STATE OF U.P.

IFTIKHAR KHAN & ORS ..

January 15, 1973

[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J

Constitution of India, 1950, Art. 136-Appeal against acqw'rtl by .-special leave-Power of the Supreme Court.

Indian Penal Code (Act 45 of 1860), ss. 34-

Criminal law-Practice and Procedure-Duty examine all wi'tntsses.

Scope of.

of Prosecution

I{)

Sentence-Murder-When accused may be sentenced to imprisonmen for life.

On the day the deceased was murdered. the four accused-two of whom were bitterly inimical to the deceased, the other two beilng their .close associates came k>gether in a body to the shop of deceased.

Two of the accused, who had pistols, shot at the deceased. The other two had lathis. No overtact was attributed to them, but there was nothing to suggest that they did not know that their associates had the pisk>ls.

After the shooting, all the four accused ran away together when an alarm was raised. Two brothers of the deceased, were eye witnesses •to the occurrence and ac'cording to them there were three other persons who witnessed the occurrence. Tilose three peI"SCllns however filed affidavits in the Committing Court that they had seen notliing and hence they we're not examined as witnesses for the prosecution. According to one of the eye-witnesses the affidavits were false aind those persons filed them because they were afraid of the accused. One of the

accused pleaded alibi and examined defence wit:aesses, but that evidence did not rule out the possibility of the particular accused being present at the sceno of occurrence, and in fact did not crea.te 911>y reasonable doubt in favour of that accused.

The trial eoort . accepted the evidence of the two eye witnesses. The two accused who took part in the shooting were convicted under s. 302, I. P. C. and sentenced to death. The other two were convicted under ss. 302 and 34, I.P.C. and were se:ntenced to imprisonment for life.

The High Court dealing with the matter in appeal as well as under s. 374, Cr. P.C., rejected the evidence of the two eye witnesses characterising them as partisan witnesses.

Allowing the appeal to this Court,

HELD : (I) The approach of the High Court t<> the evidence of the eye witnesses was erroneous.

[335CJ

(a) The High Court did not give a specific finding o.n the plioa ot aUhi of the coneemed accused.

[337D-EJ

(b) It did not consider whether there were any discrepancies in the H evidence of the two eye-witnesses, and whether their evidence sounded true and genui1ne, but rejected the evidence merely on the ground that were brothers of the ceased and hence were partisan or interested witnesses. [337E-G]

...,

U.P. STATE v. IFTIKAR KHAN (Vaidialingam, J.) 329

(c) It assumed that the evidence of one of them was not acceptable, and therefore the evidence of the other also could not be accepted because the witnesses were brothers. [336HJ

(2) J, n appeals against acquittal by special leave under Art. 136, this Court has power to interfere with findings of fact, no distinction being made between judgments of acquittal and conviction, but thi• Court will not <irdinarily interfere with the appreciation of evidence or with lhndings of fact unless the High Ccurt has acted perversely

QI' otherwise improperly on grounds which ore plainly untenable or there has b, een a grave miscarriage of_ justice, and the view taken by the High Court 'is clearly unreasonable on the evidence on record. In a reference made by the Sessions Courti under s. 374, Cr. P. C., for cotnfirrnatiQn of the sentence of death passed by it, there is a duty on the High Court to independently consider the matter carefully and examine all relevant and material circum.stances; but if the High Court reverses the decision of the trial court on grounds which are pla'inly faHacious and untenable, -and grave t!justiCe has been done, this Court will interfere with the order of the High Court. [335B-C, F-HJ

Ma.valti v. State of U.P., [1964] 8 S.C.R. 133, Himachal Pra6.esh Administration v. Om Prakosh, A.LR. 1972 S.C. 975 and State of Uttar Pradesh v. Saman Doss Criminal Appeal No. 17 of 197! declded on 11-1-1972 followed.

(3) For invoking s.34, I.P.C. against an accused prior concert or a pre-arranged plan has to be established. But as it is difficult to prove the intention of an individual, it has to be inferred from his act, or conduct and other relevant circumstans. The section \\ill be attracted if it is established that the criminal act has been done by any one of the accused persons in furtherance of the common intention.

A common intetntion-a meeting of minds-to commit an offence and participation in the commission of the offen~ 'in furtherance of that common intention invite the application of the section.

But participation need lOOt in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offen~ of the offenders sought to be rendered liable on th~ principle of joint liability may be necessary, but it is not necessary, to attract the section, that any overt act must be dlY, ne by the particular accused who was present. [344-C; 345 A-Ill

In the c'ircumstances of this Case, the accused with the Iathis must be held to be guilty under s. 302 read withs. 34 I.P.C. [344-HJ

Pandurang, Tukia and Bhi/lia v. The State of Hyderabad, ll955J S.C.R. 1083, Krishna Govind Patil v. State of Maht; rashrra, (1964] 1 S.C.R. 678 and Jaikrishnadc.s Manohardas Desai and Anotht?lr v.

G The State of Bomba, v, [1960) 3 S.C.R. 319 followed.

Mahbub Shah v. King-Emperor, [1945] L.R. 72 I.A. 148 and Barandra Kumar Ghose v. The King Emperor, [1924] L.R. 52 I.A. 40 applied.

( 4) Otdinarily, it 'is the duty of the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testimony is for or against the case of the prosecutio:i.

But no purpose. would have been served in the prese; nt case by insisting on the prosecution examining the othell! as witnesses, in view of the affidavits filed by them. [3380-B, HJ

Habeeb Mohammad v. The State of Hyd"abad, [1954] S.C.R. 47:; A and Sahai Rcmi & Others v. The State of U.P. Criminal Appeal No. 131 of 1969 decided on 17-11-1972 followed.

Staphen Senevirathe v. The King, A.LR. 1936 P .C. 289, applied.

(5) Since more than 4 years had passed since the sent<;>ee of death was passed and in between, there was an acquittal by the High Court, interests of justice would be served by sentencing the accused to impri- 8 sonment for life. [347A-Cl

CRIMI'>AL APPELLATE JURISDICTION : Cr. Appeal No. 252 of 1969.

Appeal by special leave from the judgment and order dated 8th May 1969 of the Allahabad High Court in Criminal Appeal c No. 199 of 1969.

0. P. Rand, for the appellant.

Vimal Dave, for respondents Nos. 1 & 3.

C. B. Agarwa/a, for respondent No. 4.

The Judgment of the Court was delivered by

VAIDIALINGAM, J.-This appeal, by special leave, by the State of U.P. is directed against the judgment and order dated 8-5-1969 in Criminal Appeal No. 199 of 1969 (Referred No. 21 of 1969) allowing the appeal of the four accused, respondents herein. ap<l set'in~ a~; de the conviction recorded against them by the learned Civil and Sessions Judge, Hardoi, under sections 302 and 302 read with 34 I.P.C.

The four respondents herein were tried by the Civil and Sessions Judge for the offence of committing the murder of Sikande:· Khan on October 16. 1967.

After the filing of this appeai, the second respondent, Ishitiaq Khan is reported to have been murdered and hence the appeal as against him has become infruC'tUOUS.

In this appeal by the State, we are at present concerned only with Iftikhar Khan. son of Mohammad Hasan, Anwar Khan, son of Mohammad Hussan Khan and Syeed Khan, son of Refiq Hussain Khan, who are respondents one, three and four respectively.

The prosecution case was as follows :

All the respondents and the deceased, Sikander Khan, are residents of village Garni Chand. Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associate~.

About two years or so. prior :<' the murder of Sikander Khan, Aqil Khan, a brother of

respondents of one and three, was murdered. In connection with the said murder, the deceased, Sikander Khan, Ilyas Khan and two or three others were tried.

However, they were acquitted about ten months prior to this incident. On October 16, 1967, the day on which Sikander Khan was murdered, a case of attempted murder of Ilyas Khan was pending against respondents one and two herein. Both of them had been released on bail about a momh prior to October 16, 1967. Respondents one and three strongly suspected that Sikander Khan was responsible for the murder of their brother, Aqil Khan, though there has been an acquittal by the court in his favour.

On October 16, 1967, at about 8.30 P.M., Sikander Khan was sitting on a cot in front of hi' >hop and was reading 'Jang Nama'. His brothers, P.Ws one and two, along with one Laddan Khan were also sitting near Sikander Khan listening to the reading of the epic. Respondents one and two armed with country made pistols and respondents three and four armed with lathis came in a body to the place where.

Sikander Khan was seated. The first and the second respondents fired shots in quick succession at Sikander Khan.. The shots strllCk Sikander Khan in his chest and neck and he fell down dead.

On hearing the alarm of P.Ws one and two, the neighbours came and saw all the accused running away. Sikander Khan, on receiving the gun-shots died on the spot. The first information report was given by P.W. 1 at about 11.35 P.M. and it was recorded by the Head ConstaMe, P.W. 7. The investigation was taken up by E

P.W. 8.

The respondents surrendered in court on November 4, 1967.

The doctor, who performed the postmortem on the body ot Sikander Khan, had given the opinion that the gun-mot injuries on the chest and the neck were individually sufficient to cause death in the ordinary course of nature.

F Respondents one and two were tried for the offence of committing the murder of Sikander Khan under section 302.

The other two respondents were tried under section 302 read with section 34.

The respondents three and four pleaded !hat they had been implicated in the case due to enemity. The first respondent, apart from adopting the said plea, further set up an alibi.

G According to him he was an in-patient in the District hospital, Bareilly, from 14-10-1967 to 31-10-1967 and that he was openrted upon for hydrocele at the said hospital on 18-10-1967.

In view of the fact that he was in the hospital on 16-10-1967, the evidence given implicating him in the murder is false. The prosecution mainly relied on the evidence of P. W s 1 and 2, the H brothers of the deceased, to prove its case against the accused.

The first respondent also examined the doctor of the Bareilly hospital and two nurses working there in support of his plea of alibi.

