STATE OF PUNJAB

DEWAN CHUNI LAL

February 16, 19'70

[J. M. SHELAT AND G. K. MITTER, J1.J Constitution of India, Art. 311-0pportunity to show cause "llflinst dismiss•l-Departmental enquiry is vitiated if officer concerned Is not given reasonob/e opportunizy of conducting his defence.

Punjab Police Ru/es-Officer charged with inefjicie11ey within meaning of R. 16. 25(2)-Adverse reports relating to 1941 and 1942 not relevant when officer allowed to cross efficiency bar in 1944.

The respondent was a Sub-l!jSpector of Police and had served as such in various places which are no,, V in Pakistan before being posteq to Gurgaon in 1948. His confi<lential service reports upto 1940 were satisfactory. In 1941 and 1942 he got bad reports. However he was allowed to cross the efficiency bar in 1944.

The reports relating to 1945 and 1946 were again adverse.. In 1948 the report charged him with having taken bribe in a particular case, but the charge was on enquiry found to be false.

On October 12, 1949 he was served with a charge sheet setting forth extracts from his confidential character roll imputing inefficiency and lack of probity while in service from 1941 to 1948. He was asked to answer to the prima facie chal'ge of inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules. A departmental enquiry was held and the enquiry officer in 1950 recommended his dismissal. After a further show cause notice the respondent was dismissed from seryice. He thereupon filed a suit in which he challenged his dismissal as wrongful on the gj'ounds inter alia that (i) Reports relating to the years 1941 & 1942 should not have been taken into consideration against him; (ii) that the enquiry oljicer did not allow hiin to examine in defence the :officers who

- had written adverse reports against him and other witnesses who could have thrown light on these reports. The trial court decreed the suit and the High Court also held in the appellant's favour mainly on the ground that Art. 311 of the Constitution had not been complied with. In appeal to this Court by the State of Punjab.

HELD: (i) Reports earlier than 1944 should not have been"<:onsidered at all inasmuch as the respondent was allowed to cross the efficiency bar in that year. It was unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports .for 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.

Moreover there was no specific complaint in either of the two .years and at best there was only room for suspicion regarding his behaviour. [699 HJ

(ii) On the facts of this case it was impossible to hold that the respondent had been given reasonable opportunity of conducting . his defence before the enquiry officer. It was clear that if the enquiry officer had summoried at least those witnesses who were available and who could have thrown some light on the reports made ag.ainst the respondent the report might will have been different.

Refusal of the right to examine

witness~ who had made general remarks against the respondent's.character and were available for xamination. at the , enq~~ amoun~ to denial of a reasonable opportunity of showmg cause agamst tlie action proposed.

Although the case was governed by Art. 3tl as it stood prior to its

A a!"endment in 1963 the, respondent could not be deprived of an effective nght to make representation against the aCtion of dismissal [70 I F-O

703 C-D] . '

In this view the appeal by the State of Punjab must fail.

Sadananda Mohapatra v. State, A.I.R. 1967 Orissa 49 and State of lammu & Kashmir v. Bakshi Ghu/am Mohammed [1966] Supp S C.R B 401, distinguished. ' · •

State o/ Orissa v. , Sailabehari, A, l.R. 1963< Orissa 73, referred to.

' CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2348 of 1966.

Appeal from the judgment and decree dated September 6, 1962, of the Poojab High Court in Regular First Appeal No. 53 of 1956.

V. C. Maha; an, for the appellant.

N. S. Bindra and B. Datta, for the respondent.

The Judgment of_ the Court was delivered by

Mitter, J.

By this ppeal the State of Punjab challenges the judgment and order of the Punjab High Court upholding the decree of the Subordinate Judge, Gurgaon declaring that the dismissal of the respondent from service was illegal and inoperative.

The respondent, a Sub Inspector of Police was . called upon to answer a charge framed on October 12, 1949 setting forth extracts from his confidential character roll showing his inefficiency and lack of probity while in service from 1941 to 1948 and to submit his answer to the prima facie charge .of inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.

The respondent had joined the police service and had served as a Sub Inspector in various places which are now in Pakistan before he was posted to Gurgaon in the year 1948. It appears

that the view taken of his conduct and reputation by his supetior officers, over the years was not consistent. In some years he got , what is known as a 'B' certificate and in others an 'A' certificate.

According to rule 13.17 of the Punjab Police Rules, Superintendents of Police had to , prepare personally and submit annually to the Deputy Inspector-General of Police confidential reports in the form prescribed on the working of all Assistant Sub Inspectors and Sub Inspectors serving under them. The reports were to be of two kinds 'A' and 'B' and to be marked as such.

An 'A' report was for recommending tl!at incremental promotions should not be withhe_ld while a 'B' report was to contain a recommendatin, for reasons to be fully stated, that incremental promotions should be withhel, d. The rule further shows that the purport of all 'B' reports was to be formally communicated to the officer

concerned and his written acknowledgment to be taken. It also prescribed tbat the submission of two successive 'B' reports regarding an officer would result, automatically in the institution of departmental proceedings against him witb a view to stoppage of increment.

The punishments which could be awarded dpar.tmenally are set out in rule 16.1 and under rule 16.2 ( 1) dismtssal 1s to be awarded only for the gravest acts of miscond11ct or as the cumulative effect of continued misconduct proving in;:orrigibility and complete unfitness for police service.

Rule J 6.24 sets out the procedure to be followed in departmental enquiries.

The sum and substance of rule 16.24 is that in case the police officer did not admit the misconduct

"the officer conducting the enquiry shall proeed to record such evidence, oral and documentary, in proof of the accusation as is available and necessary, to support the charge.

Whenever possible, witnesses shall be examined direct, and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them.

The officer conducting the enquiry is empowered, however, 'to bring on to the record the statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay and expense or inconvenience, if he considers such statement necessary, and provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a tnagistrate, and is signed by the person making it."

Further the accused officer was required to state the defence wit- F nesses whom he wish~ to call together with a. summary of the facts as to which they would testify. The enquiring officer was empowered to refuse to hear any witnesses whose evidence he considered would be irrelevant or unnecessary in regard to the specific charge framed.

Under rule 16.25 ( 1) a police officer called upon to answer

::1 chrg: of misconduct must be given every opportunity of provmg his mnocenc~. Under sub-rule (2) of this_!!!le, charges need

nt be framed m relation only to a specific incident or act of

niisoduct and :when reports reived against an officer or a prehmtnary enqmry show that his general behaviour has been such as to be unfitting his position or that he has failed to reach or maintain a reasonable standard of efficiency he may and should be charged accordingly, and a finding of guilty on such a

charge would be valid ground for the jnfilction .of any al!th~ departmental punishment which might be considered suitable m the circumstances of the case.

The confidential reports extracts whereof were contained. in the charge sheet make it clear that the respondent was bemg accused of laziness and ineffectiveness and as having a doubtfµl reputation as to hi~_honesty. Excepting for the year 1948 wherein a specific instance of corruption was charged against him the other reports only contained generally adverse remarks.

For instance the remarks against him for the year 1941 were to the effect that he was "lazy and ineffective and that he had been warned for dishonesty, laziness and lack of control." In fl!e year 1942 wnen he was posted at Dera Gazi Khan his annual confidential report

showed that although there were no definite complaints he had not shown any outstanding ability or energy.' The Superintendent of Police was not certain about his honesty but had no special complaints against him.

The respondent was not allowed to cross the efficiency bar in that year in view of his past reports.

It is the common case of the parties that the respondent was allowed to cross the efficiency bar in 1944. In 1945 he was transferred to Montgomary and got a 'B' report and his honesty was characterised as doubtful. He get another warning in that year.

In 1946 the Superintendent of Police remarked that he was a failure as a Station House Officer and was slow to carry out orders and had no grip on his staff. T)le Deputy Inspector General of Police, Multan Range, summed up his 16 years' service with the note :

"From all accounts he is one of the worst Sub Inspectors in the Range and the department will be well rid of him, if action under r. 16.25 (2) can be successfully taken against him. Action under r. 16.25 cannot succeed at present but his past record is such that any further complaint should warrant his dismissal."

