48 9

L. MICHAEL & ANR.

M/S. JOHNSTON PUMPS INDIA LTD.

February 10, 1975

[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SA!XAIUA, JJ.]

f11dmtrial Dispules Act (14 of 1947)-Dismlssa/ of art e:mployee-Powcr of Tribunal to go behind an order of tennr'nation-Employer must diM:/osie the

cro11nd3 of his action when challenged as colourable or ma/a fide-W lle11 Cort rt .1/ro11/d irt1erfcre with a {iJuling of fact.

The service<i of \he appellant, who was an empl, Jyee of the respondents, w.crc terminated by the !alter by ,.iving h.i.m a month's .not!ce as por th" stand1!1g orders without assigning anv reasons for the tern11Q.at1on.

The consequential industrial dispute was referred to the Labour c., urt. f he management alleged that the dismissed employee misused his position by p<15sing on important and secret inform.'\.tion about the affairs of the company to certain outidcro, that even after he was transferred to another section he made attempts to elicit information from the section with a view to pass it on to outsiders, 11nd that, therefore, ihe management lost confidence in the emolovee and terminated his

service~ by a bona fide orJcr. lhe Labotir Court confirmed the order of termination.

In appeal to this Court, it was contend~'1 that, even where a man.igement had the power to terminate the services of its employees without reasons but with notice pay the colourable exercise of <fit power invalidated the order and the Court could probe beneath the surface to check upon the hona {1.-lc.1 hehind the eercise of the power.

Allowing the appeal to this Court.

HEL'.) : I (a) The Labour Court has nJ.iskJ itself on the law and its onle1 'hould be set 11Side.

The workman will be reinstated with back wages. [498 GJ

(b) The manner of dressing up 11.n order doe$ not matter. The Court will lift the veil to view the reality or substance of the order. [495 F]

(2) (a) The Tribunal has the oower and, indeed, the dutv to X-ray the order and discover its true nature, if the object and effect, if the attendant circlllUslances and the ulterior purpose be to dismiss the employee because he is "D evil to be eliminated .. Bui if the management, to cover up the inability to establish by an inquiry, illegitimately but ingeniously passes an innocent looking

<1fder of termination simpliciter, such action is !:lad and is liable to be set aside.

Loss of confidence is no new armour for the man?tgement; otherwise securityof tcnu; c, ensured by the new industrial jurispruden,:e and authenticated by a. catcna of cases of this Court can be subverted , by thi.5 neo formula Loss of confiden;; o in the law will be the consequence of tho Loss of Confidence doctrine. [497 C-D]

(b) An employer who believe or suspects that his employee, particularly ono holrung a position of confidence, has betrayed that confid=. can, if the

conditions and terms of the employment permit, terminate bis employment and discharge him without any stigma attaching to the discharge.

But such belief or suspicion of the employer should not be a mere whim or fancy. It should

be bona fide and reasonable. It must rest on some tangible basis and the POWer bas to be exercised by the employer objectively, in good faith. which:

ns honestly and with due care. and prudence. If the exercise of such powe1 is challenged on the gl'cund of bemg cotourable or mala fide or an act of victim.isation or unfair labour practice, the employer must disclose to the ('..onrt the grounds of his impugned action so that tho same may be tested judicially.

1498 B-CJ

fo tho instant case this has n?t been done. There is only the ipse di.tit of the ewployer that he was suspecting since 1968 that the appellant was divulging 'ecrets relatinR to his business. The employer has not disclbsed the grounds on which this suspicion arose in 1968.

Further, aftr 1968, the appellant was gi••en

SU1'REME COURT REPORTS

[1975] 3 S.C.R.

two extra increments in addition to his normal increments in appreciation of his hard wo.rk.

This circumstance completely demolishes even the whimsical and tenuous stand taken bv the employer. It was manifest that the impugned action was not bona fidie. [498 DJ

Management, [19701 II L.L.J. 620. followed.

Delhi Transport Undertaking v. Goel [1970] II LlJ, 20, referred to.

(3) It is true that this Court, in appeal, a~ .1 rule of practice, is loath to inU:rfere with a finding of fact recorded by t11e trial court. But if such a fi11ding is based on no evidence, or is the result of a misreading of the mater:al evidenc.~

or JS so unreasonable or grossly un; ust that n; i reasonable person would judi dally arrive at that conc\usi<m. it is the duty of this Court to interfere arid se.t matters right. [498 E-F]

CI.VIL APPELLATE JURISDICTION: Civil Appeal No. 1605 of l.972.

Apneal by Special leave from the Award dated November 24, .l 911 D of the Labour Court, Delhi in L.C.l.C, No. 31 of 1971.

M. K. Ramamurthi and J. Ramamurthi, for the appellant.

V. M. Tarkunde, 0. C. Mathur, D. N. Mishra, and Sudhir K.

Khanna, for the respondent.

The Judgment of the Court was delivered by

KRr>HNA. IYER, J.-Industrial law in India has many twilight patches, illustrated by the present appeal which projects the problem of an employee whose services have been terminated similiciter by the Management, a pump manufacturing enterprise, issuing a notice ending the employment and offering one month's pay as authorised by the relevant Standing Orders.

The thorny legal issue is whether the ipse .dixit of the employer that he his lost confidence in the employee is. suffident justification jettison the fatter without levelling and provr.1g the objectionable conduct which has undermined his confidence so that the: tribunal may be satisfied about the bona fides of the 'firing• as contrasted with the colourable exercise of power hiding a not-so-innocuous purpose.

Th.e backdrop

The facts and circumst-.mces become decisive of the fate of the case even where the law is simplistic or fair in its face.

Here, what are the events and enviironments of employment leading to the worker being given the boot ? Is the order an innocent and, therefore, legal quit notic<. sanctioned by the Standing Orders which does not stigmatise the worker but merely bids him good-bye ? Oris it a sinister intent to punish as a guileless order based on 'loss of confidence', an alibi which, on a certain reading of this Court's rulings, is also a protective armour .against judicial probe and setting aside?

L. MICHAEL v. JOHNSTON PUMPS (Krishna Iyer, l.) 4 91

Michael, a permanent employee of proved efficiency and six years' standing, was appreciatively given two 'merit' increme,1ts.

But a letter of September 2, 1970 told him off service, giving him one month'! 'notice-pay' discharging him without damning, as distinguished from dismissing him for misconduct.

The rival versions illumine the factual confrontation, the resolutioa of which is no easy legal essay.

The worker, Michael, through his Union, protested against the 'sack' order as victimisoation of a Trade Union activist but the Management was heedless, conciliation was fruitless and the dispute between the Union and the Management was eventually referred by the Delhi Administration to the Labour Court for adjudicution.

The reference ran thus :

"Whether the termination of services of Shri L. Michael is illegal and/or unjustified and. if so, to what relief is be entitled and what directions are necessary in this respect ?"

Both sides stated their cases in their pleadi'ngs and the true nature of the conflict emerges from them.

The story set out by the employee in his statement before the Labour Court was tfrat although he was efficient, appreciated and awarded merit increments, the Management was antagonised by his active part in the formation of an Employees' Union, especially because oral warnings by the Regional Manager against his Unionist procfr.dty was ignored.

Michael became the treasurer of tqe Union.

This Union chapter claimed its price, for the Management quietly terminated his services by a simple letter which reads :

"We are sorry to advise that your services are no longer required by the Company.

As such, this letter may be treated as a notice for the termination of your services with immediate effect.

As for the terms of your employment Jetter, on termi.nati<YJ of services you will be paid one month's salary extra.

You may please call on the undersigned and have your accounts settled."

This act, claims the worker, was 'in flagrant violation of t:lementary principles of natural justice without assigning any reason and without giving him an opportunity to defend himself.

This, in his statement he challenged the termination as 'wIOngful, malafide, illegal, and an act of victimisation'. The counter case of the management get up in its statement, as is apparent from the discharge order, is that no dismiJsal is involved, no enquiry necessary a•ad no illegality inv-alidates.

The management claimed that the alleged annoyance with the workman for union activity was a concoction in self-defence, as the Management had not even knowledge of the formation of the Union.

This latter limb of the plea is a little too naive.

The warning by the Regional Manager was denied and the reference to trade union activities by the worker was more 'to create a ground for the workman's daim and has been levelled as a matter of habit and routine'.

The basic plea of the management was that the action being a simple

termination without a sting, the process and consequence of a disciplinary action were not attracted.

The Management, however, took the Court into confidence lll explain why the employee was discharged. He was employed as a Receipt and Despatch Cierk in the office upto 10-3-1970.

As ar1 insidr with access to office corresponde,1ce the employee misused bis position by passing on 'very important and secret information about the affairs of the company to certain outsiders'.

He was consequc11tially shiftl!d to the post of clerk handling posting of bills and collection of payments but the workman, although deilied direct access to coms pondence in the Receipt and Despatch section, made attempt 'to elicit information from the section with a view to pass it on to outsiders'.

The upshot of these activities of which the management was aforted was a loss of confidcnce in the employee.

This unreliability was visited with non-injuri()us termination of service by a bona fide order.

Therefore, the action was claimed to be legal and immune to judicial i nteif erenoo.