The court examined a student nurse working in the same hospital 6-L796Sup.C.I.f' 3 .

as C.W. I. Notwithstanding the fact that P.Ws 1 and 2 were brothers of "he deceased and as such can be described as partisan witnesses, the learned Sessions Judge accepted their evidence as true.

Regarding the plea of alibi set up by the first respondent, the learned Sessions Judge, after consideration of the evidence of P.Ws 1 to 3 as also the evidence of C.W. 1, held that the said plea cannot be accepted.

The Court , further held that though the first respondent was operated upon for hydrocele on October 18, 1967, the evidence of the doctor and the nurses of the Bareilly hospital establish that it was possible for the first respondent ta move about and it was further possible for him to be absent frorn the hospital on October 16, 1967. In fact the view of the learned Sessions Judge is that the murder of Sikander Khan had been planned and the first Respondent, in order to create the evidence

of alibi, got himself admitted in the district hospital at Bareilly on the 14th and that he successfully manoeuvred to have the operation originally fixed for October 16, 1967, postponed.

By so manoeuvring, the first respondent was able to be in the village on October 16, 1967 and, after committing the murder, he went back to the hospital. In this view, the respondents cme and two were convicted under sction 302 and sentenced to death.

The respondents three and four were also found guilty of murder under section 302, read with section 34 on the finding that they had associated themselves with the other two accuse.d with the common intention of committing the murder of Sikander Khan. However, they were sentenced to undergo imprisonment for life.

All the four respondents appealed to the High Court challenging their conviction and sentence. There was also the reference for confirmation of the sentence of death of respondents one and two. The main findings of the High Court were as follows :

"It is not necessary to give details of enmity that existed bet ween the deceased and the accused. Murders appear to be quite common in the area where the parties live and they resort to such crimes. The two eye witnesses, P.Ws 1 and 2, being the brothers of the deceased are partisan witnesses. These two witnesses have not given proper answers when cross-examined on the point whether the first respondent was in the village from 14th October, 1967.

Though there can be some argument whether the first reipondenr was or was not actually in the hospital from the afternoon of October 16, 196-7 till the morning of the next day, yet the evidence shows that he was admitted in the Bareilly hospital on the 14th October and was there on the next day also.

He was operated on October 18 1967. In view of these facts be could not be in the village on the 14th and 15th October, 1967. Hence the evidence of P.W. 2 to the contrary is false. As P.W. 2 has made a

false statement with regard to the presence of the first respondent

U.P. STATE v. !FTIKHAR KHAN (Vaidialingam, J.) 333

in the village on 14th and 15•, h Oc:ober, 1967, his brother, P.W. 1, should also be put in the same category, as it is not proper to believe one brother and disblieve the other. If the ty; o partisan eye wrtnesies, P.Ws 1 and 2, had made a satisfactory statement, the plea of alibi set up by the first respondent has to be viewed with considerable doubt and respondents two and four may not be entitled to the benefit of the said doullt.

As only two shots had been fired, it was possible for the assailants to escape quickly and the theory of the witnesses making a mistake cannot be excluded. It cannot be stated that respondents three and four had the common intention to commit the murder, as villagers in good faith pass on the road in the mid-night carrying lathi:;. Both respondents two and three Ill.llY have had lathis and it is also likely that they may have accompanied the other two respondents, but they may have done so without any knowledge that fire-arms were being carried to commit the murder of Sikander Khan. If the incident has taken place at night making it clear that all persons must have been acting together, it may be held that common inte11'1ion of all was to commit the murder.

Though it may be that the party of the accused was responsible for the murder, the evidence of the partisan witnesses is not satir.factory and as such all the accused are enti'tled to the benefit of doubt".

On behalf of the appellant State, Mr. 0. P. Rana, learned counsel, attacked the judgment of the High Court on the ground that before reversing the conviction and sentence passed on the respondents, and acquitting them, the learned Judges h_ave not adverted to the main evidence relied on by the prosecution and, without recording any finding, have accepted the plea of alibi set up by the first respondent. The order of acquittal has been passed b!y the High Court, according to the learned counsel, on mere conjectures and without any reference to the materials on record.

Quite naturally, he pressed before us the various items of evidence relied on by the learned Sessions Judge for convicting the respondents and which .have not been taken into account by the High Court.

Mr. D. Mookerjee, learned counsel for the reipondents one and three, pointed out, what according to him were serious discrepancies in the evidence adduced by the prosecution.

The counsel urged that though the judgment of the High Court has not elaborately considered and dealt with al! those matters. nevertheless thev must have been in the minds of the learned Judges of the High Court when thev gave the benefit of doubt to the accused and acquitted them. It-was further stressed that the State has not madJ out a case for this Court, in exercise of its powers under Article

136. to interfere with the decision of the High Court acquitting :the accused.

Mr. B. R. Aggarwala, learned counsel appearin,11; for the 4th A Respondent, adopted most oi. the general arguments that have been advanced by Mr. Mookerjee. He particularly stressed that the conviction of the 4th Respondent for an offence under section 302 IPC, with the aid of section 34, is not justified, as there is nothing in the evidence to show that, even if the shooting by Respondents 1 and 2 is accepted, the said criminal act was done qy B the said accused in furtherance of the common intention of all four accused. According to him there is no evidence to establish that the criminal act was done in concert or pursuant to a pre' arranged plan. The counsel drew our attention to the evidence of P. W s 1 and 2, which at the most, according to him, only establishes that all the accused came together and that they left the c place at the same time after the shooting waS done by Re>pondents

1 and 2. Those witnesses do not speak of any overt act done by Respondent 4. He further pointed out that in the first information report given by P.W. 1, there is no reference to the 4th Respondent being armed wrth a lathi.

Both P.Ws 1 and 2 have improved upon this version in the F.l.R. Before the court, they have stated D that Respondents 3 and 4 came armed with lathis.

But even then, he pointed out, those wrtnesses did not speak of ariy further part played by Respondent 4 except that he was in the company of the other accused. The counsel drew our attei; ition to the decision of the Judicial Committee in Mahbub Shah v. King- Emperor(') as well as the decision of this Court in Pandurang, ll Tukia and Bhil/ia v. The State of Hyderabad(') wherein the ingradients necessary for the application of section 34 of the Indian Penal Code have been laid down. In view of the total lack of evidence to establish that the act was done in furtherance of the common intention of all, the counsel urged that the order of acquittal passed by the High Court in favour of the 4th Respondent F does not require interference.

We may at this stage mention that the evidence regarding the participation of Respondents 3 and 4, who are tloth stated to have come with Jathis, is the same. Therefore, we will have due regard to the contentions of Mr. Aggarwala, even when the case of the 3rd Respondent is being dealt with by us.

We will later refer to the various aspects that were pressed before us by the learned counsel for the accused.

It must be stated that in view of the approach made by the High Court, by not considering the various items of evidence and recording suitable findings, both the learned counsel found consi- H derable difficulty in supporting the judgment of the High Court,

(I) [1945] L.R. 721.A. 148. • ,_, 1

(2) [J955J S.C.R .. t083 ..

though it must be stated in fairness to them that they tried their very best to do so.

We have earlier broadly indicated the views expressed bi}' the High Court.

It must be remembered that the High Court was dealing, apart trom an appeal by the convicted accused, also with a reference made by the learned Sessions Judge under section 3-7 4, Criminal Procedure Code, for confirmation of the sentence of death passed on respondents one and two for an offence of murder.

As pointed out by this court in Masalti v. State of U.P., (') under such circumstances there was a duty on the High Court to independently consider the matter carefully and to examine all relevant and material circumstances.

A perusal of the judgment of the High Court gives the unfortunate impression that this principle has not teen borne in mind.

Before we reler to the evidence on record as well as the con tentions of Mr. Mookerjee, it is desirable to clear the ground regarding the powers. of this Court under article 136 to interfere with the orders of acquil'lal passed by the High Court. It has been strenuously pressed before us by Mr. Mookerjee that unless the conclusion reached by the High Court is such that no Tribunal will come to, this Court will not interfere with the order of acquittal. while exercising power under Article 136. It is true that this Court will interfere in the circumstances mentioned by Mr.

Mookerjee. but that is not the only circumstance under which interference will be warranted. There are several other circumstances under which interference may and has been made by this Court.

We will refer to some of those circumstances presently.

It is now well established !hat in appeals against acquittal by special leave under Article 136, this Court has no doubt powers to interfe•e with findings of fact, no distinction being made bet ween judgments of acquittal and conviction.

It has also been held that this. Court will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court has acted perversely or otherwise improperly or there has been a grave miscarriage of justice. It has been further held that where this Court found that grave injustice has been done by the High Court on grounds which are plainly untenable and the view taken by the High Court is clearly unreasonable on the evidence on record. a case for interference is made out.

The recent decisions of this Court on this aspect laying down the above principles are to be found in Him11chal Pmdrsh Administration v. Om Prakas/1(') and State of Uttar Pradesh v. Samman Dass.(')

(1) (1964] fA) S.C.R. 1)3,

(2) A.J.R.1972 S.C. 975.

(3) Crim•nal Appeal No. 17of1971 decided on'll1·1972.

Bearing in mind the above principles, we will now refer to the material evidence on record.

The evidence of P .W. 1, brother of the deceased, is to the following effect:-

' He first narrated the reasons for the enmity between the accused and Sikander Khan. At about 8.30 P.M. on October 16, 1967, his brother, the deceased Sikander Khan, was sitting opposite to his shop and reading 'Jang Nama'. P.W. 1 and his brother, P.W. 2, were also wrth the deceased listening to the reading of the epic.

Suddenly the four accused came together to the place where Sikander Khan was sitting. The respondents one and two, who were armed with pistols, fired a shot each at Sikander Khan. The .shots hit Sikander Khan in the chest and in the neck and he fell down dead .. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and lbne Hasan and others came there and found Sikander Khan dead. When respondents three and four came with the other accused, they had lathis with them. After the shooting, all the accused ran away.