In the. confidential reports of the year 1946, the Superintendent of Police, Muzaffargarh, stated that he was not honest and was very poor on parade.

The Deputy Inspector General Multan R•nge gave him a third warning. The Superintendent f Police, Muzaffargarh, ho:vever remarked that although his previous r:cord was unsatisfactory he appeared to be trying to-mend himself. In the year l 948 he-get=a 'C' report aud the Superintendent of Police described him as "thoroughly corrupt". The S.P. further remarked that

"Thi~ ocer fell to unhd of depths of moral degradal!On m corrupt .practices while posted to City

 Rewari inasmuch as he changed the opium recovered by him earlier with Rasaunt for Rs. 1,000/- bribe and then made over the opium for sale in the black market.

He was known to have mixed up with bad characters, gamblers and Ris!lawatdalals."

According to the charge sheet the attested copies of these reports were to be used as evidence against him,

In regard to the year 1948 and the charge above mentioned it is enough to say that an enquiry was held against him and he was held entitled to an honourable acquittal.

The respondent pleaded not guilty to the charge and filed a list of 63 witnesses whom he sought to examine in his defence.

He also gave a summary of the facts about which each of the witnesses was to depose.

The enquiry officer allowed him to examine 21 witnesses in defence.

No witness was examined on behalf of the department. On 25th May 1950 Bishambar Das, Superintendent of Police made a report that the char_ge had been fully brought home to the respondent and it was suggested that he should be dismissed.

The Deputy Inspector General asked him to show cause why he should not be dismissed from service.

After receipt of a written representation made by the respondent and recording his statement the Deputy lnspctor General passed an order dismissing the respondent from service.

The respondent then filed his suit in the court of the Subordinate Judge, Gurgaon, wherein his main complaint was that the enquiring officer did not record any evidence in support of the charge nor were the persons making the reports examined direct and in his presence with opportunity m him to ross examine the persons who had made those reports : he also averred that good reports earned by him during his long period of service had not been taken into account. He also pleaded that he had been allowed to cross the efficiency bar in December 1944 and had been given a selection grade in 1945.

It was urged before us that the crossing of the efficiency bar must be regarded as giving him a clean bill up to that date and in view of this the reports of 1941 and 1942 should not have been taken into consideration against him.

As regards the reports for tji.e years 1945 and 1946 the respondent's complaint was that the Superintendent of P01ice, Montgomary, was for certain communal reasons biased against him.

As regards the reports for the period May 27, I 946 to 30th June 1946 and the rest of the year the same had been made by Shamsheer Singh and Sadat Ali, Superintendents of Police of

Muzaffargarh. Shamsheer Singh had given him no adverse remark. and had left the column of honesty ip the report "blank". Sadat.

Ali who was biased against the respondent got the word "no'" typed opposite the column of hon_esty.

The report for the year 1948 was based mainly on the opium case and as he hnd been cleared of the charge in respect of that case, there was no foundation for. the report for that year. Further the order of dismissal was in violation of r. 16.2 as this punishment was to be awarded. for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service which facts did not exist in his 'ase. A further complaint was made that the enquiry officer did not care to sUlllmon A. L. Chopra, the Rehabilitation Inspector and Captain Chuni Lal, Ex-military man although they had been allowed t0>

be examined previously.

The deposition of Ram Chander, Assistant Surgeon, a defence witness was not typed out and made a part of the record although his deposition was noted by the steno-typist in the note book. The order of dismissal was passed by the Deputy Inspector General without considering this evidence. Besides the above, the evidence of well placed officers like Deputy Commissioners, Superintendents of Police, Sub Divisional Magistrates and others who had testified to the respondent's efficiency, honesty and reliability were totally ignored.

The Subordinate Judge held that the charge framed against the respondent was vague and indefinite and the enquiry was. unfair and inadequate because some of the authors of the reports adverse to the respondent, though available, were not produced to enable the rHpondent to cross-examine them. that oral and. documentary evidence sought by the respondent was withheld and. as such no reasonable opportunity of defence was afforded to him.

In the result he held that the requirements of Art. 311 of the Constitution had been violated and the order of dismissal was inoperative.

The High Court did not agree that the charge was vague but focussed its attention mainly on the question as to whether tliere had been a substantial compliance with the requirements of Art. 311 and whether the enquiry conformed to the principles of fairplay and natural justice. Considering the Service Rules already mentioned the High Court observed that there was no dispute that reports till J 940 were generally favourable to the plaintiff.

In our view reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year.

It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could

have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. I! will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding his j:>ehaviour.

It further appears from the judgment of the High Court ba.sed mainly on the lengthy finding of the Superintendent of Polle~, Bishambar Das dated 25th May 1950 that from 1942 to Apnl 1945 the respondent got 'A' class r7ports. though ~~ .super!or offi- .cers were not certain as regards his honesty.

His mtegnty was considered to be doubtful in the succeeding reports up to 3 lSt December 1946. As regards the first half of 194 7 the Superintendent of Police had noted that he was not in a position to make any remark about his honesty as he ltad not seen the respondent's work at any police station. The Deputy Commissioner however remarked that his work was quite sati!factory and he was honest.

For the remaining part of 1947 he received an 'A' report from the District Superintendent of Police who also stated that the respondent seemed to be honest and competent

There can be no doubt that the 19-48 report was a very damai:- ing one and if the allegations contained therein had any substratum of truth the respondent could be dismissed from service on the strength of the charges based on those allegations alone.

But, as already noted, the respondent was cleared of this charge.

The High Court opined that the enquiry officer, Bishambar Das, should not have neglected to summon five officers who made reports about the respondent and were available for examination at the enquiry. They were Chunilal Malhotra, Choudhry Roshan Lal, Deputy Commissioner, Shri Ismail. Shri. Holiday and Shri Sant Prakash Singh• According to the High Court the defence of the respondent in the enquiry being that the reports against him were based upon no sufficient data and/ or were made partly because of the poisoning of the mind of the District Superintendent of Police by the Deputy Superintendent of Police on communal considerations the only way the respondent could 'have substantiated his defence version would be by putting questions to the reporting officers if made available during the enquiry. One

of the above officers Shamsher Singh was actually examined as the respondent's witness in the sui\ and his evidence showed that he had left the column for honesty in the report for 1946• blank as be had not seen the respondent at his work.

This evidence wen. to show that if lie had been examined by the enquiry officer a portion of the report taken in consideration against the respondent would have been found to be without substance.

Another ufficer. Chunilal Malhotra though not examined before the enquiry

PUNJil v. CHUNI LAL (Mitter, /,) 701

A Olicer was called in defence in the suit. All that he could say was that he bad received complamts .against l'ISt but he did not remember whether they were .oral or m wnting. 'I1le

High Court justifiably col1UDC]lted th.at there was no sufficit reason for the ehquiry officer refusmg to summon Chunilal Malhotra.

On an overall consideration of the facts, the High a Court took the view that :

"The approach of the enquiry officer was such that whatever be the testimony of other witnesses, it could not undo the efh>cg of the reports-made by the superior officers about the . plaintiff." c In other words the enquiry officer shut his mind to the testimony

afforded by a large number of witnesses including a Deputy Commissioner, Under Secretary, two Superinteudents of Police, a few Magistrates and some Deputy Superintendents of Police who had given evidence about the respondent's reputation and work. ·

Further the High ourt took the view that thc:i remarks of the D Deputy lnspector Ge11-eral of Police against the res.pendent in the 1948 that he was not worth being retained m service had influenced the entire approach of the enquiry officer who was a subordinate to the Deputy Inspector General of Police. The Deputy Superintendent of Police Lekhraj examined. at the hearing of the suit by the respondent and te whom another enquiry against I the respondent had been entrusted earlier by Bishambar Das, the inquiry officer, told the court that when he (Lekhraj) exonerated the respondent in the other enquiry, Bishambar Das had sent for him and told him that the hier authorities wanted to take serious action to the extent of dismissal of the respondent.

In our view the High Court arrived at the correct conclusion and on the facts of this case it is impossible to hold that the respondent had been given reasonable opportunity of conducting hi! defence before the enquiry officer.

