PETITIONER: HARBANS SINGH AND ANOTHER Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 16/10/1961 BENCH: <NAME>, K.C. DAS BENCH: <NAME>, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 439 1962 SCR Supl. (1) 104 CITATOR INFO : RF 1963 SC 200 (17) R 1965 SC 26 (19) R 1965 SC 257 (8) R 1970 SC1566 (5) F 1972 SC 622 (27,31) R 1973 SC 55 (19) R 1973 SC1204 (9) R 1973 SC2195 (8) F 1973 SC2622 (7) R 1974 SC 606 (8,9) R 1976 SC1994 (6) R 1985 SC 416 (13) ACT: Appeal against acquittal -interference by appellate court, when permissible-Dying declaration Corroboration, if necessary. HEADNOTE: <ORG> set aside <ORG> order of acquittal of the appellants and convicted them on a charge of murder under s. 302 of the Indian Penal Code. On appeal by the appellants by special leave ^ Held, that this <ORG> in its earlier decisions emphasised that interference with an order of acquittal should be based only on "complying and substantial reasons" and held that unless such reasons were present an Appeal <ORG> should not interface with an order of acquittal, but this <ORG> did not try to curtail the powers of the appe11ate court under s. 423 of the Code of Criminal Procedure. Though in its more recent pronouncements this <ORG> laid less emphasis on 105 "compelling reasons" the principle has remained the same. That principle is that in deciding appeals against acquittal the <ORG> of Appeal must examine the evidence with particular care and must also examine the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge was clearly unreasonable. Once the <ORG> came to the conclusion that the view of the lower court was unreasonable that itself was a "compelling reason" for interference. Once it was found that the High <ORG> applied the correct principles in setting aside the order of acquittal this <ORG> will not ordinarily interfere with the High <ORG>'s order of conviction in appeal against acquittal o enter into the evidence to ascertain whether the High <ORG> was right in its view of the evidence. Only such examination of the evidence would ordinarily be necessary as is needed to see that the High <ORG> approached the question properly and applied the principle correctly. If the judgment of the High <ORG> did not disclose a careful examination of the evidence in coming to the conclusion that the view of the acquitting court was unreasonable or if it appeared that the High <ORG> erred on questions of law or misread the evidence or the judgment of the trial court, this <ORG> would, unless the case was sent back to the High <ORG> for re-hearing, appraise the evidence for itself to examine the reasons on which the lower court based its order of acquittal and then decide whether the High <ORG>s view that the conditions of the lower court was unreasonable, was correct. If on such examination it appeared to the <ORG> that the view of the acquitting court was unreasonable the acquittal would be set aside and if on the other had it appeared that the view was not unreasonable the order of acquittal would be restored. <NAME> v. State,  S.C.R. 194, <CITATION>  S.C.R. 418, <CITATION> A.I.R. 1953 S.C. 459, <NAME> v. State of M. P., Cr. A. No. 178 of 59 and <NAME> v. State of Bombay, Cr. A. No. 38 of 1960, referred to. It was neither a rule of law nor of prudence that a dying declaration should be corroborated by other evidence before a conviction could be ba ed thereon. <NAME> v. state of M. P. A.l.R. 1953 S.C. 420, referred to. <NAME> v. State of Bombay, [l958] S.C.R. 552, followed. A dying declaration did not become less credible if a number of persons were names are culprits 106 <NAME>. v. Emperor,(1941) 43 Cr.L.J.59, held erroneous. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 115 of 1959.

Appeal by special leave from the judgment and order dated May 23, 1958, of <ORG> in Criminal Appeal No. 414 of 1957.

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

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

1961. October 16. The Judgment of the Court was delivered by <NAME>, J.-Six persons including the present appellants were tried by the Additional Sessions Judge Ferozpur on several charges in connection with the death by homicidal injuries of two brothers <NAME> and <NAME>. Of these six, <NAME> was the father of the other five accused persons. All the six accused persons were acquitted by the Additional Sessions Judge; on appeal by the State, <ORG> set aside the orders of acquittal in respect of <NAME> and Major <NAME> and convicted them under section 302 of the Indian Penal Code. The appeal was dissmissed in respect of the other four, viz., <NAME>, <NAME>, Bant <NAME> and Gian <NAME>. It is against this order of conviction that <NAME> and Major <NAME> have filed the present appeal after obtaining special leave from this Court.

The prosecution case is that at about 8 or 9 P.M. on July 23, 1956, shortly after <NAME> had returned home and complained to his father <NAME> about the conduct of <NAME> and <NAME> in abusing him. <NAME> ran out of his house on hearing some cries; but when he reached the Dharamshala not far from his house these two appellants, along with their father <NAME> and their brothers <NAME>, <NAME> and <NAME> fell upon him and caused numerous injuries with the weapons which they carried. <NAME>, it is said, struck <NAME> on the abdomen with a Sela in his hand. <NAME>'s brother <NAME> and his father <NAME> also had followed <NAME> when he ran out of the house. On seeing this attack on <NAME>, <NAME> tried to intervene, but he too was attacked and received several injuries. <NAME>, it is said, gave him a Sela thrust in the abdomen. <NAME> died on the spot; <NAME> was brought to the hospital at Gidderbha the following morning and received some treatment but he also died of his injuries the following day, that is, the 24th July.

All the accused pleaded not guilty, the defence being that they had been falsely implicated out of enmity.