He gave the first information report at about 11.35 P.M. which was record ed by P.W. 7 .. The evidence of P.W. 2 is also substantially to the same effect. Surprisingly, P .Ws 1 and 2 have not been crossexamined, when they spoke of enmity between Sikander Khan and the accused. ·

In the first. information report, after referring to the murder of Aqil Khan and other matters, P .W. 1 has substantially stated E about the occurrence as mentioned by him in the witness box.

He referred to the presence of his brother, P.W. 2, as also the villagers referred to in his evidence as having come to the scene immediately after the. shots were fired.

It is no doubt true that both P.Ws 1 and 2 are the brothers of the deceased. This aspect has been taken into account by the learned Sessions Judge and he has considered their evidence to be truthful.· But whrn we come to the High Court, there is neither an analysis nor proper consideration of the evidence of these two eye witnesses.

The. learned judges of the ffigh Court stated that they are partisan witnesses. True it is that they are partisan wit

nesses being the brothers of the deceased. The reason given by the High Court for rejecting the evidence of those witil;:sses is that' P.W 2 has made a false statement with regard to the presence or . absence of Iftikhar Khan in the village on the 14th and 15th October, 1967. It is the further view of the High Court that when the evidence of P.W. 2 is not being accepted, the evidence of P. W. 1 also cannot be accepted, as both brothers must be placed in the same category. This line of easoning, in our opinion, is erroneous.

1 •

U.P. STATE v. !FTlKHAR KHAN (Vaidialingam, J.) 337

The plea of alibi set up by the first respondent will be considered by us later. But it is necessary to refer to 'the answers given m the cross-exarnmauon of P.Ws l and 2 to consider whether the approach made by the High Court for rejecting their evidence is juscified.

We find tha't the cross-examination of these two witnesses is very scanty. The only suggestion made to P. W. l was whether Ittikhar Khan had been aamitted to some hospital at Bareilly on the day of occurrence, namely, Octobier 16, 1967.

His answer was th.at the suggestion is not correct. There is no further question put to this witness regarding the respondent one having been admitted in the hospital, the duration of his stay in the hospital or his discharge from the hospital. P.W. 2 in crossexamination has stated that he had seen lftikhar Khan all along in the village on the day of occurrence and for three or four oays before the occurrence.

This must be the answer obviously to a question whether the witness had seen Iftikhar Khan in the village on the day of the occurrence and also during the three or four days before October 16, 1967. No further questions have been put to this witness. It is on the basis of the answer given by, P.W. 2 that the High Court has rejected, not only his evidence but also the evidence of P.W. 1. In our opinion, the approach made by the High Court is erroneous, especially when we do not find any positive finding by !he court that the first respondent was in the hospital on October 16, 1967. The High Court's rejection of their evidence has been substantially on the ground that, they being the brothers of the deceased, were partisan witnesses and, therefore, their evidence is unworthy of credence.

Here again, the learned Judges have committed an error. It is no doubt true that when the court has to appreciate the evidence given by witnesses who are partisan or interested, it has to be very careful in weighing their evidence.

Some of the points to be taken into account will be whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is true. In our opinion, it is unreasonable to reject the evidence given by the witnesses merelv on the ground that they are partisan or interested witnesses.

Judicial approach has to be very cautious in dealing with such evidence. The Hih Court has not given due c~si<tera

tion to these aspects also when rejecting fhe evidence of P.Ws 1 and 2: This also answers the contentions of Mr. Mookerjee that the evidence of P.Ws I and ?.. who are partisan wf!nesses, bas been rightly rejected h'y the High Court.

Mr. Mooketjee next pointed out that the non-exami11ation bv the prosecution of the nerson~ mentioned in the first information report and who. according to the prosecution, have seen the occurrence, must have weighed with the High Court in rejecting the interested testimony of P.Ws 1 and 2.

He further stressed "that there was a duty on the part of the prosecution to have examined those persons who have witnossed the occurrence irrespective of the nll!ture of the evidence that they may give before the court.

On the other hand, he pointed out that those persons, who can be called independent witnesses, have been kept back and only the brothers of the deceased have been examined and the prosecution must bear the consequences of such evidence not having been accepted by the court.

The counsel further urged that the non-examination of those per5ons, mentioned in the first information report, who have seen the occurrence, has prejudiced the accused and, therefore, theit conviction, by the trial court, based merely on the testimony of P. W s 1 and 2, who are none else than the Qi-others of. the dei; eased, cannot be considered to have been arrived at after a fair trial.

It is no doubt true that, as pointed out by this Court in Habeeb Mohammad v. The State of Hyderabad(!), it is the duty oE the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testimony is for or against the case of the prosecution. In the said decision, the observations made to the same effect by the Judicial Commilltee in Stephen

Seneviratne v. The /(ing( 2 ) have been quoted with approval.

To a similar effect is also the recent decision in Sahaj Ram &

Others v. The State of U.P.(8).

After giving due consideration to the above contentions of Mr. Mookerjee, we are of the opinion that, in the particular circumstances of this case, there was justification for the non-examination of Laddan Khan, Baboon Khan, Ibne Hasan and Munnan Khan. • From the evidence of the investigating officer, P.W. 8, it is seen that the statements were recorded by the police from the above persons on the morning of October 17. 1967. P.W. 1 in his chiel examination had stated that Laddan Khan, Babban Khan and Ibne Hasan had seen the murder of his brother, Sikander Khan.

It is his further evidence that though they had seen the murder, yet due to fear of the accused persons they had filed a false affidavit on April 16, 1968, before the Committing Magi.~ ttate that they had seen nothing. So far as we could see, there is no cross-examination of P.W. 1 on this point. When these three persons had filed affidavits before the Committing MagiStrate that they bad seen nothing, it serves no purpose to insist on the prose-

-mit9"4J S.C.R. 4,5.

(2) A.I.R. 1936 P.C. 289. (3l Criminal ~No. 131 of 1969 decided on 17·11·1972.

cution examining them as witnesses.

So far as Munnan Khan is concerned, he is the uncle of P.Ws I and 2 and the deceased and the evidence of P.Ws I and 2 is that he came running to the scene when an alarm was raised.

His evidence would not have carried the matters further because he had come only after the actual shooting had taken place. His evidence is not essential to the unfolding of the prosecution case; and as much he was not a material witness.

Therefore, this criticism regarding the non-· examination of the said four persons has to be rejected.

The main plea of the first respondent was that on the date of the occurrence he was in the Bareilly hospital and, therefore, the evidence of the prosecution witnesses regarding his participation in the murder is false. All the four accused surrendered b, efore the Magistrate on November 4, 1967. On the said date, the first respondent filed a statement before the Magistrate to the effect tha<t on the date, when the murder is alleged to have taken pface, namely, October 16, 1967, he was already in the District hospital, Bareilly from October 14, 1967 to Oc'lober 31, 1967, and that he was also operated upon for hydrocele in the meanwhile. According to him, he was in the hospital durin11: the entire period from October 14, 1967 to October 31, 1967. If 'this is established. there can be no doubt that his acquittal by the High Court will be justified. Again if he was in the hospital on October 16, 1967. the evidence given by the witnesses regarding the participation in the crime of nat only the fi.rst resvondent but also of the other respondents. will have to be viewed with greater care and caution i.e. whether their evidence can be considered to be true even rearcling the participation of resnondents two to four.

But the question is whether on the evidence it can he helri that the first respondent was in the hospital on October 16. 1967.

In support of his plea of alibi, the first respondent had examined the Medical Officer, D.W. 1, and two nurses, D. Ws 2 and 3 working in the said hospital.

As the name of another person was also mentioned by D.Ws 2 and 3, as having been working in the hospital in the particular ward on the relevant date. the learned Sessions Judge has examined the said person as C.W. 1.

D.W. 1 no doubt refers to the first respondent havin!l' been admitted as an indoor patient in the district hospital, Bareilly. on October 14, 1967. But he has stated that the operation of the

aid accused for hydrocele. which had been fixed originally on October 16. 1967. did not tal.; e rtace and that he was actl'allv operated on October 18, 1967. But the point to be noted from the evidence of this witness is that he canot say on oath that on

October 16, 1967, the fifS't respondent was present in the hosphal all along. He has also stated mat on Octooer 16, 1967, the first respondent might have been in a frt pos111on to move about and that there is no signature of the said accused in the, records of the hospital on October 16, 1967. D.W. 2 claims to be the sister-incharge of the hospital on October 16, 1967. She has stated that she was on duty from 7.00 A.M. to 12.00 A.M. and again from 4.00 P.M. to 8.00 P.M. on October 16, 1967. It ls her further evidence that she can say from memory that on October 16, 1967, the first respondent, Iftik:har Khan, whom she is able to recognise

D "

by sight, was in the hospital. 111 view of this statement, quite naturally, she was very severely cross-examined 1fy the prosecution.

She had admitted in cross-examination that there is n0- C record to say that she was on duty in the hospital on October 16,

1967 and that there is also no record to show that she counted the patients and satisfi,!Od herself that the first respondent was in the hospital. Even in cross-examination she has stated that she counted the number of patients at 4.00 P.M. on October 16, 1967, in the presence of CW 1.

But she is prepared to admit that the operation, which was scheduled to take place on October 16, 1967, was postponed because the operation fee was not paid by the first respondent. She has wound up her evidence by stating that all the answers given by her on December 18, 1968, regarding the presence of the first respondent in the hospital on October 16,

1967, were from her memory. To a specific question by the Court, this witness bas further stated that it is only on the basis of memory that she was saying that she took charge of the patients on October 16, 1967, at 4.00 P.M. along with the student nurse, Sharma, CW I. She bas admitted that in the 'Da)' and Night' register, which appears to have teen produced before the court, it has not been noted that CW 1 came on duty at 4.00 P.M. on October 16, 1967.

DW 3, another staff nurse, working in the hospital, has stated that she may have been on duty on October 16, 1967, from 7.00 A.M. to 4.00 P.M. But on seeing the first respondent in the dock. she has stated that she is not sure if the same person was admitted for operation of bydrocele in the hosoital. In fact. in an answer to a auestion out bv tbP. court. she has admitted that she cannot say if the first respondent was in her' ward at any time, even between 7.00 A.M. and 4.00 P.M. on October 16, 1967.