From what we have stated it is clear that if the e11<J!liry officer had sunimoned at least those witnesses who were available and who could have thrown some

light on the reports made against the flllpondent the report might well have been d.ilferent. We cannot also IOle sight of the fact that charges based on the reportl-fOr the yea.rs 1941 and 1942 should not have been levelled apinst the re8pondent.

Learned counsel for the appellant relied on two decisions of the Ori&sa High Court in support of his cootention that it was not necessary to examine the authors of the confidential reports against the respondent. In Sadananda Mohapatra v. Stat~( 1 ) tk court

considered the question as to whether reasonable ty had

(!) A.1.R. 1967 Oriua 49.

SUPREME COURT REPORTS

(1970) 3 S.C.ll.

an fact been given to the petitioner before the punishing authority .had made use of the adverse remarks in the confidential character Toll. According to the High Court the petitioner in his examina- tion to the second show cause notice had referred to the good services that he had rendered to the department. The High Court 'Observed that the fact that the petitioner had done good wodt

led the punishing authority to impose a lesser punishment and thus the confidential roll h_ad hlped the petitioner. It also appears •from the judgment that the punishing authority in that case had -during the personal hearing discussed the confidential character with the petitioner and accordingly the High Court was of opinion that even though the adverse remarks in the petitioner's confiden- tial character roll were not included in the second show cause notice inasmuch as the same had been discussed at the persoruil hearing it could not be said that no reasonable opportunity had been given to the petitioner.

In our view the facts in this case are entirely different. The respondent before us wanted an opportunity by examining the -witnesses mentioned by him to explain away the circumstanees

which had led to the making of the adver_se remarks and he was given no such chance.

The second authority relied on for the appellant was State of iOrissa v. Sailabehari('). In this case the entry in the diary of a Deputy Collector went to show that the Special Assistant Agent, i.e., the respondent, had no reputation for honesty. The diary mentioned the source of information on which the remarks were based and although none of the informants figured as wit!lesses in th11 departmental enquiry the touring officer was examined as a witness and his tour diary proved at the inquiry and the res- -pondent had been iriven an opportunity to cross-examine him.

On those facts the High Court of Orissa, after discussin1t this -position, took the view that although insufficient for the establishment of a criminal charge the position was different in 'the case of departmental enquiries where punishment could be based merely on general reputation for corrupt conduct.

In our view there was no flaw in the enquiry which the Orissa High Court was called upon to examine in that case and the above dictum of the High Court was not really called for.

Learned counsel also wanted to rely on a decision of this Court in State of Jammu and Kci; hmir v. Bakshi Ghu/am Mohammed(') where the Court was dealing with the proceedings -0f a Commission of Inquiry under the Commission of Inquiry Act.

0) A.J.R. 1963 Orissa 73.

(2) (1966] SUJJp. S.C.R. 401.

A Section 10 of that Act gave the delinquent a right to be heard but only a .restricted right of cross-examina.tion, i.e .. it was confined only to the witnesses called to depose against the person demanding tile right. It was further observed that as "the Act did not contemplate a right of hearing to include a right to cross-examine" "it will be natural to think that the statute did not intend that in B other c1!5es a party appearing before he Commission should have

any~ further right of cross-examination". On the facts befoie it the Court came to the conclusion that no case had been made by Bafshi Ghulam Mohammad tl>at rules of natural justice required that he should have a right to cross-examine all the persons who

had sworn affidavits supporting the allegations made against him.

In our opinion the above observation regarding the limit of the right to cross-examine dissociated from the context in which it was made cannot help the appellant.

Although the case _ is governed by Art. 311 as it stood prioi to its amendment in 1963 the respondent could not be deprived of an effective right to make representation against t~- action of dismissal.

In our opinion, refusal of the right to examine witnesses who had made general remarks against his character and were available for examination at the inquiry amounted to denial of a reasonable opoprtunity of showing cause against the action.

In the result we hold that the High Court came to the correct conclusion and the appeal should be dismissed with costs.

G.C.

Appeal dismissed.

STATE OF PUNJAB

DEWAN CHUNI LAL

February 16, 19'70

M. SHELAT

G. K. MITTER, J

Constitution of India

Art. 311

Gurgaon

October 12, 1949

Art. 311

State of Punjab

Art. 3

V. C. Maha

N. S. Bindra

B. Datta

Mitter

Punjab High Court

Subordinate Judge, Gurgaon

Montgomary

Muzaffargarh

Multan R•nge

Rasaunt

25th May 1950

Bishambar Das

Shamsheer Singh

Sadat Ali

sUlllmon A. L. Chopra

Chuni Lal

Ram Chander

Art. 311

Art. 311

Considering the Service Rules

Bishambar Das

Chunilal Malhotra

Choudhry Roshan Lal

Ismail. Shri

Holiday

Sant Prakash Singh•

Shamsher Singh

Chunilal Malhotra

Lekhraj

Ori&sa High Court

High Court of Orissa

Orissa High Court

Section 10

Bafshi Ghulam Mohammad

Art. 311


C::HINNAMUTHU GOUNDER AND ORS. ETC. v.

P. A. S. P.EltUMAL CHETrIAR

F e/Jru•ry Hi, 1 '70 [J. c. SHAH, K. s. HEGllE Am> A. N. GllOVER, JJ.]

Madras Cultivating Tenants -,,..tection Act (Mad, 25 of 1955), ss. 3(2) (Ii) and 6A-Scope of.

The respondent, who was the occupancy ryot of an inam village, filed a suit for eviction of his lessees, the appellants (who were the cultivating tenants) , and for possession of the land. The appellants set u, occupancy C rights in themselves as a defence. The lower courts and the High Court 'found that the appellants wilfully denied the title of the respondent. and decreed the suit.

On the question of the jurisdiction of the civil ceurt to try the suit,

HELD : Under s. 6A of the Madras Cultivating Tenants Protection Act, 1955, the civil court is iounll te transfer a suit for possession to the o Revenue Divisional Officer only if the defendant proves that he is a culti vating tenant entitled to the ltenefits under the Act, that is, if he proves the existence of both the conllitioas, namely : (a) that he is a cultivatin1 tenant, and (b) that he is eatitlell te the llenefits unller the Act. Under s. 3(2)(d) of the Act, however, a tenant cannot claim the llenefits under the Act if he wilfully denies the title of the landlord. Therefore, as !Ao appellants became disentitled to the llenefits unller the Act, the civil court E was competent to try the suit. [706 D-F]

The fact that the civil court has to decide initially some questions wi!hin the jurisdiction of the Revenue Court does not aft'eot the interpretation of s. 6A. [706 F-G]

V. Kuppuswami &: Ors, v.

Sri Subramaniaswami Devuthanam at Thiruvidakkazhi bv its Trustets K<nakasabhai Pillai and Muthuramalinga Chettiar &: Ors. (1958) I M.L.J. 208, approved.

M. S. Ramahandra Sastrigal v. Kuppuswami Vanniar, [1961] I M.L.J. 335, referrci; t to.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1116 to 1118 of 1966.

Appeals by special leave from the judgment and order dated September 2, 1965 of the Madras High Court in Second Appeals Nos. 299, 335 and 346 of 1961.

S. Mchan. Kumaramangalam and R. Gopalakrishnan, for the appellants (in all the appeals).

D. Narsaraju, G. Narosimham and K. Jayaram, for respondent (in all the appeals) .

CHINNAMUTHU v. PERUMAL (Grover, J.) 705

The Judgment of the Court was delivered by

Grover, J. These three appeals by special leave arise out of three suits filed by the plaintiff for declaration of hi~ title to the lands described in the schedules attached to the plaints and for possession of those lands as aso for. arreas of ret and for. mese profits.

The suit lands are situate m an mam village whicll 1s an estate within the meaning of the Madras Estates Land .f>.ct

(Act 1 of 1908) as originally enacted.

The plaintiff claimU that he and his predecessors in title were ryots under the inaadars of the village and that the defendants were lessees aa.d were only under-tenants.

The defence of the defendants who are appellants before us was that the plaintiff and his predecessor in title were land-holders and not ryots and that the defendants had occupancy rights by long possession and by virtue of the provisions of the aforesaid Act.