Two socially vital factors must inform the urnlerstanding a.nd application of Industrial jurisprudence. Tbe first is the constitutional mandate of Part IV obligating the State to make 'provisiO'J for securing just and humane conditions of work'.

Security of. employment is the first requisite of a worker's life.

The second equally axiomatic consideration is that a worker who wilfully or anti-socially holds up the wheels of production or undermines the success of the business is a high risk and deserves, in industrial interest, to be removed without tears.

Legislation and judicial interpretation have woven the l.egal fabric.

We have to see whether on the facts of the present case what the relevant law is, whether it has been applied by the Labour Court rightly and whether the appellant has merit on his side, judged by the social conscience and judicial constructiQ/a of the law in this br.ancb of discharge simpliciter versus disguised dismissal.

A few salient facts need emphasis before the principles of law arc applied.

The workman in his statement stressed the case of n!alus animus due to bis union activities, although be did vaguely refer to the termination of service as wrongful and malafide.

From this it cannot be argued, as the M:rnagement sought to make out, that his d1::nial of leaking out office secrets wa5 an after-thought pleaded only in the rejoinder and therefore liable to be discredited.

How could the worker have a hunch about the management's undisclosed ground for dismissal ? When the latter stated the reason which prompted this action ior the t time befor:e the Labour Court, .the .workman in bis reply

refuted thIS case. It 1lS noteworthy that there ts no speck of re1:ord or any hint of written material in support of the story that the management had crible information of the appellant betraying sensitive secrets of busmess. The letters sent by the Union and the worker requesting for reinstatement were being ignored. The management could well have disclosed their suspicion fa reply and told the Union and the orkman that they resorted to an innocuous discharge to avoid punit1v~ trauma. The management could have divulged in writing to

L. MiCHAEL v. JOHNSTON PUMPS (Krishna Iyer,!.) 49:!

the Conciliation Officer their legitimate fears about the worker's inte- ,; rity and their considerate action of simple termination.

This too they failed to do.

In theif writte';1 statement in Court the Management asserted for the first time that the employee was an intractable smuggler of inside information.

The statement winds up with the legalistic plea : 'the management had, in the meanwhile, lost confidence in the workman'.

This culminating collapse of trust is alleged to be the primary cause for the discharge from employme'at.

AL the time of the evidence, M.W.l, a former Regional Manager, swore that the workman joined as a pump operator in 1963, w•as promoted as clerk in 1967, that the suspicion of disloyal communication arose 'for the first time in 1968' and yet 'thereafter he was given two increments extra in addition to normal increments.

He was a hard working man and has a very good memory but the suspicion was there'.

These are the facts and the evidence in the case and it has bee,1 fairly conceded before the Labour Court by the Management's representative that were the action regarded as punitive it was bad, there having been no enquiry whatever with liberty to the employee to meet the charge.

But the single slender strend on which the discharge was suspended was 'loss of confidence' of the management in the employee.

The Labour Court argued :

"According to the management, as there was no proof with it for this suspicion it could not proceed against him departmenrally and, in the circumstances, it was considered desirable to terminate his service3 by passing an order of discharge without any stigma attached to it."

While on all hands it was agreed that the employee was efficient, the court took the view that the motivatio•a for the termination was the 'suspicion which lurked in the mind of the Regional Manager that information regarding tenders was being passed on by the workman'.

We have to find out whether the holding in the award that, on the ' materials above placed, the action could be called colourable or saved as bona fide, could be castigated as achieving an illegitimate end or supported as a premature but straight-forward and harmless farewell.

In short. was loss of confidence a legal label affixed by the management to eject the workman, there being no other legal method of accomplishing their wish to remove him for misconduct? - I ,· Two questions, therefore, fall for decision.

Can a person, reasonably instructed ir. the law and scrutinising with critical faculties the facts on record, come to th.e conclusion that the snapping of the tie of master and servant in the present case was innocuous and bonafide or oblique circumvention of the processual protection the law provides before a workman is dismissed for mis-c0'11duct ?

We can discern harmony and consistency in case law Chartered Bank( 1) and Murugan( 2 ) through Sudder Of!ice(3)

(1) [1960] 3 S. C R. 441.

(2) [1965] 2 S. C. R. 148. (3\ fl9i0] II L. L. J. 620.

from and

17-423SCl\75

494 SUPREME COURT REPOl.TS [1975) 3 s.c.R.

Air India Corporation ( 1). The social justice perspective und pa.rticular facts are important, though.

The plethora ot precederits need not, be covered in extenso as the law laid down is the same ex1:ept that judicial response to each case situation leads to emphasis on different facets of the principle. Even so some milestone decisions, if we may say so, may be considered.

fn Muruga11 Mills Case (supra) Wanchoo J (as he then was), speaking for th(: Court made the following observations :

"The right of the employer to terminate the services of his workman u'L1der a standing order like cl.17(a) in the present case, which amounts to a claim 'to hire and fire' an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication, came 1~? for c0nsidcra1ion befor, e the Labour Appellate Tribunal in Buckingham & Carnatic Co. Ltd v. Workers of the Compr.. y

(1952 L.A.C. 490).

The matter the"1 came up before this Court also in Chartered Bank v. Chartered Bank Employees

Union (1960 3 SCR 44 I and the Management of U. B.

Dutt & Co. v. Workmen of U. B. Dutt & Co. (19152 Supp. 2 SCR 822) wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirement of bona fides was tsse't1tial and if the termination of service was a colourable exercise of the power or as a result of victimis•ation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination.

The form of the order in such a case is not waclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of unfair Jabour practice. If it came to the conclusion that the terminaticm was a colourable exercise of the power or was a result of victimisation or unfair labour practice, it would have the jurisdiction to intervene >and set aside such trmination."

In that case the form of the order had no foul trace, but before the Tribunal dereliction of duty and go-slow tactics were disclosed as the inarticulate reasons.

This Court ruled :

'This clearly amounted to pm1ishrnent for misconduct and therefore to pass an order under cl.17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provisions of the Standing Orders."

Shri M. K. Ramamurthy, coun, cl for the appellants, contended for the proposition that cve,1 where a management had the power to terminate tl; e scnices of its employee without reasons but with notice pay only, the colourable exercise of that power invalidated it, and the

(I) [1972] 3 S. C. R. 05.

L. MICHAEL v. JOHNSTO.N PUMPS (Krishna Iyer, J.) 4 95

Court could probe beneath the surface to check upon the bonafides behind the exercise of the power. If the reasons including the termination were victimisation, unfair 1'abour practice or mis-conduct, it was foul play to avoid a fair e11quiry and fall back upon the power to terminate simpliciter.

There me myriad situations where an employer may, in good faith, have to reduce his st•aff, even though he may have only a good word for his employees.

Simple termination is a weapon useable on such occasions and not when the master is willing to strike but afraid to ?Vound.

We have been referred to the Bihar State Road Transport Corporation case(l). The power of the Court to go behind the language of the order is reaffirmed there. In Sudder Office

(supra) the Court apparentlY. laid stress on the Management's right to terminate the services simpliciter under the terms of contract, where there was no lack of bona {ides, unfair Jabour practice or victimisation.

It is signifit:ant that this Court used language and laid down law very much like in the earlier cases and did refer to the precedents O'il the point.

For instance, Vaidialingam J., there observed:

"It is needless to point out that it has been held by this Court in The Chartered flank, Bombay v. The Chartered Bank Employees' Union (1960 II LLJ 222) that if the termination of service is a colourable exercise of the power vested in the man•ageme'at or as a result of victimisation or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such termination.

In order to find out ll'hether the order of termination is one of termination simpliciter under the provisions of CO'atract or of standing orders, the Tribunal has ample jurisdiction to go into all the circumstances which led to the termination simpliciter."

Tho manner of dressing up an order does not matter.

The Court will lift the veil to view the reality or substance of the order.

The Court, in that case. examraed the circumstances in detail to see whether a di.smissal for mis-conduct was being masked. as a simple send off with a month's pay, and held ultimately :

"We are satisfied th•at the management has passed the order of termination simpliciter and the order . does not amount to one of dismissal as and by way of punishment." Of cpurse, loss of confidence io,1 the workman was alleged by the management and the Court found that it was not a camouflage.

It may be noticed that in that case the workman was being entrusted with stores worth several lakhs of rupees, some goods were Jost from the stores and the Union was informed by the management that it had Jost confideace in the workman.

In the written statement boforc the Labour Court the management alleged that the workman was the head godown-clerk who was the custodian of the company's property, the post being one of trust and confidence. It is noteworthy that in the High Court the workman did not even file a counter-affidavit and the counsel for the Union and the workman agreed that the order o( termination was no~ a camouflage to cover up what really was an order

(1) [19701 3 S. C.R. 708.

of dismissal.

He merdy urged that the termination of the services was really by way of dismissal.

In this conspectus of circumstances, this Court found that the Head Clerk in charge of the engineeri\119 godown and responsible for the maintenance of considerable stores, held a sensitive position.

This Court observed :

"The entire basis of the Labour Court's award for holding that the order is one of dismissal is its view that the

ma, rngcment has invoked cl. 9 to camouflage its action.

