PETITIONER: <ORG> LTD. & ANOTHER Vs. RESPONDENT: THEIR WORKMEN(and connected appeals) DATE OF JUDGMENT: 15/10/1957 BENCH: DAS, S.K. BENCH: DAS, S.K. BHAGWATI, NATWARLAL H. KAPUR, J.L. CITATION: 1958 AIR 130 1958 SCR 667 ACT: Industrial dispute-Illegal strike-Lock-out-Notice lock-out and asking workmen to resume work-Workmen's right to be taken back without condition-Workmen taken in custody by police--Refusal of leave-Discretion of the employer- Dismissal of workmen Powers of the Industrial <ORG> to interfere. HEADNOTE: On account of the continued illegal stoppage of work, 'glow down' tactics, and strikes indulged in by the workmen despite the advice of their Union, the appellant company issued a notice dated August 23, 1953, that in consequence of the illegal strike the Management has no option but to declare a lock-out of the entire works except the special shifts with effect from August 24, 953 The services of all other workers shall be deemed to be discharged with effect from August 24, 953." Subsequently, the company lifted the lock-out. and gave notice on September 17, 1953, to the effect that all employees on the <ORG> rolls of the <ORG> on August 23, 1953, and who wish to report for duty, must resume work on September 18, 1953 A third notice gave extension of time to the workmen to resume work. The question was whether the notice dated August 23, 1953, terminated the services of the respondents by discharging them with effect from August 24, 1953, and the notice dated September 17, 1953, merely gave them an opportunity of re- employment at the pleasure of the company on fulfilment of certain conditions. Held, that, on a construction of the notices, the expression "shall be deemed to be discharged" had to be read in the context of the declaration of a lock-out, and the intention of the company was that the employees whose employment bad been refused during the period of lock-out were to be permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date. Where some of the workmen who were taken in custody by the police applied for leave when in custody but were refused leave by the company acting under Standing Order No. o, and <ORG> took the view that as the workmen were in custody the company was not justified in refusing leave, held, that whether in such circumstances leave should be granted or not must be left to the discretion of the employer, unless, it was proved, that it was a case of colourable or mala fide exercise of power under the Standing Order. 668 <CITATION> ,  S.C.R. 781, followed. The powers of <ORG> to interfere in cases of dismissal of workmen by the company, are not unlimited and the <ORG> does not act as a court of appeal and substitute its own judgment for that of the management. It will interfere (1) when there is want of good faith, (2) when there is victimisation or unfair labour practice, (3) when the management has been guilty of a basic error or violation of a principle of natural justice, or (4) when on the materials the finding is completely baseless or perverse. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 44,45, 336, and 337 of 1957.

Appeals by special leave from the decisions dated 29th June, 1956, of <ORG>, Calcutta in Appeals Nos. Cal.223, 226, 247 and 250 of 1955. <NAME>, Attorney-General for India, <NAME> and <NAME>, for the appellants in C. A. No. 44 and respondents in C. A. No. 45.

<NAME>, Attorney-General for India, <NAME> and <NAME>, for the appellants in C. A. Nos. 336 and respondents in C. A. No. 337.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellants in C. A. Nos. 45 & 337 and respondents in C. A. Nos. 44 & 336.

1957. October 15. The Judgment of the Court was delivered by <NAME> four appeals by special leave arise out of certain labour disputes between the employer, Messrs. <ORG> and <ORG>, Burnpur, Asansol, (hereinafter compendiously referred to as the <ORG>) on one side and some of their employees on the other. Messrs. Martin Burn Limited, 12 Mission Row, Calcutta, are the Managing Agents of the <ORG>. Originally, the case out of which Civil Appeals 44 and 45 have arisen was known as the case of 144 workmen, and the other case out of which Civil Appeals 336 and 337 have arisen was known as the case of 74 workmen. At present, the number of workmen involved in the four appeals is much smaller. Civil Appeals 44 and 45 go together as they arise out of the same decision, Civil Appeal 44 being on behalf of the <ORG> in respect now of 104 respondent workmen, and Civil Appeal 45 on behalf of 103 out of the said 104 workmen. Similarly, Civil Appeals 336 and 337 go together and arise out of a common decision, Civil Appeal 336 being on behalf of the <ORG> in respect of 10 workmen in three groups and Civil Appeal No. 337 on behalf of 31 workmen. The facts of these two sets of appeals are somewhat different, and it will be conducive to convenience as also to clarity of discussion of the issues involved, if the two sets are dealt with separately.

Civil Appeals 44 and 45.

We take up first Civil Appeals 44 and 45. With regard to these appeals the relevant facts are these. In 1947 <ORG> with one Prof.` <NAME> as President was recognised by the <ORG>. On the death of Prof. <NAME>, one Mr. <NAME> became President and the <ORG> continued to be recognised by the <ORG>. In 1951 the <ORG> was declared a Public Utility Service under the Industrial Disputes Act , 1947. It was alleged on behalf of the <ORG> that on September 12, 1951, a procedure was established for an amicable settlement of such disputes as might arise between the <ORG> and its employees. The procedure was substantially this: in case of a dispute regarding an individual employee, the dispute would be referred first to <ORG>charge and then to <ORG>, and the <ORG> would discourage an individual approach to the management of the <ORG>; if <ORG> was able to effect a settlement, it would be final; but if it failed, the <ORG> could take up the case on merits, with the management of the <ORG>. The above procedure, it is stated, was accepted at a joint meeting of <ORG> held on November 13, 195 1. Then we come to 1953. The case of the company was that on January 18, 1953, certain workers of the, <ORG> section resorted to an illegal stoppage of work, and on the next day all the three shifts of the <ORG> section commenced a 'slow down' strike. This adversely affected the production of the <ORG>, and it addressed a letter to the Secretary of the <ORG> on January 27, 1953, drawing the attention of the <ORG> to the illegal stoppage of work and 'slow down' tactics; the letter further stated that if there was no improvement in the attitude of the workers, the <ORG> would be compelled to take such action as it considered necessary to bring about resumption of normal work. Two days later, the workers of the <ORG> section submitted certain demands, but not through the <ORG>. With regard to the demands made by the workers of the <ORG> section, they were informed that joint petitions, without reference to the <ORG> or <ORG>, would not be accepted and so long as normal work was not resumed, no consideration could be given to the demands made. It appears that the <ORG> also informed the <ORG> that the workers concerned had made no representation to the <ORG>, and the <ORG> did not support their activities. It is obvious that at this stage there was a cleavage between some of the workers of the <ORG> section and the <ORG>. The <ORG> then issued certain notices to the workmen advising them of the consequences of their action. The workers in their turn elected a committee of six men to press their demands; the <ORG>, however, refused to negotiate with this committee. The impasse continued and in March, 1953, there was a tripartite conference between the Labour Commissioner of <ORG>, the General Manager of the <ORG> and the President of the <ORG>. Before this, the <ORG> had issued a notice closing 'B' and 'C' shifts of the <ORG> section. The tripartite conference came to certain conclusions but failed to restore harmony, and one of the reasons for its failure was that the representatives of the workers of the <ORG> section were not included therein. The workers' committee protested against the closing of two shifts, and the trouble continued till April 8, 1953, when the <ORG> issued a notice to the workmen that unless they voluntarily recorded their willingness to do normal work, they would be considered as no longer employed by the <ORG> from 2 p.m. on April 10, 1953. It was stated that on April 11, 1953, some 700 workers resorted to an illegal stoppage of work. The Labour Minister, <ORG>, then visited <NAME>, and met the representatives of the workers, and of the <ORG> and the Management. He made some suggestions, which did not however end the trouble. Meanwhile, <ORG> was set up by the workmen. There was a strike on April 27, 1953. The Sub-Divisional Magistrate, <NAME>, promulgated an order under s. 144 of the Code of Criminal Procedure and the situation continued to worsen. Iron and Steel were declared to be essential to the life of the community under the provisions of the West Bengal Security Act, 1950, and leave to all employees was stopped by the <ORG>. Some 38 workers of different departments were discharged for alleged disobedience of orders, and on August 18,1953, <ORG> gave a strike notice to the <ORG>, stating that the workmen would resort to strike and abstain from duty from September 11, 1953. We now come to the crucial date, August 23, 1953. On this date the <ORG> declared a lock-out and issued a notice, which must be set out in full, because a good part of the argument of learned counsel for both parties has centred round this notice : " NOTICE.