The trial court, the lower appellate court and the High Court have negatived the contentions of the appellants.

It has been concurrently found that the plaintiff and his predecessors were ryots under the inamdar and that the appellants were only undertenants under leases granted by the predecessors in title of the plaintiff.

In other words it has been held that the plaintiff is !he occupancy tenant and that the defendants were mere cultivating tenants.

In order to determine the point which has been pressed before us it is unnecessary to state other facts.

The sole question on which arguments have been addressed is whether the civil court had jurisdiction to decree the suit in respect of possession in the presence of the provisions of tl1e Madras Cultivating Tenants Protection Act 1955 (Act XXV of

1955) hereinafter called the Act. Section 2(a) defines "cultivating tenant" to mean a person who carries on personal cultivation on any land under a tenancy agreement and includes any person who continues in possession after the determination of the tenancy agreement as also the heirs of suh person.

According to the provisions of s. 3 no cultivating tenant shall be evicted from the holding at the instance of the landlord whether in execution of a decree or order of a court or otherwise; but that is subject to subsec. (2) which contains the various contingencies in which the tenant cannot claim the protection of the Act. Clause ( d) which appears in the exceptions reads "who has wilfully denied the title of the landlord to the land".

According to Explanation I a denial of the landlord's title under the bone fide mistake of fact is not wilful within the meaning of the aforesaid clause.

Sections 6 and 6-A are material for our purpose and may be reoroduced : LllupCl/70-15

SUPREME COURT REPORTS

[1970] 3 S.C.R.

S. 6 "No civil court shall, except to the extent specified in section 3 ( 3), have jurisdiction in respect of any matter which t.he Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

S. 6A ''If in any suit before any Court for possession of, or injunction~ relation to, any land, .it is proyed, by affidavit or otherwise that the defendant 1s a cultivating tenant entitled to the benefits of this Act, the Court shall not proceed with the trial of the suit but shall transfe~ it to the Divisional Officer who shall thereupon deal with and dispose of it as though it were an application under this Act and all the provisions of this Act shall apply to such an application and the apolicant."

The clear import of s. 6A is that in any suit before any civil court for possession if the defendant proves not only that he is a. cultivating tenant but also that he is entitled to the benefits of the Act the civil court is bound to transfer it to the Revenue Divisional Officer and cannot proceed to try and dispose it oi itself. In the present case it has been found by the High Court as also by the trial court that the appellants had wilfully denied the title of the respondent who is the landlord.

They thus become disentitled to the benefits under the Act.

Consequently the civil court had jurisdiction to proceed with the trial and there was no question of its transferring the suit to the Revenue Divisional Officer.

There has been a consisl\:nt course of decisions of the Madras High Court that in order to attract the applicability of s. 6-A both the conditions must co-exist, namely, the defendant must be a cultivating tenant within the meaning of the Act and he should be entitled to the benefits of the Act. If both these conditions are not satisfied no question of any transfer under s. 6-A will arise. The civil court may have to determine, for the purpose Of coming to the conclusion, whether a suit has to be transferred under s. 6-A, certain questions which are within the .iurisdiction of the revenue court under the Act. But that cannot affect the interpretation of the words "cultivating tenant entitled to the benefits of the Act". In V. Kuppuswami & Others v. Sri Subramaniaswami Devasthanam at Tiruvidakkazhi by its Truslees Kanak!13abhai Pillai and Muthurama/inga Chettiar & Others(1 ) this view was clearly expressed by the Madras High Court.

In a later Bench decision in M. S. Ramachandra Sastrigal v. Kuppuswami Vanniar( 2) the existence of a third condition was also

<I) (1958) I M. L. J. 208.

12) (1961) I M. L.J. 335.

CH!NNAMUTHU v. PERUMAL (Grover, /.) 707

A emphasised.

It was said that s. 6-A would become applicable if the defendant is a cultivating tenal!t and is entitled to the benefits of the Act and further he must show that on a transfer of the proceedings to the Revenue Divisional Officer he would be in a position to obtain one or the other statutory reliefs provided for in his favour under the Act. It is unnecessary, in the present B case, to deal with the third requirement mentioned in the judgment of the division bench.

The appellant have been clearly found to have wilfully denied the title of the landlord.

That disentitled them to the benefits of the Act by virtue of the provisions contained in s. 3(2)(d). The trial of the suit was thus C?mpetent in the civil court which had complete jurisdiction . to c dispose of the same.

The appeals fail and are dismissed but in view of the entire circumstances there will be no order as to costs in this court.

V.P.S.

Appeals dismissed.

C::HINNAMUTHU GOUNDER AND ORS. ETC

c. SHAH

Madras Cultivating Tenants

ss. 3(2)

s. 6A

s. 3(2)(d)

s. 6A

V. Kuppuswami

Subramaniaswami Devuthanam

S. Mchan. Kumaramangalam

R. Gopalakrishnan

D. Narsaraju

G. Narosimham

K. Jayaram

Grover

Section 2(a)

s. 3

Sections 6 and 6

S. 6

section 3

S. 6A

s. 6A

Madras High Court

s. 6

s. 6

s. 6

s. 6

s. 3(2)(d)


' , ! ~

. ___ : ___ /;'.,,----;') ·\

\.-i- . ' < .· " ; 708 ' . ''.'•. ' -·- \ ·~\ '\,;

' 'BIHAR STATE ROAD TRANSPORT CORPORATION

. \\·; '

V.'

STATE OF BIHAR & ORS.~,

February 19, 1970 °' ·

[J. M. SHELAT AND G. K. MITTER, JJ.]

B- '.

Industrial Dispute-Termination of Service for misconducl.-Principles of natural justice-Duty to conform to--Corporation taking over employees "'on the rolls'' of the departmental undertaking-Includes those whO are cf.eemed --to b'e -in service-Taking over power Gnd functions of undertaking includes regulation of cOnditions of service of employees arrd disci

plintlry action-Labour Court-Jurisdiction_ to go behind language of order of termination-Certiorari-Finding of Labour Court that order of termi-

C - nation punitive neither unreasonable or perverse-High Court lvill not be--

justified in interfering. - '' ;·./ The thirdrespondent was a Head Clerk .in the Rajya Transport Authority, a departmental undertaking -of the respondent

0 State Government. - His appointment was temporary -terminable without notice. and without assigning any reason. By a_n order dated February 18, 1959 he was discharged from service. On April 20, 1959, the State_ Government, D in exercise of the power conferred under the Road Transport Corporation _Act, .1950, set up the appellant corpdration and under the notification the corporation was to "exercise all the powers and perform all the functions" till then exercised and performed by the Rajya Transport Authority. In February 1961 the State Government referred the question of termination cf the third respondent's services to the Labour Court. The Labour Court held that he was a workman, that the termination of service was E punitive in nature in view of the Corporation'S letter addressed to the Conciliation Officer that the third respondent had committed various irregularities in the discharge' of his duties,. and that the appellant Corporation was the successor _in title to~ the Rajya Transport Authdrity.· 11te Labour Court, _therefore, held the termination illegal and -directed the Corporation to reinstate the third respondent in its -service A wi'it petition in the High Court for quashing the award was dismissed. In. the appeal F to this Court, it was contended that ( 1} the third respondent wa"s not a workman as defined in s. 2(s) of the Industrial Disputes Act; (ii) tbe order_ terminating his service was an order of. termination simpliciter and

(iii) even assuming the order -was illegal his remedy was against the State

.Govemmnt and not against the Corporatlon.-Dsmissing the_ appeal,

HELD ; (i) Prima facie the third respondent was neither an officer nor a member of the office staff in the administrative offices~ The standing Orders •. therefore, were applicable to him. The definition of .workman in G s. 2(s) of the Industrial Disputes Act being acomprehensive one, the third respondent must be held to be a workman within the meaning of s. -_ --:--- 2(s) whose conditions of service were governed by the standing orders, -- - 1712 J!l'

(ii) The standing orders do not provide any precedure for dealing J with an employee guilty pf'misconduct enume'rated therein~ but it is well- II established that termination of service on the ground of misconduct could - only be done in conformity \\i.th the principles of natural justice .. Even though the order of termination may be couched in terms of an order of termination simpliciter the Labour Court is entitled to go behind the

A (

I l' D

I~ .r

/,\) ; , -- . - __ , I ..