When that approach has been given up on behalf of the workman bcftirc the High Court the reasoning of the Labour Court falls to the ground and the High Court has acted within the jurisdiction under Art. 226 when it set aside the order ol' the Labour Court especially when there has been no finding of victimisation, ll'i1fair labour practices or mala fides recorded, against the management. To conclude we are satisfied that the High Court was justifie, i in setting aside the order of the Labour Court."

We have gone into this decision at length to disabuse the impression that a new defence mechanism to protect termination of service . simpliciter, viz., loss of confidence, had been propounded in this ruling.

We do not agree. that any such innovation has been made. The Ait" India Corporation Case (supra). may seem to support the 'no confidence' doctrine but a closer study contradicts any such view.

Of course, Shri Tarkunde, counsel for the management, placed great reliance on this ruling.

Needkss to say, this Court recognised the power of the Tribunal to go behind the form of the order, look at the substance and set aside what may masquerade as termination simpliciter, if in walitv it cloaked a dismissal for misconduct 'as a colourable exercise of pc1wer by the management'. The Court repeated that an Industrial employer cannot 'hire and fire' his workmen on the basis of an unfettered right under the contract of employment.

On the facts of the Air-lndia Case (supra) the Court concluded that it was 'not possible to hold this order to be based on any conceivable misconduct'.

Special reference was made to the grave suspicion regarding the complainant's private conduct with airhbstesses. Where no misconduct spurs the action and a delicate unsuitability for the job vis a vis the young women in employment in the same firm is strongly suspected, resort to termination simpliciter cannot be criticised as a malafide mechination. In that background, the action was held to be honafide and the overall unsuitability led to a loss of confidence in the employee.

Not that the loss of confide,1ce was exalted as a ground but the special circumstances of the case exonerated bad faith in discharge simpliciter.

Before concluding the discussion, we may refer to the case of Delhi Transport Undertaking v. Goel(!) adverted to by the Labour Court.

Indeed that decision turned on Regulations framed under the Delhi Road Transport Authority Act, 1950 and not o•a pure Industrial Law or construction of the Standing Orders. Moreover, the Court, in that

(I) [1970] II LLJ 20.

L. MICHAEL v. JOnNSTON PUMPS (Krishna Iyer, J.) 4 97

case, appears to have iscussed rulings under Art. 311 also. However, on the facts of that case, the Court was satisfied that order of termination was not a d; sguise or cloak for dismissing the employee and the ground given, that he was a cantankerous person undesirable to be retained was good. We do not read the Delhi Transport case (supra) to depart from Murugan Mills Case (supra).

Indeed, the latter did not, and maybe _could not, overrule the former.

The above study of the chain of rulings brings out the futility of the contention that subsequent to Murugan Mill's Case (supra) co/ourab/e exercise of power has lost validity and loss of confidence has gained ground. The law is simply this : The Tribunal has the power and, indeed, the duty to X-ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated.

But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeaiously passes an innocent-looking order of termination simpliciter, such action is bad and is liable to be set aside.

Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authe•aticated by a catena of cases of this Court, c•an be subverted by this neo-formula. Loss of confidence in the Law will be the consequence of the Loss of Confidence doctrine.

In the light of what we have indicated, it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set facts 1md motivations.

The Court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination. In a reasonable case of a confidential or responsible post being misused or a sensitive or strategic position being abused, it may be a high risk to keep the employee, once suspicion has started and a disciplinary enquiry cannot be forced on the master.

There, a termination simpliciter may be bona1 fide, not colourable, and loss of confidence may be evidentiary of good faith of the employer.

In the present case, the catalogue of circumsta'aces set out in the earlier part of the judgment strikes a contrary note. The worker was not told when he wrote; the Union was not disclosed when they demanded; the Labour Court was treated to verbal statements like; 'very reliable sources' and other credulous phrases without a modicum of evidence to prove bonafides.

Some testimony of unseemly attempts by the workman to get at secrets outside his orbit, some radication of the sour.:e of suspicion, some proof of the sensitive or strategic role of the employee, should and would have been forthcoming had the case been bona fide.

How contradictory, that even when a strong suspicion of leaking out sensitive secrets was being entertained about the employee he was being given special merit increments over and above the normal increments' A case of res ipsa loauitur.

Circumstances militate against the 'I say so' of M.W.1 that , he man-agement had suffered an ineffable loss of confidence.

To hit below the belt by trading legal phmses is not Industr!al Law.

We are constrained to express ourselves unmistakably lest industrial unrest induced by

wrongful terminations. based on convenient loss of confidence should be generated.

Before w1~ conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidace, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and dischurge him without any stigma attaching to the discharge.

But such belief or suspicion of the employer should not be a mere whim or fancy.

It should be bona fide and reasonable.

It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and prudence. lf the exercise of sucn power is challenged on the ground of being colourable or ma/a fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially.

In the instant case this has not been done.

There is only the ipse dixit of the employer that he was suspecti1ag since l. 968 that the appellant was divulging secrets relating to his business.

The employer has not disclosed the grounds m which this suspicion arose in 1968. Further after 1968, the appellant was given two extra increments, in addition to his normal increments, as stated already, in appreciation of his hard work:.

This circumsr; mce completely demolishes even the whimsical and tenuous stand t'aken by the employer. It was manifest therefore that the impugned action was not bona fide.

It was urged by Mr. Tarkunde, learned counsel for the employer that the question whether or not the employer had lost conndence in the employee, was essentially one of fact a•,1d this Court should not disturb the finding of fact recorded by the trial court on this point.

It is true that this Court, in appeal, as a rule of practice, is loath to interfere with a finding of fact recorded by the trial Court. But if such

a finding is based on no evidence, or is the result of a misreading of the material evidence, or is so unreasonable or grossly u1njust tfatt no reasonable person would judicially arrive at that conclusion, it is the duty of this Court to interfere and set matters right.

The case before us is one such instance, where we are called upon to do so.

The Labour Court has misled itself on the law and we set aside its order. The work.man: will be reinstated with back: wages.

However the management will be free, if it has sufficie,1t material and if so advised, to proceed against the workman for misconducts or on other grounds valid in law.

The appeal is, accordingly, allowed with costs.

P.B.R.

Appeal allowed.

9

L. MICHAEL & ANR

M/S. JOHNSTON PUMPS INDIA LTD

February 10, 1975

A. ALAGIRISWAMI

V. R. KRISHNA IYER

M. K. Ramamurthi

J. Ramamurthi

V. M. Tarkunde

. C. Mathur

D. N. Mishra

Sudhir K.

Khanna

HNA. IYER

India

Michael

September 2, 1970

Michael

Delhi Administration

L. Michael

Krishna Iyer

M.W.l

[1960] 3 S. C R. 441

[1965] 2 S. C. R. 148

Air India Corporation

Wanchoo

(1960 3 SCR 44

M. K. Ramamurthy

[1972] 3 S. C. R. 05

Bihar State Road Transport Corporation

Sudder Office

Vaidialingam

cl. 9

Art. 226

Ait" India Corporation

Tarkunde

Art. 311

Delhi Transport

Murugan Mills Case

Murugan Mill


RAM KUMAR PANDE

THE STATE OF MADHYA PRADESH February 11, 1975

[M. H. BEG AND A. ALAGIRISWAMI, JJ.]

B Criminal trial-High Court interfering willi acquittal by trial court-When Supreme Court can illlerfere with decision of High Court.

 El'idence Act (I of 1872) s. 11, Scope of.

Supreme Court (Enlargement of CKimina/ Appellate Jurisdiction) Act, 1970-

Aquittal set aside an~ sentence of life imprisonment imposed-Certificate of High Court for appealtng to Supreme Court not necessary.

The appellant was charged with two offences, (i) under s. 307 I.P.C. with rs pect to one person, and (ii) under s. 302/34, I.P.C. for having, along with other accused, caused the death of another. The trial court convicted him under s.324 J.P.C. on the first charge and acquitted him of the other charge. The appeal by the State against the acquittal on the second charge was allowed by the High Court and the appellant was convicted under s.302/34 l.P.C. and sentenced to life imprisonment.

Ailowing. the appeal to this Court,

. HELD : (I) In the case of an appeal against atl/acquittal the appellate court should not interfere with the acquittal merely because it can take one of the two reasenably possible views which favours conviction. But if the view of the !rial. court is not reasonably sustainable, on the evidence on record, the appellate court will interfere with the acquittal. If the High Court sets aside an acquittal and convicts, this Court has to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the trial court, on the evidence on recC'rd, is atleast as acceptable as the one taken by the High Court, before this Court could interfere with the decision of the High Court. [5210] ·

(a) The First Information Report is a previous statement which, strictly speaking, can b~ only used to corroborate or contradict the maker o'f it. In the present case, the F.I.R. was made by the father of the deceased to whom all the important facts of the occurrence were bound to have been communicated. But, though the F.I.R. was given about 4 hours after the incident, it was not mentioned therein that the appellant had stabbed the deceased.

The omission of such an important fact affecting the' probabilities of the case is relevant under s.1 l nf the Evidence Act in judging the veracity of th~ prosecution case. (5220)

(b) The evidence, shows that the deceased was 'stabbed by one or the other accused; that the place of occurrence had been shifted by the witnesses for. the prosecution; that the version of the alleged eye witnesses is not credible; and that the alleged dying 'declaration is unreliable. [524B-DJ

(2) The High Court, having found that the appellant and the other accused were individually responsible for their acts, erred in finding the appellants guilty on the basis of common intention. of an offene under s. 302134 I.P.C.