Having regard to the continued existence of the <ORG>. slow strike and the unsatisfactory working of the <ORG> and in consequence of the illegal strike which took place on- (1) 18-1-53.

(2) 9-3-53.

(3) 11-4-53 to 20-4-53.

(4) 27-4-53 and 28-4-53.

(5) 15-7-53.

the Management has no option but to declare a lockout of the entire works except the special shifts in the Hot Mills Section of <ORG> with effect from Monday, the 24th August, 1953.

The following Departments will continue to operate: No. 3 Boiler Plant.

No. 2 <ORG>.

Nos. 1 and 2 Reservoir Pump Houses.

Riverside Pump Station.

<ORG>.

Town Sub-Station.

Coke Ovens.

Workers required in the above Departments will be notified. The services of all other workers shall be deemed to be discharged with effect from Monday, August 24th, 1953.

Bunpur (Sd.) <NAME> 23rd August, 1953. General Manager."

On September 17, 1953, another notice was issued by the <ORG> lifting the lock-out with effect from 6 a.m. on Friday, September 18, 1953. This notice stated inter alia: "All employees on the <ORG> rolls of the <ORG> on the 23rd August, 1953, and who wish to report for duty, must resume work between 6 a. m. on Friday, the 18th September, 1953, and 10 p.m. on Saturday' the 19th September, 1953, on their regular shift. If, however, any worker in the vicinity of the <ORG> is unable to resume duty on account of illness, he should report himself to the <ORG>'s Medical authorities or if unable personally to attend, send written intimation of his sickness to the <ORG> by Saturday, the 19th September, 1953. In the latter case the <ORG> will make arrangements for his medical examination. Such worker should resume duty from the date he is declared fit by the <ORG>'s Medical authorities.

Any worker who has left the vicinity of the Works may resume duty on or before Thursday, the 24th September, 1953, provided he produces evidence-satisfactory to the Company of his absence."

On September 23, 1953, the Company issued a third notice, which quoted a request received from the President of <ORG> for extension of the time given to the workmen to resume work, and then concluded as follows:

"The Company is pleased to accede to this request to the extent of one week's extension and its notice No. GM/CS- 3B/571 dated 17-9-53 may be considered amended accordingly, i.e., the extension will be until Friday, the 2nd October, 1953."

Of the workmen with whom we are now concerned, 98 workmen reported for duty on October 1, 1953, 4 reported for duty on October 2, 1953, and one on October 9, 1953. They were not, however, allowed by the <ORG> to resume their duties. This led to an industrial dispute which <ORG> referred to <ORG>. The two issues were-(1) whether the <ORG> was justified in keeping the workmen mentioned in three lists A, B & C, out of employment; and (2) whether the said workmen were entitled to employment and any other relief and/or compensation. The <ORG> held that all the workmen who turned up on or before October 2, 1953, in pursuance of the notices issued by the <ORG> were entitled to be taken back into employment without condition and of the two men who came later, one was ill of typhoid fever and had sufficient reason for reporting himself for duty on October 9, 1953. On the second issue, the <ORG> said:

" Accordingly, I award that these men, barring <NAME>, No. 5 of the list C, attached to the order of reference, would get half salary for the entire period from the 2nd October, 1953, up to the date of their actual return to duties after this award. I allow only half basic pay and no dearness allowance and no other allowance." From the decision of <ORG>, two appeals were preferred to <ORG>, Calcutta. The appeal on behalf of the <ORG> was mainly against the order directing that the employees who had turned up on or before October 2, 1953, must be taken back in employment, and the appeal on behalf of the workmen raised the question that full compensation should be given to the work., men who were directed to be taken back in employment. <ORG> dismissed both appeals-the appeal of the <ORG> on merits, and the appeal of the workmen on the ground that it did not involve any substantial question of law. Both parties then asked for and obtained special leave from this Court to appeal from the decision of <ORG>, Calcutta.

In Civil Appeal No. 44, Mr. <NAME>, Attorney- General, has appeared for the <ORG> and has argued that both the <ORG> below went wrong on principle in construing the notices dated August 23, 1953, and September 17, 1953, respectively. According to him, the continued illegal stoppages of work, 'slow-down' tactics and strikes indulged in by the workmen despite the advice of their <ORG>, left the <ORG> no alternative but to discharge the workmen, except in some essential departments, with effect from August 24, 1953, and the notice dated August 23, 1953, though it stated that the <ORG> declared a lock-out of the entire <ORG> except for some special shifts, really terminated the services of the respondents by discharging them with effect from August 24, 1953. He has further submitted that the notice dated September 17, 1953, did not revoke the earlier order of discharge, but merely gave the respondents an opportunity of reemployment at the pleasure of the <ORG> on fulfilment of certain conditions. The learned Attorney-General contends that if the notices are so construed, then the <ORG> below are wrong in holding that the respondents are entitled to be taken back in employment as of right. He has further submitted that <ORG> was wrong in law in holding that there could not be a lock-out and discharge at the same time.

In our view, the two notices in question are not capable of bearing the construction which the learned Attorney-General has pressed for our acceptance, apart altogether from the question if under the Industrial Disputes Act , 1947, there can be a simultaneous order of discharge and lock-out in respect of the same employees. The question of construction is really a question of intention-to be gathered primarily from the words used in the documents; and if the word-. used are ambiguous, then surrounding circumstances can be looked into for the purpose of construing the notices. It is worthy of note that the first notice states inter alia that in consequence of the illegal strikes which took place on several previous dates, the Management has no option but to declare a look-out of the entire Works except some special shifts with effect from Monday, August 24, 1953; then in the concluding portion the notice states-" The services of all other workers shall be deemed to be discharged with effect from Monday, August 24, 1953. The expression " shall be deemed to be discharged has to be read in the context of the declaration of a lock-out; such an expression is neither usually employed nor apt to effectuate an intention to terminate the services of the workmen altogether. A 'lock- out', according to the definition in the Industrial Disputes Act , 1947, means the " closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him ". In this context, the notice when it said that the services of all other workers shall be deemed to. be discharged with effect from the date of the lock-out really meant that the <ORG> refused to employ the respondent workmen during the period when the place of employment was closed. The second notice dated September 17, 1953, places the matter beyond any doubt. It starts by saying that the "management have reasons to believe that many workers are desirous of resuming work" etc.; then it states that "all employees on the Works rolls of the <ORG> on August 23, 1953, and who wish to report for duty, must resume work between 6 a.m. on Friday, September 18 1953, and 10 p.m. on Saturday, September 19, 1953." The expressions used in the second- notice clearly show that the intention was not reemployment of discharged workmen, but resumption of work by employees who desired to resume work and whose employment had been stopped on account of the 86 look-out. The third notice dated September 23, 1953, which extended the date of joining to October 2, 1953, again said that " a large number of workers might have been prevented from resuming their work for reasons beyond their control " and gave that as the reason for extending the date. If the three notices referred to above are read together against the background of events which bad happened prior to August 23, 1953, the only reasonable construction is the one adopted by the Tribunals, viz., that the employees whose employment had been refused during the lockout were permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date. The learned Attorney-General has referred us to some oral and documentary evidence to show that the workmen themselves understood the notice dated August 23, 1953, as a notice of discharge. He has referred particularly to the letter dated September 2, 1953, written by <ORG> to the General Manager of the <ORG> in which the notice dated August 23, 1953, was referred to as " an illegal and unconstitutional notice of discharge". On the other side, Mr. <NAME> appearing for the respondent workmen has referred us to the evidence given by some of the <ORG>'s servants, which showed that no formal order of discharge was recorded in the service book of the employees, as required by the rules; nor any notice of one month given for discharging the workmen; but on the contrary the workmen were given continuity of service for the entire period of their absence. We do not, however, think that when the words used in the notices sufficiently and clearly bring out the intention of the <ORG>, it is necessary to refer to other evidence in the record. Moreover, this <ORG> does not sit as a regular <ORG> of appeal over Industrial Tribunals, and does not ordinarily subject the evidence given on behalf of the parties to a fresh review and scrutiny, unless it is shown that exceptional or special circumstances exist, or that substantial and grave injustice has been done or that the case in question presents features of sufficient gravity to warrant a review of the decision appealed from. It is necessary now to consider an alternative argument of the learned Attorney-General. He has contended that assuming that the notices bear the construction which we have put on them, the respondent workmen did not join on or before Saturday, September 19, 1953,--the latest day by which they could resume work without any condition; they reported for duty on October 1, 1953, or October 2, 1953, but failed to produce evidence satisfactory to the <ORG> of their absence as required by the notice dated September 17, 1953, and, therefore, they were not entitled to be taken back as of right and without any condition. It is necessary to state here what happened between November 1953, and April 1954. It appears that a large number of workmen who reported for duty on October 1, 1953, and October 2, 1953, were subsequently interviewed, and as a result of that interview 144 workmen were not taken back to employment. What happened at the interview was stated by <NAME>, witness for the <ORG>, who said : " Question: Why these 144 men were not taken ? Answer: These men were interviewed, but they could not give satisfactory explanation for not reporting for duty within the time given. These men did not comply with the condition laid down in the notice of the 17th September, 1953. Whatever happened during the interview has been put in writing."

