted under s. 323 read with s. 34 I.P.C. but no separate sentence was awarded.

The trial court had convicted AI under s. 326/34 I.P.C. which was altered by the High. Court to one under s. 326 simpliciter.

The details of the prosecution case are to be found in the judgment of the High Court and it is not necessary for us to repeat the same.

We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, counsel for the appellant.

The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11-11.30 p.m.

According to the prosecution while lshrat Malik Faqih (hereinafter referred to as 'lshraC) was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at aliout 12.15 a.m. he met Salim, a friend of his, alongwith Shaikh Abdul . Kalim alias Pappu (P.W. 4). He also saw another person standing with Salim and Pappu. All of them started talking to one another when suddenly they , saw a black Fiat car coming from Lady Jamashedji Road and taking a turn to Chofani Road. The car stopped near the place where the aforesaid persons were talking and

A-1, A-2 (Shashi) and A-3 (Kumar) emerged from the car.

According to the informant, Ishrat, all the three accused were known to him before. These persons were dead drunk and asked bhrat 1md party as to who amongst them was their leader. Some sor(of

. 280 SUPREME COURT REPORts (198213 s.c.R .

an altercation took place in the course of which A-2 caught hold of the shirt of Shanker Shetty and assaulted b im with fists.

He was joined by A-3 and the altercation culminated in a murderous assault said to have been made by A-1 who took out a dagger and stabbed Sbetty on the right side of the stomach below the chest. Sbetty fell down. Thereafter A-I ran back to bis car and sped away leaving behind A-3 who could not get into the car. Ishrat .imm<diately proceeded to the Mahim police station and lodged an F.I.R. with Sub-Inspector Sawant (P.W. 7) at 00.50 hrs. on April 3, 1972.

According to the prosecution, the informant had rushed to the police station and lodged the F.I.R. within an hour of the occurre~~.

Subsequently, it appears that a wireless police van which passed through the place of occurrence having found Shetty lying injured picked him up and removed him to K.E.M. Hospital.

Dr. Heena (P.W. 11) admitted Shetty and made a note of the injuries received by him in the notesheet of the hospital register and_ also mentioned the fact that the injured had named his assailant as one Tiny. It was further alleged by the prosecution that Sawant after recording the F.I.R. rushed to the hospital and contacted Shetty and recorded his statement at 1.45 a.m.

After the usual investigation, chargesheet was submitted against A-1 to A-3 wh.o were ultimately tried and convicted for an offence under s. 326 read withs. 34 I.P.C. and A-1 was sen tenced as mentioned hereinbefore. A-2 and A-3 each was sentenced to suffer rigorous imprisonment for two years.

A-1 pleaded innocence and his defence was that he was falsely implicated due to enmity because Ishrat and his friends were carrying on Matka business and the appellant being an informer of the Customs Department had made certain reports against the prosecution witnesses particularly Ishrat who was a smuggler. We need not refer. to the defence of A-2 or A-3 as they have been acquitted by the High Court.

The appellant raised several points before the High Court which after hearing the parties confirmed his conviction but reduced his sentence to rigorous imprisonment for three years.

In support of the appeal Mr. Jethmalani has argued three important! points relating to certain circumstances which completely demoljsh the entire prosecution case against the appellant •

j--

' ,. \ ,

..-A-··

MOHANLAL v. MAHARASHTRA (Pazal Ali, J.) 281

In the first place, it was argued that the F.I.R. was not at all lodged at 00.50 hrs. as alleged by the prosecution but much later. Secondly, Sbetty did not know the appellant before the occurrence and thirdly, Mr. Jetbmalani argued, that his vcr.ion that the name of the appellant was disclosed to him by Salim should not be accepted.

Another important circumstance to which our attention was drawn and which bas greatly impressed us is that the hospital register (Bxt. 22) shows that when Shetty was taken to the hospital and produced before Dr. Reena (P.W. 11) be cave the name of bis assailant as one Tiny or Tony. The evidence further shows that Tiny or Tony was undoubtedly a known person who was living in a locality near the place of occurrence and was not a fictitious red .herring as the prosecution would have us believe. According to Bxt. 22 Shctty made a statement to Dr. Heena at 1.15 a.m. on April 3, 1972. Dr. Heena, who appeared as P:W. 11, fully supported the contents of Ext. 22.