[524FG]

(3) An appeal to this Court by the accused, in a case where his acquittal had heen convrted into a conviction and the sentence of life imprisonment was imposed upon him, lies as a matter of right under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, '1970, and no certificate of the High Court is necessary.

[521A] CRIMINAL APPELLATE JuRISDIGTION: Criminal Appeal No. 12 of 1972.

From the Judgment and Order dated the 1st May, 1971 of the Madhya Pradesh High Court in Crl. Appeal No. 653 of 1970.

2-470SCI/75 '

R. K. Bhatt for the appellant.

Ram Punjwani,, H. S. Parihar and/. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

BEG, J. The sole appellant Ram Kumar Pandoy, aged 45 . years, was tried tog1ether with Suresh Kumar aged 20 years, and Mulkra1, aged 45 years, aiud Ramesh Kumar, aged 17 years, on two chiarges framed against him.

These were : "Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife with such intention or knowledge and under such circumstances, that if by that act, you had csed the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said a::t and that you thereby committed an offence, punishable undtr Section 307 l.P.C. and; Secondly : That at the said time and place, you or some other persons did commit murde~ by intentionally or knowlingly causing the death of Harbinder Singh and the said act was da,1e in furtherance of the common intention of 'all and thereby committed. an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of the Court of Sessions."

. Suresh Kumar, Mulkraj, and Ramesh Kumar, were accused of offences punishable under Sections 307 /114 and Section 302 l'ead with Section 34 and 114 Indian Penal Code. The Sessions' Judge of Raipur, who had tried the case, found Suresh Kumar guilty of the murder by stabbing of' Harbinder Singh, aged about 16 yeai:m, and sentenced him to lifo imprisonment. He CO'ilvicted the appellant under Section 324 I.P.C. only for the injury inflicted on Uttam Singh and sentenced him to one year's rigorous imprisonment, but acquitted him ot other charges.

He also acquitted the accused Ramesh and M:ulkraj of aD charges levelled against him.

The State of Madhya Pradesh appealed agains~ the acquittal of the appellant Roam Kumar Pandey of the charge under Section 302134 l.P.C., and of Mulkraj a1.1d Ramesh Kumar of oal.l charges. Suresh Kumar, the son of Mulkraj appealed against his conviction under Section 302 simplicitor, but this appeal was dismissed by the High Court which maintiained his life imprisonment. The High Court also allowed the State's appeal against the acquittal of Ram Kumar Pandy for injuries caused to Harbinder Singh, and, convictrilg him under Section

302/34 l.P.C., it sentenced him to life irnprisionment. It convicted Mulkraj of an offence punishable only under Section 323 I.P.C. and sentenced him to a1 fine of Rs. 200/-, and, in default of payment of fine, to rigorous impriscoment for two months. It upheld the acquittal of Ramesh Kumar Ahuja of •all charges. ·

Tis. a~ hru1 come _up before us after a certificate granted by the High Court under. Article 134(1)(c) of the Constitution, but the

certificate says that the appellant is entitled to it under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, i; trictly speaking, no certificate ot the H1gb Court IS reguired tor sucn an appeal where an acquittal ha~ been converted into a conviction nnder Section 302/34 1.P.C., and a sentence of life imprisonment imposed upon an accused person. Tbs appeal, in su:b a case, lies as a mat!er of right to this Court under the Act of 1970.

The only question before us now is whether the appellant, who had not appealed at all to the High Court against his conviction under Section 324 I.P.C., which stands, was rightly convicted by the High Court under Section 302/34 I.P.C., after setting aside his acquittal for the graver offence for injuries resulting in the death of Harbinder Singh. .

The well settled rule of practice in a case of oan appeal against an acquittal is that the appellate Court. should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction. But, if the view of the Trial Court is not reasonably sustainable, on the evidence on record, the appellate Court will interfere with n acquittal. If the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the fucts of the case, that the view taken by the Trial Court, on evidence on record, is at least as acceptable as the one taken by the High Court, before we could i•aterfere with the High Court's judgment.

The prosecution case, as set out in the First Information Report was: Uttam Singh, PW 1, residing arGanj Parao, on the first floor went home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Utta.m Singh had been quarrelling with members of his family. Uttam Singh requested him to take his seat and promised to look into the matter. This angered Suresh Ahuja.

Thereafte~, his elder brother alrrived and started quarrelling with Uttam Singh's daughter. At this stage, the landl'Ord Mulkraj Ahuja, acc01)lpanied by the appellant Ram Kumar Pandey, who lives with his fumily in a side .room on the ground floor, entered and immediately gave him a blow on his eye-brow. Uttam Singh fell down. As Uttam Sirrgh got up, the appellant struck him with a knife from behind.

Mulkraj asked Pandey to run down-stairs. Both the accused tried to run away. Uttam Singh tried to catch them but failed. Uttam Singh then asked his son Harbinder Singh to make a telephone call. At this point, Suresh, son of Mulkraj, . stabbed Harbinder Singh who fell down in the lane. Uttam Singh saw Harbinder Singh lying near the house of Saudager Shah with an injury on his chest which was bleeding profusely. Harbinder Singh was carried to a hospital on a cart and Gurcharan Singh telephoned the police. Joginder Singh also came while the injuries were being inflicted. Uttam Singh's daughters Amarjit Kaur and Taranjit Kaur saw Uttarn Singh wrapping a chadar on the wound of Harbinder Singh. Raj Jaggi had seen Harbinder

Singh falling down. The motive for this incident was that Mulkraj Ahuja, the landlord, wanted his house vacated by Uttam Singh.

Harbinder Singh had died while being taken to hospital.

The above mentioned First Information Report was lodge:d at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident is stated to be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh.

The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.LR. only as persons who saw the wrapping of the chadar on the wound. of Harbinder Singh, What is most significant is that it is nowhere mentioned in the F.I.R. that the appellant had stabbed Harbinder Singh at all. It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder1 Singh.

No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it.

But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the

F.I.R.

We think that omissions of such important facts, affecting the probabilities uf the case., are relevant under Section 11 of the Evidence Act ln judging the veracity of the prosecution case.

Even Joginder Singh, PW 8, was not an eye witness of the occurrence. He merely proves an alleged dying declaration. He stated that Harbinder Singh (described by his pet name as "Pappi") rushed out of his house by opening its door, and held his hand on his chest with hlood flowing down from it.

He deposed that, when he asked Pappi

what had happened, Pappi had stated that Suresh and Pandey had F injured him. It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made.

Uttam Singh did not mention there that any dying declaration, indicating that the appellant had also injured Harbinder Singh, was made by Ha:rbinder Singh. The omission to rriention any injury inflicted on Harbinder Singh by the appellant in the F.I.R. seems very significant in the circumstances of this case. Indeed, according to the version in the F.I.R., G Joginder Sin,::h, who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this was corn:ct, the two injuries on Harbinder Singh must also have been inflicted in the lane outsid.:.

Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not men- H tioned in the F.I.R. Suresh had, according to her, stabbed Hairbinder Singh on the right side of the chest at the door of the kitchen, ano, thereafter, Pandey was said to have attacked him.

R. K. ~ANDE V. M. P. STATE (Beg, J.) 523

Again, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, daughters ofl Uttam Singh, have figured as eye witnesses of the whole occurrence including the stabbing of Harbinder s:ngh by the appellant. As already indicated, they are not mentioned in the F.I.R. as eye witnesses of the murder. This is also very significant in the present case. 'They have been mentioned only as witnesses of wrapping a chadar on the wound of Harbinder Singh who was then said to be lying in the lane after the occurrence.

In order to explain how Harbinder Singh, said to have been attackd near the itchen of Uttam Singh on the first floor, was found lying m the lane m a pool of blood. the presecution version is that, after the attack with kr; ves by Suresh and the appellant, Harbinder Singh

ran and rushed down the steps into the lane. It was pointed out that, in view of the nature of two injuries sustained by Harbindcr Singh and the .medical evidence about them, it was not possible for Harbinder Singh either to have rushed down, or, in any case, to have 1T1ade a dying declaration. The injuries on Harbinder Singh found by Dr. S. C. Vishnoi were as follows :

"(i) An incised wound on the left side of the . chest placed anteriorly and -measuring 1 t'' x t" x H" deep. In the fifth intercostal space-closed to the lateral border of the left side of the sternum. It had clean cut and blood stains margins.

(ii) An incised wound on the right side of back in the 8th intercostal space 2" below the inferior angle of scapula.

It had measured 1" x t" x 1 ". It had clean cut and bloodsta!ns margins. There was found difficulty in probing through this wound", ·

The Doctor said alYout the first injury :

"This injury had entered the cavity of the right ventrical.

It was a very serious injury. Right ventrical is an important part of the heart. General!y such an i?jury wmld result in an instantaneous. death. In.1ury to the nght ventncal and the paricardium had resulted in profused hemorrhage".

