judgement:
Appeal No. 1551 of 1966.
Appeal by special leave from the Award dated February 28, 1966 of the Industrial Tribunal, Madras 'in I. D. No. 21 of 1965.
H. R. Gokhale and D. N. Gupta, for the appellant.
M. K. Ramamurthi, Shyamala Pappu and vineet Kumar, for the respondents.
The Judgment of the Court was delivered by Shelat, J.
On demands for revision of wage scales, dearness allowance, medical benefit, bonus for the year 1963 64, gratuity 937 etc.
having been made by the workmen of the appellant company in its Madras and the other branches in that region and disputes thereabout having arisen between the company and its said workmen, the Government of Madras referred them by its notification dated April 6, 1965 for adjudication to the Industrial Tribunal, Madras.
The Tribunal granted some and rejected the rest of the demands.
Aggrieved by the award the company filed this appeal under special leave granted by this Court.
Though the award dealt with a number of demands counsel for the appellant company restricted its challenge against the award on three subjects only.
Consequently, we are, concerned in this appeal with those three subjects only, namely, bonus for the year 1963 64, medical benefits and revision by the Tribunal of the company 's existing gratuity scheme.
As regards the bonus, the company had already paid to the workmen bonus at the rate of 4 months ' basic pay as against the demand for the maximum bonus calculated in accordance with the , and on consolidated as against the basic wages.
The Tribunal conceded that demand and granted bonus at 209% of the consolidated wages.
In view, however, of this Court 's decision in Jalan Trading Co. vs Mill Mazdoor Union,(1) Mr. Ramamurthi for the workman conceded.
that the Act cannot apply in respect of the year in question and that the bonus payable for that year will have to be calculated on the basis of the Full Bench Formula as approved by this Court.
The award to that extent, therefore, has to be set aside and remanded to the Tribunal for determining the bonus in accordance with the said Formula.
On the question of medical facilities, the workmen 's demand is contained in paras 27 to 31 of their statement of claim filed before the Tribunal according to which the workmen wanted the company to reimburse all medical expenses incurred by them on production of bills therefore.
In paras 27 and 28 of the statement, it was stated that the company had a scheme for medical benefit for its workmen at Calcutta made under the consent award of 1962 and that there was no reason "why this amenity should be refused to the workmen in this region".
Para 30 of the statement stated that there was a discussion between the parties regarding this demand when the company agreed to appoint a medical officer for consultation by the workmen and also to meet the cost of medicines upto Rs. 100 for a workman per year.
This offer, however, was rejected on three grounds: (1) that the condition as to the ceiling was discriminatory, (2) that the ceiling was too low and (3) that there was no warrant for not extending the benefit to workmen of the branch offices outside Madras.
(1) ; 938 This demand is dealt with by the Tribunal in para 14 of the award.
It is clear therefrom that the union 's contention before the Tribunal was that there was no reason why "this amenity of medical facility which the company has granted to its Calcutta workmen should be refused to the workmen of the Madras region".
The contention thus clearly was that the company having made a scheme for its Calcutta employees, it was discriminatory to refuse such a scheme to its workmen in Madras region.
It is equally clear that the offer made by the company and referred to in the statement of claim by the workmen was rejected as it contained a ceiling which was not in its Calcutta scheme, and it was, therefore, that its offer was considered discriminatory.
In view of these contentions the Tribunal agreed that a scheme for medical benefit for this region was called for.
The Calcutta scheme was not produced before the Tribunal and therefore the Tribunal proceeded to frame its own scheme.
The Tribunal rejected the demand for reimbursement of all medical expenses in respect of which bills would be produced as it felt that such a provision would lead to abuses including the obtaining of false bills.
Instead, the Tribunal directed that the company should pay the cost of such medicines as are prescribed by the company 's doctor, if supported by genuine bills, and should also pay all cost of hospitalisation if and when it was recommended by the company 's doctor.
Counsel for the company objected to this part of the award on the grounds (1) that the Tribunal was not justified in throwing on the company the entire burden of medical expenses including the cost of hospitalisation even in cases of major diseases which workmen might suffer or contact, (2) that it was no part of the employer 's obligation to provide for such expenses and that too to an unlimited degree, and (3) that the award should have provided a ceiling both in respect of the cost of medicines and of hospitalisation.
The argument was that the grievance of the workmen was that denial of the medical amenity to them as the one given to its Calcutta workmen was discriminatory, and therefore, if the Tribunal decided to concede the demand, it should have been on the same lines as the Calcutta scheme.