It is manifest that once the statement of P. W.· 11 is accepted then the entire prosecution ase against the appellant falls.

The High Court realising the importance of this document and the evidence of P.W. 11 seems to have explained it away on three main grounds. In the first place, the High Court laid great emphasis on the fact that where Dr. Hcena bad mentioned the name of Tiny, there was no particular column where the name of assailant could be given. We have examined the original document ourselves and we find that the entire part of the register where the sta.tement bas been recorded by P.W. 11 is described as Registrar's note which comprehends everything including the nature of injuries of the injured, any statement made l?Y him or similar other matters. We are, therefore, uable to agree with the High Court that there was no particular column under which the name of the assailant could be mentioned. Moreover, there is absolutely no evidence on the record to show that P.W. 11 was in ay way friendly with the appellant or

had any animus against Shetty which might impel her to make false entries in order to oblige the appellant. P.W. II was an absolutely disinterested and independent witness. After going through her evidence we find no re'ason why her evidence shoul_d not be accepted in toto.

The High Court further observed that from the hospital register it appears \ht !h~ word 'Ton~· was first written1 then cros8'4

282 SUPREME COURT RiiPORTS

(1982]' 3 S.C.R.

and changed into. 'Tiny'. Tb is may be 11 mistake in the pronunciation oftbe name and much signifu:ance cannot be attached to this circumstance because P.W. 11 had initialled the 'change and it is not a case of forgery at all.

Moreovr. P!W. 11 was; examined as .a prpsecution witness and if the learned prosecutor had.· thought that she (P.W. 11) had given false evidence to help the appellant, he -could have declared her hostile and sought die permission of the court to cross, examine her but no such cours0 was adopted. Henee, th.e mere change of the word 'Tony' to Tiny' , can be explained on the basis of a bona fide .. mistake.

There js no .ei; asure. ,!!oth , nao;1es are decipherable. What may have happened was that the injured may have. pronounced Tiny in such a way.. that P. W. 11 thought it was Tony but on further clarific_ation the injured must have said that it was Tiny.

P.W. 11 in her evidence has clearly stated .that she had examined the patient and had given the history of the assault with . . , knife by a person called Tiny and that the patient was fully conscious. There is nothing in her evidence to show that her statement could be uni.rue. · .

The High Court tlien 'sought to exclude the evidence of P.W. 11 as being inadmissible as the provisions of s. 145 of the Evidence Act were not complied with.. It was suggested tha.t Shetty had mentioned the' name of the appellant in his stafemerit in court but the statement of P. W. II shows that he had mimed Tinf as his assailant and, therefore, Dr. Heena (P.W _ i I) should have been cross examined on this point to explain the contradiction.

With great respect, the High Court has erred on this point and has misconstrued the provisions of s. 145 of the Evidence Act v.; hich may be extracted thus:

"145. Cross-examination as to previous statements in writing. •

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is inte.nded to contradict him by the writing, his attention must; before the writing can be proved, be called to those parts of it which are to be nsed for the purpose of contradicting "1im/'

• "

MOHANLAL v. MAHARASHTRA (Fazal Ali, J.) 283

It is obvious from a perusal of s1 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under s. 145.

In other words, where the statement made by a person or w_itness is contradicted not by his own statement but by the statement of another prosecution witness, the question of the application of s. 145 does not arise. To illustrate, we might give an instance-suppose A, a prosecution witness, makes a particular statement regarding the part played by an accused but another witness B makes a statement which is inconsistent with the statement made by A, in such a case s. 145 of the'Evidence Act is not at all attracted. Indeed, if the interpretation placed by the High Court is accepted, then it will be extremely difficult for an accused or a party to rely on t~ interse

contradiction of various witnesses and every time when the contradiction is made, the previous witness would have to be recalled for the purpose of contradiction. This was neither the purport nor th<: object of s. 145 o( the Evidence Act.