The writing which embodied the result of the interview was not, however, produced. The same witness said that some workmen who were also subsequently interviewed were taken back without any explanation of their absence. The evidence on this point is very Conflicting; one witness said that about 2,000 men came to the main gate of the <ORG> on October 1, 1953, and October 2, 1953, and from October 2, 1953, the instruction of the company was " to take back only those who were not harmful to the running of the factory". Another witness said that he did not remember if any of the respondent workmen appeared before him on October 1, 1953, or October 2, 1953, and if any of them gave any reasons for their absence. In view of the conflicting evidence on the point, it is not possible to proceed on the footing that the respondent workmen failed to produce satisfactory evidence of their absence, and that was the reason why they were not taken back by the <ORG>. The learned Attorney General drew our pointed attention to the evidence of <NAME>, witness No. 9 for the workmen, who said: "When the lock-out was lifted I did not think it proper to join immediately because most people were then outside, secondly, my colleagues and others had not then joined, and. lastly, my social status in the place combined with the above circumstances restrained me from joining." It may be that some of the workmen could have presented themselves earlier than they actually did, But that does not prove that the <ORG> refused to take only those workmen who had failed to produce satisfactory evidence of their absence. If that was the case of the <ORG>, then it should have produced the writing which embodied the result of the interview or given sufficient evidence to establish that in each case the respondent workmen failed to produce satisfactory evidence of absence. On the contrary, the <ORG> found that the <ORG> scrutinised the conduct of the workmen to find out how far they were associated with <ORG>, how far they took part in the meetings, etc., and on that basis, some workmen were taken back and some were not taken back. It is somewhat late in the day to try to make out a case that each of the respondent workmen in these two appeals failed to produce satisfactory evidence of their absence. For these reasons, we do not think that the appellant <ORG> in Civil Appeal 44 has made out any case for our interference with the decision appealed from. There was some argument before us as to the illegal nature of the strike declared by the workmen and also as to the legality of the lock-out declared by the <ORG>. We do not pause to decide those questions, because it is unnecessary to do so in the pre- sent appeals. We must make it clear, however, that our reluctance to pronounce on the conduct of the workmen prior to August 23, 1953, does not signify an approval of that conduct which rightly came in for a good deal of criticism by <ORG>. It has been somewhat faintly suggested that if the notice dated August 23, 1953, terminated the services of the workmen and the second notice, dated September 17, 1953, operated as a conditional revocation of the earlier notice, then there was no consideration for the condition imposed and the <ORG> could change its mind-: and ignore the condition. In the view which we have taken of the three notices, it becomes unnecessary" also to examine this submission. As to Civil Appeal 45 on behalf of the workmen in which the prayer is for payment of full compensation, it is sufficient to state that no question of principle is involved. <ORG> refused to give compensation, for the period anterior to October 2, 1953, on the. ground that the workmen themselves tried to coerce the <ORG> by 'slow- down' tactics etc.; for the period after October 2,'1953, the <ORG> allowed half the wage as compensation on the ground that some of the workmen were near Burnpur and might have joined earlier, some claimed to come back to their services as of right without any explanations and none of the workmen had done any actual work for the period. As we have said, no question of principle is involved and we do not think that the <ORG> has committed any error in the matter of awarding compensation.

Civil Appeals 336 and 337.

We now turn to the other two appeals. We have stated that the case out of which these two appeals have arisen dealt initially with 74 workmen who had been discharged or suspended by the <ORG> for" one reason or another.' The question which was referred to <ORG> was whether the discharge and/or suspension of these 74 workmen was justified if not, to what relief these men were entitled. The <ORG> classified these men in four categories--

(1)those whose services were terminated in accordance with the Standing Orders of the <ORG>, for absence without permission for 14 consecutive days; (2) those who were dismissed for major misdemeanor; (3) those who were suspended but whose cases could not be disposed of finally; and (4) those who were dismissed for disobedience of orders and other activities in pursuance of a concerted plan of "go-slow" strike. The <ORG> considered the case of each workman under the four categories mentioned above and ordered reinstatement of 25 out of 74 workmen and granted to 24 of the workmen directed to be reinstated compensation equal to half basic pay for the period of forced unemployment. From the decision of the Fifth Industrial <ORG> two appeals were taken to the Labour Appellate <ORG>, Calcutta,-one on behalf of the <ORG> and the other for the workmen. The Labour Appellate <ORG> dismissed both the appeals. Hence the two appeals before us by special leave.

In Civil Appeal 336 we are concerned with only 10 workmen, seven of whom fall in the category of those whose services were terminated in accordance with Standing Orders of the Company for absence without permission for 14 consecutive days. These seven men are-(1) <NAME>, (2) <NAME>, (3) <NAME>, (4) <NAME>, (5) <NAME>, (6) <NAME>, and (7) <NAME>. Two others, <NAME> and <NAME>, fall in the category of those who were said to have been dismissed for major misdemeanour. The tenth workman <NAME> falls in a class by himself.

In Civil Appeal 337 on behalf of the workmen there are 31 appellants, nine of whom (except <NAME>) are those who figure in the <ORG>'s appeal. The rest are those who were not ordered to be reinstated. The cases of two of these men <NAME> and <NAME>, have been specially placed before us by Mr. <NAME>, on the ground that <NAME>, stands on the same footing as <NAME> and <NAME> on the same footing as those whose leave was not granted and who were absent for 14 consecutive days without permission.

We now proceed to consider the cases of the 10 workmen in Civil Appeal 336. Let us first take the seven workmen who were absent without leave for 14 consecutive days. Standing Order No. 9 of the Company, which is the relevant Standing Order on the subject, is in these terms:

" Absenteeism--Workers absent without leave will be subject to disciplinary action. Overstaying leave will be considered as absence without leave.