He also said : Injury to the lobe ofl the right lung and the pleura as found iri this case will result in shock. Ordinarily such a injury would immediately be fatal".

The main points for decision which emerged from the evidence 'in the case were : ·

1. Where was Harbinder Singh stabbed?

2. Who could have been the witness of the stabbing?

3. Could the alleged eye. witnesses be believed?

4. Could the dying declaration, said to hav1> been made to

Jop)nder Singh, be made the sole basis of t1ie conviction of the appellant under section 302/34 IPC if the evidence ofl alleged eye witnesses was to be discarded?

As regards the place where the stabbing took place, the High Court had itself felt highly dissatisfied with the manner in which the case was investigated. The site plans do not show any place where the blood was found. If blood marks had been shown and blood had been taken from spots where it had. fallen, it would have afforded very valuable evidence on the question whether any stabbing of Harbinder Singh did take place at door of the kitchen and whethcr he ran after that.

The &ite plans did not show even where the kitchen was. There: fore, we cannot know, by looking at these, whether the thre~ ladies, who are alleged to be eye witnesses at the trial, could have seen the occurrence in the room in which Uttam Singh was injured a1; well as at the door of the kitchen. Taking all the relevant evidence on this point into account, it is far more likely that, as the Sessions' Judge had guessed, the deceased had been stabbed by Suresh twice in the Jane, probably opee from the front and again while he fell or was trying to run away. He could not have moved farfrom the scene where he was stabbed. The High Court's reasons to dislodge this inference are insufficient.

As regards the second and third points, we are unable to give credence to the version of the three alleged eye witnesses as they were not mentioned as eye witnesses in, the F.I.R. made in Ce circumstances indicated above. ,

Lastly, the alleged dying declaration is, also not mentioned in the F.I.R. On the other hand, the F.I.R., mentions Joginder Singh, who tried to prove the dying declaration as an eye witness.

It may be pointed out that the charge against the appellant for offences under Section 302/34 I.P.C. is also defective inasmuch as

it shows that either the appellant "or some other person" committed F' 'the murder. It does not show how or even mention that the appellant r acted in concert with anyone else. However, no grievance has been , made of any defect in the charge or any prejudice to the appellant from it. We therefore, ignore it. ,

It may also be mentioned that the' High Court --- itself recorded the following finding :

"All the eye-witnesses have admitted that the four accused did not come together at the same time in the room where !:he incident happened. Suresh Kumar came in that room first, Ramesh Kumar then entered the room and some time aflter they were followed by Mulkraj and Ram Kumar

had G

Pandey. There iJ nothing to show that there was a pre-con- H cert between the four accused to commit any particular offence in the room. It appears thaf the whole inc; ident took ~1n

ugly and unexpected turn and the most unfortanate result

A was that Harbinder Singh was killed. We are of the view that the trial Court was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar were individually

responsible for their acts".

It is difficult, after this findi'I!i, to follow the reasoning of the High Court in coming to the conclusion that the appellant was guilty of an 8 offence punishable under Section 302/34 I.P.C.

Consequently, we allow this appeal and set aside the conviction and sentence of the appellant under Section 302/34 I.P.C. If the appellant has already served the sentence awarded under Section 324 I.P.C., as .is stated .on his behalf, he will be released forthwith.

V.M.K.

Appeal allowed.

RAM KUMAR PANDE

THE STATE OF MADHYA PRADESH

February 11, 1975

M. H. BEG

A. ALAGIRISWAMI, JJ.

s. 11

s. 307

I.P.C

s. 302

I.P.C

s. 302134

I.P.C

1st May, 1971

R. K. Bhatt

Ram Punjwani

H. S. Parihar

N. Shroff

BEG

Ram Kumar Pandoy

Suresh Kumar

Ramesh Kumar

Raipur

Uttam Singh

Section 307

Harbinder Singh

Section 302

Section 34

Indian Penal Code

Mulkraj

Sections 307

Section 302

Section 34 and 114

Indian Penal Code

Sessions' Judge of Raipur

Section 324

I.P.C

Ramesh

ulkraj

State of Madhya Pradesh

Roam Kumar Pandey

Section 302134

Mulkraj

Section 302

Ram Kumar Pandy

Section

302

Section 323

I.P.C

Ramesh Kumar Ahuja

Article 134(1)(c)

Section 302

Section 324

I.P.C

Section 302

I.P.C

Uttam Singh

Suresh Ahuja

Utta.m Singh

Mulkraj Ahuja

Ram Kumar Pandey

Uttam Sirrgh

Pandey

Suresh

Saudager Shah

Gurcharan Singh

Joginder Singh

Amarjit Kaur

Taranjit Kaur

Uttarn Singh

Raj Jaggi

Harbinder

Singh

Police Station Ganj

Taranjit Kaur

Amarjit Kaur

Harbinder1 Singh

Section 11

Joginder Singh

Pappi

rbinder Singh

G Joginder Sin,::h

Satwant Kaur

F.I.R. Suresh

Hairbinder Singh

R. K.

Harbinder

Harbinder Singh

Harbindcr Singh

S. C. Vishnoi

Jop)nder Singh

section 302

IPC

Section 302

I.P.C

Ram Kumar

had G

Ram Kumar Pandey

Section 302

I.P.C

Section 302

I.P.C

Section 324

I.P.C


SHIV PRASAD A

DURGA PRASAD & ANR.

February 12, 1975 [P. N. BHAGwAn, A. C. GuPn AND N. L. UNTWAU.A, JJ.J

Code of Civil Procedure, 1908~0. 21, rr. 89(2) and 90-Scope of.

. B

Ri:le 89(2) of 0. 2.J ~.P.C. states that where a person applies under r. 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an appliation under the Rule.

The. appellant in the execution of his decree, pur•:hased certain prope!'ties of the Judgment debtor. Reopondent no. 1 who had purchased the properties earlier thereupon filed an application on December 12, 1967 under 0. 21 r. 90 for , etting aside the sale. Later, he filed an application under

0. 21 r. 89 stating that he "withdraws the application under O. 21. r. 90 and docs not want to C press the same". The Court, however, did not record an order of withdrawal of the.respondent no. l's application but posted it for directions regarding service of notice etc. and thereafter respondent no. 1 took steps for service of notice on the appellant and respondent no. 2. Eventually on March 9, 1968 respondent no. l made an appltcation that he did not wa!1t to prosecute his application filed U11der 0. 21 r. 90.

The Court accordingly dismissed it.

The Execution Court thereafter allowed application under O. 21 r. 89 and set aside the sale.

The appellant's appeal against this order was 'dismissed by the n High Court.

In appeal to this Ccurt it was contended that respondent no. 1 was not entitled to make an application l)nder 0. 21 r. 89 unless he effectively withdrew his application under 0. 21 r. 90 and an order of the Court to that effect was passed.

Dismissing the appeal,

HELD: l(a) The words used in the sub-rule are 'make or prosecute.' If it E were to be held that the applicant is not entitled merely to prosecute his application under r. 89 unless he withdraws his application under r. 90, then, the word 'make' would become redundant. In order to bring about the true intention of the Legislature, effect must be given to both the words.

[529C] ·

(b) If a person has first applied under r. 90 to set aside the sale, then, unless, he withdraws his application, he is not entitled to make and prosecute an application under r. 89. The application even if made, will be deemed to have been made only on withdrawal of the previous application. If, however, a p•; rson has F filed an application under r. 89 first and thereafter another application under r. 90 he will not be allowed to prosecute the former unless he withdrew the latter.

[529D]

(c) Every applicant has a right to unconditionally withdraw his a:Pplication and his unilateral act in that behalf ii sufficient. No order of the Court is necessary permitting him to withdraw his application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as an appli- G <.ant intimates the Court that he withdraws the application.

[530B-C]

In the instant case respondent no. 1 had withdrawn hi' application not only hy mentioning in his application under r. 89 that he was withdrawing his application under r. 90 but also by filing a separate application to that effect. 'The steps taken by him did not nullify the withdrawal made by respondent no. l of his application under r. 90 and did not make the withdrawal merely on that account ineffective. It was only after respondent no. 1 had intimated that he was not pursuing his application under r. 90 that a formal order recording its dismissal was H made. This order .of the Court had the effect of merely recording the withdrawal of the application under r. 90.

Even without that order, the withdrnwal was effective on that date.

[530CE]

C1v1L APPELLATE JuRJSDICT!ON : Civil Appeal No. 998 of 1971.

Appeals by Speci>al leave from the Judgment & Order dated the 20th January, 1971 of the Allahabad High Court in F.A.No. 443 of 1968.

Hardayal Hardy, Janardan Sharma a'ad Jitendra Sharma, for the 8 appellant.

Sultan Singh and R. P. Agarwala, for the respondents.

Th?. Judgment of the Court was delivered by

UNTWAL!A, J. In this appeal by special leave of this Court is involved the interpretation and true meaning of subrule (2) of Rule 89 of Order 21 of the Code of Civil Procedure, 1908-hereinafter called the Code.

The decreeholder is the appellant.

The first responde1,1t is the purchaser of a major portion of the property sold in execution of the appellant's decree against respondent no. 2.

The appellant had filed a suit in the 1year 1951 against the husband of respondent no. 2 for realiwtion of certain sums of money due on a Promisory note.