To prove its Base the prosecution relied on the evidence of two persons, the deceased's father <NAME> and their uncle <NAME> and the dying declaration alleged to have been made by <NAME>, once in the village before <NAME>, the Sub-Inspector of Police who had come to the village that night in connection with some other investigation and for the second time at Gidderbha hospital before a Magistrate.

On a consideration of the evidence the Trial Judge came to the conclusion that the prosecution case had not been proved against any of the accused person. Being of opinion that the First Information Report had been recorded as late as 4- 30 P.M. On the 24th July he thought that "the complainant party was not able to day who the assailants were and the police was making time to find out the culprits after investigation and the First Information Report was delayed on that account." He was doubtful also about the truth of the Sub-Inspector's story that he actually reached the village of occurrence on that very night and consequently doubtful about any statement having been made by <NAME> to him on that night. In any case, he thought <NAME>'s dying declaration had little probative value because as many as six persons had been named and that it could not be relied upon without corroboration. The learned Judge was also not satisfied that <NAME> (Prosecution Witness) "was present in the village or at his house at the time of the occurrence" since "his statement was not recorded in the Inquest Report prepared by the police at midnight". The learned Judge also thought it unsatisfactory that nobody other than these two near relatives, that is, the father and uncle of the deceased persons had been examined as witnesses of the occurrence. These were the main reasons for which he came to the conclusion that the case had not been proved against any of the accused beyond reasonable doubt and accordingly acquitted the accused <ORG> was of opinion that the learned Judge was wholly "wrong in holding that <NAME> was not mentioned in the Inquest Report"; that he had misread the time of the first Information Report as 4-30 P. M. for 4-30 A. M. and that he was again in error in concluding that "the statement made by <NAME> to the police on their arrival at 1-15 A.M. was inadmissible". After pointing out these "errors" in the reasoning of the learned Trial Judge <ORG> said:-

"We have no hesitation in concluding that for the said reasons the judgment of the learned Additional Sessions Judge is wholly erroneous resulting in complete miscarriage of justice.

After having gone through the testimony of both of the eye-witnesses and examining the other material, particularly the two dying declarations, we are of the view that the projection case was substantially true and have been proved.

As regards complicity of <NAME> and Major <NAME>, there appears to be no doubt. Both of them had been assigned participation and were responsible for the fatal blow on each of the deceased. In this respect the testimony of both of the witnesses and the dying declarations are consistent. They were accordingly held guilty under section 302 , Indian Penal code."

The main contention raised by Mr. <NAME> on behalf of the appellants is that <ORG> had no sufficient reasons for interfering with the order of acquittal made by the Additional Sessions Judge and that <ORG> itself had been guilty of "errors", especially as <ORG> has misread the judgment of the learned Additional Sessions Judge and had attributed to him statements which are not to be found in his judgment.

The question as regards the correct principles to be applied by a <ORG> hearing an appeal against acquittal of a person has engaged the attention of this <ORG> from the very beginning. In many cases, especially the earlier ones, the <ORG> has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal court should not interfere with an order of acquittal. (Vide <NAME> v. The State (1); <CITATION> (2); <CITATION> (3). The use of the words "compelling reasons" embarrassed some of the High <ORG>s in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this <ORG> had meant by the (1)  S. C. R. 194. (2)  S. C. R.

3)A.l.R. (1953) S. C. 459.

words "compelling reasons". In later years the <ORG> has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a <ORG> must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (<NAME> v. The State of Madhya Pradesh (1); <NAME> v. The State of Bombay (2), It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the <ORG> did not in any way try to curtail the power bestowed on appellate courts under s 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the facts that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the <ORG> was anxious to impress can the appellate courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this <ORG> on "compelling reasons". But, on close analysis, it iq clear that the principles laid down by the court ill this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the <ORG> of Appeal must examine (1) Criminal Appeal No. 178 of 1959 decided on l8-11-60.

(2) Criminal Appeal No. 38 of 1960 decided on 14-12-60.

the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.

When <ORG> judgment shows clearly that the matter has been approached in the proper manner and the correct principles have been applied, there is very little scope for this <ORG> to interfere with an order made by <ORG> convicting an accused person in an appeal against acquittal. Once it is found that the principles laid down by this <ORG> have been correctly applied this <ORG> will not ordinarily embark upon a reappraisal of the evidence to ascertain whether <ORG> was right in its view of the evidence. The only examination of the evidence that this <ORG> may find itself called upon to undertake will ordinarily be just so much as is necessary to see whether <ORG> has approached the question properly and applied the principles correctly.

The position may however be different if the judgment of <ORG> while indicating its conclusion that in its opinion the view taken by the lower court is unreasonable does not disclose a careful examination of the evidence for coming to such conclusion. Or it may appear from <ORG>'s judgment that <ORG> has erred on questions of law or has obviously misread the evidence on the record or the judgment of <ORG>. What is this <ORG> to do in such cases ? We are unable to agree with Mr. <NAME> that the only proper course for this court to take is to set aside the order made by <ORG> and restore the order of acquittal. For, even where <ORG>'s judgment suffers from any of these defects it may very well be that <ORG>'s conclusion that the view of the lower court is unreasonable is correct. So, unless this <ORG> thinks fit to send the case back to <ORG> for re-hearing of the appeal and its disposal in accordance with law, it becomes the duty of this <ORG> in cases like these which fortunately are likely to be few in number-to appraise the evidence for itself, to examine the reasons on which the lower court based the order of acquittal and then decide whether <ORG>'s conclusion that the view taken by the lower <ORG> on the question of the guilt of the accused is clearly unreasonable, is correct. If satisfied that the view was clearly unreasonable, this <ORG> is bound to dismiss the appeal and to maintain the order of conviction made by <ORG>; if on the contrary, this <ORG> is not satisfied on such examination that the conclusion reached by the lower court that the guilt of the accused has not been proved was clearly unreasonable, the order of acquittal would be restored.