Any worker who is absent for 14 consecutive days without permission will be automatically discharged. Also, any worker who is absent for 14 individual days during any period of 12 months is liable to discharge." What happened in the case of these men is that on diverse dates between July 5, 1953, and July 10, 1953, they were taken in custody by the police and remained in custody for some time; they applied for leave when in custody but leave was refused. <ORG> took the view that Standing Order No. 9 was not an inflexible rule, and a mere application for leave was sufficient to arrest the operation of the Standing Order. When the case was before <ORG>, Mr. <NAME> on behalf of the workmen conceded that he was not in a position to support the view of <ORG> in this respect; he contended, however, that <ORG> had in each case considered the justification for absence without leave, and in view of the circumstance that the men were in custody, the <ORG> was not justified in refusing leave. This contention found favour with <ORG>.

The point is now covered by a decision of this Court: <CITATION> (1). in that case one Ashimananda Bannerji was arrested tinder the West Bengal Security Act and detained in jail from January 25, 1949, to April '5, 1949. The Company terminated his services on April 22, 1949, on the ground of continued absence. <ORG> Ordered his reinstatement on the ground that he had been discharged without a charge and without holding (1)  S.C.R. 781, 798.

an enquiry. This Court observed:

"We are unable to agree with this decision. The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of <ORG> is manifestly erroneous and must be set aside."

The same principle should apply in the present case. It is true that the arrested men were not in a position to come to their work, because they had been arrested by the police. This may be unfortunate for them; but it would be unjust to hold that in such, circumstances the <ORG> must always give leave when an application for leave is made. If a large number of workmen are arrested by the authorities in charge of law and order by reason of their questionable activities in connection with a labour dispute, as in this case, the work of the <ORG> will be paralysed if the <ORG> is forced to give leave to all of them for a "more or less indefinite period. Such a principle will not be just; nor will it restore harmony between labour and capital or ensure normal flow of production. It is immaterial whether the charges on Which the workmen are arrested by the police are ultimately proved or not in a court of law. The <ORG> must carry on its work and may find it impossible to do so if a large number of Workmen are absent. Whether in such circumstances leave should be granted or not must be left to the discretion of the employer. It may be readily accepted that if the workmen are arrested at the instance of the <ORG> for the purpose of victimisation- and in order to get rid of them on the ostensible pretext of continued absence, the position will be different. It will-then be a colourable or mala fide exercise of power under the relevant Standing Order; that, however, is not the case here. We, are of the view that the two <ORG> below have misdirect- ed themselves as to the true scope and effect of the "Standing Order in question, and their decision-with regard to the seven workmen mentioned above cannot be supported.

We now turn to the two persons in the second category <NAME> and <NAME>, remembering what we have already stated as to the exercise of our jurisdiction on an appeal by special leave. <NAME> worked as the Manager of the Burnpur hotel, and one of the questions raised was if he was a 'workman' within the meaning of the relevant provisions of the Industrial Disputes Act , 1947. At the relevant time, `workman' was defined in the Act as follows: " Section 2(s) . " workman " means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the <ORG>."

The question is if <NAME> did any clerical work for hire or his duties were merely supervisory in nature. Both the <ORG> have referred to the evidence on this point and have concurrently found that <NAME> was a workman within the meaning of that word as used in the Industrial Disputes Act , 1947; they have referred to <NAME>'s own evidence which showed that he had to write ledgers, file correspondence, enter the cash book, etc. We see no reason to hold that the finding of the two <ORG> on this point is erroneous.

On merits, the case against <NAME> was that as a result of a regular and proper enquiry, he was found guilty of unauthorised absence and insubordination, etc., and, therefore, the <ORG> dismissed him. The argument before us is that the <ORG> having held a regular and proper enquiry in which <NAME> had an opportunity of meeting the charges against him, it was for the <ORG> to decide whether the charges had been proved and <ORG> should not have interfered with the decision of the <ORG>, unless it found that the decision was mala fide or amounted to victimisation. It is necessary to state here, in the words of <ORG>, its finding about <NAME>. <ORG> said: 87 "Next, I consider the merit of the case. On the 6th July, 1953, he went on leave. On the 16th July, he applied for extension of leave for one month (vide Ex. 6). He got a reply from the <ORG> on the 25th or 26th July, 1953. But as the <ORG> refused his leave, he jointed on the 1st August, 1953, with a medical certificate of fitness. So practically he was within 14 days' admissible grace period for joining one's duty. When he was on leave, he was suffering from blood pressure and fever. The doctor advised him to take rest. Of course, he should have consulted the <ORG>' doctor. But even if he had not done so, it did not matter as he was then on leave allowed by the <ORG>. So where was his fault? Yes, his fault was that he was the Secretary of the Act ion Committee at that time. The Act ion Committee to the <ORG> was like a red rag to the bull. I find absolutely no reason why this man should be dismissed. So I set aside the order of dismissal passed against him, and order his reinstatement. I grant him compensation at half basic pay for the period of his forced unemployment."

The finding really amounts to this that <NAME> was victimised as he was the Secretary of <ORG>; he was really ill and the only fault he committed was that he did not consult the Company's doctor. The learned Attorney-General has very seriously contested the aforesaid finding of the <ORG> and taken us through the relevant evidence including <NAME>'s own statements before <ORG>. He has pointed out that though <NAME> was said to be suffering from fever and blood-pressure, his statements before <ORG> showed that he was not taking complete rest as " advised by his doctor but was engaged in doing some " public work." The argument advanced by the learned Attorney-General might have been urged acceptably to a Court or <ORG> of first instance; but we are not such a Court or <ORG>, and in the absence of exceptional or special circumstances or of grave injustice, we shall not be justified in interfering with what really is a finding of fact.

This brings us to the case of <NAME>, where also the same principles apply. She was a nurse in <ORG> and the charge against her was that she had incited and instigated one <NAME>, a sweeper working in the hospital, not to attend his duties on the morning of September 5, 1953. An enquiry was held and she was found guilty of the charge. The <ORG> found that the charge against her was completely baseless, and the enquiry report against her made a mountain of a mole-hill. She made some comments to <NAME> with regard to a pass which had been issued to <NAME>, and the comments innocuous in themselves were magnified into a charge of intimidation. It is significant that before the Labour Appellate <ORG>, the Company did not even argue the case of <NAME>. Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial <ORG>s have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the <ORG> does not, however, act as <ORG> and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials the finding is completely baseless or perverse. In our view, <NAME>'s case comes under, clause (iv) above.

Lastly, we come to <NAME>. The Company's case against him was the following. It was alleged that since January, 1953, he incited other workmen to resort to 'slow down' tactics. On March 28, 1953, he was charged that he took an active part in the ` slow-down' strike in the Hot Mills section, and he initiated such action and instigated others to do the same. On March 29, 1953, he submitted his explanation. On March 31, 1953, he was suspended pending enquiries. On April 3, 1953 and April 4, 1953, some evidence was taken against several workmen including <NAME> in the course of the enquiry, but the evidence not being of an overwhelming character against <NAME>, the management postponed its decision pending further enquiry. In May 1953, the Sub-divisional Magistrate promulgated an order under s. 144 , Criminal Procedure Code , in which <NAME> was mentioned. In September, 1953, the dispute was referred to <ORG>, which included the case of <NAME>-there being a suspension order against him. It was stated that an application under s. 33 of the Industrial Disputes Act, 1947, was made for permission to dismiss <NAME> for activities subsequent to the charge-sheet of March 28, 1953. The <ORG> instead of dealing with that application made the following observations in its award regarding <NAME>: " He was, therefore, charged on the 28th March, 1953, along with others. There was an enquiry. But as the evidence against this man was not overwhelming, the management postponed their decision for the time being. This man, however, continued his activities with the result that the Sub-divisional Officer of <ORG> promulgated an order under section 144 , Cr. P.C., on the 15th May, 1953, and in which order his name was mentioned. This workman was again obstructing the loyal workers after the lock-out had been lifted. So in view of the above, the <ORG> decided to terminate his services. But it could not take any direct action as his case was referred to the <ORG>. So the position is that the charge-sheet on which this man was sought to be punished was not proved even according to the <ORG>' own version. For his other activities there is no charge-sheet. In such circumstances I do not think that the <ORG> were entitled to dismiss him. So regard being had to this aspect of the matter, I order his reinstatement. But as I am satisfied that. this man indulged in activities which were prejudicial to the interest of the <ORG>, I do not allow him any compensation during the period of his forced unemployment consequent upon suspension. This period of unemployment should be treated as leave without pay. He must be reinstated as soon as the award becomes operative." The Appellate <ORG> dealt with the case of this man very summarily by saying that his reinstatement was not open to any objection.