STATE TRANSPORT CORP.-.v.' BIHAR STATE (f)helat, J.) 709

- -._, appa'rent language of ihe order and co~ider Whether-· the -order js tri nation simpliciter or is imposed by way-of punishment. The conclusionof the Labour Court that the termination of service of respondent 3 was noi one of termination simpliciter but was by w;:iy of penalty for irregularities . committed in the discharge of duties was neither unreasonable nor perverse and the High Court rightly refused to interfere with such a finding in a writ of certiorari. [712F-713C] ·

. ' . (iii) Employment of staff and regulating their condition of senrice, inclu<ling disciplinaTy action, was clearly one of the powers and functions

- of the Rajya Transport Authority and this was also to be exercised and

performed by the appellant corporation under the notification. The aver ment of the Corporation that it had taken over such employees of the Rajya Transport Authority as were "on the rolls" 'of the Authority only meant those employees who \\•ere in the service of the -Authority and be--. -cause that termination of service of the -third respondent was held to be illegal he was deemed t<; t be continuing in the_ service of the Authority and hence on its rolls.

The appellant corporation must therefdre be deemed to have taken over the services of re.spondent 3. [713 H-714 E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1065 of 1966. . -

0 ~

Appeal by speciar ieave from the judgment and order dated September 17, 1965 of the Patna High Court in Misc. Judicial Case No. 217 of 1962.

Sarjoo Prasad, R. P. Srivastava, Saranjit Singh Jauhar If. K. Sinha, for the appellant. - and

D. Goburdhun, for respondent No. 1.

The Judgment of the Cort. was delivered. by

Shelat, J,, This appeal, by speial leave, is against the order of the High Court of Patna dismisSing a writ petition under Arts. 226 and 227 of the Constitution challenging the award passed by the Labour Court on a reference. to it of an industrial dispute under s. 10( 1) of the Industrial Disputes.Act, 1947.

The reference arose from the. following facts : Prior to April 20, 1959 the Government of Bihar was. conducting through one - of its departments, called the Rajya Transport Authority, an undertaking of road transport in the. State. The said Authority appointed respondent 3 as a Head Clerk in the oflke ·.of the Divisional Manager, Rajya Transport, Bhagalpur, as from foly 27, 1956. The order appointing him stated that the appointment was. purely temporary and was terminable without notice and without assigning any reasons. By an order dated February 18, ·

1959, issued by the.State Transport Commissioner, Rajya Trans--- port, he was discharged from service with immediate effect. On April 20, 1959, the State Government, in exercise of the pnwer conferred by s. 3 of the Road Transport Corporation Act, 64 of

/ ,710 -

~.--_-j-,..' .. ,; .... -:-- -.,

' . ..__ '

•SUPREME COURT REPORTS - . '

[1970] 3 S.C.R. \' \ ' : 1950'\ef p as from- May 1, 1959, the appellant-corporatio~. ' The :Kitification issued under s. 3 inter alia stated that "The said

Corp0ration shall, with effect froril the_ said date,- exercise. all the powers and perform all the functio?S which are at presnt being

- -; _ exercised and performed by th.e Raiya _TranspQrt, ihar'. In tho

meantime the question of the termination of sernces of respondent 3 was espoused by respondent 4 before the Assistant Labour Commissioner.

The conciliation proceedings having failed, the State Government -referred the dispute to the Labour Court by an order dated FebruaIJ'. 24, 1961.

The Labur Court found ;-- (a) That respondent 3 was a . workman within the defuiition of that -term in the Industrial Dis•

-._ putes Act and the standing Orders governing the.appellant corporation, and that though appointed a head clerk, -there was no evidence to_ show that his work as such head clerk was managerial or supervisory, (b) That the order dated February 18, 1959 . terminating the servic'es of respondent 3 was not termination of service simpliciter, but was punitive In nat_ure. The Labour Court relied on a letter dated January 30, 1960 addressed by the appellant corporation to the -said conciliation officer that the services of respondent 3 had been tenninated because "in the course of certain enquiries the Rajya Transport Department had - found that Shri Shea Prasad -Sinha had committed various irregularities of the various. nature in the discharge of his duties':.

The Labour Court held that the said alleged irregularities ampunted to -misconduct as defined by the said standing orders, and that _ therefore, -the services of respondent 3 could not be tenninated on. the ground of those irregularities without holding a disCiplinary enquiry and giving to respondent 3 therein an opportunity of being heard. No such nquiry Jiaving admittedly been held, the Labour Court held that the said order was-not -justified as it was not in bona fide exercise of the power to terminate_ the services of respondent 3. !"o evidence was led by the appellant corporation before the Labour Court either to prove the said irregularities or to establish that the said order was -

justified. _The Labour Court consequently held:that the said order being invalid, and therefore, inoperative, respondent 3 would be deemed to have continued to be in service.. It further held that the appellant corporation was the successor-in-title of the said Rajya Transport and having taken over the erstWhiJe empioyc; es .of t?e Rajya Transport; respondent 3 was deemedto be ontmumg m sernce of the appellant corporation. _ On these_ findmgs, the Labour Court concluded that the said order of termination was invalid, that respondent 3 -was deemed to have continued in -the srvice of Rajya Transport and thereafter of the appellant corpora!Ion, and on the basis -directed the appdfant

D 1

corporation to reinstate respondent 3 in its service and pay compensation for the period from February to September 1959.

The appellant corporation thereupon filed a writ petition in the High Court for quashing the said award.

In support of the writ petition three questions were raised before the High Court :

11) That the services of respondent 3 were terminated before the appellant corporation was set up, and consequently, the remedy of respondent 3 was agairist the State Government and not against the corporation. The Labour Court had, therefore, no jurisdiction to direct the corporation to reinstate him or to pay compensation, !2) That respondent 3 was engaged in clerical work and was, therefore, not a workman as defined by the Act, ( 3) That the termination of the services of respondent 3 was in conformity with the terms of the contract of service, and there was, therefore, 110 question of the principles of natural justice being applicable 10 such termination. The High Court rejected all the three contentions, refused to quash the order of the Labour Court and dismissed the writ petition holding that the appellant corporation had failed to establish that there was any error of law apparent on the face of the record.

Counsel for the appellant corporation urged before us :

(a) that the respondent was a temporary employee engaged as a head clerk and was, therefore, not a workman as defined by s. 2(s) of the fodustrial Disputes Act, (b) that the order terminating his services was an order of termination simpliciter and the Labour Court was, therefore, not entitled to interfere with or set aside such an order, and ( c) that the order having been passed by the Rajya Transport Authority long before the corporation came into being, even assuming that the said order was illegal, the remedy of respondent 3 was against the State Government and not against the corporation. ,

There can be no doubt that the Rajya Transport Authority. prior , to the seting up of the appellant corporation, was carrying on the undertaking of transport had standing orders' regulating the conditions of sewice of its employees. The Rajya Trnasport, having been sanctioned by the Government on a temporary basis. as is apparent from standing order 3, its employees fell into tw0 categories, namely, temporary and casual. Standing order 2 ( d) defined an "employee" to mean any person employed by the Rajya Transport Authority to do any skilled or unskilled, manual or clerical labour on hire or for reward.

There can be no doubt that respondent 3 was an employee of the Rajya Transport Authority.

Standing order l,

however, provides that the" said standing , orders were to apply only to workmen of the Rajya Transport other than officers. and office staff employed in the administrative offices and secuons.

Tlie order appointing respondent 3 shows that he was posted at the office of the Divisional Manager at Bhagalpur. Prima facic, respondent 3 was neither an ofticer nor a member of. the office staff in the administrative olfices or sections. The standmg orders, therefore, were applicable to him.

No evidence was led by the corporation that respondent 3, :is a. head clrk, was conceed with or doing managerial or supervisory dunes.

The defimtmn of a 'workman' in s. 2(s) of the Industrial Dispute Act being a .comprehensive one, respondent 3 must be held to be a workman

within the meaning of s. 2(s), whose conditions of service were .!JOverned by the said standing orders.