The judjment of <ORG> in the present case does not contain much discussion of the evidence in the case. All the discussion of the eviddnce is confined to the few sentences which we have quoted earlier in this judgment. We also notice that the learned judges of <ORG> were under some misapprehension in thinking that the Additional Sessions Judge had held that <NAME> was not mentioned as a witness in the Inquest Report. What the Additional Sessions Judge had pointed out was that <NAME>'s statement had not been recorded in the Inquest Report. The Additional Sessions Judge was certainly right in this. While <ORG> might have well thought that no doubt against the credibility of <NAME> should be based on this fact that his statement was not recorded, <ORG> was not justified in attributing to the Trial Judge something which he did not say.

It is also not quite clear how the learned Judge said about the appellant Major <NAME> that he had been assigned participation and was responsible for the fatal blow on each of the deceased. In fact, neither of the two who claim to be the eye-witnesses of the occurrence has said that Major <NAME> dealt a fatal blow on either Hazura <NAME> or Munshi <NAME>. While it is true that a general statement is made by both the witnesses as regards all the six accused having attacked both Munshi <NAME> and Hazura <NAME> neither of them has spoken of any particular injury having been caused by Major <NAME>. Hazura <NAME> himself in his dying declaration did say that Major <NAME> gave him a Sela blow on his left wrist but does not speak of any other injury having been caused by Major <NAME> either to him or to Munshi <NAME> except that he also said generally that all the accused gave blows on the person of Munshi <NAME>. <ORG> has therefore clearly misdirected itself in thinking that Major <NAME> was responsible for any of the fatal injuries.

In view of all this we consider it necessary to examine the judgment of <ORG> and also the evidence on record ourselves for a proper decision of this appeal.

Turning to the judgment of <ORG> we find that the main circumstance which weighed with him for doubting the truth of the prosecution story is what he considered the considerable delay in recording the First Information Report. From the printed record before us we find that <NAME> Head Constable, who actually entered the formal First Information Report, stated in his evidence that he made the entry at "4.30 P.M." on the 24th July 1956. It is apparently this fact taken with the fact that the report did not reach the Magistrate <NAME> before 8.45 P.M. on the 24th July that made the learned Judge think that the First Information was made at the Police Station at 4.30 P.M. He has unfortunately not noticed that the record of the First Information Report Ex. PP1 shows the time of record as 4.30 A.M. He also overlooked <NAME>'s own evidence in cross-examination in these words: "I have perused the <NAME> entries and find that this special report was despatched by me through <NAME> Foot Constable at 5.15 A.M. I cannot say why he did not deliver it to the Magistrate till 8.45 P.M." It is quite clear that 5.15 A.M. as recorded in the printed record in <NAME> cross- examination is not a mistake for 5.15 P.M. If that had been so there would have been no point in his saying that he could not say why the Constable did not deliver it to the Magistrate till 8.45 P.M. when this statement in cross-examination is considered along with the recording of the time in Ex. PP1 itself there is no escape from the conclusion that 4.30 P.M. as stated in <NAME> Examination-in-Chief was a slip of tongue and the correct time of the record was 4.30 A.M. and that the fact that it reached the Magistrate at 8.45 P.M. that day may well be due to the fact that the Constable was negligent and took his own time about going to the Magistrate or to some other reason not clear from the record. The reasoning of the Trial Judge based on his wrong view about the time of recording of the formal First Information Report that the complainant party was not able to say who the assailants were and so delay was made, therefore falls to the ground.

The learned Judge has also misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused persons had been named and that no conviction could in law be based on such dying declaration without corroboration. The law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye-witness in his evidence in court the court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration that court has to scrutinise the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits. The contrary view taken in <ORG> in <NAME> v. Emperor (1) on which apparently the Trial Judge has relied is clearly erroneous.

The learned Judge appears to have relied also on what was said by this <ORG> in <CITATION> (2) on the need of corroboration for a dying declaration. Speaking for the <ORG> <NAME> (as he then was) observed in that case:-

"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration."

The question was however considered again by this <ORG> in <CITATION> (3). After pointing out that in <NAME> Case (Supra) the <ORG> after a careful examination of the facts of that case distinctly came to the conclusion that the dying declaration was not true and could not be relied upon this <ORG> stated in the later case that the observations of the <ORG> in <NAME> case were in the nature of obiter dicta. The <ORG> then proceeded to review the relevant provisions of the Evidence Act and of the decided cases in the different High <ORG>s in India and in this <ORG> and stated the law in these words:-

"that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general position that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as anotherpiece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the <ORG> has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. "Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the <ORG>, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from other infirmities as may be disclosed in evidence in that case."