Before us, it has been argued that the decision that <NAME> should be reinstated is vitiated by a basic error. The only formal order against him was the order of suspension, which was certainly a valid order. <ORG> found that <NAME> indulged in activities prejudicial to the <ORG> and it is now recognised that deliberate 'slow-down' tactics and an incitement to other workmen to adopt such tactics both amount to misconduct. The lower <ORG> was apparently satisfied that <NAME> was guilty of such misconduct; yet it held that the charge-sheet on which <NAME> was suspended had not been proved. If the order of suspension was the only subject if reference, so far as <NAME> was concerned, the <ORG> could-not order his reinstatement till the enquiry was completed. If, on the contrary, the <ORG> proceeded on the footing that the company had decided to terminate the services of <NAME> on the ground of his prejudicial and subversive activities then on being satisfied that <NAME> was guilty of such activities the proper order would have been to give the <ORG> permission to dismiss <NAME>. In either view, the order of his reinstatement is unjustified.

Only a few words are necessary to dispose of Civil Appeal

337. The <ORG> had considered the case of each workman under the four categories mentioned previously and had refused reinstatement to those against whom it found that the <ORG> had good reasons for dismissal. Mr. <NAME> has not been able to satisfy us that the <ORG>s below committed any error with regard to the appellants of this appeal. He has pressed the case of two persons <NAME> and <NAME>. Against <NAME> there was a charge for slow-down tactics; later he was charged with assaulting the <ORG>'s driver. Though he was acquitted in a criminal proceeding, the <ORG> found that the decision of the <ORG> to terminate his services was justified.

<NAME> absented himself from duty from July 5, 1953, and was absent without leave for more than 14 days. His case was fully considered by the <ORG>, which found that his services were rightly terminated under the Standing Orders of the Company.

The result of the foregoing discussion is this: Civil Appeal 44, Civil Appeal 45 and Civil Appeal 337 are without merit and must be dismissed. Civil Appeal 336 succeeds in part, and the decision of the Tribunals below is set aside in respect of the following eight men, only-(1) <NAME> (2) <NAME>, (3) <NAME>, (4)Dhani Ram, (5) <NAME>, (6) <NAME>, (7) <NAME>, and (8) <NAME>. In all other respects, the decision appealed from will stand. In the peculiar circumstances of this case, the parties will bear their own costs here.

Appeal No. 336 partly allowed.

Others dismissed.


CASE NO.: Appeal (crl.) 907 of 1998 PETITIONER: SHAMNSAHEB M.MULTTANI Vs. RESPONDENT: STATE OF KARNATAKA DATE OF JUDGMENT: 24/01/2001 BENCH: <NAME>, K.T.Thomas JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T THOMAS, J. A bride in her incipient twenties was whacked to death at her nuptial home. After gagging her mouth the assailants treated her for some time as a football by kicking her incessantly and thereafter as a hockey puck by lambasting her with truncheons until she died of bilateral tension haemothorax. Her husband and his brother and father were indicted for her murder. But when all the material witnesses turned hostile to the prosecution the trial court, being foreclosed against all options, acquitted them. Undeterred by the said acquittal the State of Karnataka made a venture by filing an appeal before <ORG>. A Division Bench of <ORG>, looking at the factual matrix of the case, lamented O Tempora O Mores as the learned judges said by way of prologue that it is virtually a matter of shame that in this day and date, indiscriminate attacks and abnormally high degree of violence are directed against married women in certain quarters and that the law is doing little to curb this type of utterly obnoxious and anti-social activities. Learned Judges after reaching a cul de sac, swerved over to a different offence i.e. dowry death and convicted one of them (the husband) under section 304B of the Indian penal Code and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498A . However, the High court found helpless to bring the other two accused to the dragnet of any offence.

Thus, for the appellant (husband of the deceased) this appeal became one of right under Section 379 of the Code of Criminal Procedure (for short the Code ) and under Section 2 of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

During the course of arguments a question of law cropped up as the appellant was not charged under Section 304B , IPC . The question raised is this: Whether an accused who was charged under Section 302  could be convicted alternatively under Section 304-B , without the said offence being specifically put in the charge. The answer appeared, at the first blush, ingenuous particularly in the light of Section 221 of the Code. But as we proceeded further we noticed that the question has intricate dimensions, more so when this <ORG> held divergent views on two occasions though not on the identical point. This case was, however, referred to be heard by a larger Bench and thus it came up before a bench of three judges.

To assist us in this matter we appointed Sri <NAME>, advocate as amicus curiae. He with his meritorious efforts helped us considerably in the task. We are beholden to him for the assistance rendered to us.

Before we proceed to the question of law it is necessary to delineate the synopsis of the case. The bride was <NAME>, whose marriage with the appellant was solemnized only a few months prior to her tragic end. It appears that <NAME>s father had died much earlier. A certain amount, not much, was given to the bridegroom at the time of the marriage, though the expenses of the wedding were borne by the brides people. After marriage <NAME> lived in the house of her husband for a couple of months. But when she paid her first visit to her natal home she reported to her mother and brothers that she was being subjected to pressures and harassment by her husband and by the other two accused for wangling a further amount of Rupees twenty thousand from her people. She complained to her brother that she was threatened that if the amount was not brought she would be asked to leave the nuptial home once and for all.

On completion of her furlough at her parental house the appellant went to take her back. Then her brother (<NAME>) gave a sum of rupees five thousand to the appellant and pleaded with him to be satisfied with it. Though with displeasure, as the amount was insufficient, appellant collected it and allowed <NAME> to escort him to his house. A few days later <NAME> conveyed to her mother that she was again persecuted for not making up the whole amount demanded. Once again appellant brought her back to her parental home after subjecting her to physical assaults. <NAME>, on being told that the assaults were meant for meeting the demand for dowry, pleaded with the appellant to desist from torturing his young sister. After some haggling <NAME> was able to pay a sum of rupees two thousand more. At that time also appellant, though not fully satisfied with the pelf given, took her back to his house.

Within two months thereafter <NAME> was killed. On hearing the news on 17.10.1992 <NAME> along with some of his close relatives set out to the house of the appellant. On the way they met the appellant. When they tried to confront him with what they heard he skirted the subject and slipped away. When they reached the house of the appellant they saw the mangled dead body of <NAME>.

Dr. <NAME> (PW7) conducted the autopsy on the dead body of <NAME>. Though externally there were only a few abrasions and contusions the inside was found very badly mauled. The rib on the right side was fractured, both the lungs were collapsed, the thorasic cavity contained 200 ml. of blood. The peritoneum was soaked in blood, liver and spleen were massively lacerated and ruptured at three places. Though prosecution examined PW3 and <NAME> who were neighbours to say that they saw the three accused inflicting incessant assaults on <NAME> and <NAME> was examined to say that appellant made an extra-judicial confession to him, they all turned hostile and did not speak as prosecution expected. The remaining evidence was not sufficient to establish that all or any of the accused had inflicted the injuries on <NAME>. Consequently, prosecution failed to prove that the accused caused the death of the deceased. The trial court did not make any other endeavour and hence found the accused not guilty and acquitted them.