Cominq to CW 1, she has categoricallv denied that she was ever out in-cba•ge of the ward on October 16. 1967. and she bas also denied having made anv countinJ! of patients and that at 4.00 P.M. and in the comoanv of DW 2.

She has also stated that she cannot say il the first respondent was an indcor patient

• B

D •

in the hospital on October 16, 1967. From the above evidence, it is evident that it is onlv DW 2 who has stated that the 1st Respondent-accused was in "the hospital on October_ 16, 1967, from morning till 8.00 P.M. If he was in the hospital at 8.00 P.M .• it is evident that he could not have been present at the scene of occurrence at 8.30 P.M. That much is accepted by the prosecution .. But the learned Sessions Judge has dis-llieved the evidence of DW 2. Her evidence, as mentioned earlier, is purely a guess work and from memory. There are no records produced from the hospital to corroborate her evidence that the first respondent was in the hospital on October 16, 1967. In fact, CW 1, in whose company the counting of patients is stated to have been done by DW 2, finally contradicts the latter. _ DW 3 does not support

DW 2.

The High Court, while considering the evidence of the- .

Medical Officer, DW 1, does not express _its opinion as to the truthfulness or otherwise of DW 2 except saying that nurses haveto work at very great speed in the hospitals and that they can also make mistakes. It is a bit difficult to appreciate in what context this observation has been made by the High Court. It is no doubt true that from the evidence of DW 1, the Medical Officer, it is evident that the first respondent was admittd in the hospital on October 14, 1967. Though there is no clear' evidence, one way orthe other, it is very likely that he was in the hospital , also on Octo-- ber 15, 1967. But the evidence of DW 1 is clear to the elfect that he cannot speak of the first respondent having been in the hospital" on October 16, 1967. DW 3 and CW t did not state that thefirst respondent was in the hospital on Octot,.r 16, 1967. DW 1 is also positive when he says that the operation, which was scheduled to take place on October 16, 1967, was postponed to October 18, 1967. and that the first respondent was in a positiow. to move about on the foriner _ date. These circumstances clearly show that it was possible for the first respondent to be absent from the hospital on October 16,-1967.- None of the witnesses examined by the defence have stated that once a person has been admitted" to the hospital, he cannot leave the hospital under any circums-- tances till he is discharged. Nor do they say that any particular patient can leave the hospital only with their perrnissicn.

Admrl'tedly, none of the witnesses spoke about any permission having been asked for on given to the first respondent to be at 1-ent from the hospital. In view of these facts, it is reasonable to infer that because of 1he very minor ailment that the first respondent had, itwas possible for him to leave tlie hospital on October 16, 1967, and to _be absent throughout the day or, at any rate, in the evening .. - To conclude on this aspect, the evidence of the defence witnsses; does not rule out the possitlity of the first respondent being ab-

SUPREME COURT REPORTS [1973] 3 S.C.ll.

sent from the hospital and his being found at the scene of occurrence as spoken to by the eye witnesses.

Mr. Mookerjee no doubt urged that the High Court might have been influenced by the fact that the evidence of the defence witnesses creates a lot Q_f doubt about the participation of the first respondent in the crime.

We are prepared to agree that if the said evidence really raises a reasonable doubt in the mind of the court regarding the participation in the crime by the first respondent. that doubt must be resolved in his favour.

In this context, it is pertinent to quote the followiag observations in the decisioe in Himachal Pradesh Administration Vs. Om Prakash(') :

"The benefit of doubt to which the accused is entitled is reasonable dout--'the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind .which fights shy-though unwillingly it may be--or is afraid o.'. the logical consequences, if that benefit was not given; or as one great .Judge said it is 'not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism".

In our opinion, the evidence of the defence witnesses does not create any reasonable doubt, even in favour of the first respondent.

In the case before us, the learned Sessions Judge has convicted the first respondent for an offence under section 302. The 3rd and 4th respondents were convicted under section 302 read with section 34 of the Indian Penal Code for having associated themselves, armed wi'th lathis, wi'th the other accused with the ccmmon intention of committing the murder of Sikander Khan.

This is the convenient stage to deal with the contention of Mr. Aggarwala, learned counsel for the 4th Respondent, that even if the presence of his client at the time ot the occurrence is proved the evidence has not established that the criminal act was done by Respondents I and 2 in furtherance of the common intention of all the four accused.

As this relates also to the 3rd Respondent, the question is whether section 34 can be applied in the case of the said two Respondents.

As we have already indicated, the evidence regarding the participation of Resoondents 3 and 4 is common. Hence, if the contention of Mr. Aggarwala regarding the non-applicabilitv of section 34 with respect to the 4th Respondent is accepted. the same will apply to the 3rd Respondent also.

(IJ A.J.R.1972 S.C.97l.

As pointed out by the Judicial Committee in Mahbub Shah

v. King-Emperor("), to invoke the aid of section 34 IPC it must be shown that the criminal act complained against, was dcne by any one of the accused persons in the furtherance of the common intention of all.

If this is shown, anyone of the accused persons may be made liable for the crime, in the same manner as if the act were done b!y him alone.

To convict an accused of an offence, applying section 34, it is necessary to establish that the criminal act was done in concert pursuant to a pre-arranged plan. It is also to be borne in mind that it is difficult, if not impcssible, to procure direct evidence to prove 'the intention of a person. Therefore courts, in most cases, have to infer the intention from the Act or the conduct of a particular person or from the other relevant circumstances of the case. It is also to be remembered, as emphasised by the Judicial Committee, that 'the inference of common intention, within the meaning of the term in section 34, should never be reached unless it is a necessary inference deducible from the circumstances of the case'.

The above principles have been reiterated by this Court in Pandurang, Tukia and Bhillia v. The State of Hy(ierabad('). It has also been stated in the said decision that there is no special rule of evidence for applying section 34 and "at bottom, it is a question of fact in every case and however similar the circumstances. facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All 'that is necessl!ry is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis".

In Krishna Govind Patil v. State of Maharashtra('), the principle has again been reiterated that before a court convicts a

Person under section 302 read with section 34, it has to record a definite finding that the said person had prior concert with one or more other persons, armed or unarmed, for committing the said offence. In Jaikrishnadas Manohardas Desai and Another v.

The State of Bombay(') it has been held that "the essence of liability under section 34 is to be found in the existen~ of a common intention animating the offenders leadinJ! to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under section 34 is not, on the words of the statute, one of the conditions of its appli-

(I) {1945] L.R. 72 I.A. 148.

(3) {1964] I S.C.R. 678. (2)

11955] S C.R. 1083.

(4) [1960] S.C.R. 309.

344 liUPREME COURT REPORTS

[1973] 3 S.C.R,

i:ability." As explained by Lord Sumner in Bilrendra Kumar

Ghose v. The King Emperor,\') ''!he ieadmg feature ol sei:\ton .34 of the Indian Penal Code 1s participation' m action. To establish joint resp!>ns1b11ity tor an. olfence, it must of course be esta- .blished that a crimmal act was done by several persons; the participation must be 1n doing the act, not merely in its planning. A .common intention-a meeung of minds-to commit an oil'ence .and participation in the commission of the offence in furtherance of iliat common intention mvite the application of section 34.

But this participation need not in a.11 cases be by physical presence.

In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liaWlity may be necessary, but such is not '1he case in respect of, other offences where the offence consists of diverse acts which may be done at different times and places".

Having due regard to the various decisions referred to above, the question is whether the evidence in the case before us establishes that the shooting of Sikander Khan by Respondents 1 and 2 was done in furtherance of the common intention of all the four accused. The evidence of PW s 1 and 2 is to the effect that all the four Respondents are residents of the same village and Respondents 1 and 3, who are brothers, are bitterly inimical to Sikander Khan, the deceased. Respondents 2 and 4 are their close friends. There is evidence regarding murder of a brother of Respondent 1 and the acquittal of the deceased after trial in connection with that murder. The evidence is also to the effect that Respon <lents 1 and 2 were on bail at the material time, having been con- 'Victed by the Trial Court in connection with an attempt to murder -one, Ilyas Khan, who was a close associate of the deceased. These facts have not been challenged by the accused in the cross-exami- -nation of PWs 1 and 2. Respondents 1 and 2 armed with pistols

and Respondents 3 and 4 armed with latbis, suddenly came in a 'body through a lane to the place where Sikander Khan was sitting 'and reciting 'Jang Nama'.

Respondents 1 and 2 fired shots in <1uick succession at Sikander Khan who fell down dead. Respon dents 1 and 2 again re-loaded their pistols, but, on PWs 1 alld 2 who were with the deceased, raising an alarm, they ran away firing lihots. All the four accused ran away together.

When Resoondents 3 and 4 were examined by the court under section 342. their only answer was that they had been implicated due to enmitv of the witnesses. There is no suggestion to PWs 1 and 2 bv either Respondent 3 or 4 re1?arding any reason or justification for their presence near the deceased at the material time.

Yf once the evidence of PWs 1 and 2 i~ accepted, as we are inclined

(I) (t924)"I..R. S2 I.~. '40, S2.

• -·

to do, the presence of the four accused together at the time of the occurrence stands clearly established. It is true that for invoking section 34 against the accused, prior concert or a pre-arranged plan has to be established. But as it is difficult to prove the intention of an individual, it has to be inferred from his act, or conduct and other relevant cic'cumstances. It is in evidence that Respondents 1 and 3 are bitterly inimical to Sikander Khan and that Respondents 2 and 4 are their close associate;.

There is also evidence abut the murder of the brother of the 1st Respondent and the deceased, llyas Khan and certain others being tried for that offence as also their acquirtal in the said case. The evidence is also furtb.er to the effec.t that the 1st and 2nd Respondents made an attempt to murder Ilyas Khan by shooting him with a pistol some months before the incident.