For instance, in the instant ca>e, if P.W. 11 had been examined under s. 164 of Code of Criminal Procedure or before a committing court and made a particular statement which was contradictory to a statement made in the Sessions Court, thens. 145 would have applied if the accused wanted to rely on the contradiction. Such, however, is not the position because the evidence of P. W. 11 is not only consistent throughout but the earlier statement recorded by her can be taken to corroborate her. There was no question of con tradicting the statement of P.W. 11 by her previous or subsequent statement. On the other hand, Dr. Heena. was a prosecution .· witness whose statement that Shetty had named Tiny on the earliest ·

occasion, was an admission by a prosecution witness which threw considerab_le doubt on the complicity of the appellant in the occurrence. If Shetty stated in his evidence that he named" A I (Mohanlal) then that would be a statement which was contradic- ' tory to that of P. W. 11 and the question will be which of the two stateDJents should be preferred. If Dr. Heena had made twg inconsistent statements then only s. 145 would have

llpplid,

'UPRBME COURT REPORTS

[ 1982) 3 S.C.R.

In Bishwanath Prasad & Ors. v. Dwarka Prasad and Ors.(') while dwelling upon a distinction between an admission and a state ment to which s. 145 would apply, this Court observed as follows:

"In the former case an admission by a party is sub stantive evidence if it fulfills the requirements of s. 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to. the party because it is evidence proprio vigore : in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by s. 145 of the Evidence Ack''

The statement made by P.W. 11 was, therefore, an admission of a prosecution witness and if it was inconsisten\ with the statement made by another prosecution witness namely Shetty, there was no question of the application of s. 145 of the Evidence !\ct whicb did not apply to such a case in terms.

Thus, the reason given by the High Court for distrusting the evidence of Dr. Heena is wholly unsustainable. Moreover, the statement of the injured to Dr. Heena being the first statement in point of time must be preferred to any subsequent statement that Shetty may have made. In fact, the admitted position is that Shetty did noi know the appellant before the occurrence nor did he know his name which was disclosed to him by one Salim. Therefore, Salim who is now dead, being the source of information of Shetty would be of doubtful admissibility as it is not covered by s. 32 of the Evidence Act. And, once we believe the evidence of P.W. 11, as we must, then the entire bottom out of the prosecution case is knocked out.

 Apart from this, there is another circumstance which rends the testimony of Shetty (P.W. 5) valueless.

He admits in para JO of his evidence (page 35 of the paperbook) that he had 11.ot seen the accused before the date of the incident, that he did not know him at all, and that he came to know the name of the accused on the

.(I) r1974] 2 S, C,]l. 124,

-Ir

. MOHANLAL v. MAHARASHTRA ( Pazal Ali. J.) 285

date of the incident and that it was Salim who had given him the name of the accused while he was being taken to the hospital. The fact that Salim disclosed the name of the appellant to Shetty is falsified by the fact that he did not name the appellant to Dr. Heena when he reached the hospital but named one Tiny. It is also relevant to note that Tiny Adv.ani is not an unknown figure but is a living person as would appear from the evidence of P.W. 3, Shaikh, where he says that he knew Tiny" Advani who is also known to lshrat, Salim and Pappu and they are on greeting terms.

Another important circumstance which discredits the testimony of P.W. 5 (Shelly) is that he admits that although he did not know the accused from before the occurrence yet the accused was shown to him by the police at the police station. The relevant statement of P.W. 5 may be extracted thus:

"I had seen the accused before coming to the Court

and after the incident, I had seen the accused ten days D after I was discharged from the hospital. I was shown these accused by the Police at the Police Station."

Thus, as Shetty did not know the appellant before the occurence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification.

On this ground alone, the appellant is entitled to be acquitted It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straight forward.

For these reasons, therefore, we are unable to place any reliance on the evidence of Shetty so far as the identification of the appellant is concerned.

The other witness who knew the accused is P. W. 1 (lshrat) who is said to have lodged the F.I.R. at Mahim police station at

12.50 a.m. on 3.4.1972. There is clear intrinsic evidence in the case to show that the FIR was ante-timed and could not have been lodged at 12.50 a.m. P.W. 7, Sawant had clearly admitted in his evidence at page 41 of the Paperbook that the station diary entry which has tp contain the contents 0£ the F. T.R. dos mention that Is brat had - - . '. . -·~ . ' _,, . ,. .. . .