Learned Judges of <ORG> found that there is no evidence against A-2 <NAME> and A-3 <NAME>. However, in the case of A-1 (appellant) <ORG> was in confusion as it found that prosecution proved beyond all reasonable doubt that it was appellant who killed <NAME>. The relevant portion of paragraph 14 of the judgment of <ORG> delivered by <NAME>, J, is extracted below: We hold that there is sufficient direct and circumstantial evidence in this case to prove beyond all reasonable doubt that A-1 was responsible for tying deceased <NAME> and assaulting her with the metal rod as also brutally and mercilessly kicking her in the course of this assault all of which resulted in her death. The nature of the incident and the fact that she succumbed to the cruelty would clearly bring this case within the ambit of Section 304 .

But the operative portion of the judgment reads thus: The appeal partially succeeds. The order of acquittal passed in favour of original accused Nos.2 and 3 stands confirmed. As far as the original accused No.1 is concerned, the order of acquittal passed in his favour by <ORG> is set aside. A-1 stands convicted of the offence punishable under Section 498-A  and is sentenced to RI for 3 years. He is also convicted of the offence punishable under Section 304-B  and is sentenced to RI for life, substantive sentence to run concurrently.

Initially we thought that there might have been some typographical or other errors in the above first extracted portion of the judgment produced before us but we found the said portion remaining the same even in the judgment sent up by <ORG> along with the records. We may take it that learned Judges did not intend to speak what is seen recorded in the paragraph 14 of the judgment (extracted above) and that <ORG> only proposed to convict the appellant under Sections 304-B and 498-A . But even on that aspect <NAME>, J, made an observation which is, unfortunately, not true to facts. That observation is this: Coming to the charge under Section 304-B , this section was incorporated in the year 1986 by the legislature for the purpose of dealing with instances of dowry death. Counsel for both sides submitted that no charge was framed against the accused for the offence under Section 304-B . We perused the original charge framed by <ORG> and noticed that there was no such count included in the charge at all. If so, we may say, euphemistically, that learned Judges committed a serious error in assuming that Section 304-B  was included in the charge framed against the appellant.

Be that as it may. The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 , but on the facts the ingredients of section 304-B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge.

Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence of which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 , at least at the time of framing the charge.

Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different, situation. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.

What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.

The composition of the offence under Section 304-B  is vastly different from the formation of the offence of murder under Section 302  and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A  (Husband or relative of husband of a women subjecting her to cruelty). As the word cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

So when a person is charged with an offence under Sections 302 and 498-A  on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304-B  would stand established. Can the accused be convicted in such a case for the offence under Section 304-B  without the said offence forming part of the charge?

A two Judge Bench of this Court (<NAME> and <NAME>, JJ) has held in <NAME> and anr. vs. State of Punjab {1994 Supple. (1) SCC 173} that if a prosecution failed to establish the offence under Section 302 , which alone was included in the charge, but if the offence under Section 306  was made out in the evidence it is permissible for the court to convict the accused of the latter offence.

But without reference to the above decision, another two Judge Bench of this Court (<NAME> and <NAME>, JJ) has held in <CITATION> . {1997 (5) SCC 348} that it is impermissible to do so. The rationale advanced by the Bench for the above position is this: It is true that Section 222 CrP.C. entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306  cannot be said to be a minor offence in relation to an offence under Section 302  within the meaning of Section 222 . for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302  is homicidal death, those of Section 306  are suicidal death and abetment thereof.

The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304B  when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite: No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of <ORG>, confirmation or revision, a failure of justice has in fact been occasioned thereby. (emphasis supplied) In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon (The simile is borrowed from Lord <NAME> in <ORG> vs. <ORG> {1977(1) All England Report 813}. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

One of the cardinal principles of natural justice is that no man should be condemned without being heard, (Audi alterum partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304-B  without the same being included as a count in the charge framed. Section 304-B has been brought on the statute book on 9-11-1986 as a package along with Section 113-B of the Evidence Act. Section 304-B(1)  reads thus: 304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death.

In the Explanation to the Section it is said that the word dowry shall be understood as defined in the Dowry Prohibition Act , 1961.

The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances the court shall presume that such person had caused dowry death.

Under Section 4 of the Evidence Act whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved. So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross- examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both.

At this stage, we may note the difference in the legal position between the said offence and section 306  which was merely an offence of abetment of suicide earlier. The section remained in the statute book without any practical use till 1983. But by the introduction of Section 113A in the Evidence Act the said offence under Section 306  has acquired wider dimensions and has become a serious marriage- related offence. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him.

But the peculiar situation in respect of an offence under Section 304B , as discernible from the distinction pointed out above in respect of the offence under Section 306  is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

Now take the case of an accused who was called upon to defend only a charge under Section 302 . The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304B , as he was defending a charge under Section 302  alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B  and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:- If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B  read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B , IPC . But if the husband is charged only under Section 302  he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302  and was alternatively convicted under Section 304B  without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.

In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 , but the offence under Section 304-B  has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B  would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B , unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.

As the appellant was convicted by <ORG> under Section 304-B , without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under section 304-B . To facilitate the trial court to dispose of the case afresh against the appellant in the manner indicated above, we set aside the conviction and sentence passed on him by <ORG> and remand the case to the trial court.


PETITIONER: ALLAHABAD DEVELOPMENT AUTHORITY Vs. RESPONDENT: NASIRUZZAMAN & ORS, DATE OF JUDGMENT: 02/09/1996 BENCH: K. RAMASWAMY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:

THE 2ND DAY OF SEPTEMBER Present:

Hon'ble Mr.Justice <NAME> Hon'ble Mr Justice <NAME>, Sr.Adv. and <NAME>, Adv. With him for the appellant In-person for the Respondents O R D E R The following Order of the Court was delivered: Leave granted.

We have heard learned counsel for the appellant as well as respondent-in-person who is also a practising advocate.

Notification under Section 4 (1) of the Land Acquisition Act , 1894  (for short, the Act') was published on June 18, 1977 acquiring the large extent of land admeasuring 23 bighas and 19 biswas for <ORG>. Enquiry under Section 521 ) of the Act was dispensed with in exercise of the power under Section 17 (1-A), as emended by <ORG>, substituting the Act. Possession thereof was taken on November 2, 1977 and transferred to the <ORG>. Those lands stood vested in the <ORG> under Section 16 of the Act free from all encumbrances and stood transferred to the beneficiary.

The question that arises for consideration is: whether <ORG> was right in passing the order dated December 15, 1993 and the order dated January 29,1990 declaring that the acquisition proceedings by operation of Section 11-A , as amended by Act 68 of 1984, stood lapsed and direction given for delivery of possession to the respondents would be in accordance with law? The controversy is no longer res integra. <CITATION> [(1971) 1 SCR 413 this Court had laid down that once the lands stood in the State free from all encumbrances there is no question of divesting the land and re-vesting the land in the erstwhile owners. The only right the erstwhile owner has is as to the determination in accordance with the provision of the Act. In view of the fact that there was inordinate delay in passing the award after the declaration under Section 6(1) was published, the <ORG> in the Amendment Act introduced Section 11-A and directed that the Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration. If no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Under the proviso, it was said that where the declaration has been published before the commencement of the Amendment Act s the award shall be made within a period of two years from the commencement of the Amendment Act . In the impugned judgment, it would appear that the learned Judges asked the counsel to verify together the award came to be made within two year as indicated. The counsel on verification had stated that the award was not trade within two years from the commencement of the Amendment Act , namely, September 24, 1984. Consequently the declaration was given that the notification under Section 6 stood lapsed. This question was examined by this Court in <NAME> & Ors.[] and <ORG>. v. <ORG> [ at 38] and held that Section 11-A does not apply to cases of acquisition under Section 17 where Possession was already taken and the land stood vested in the State. The notification under Section 6 do not lapse due to failure to make award within two years from the date of declaration. The view of <ORG> is erroneous in law .