The said two accused were prosecuted and convicted biy the Sessions Court. But about twenty days before the murder of Sikander Khan, bCJth Respondents 1 and 2 had been released on bail pending their appeal. It was at that time that this murder took place. These statements made by PWs

1 and 2 have not been challenged by the 3rd _and 4th Respondents.

There is also no suggestion to the .witnesses that Respondents 1 and 2 had hidden their pistols and they drew them out suddenly when they shot at the deceased. It is no doubt true that there is

no evidence regarding any over tact having been done by Respondents 3 and 4 at the time when Sikander Khan was shot at. It is not necessary, to attract section 34, that any oven act mur.t be done by the panicular accused.

The section will l1e attracted if it is established that the criminal act has been done by anyone of the accused persons in furtherance of the common intention .

If this is shown-and in this case we are satisfied that it has been so shown-'the liability for the crime may be imposed on anyone oi.

the persons in the same manner as if the act were done by him alone.

Their accompanying Respondents 1 and 2, who were armed with pistols, in the background spoken to by PWs 1 and 2, they themselves being armed with lathis and all the four coming together in a body and running away together in a 1:1ody after the shooting was over, coupled with nq explanation being given for their presence at the scene, lead to the necessary inference of a prior concert and pre-arrangement and that the criminal act was done by Respondents I and 2 in furtherance of the common intention of all.

Therefore, Respondents 3 and 4 will have to be held liable for the crime in the same manner as if the [<Ct were done by any one of them alone.

In view of the circumstances mentioned above, in our opinion, Respondents 3 and 4 have to be held guilty under section 302 read with section 34.

The High Court has reversed the finding of conviction on grounds, wn1ch are wholly untenable, The view of the High Court

lLlat the accused must be given the benefit of doubt, is wholly unreaonabile and is not warr!lnted by the materials on record. _ _The High Court, without a proper consideration of the evidence of PWs 1 and 2, has acquitted the accused. The said evidence clearly shows that the first respondent committed the murder of Sikander Khan by shooting him with a pistol. That evidence also establishes, as held by us, the participation oi Respondents 3 and 4 so as to make them liable under section 302 read with section 34. The High Court has stated that the villagers pass on the road at 8.30 PM with lathis and, therefore, there was nothing unusual in the 3rd and 4th Respondents being found with lathis. This is an observation made by the High Court without any reference to the evidence on record. There is a further observation that the said Respondents may have accompanied Respondents Nos. 1 and 2 without any knowledge that they were carrying fire-arms with a view to commit the murder of Sikander Khan. This observation clearly shows that the High Court has not given any consideration to the evidence on record. We have earlier held thqt Respondents 3 and 4 are guilty under section 302 read with section 34 and, therefore, the a.cquittal by the High Court of these Respondents is absolutely unjustified.

The fact thM the High Court was also dealing with a reference under section 374 of the Code of Criminal Procedure, particularly regarding Respondents 1 and 2, and as such had a duty to appraise the evidence for itself for arriving at its own independent conclusion, does not stand in the way of this Court interfering with the order of the High Court when it reverses the decision of the Trial Court on grounds, which are plainly fallacious and untenable.

Though this Court does not, in an appeal under Article 136. normally reappraise the evidence and interferes with the assessment of that evidence by the High Court, in the case on hand, grave injustice has been done by the High Court interferin~ with the decision of the Trial Court on grounds, which are plainly untenable. The view taken by the High Court is clearly unreasonable on the evidence on hand. Therefore, there is ample justification for this Court interfering with the decision of the High Court.

In our view, the evidence in this case was sufficient to justify the conviction of the first Respondent for the offence of murder under section 302 and of the 3rd and 4th Respondents for an

offence under section ~02 read with section 34.

Then the question is regarding the sentence. The 3rd and 4th Respondents were sentenced to imprisonment for life by the

' '

U.P. STATE v. IFJIKHAR KHAN ( Vaidialingam, J.) 347

Sessions Judge. That sentence will be allowed to stand. The first Respondent, Iftikhar Khan, son of Mohammad Hasan, was sentenced to death by the learned Sessions Judge. Though this is a pre-eminently fit case for the imposition of the sentence of death, the question is whether this Court should impose the said sentence on him now. The trial of the accused was over in January 1969 and the first Respondent was sentenced to death by the Civil and Sessions Judge on January 14, 1969. We are now in 1973. In between, the High Court had acquitted him and set him free.

Under those circumstances, we are of the view tht the interest of justice would. be adequately met by sentencing him to imprisonment for life for the offence under section 302 l.P.C.

In the result, we set aside the judgment and order of the High Court acquitting Respondents Nos. l, 3 and 4 and the appeal is allowed.

We convict the lst Respondent for the offence under section 302 and sentence him to undergo imprisonment for life.

We further convict the 3rd and 4th Respondents for the offence under section 302 read with section 34 and sentence them to undergo imprisonment for life.

There will bie no order on the appeal so far as the 2nd Respondent, Ishitaq Khan, son of Mukhtar Khan, is concerned, as it has become infructuous due to his having been murdered during the pendeilcy of the appeal.

V.P.S.

Appeal allowed.

7--L 796Sup.C . I. /7 3

STATE OF U

IFTIKHAR KHAN & ORS

January 15, 1973

I. D. DUA

Constitution of India

Art. 136

Indian Penal Code

ss. 34

s. 302

ss. 302 and 34

I.P.C

s. 374

Art. 136

s. 374

[1964] 8 S.C.R. 133

I.P.C

s. 302

I.P.C

Pandurang

(1964] 1 S.C.R. 678

[1960) 3 S.C.R. 319

L.R. 72 I.A. 148

L.R. 52 I.A. 40

Allahabad High Court

P. Rand

Vimal Dave

C. B. Agarwa

VAIDIALINGAM

sections 302 and 302 read with 34

I.P.C

Sikande:· Khan

October 16. 1967

Ishitiaq Khan

Iftikhar Khan

Anwar Khan

Iftikhar Khan

Anwar Khan

Sikander Khan

Aqil Khan

Ilyas Khan

October 16, 1967

Ilyas Khan

Laddan Khan

November 4, 1967

section 302

section 302

section 34

District hospital, Bareilly

s 1 and 2

Bareilly hospital

Bareilly

section 302

section 34

14th October, 1967

October 16, 196-7

October 18 1967

14th and 15th October, 1967

Vaidialingam

P. Rana

D. Mookerjee

Article

136

B. R. Aggarwala

Mookerjee

section 302

IPC

section 34

s 1 and 2

section 34

Indian Penal Code

Aggarwala

section 3

Criminal Procedure Code

article 136

Article 136

Article 136

Laddan Khan

Babban Khan

Munnan Khan

lbne Hasan

Ittikhar Khan

lftikhar Khan

Mooketjee

s 1 and 2

Baboon Khan

Ibne Hasan

Munnan Khan

October 17. 1967

April 16, 1968

Munnan Khan

October 14, 1967

October 31, 1967

October 18, 1967

Octooer 16, 1967

Iftik:har Khan

October 16,

1967

December 18, 1968

Sharma

Octot,.r 16, 1967

October 16,-1967.- None

section 302

section 302

section 34

Indian Penal Code

section 34

section 34

section 34

IPC

section 34

section 34

section 34

section 302

section 34

section 34

section 34

L.R. 72 I.A. 148

Sumner

Indian Penal Code

section 34

Sikander Khan

s 1 and 2

section 342

section 34

llyas Khan

section 34

section 302

section 34

section 302

section 34

section 302

section 34

section 374

Code of Criminal Procedure

Article 136

section 302

section 34

Mohammad Hasan

January 14, 1969

section 302

section 302

section 302

section 34

Ishitaq Khan

Mukhtar Khan


SIRSI MUNICIPALITY BY ITS PRESIDENT SIRSI

CECELIA KOM FRANCIS TELLIS

January 18, 1973

(S. M. SIKRI, C. J., A. N. RAY, D. G. 'PALEKAR, M. H. BEG AND

S, N. DWIVEDI, JJ.J

Bon1hay District Municipal Act 1901-Rules nuule under s. 46-- Rults 143 11uindatory-Disn1issal of employee without reasonable oppor~ tunity .to show cause l'oid and illegal-State authorities 1nust cct 'within Jin1its of statuton,.i poaers-Public_ en1ploy11ient distinguished front p'ri

"ate en1p/oy1nent.

The respondent was an employee of the -appellant municipality a!' a midwife in its hospital.

On the death of a patient in the hospital an enquiry was held by the Civil Surgeon who found that the death was not <luc to the negligence of the hospital staff.

Thereafter a committee appointed by the municipality held an enquiry and made its report.

The President of the municipality gave notice to the respondent that as she was responsible for the death of the patient in question due to her :negligence she. should appear before the Municipal Council at its meeting at 4 p.m. on 25 March 195~ and give her explanation.

She s-ent her reply denying her negligence and also stated that if It was necessary for her to explain anything she should be asked in writing.

She did not appear before the Council at the appointed time.

When she did appear at 6 p.m. she insisted that the charge against her should be in writing.

The municipality disssed her from service. The _res pondent thereupon filed a suit for a declaration that the resolution of the municipality dismissing her from service was void.

Her fir.st contention was that Rule 143 of the Ruk" framed by the municipality had been violated as she was !liOt given an opponunity of defending herself against the chafge.

Her second contention was that the resolution was passed by the municipality on a day when the question of her dismissal was not on the agenda. The High Court upheld the findings of the trial court and the first Appellate court that the res pQndent was not given a reasonable opportunity to defend herself anJ thus r. 143 was violated and on this ground upheld the declaration that she was deemed to have continued in service from the date of dismissal to the date of the suit.

In appeal by. special leave before this Court the municipality contended that the respondent was not entitled to any declaration and that if the dismissal was wrongful the remedy lay

in damages.

HELD: (per Sikri,

C.J ., Ray, Palekar and Dwivedi,

JJ.)

(i) Tennination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or iIJ.egal it may be.