The suit was dismissed by the Trial Judge of Saharanpur.

The appellant filed First Appeal No. 12211954 in the Allahabad High Court.

Certain properties belonging to the husband of respondent no.2 were directed to be attached before judgment by the High Court. In spite of the attachment, he sold the properties in two lots. The first lot was sold for a sum of Rs. 7,580/- on 30-7-1956 to 0'11e Smt. Subadhara Devi.

The remaini 1ag at1'ached properties were sold in the second lot to the first responder! on 30.11.57 for Rs. 70,0001.

The original defendant died during the pendency of tr.e first appeal in the High Court.

His widow was substituted.

The first appeal was allowed and tk suit was decreed against the substituted defendant respondent on 25.3.1966.

The appellant filed Executio1a No. 121-1967 in the Sahoaranpur Court for realization of Rs. 11,795/- the amount due under the decree, Rs. 3,528.1 Op. the costs in the suit and the appeal together with the costs of the execution.

In the said execution, the attached properties were sold and purchased by the appellant on 29 .11.1957 for Rs. 16,000/- with the leave of the Execution Court. The first-responrle!lt filed on 12.12.1967 an application under Order 21 Rule 90 of the Code for setti'ag the s•ale aside.

This application was registered as Miscellaneous Case No. 3/1967 in Execution Case No. 12/1967.

The period of 30 days from the date of sale expired during holidays.

Respondent no. 1 on the re-opening date i.e. on 1.l.1968 instituted Miscellaneous Case No. 1/1968 by an application made under Order 21 Rule 89 of the Code.

The amount as was necessary to be deposited for the setting aside of the s•ale U'ader Rule 89 was deposited in the Execution Court by respondent No.1 In hi~ application under Order ?. 1 Rule 89 of the Code a statement was made by respondent no. 1 "The applicant has also given an .application under Order 21 Rule 90 and the applicant withdraws the same." On the S'ame date, i.e. 0,1 1.1.1968 respondent no. 1 also filed a separate application stating therein that he had filed an application under Order 21 Rule 90 of the Code for cancellation of the auction held on 29-11-1967 which was

pending and that he had filed 01,1 application under Order 21 Rule 89 of the Code also.

The further statement was that the applicant "now withdraws the application under Order 21, Rule 90, and does not want to press the same." A sum of Rs 2,0001by w>ay of security had been deposited by respondent no.1 while making that application.

The prayer in this petition was also for the retum of the said sum of money.

It appears, however, that the Court did not record an orde:r of withdrawal in Miscellaneous Case No. 3/1967. In the usual c:ourse that case was put up on 6.1.1968 when respondent no. 1 and his counsel

were present. A direction was given to do Pairevi for fresh s1rvice of notice on the opposite party, namely, the decree holder and the Judgment debtor.

Steps were taken; but on 10.2.1968 it was found that service of notice on the Judgment debtor (opposite oarty !!lo.2) was not sufficient.

On that date further steps were taken by respon dent no.1 for service of notice on the opposite parties.

Eventu'ally on 9.3.1968 the Advocate for respondent no.1 made an endors1mein.t on the !Jack of the application filed under Order 21 Rule 90 of the Code : "Sir, In view of application dated 1.1.68 in our proceeding No.l of 1968 the applicant does not want to prosecute it." It was only then that Miscellaiaeous Case No. 311957 was dismissed by Execution Court on 9.3.1968.

Miscellaneous Oase No. 111"68 proceeded to disposal.

In substance the only objection taken by the appellant to resist the said application was a plea of its non-maintainability in viw of the provision of law contained in sub-rule (2) of Rule 89. The Execution Court allowed the application of respondent nq._J under. Order 21 Rule 89 of the Code and set aside the sale.

The appellant's appeal against the said order was dismissed by a learned single Judge of the Allahabad High Court.

On grant of specral leave by this Court the present appeal was presented.

At the outset we may reject a >1ew plea taken by the appellant in this Court that the amount deposited by respondent no.1 was not sufficient, as pondage fee in accord>ance 'with Rules 365 and 371 framed by the Allahabad High Court was not deposited.

We did not examine the correctness of this poi'at as it involved investigation of new facts which for the first time could not be permitted in this Court.

The only question for determination in this appeal is whether the application of respondent no.I under Order 21 Rule 89 of the Code was not mai'atainable and liable to be dismissed as such, and whether it has wrongly been allowed by the Courts below.

Mr. Hardayal Hardy, leal'11ed counsel for the appellant, strenously contended that respondent no.1 was not entitled to make an application under Order 21 Rule 89 .of the Code unless he effectively withdraw his application under Order 21 Rule 90 and an order of the Court to that effect was passed. Counsel further submitted that instead of asking the Court to mah an order permitting the withdrawal of his application under Rule 90, on two dates he took steps to prosecute that application.

Ultimately the case was not proceeded with on 9-3-1968. In the eye of law, therefore, the application under Rule 89 should be

I• I

A deemed to have been filed only on 9-3-1968 on which date it was. hopelessly barred by limitation ..

On the correct interpretation of sub-rule (2) o.f Rule 89 and on determination of its true scope it will be noticed that on the fai:ts aud in the circumstances of this case respondent no. l's application under Rule 89 has rightly: been allowed.

Order 21 Rule 89(2) reads as follows :

"Where a person applies under Rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be eatitled to make or prosecute an application under this Rule."

The words used in the sub-rule are "make or prosecute". If it were to be held that the applicant is not entitled merely to prosecute his application under Rule 89 unless he withdraws his application under Rule 90, then the word "make" would become redundant. In order to bring about the true intention: of the Legislature, affect must be given to both the words. If a person has first applied under Rule 90 ta set aside the sale, . then, unless he withdraws his application, he is not entitled to make and prosecute an application under Rule 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a perscn has filed an application under Rule 89 first and thereafter another application under Rule 90, he will not be allowed to prosecute the former unless he withdrew the latter. \ / ' Section 310A was added in the Code of 1882 by Act 5.of 1894.

This section corresponds to Order 21 Rule 89 of the Code of 1908.

The proviso to section 310A which corresponds to sub-rule (2) merely used the words "he shall not be entitled to make an application under this section". In the case of Rajendra Nath Haldar and others v. Nil~ ratan Mitter and others,(l) aa application under section 310A 0f the Code of 1882 was first made and on the followin_g day applicants presented an application under section 311 (corresponding to Order 21 Rule 90). In view of the proviso the application under section 3 lOA failed. The argument put forward on behalf of the applicants was that if an application under section 311 was filed after the filing of the application under section 310A the proviso did not apply.

It was rejected by the Bench consistin* of Petheram, q and Rampini, J. thus : "We consider that the words 'he shall not be entitled to make an application under this'section" in the proviso cannot mean merely "he shall not be entitled to present an application" _under the section,. but the word "make" here must mean "carry on" or "prosecute.". The Legislature, it appears, to make the position of law certain, added the words "or prosecute" after the word "make" in sub-rule (2) of Rule 89 of Order 21 of the Code.

In -our judgment, an application under Rule 89 validly made on the date of its presentation cannot be allowed to be prosecuted until' the subsequent application filed under Rule 90 is withdrawn. But it

(l) I. L. R. 23, Calcutta, 958.

.cannot be allowed to be made or be deemed to have been made unless the prior application filed under Rule 90 is withdrawn.

Even on the interpretation of Rule 89 (2) which we have put W•e tll'e not prepared to accept the contention put forward on behalf ol' the appellant that an application under Rule 90 does not stand withdrawn until an order to that effect is recorded by the Court. The applicant merely has to convey tb the Court that he is withdrawing his application under Rule 90 which he had filed prior to the making of the appli- B cation under Rule 89. Thereupon he becomes entitled to make the latter applicati'On. Every applicant has. a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the C order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application. Respondent no. 1 has clearly done so here not only by mentioning in his application under Rule 89 that he was withdrawing his application . under Rule 90 but also by filing a separate application to that effect,

in which not mly the statement as to the withdrawal of the application under Rule 90 was made but a prayer for the refund of Rs 2,000 D was also made. The steps taken on behalf bf the respondent No. 1 in Miscellaneous Case No. 3/1967 even after the filing of Miscellaneous Case No. 1/1968 were clearly superfluous and of no effect. The steps taken did not nullify the withdrawal made by respondent no. l of his application under Rule 90 and did not make the withdrawal merely on that account ineffective. Even if any ambiguity was created by the taking of such steps, later on 9-3-1968 in clearest E language it was intimated on behalf of respondent no. 1 that he was not pursuing his application under Rule 90. It was only then that the Court made a f'Ormal order recording its dismissal. In our judgment on the facts and in the circumstances of this case, the urder ol' the Court made on 9-3-1968 had the effect of merely recording the withdrawal of the application unde:r Rule 90 which was already effectively made on 1-1-1968. Even without that order, the withdrawal was effec- F tive on that day.

We, therefore, hold that the applicati'On filed by respondent No. 1 under Order 21 Rule 89 of the Code has rightly been allowed. The appellant pursued his remedy even to this CXlurt on a mere technicality to grab the properties purchased by respondent no. 1 for a sum

ofl Rs. 70,000/- which the appellant had purchased along with other G portion of the property for a sum of Rs. 16,000/- only. The appeal is accordingly dismissed with costs in favour of respondent no. 1.