Mr. Rama murthi, on the other hand, contended that (a) it was an accepted principle that though a company may have an all India organisation, it was not necessary that if should have uniform conditions of service in all the regions and that, therefore, merely because the company has a medical scheme for its Calcutta office it did not follow that scheme must also be applied to its workmen in Madras region, and (b) that the scheme framed by the Tribunal was fair and should not be interfered with in order only to bring it in line with that of Calcutta.
939 In a recent decision concerning this very company and its, workmen in Bangalore, Hyderabad and Kerala branches (Remington Rand of India vs The Workmen)(1), this Court had to consider this very question.
The Tribunals in those cases.
had, as in this case, made schemes which imposed the burden of medical facilities on the company without any ceiling and extended therein such benefit to the family members of the workmen also.
In those cases, on our finding the company 's Calcutta scheme to be fair and reasonable, we substituted it for the schemes framed by the, respective Tribunals.
The Calcutta scheme is thus in operation in those areas also.
Counsel for the workmen has not shown to us any substantial difference between those areas and the Madras region affecting, the question of medical benefit.
We,, therefore, find no legitimate reason why the Calcutta scheme should not be applied to these workmen.
It is true that medical benefit is excepted in that scheme for certain diseases of a contagious and epidemic nature.
That presumably was done on the ground that for such diseases the primary duty to give relief is of the State and not of the employer.
For the reasons given in that decision, we set aside the directions given by the Tribunal in this.
behalf and substitute them by the following scheme : 1.
When a workman during the course of his duty requires medical attention, and where such attention is given by the company 's doctor (i.e. a doctor or doctors nominated by the company including a doctor nominated as a part time doctor) and medicines are prescribed by him, the cost of such prescription should be borne by the company; 2.
In the event of a workman falling sick at his residence and the illness is other than a venereal disease, leprosy, smallpox, typhoid or cholera, he should be paid the cost of the medicines prescribed; 3. Bills or cash vouchers pertaining to such prescription should be produced for counter signature of the company 's doctor before payment is authorised; 4.
Disease of a serious nature requiring hospitalisation will be subject to consideration by the company; 5.
At the time of employment the company will be entitled to get the prospective employees examined by the company 's doctor and their employment will be subject to being found medically fit; 6.
All company employees who are presently employed or those employed in future will be medically (1) C.A. Nos. 856.
1475 and 2119 of 1968, decided on December 10, 1968.
940 examined by the company 's doctor once a year or at such other periodical intervals determined by the company but the results of such medical examinations will not be prejudicial to the workmen 's employment; 7.
In case a workman is found medically unfit to continue in service, the company will decide his case in consultation with the union 's secretary; and 8.
This scheme will come to an end as and when the Employees ' State Insurance Scheme is extended to the employees concerned.
The question of laying down any ceiling need not be con sidered as the company, we are told, is agreeable to extend this scheme in this region.
The third item in respect of which the company challenges the award is the revision made by the Tribunal of the existing gratuity scheme.
The workmen 's demand in this respect was : (1) that the maximum limit of 15 months ' salary should be enhanced to 20 months ' salary, and (2) that the provision in the existing scheme that no gratuity would be payable to a workman dismissed on the ground of misconduct should be substituted by a provision that even in such cases gratuity should be payable but the company would be entitled to deduct from such gratuity amount the amount of financial loss, if any, resulting from such misconduct.
The Tribunal 's view was that these demands were reasonable and accordingly made modifications in the existing scheme.
At first, Mr. Gokhale objected to this part of the award.
first ly on the ground that the Tribunal ought not to have allowed gratuity even in cases of dismissal for misconduct, and secondly, that the qualifying period in the case of termination of service by the company otherwise than for misconduct should be 10 years and not the graded periods from 5 to 15 years as provided in the award.
On second thoughts he did not press the second objection.
and therefore, nothing need be said about it.
He, however, contended that if gratuity even in cases of dismissal for misconduct is to be made payable, a provision should be made that it would be forfeited if the misconduct is a gross one involving violence, riotous behaviour etc.
and for the rest of the cases, the qualifying period should be 15 years of continuous service.
These objections involve a principle, and therefore, need serious consideration.