The reason is that dismissal in breach of contract is remedied by damages.

[353F-GJ

In the case of servant of the State or of local authorities, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contra'rv to the rules of natural justice or if the dismissal or ifthe dismissal iS in violation of the provisions of the stattife. Apart fram the intervention of statute there would not be a, declaration of

SIRS! MUNIC. v. KOM FRANCIS (Ray, 1.) 349

nullity in the case of termination or dismissal of a setva!nt of the Stat-I! or of other local authoriti"' or statutory bodies.

[3530-H]

The courts keep the State and the public authorities within the limits of their statutory powers.

Where a State or a public authority dis misses an employee in violation of the mandatory procedural require ments or on grounds which are not sanctioned ol' supported by statute the courts may exercise, jurisdiction to declare the act of dismissal to' be a ; nullity.

Such implication of public employment is thus distinguished from private employment in pure cases of master and .servant.

l353H,354B]

This Court in its decisions has held that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or Order is invalid. This Court has questioned the orders of dismissal and granted appropriate declarations.

[356C-DJ

Executhe L'o111111iltee of U.P. State Warehousing Corporation Lbnit- <'d. v. lhatulra Kiran Tyagi, [1970} 2 S.C.R. 250 a:nd Indian Airli1u•\' Corpora.tio11 v. Suklufeo Rai, [1971] 2 S.C.C. 192, distinguished.

S. R. Tewari v. District' Boar,/, Agra, [1964)

3 S.C.R. 56, Life Insurance l'orporation of India v.

Sunit Kz11nar Mukherjee, [1964] 5 S.C.R. 528, Ca!cutta Dock Labour Board v. Jafjar bnani & Ors., 1'1965] 3 S.C.R. 453 and Nc.raindas Barot v.

Recent English decisions, also indicate that statutory provisions may lin1it the power of dismisSal.

[356D-F]

Vine v. National Dock Labour Board, [1956) 3 All.E.R. 939 Barber

v. Manchester Hospital Board, [1958] I All. E.R. 322. RidRe v. B<l/dwi11,

11964) A.C. 41, Malloch v. Aberdeen Corporation. [19711 2 All. E.R. 1278 and McClelland v. Northern Ireland Generc.l Health Services Board. [1957] I W.L.R. 594, referred to.

(ii) In the present case the dismissal of the respondent must he declared to be illegal and void.

Rule 143 in1poses a mandatory obligation.

The rules y, erc made in exercise of power confeired on the nlunicipality by statute. The rules are binding on the municipality.

They cannot be. amended without the assent of the State Government. The disn1issal of the respondent was rightly found by the Hih Court to be in violation of rule 143 which imposeda ma, Ttdatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence.

The dismissal by the municipality was without recdrding anv written statemerit "'hich might have been tendered.

The dismissal by the municioalitv was \vith out \vrittcn order. The dismissal was ultra v;1es.

[357G-358A]

Per Beg, J. (concurri11g)-The competence of the Municipal courl to pass the rcso]utir.n dismis..;; ing the respondent depended more on compliance with Rule 143 made unclor s. 46 of the Bombay District Municipal Act, 1901 than on s. 26(8) of the Act. Compliance wit~ such a rule could not be dispensed with bv the Collllcll or its presiding au1hority under s. 26(8) of the Act.

[359C-E]

Neither r\lles nor bye-Jaws of the municipality could be made or altered by it unilaterallv. lloth operated as. laws which bound the local nuthority.

This was clear frlllll ss. 46 and 48 of the Act_

An express statutory provision or guarantee is not the only basis of a mandatory duty, or obligation. It ca'! he impoed either_ by .a r:ite made in exercise of a statutory power or 1t may ar1sc by 1mpltcation when exercising a quasi-judicial function,

[360G-HJ

The present case undoubt£dly fell within the category of cases where dismissal must be based upon a decision arrived at quasijudicially about a wrong done by the seryant. This ele-ntary and basic procedural safeguard, flows not merely from an implied rule of natural justice but in the present case it is actually embodied in a rule which cannot be interpreted as anything other than a legal limitation or fett£r on th<: power of the municipality to dismisses. [362F-Gl

This could not be a case in which damages for a simple breach of contract could afford adequate relief.

Damages could !OOt wipe off the stigma attached to the record. of the sefV'aD.t.

The law requires that he_fore the future of a servant is allowed to be marred by a blot on the recorJ of the servant concerned,, rules of natural justice must -be complied with. [363A-Bl

Case law referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 330 of 1967.

Appeal by a special leave from the judgmnt and order dated June 16, 1966 of the Mysore High Court at Bangalore in Regular First Appeal No. 33 of 1962.

R. B. Datar and S. N. Prasad, for the appellant.

S. S. Javali, B. P. Singh and D. N. Mishra, for the re.spondent.

G. B. Pai and C. S. Rao, for the intervener No. 1.

G. Ramchandra Rao and B. Parthasarath.v, for intervener No. 2.

D. V. Patel and K. L. Hathi, for intervener No. 3.

S. Balakrishnan, for intervener No. 4.

B. Datta, for intervener No. 5.

The Judgment of Sikri, C. J., Ray, Palekar and Dwivedi, JJ. was delivered by Ray, J. Beg, J. gave a separate Opinion.

RAY, J.-The question which falls for determination in this appeal by special leave is whether the respondent is entitled to a declaration in a suit filed by her that her dismissal by the appellant municipality referred to as the municipality was illegal and void.

The respondent was an employee of the municipality.

Her services were terminated by a resolution dated 23 March, 1955.

She. was dismissed from service. She filed this suit for a declaration . that the resolution of the municipality dismissing her from service was void and that she continued to be in service of the

~IRS! MUNIC. v. KOM FRANCIS (Ray, J.) 351

municipality and was entitled to emoluments from the date of the resolution up o the date of the suit.

The Municipality is goverened by the Bombay District Municipalities Act, 1901 referred to as the Act. Sectic;>n 46 of the Act provides that the municipality shall make rules in respect oi matters enumerated in that section. Clause (g) of section 46 empowers the municipality, to frame rules regulating inter alia the period of service, the conditions of service etc.

Rule 183 framed by the municipality provides that except in the case of Chief Health Officer and the Engineer every municipal officer or servant is liable to be discharged at one month's notice.

Rule 183 was not invoked by the municipality in 'the present appeal.

Therefore, rule 183 is out of consideration.

Rule 143 of the municipality provides two things. First, no officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence. Any written statement tendered shall be recorded and written order shall be passed thereon. Second, every order of dismissal or confirming dismissal shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order.

Sometime in February 1955 one Nayak brought his wife Nagarnma to Pandit Cottage l{ospital administered by the municipality. Nagamma was admitted to the maternity section. , On

15 February 1955 Nagamma died.

Nagamma's husband complained to the municipality against the negligence of the staff of the hospital as the cause for the death of Nagamma. The Civil Surgeon held an enquiry.

He gave a finding that the death of Nagamma was not due to the negligence of the staff. There was public agitation for a fresh enquiry.

On 7 March 1955 the municipality passed a resolution appointing a committee of four persons to hold an enquiry into the cause of the death of Nagamma and the alleged negligence of the staff ofthe hospital. The committee recorded the statements of several persons.

The committee submitted its report to the Municipal Council.

On 23 March 1955 a meeting of the Municipal Council ~'as held. The respondent alleged that though the consideration of the report of the sub-committee and the taking of a decision thereon were not incuded in th~ agenda of that meeting, yet the President of the Council sent a nouce to the respondent. The communication to the respondent was to the effect that it had come to the notice of the President that the death of Nagamma was due to the negligcnce of rthe respondent, and, therefore, she was to appear before the Municipal Council at 4 p.m. on 23 March 1955 and give )\er explanation.

The respondent received a notice on 23 March, 1955 at about 10.30 a.m. She sent her reply denying her negli gence. The respondent also stated that if it was necessary for !J.er to explain anything she should be asked questions in writing and she would give her answers in writing.

The respondent did not appear before the Municipal Council at 4 p.m. The respondent came to !he municipal hall at about 6 p.m. But that rtime, the Municipal Council had passed a resolu tion dismissing the respondent from service. The President asked the respondent what her statement was about negligence.

The respondent did not make any oral sfatement.

The respondent insisted that the charge against her should be given in writing and that she would reply in writing. The municipality did not acceds to the respondent's request.

The resolution of the municipality was communicated to the respondent on the same day. The respondent handed over charge on 24 March 1955.

Broadly stated, the two contentions of :the respondent were these. First, rule 143 of the municipality was violated. She was not given a reasonable opportunity of defending herself against the charge. Second, the resolution was passed by the municipality on a day when the agenda before the municipality did not contain any subject of dismissal of the respondent. On these grounds the respondent filed a suit for a declaration that the resolution was illegal, that the status of the respondent as mid-wife in the hospital remained unaffected and that the respondent was an employee of the municipality as !Jiefore. The respondent claimed other reliefs.

The contention of the municipality on the other hand was that the rules and bye-laws of the municipality were only for the guidance of the municipality and that the respondent could not challenge the resolution or action of the municipality on the ground of violation of rules and bye-laws.

The High Court upheld the findings of the trial Court and the first Appellate Court that the respondent was not given a reasonable opportunity of defending herself against the charge on which she was dismissed and that the municipality thus violated rule 143.

The High Court however did not accept the finding of the courts , below that the Municipal Council was not competent to pass the resolution on the ground of want of notice on the agenda. The High Court also set aside the findings ol the courts below that the charge had not been proved against the respondent.

The High Court found that the resolution of the municipality was c~ in violation of rule 143 and declared it as invalid and inopeiative;

SIRS! MUNIC. V. KOM FP.ANCIS (Ray, /.) 353

The High Court maintained the declaration tha:t the respondent was deemed to have continued in service from the date of dismissal to the date of the suit.

Counsel on behalf of the municipality contended that the respondent was not entitled to any declaration. In short, it was said on behalf of the municipality that if the dismissal was wrongful the remedy lay in damages.