It is no doubt true that there was no appeal filed against the said order except the one now filed with application for condonation of the delay. The question therefore, is: whether the view taken by <ORG> is correct in law? As early as in 1971, this Court had held that once the lands stood vested in the State, the question of divesting and revesting the acquired land in the erstwhile owner did not arise. The Amendment Act has to be relied upon only in the pending proceedings. But once the possession was taken pursuant to the exercise of the power under Section 17(4) of the Act, the lands stood vested in the State under Section 16 free from all encumbrances. Thereby, the question of lapse of the proceeding of notification under Section 4(1) and declaration under Section 6 does not arise. Therefore, the view of <ORG> was clearly erroneous. In that perspective, this court has considered in <CITATION> .[(1969) 3 SCR 447 at 454], and held thus:

"The Order made by <ORG> in <NAME> case striking down the Act was passed on the assumption that the validity of the Act was liable to be adjudged by the test of "due process of law". The Court was plainly in error in so assuming. We are also unable to hold that the previous decision operates as res judicata even in favour of the petitioner in whose petitions an order was made by <ORG> in the first group of petitions. The effect of that decision was only that the Act was in law, non existent, so long as there was no definition of the expression "cattle fair " in the Act. That defect has been remedied by the Punjab Act 18 of 1968. We may hasten to observe, that the Act as originally enacted was unenforceable even on the ground of vagueness."

In view of the above ratio, it is seen that when the <ORG> has directed to act in a particular manner and the failure to ac results in a consequence, the question is whether the previous order operates as res judicata or estoppel as against the persons in dispute. When the previous decision was found to be erroneous on its face, this court held in the above judgment that it does not operate as res Judgment We respectfully follow the ratio therein. The principle of estoppel or res Judgment does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be over-ridden or defeated by a previous judgment between the parties. In view of the fact that land had already stood vested in the <ORG> free from all encumbrances, the question of divesting does not arise. After the vesting has taken place, the question of lapse of notification under Section 4(1) and the declaration under Section 6 would not arise. Consideration from this perspective, original direction itself was delivery of possession of the land, in consequence, was not valid in law. Further it is made clear that the respondent are entitled to interest at 9% for one year from the date of taking possession and thereafter at 15% per annum till the date of deposit into court. The respondents are not entitled to market value as on the date of award.

With these modifications, the appeal is allowed but, in the circumstance, without costs.


PETITIONER: S. L. AGARWAL Vs. RESPONDENT: GENERAL MANAGER, HINDUSTAN STEEL LTD. DATE OF JUDGMENT: 19/12/1969 BENCH: <NAME>, M. (CJ) BENCH: <NAME>, M. (CJ) GROVER, A.N. RAY, A.N. REDDY, P. JAGANMOHAN DUA, I.D. CITATION: 1970 AIR 1150 1970 SCR (3) 363 1969 SCC (1) 177 CITATOR INFO : RF 1972 SC1324 (12) F 1975 SC1239 (5) MV 1975 SC1331 (124,128) D 1979 SC1628 (30) RF 1981 SC 212 (38,44) D 1981 SC 487 (12) C 1984 SC 161 (27) RF 1986 SC1571 (49,52,56) ACT: Constitution of India, Art. 311- Civil post under <ORG> held under <ORG> whether such a post-Holder whether entitled to protection of Article. HEADNOTE: The services of the appellant as Assistant Surgeon in the <ORG>, Ranchi were terminated purportedly in terms of his contract of employment. In a petition under Art. 226 he claimed that the termination was wrongful inasmuch as it was really by way of punishment and Art. 311 of the Constitution had not been complied with. The company resisted the ground by saying that Art. 311 was not applicable to the appellant since he was employed by a corporation and neither belonged to the civil service of the <ORG> nor held a civil post under the union. <ORG> dismissed the' appellant's petition. In appeal before this Court by certificate, the appellant contended that since <ORG> was entirely financed by the <ORG> and its management was directly the responsibility of the President, the post was virtually under the <ORG> of India. HELD : (i) The protection of Art. 311(2) is available to the categories of persons mentioned in cls.-(a)(b) and (c) of Art. 311(l). . The appellant did not fall in the categories mentioned in cls, (a) and (b). He did hold a civil post as opposed to a military post but cl. (c) further required that it must be under the <ORG> or a <ORG>. In view of the existence of shareholders, of capital raised by the issuance of shares, and the lack of connection between the finances of the corporation and the Consolidated Fund of the <ORG>, it must be held that <ORG> was not a department of the <ORG> nor were the servants of it holding posts under the <ORG>. It had its independent existence and by the law relating to corporations it was distinct even from its members. In these circumstances the appellant, as an employee of <ORG>, did not answer the description of a holder of 'a civil post under the <ORG>' as stated in Art. 31 1. <ORG> was therefore right in not affording him the protection of that Article. [367 D; 369 C-E] <ORG> of Bihar v. <ORG> of India, C.A. Nos. 512-513/69 dt. 19- <CITATION> . 612 1966 dt. 19-2-1969, applied. <CITATION> . A.I.R. 1957 Pat. 10, approved. <CITATION> . A.I.R. 1963 Cal. 421, <CITATION> , A.I.R. 1956 Pat. 398 <CITATION> , A.I.R. 1961 All. 503, <CITATION> , ILX C.W.N. 1023 and Tamlin v. Hannaford,  1 K.B.D. 18, referred to. 364 (ii)The contentions sought to be raised by the appellant regarding the validity of the departmental enquiry -against him were not touched upon in the High Court's judgment nor mentioned in the proposed grounds filed with the application for certificate. The appellant could not be allowed to urge them for the first time in this Court. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 524 of 1967. Appeal from the judgment and order dated July 19, 1966 of <ORG> in Misc. Petition No. 33 of 1965.

<NAME> and <NAME>, for the appellant. <NAME>, for the respondents.

<NAME>, <NAME> and <NAME>, for the intervener.

The Judgment of the Court was delivered by <NAME> The appellant, who appeals :by certificate granted by <ORG>, was appointed as Assistant Surgeon on probation, for one year by <ORG>, <ORG>,Ranchi with effect from October 22, 1959. After completing his period of probation he was employed on a contract for 5 years. Ex. P-3 is the Contract of Service which he entered into with the Company. Under the terms of the contract there. was a further period of probation. During the period of probation the Company could terminate his service without notice and without assigning any reason. On the completion of the period of probation, either side could terminate the contract by 3 months' notice without assigning any reason. The Company could also terminate the employment by 'giving in lieu of notice, three months' salary. This term was .applicable till three months immediately before the end of the period of 5 years. If a notice terminating the service was not ven three months before the close of the end of 5 years the contract was automatically extended till the incumbent became superannuated on reaching the age of 55 years. The appellant -passed the probation period and he was en- titled to three months' notice if his services were to be terminated. The Company maintains certain set, of Rules governing the employment of its workmen, in addition to the Standing. Orders of. the. Company. Ex. P-4 represents the procedure for imp sing major penalties - and for punishment and appeal. These are .extracts from the Disciplinary and Appeal Rules.