In view of this latest pronouncement of this <ORG>-which it should be stated in fairness to the Trial Judge was made long after he gave his judgment-it must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declarations which do not arise in the case of assessing the value of a statement made in <ORG> by a person claiming to be witness of the occurrence. In the first place, the <ORG> has to make sure as to what the statement of the dead man actually was. This itself is often a difficult task, specially where the statement had not been put into writing. In the second place, the court has to be certain about the identity of the persons named in the dying declaration-a difficulty which does not arise where a person gives his depositions is <ORG> and identifies the person who is present in court as the person whom he has named. Other special considerations which arise in assessing the value of dying declarations have been mentioned by this <ORG> in <CITATION> (1) and need not be repeated here.

In view of this latest pronouncement of this <ORG> on the question of need of corroboration of a dying declaration by other evidence, it must be held that the Trial Judge was wrong in thinking that he could not act on the dying declaration of <NAME> unless it was corroborated by other evidence.

In view of the several defects in the reasoning of the Trial Judge, it is necessary for us to examine the evidence on the record to see whether <ORG> was right in thinking that the view taken by the learned Judge was clearly unreasonable. The most important evidence in the case is furnished by the dying declaration made by <NAME>. The Investigating Officer, <NAME> has said that on July 22, 1956 he had gone to the village Rikala on an excise raid and from there he went to Mallan at about 2 P.M. on July 23, to investigate a case under section 392 of the Indian Penal Code. His further evidence is that it was on the same night at about midnight that he started for Dhurkot from Mallan. We see no reason to doubt the truth of his statement that he did reach Dhurkot shortly after midnight of the 23rd July and that when on hearing that a murder had taken place near the Dharamshala he came to the Dharamshala. <NAME> who was lying injured on a cot there made a statement to him, he recorded the statement correctly. That statement has been marked Ex. PP. The substance of this statement is that at about 9 P.M. on the night of the occurrence his brother <NAME> came and complained about the conduct of <NAME>, <NAME> and other sons of <NAME> and that shortly after this on hearing shouts of <NAME> and others near the Lharamshala, <NAME> went towards that place followed by <NAME> and his father <NAME> and that when they reached the place they found <NAME> and the other accused persons all armed with weapons raising uproar and when <NAME> reached the place and returned the abuse <NAME> gave the first blow to <NAME> with a Sela in his hand hitting him on the front of the chest after which others of the party also gave blows and when <NAME> stepped forward to rescue his brother, <NAME> gave him a blow with a Sela in his hand which hit him on the abdomen and the other accused also gave him blows. The blow given by Major <NAME> hit him on his left wrist.

It is clear that this statement was made by <NAME> shortly after midnight i.e., within about four hours after the occurrence. It has to be remembered that <NAME> had one single serious injury viz., the penetrating wound on his abdomen. We are satisfied from the evidence of the witnesses that there was sufficient moonlight that to enable <NAME> to recognize clearly the assailant who struck the blow which caused this injury. He could have therefore made no mistake about the indentity of his assailant. Nor is it likely that he would within a few hours of the occurrence ascribe this fatal blow on him to somebody other than the real assailant. The several injuries on <NAME> and the numerous injuries on <NAME> justify the conclusion that there was more than one assailant in the attacking party. Whether or not <NAME> could have made a mistake about the identity of the other assailants or could have implicated some of them at least falsely, it will be unreasonable to think that he would substitute another person for the one assailant who gave him the fatal blow. On a consideration of these circumstances we are therefore satisfied that it would be unreasonable to doubt or disbelieve the truth of <NAME>'s statement when he said that <NAME> struck him with the Sela in his hand which hit him on the abdomen. Even if there was no other evidence on the records as regards the part taken by the appellant <NAME> this dying declaration of <NAME> is so clearly true that the only reasonable view for a judge of facts to take is that <NAME> caused the death of <NAME> by striking him with a Sela.

As has already been noticed <NAME> in this statement mentioned <NAME> as the person who gave the first blow to <NAME>, the blow which caused one of the injuries on his chest. We can think of no reason why this main part should be ascribed falsely to <NAME>; we think, considering the circumstances in which the statement was made, that this part of <NAME>'s statement is also clearly the truth and could reasonably be accepted even without any corroboration.

A second statement of <NAME> was recorded at the Hospital where he was removed. This statement appears to have been recorded at about midnight of the 24th July. In this statement also he mentioned <NAME> and the other accused persons as having taken part in the attack. It appears that when this statement was made <NAME>'s condition was very bad. Indeed, after he had made a part of the statement the Magistrate recorded that he had started giving indifferent answers and asked the Doctor to give him the necessary treatment. After the treatment was given the statement was concluded. We would not attach much weight to this statement on the 24th July. But, it will be noticed that there is nothing in this latter statement which detracts from the truth of the earlier statement made shortly after the occurrence to the police sub- Inspector.

There is apart from this the testimony in Court of <NAME> the father of the two deceased persons and his uncle <NAME>. As regards <NAME> the learned Trial Judge has pointed out that <NAME>'s statement was not recorded by the sub-Inspector in the Inquest Report. While there is nothing in law which requires the statement of witnesses to be recorded in the Inquest Report, it appears to be a common practice in Punjab for police officers to record statements of witnesses in Inquest Reports. In the present case the Sub- Inspector appears to have recorded a fairly full statement of <NAME> as also short statements of <NAME>, <NAME> and <NAME> in the Inquest Report itself. It is somewhat curious therefore that the Sub-Inspector did not record the statement of <NAME> also in this report even though it is found that <NAME> was named as a witness of the occurrence in <NAME> dying declaration itself. It is also difficult to understand <NAME>'s statement that he left the place as soon as some neighbours came up after the occurrence and did not go back to the spot till he was called by the police. He has offered no explanation for this rather unusual conduct. In view of all this, we are not prepared to say that tho Trial Judge acted unreasonably in doubting his testimony.