Standing order 17 deals with the power of tennination of employment of the Rajya Transport Authority. That standing order provides that the Authority has under the terms of employment the right to terminate the services of an employee with 15 days' notice or payment of 15 .days' wages in lieu of such notice subject to the provisions of the Industrial Disputes (Amendment) Act, 1953. It further provides that the employment of such employees as are found guilty of misconduct may be terminated in accordance with the provisions of the relevant standing orders.

The relevant standing order is standing order 18 which Jays down certain acts or omissions as amounting to misconduct.

Cls. (j) and (!), thereof, Jay down that habitual or gross neglect of work or habitual or gross negligence or neglect of duty resulting in loss to the Rajya Transport would be misconduct.

But the standing orders do not provide any procedure for dealing with an employee guilty of such misconduct. It is well established that if the Rajya Transoort Authority were to terminate the services of an employee on -the grou.nd of any misconduct enumerated in standing order I 8, it could do so only in conformity with the principles of natural justice. The Authority in such a case would have, therefore, to famish to the concerned employee .charges alleged against him and would have to afford to him an opportunity to be heard. The letter of the

General Manager of the appellant corporation dated January 30, 1960 earlier referred to make it clear that the reason for terminal ing the services of respondent 3 was that he had been found to have committed irregularities of a serious nature in the discharge.

of his duties. That being so, the termination of services of res- Jl?lldent 3 W3; S on .account of the aforesaid irregularities in the discharge of his duties and prima fade was by wav of punishment and not termination. simp/iciter.

As is well establised, even though the order of termination may be couched in terms of an Order of tennination simpliciter, a Labour Court to which an industrial dispute is referred to for adjudication is entitled to go

E ,

I 1

c I

behind the apparent language of the order in question and consider whether the order is tennination si'mpliciter or is imposed byway of punishment.

The Labour Court, with which also the High Court agreed, came to the conclusion that the order was not one of tennination of services simpliciter, but was by way of penalty imposed upon respondent 3 for the aforesaid irregularities. There is nothing to show that the said conclusion was either unreasonable or perverse, and COJ1$equently, the High Court would not be" entitled to interfere with such a finding in a writ for certiorari.

The High Court was, therefore, right in refusing to interfere with the finding of the Labour Court in exercise of its prerogati\e jurisdiction.

It is quite clear from the record that the cause of respondent 3 was taken over and espoused by the respondent union before the conciliation officer.

The dispute, therefore, was an industrial dispute referable under s. 10 (1) of the Industrial Disputes Act by the Government of Bihar and the reference was a competent one.

The next question is whether the appellant corporation was the successor-in-title of the said Rajya Transport Authority, and therefore, the obligations and liabilities of the said Authority devolved on the appellant corporation.

The contention was that it was, not such a successor-in-title and that once the Rajya Transport Authority ceased to carry on the said undertaking, the relationship of master and servant between that Authority and respondent 3 ceased, and therefore, whatever remedy respondent 3 had would be against that Authority and not against the appellant corporation. It was also contended that under the terms of the notification by which the appellant corporation was set up the corporation took over only the powers and functions of the said Authority and not its obligations and liabilities.

Consequently. the order of reinstatement and compensation was contrary to law.

The appellant corporation, as aforesaid, was set up by means of the Notification dated April 20, 1959 issued under s. 3 of the Road Transport Corporations Act, 1950.

Under cl. 2 of that notification the appellant corporation was empowered to exercise all the powers and perform all the functions which were till then exercised and performed by the Rajya Transport Authority. It is manifest that the powers and functions of the Rajya Transport Authority were to carry on and conduct the \ransport undertaking.

For that purpose its principal function would he the administration and management of that undertaking which would necessitate the employment of an adequate staff of employees. Employment of such a staff and regulating their conditions of service. including disciplinary action, would clearly be one of the powers

or functions of the Rajya Transport Authority, which power or function was also to 'be exercised and performed by the appellant corporation under the said notification. Furthermore, in para 5 of the writ petition filed by the appellant corporation in the High Court, the corporation in clear terms averred that it had taken over as from May l, 1959 such of the employees of the Rajya Transport Authority into its service who were on lhe rolls of the said Authority on the date it came into existence. As rightly observed by the High Court, on a proper construction of the said averment, if the termination of the services of respondent 3 was invalid, it never became operative and respondent 3, therefore, would be deemed to be continuing in the service of the Rajya Transport Authority on May 1, 1959, and therefore, on its rolls. In that view, the appella.nt corporation must be deemed to have taken over the services of respondent 3. The argument, however, was that the true meaning of the said avennent was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and _not thase who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though not physically on the rolls, were deemed in law to be on the rolls. If respondent 3 continued in law to be in the service, it makes little difference whether his name actually figured in the rolls or not.

The expression "on the rolls" n1ust mean those wh0 were on May 1, 1959 in the service of the Rajya Transport Authority.

By reason of the order discharging him from service being illegal, respondent 3 was and must be regarded to be in tl1e service ot the said Authority, and therefore, he would be one of those whose services were taken over by the appellant corporation.

Apart, therefore, from the question of the appellant corporation being the successor-in-title of the said Authority, respondent 3, in the absence of any valid termination of his services, continued and still continues to be in the service of the appellant corporation since May 1, 1959, and therefore, the cmporation was bound to pay his wages including all the emoluments to which he was entitled as from May 1, 1959.

For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments, if any, to which he was entitled. The corporation, as successor-in-title of the said Authority, became liable to pay the said wages for ihe said period and not from February to September 1959 as directed by the Lafour Court.

The proper order, therefore. would be that respondent 3 is deemed to be in the service of the appellant corporation from

• 'j

A May 1, 1959, and .therefore, the corporation is liable to pay his wages and emoluments as from May l, 1959. As the successorin-title of the said Authority, it became also liable to pay his wages and emoluments for .the months of February to April I.959.

Except for this modification of the order passed by the Labour Court the award stands. The appeal fails and is dismissed with B costs, such costs being one hearing fee only.

Y.P .

Appeal dismissed.

BIHAR STATE ROAD TRANSPORT CORPORATION

STATE OF BIHAR & ORS

M. SHELAT

G. K. MITTER, JJ.

February 18, 1959

By an order dated February 18, 1959 he was discharged from service.

April 20, 1959

On April 20, 1959, the State Government, D in exercise of the power conferred under the Road Transport Corporation Act, .1950, set up the appellant corpdration and under the notification the corporation was to "exercise all the powers and perform all the functions" till then exercised and performed by the Rajya Transport Authority.

Rajya Transport Authority

Rajya Transport Authdrity

and that the appellant Corporation was the successor in title to~ the Rajya Transport Authdrity.·

s. 2(s)

Industrial Disputes Act

s. 2(s)

Industrial Disputes Act

STATE

Sarjoo Prasad

R. P. Srivastava

Saranjit Singh Jauhar

If. K. Sinha

D. Goburdhun

Shelat

Arts. 226 and 227

s. 10( 1)

Government of Bihar

February 18, ·

1959

s. 3

s. 3

January 30, 1960

Rajya Transport Department

Shea Prasad -Sinha had

s. 2(s)

Rajya Transport

Bhagalpur

s. 2(s)

s. 2(s)

Rajya Transoort Authority

s. 10

Industrial Disputes Act

s. 3

Road Transport Corporations Act, 1950

cl. 2

May 1, 1959


71 6

R. N. CHATI'ERJI v.

HA VILDAR KUER SINGH

February 19, 1970

[A. N. RAY AND I. D. DUA, JJ.]

Criminal Procedure Code 1898 Section 156(3) and 190(1) (c)-Scope of-Investigating Police Officer submitting a report of insuf!icient evidence -If Magistrate cari direct Police to file a charge sheet.

After investigation °of a complaint filed by the Respondent against the Appellant making certain allegations, the Deputy Superintendent of Police who carried out the investigation. submitted a repdrt to the Deputy InspectorGencral under whom the investigation was carried on, to the effect that there was insufficient evidence against the Appellant and furthermore that the Respondent's case against the Appellant was false.