On September 17, 1964 the appellant. was on duty in <ORG>. He examined one Mrs. <NAME> I who complained of cold, headache and weakness. It appears that Mrs. <NAME> complained of some misbehaviour on the part of the appellant and her husband reported the matter to the Chief Medical Officer of <ORG> where the appellant was then posted. The Chief Medical Officer asked for the explanation of the appellant on September 21, 1964, but the appellant denied the allegation. Some enquiry was then held. The appellant in his appeal submits that he was not given a copy of the written complaint received from Mr. and Mrs. <NAME>. On October 5, 1964 some witnesses were examined in the presence of the appellant. Two days previously the statements of Mr. and Mrs. <NAME> were also recorded. The enquiry was being held by the Commercial Manager. The appellant then sent a notice to Mr. and Mrs. <NAME> charging them with defamation and actually filed a suit on November 17, 1964 demanding damages. On December 15, 1964 the General Manager ter- minated his services with effect from March 15, 1965, that is to say, after the expiry of three months' notice under the contract. It was stated in the order that the services were being terminated in terms of his employment. The appellant thereupon filed a petition under Art. 226 of the Constitution in <ORG> claiming inter-alia that his services were wrongly terminated without giving him the protection granted by Art. 311 of the Constitution. He also complained of breach of the principles of natural justice inasmuch as the enquiry was not proper. His contention was that although the action was ostensibly taken according to the terms of the contract of employment, he was really punished and he was entitled, therefore, to the protection of Art. 3 1 1 of the Constitution. The Company resisted the ground by saying that Art. 311 was not applicable to the appellant inasmuch as he was employed by a <ORG> and neither belonged to the civil service of the <ORG> nor held a civil post under the <ORG>. <ORG> in its judgment ruled that the protection of Art. 311 of the Constitution was not available in the case because the appellant was not entitled to it. It appears that this was the only point urged in <ORG>. In the appeal before us attempt was made to enlarge the case by arguing other points, namely, that the enquiry was not properly conducted, that the principles of natural justice were violated and that the appellant had no opportunity of defending himself. None of these points is- touched upon in <ORG> judgment and it appears that in <ORG> only the constitutional question was raised. Otherwise, one would expect <ORG> to have said something about it, or the appellant to have said so in the application for certificate or in the proposed grounds filed with that, application. We decline to allow these fresh grounds to be urged. The question that arises in this case is : whether the em- ployeesof a <ORG> such as <ORG>, are entitledto the protection of Art. 31 1 ? This question can only be answered in favour of the appellant if we hold that the appellant held a civil post under the <ORG>. It was conceded before us that the appellant could not be said to belong to the civil service of the <ORG> or the <ORG>. Art. 31 1 , on which this contention is based, reads as follows :

"31-1. Dismissal, removal or reduction in rank of persons employed in civil capacities under the <ORG> or a <ORG>. (1) No person who is a member of a civil service of the <ORG> or an all-India service or a civil service or a <ORG> or holds a civil post under the <ORG> or a <ORG> shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2)No such person as aforesaid shall be dismissed or

-removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action- proposed to be taken in regard to him;

Provided that this clause shall not apply-

(a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

(b)where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that some reasons, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.

(3)If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the <ORG> empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final."

Clause (2) of the article, which gives the protection opens with the words "no such person as aforesaid" and these words take one back to clause (1) which describes the person or persons to whom the protection is intended to go. Clause (1) speaks of (i) persons who are members of (a) <ORG>, or (b) <ORG> or (c) <ORG>, or (ii) hold a civil post under--the <ORG> or a <ORG>. (a), (b) and (c) refer to the standing services which have been created in the <ORG> and the <ORG>s and which are permanently maintained in strength. In addition to the standing services there are certain posts which are outside the permanent services. The last category in Art. 311(l) therefore speaks-of such posts on the civil side as opposed to the military side. Incumbents of such posts also receive protection.

In the present case the appellant did not belong to any of the permanent services. He held a post which was not borne on any of the standing services. It was, however,, a civil post as opposed to a military post. So far the appellant's case is clear but the clause speaks further that such posts must be under the <ORG> or a <ORG>. - The question thus is whether the servant employed here can be said to have held the post under the <ORG> or a <ORG> ? The appellant contends that since <ORG> is entirely financed by

-the <ORG> and its management is directly the responsibility of the President, the post is. virtually under the <ORG> of India.

This argument ignores some fundamental concepts in relation to incorporated companies. In support of the contention that the post must be regarded as one under the <ORG> the appeliant relies on some obiter observations of a single Judge in <CITATION> ( 1). In that case the petitioners were drivers working for <ORG> under <ORG>. The learned Judge considered the question by analysing the set up of <ORG>. He found that it was a <ORG> company and a private limited company, although it did not include in its name any notice Jr that it was a private company. He referred in detail to the various provisions in the Articles of Association as also in the Indian Companies Act which rendered the ordinary company law in applicable in certain respects and conferred unlimited powers. of management on the President of India and his nominees. He also found that <ORG> was entirely owned by the <ORG> of India. From this the learned Judge wished to infer that <ORG> was really a department of" the <ORG> but he did not express this opinion and decided

-the case on another point. The appellant contends that the conclusion which the learned single Judge did not draw in the Calcutta case is the conclusion to draw in this appeal. We must, according to him, hold that there is no difference between <ORG>-and <ORG> and that the service under <ORG> is a service under the <ORG>.

On the other hand, in <CITATION> and

-Anr.(1) <ORG> was not held to be a "State" for purposes of Art. 131. The question whether <ORG> was subject to the jurisdiction of <ORG> under Arts. 226 and 227 was left open. In dealing with the above -conclusion, reference was made to the incorporation of <ORG> as an independent company and thus a distinct entity. <CITATION> .(2) it was pointed out that a company in which 88 % of -,the capital was subscribed by the <ORG> and the State Governments could not be regarded as equivalent to Government because being registered under the Companies Act it had a separate legal existence and could not be said to be either a Government Corporation or an industry run by or under the authority of the <ORG> Government. Similar views were also expressed in <ORG>s. <CITATION> ('), the expression "civil post under the <ORG> or the-State" was held to mean that the civil post must be in the control of the State and that it must be open to the State to 'abolish the post or regulate the conditions of .service. Although the case concerned a Mali employed in Rai Bhavan, it was held that it was not a post under the State even -though the funds of the State were made available for paying, his salary. In a later case- <CITATION> .(')-the employees of <ORG> were held not entitled to the protection of Art. 31 1. Our brother <NAME> (then Chief Justice) noticed that the corporation was completely owned by the <ORG> Government; that the Directors were to be appointed by the President of India -who could also issue directions. He nevertheless held that in the eye of law the company was a separate entity and had a separate legal existence. In our judgment the decision in the -Patna case is correct. . It has also the support of a decision re-ported in <CITATION> (5) and another in <CITATION> ('). Our brother <NAME> relied (1)Civil Appeals Nos. 512-513 etc. of 1969 decide on 19.9.1969.

(2) Civil Appeal No. 612 of 1966 decided on February 19, 1969.

(3) A.I.R. 1956 Pat. 398.

(4) A.I.R. 1957 Pat. 10.

(5) A.I.R. 1961 All. 503.

(6) LX C.W.N. 1023.

in particular upon an English case <NAME> v. Hannaford(1). In that case it was held in relation to a business that although the minister was really incharge, the corporation was different from. the <ORG> and the services of the corporation were not civil services. Justice <NAME> of <ORG>, to. whose judgment we referred earlier distinguished the English, case by pointing out certain differences between the <ORG> in that case and <ORG>. He pointed out that (a)-in the English <ORG> no shareholders were required to, subscribe the capital or to have a. voice in the affair, (b) the capital was raised by borrowing and not by issuance of shares, (c) the loss fell upon the consolidated fund and (d) the corpo-ration was non-profit making. In our judgment these differences rather accentuate than diminish the applicability of the principle laid down in the English case to our case. The existence of shareholders, of capital raised by the issuance of shares, the lack of connection between the finances of the corporation and the consolidated fund of the <ORG> rather make out a greater independent existence than that of the corporation in the English case. We must, therefore, hold that the corporation which is <ORG> in this case is not a department of the <ORG> nor are the servants of it holding posts under the <ORG>. It has its independent existence and by law relating to <ORG>s it is distinct even from its members. In these circumstances, the appellant, who was an employee of <ORG>, does not answer the description of a holder of " a civil post under the <ORG>' as stated in the article. The appellant was not entitled to the protection of Art. 311. <ORG> was therefore right in not affording him the protection. The appeal fails and is dismissed but in the circumstances of the,case we make no order about costs.

G.C. Appeal dismissed.-, (1) [1950] 1 K.B.D. 18.