The principle invoked by Mr. Gokhale is, firstly, that since gratuity is paid as a reward for long and meritorious service it would be inconsistent with that principle to award gratuity in cases of dismissal for misconduct, for.
such cases cannot be treated as cases of meritorious service, and 941 secondly, the provision in such cases for deduction only of financial loss resulting from misconduct committed by the workman is neither proper nor consistent with the principle on which gratuity is made payable by an employer.
A workman may be guilty of gross misconduct, such as riotous behaviour or assault on a member of the staff.
Such misconduct may not result in any financial loss to the company, and therefore, the workman would be paid full gratuity amount.
The contention was that it would be a serious anomaly that while a workman, who has caused some damage to the company 's property and is dismissed on the ground that he was guilty of misconduct would have the gratuity amount payable to him reduced to the extent of that damage, another workman, who, for instance, assaults and causes injury, even a serious injury, to another employee would, though liable to be dismissed, be entitled to the full gratuity merely because the misconduct of which he is guilty, though graver in nature, does not result in pecuniary loss to the company.
In support of his contention, Mr. Gokhale leaned heavily on two recent decisions of this Court in Calcutta Insurance Co. Ltd. vs Their Workmen(1) and The Delhi Cloth & General Mills Company Ltd. vs The Workmen(2).
Relying on these decisions, he urged, that in cases of dismissal for misconduct, the qualifying period should not be as prescribed by the Tribunal but must be 15 years of continuous service.
Mr. Ramamurthi, on the other hand, contended that the principle that gratuity is a reward for long and meritorious service and that for a single misconduct after such service, such misconduct should not result in deprivation of gratuity except to the extent of the actual monetary loss caused to the employer has been long accepted in industrial adjudication and should not be abandoned, and that the two decisions relied on by Mr. Gokhale should not be construed as having the cumulative result of enhancing the qualifying period and also depriving gratuity in cases of dismissal for misconduct.
The first decision, according to him, lays down an increase in the qualifying period from 10 years, which generally used to be the period for earning gratuity, to 15 years, and the second lays down Certain exceptions to the accepted rule that deduction of monetary loss resulting from misconduct was sufficient.
He argued that neither of the two decisions lays down that both the consequences must follow where a workman is dismissed for misconduct, even if such misconduct has not resulted in any monetary loss to the employer.
In view of these contentions it becomes necessary for us to examine the earlier decisions cited before us before we come to (1) ; (2) ; 942 the cases of Calcutta Insurance Co. Ltd.(1) and the Delhi Cloth & General Mills Co. Ltd.(2).
The question as, to whether gratuity should be, payable even though the concerned workman is dismissed for misconduct appears to have been raised for the first time is The Garment Cleaning Works vs Its Workmen(3).
The objection there raised related to cl. 4 of the gratuity scheme: framed by the Tribuml which provided that even if a workman was dismissed or discharged for misconduct, gratuity would still be payable except that if such a misconduct resulted in financial loss, to the works, gratuity should be paid after, deducting such loss.
The contention urged by counsel, but which failed,, was that such a clause was, inconsistent with the principle on, which gratuity claims were based, namely, that they were in the nature of retiral benefit based ' on.
long and meritorious, service.
Therefore, if a workman was guilty of misconduct and was dismissed or discharged, it would be a blot on his long and meritorious service and in such a case it would not be open to him to claim gratuity.
This was a general argument and was repelled as such is clear from what the Court said at page 715 of the Report : "On principle, if gratuity is earned by an employee for long and meritorious service it is, difficult to understand why the benefit thus earned by long and meritorious service should not be available to the employee even though at the end of such service he may have been found guilty of misconduct which entails his dismissal.
Grautuity is not paid to the employee gratuitously or merely as a matter of boon.
It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it.
should neceasarily be denied to him whatever may be, the nature of misconuct for his dismissal Therefore we do, not.
think that it would be possible to accede to the general argument that in all cases where the &mice of an employee is terminated for misconduct gratuity should riot be paid to him.
" The words "why it should necessarily be denied to him whatever may be the nature of misconduct occurring in the earlier part of the passage and the words "general argument that in all cases where the service of an employee is terminated for misconduct gratuity should not be paid" and the reference by the Court to certain awards made by tribunals where simple misconduct was distinguished from grave misconduct and forfeiture of gratuity (1)[1967] 2 S.C.R. 596.