We are unable however to discover any valid reason for doubting the presence of <NAME> at the place of occurrence. It seems to us that the main reason for the Trial Judge to doubt the truth of <NAME>'s evidence was what he considered the great delay in lodging the formal First Information Report. That reason, as we have already pointed out, does not exist.

On an examination, it seems to us quite likely that <NAME> also accompanied <NAME> when the latter followed <NAME> towards the Dharmashala and it also seems to us improbable that he would give the main part in the assault falsely to <NAME> if somebody else was responsible for the blow which caused <NAME>'s death. In our view the learned Trial Judge acted unreasonably in doubting the truth of <NAME>'s evidence against <NAME>.

On a consideration of the evidence we are therefore satisfied that the conclusion reached by <ORG> that the view taken by <ORG> as regards <NAME> guilt Was clearly unreasonable is correct and that the only reasonable view on the evidence can be that <NAME> committed murder by causing the death of <NAME> and also committed murder by causing the death of <NAME>.

The position is however different as regards Major <NAME>. As has already been pointed out <ORG> is wrong in thinking that the evidence Shows that Major <NAME> gave any of the fatal blows. Hazura <NAME> in his first dying declaration mentioned Major <NAME> as having given a below on him on his left wrist. Apart from Bhag <NAME> only Hira <NAME> has ascribed any specific part to Major <NAME> in addition to saying generally that he took part in the attack. The evidence therefore leaves scope for thinking that Hazura <NAME> has made a mistake about Major <NAME> or has wrongly implicated him. We are not therefore prepared to say that the view taken by the Trial Judge as regards Major <NAME> is clearly unreasonable.

We therefore allow the appeal of Major <NAME> set aside the order of conviction and sentence made against him by <ORG> and restore the order of acquittal made by <ORG>. The appeal of Harbans <NAME> is dismissed. Major <NAME> should be set at liberty at once.

Appeal of appellant 2 allowed.

Appeal of appellant 1 dismissed.


PETITIONER: MOHAN LAL Vs. RESPONDENT: MANAGEMENT OF <ORG>. DATE OF JUDGMENT21/04/1981 BENCH: DESAI, D.A. BENCH: DESAI, D.A. GUPTA, A.C. CITATION: 1981 AIR 1253 1981 SCR (3) 518 1981 SCC (3) 225 1981 SCALE (1)872 CITATOR INFO : R 1982 SC 854 (5,6) RF 1983 SC1320 (11) RF 1984 SC 500 (2) F 1984 SC 502 (2) RF 1986 SC 458 (3) RF 1986 SC1680 (4) ACT: Retrenchment-Section 2(oo) of the Industrial Dispute Act-Whether termination of the services of a workman who has put in 240 working days within a period of one year amounts to retrenchment and whether for non-compliance with the provisions of section 25F the termination of service is ab initio void-Sections 25A and 25B, scope of-Effect of termination of service which is ab initio void and inoperative, explained. HEADNOTE: The appellant was employed with the respondent as Salesman at its <ORG> on a salary of Rs. 520/- per month from 8th December, 1973. His service was abruptly terminated by letter dated 12th October, 1974 with effect from 19th October, 1974. Consequent upon his termination, an industrial dispute was raised and referred to <ORG>, Delhi, on 24th April, 1976. <ORG>, on evaluation of evidence both oral and documentary, held that the termination of the service was in accordance with the standing orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation and, therefore, the termination would not constitute retrenchment within the meaning of section 2(oo) read with section 25F of the Industrial Dispute Act. <ORG> accordingly held that the termination was neither illegal nor improper nor unjustified and the claim of the appellant was negatived. Hence the appeal by special leave. Allowing the appeal, the <ORG> ^ HELD: 1. The termination of service of the appellant was ab initio void and inoperative. His case not being covered by any of the excepted or excluded categories referred to under section 2(oo) and he has rendered continuous service for one year, the termination of his service would constitute retrenchment. The pre-condition for a valid retrenchment has not been satisfied in this case and therefore he will be entitled to all benefits including back wages etc. (534F G, 535-C-D) 2. Where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workmen concerned continues to be in service with all consequential benefits. It is no doubt true that the Supreme <ORG> had held that before granting reinstatement the court must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. 519 Here, no case has been made out for departure from the normally accepted approach of the courts in the field of social justice. (535A <CITATION> .), (1970) 2 Labour Law Journal, 63 and <CITATION> ,  3 S.C.R. 343, referred to. 3:1. Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever in section 2(oo) of the Industrial Dispute Act, would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued illhealth. (524 E-F) 3:2. It was not open to <ORG> to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings when there was not even a whisper of any period of probation in the appointment order or in the rules. The termination of service being, for a reason other than the excepted category, it would indisputably be retrenchment within the meaning of section 2(oo) of the Industrial Dispute Act.(523 G-H, 524A, 525Z) <CITATION> ,  S.C.R. 172; <NAME> v, A. D. Divikar,  S.C.R. 121; <CITATION> .  2 S.C.R. 866 at 872; <CITATION> ,  3 S.C.R. 160; <CITATION> <ORG>, Orissa and Ors.,  S.C.R. 586; <CITATION> ,  3 S.C.R. 340 and <CITATION> ,  1 S.C.R. 591, explained and followed. 4. Before a workman can complain of retrenchment being not in consonance with section 25F of the Industrial Dispute Act, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. (529 C) 5:1. The language employed in sub-sections (1) and (2) of section 25B does not admit of any dichotomy, namely, (a) sub-section (1) providing for uninterrupted service and (b) sub-section (2) comprehending a case where the workman is in continuous service. Sub-sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V-A. (530 G H) 5:2. Sub-section (1) provides deeming fiction in that where a workman is in service for a certain period for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the 520 part of the workman. Sub-section (1) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter V-A be deemed to be continuous service. (530H, 531A, C-D) 5:3. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It is not necessary for the purposes of sub-section (2) (a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub- section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2). Sub- section (2) envisages a situation not governed by sub- section (1). And sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just proceeding the relevant date being date of retrenchment. (531D-E. 532A-B) Both on principle and on precedent section 25B(2) comprehends the situation where workman is not in employment for a period of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date that is the date of retrenchment, if he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter V-A. In the instant case, the appellant's case indisputably falls within section 25 B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter V-A. (534B- <CITATION> ,  3 S.C.R. 616. explained and distinguished. <CITATION> <ORG>, New Delhi and Another,  1 S.C.R. 789 followed. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 364 of 1981.