P.B.R.

Appeal allowed.

SHIV PRASAD

A

DURGA PRASAD & ANR

February 12, 1975

Code of Civil Procedure, 1908

December 12, 1967

March 9, 1968

Hardayal Hardy

Janardan Sharma

Jitendra Sharma

Sultan Singh

R. P. Agarwala

UNTWAL!A

Code of Civil Procedure, 1908

Trial Judge of Saharanpur

Allahabad High Court

Subadhara Devi

Sahoaranpur Court

Order 21 Rule 90

Order 21 Rule 89

Order 21 Rule 90

Order 21 Rule 90

Order 21 Rule 89

Order 21, Rule 90

Order 21 Rule 90

Order 21 Rule 89

Order 21 Rule 89

Hardayal Hardy

Order 21 Rule 89

Order 21 Rule 90

Order 21 Rule 89(2)

Section 310A

Order 21 Rule 89

section 310A

section 310A

section 311

Order 21 Rule 90

section 3

section 311

section 310A

Petheram

Rampini

Order 21 Rule 89

P.B.R.


MADAN GOPE

THE STATE OF WEST BENGAL

. February 12, 1975

[V. R. KRISHNA.IYER AND R. s. SARI<ARIA, JJ.]

531'

Maintenance of lntemal Sec1.l"it)' Act, 1971, s. 3 (1 )-Order of detention for malntrnw; cr of public order-If can be justified as for maintenance of essential supplics-'S11111ggling' if can prejudice publ'c order-'Public Order', Sf:Ope of.

The petitioner was detained by an order made under s. 3 of the Maintenance of Internal Security A1t, 1971, to prevent him from acting in any manner preiudicial to the maintenance of public order, on two grounds. The activity which consti- C tu!ed the s-ubstratum of the first ground of detention was a case of inter-state smug- . gling of essential commodities. The othr facts mentioned, in addition to smuggling in the ground, are (a) that the detenu and h's associates had threatened the Home Guards who arrested them, and snatched away the seized commodities from the custody of the Hom~ Guards. and, (b) tlmt bis activity came within the purview of ss. 143/185/332/506, I.P.C. ands. 7(i)(a) (ii) of Act X of 1955.

Allowing tl:c petition under Art. 32 challenging the order of detention,

HELD: (1) Section 3(l)(a) of the Act confers power on the authority to detain a person if it is satisfied that such detention is necessary to prevent him from acting in a manner prejudicial to, ( i) the defence of India, the relation of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of Public Order, or (iii) the maintenance of supplies and services essential to the community.

The power can be exercised only on one' or more of the grounds enumerated, and if the exercise of the power is not, on the face of the order, correlated to any of these grounds or concerns a,:tivitie"< r which are not germane to any of those grounds, such exercise would be vitiated for lack of jurisdiction. Further the satisfaction spoken of in s. 3 (!) which is the sine qua non for the exercise of power, is the subjective satisfaction of the au.thority which cannot be tested in court by objective standards. Ordinarily, therefore, the court cannot go behind the satisfaction expressed on the face of the order.

Thus, where the order ex facie is made with ii view to prevent an act prejudicial to the maintenance of public order, the detaining authority cannot be permitted to show that in fact the order was made to prevent an act prejudiced to ihe main tennnce of supplies and services essential to the life of the commu.nity.

[534BG]

(2) Ordinarily, smuggling is a ca.Jendestine activity and its concept is repugnant to what is public, But 1cases are conceivable where the act of smuggling may be accompanied by such violence or disorder that it throws out of gear the even tempo of the life of the 9ommunity in the locality or disturbs public tranquillity.

[535F-H]

In the present case, there is no mention that the detenu or his associates were armed with any deadly weapons, or that their acts had caused panic and terror among the people of the locality. The incident was confined to the detenu and his associates on one hand and the home guards who checked them on the other.

It was not an activity which was prejudicial to the maintenance of public order.

The first ground of detention had, therefore, no real nexus with the maintenance of publk order.

[536B-C]

(3) The activity could at the most be said to be an activity affecting law and orde.r. The order cannot be justified on the ground that the activity was prcjudici:; l to the maintenance of su.pplies and services essential to the •community, because, the Court cannot go behind the subjective satisfaction of the detaining' authoritv as expressed in the detention order and permit it to justify its order on a ground different from the one menlfoned on the face nf the order.

The fact that the activities of the detenu constituted the various offences ment!.oned in the

ordr was only a conclusion drawn by the authorit)'.

[536A-B, C-E]

( 4) It could not be said that whenever any act is accompai ned by show of force or threat to any public servant entrusted with the maintenance of law and order, it must necessarily fall within the category of an act prejudicial to the main- :tenance of public order. In every case the broad tCllt to be applied is whether the act was of sud. a magnitude and gravity that it had disturbed the even tempo of the life of the community in the area and that, esentially, is a question of fact depending on the cirwmstances of each case.

[536F-GJ

lndradeo Mahato v. State of West Bengal, AIR 1973 SCC -4; Dr. Ram Mano/wr Lohia v. State of Bihar and Ors. [1966] 1, SCR 709 and Ram Ranjan Chaturjee v.

The State of Wts/ Bmfal. Writ Petition No. 476/74 decided on 22-1-75 ri:ferred ·to.

(5) If one of the several grounds of detention is found to be irrelevant, the .order of detention shall stand vitiated, because, it cannot reasonably by predicated to what extent the irrelevant ground had influen:ed the subjective satisfaction of the detaining authority. [536E-F]

ORIGIN; AL JURISDICTION : Writ Petition No. 559 of 1974.

Petition Under Article 32 of the Constitution Gautam Goswami, for the petitioner.

G. S. Cha:ttrjee, for the respondent.

The Judgment of the Court was delivered by

SARKARIA, J.-Madan Gope, petitioner challenges the validity of the -Order of his detention made by the District Magistrate, Purulia under s. 3 of the Maintenance of Internal Security Act, 1971. The order. states that the detention has been made to prevent him from acting in any manner prejudicial to the maintenance of public order.

The impugned order is founded on two grounds which run as under:

"l. On 1-11-73 at about 09.00 hrs. you along with your associates attacked Home Guard No. 900 Aswini Mohanti and 3 others of Layadi Home Guard Camp who were on cordoning patrol near Kashipur village, P.S. Joypur close to

Bihar border when they arrestid you with rice, Dalda, Kerosene Oil, wheat, which were being carried by you and threatened them with death and snatched away the seized commodities from their custody ..

In ccinsequence of your said activity which comes within the p\llrview of section 143/186/332/506, l.P.C. and 7(i) (a) (ii) of Act X of 1955, the maintenance of Public Order was disturbed.

The said activity thus attract sub-clause (ii) of Claus~~

(i) of sub-section (1) of section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971).

2. On 6-11-73 at about 19.00 hours, you along with your associates attacked the investigating Police Officer and hi:; Police Party with deadly weapons and attempted to resist you1r arrest while they went to Sidhi village under Joypur P.S.,

MADAN v. WEST BENGAL (Sarkaria, ]. ) 533

A District Purulia to investigate a case. You and one of your associates were arrested with deadly weapons.

These violent and dangerous activities on your - part created terror and panic amongst the local people who were over-awed and thus you have disturbed Public Order.

'8 In consequence of your said activity which comes_ withc

in the purview of sections 148/149, 307 /506/186 I.P.C., the maintenance of public order was disturbed.

The said activities thus attract Sub-Clause (ii) of Clause

(a) or Sub-section (1) of Section 3 of the Maintenance of Internal Security Ac.t, 1971 (Act 26 of 1971) ."

The return has been filed by the District Mal{istrate who had passed the impugned order in which it is averred : -

"I say that I made the detention order after being satisfied from the materials on records in support of the grounds of detention in question that with a view to preventing the said detenu from acting in any manner prejudicial to the maintenance o! Public Order, it was necessary to detain him ... ; I further say that the grounds furnished to the said detenu are the grounds on which l based my satisfaction for m_aking the order ot detention taking those grounds separately and collectively .... "

The main contention of Shri Goswami, learned Counsel appearing as amicus curiae for the petitioner, is that neither of the grounds of detention was relevant to Public Order.

According to Counsel these incidents, at the most, affect 'law and order'. In support of his contention he has referred to Bakhtawar Singh v. The State;(~) Man Singh

v. State;(2) A.run Ghosh v. State of W. Bengal( 3 ) Kanu Biswas v. The

Staie of West Bengal(~); Kishori Mohan Bera v. The State of Wesi Bengal(.6 ) and Shyamlal Chakravarty v Commissioner of Police, Calcuti.a and another( 6 ).

In reply Mr. Chatterjee, learned Counsel for the State submits that in these criminal incidents, the petitioner had threatened and tried to obstruct public servants in the discharge of their duty.

When.ever a criminal incident is accompanied by such threat or resistance, proceeds the argument, it raises a problem of Public Order as distinguished from a simple problem of law and order. Reference in this connection has been made to Kanu Biswas v. State of West Bengal (supra); Babul Mitra v. State of West Bengal( 7 ) and Jndradeo Mahato v. State of West Bengal( 8 ). -------·-

(1) AIR 1951Punjab157.