On a "protest petition" filed by the Respondent, the Sub-Divisional Magist'rate passed an order directing the Police to submit a charge sheet. The High Court rejected an application in revision filed against this order

On appeal to this Court,

HELD : Allowing the appeal : The provisions of the Criminal Procedure Code do not empower the Magisfrate to ask the police to submit a charge-sheet.

Tf, however, the Magistrate is of opinion that the report submitted by the police requires further investigation, the Magistrate may order investigation under section 156(3) of the Criminal Procedure Code Directing a further investigation is entirely different from asking the police to submit a charge-sheet. Furthermore, section 190(1) (c) of the Criminal Procedulre Code empowers the Magistrate to take cognizance of an offence notwithstanding a contrary opinion of the police. [718 G]

Emperor v. Nazir Ahmed 71 I.A. 203; H. N. Rishbud v. State of Delhi [19,5] I S.C.R. ll 50; Ahliinandan !ha and Ors. v. Dinesh Mishra, A.LR.

I 968 S.C. 117: referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 89 of 1967.

Appeal from the judgment and order dated February 18, 1967 of the Patna High Court in Criminal Revision No. 44 of 1965.

D. Goburdhun, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by

Ray, J.

This is an appeal from the Judgment dated 18 November, 1967 of the High Court at Patna.

The question for consideration is whether a Sub-Divisional llfogistrate could after submission of a final report by the pohce

direct the police on what is described as a protest petition havingbeen filed by the opposite party to submit a charge-sheet.

The facts in short are that on account of an occurrence at the platform of Muzaffarpur Railway Station on 24 March, i 964 two cases were instituted before the Railway Police.

One of these was instituted by the appellant against the respondent and the other was instituted by the respondent against the appellant.

The appellant in the case instituted by him alleged that the respondent wanted to entrain two of his men in an unauthorised way in one of the compartments and the appellant objected to the same, whereupon the respondent pulled the appellant on tho platform and assaulted him. A charge-sheet was submitted against the respondent in that case.

The present appeal relates to the case instituted by the respondent against the appellant on these allegations. The appellant at the material time was a Travelling Ticket Examiner while the respondent was a police havildar.

The respondent alleged that while he was on duty at the railway platform on the relevant date, he found a few smugglers were travelling in a particular compartment. The respondent \'"anted to enter the compartment.

The appellant pushed him back. The appellant and three other Ticket Examiners assaulted the respondent.

The Deputy Superintendent of Railway Police who carried on the investigation submitted a report to the Deputy Inspector General (C.l.D.), Crime Branch and Railways under whom theinvestigation was carried on, to the effect that thre was insuffi. cient evidence against the appellant and further that the respondent's case against the appellant was a palpably fale story about the smugglers' and the case was therefore to be returned a; 'TR.T. insufficient evidence".

On 2 April, 1964 the respondent filed a "protest petition" against the final report of the police. _On I September, 1964 the Sub-Divisional Magistrate called for the case diary, supervision and progress. report of the police case as prayed for by the respondent.

On 14 November, 1964 the Sub-Divisional Magistrate passed an order directing the police to submit the charge-sheet under sections 353/379 of the Indian Penal Code.

The appellant went up before the Sessions Judge of Muzaffarpur in revision against the order of the Sub-Divisional Magistrate and asked for a reference to the High Court.

The appeilant's application was rejected by the Sessions Judge, Thereafter. the

SUPREME COURT REPORTS [ l970J 3 S.C.R.

appellant filed an application in revision before the High Court at Patna.

The appellant c, ontended that the Sub-Divisional Magistrate acted without jurisdiction in asking the police to submit the charge-sheet and therefore the order dated 14 November, 1964 passed by the Sub-Divisional Magistrate >hould be quashed.

The High Court at Patna held that calling for a charge-sheet by a Magistrate meanstaking cognizance of the. case and then summoning the accused through the police, and, therefore, it did not amount to interference with the police investigation.

The High Court at Patna referred to two divergent views expressed by the.High Courts. The views of the High Courts at Calcutta and Madras are that the Magistrate has no such power whereas the views of the High Courts at Bombay and Patna are to the contrary.

The High Court at Patna did not see any reason to depart from the view of that Court.

It has been emphasised in several decisions that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the. law imposes on. them the duty of enquiry. (See Emperor v.

Nazir Ahmed)(').

Th'is Court in the case of H. N. Rishbud v. State of De/hi(2) said that investigation is primarily an ascertainment of facts _and circmhstances of a case and the proceedings in an investigation are conducted by the police officer. Chapter XlV of the Criminal Procedure Code relates to information to the police and their powers to investigate. The investigation carried on by the .police results either in release of accused when evidence is deficient or sending the case to the Magistrate when the evidence is sufficient.

It should also be remembered that when a person is released by the police because there is not sufficient evidence to justify the forwarding of the accused to a magistrate a bond is taken to the effect that if and when so required he will appear before a magislrate empowered to take cognizance of the offence on a police report.

The provisions of the Criminal Procedure Code do not empower the magistrate to ask the police to submit a charge-sheet.

If, however, the magistrate is of opinion that the report submitted by the police requires fqrther investigation the magistrate n1ay

order investigation under section 156(3) of the Criminal Procedure Code. Directing a further investigation is entirely different from asking the police to submit a charge-sheet.

Furthermore, section 190 ( 1 )( c) of the Criminal Procedure Code empbwers

(1) 711. A. 203!

(2) [1955] 1 S. C. R. 1150.

the magistrate to take cognizance of an offence notwithstanding a contrary opinion of the police.

These provisions in the Criminal Procedure Code, to which I have referred, indicate two broad features; first, the formation of an opinion in an investigation is left to the police; and, secondly, the magistrate exercises judicial functions in dealing with the report submitted by the police.

This question came up for consideration in the case of Abhi11andan Jha and Ors. v. Dinesh Mishra(') where it was held that it was for the police to form their opinion and the final step in the investigation was to be taken only by the police and no other authority.

As to the powers of the magistrate it is said that he cannot call upon :he police to >ubmit a charge-sheet when they have sent a report, that there is no case for sending up the accused for trial because that would be dictating to the police to fom1 opinion in accordance with that of the magistrate. Such a course is not desirable. That is why the Magistrate can call for a further investigation ..

The decision of the High Court is erroneous. The order of the Sub-Divisional Magistrate dated 14 November, 1964 is quashed. The appeal is allowed.

R.K.P.S.

Appeal allowed.

0) A. I. R. 1968 S. C. 117.

HA VILDAR KUER SINGH

February 19, 1970

A. N. RAY

I. D. DUA, JJ.

Criminal Procedure Code 1898

Section 156(3) and 190(1)

InspectorGencral

section 156(3)

section 190(1)

D. Goburdhun

Ray

High Court at Patna

24 March, i 964

2 April, 1964

14 November, 1964

sections 353

Indian Penal Code

Sessions Judge of Muzaffarpur

High Courts at Calcutta and Madras

High Courts at Bombay

section 156(3)

section 190

[1955] 1 S. C. R. 1150


SHIVAPPA & ORS.

STATE OF MYSORE February 19, 1970

[M. HmAYATULLAH, C.J., A. N. RAY AND I. D. DuA, JJ.] B

~1rdian Evidence Act, 1872, s. 1 l4-Reco1ery of properly front posle.HlOn of accused soon after con11nission of a dacoits-fresumption to be

dr~11·11-Whether (.' preJu1nption of participation in dacoity or of lesser

v.(tence •

. T\VO carts loaded ith cloth returning alongwith others from a weekly village market \\'ere looted by 20 or more pei'sons.

The houses of 20 persons including the 14 _appellants wer:e searched and the looted cloth

\\"<\S "recovered from their possession.

They_ were tried and held guilty under s. 395 of the Indian Penal Code. The High Court dismissed their appeals. In appeal by special leave to this Court their only contention was that in the absence of other evidence conncctini? them. \\Tith the dacoity. the presumption to be dra\vn frony the possessio~ of stolen clothes ought to have been one under s. 411 of he Indian Penal Code or at the most under s. 412 of the Indian Penal Code and not of complicity' in the crime oi Jacoity. It "as urged that since s. 114 of the Evidence Act did not

lay down definitely the presumption to he dra\l; n in a given set of circumsrances it was neccssarr ahvays to start \\1th the lesser presumption and dra\\· the higher presumption only \Vhen there y; as some other evidence to shO\\' the complicity of the persons in the crime itself.