Appeal by special leave from the Award dated the 31st May, 1980 of <ORG>, Delhi in Industrial I.D. No. 62 of 1976.

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

<NAME> for the Respondent.

The Judgment of the Court was delivered by <ORG>, J. The appellant <NAME> was employed with the respondent M/s Bharat Electronics Limited as Salesman at its Delhi Sales Depot on a salary of Rs. 520 per month from 8th December, 1973. His service was abruptly terminated by letter dated 12th October 1974 with effect from 19th October, 1974. Consequent upon this termination, an industrial dispute was raised and <ORG>, by its order dated 24th April, 1976 referred the following dispute to <ORG>, Delhi for adjudication:

"Whether the termination of services of <NAME> is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

As the respondent management at one stage failed to participate in the proceedings, the reference was heard ex- parte and <ORG> made an award on 2nd May, 1977 directing reinstatement of the appellant with continuity of service and full back wages at the rate of Rs. 520 per month from the date of termination till reinstatement. Subsequently, respondent moved for setting aside the ex- parte award and seeking permission to participate in the proceedings, which motion was granted. The respondent inter alia contended that the appellant was a salesman appointed on probation for six months and subsequently on the expiry of the initial period, the period of probation was extended upto 8th Sept., 1974 and on the expiry of this extended period of probation, his service was terminated by letter dated 12th October, 1974, as he was not found suitable for the post to which he was appointed.

<ORG>, on evaluation of evidence both oral and documentary, held that the termination of the service was in accordance with the standing orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation; and therefore the termination in this case, according to <ORG>, would not constitute retrenchment within the meaning of section 2(oo) read with section 25F of the Industrial Dispute Act. Accordingly it was held that the termination was neither illegal nor improper nor unjustified and the claim of the appellant was negatived. Hence, this appeal by special leave.

The only point for determination is whether even in the circumstances, as pleaded by the respondent termination of service of the appellant would amount to retrenchment within the meaning of the expression as defined in section 2(oo) of the Industrial Dispute Act, 1947 (`Act' for short)? If the answer is in affirmative, the consequential question will have to be answered whether in view of the admitted position that the mandatory pre-condition prescribed by section 25F for a valid retrenchment having not been satisfied, the appellant would be entitled to reinstatement with back wages or as contended by Mr. <NAME> in the special facts of this case, the <ORG> should not direct reinstatement but award compensation in lieu of reinstatement.

An apparent contradiction which stares in the eye on the stand taken by the respondent is overlooked by <ORG> which has resulted in the miscarriage of justice. In this context the facts as alleged by the respondent may be taken as true. Says the respondent, that the appellant was appointed by order dated July 21, 1973. The relevant portion of the order of which notice may be taken is paragraph 2. It reads as under:

"This appointment will be temporary in the first instance but is likely to be made permanent." Paragraph 4 refers to the consequences of a temporary appointment, namely, that the service would be terminable without notice and without any compensation in lieu of notice on either side. Paragraph 6 provides that the employment of the appellant shall be governed by rules, regulations and standing orders of the company then in force and which may be amended, altered or extended from time to time and the acceptance of the offer carries with it the necessary agreement to obey all such rules, regulations and standing orders. There is not even a whisper of any period of probation prescribed for the appointment nor any suggestion that there are some rules which govern appointment of the appellant which would initially be on probation. Thus, the appointment was temporary in the first instance and there was an inner indication that it was likely to be made permanent. Even if this promise of likely to be made permanent is ignored, indubitably the appointment was temporary. The respondent, however, says that note 3 at the foot of the appointment order intimates to the appellant that in the event of his permanent appointment the temporary service put in by him will be counted as part of probationary period of service as required under the rules. This consequence would follow in the event of permanent appointment being offered and this is clear from the language employed in note 3. In this case no permanent appointment having been offered, the consequence set out in note 3 could not have emerged. Assuming, however, that this note incorporates all the necessary rules and regulations in the contract of employment, it was incumbent upon the respondent to show that even when appointment is not shown to be on probation in the order of appointment, in view of the rules governing the contract of employment there shall always be a period of probation for every appointee. Witness <NAME> who appeared on behalf of the respondent stated in his evidence that the appellant was appointed as a probationary salesman. Even according to him prescribed period of probation was six months. He then stated that by the letter dated July 10, 1974, respondent informed the appellant that his service should have been terminated on the expiry of initial period of probation, i.e. on June 8, 1974. However, as a special case the probation period was extended upto September 8, 1974. No rule was pointed out to us enabling the respondent to extend the initial period of probation. Assuming even then that such was the power of the respondent, on September 9, 1974, the period of probation having not been further extended nor termination of service having been ordered during or at the end of the probationary period on the ground of unsuitability, the consequence in law is that either he would be a temporary employee or a permanent employee as per the rules governing the contract of employment between the appellant and the respondent. Admittedly his service was terminated by letter dated October 12, 1974, with effect from October 19, 1974. It is not the case of the respondent that there was any further extension of the probationary period. Thus, if the initial appointment which was described as temporary is treated on probation, even according to the respondent the period of probation was six months, it expired on June 8, 1974. Even if by the letter dated July 10, 1974, the period of probation was said to have been extended, on its own terms it expired on September 8, 1974. The service of the appellant was terminated with effect from October 19, 1974. What was the nature and character of service of the appellant from September 8, 1974 when the extended period of probation expired and termination of his service on October 19, 1974? He was unquestionably not on probation. He was either temporary or permanent but not a probationer. How is it open then to <ORG> to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings? <ORG> concluded that notwithstanding the fact that the appellant was not shown to have been placed on probation in the initial appointment letter but in view of the subsequent orders there was a period of probation prescribed for the appellant and that his service was terminated during the extended period of probation. This is gross error apparent on the face of the record which, if not interfered with, would result in miscarriage of justice.

If on October 19,1974, the appellant was not on probation and assuming maximum in favour of the respondent that he was a temporary employee, could termination of his service. even according to the respondent, not as and by way of punishment but a discharge of a temporary servant, constitute retrenchment within the meaning of section 2(oo) , is the core question. Section 2(oo) reads as under:

"2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

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

(c) termination of the service of a workman on the ground of continued ill-health."

Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill- health. It is not the case of the respondent that termination in the instant case was a punishment inflicted by way of disciplinary action. If such a position were adopted, the termination would be ab initio void for violation of principle of natural justice or for not following the procedure prescribed for imposing punishment. It is not even suggested that this was a case of voluntary retirement or retirement on reaching the age of superannuation or absence on account of continued ill- health. The case does not fall under any of the excepted categories. There is thus termination of service for a reason other than the excepted category. It would indisputably be retrenchment within the meaning of the word as defined in the Act. It is not necessary to dilate on the point nor to refer to the earlier decisions of this Court in view of the later two pronouncements of this Court to both of which one of us was a party. A passing reference to the earliest judgment which was the sheet anchor till the later pronouncements may not be out of place. <CITATION> , after referring to <CITATION> , a Constitution Bench of this Court quoted with approval the following passage from the aforementioned case:

"But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment."

This observation was made in the context of the closure of an undertaking and being conscious of this position, the question of the correct interpretation of the definition of the expression `retrenchment' in section 2(oo) of the Act was left open. Reverting to that question, the view was reaffirmed but let it be remembered that the two appeals which were heard together in <ORG>'s case were cases of closure, one <ORG>, and <ORG> Baroda With specific reference to those cases, in <CITATION> . speaking for a three judges bench, interpreted the expression `termination..for any reason whatsoever' as under:

"A break-down of s. 2(oo) unmistakably expands the semantics of retrenchment. `Termination...for any reason whatsoever' are the key words. Whatever the reason, every termination spells retrenchment. So, the sole question is- has the employee's service been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term. To pro-

<NAME>

tect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of section 25F and section 2(oo) . Without speculating on possibilities, we may agree that `retrenchment' is no longer terra incognita but area covered by an expansive definition. It means `to end, conclude, cease'. In the present case the employment ceased, concluded, ended on the expiration of nine days-automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from section 25F(b) is inferable from the proviso to section 25F(1) . True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient."

It would be advantageous to refer to the facts of that case to appreciate the interpretation placed by this Court on the relevant section. <ORG> appointed the respondent by an order of appointment which incorporated the two relevant terms relied upon by the <ORG> at the hearing of the case. They were: (i) the appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the <ORG>'s discretion; (ii) the employment, unless terminated earlier, will automatically cease at the expiry of the period i.e. 18.11.1972. It is in the context of these facts that the Court held that where the termination was to be automatically effective by a certain date as set out in the order of appointment it would nonetheless be a retrenchment within the meaning section 2(oo) and in the absence of strict compliance with the requirements of section 25F , termination was held to be invalid.