The cases of dismissal of a servant fall under three broad heads. The fir5t head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal C and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of emvloY1Dent is not capable of founding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for D personal services. Such a declaration is not permissible under the Law of Specific Relief Act.

The second type of cases of master and servant arises under Industrial Law. Under That branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. _This relief is a departure from the reliefs available under the Indian Contract Act and the Specific. Relief Act which do not provide for reinstatement of a servant.

The third category of cases of master and servant arises in regard to the servant in the employment of the Sta:te or of other public or local authorities or bodies created under statute.

Termination or dismissal of what is described as a pure oontract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied biy damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statute.

Apat from the intervention of statute there would not be a declaia'lion of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.

The courts. keep the State and the public authorities within the limit~ of their statutory powers. Where a State or a public authority dismis.~ an employee in violation of the mandatory procedural requirements or an grounds which are not sanctioned

or suppol'ted by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master nnd servant.

Counsel on behalf of the municipality relies on the decisions of this Court in Executive Committee of U.P. State Warehousing Corporation limited v. Chandra Kiran Tyagi

(1970) 2 S.C.R. 250 and Indian Airlines Corporation v. Sukhdeo Rai

(1971) 2 S.C.C. 192 in support of 1the contention that even in cases cf statutory authorities or bodies a dismissal would only sound in damages and not entitle the dismissed servant to the relief of a declaratory judgment against the order of dismissal or termination.

In Tyagi's case (supra) the Warehousing Corporation was competent to make regulations not inconsistent with the Agricultural Produce (Development and Warehousing) Corporation Act, 1956.

The Warehousing Corpor®.on framed regulations.

Regulation 11 dealt wrth termination of the service al an employee other than b!y way of punishment. Regulation 16 dealt with penalties imposed on servant. Regulation 16(3) s1ated that no punishment other than fine, censure or postponement of increments or promotion was to be imposed on an employee without giving him an opportunity for tendering an explanation in writing and cross examining the witnesses against him and of. producing evidence in defence.

Tyagi in that case complained that at the enquiry he was not given opportunity to adduce evidence in defence and 1he persons from whom the Enquiry Officer gathered information were not tendered for cross-examination. The question for consideration by this Court in that case was whether the dismissal of Tyagi could support the grant of a declaration that the dismissal was null and void and that Tyagi was entitled to be reinstated. This Court held that an order made in breach of regulation 16(3) was not in breach of any statutory obligation. It was also held in Tyagi's( 1) case (supra) that the relevant Act did not 'guarantee any statutory status to Tyagi' nor did it 'impose any obligation' on the Warehousing Corporation in the matter of dismissal. The ratio in Tyagi's( 1) case (supra) was that violation of reeulation 16(3) was a breach al terms and cOnditions of relationship of master and servant and the master was liable for damages for wrongful dismissal.

This Comt did not find any violation of statntCl'.'y obligation in Tyagi's( 1) case (supra).

SIRS! MUNIC. V. K-OM FRANCIS (Ray, ].) 355

In the Indian Airlines Corporation case (supra) Sukhdeo Rai was suspended on certain charges. Later on he was found quilty of those charges in an enquiry. He was thereafter dismissed.

He filed a suit alleging that the enquiry had been conducted in breach of the procedure laid down by regulations made by the Corporation under section 45 oi the Act, and, therefore, the dismissal was illegal and void. The High Court held that the Corporation was under a statutory obligation to obServe the procedure laid down in the regulations and gave the relief of a declaratory judgment. This Court set aside the declaration granted by the High Court. The ratio in Indian Airlines Corporation case was st:rted thus :

"The employment of the respondent not being one to an office or status and there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the respondent's employment could be exercised, could the respondent contend that he was entitled to a declaration that the termination of his employment was null and void ?" ·

In the Indian Airlines Corporation case (supra) regulations framed under section 45 of the Act were said by this Court to be terms and conditions of service but the same did not constitute a statutory restriction as to the kind of contracts which the Corporation could make with the servants or he ground on which it could terminate. The dismissal in ithat case was found to he wrongful and not to fall within the vice of infraction of statutory limitation or statutory obligation.

This Court in S. R. Tewari v. District Board Agra (1964) 3 S.C.R. 55, Life Insurance Corporation of India v. Sunil Kumar Mukherjee (1964)

5 S.C.R. 528, Calcutta Dock Labour BOlll'd v. Jaf]ar Imam & Ors. (1965) 3 S.C.R. 453 and Naraindas Barot v. Divisional Controller, S.T.C. (1966) 3 S.C.R. 40 dealt with power of statutory authorities and bodies to dismiss servants. These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases.

In Tewari's case (supra) this Court said that dismissal, temoval or reduction of an officer or servant might be effected under

the rules only after giving the servant a reasonable opportunity of showing cause against the action proposed to be taken. This Court held in Tewari's case (supra) that in three instances a dismissed employee might in ppropriate cases o1'tain a declaratory judgment that the dismissal was wrongful. Those three instances are : first, cases of public servants falling under Article 3I1 (2) of the Constitution; secondly, cases falling under the Industrial Law and, thirdly, cases where acts of statutory bodies are in breach of mandatory obligation imposed by a statute.

In Naraindas Barot's case (supra) this Court held that the order of tem1ination was bad in law since it contravened the provisions of clause 4(b) of the regulation and also the principles of natural justice.

This Court has held in the decisions referred to that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or order is invalid.

This Court has quashed the orders of dismissal and granted appropriate declarations.

There have been recent English decisions on this subject.

These are Vine v. National Dock Labour Board (1956) 3 All E.R. 939; Barber v. Manchester Hospital Board (1958) 1 All E.R. 322; Ridge v. Baldwin 1964 A.C. 41; Malloch v.

Aberdeen Corporation (1971) 2 All E.R. 1278 and McClelland v. Northern lreland General Health Services Board (1957) l W.L.R. 594.

These decisions indicate that statutory provisions may limit the power of dismissal.

Where such limitation is disregarded a dismissal may be held invalid. In this respect employment under statutory bo, dies differs from ordinary private employment. Where a public body is empowered to terminate employment on specified grounds or where a public body does not observe the procedure laid down l\Y legislation e.g., improperly delegates power of dismissal to another body the courts have declared such dismissal from public employment to be invalid.

The cases of a statutory status of an employee can be also form the subject matter of protection of the rights of an employee under the statute. In Vine's case (supra) the removal of Vine's name from the register was held to be a nullity. The statutory scheme of employment was held to confer on the worker a status.

~IRS! MUNIC. V. KOM FRANCIS (Ray, J.) 357

An unlawful act of the Board was found to be interference with status. The status of the dock worker was recognised by this in

J11ffar Imam's case (supra). In Jaffar Imam's case (supra) the

tnnination of the employment in breach of clause 36(3) of the scheme made by the Central Government in exercise of the power conferred on it by section 4( 1) of the Dock Workers (Regulation of Employment) Act 1948 was held to be bad.

The ground given by this Court was that before any disciplinary action was taken under clauses 36( 1) and (2) of the scheme in Jaffar Imam's case (supra) th~ person concerned was to be given an opportunity to show cause as to why the proposed action should not be taken against him.

Again in Barber's case (supra) under the memorandum issued by the Minister of H:ealth the Hospital Board was not to carry into effect the dismissal of consultant before a certain appeal procedure had been completed.

Barbar was dismissed without the prescribed procedure being followed. It was held that despite the 'strong statutory flavour ttaching to the plaintiff's contract' this was an ordinary contract between master and servant. The House of Lord in McC/e/land's case held that the dismissal of the plairrtiff by the Board in that case on the ground of redundancy of staff was not one of the grounds specified in the tenns and conditions of service.

It was found that the dismissal could be on specified grounds e.g .. , gross miscouduct.

A declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validly tenninated. It was not a case of a Government servant. There was no question of breach of statutory provisions. The employment was based on contract. The Court found that the express power of the Board did not include reduction on the ground of redundancy.

The Court spelt out security of status in employment. The legal basis of the decision in McClel/and's case

(supra) is that the post was terminable only on certain specified grounds.

G In the present appeal, the pre-eminent question is whether the dismissal is in violation of rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found

H by the High Court to be in violation of rule 143 which imposed a mandatory obligation. The respondent was dimissed without a reasonable opportunity of bein~ heard in her defence. The dismissal by the municipality was without recording any written

statement which might have been tendered. The dio.missal by the municipality was without written order. The dismissal was ultra vires ..

For the foregoing reasons the High Court was correct in declaring the dismissal of the respondent to be illegal anq void.

The appeal is therefore dismissed. Jn view of the fact thL1 court directed the appellant would in any event pay the respondents' costs, 1he Respondent will be pai1 these costs.

BEG, J.-The facts of the case before us, which are so clearly set out in the judgment of my learned Brother Ray, need not be repeated by me. I respectfully concur with what has fallen from my learned brother. I would, however, like to add some observation on two aspects of the case before us.

Firstly, it was suggested, on behalf of the Municipality, that the local authority had some kind of dispensing power which could enable it to over-ride Rule 143 in the circumstances of the case before us.

Rule 143 of the Sirsi Murticipality, reads as follows :-

"Rule 143 (I). No officer or servant be dismissed without a reasonable opportunity cieing given to him of being heard in his defence.

Any written defence tendered shall be recorded and written order shall be passed thereon.

;2) Every order of dismissal or confirming a dismbsal shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order".

This suggestion was based on the provisions of Section 26, sub. s(8) of the Bombay District Municipal Act 1901 (hereinafter referred to as "the Act") which has , really nothing to do with any general power to disperse wi1h the application of any rule.