(3) [1970J 3, s.c.~. 288.

(5) AIR 1972SC1749.

(7) AIR 1973 SC 197.

(2) AIR 1953 Pepsu 16.

(4) AIR 1972 S.C. 1656;

(6) AIR 1970 SC 269.

(8) AIR 1973 sec 4.

Times out of number, it has been emphasised by this Court that since the Act gives extraordinary powers to the Executive to detain a person without trial, meticulous compliance with the letter and requirements of law is essential for the validity of an order of dekntion made thereunder.

Section 3 (1) (a) of the Act confers power on the authority to detain a person if it is satisfied that such detention is necessary to prevent him from acting in any manner prejudicial to :

(i) the defence of India, the relation of India with foreign powers of the security o[ India or

(ii) the security of the State or the maintenance of Public

Order, or

(iii) the maintenance of supplies and services essential to the ..:ommunity.

Clause (b) of s. 3 ( l) applies to a foreigner and is not relevant for our purpose.

It will be seen that the power can be exercised only on one or more of the grounds enumerated above. If the exercise of the power is not on the face of the order correlated t~ any of these grounds or concerns activifi.es, which are not germane to any of these grounds, such exercise would be vitiated for lack of jurisdiction. Furtjler, the satisfaction spoken of in s. 3 (1 )-which is the sine qua non to the exercise of the power is the subjective satisfaction of tb.e authority which cannot be tested in court by objective standards. Ordinarily, therefore, the court cannot go behind tho satisfaction expressed on the face of the order. As pointed out by this Court in Dr. Ram Manohar Lohia v. State oj Bihar a11d Ors. (}1) "when an order on the face of it, is not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say irrespective of what is stated in it, in terms of the rule". Thus where the order ex f acie is made with a view to prevent an act prejudicial to the m1).intenance of Public Order, the detaining authority cannot be p-ermitted to show that in facf theorder was made to prevent an act prejudicial to the maintenance of supplies and services essential to the life of the community.

The distinction between 'Public Order' and 'Law and Order' has frequently come up for consideration before this Court. Recently, in Ram Ranjan Chatterjee v. The State of West Bengal,( 2 ) this Court explined the distinction between the two, thus :

"It may be remembered that qualitatively, the acts which affect 'law and order' are not different from the acts which

affect 'public order'. Indeed a state of peace or' orderly tra11quality which prevails as a result of the observance or enforcement of internal laws and .regulations by the Qovernment, is a

(I) [1966] 1 SCR 709.

(2) Writ Petition No. 476/74 decided on 22-1-75.

MADAN v. WEST BENGAL (Sarkar/a, J.)

-feature common .to the concepts of 'law aad order' and 'public order'. .Every kind of disorder or contravention of law affects that orderly tranquillity. The distinction between the areas of .. 'law and order' and 'public order' as .pointed __ by this Corirt in A run Ghosh's case (supra) "is one of degree and extent of the reach of the _act in question on society". Itis the potentiality of the act to disturb the even tempo of the life of the community which makt:S _it prejudicial _to the mainten~ ance of public order. If the contravention in its eff..:ct is coµc fined only to a . few individuals, directly involved, . as diStin- guished from a winder spectrum of the public, it would raise -a

problem of law and ordr only. These concentric COriCf.'.pt's of 'law and order' and 'public order' may have a common epicentre', but it is the length, magnitude and intensity of the terroc-wave unleashed by a particular eruption of disordettliat helps distinguished it as an act affecting 'public order' from that concerning "law and order".

We may further, observe that the various grounds indicated in clauses (i), (ii) and (ill) of Section 3(1) (a) are not always mutually exclu- D sive. . Nor can the prejudicial acts be categorised into water-tight :oom.- . f)\U1tllents.

As pointed out by this Court in Indradeo Mahatds''tase fsupra) : ·

"Similar acts in different situations -may give rise to different problems : in one set of circumstances an act may poSi' only a law and order problem whereas in another it may generate deep and widespread vibrations having serious enough impact on the civilized peace-abiding society so as to affect public order, one has to weigh the degree and sweep of the harm the act in question is capable of in its contxt: -Every .case.has therefore, to be considered on its.own facts and cir. cumstance&."

.. ' Considered in the light of. the above principles, it is quitc}lear -r that_ the activity which constitutes the substratum of the first gr'otJnd ofdetention; is manifestly a case of interstate smuggling dr attemPt to smuggle essential commodities such as rice, Dalda, Kerosene oil' and wheat.

Smuggling, ordinarily, is a calendestine activity.' ~Broadly speajdng,_ its C9llcept is.repugnant to what is 'public'.-. All ; rlgh:tly observed by Falshaw J. in Bakhtawar Simh v. The Sta•e(I) . : "'.Prima fade . there is no connection between smuggling which is essentially a secret G . opt<ration and the maintenance of public order in which the operative

ord is 'public'". We will, however, hasten to add:that this broad

_ proposition as to the distinction between an act of 'smuggling' and an act affecting 'public order' is not an abstract or absolute proposition of Jaw. caBes. are conceivable where the act of smuggling may be accompanied by such violence and disorder that it throws out of gear the even tempo 0r the life of the community in the locality or dismrbs public tranquillity.

H ThP: broad distinction between an act of sm-qf?clinl? and one o[ejudicial to 'Public Order' drawn by 11s is helpful only for the P\Jri>9Se of deter-

 . (I) AIR. 1951 Simla 151.

3-470SCI/75

. 5 31!

SUPREME COURI RE~QJUS [1975] 3 s.c.R.

mining whether in the circumstances of the present case, the smuggling activity attributed to the detenu, as incorporated in his first ground of detention, was germane to the maintenance of public order, for achieving which the preventive detention in question has been professedfy made. In our opinion the answer to this question must be in the negative. The c, nly fact whic'; has been mentioned in addition to the smuggling of soinc essential commodities in that ground is that th1~ deti..11a

and his associates had threatened the Home-Guards and snatched away the seiud commodities from their custody. Further fact meD'lioned is that this activity comes within the purview of Ss. 143/186/332/506 I.P.C. and 7(i) (a) (ii) of Act X of 1955. This latter fact to the effect that such and such offences were committed was only a ccmclusion drawn by the authority. There is absolutely no mention that ainy scare

was cause(ll in the locality. Nor is it alleged that the detenu or his ;1ssociates were armed with any deadly weapons, or that their acts had

c;3used panic and terror among the people of the locality. The incident w~ cootined to the detenu and his associates on one handi and the Home-guards who checked them on the other. Oearly therefore, .it was not an activity which was prejudicial to the maintenance of Public Order. At. the most, it could be said to be an acticvity affecting law and order. Nor can the order be justified on the ground tb.at this activity wa& manifestly prejudicial to the maintenance of supplies and services. esnntial to the colii!Ilunity. We have stated earlier that the court cannot go behi.ad the subjective satisfaction of the detaining authority as expressed in the detention order and permit it to justify its order on a ground different from the or1e mentioned on the f1U:e of the order.

We ure therefore of the opinion that the first ground of detention bad no r.;:all nexus with the maintenance of Public Order. Jn view of thi<i finding, it i.s not necessary for_ us to consider whether the criniinal act

incorporated in the second l?l'OUnd of detention falls within the category of an act affecting Public Order or one concerniPg law and order. If one out of several grounds of detention is found to be irrelevant, tho order of •fotention shall stand vitiated. The reason is that iin such C3SC$, it cannot be reasonably predicated as to what extent the iirrelevant ground had influenced the subjective satisfaction of the detaining authority.

We haw gooe through the cases cited by Mr. Chatterjee. It has not been laid down therein as a proposition of law that whenever any act is accompanied by show of forre or threat to a public servant entrusted with the maintenance of law and order, it must necessarily fall within the cate14ory of an act prejudicial to the maintenance of Public Order. Even in these cases, the broad test applied was, wh~ther the act was of such a magnitude and gravity that it had disturbed the eVen tenioo of the life of the community in the area. Indeed, this is ess.--ntially a question Of fact depending on the circumstances of each case.

In the result, we allow this petition, q:uash the impugned order o[ detention. make the rule absolute and direct that the pctitiomr be r~ leased forthwith.

V.P.S.

Petition lllWwed.

MADAN GOPE

THE STATE OF WEST BENGAL

February 12, 1975

V. R. KRISHNA.IYER

s. 3

s. 3

ss. 143

I.P.C

Art. 32

Section 3(l)(a)

India

s. 3

Article 32

G. S. Cha:ttrjee

SARKARIA

s. 3

Aswini Mohanti

Kashipur village

section 143

section 3

sections 148

I.P.C

Section 3

Goswami

Chatterjee

AIR 1951Punjab157

AIR 1973 SC 197

AIR 1970 SC 269

sec 4

Section 3

s. 3

s. 3

[1966] 1 SCR 709

A run Ghosh

The distinction between the areas of .. 'law and order' and 'public order' as .pointed  by this Corirt in A run Ghosh's case (supra) "is one of degree and extent of the reach of the act in question on society".

Section 3(1)

Falshaw

Ss. 143

I.P.C