Continuing this line of approach, in <ORG>, Orissa and <ORG>., a bench of three judges examined the specific contention that the decision in <ORG> case runs counter to the construction placed on that section by a <ORG> and, therefore, the decision is per incuriam. This Court analysed in detail <ORG>'s case and <ORG> case and ultimately held that the Court did not find anything in <ORG>'s case which is inconsistent with what has been held in <ORG> case. In reaching this conclusion it was observed that in <ORG>'s case the question arose in the context of closure of the whole of the undertaking while in <ORG> case and <ORG> case the question was not examined in the context of closure of whole undertaking but individual termination of service of some employees and it was held to constitute retrenchment within the meaning of the expression. This question again cropped up in <CITATION> . Rejecting the contention for reconsideration of <ORG> case on the ground that it conflicted with a <ORG> decision in <ORG>'s case and adopting the ratio in <ORG> case that there was nothing in the two aforementioned decisions which is inconsistent with each other and taking note of the decision in <CITATION> wherein this Court had held that striking off the name of a workman from the rolls by the management was termination of service which was retrenchment within the meaning of section 2(oo) , the Court held that discharge of the workman on the ground that she had not passed the test which would enable her to obtain confirmation was retrenchment within the meaning of section 2(oo) and, therefore, the requirements of section 25F had to be complied with. It was pointed out that since the decision in <ORG>'s case, the <ORG> stepped in and introduced section 25FF and section 25FFF by providing that compensation shall be payable to workman in case of transfer or closure of the undertaking, as if the workmen had been retrenched. The effect of the amendment was noticed as that every case of termination of service by act of employer even if such termination was as a consequence of transfer or closure of the undertaking was to be treated as `retrenchment' for the purposes of notice, compensation, etc. The Court concluded as under:

"Whatever doubts might have existed before <ORG> enacted sections 25FF and 25FFF about the width of section 25F there cannot be any doubt that the expression `termination of service for any reason whatsoever' now covers every kind of termination of service except those not expressly provided for by other provisions of the Act such as sections 25FF and 25FFF ."

Reverting to the facts of this case, termination of service of the appellant does not fall within any of the excepted, or to be precise, excluded categories. Undoubtedly therefore the termination would constitute retrenchment and by a catena of decisions it is well settled that where pre- requisite for valid retrenchment as laid down in section 25F has not been complied with, retrenchment bringing about termination of service is ab initio void. <CITATION> ., this Court held that failure to comply with the requirement of section 25F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative. In other words, it does not bring about a cessation of service of the workman and the workman continues to be in service. This was not even seriously controverted before us.

It was, however, urged that section 25F is not attracted in this case for an entirely different reason. Mr. <NAME> contended that before section 25F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by section 25F . That is substantially correct because the relevant provision of section 25F provides as under:

"25F. "No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent of fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate government by notification in the Official Gazette)."

Before a workman can complain of retrenchment being not in consonance with section 25F , he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. Section 25B is the dictionary clause for the expression `continuous'. It reads as under;

"25B (1) a workman shall be paid to be in continuous service for a period if he is, for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than-

(i) ninety-five days, in the case of a workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case.

Explanation- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act , 1946, or under this Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii)he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.

Mr. <NAME> contended that clauses (I) and (2) of section 25B provide for two different contingencies and that none of the clauses is satisfied by the appellant. He contended that sub-section (I) provides for uninterrupted service and sub-section (2) comprehends a case where the workman is not in continuous service. The language employed in sub-sections (1) and (2) does not admit of this dichotomy. Sub-sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter VA. Sub-section (1) provides a deeming fiction in that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike not illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. In industrial employment or for that matter in any service, sickness, authorised leave, an accident, a strike which is not illegal, a lockout and a cessation of work not due to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Sub- section (I) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter VA be deemed to be continuous service. That is only one part of the fiction.

Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-section (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub-section (2)

(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2). Sub-section (2) envisages a situation not governed by sub-section (1). And sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub- section 2(a) it is necessary to determine first the relevant date, i.e., the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub- section 2(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in section 25F . On a pure grammatical construction the contention that even for invoking sub-section (2) of section 25B the workman must be shown to be in continuous service for a period of one year would render sub-section (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumption. The contention must first be negatived on a pure grammatical construction of sub-section (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render sub-section (2) otiose. The language of sub- section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. <NAME> referred to some authorities, we will briefly notice them.

<CITATION> , referring to section 25B as it then stood read with section 2(eee) which defined continuous service, this Court held as under:

"The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of section 25B . Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days."

If section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, section 25B and section 2(eee) have been the subject-matter of amendment by the Industrial Disputes (Amendment) Act , 1964. Section 2(eee) was deleted and section 25B was amended. Prior to its amendment by the 1964 amendment Act, section 25B read as under:

"For the purposes of ss. 25C and 25F a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry."

We have already extracted section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in <ORG>, New Delhi and <ORG>., <NAME>, after noticing the amendment and referring to the decision in <ORG> case, held as under:

"These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year."

In a concurring judgment <NAME> agreed with this interpretation of section 25B(2) . Therefore, both on principle and on precedent it must be held that section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter VA.

Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter VA.

Appellant has thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any of the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As pre-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.

The last submission was that looking to the record of the appellant this <ORG> should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this <ORG> such as <CITATION> .), and <CITATION> it was held that the <ORG> before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the <ORG>s in the field of social justice and we do not propose to depart in the case.

Accordingly, this appeal is allowed and the Award of <ORG> dated May 31, 1980, is set aside. We hold that the termination of service of the appellant was ab initio void and inoperative and a declaration is made that he continues to be in service with all consequential benefits, namely, back wages in full and other benefits, if any. However, as the Award is to be made by <ORG>, we remit the case to <ORG> to make an appropriate Award in the light of the findings of this <ORG>. The respondent shall pay the costs of the appellant in this <ORG> quantified at Rs. 2000 within four weeks from the date of this judgment and the costs in <ORG> have to be quantified by <ORG>.

S.R. Appeal allowed.