All that Section 26, sub. s(8), empowers the Council to do is to take up a matter for consideration and discussion with the per- G mission of the Presiding authority even though it may not have been tabled on 'the notified agenda for the meeting. This provision reads as follows :

"26 ( 8). Except with the permission of the presiding authority, which permission shall not ijl given in the case H of a motion or proposition to modiiy or cancel anv resolution within three months after the passing thereof. no business shall be transacted and no propositiorvshall be

SIRS! MUNIC. v. KOM FRANCIS (Beg, J.) 359

discussed at any general meeting unless it has been menuoned in the notice convening such meeting .or, in the case of a special general meetmg, in the written request for such meeting. The order in which any business that may be transacted or any proposition that may be discussed at any meeting in accordance with this subsection shall be brought forward at such meeting, shaU be determind by the presiding authority, who in case it is proposed by any member to give priority to any particular rtem of such business, or to any particular proposition shall put the proposal to the meeting and be guided

c by the majority of votes given for or agaill.9t the proposal".

Section 26, sub. s. ( 8), seems initially to have been relied upon only to meet the argument that the impugned resolution could not be passed in the absence of a previous notice of it to the

Members of the Council. The competence of the Municipal Council to pass the resolution dismissing the respcindent depended more on compliance with Rule 143 made under Section 46 of the Act than on Section 26 ( 8) of the Act. Compliance with such a rule could not be dispensed with by the Council or its presiding authority under Section 26 (8) of the Act.

The mode and conditions of appoi_ntment, punishment, and dismissal of officers and servants of the Municipality were meant to be regulated by rules which had to approved by the State Government in the case of the City ¥unicipalities and by the Com missioner in other cases before they could become binding or be altered. Bye-laws could be made on certain specified subjects only after the previous sanction of the State Government or the Com missioner, as the case may be, given to them. Neither rules nor F bye-laws of the Municipality could be made or altered unilaterally by it. Both operated as laws which bound the local authority.

This was clear from the provisions of Section 46 and 48 of the Act.

In Yabbicon v. King(') it was said :

"The District Council could not control the law, and G b!y~Iaws properly made have the effect of laws; a public body cannot any more than privl!te persons dispense with laws that have to be administered; they have no dispensing power whatever".

Again in William Feam & Sons. v. Flaxton Dural Council(') Sankey, L. J., held that a local authority has "no power" to con- H travene its own bye-laws properly made. In Kruse Vs. Johnson('),

(I) (1-899) (I Q.B. 444 (a).

(3) (1898) (2 Q.B. 91).

(2) (1929) (I K. B. 4SO @ 467).

Lord Russel pointed out that a bye-law has the "force of law"

within the sphere of its legitimate operation.

Therefore, quite apart from the basic character of Rule 143 as a procedural protection against un-meritted punishment by dismissal of servants of the Municipality, I think that the local body was not competent to act upon the assumption that it had any po:-ver to dispense with compliance with this rule so long a& it stood unaltered.

Secondly, the question arose whether the violation of Rule 143, which admittedly took place, made the dismissal of the respondent merely illegal, for which award of damages was sufficient

remedy, or mtje it void and ineffected, so that a declaration of the rights of_ the respondent as a servant of the Municipality could also be given despite the provisions of Section 21 Specific Relief Act.

It is true that, ordinarily, a Co1c1rt will not give a declaration which will have the effect of enforcing a contract of personal service and will restrict relief to the injured party to damages for breach of contract. But, the principles which are applicable to the relation of a private master and a servant, l!n-regulated by statute, could not apply similarly to the case of a public statutory body exercising powers of punishment fertered or limited by statute and relevant rules of procedure.

Although Indian Airlines Corporation v.

Sukhdeo Rai(1), which was cited on behalf of the appellant, could perhaps be dis

tinguished on facts, I am unable to reconcile the decision of this Court in the case of Executive Committee of U.P. State Ware

housing Corporation Ltd. v. Chandra Kiran Tyagi('), with our view in the case before us. In Tyagi's case (supra), as in the case be.fore us, no express statutory provision was contravened by the

impugned dismissal, but a rule, made under. powers conferred by statute, which protects the servant concerned from punishment bv way of dismissal contrary to rules of natural justice, was violated.

If a guaranteed "statutory status" means only an express statutory p, rellection, such as the one found in Article 311 of 1he Constitution, and a rule made under a statutory power is not enough to confer it, there was none either in T, vagi's case. (supra) or in the case before us. An express statutory provision or guarantee is not the only basis of a mandatory duty or obligation. It can be imoosed either by a rule made in exercise of a statutorv oower or it may arise by implication when exercising a qu'asi-judicial functions.

Even when there was no specific rule on the subject. like Rule 143 in the case before us, this' Court has held that violation cf ita1

(I) [19711 S1p,, S.C.R. 510.

(3) (1970J (2) S.C. R. 250.

51RSI MUNIC. V. KOM FRANCIS (Beg, J . .) :1 Ii 1

plied rules of natural justice, iii exercise of a quasi-judicial statutor: power, results in a legally void decision. It was so held because the obligation to observe .ules of natural justice was imperative in such a situation. In State of Orissa v.

Dr. (Miss) Bi11apa11i Rai('), this Court said :

"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike 10 judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise bf arb:itrary authority by the State or its officers. Duty to act judicially would, 'therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.

If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of Jaw and importance thereof transcends the significance of a decision in any particular case".

This principle would be equally applicable to local Government bodies which fall within the definition of "State" given in Artkl~

12 of the Constitution.

Byles, J., in Cooper v. The Board of Works for We11dswor1/1 District('), said long ago about the primordial character of the opportunity to be heard before punishment :

"The laws of God and man both give the party an opportunity to make his defence, if he has any.

I remember to have heard it obseryed by a very learned man, upon such an occasion, that even God himsell did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God) 'where art thou ? Hast thou not eaten of the tree whereof I commanded those that thou shouldst not ear?"'

Such a principle has been described as a principle of "Universa jurisprudence" by Mahomood, J., in Queen Empress v. Po11hi(" l

Tn Ridge v. Baldwin(') Lord Reid observed (at page 71)

"The authorities on the applicability of the Principle& of natural justice are in some confusion and so I

(I) \196'.IJ (2) S.C::.R.625.

12) 0863) 14 C.N.S.180.

(3) .L.R. 13 Alld. 171.

(4) 1964 A.C. <IO@ 65.

find rt necessary to examine this matter in some detail.

The principle audi a/teram partem goes back many c.entunes in our law and appears in a multitude of judgments of judges of the highe!lt authority. In , modem tlliles opinions have sometimes been expressec> to the eltect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nily' weighed or measured therefore it does not exist. The idea of negligance is equally insusceptible of exact definition but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligance in particular circumstances are equally capable of serving as tests in law, and natural justice as it had been interpreted in the coul'ts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile in that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal. These appear to fall in.to t11ree classes, dismissal of. a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal".

The case before us undoubtedly falls within the category of cases where dismissal must be based upon a decision arrived at quasi-judicially about a wrong done by the servant.

This elementary and basic procedural safeguard flows not merely from an implied rule of na'lural justice, but, in the case l:lefore us, it is actually embodied in a rule which we cannot interpret as anything other than a legal limitation or fetter on the power of the Municipal authority to dismiss. It constitutes a condition precedent to a valid decision to dismiss whether contained in a resolution or an order of the local authoritv. As the local Government

authority had failed to see that a mandatory duty, embodied ill a basic rule, had been carried out. the resulting decision must

necesarily be held to be void.

If the c; lecision to dismiss the resnondent was vnid and inooerat.i ve in law, there seems no reason whv a declaration to that effect be not granted.

Such a case would be covered by the principles

SlllS! MUN!C, V. KOM FRANCIS (Beg, J,) 363

A laid down by this court in. : Life Insurance Corporation of l ndia v.

Sunil Kumar Mukherjea & 019.(1) and S, P. Tewari v.

District Board Agra & Anr. ('). This could not be a case in which damages for a simple breach of contract could afford adequate relief. Damages could not wipe oft the stigma attached to the record of the servant. The law requires that, before the future B of a servant is allowed to be marred by a blot on the record of the

servant concerned, rules ol natural justice must be complied with.

I,· therefore, concur with the judgment and the order proposed by my learned Brother Ray.

G.C.

(IJ (19641 (3)SCR f52)

(2) (1964] (3)SCR (ll) 8-L 796Sup.C.. I. /73

CECELIA KOM FRANCIS TELLIS

January 18, 1973

S. M. SIKRI

A. N. RAY

D. G. 'PALEKAR

M. H. BEG

N. DWIVEDI, JJ

District Municipal Act 1901

s. 46

25 March 195~

Sikri

Ray

Palekar

Dwivedi

[1964)

3 S.C.R. 56

[1964] 5 S.C.R. 528

1965] 3 S.C.R. 453

Per Beg

s. 46

Bombay District Municipal Act, 1901

s. 26(8)

s. 26(8)

ss. 46 and 48

CIVIL APPELLATE JURISDICTION

R. B. Datar

S. N. Prasad

S. S. Javali

B. P. Singh

D. N. Mishra

G. B. Pai

C. S. Rao

G. Ramchandra Rao

B. Parthasarath.v

D. V. Patel

K. L. Hathi

S. Balakrishnan

B. Datta

RAY

23 March, 1955

section 46

Nayak

Nagarnma

Nagamma

24 March 1955

Specific Relief Act

Indian Contract Act

(1970) 2 S.C.R. 250

Tyagi

Corporation Act, 1956

Indian Airlines Corporation

Sukhdeo Rai

section 45

section 45

(1964) 3 S.C.R. 55

(1964)

5 S.C.R. 528

(1965) 3 S.C.R. 453

(1966) 3 S.C.R. 40

Tewari

Article 3I

Naraindas Barot

clause 4(b)

Vine

J11ffar Imam

Jaffar Imam

clause 36(3)

Central Government

section 4( 1)

Barber

Barbar

McClelland

McClel

BEG

Ray

Section 26

Bombay District Municipal Act 1901

Section 26

Section 26

Section 46

Section 26

Section 26

Section 46 and 48

Sankey

Russel

Section 21

Specific Relief Act

Article 311

T, vagi

51RSI MUNIC. V. KOM FRANCIS

Byles

Adam

Mahomood