HELD : Jf there is other evidence to connect an accused with the crin1c itself. hO\\'cvcr small. the finding of the stolen property \\'ith him is

-.~ piece of evidence \\'hich connects him further \vith the crime. There is then no question of presumption.

The evidence strengthens tfie other evidence alread~ against him. It is only when the accused cannot be con

i" stronger than' if there is a large gap of time.

Disposal of the fruits of crin1e that the presun1ption may he dra\\'n. fn \vhat circumstances the one presumption or the other may he dra\\'O \\'ill differ from case to case

[722DJ \Vhen the discoverv of the fruits of crin1e is made in1mediately after 1hc commission of thC crin1e the presun1ption of compJicity in the ci"ime

ncctcd . with the c'rime except by reason of possession of the fruits of crime tequires the fiqding of a person ready to receive them an4 the short

ncss of time. the nalure of the propefty \1lhich is disposed of, that is to saY. its quality and character deteirn1in.e \vhcrher the person \vho had the gOods in his Possession received then1 fron1 another or v.'as himself lh.: thief or dacoit. [722 FJ

In the present case the offence \Yas con1n1itted at night by as many as ~O persons or more. Shortly after the offence the houses of 20 person..; "ere searched and large quan.tities of the stolen goods \Vere found in their houo;; es.

It was impossible that these :!O pcn; ons \\ere n1e.rely receivers ... 1f

tolen property fron1 some other :!O persons \\"ho v.ere the Uecoits. It \\"as

lcgirimate therefore to raise the presumption in this case that the persons ,, ith horn the goods v.ere found \Vere the dacoits themselves. [723 A-Bl CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 87 of 1967.

SHIVAPPA v. MYSORE (Hidayatul/ah, C.J.) 721

Appeal by special leave from the judgment and order dated January 24, 1967 of the High Court of Mysore in Criminal Appeal No. 29 of 19.65.

A. S. R. Chari and R. V. Pillai, for the appellants.

Shyamala Pappu and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Hidayatullah, C.J. These are 14 appellants who appeal against their conviction under s. 395 of the Indian Penal Code and sentences of 5 years' rigorous imprisonment and fine of

Rs. 1,000/- passed on them. Originally 20 persons were tried and convicted for the same offence and received a like sentence. 14 alone have appealed to this Court.

The incident which took place on July 28, 1962 . was theft by dacoity of certain cotton pieces from two carts within the limits of Lingsugar Police Station a! about 11-30 p.m.

The facts are that two traders in cloth sent their wares in carts for sale. The cartmen halted after the market was over on

the way for food.

Thereafter six carts left for Mudgal at about 10 p.m. When the carts reached a Na/a called Heri Halla about three miles from Lingsugur at about 11-30 p.m., 20 persons are said to have approached the carts and pelted stones. It was a d; irk night and the assailants were not identified. It appears that four out of the six carts escaped, but two carts were looted. The police investigated the case and arrested the 20 persons who were accused in the case as being the culprits involved in this incident.

It is not necessary to go into rest of the case or the evidence on which the case of dacoity was established, because dacoity as such is not challenged before us.

The accused were convicted on the sole evidence of having in their possession pieces of cloth which were later identified to belong to the traders. Searches took place between July 30, 1962 and August 17, 1962. In these searches clot]] which was undoubtedly stolen at the time of the dacoity was found in their houses.

The High Court and the Court below drew from this the conclusion that the appellants - were themselves the dacoits, and convicted them accordingly under s. 395 of the Indian Penal Code and sentenced them to 5 years' rigorous imprisonment and fine of Rs. 100/-.

In this appeal, the only contention raised by Mr. A. S. R.

Chari is that the presumption that they wre dacoits ought not to have been drawn since the circumstances do not adri1it the drawing of such a presumption in the case. According to Mr. Chari. the presumption to be drawn ought to have been one under s. 411

SUPREME COURT REPORTS

(1970] 3 S.C.R.

of Indian Penal Code or at the most under ~· 412. of th~ Indian

Penal Code but not of complicity in the: cnme of dac01ty. .He contends that the circumstances under which the one presumption or the other may be drawn under s. 114 of the Indian Evidence Act have not been stated by law and therefore it is necesary always to start with the leser presumption and draw the higher presumption only whm thre is so11;1e ot.her evidence t? show t.he complicity of the persons 1~ the cnme 1tslf. A.ccordmg to bun there is no other evidence m the case which pomts to the complicity of the 14 appellants in the crime of dacoity and therefore as they cannot be suspected to be dacoits themselves, the only presumption to be drawn is one of receivers of stolen property or as receivers of property which was stolen in a dacoity.

In our opinion, the law advocated by Mr. Chari is not corrct.

If there is other evidence to connect an accused with the cnme itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime.

There is then no question of presumption. The evidence strengthens the other evidence already against him.

It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn.

In what circumstances the one presumption or the other may be drawn, it is not necessary to state categorically in this case. It all depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. It has been stated on more than one occasion that if the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumotion is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious.

Disposal of the fruits of crime requires the finding of a person ready, to receive them and the shortness of time, the nature of the property which is disposed of, that is to say, its quantity and its character determine whether the person who had the goods in his possession received them from another or was himself the thief or the dacoit.

In some cases there may be other elements which may point to the way as to how the presumption may be drawn.

They need not be stated here for they differ from case to case. (In the present case, the goods stolen were a large quantity of cloth taken for sale to the market. These goods were . not sold and were being taken back to the dealers by the cartmen.) A large number of persons said to be 20 in number pelted stones at the cartmen and looted the property.

Immediately afterwards a n?mber of searches were made and the )!OOds were found with vanous persons who were prosecuted as offenders and they have been presumed to be involved in the dacoity itself. It may be

SHIVAPPA V. MYSORE (Hidayatul/oh, C.J.) 723

noticed that from each person a large number of goods of the same type such as 20 choli ieces or ten pieces of cloth were found. (It is impossible to think that within the short time available, these goods could have been easily disposed of to receivers of stolen property or could be placed in the custody of friends till such time as the original offenders could take them away.) The time gap in some cases is as short as two days and in some others it is not more than five days. In two cases only the time gap is about 19 days. Even then we think that the time gap is too short for original off!lnders to have disposed of the property to these appellants or to have left the goods in their custody ll such time as the original offenders could have taken them away.

We are; therefore, satisfied that the proper inference was drawn in this case. It must not be forgotten that the offence was committed at night by as many as 20 persons or more.

The houses of 20 persons were searched and large quantities of the stolen goods were found in their houses. It is impossible to think that these 20 persons were merely receivers of stolen property from some other 20 persons who were the dacoits. It is legitimate therefore to raise the presumption in this case that the persons with whoin the goods were fod were the dacoits themselves.

This presumption has been drawn and in our opinion . rightly in this case.

The conviction was therefore correct in all the circumstances of the case.

As regards the sentence, the offence no doubt was serious.

But no injury beyond one appears to have been caused. Therefore we think that a sentence of three years' rigorous imprisonment will meet the ends of justice in this case.

The sentence is reduced to three y_ears' rigorous imprisonment.

The sentence of fine will starid: The appeal is allowed to this extent'.

G.C.

Appeal partly allowed.

SHIVAPPA & ORS

STATE OF MYSORE

February 19, 1970

A. N. RAY

I. D. DuA, JJ.

Evidence Act, 1872

s. 1

s. 395

Indian Penal Code

s. 411

Indian Penal Code

s. 412

Indian Penal Code

s. 114

High Court of Mysore

A. S. R. Chari

R. V. Pillai

Shyamala Pappu

S. P. Nayar

Hidayatullah

s. 395

Indian Penal Code

Lingsugar Police Station

Mudgal

Lingsugur

July 30, 1962

August 17, 1962

s. 395

Indian Penal Code

A. S. R.

Chari

s. 411

Indian Penal Code

Penal Code

s. 114

Indian Evidence Act

SHIVAPPA V. MYSORE