SUPREME COURT REPORTS [1982} 3 s.c.11.

visited the Police station and lodged the complaint. The witness further admits that the station diary entry does not also mention anywhere that be (P. W. 7) bad left the police station for K.E.M. hospital accompanied by P.W. I, Ishrat. He also admits that he knew the accused before the incident.

The witness further admits that although be had come to know the name of the assailant at 12.50 a.m. yet he did not take any step to arrest or cause the arrest of any one of the accused. He has not given any explanation for this unusual conduct. It is extremely doubtful if P. W. I had actually named the appellant, inspector Sawant would not have arrested him immediately .after the F.I.R. was lodged or, at any rate, after he returned from the Hospital.

The evidence, however, shows that A-I was arrested on .5.4.72, that is to say, two days after the occurrence.

No explanation .for this uqusual phenomenon has been given by the prosecution.

For these reasons, therefore, the statement of P.W. 1 that he lodged the F.I.R. at 12.50 a.m. on 3.4.72 and disclosed the name of the appellant becomes absolutely doubtf11I.

If we reject this part. of the .evidence of P.W. 1, then bis evidence on the question of complicity -of the appellant in the crime also becomes extremely doubtful:

The only other evidence against the appellant is that of P.Ws. 3 and 4.

So far as P. W. 3 is concerned his evidence also suffers from the same infirmity as that of Shetty.

P.W. 3 (Shaikh) admits at page 22 of the Paperbook that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident.

He further admits that the names of the accused were given to"him by the police.

In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade .the evidence of P. W. 3 was valueless and could not be relied upon as held by t'.1is court in V.C. Shukla v. State (Delhi Administration)('). where this Court made the following observations:

"Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless."

(D c19so1 s.c, R. soo.

- 111

,•--""/

MOlfANLAL v. MAHARA; HTRA (Fazal Ali, J.i 281

Same view was taken in a Federal Court decision in Sahdeo Gosain & Anr. v. The King Emperor.(')

This, therefore, disposes of the evidence of P.W. 3. As regards the eviden~ of P.W. 4, the High Court itself found at page 129 of the paperbook that the learned Additional Sessions Judge had disbelieved P. W: 4, Shaikh alias Pappu. Therefore, the evidence of P.W. 4 also goes out of consideration.

The position, therefore, is that there is absolutely no legal evidence on the basis of which the appellant could be . convicted.

For the reasons given above, we are satisfied that the prosecu- ;;. tion has not been able to prove its case against the app, ellant beyond reasonable doubt. The appeal is accordingly allowed and the appellant is acquitt'd of the charges framed against him. He will now be discharged from his bailbonds and need not surrender.

P.B.R.

Appeal allowed,

(1) [1944) FCR 223.

MOHANLAl GANGARAM GEHANI

STATE .OF MAHARASHTRA

February 17, 1982

S. MURTAZA FAZAL ALI

0.A. DESAI

Section 145

section 326

section 326

I.P.C

section 145

Section 145

section 145

section 145

section 145

[1944] FCR 223

MOHANLAL V. MAHARASHTRA

Fazal Ali

Ram Jethmalani

S. Bhandare

A.N. Karkhanis

T. Srldharan

C.K." Sucharita

J.L. Nain

H R. Khanna

M. N. Shroff

FAZAL Au

Mohanlal Gangaram Gehani

section 326

I.P.C

s. 323

s. 34

I.P.C

AI

s. 326

I.P.C

s. 326

Jethmalani

April 2, 1972

Salim

Shaikh Abdul . Kalim alias Pappu

Pappu

Shashi

Kumar

Shanker Shetty

Sbetty

Ishrat

Mahim police station

Inspector Sawant

April 3, 1972

Shetty

K.E.M. Hospital

Heena

Sawant

s. 326

I.P.C

Ishrat

Jetbmalani

Reena

Tiny

Tony

Shctty

Hcena

s. 145

Tinf

s. 145

s. 145

s. 145

s. 145

s. 145

s. 164

Code of Criminal Procedure

Mohanlal

Heena

s. 145

s. 145

s. 21

s. 145

Shetty

s. 145

s. 32

Tiny Adv.ani

Shaikh

Tiny" Advani

Shelly

Mahim

Sawant

K.E.M. hospital

Tripathi

Shaikh alias Pappu

[1944) FCR 223