(2) ; (3) 943 was provided for the letter occurring after this passage clearly show firstly that the Court was dealing with and repelled the general proposition that without any distinction between simple and gross misconduct there should be forfeiture in all cases of dismissal for misconduct of whatsoever nature, and secondly, that though the Court approved the scheme which provided that gratuity should be paid after deducting financial loss resulting from the workman 's misconduct, the Court did not lay down any principle that gratuity should be paid in cases of grave misconduct involving even violence which though it may not result in financial damage may yet be more serious than the one which results in monetary loss.
The decision thus is not an authority for the proposition that even if a workman were guilty of misconduct, such as riotous behaviour or an assault on another employee, in dustrial adjudication should not countenance a provision for forfeiture of gratuity in such cases merely because it does not result in monetary loss or that such a provision would be inconsistent with the principle that gratuity is not a boon or a gratuitous payment but one which is earned for long and meritorious service.
In Motipur Zamindari (P) Ltd. vs Workmen(1) the only question considered was whether the award was justified in providing forfeiture of gratuity in a case where the misconduct involved moral turpitude.
The Court following Garment Cleaning Works ( 2 ) directed that instead of forfeiture, the clause should provide deduction of the amount of monetary loss, if any, caused by such misconduct.
It is clear that no one canvassed the question as to whether a provision in a gratuity scheme that a workman should forfeit gratuity in the event of his committing misconduct involving violence or riotous behaviour within or around the works premises would be justified or not.
Nor was it con sidered whether it would be anomalous to provide for exaction of compensation from gratuity amount in case of misconduct involving moral turpitude while not making any provi sion against misconduct, such as the use of violence or force, which though not resulting in monetary loss, yet is unquestionably of a graver nature.
The case of Employees vs Reserve Bank of India(3) was again a case wherethere was a general clause in the gratuity scheme providing forfeiture in cases of dismissal for misconduct whatsoever and where in view of the decision in Garment Cleaning Works (2 )" the Bank conceded to:substitute the rule by providing deduction from gratuity the amount of monetary loss occasioned by the misconduct for which dismissal is ordered.
Thus, in none of the cases cited before us the question as to; what should be the minimum qualifying period in cases of dismissal (1) (2)[1962].2 S.CR.,711.
(3) ; , at 58. 944 for misconduct and the question as to whether a provision for forfeiture of gratuity in the event of such dismissal having been ordered for misconduct involving violence were either canvassed or considered.
On the other hand, in a recent decision between this very company and its workmen in Bangalore region (Remington Rand of India Ltd. vs Their Workmen)(1), the gratuity scheme made by the Tribunal provided for a qualifying period in cases of termination of service otherwise than for misconduct, but no qualifying period was provided for cases where termination of service was by way of punishment for misconduct.
This Court accepted the objection of the company on the ground of this omission and laid down the qualifying period of 15 years ' service in such cases.
In this decision the Court followed the earlier decision in Calcutta Insurance Co.(2) In another such case (Remington Rand of India vs The Workmen(3), where the dispute concerned the workmen of the company in Kerala region 15 years service was provided as the qualifying period in cases of dismissal for misconduct.
In the case of Calcutta Insurance Co.(2) on a contention having been raised that the qualifying period for earning gratuity in cases of retirement and resignation should be 15 years ' service and that no gratuity should be payable in cases of dismissal for misconduct, the Court examined the earlier decisions commencing from the Indian Oxygen & Acetylene Co. Ltd.(4) to the case of Garment Cleaning Works(5) 'and registered its demurrer against the observation made in the latter case that as gratuity was earned by an employee for long and meritorious service, it should consequently be available to him even though at the end of such service he may have been found guilty of misconduct entailing his dismissal.
In so doing the Court at page 608 of the Report remarked : "In principle, it is difficult to concur in the above opinion.
Gratuity cannot be put on the same level as wages.
We are inclined to think that it is paid to a workman to ensure good conduct throughout the period he serves the employer.
"Long and meritorious service" must mean long and unbroken period of service meritorious to the end.
As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity.
if a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for (1) [19681 (2) ; (3) , at 168.
(4) (1956] (5) 945 the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of laborers or workmen.
Further, the misconduct may be such as to undermine the discipline in the workers a case in which it would be extremely difficult to assess the financial loss to the employer.
" Continuity, in other words, must govern both the service and its, character of meritoriousness.
The Court further observed that a mere provision in a gratuity scheme enabling an employer to, deduct from the gratuity amount the actual loss caused as a. result of misconduct for which the workmen incurs the punishment of dismissal or discharge cannot subserve industrial peace and harmony, firstly, because an employer even without such a. provision has under the law the right of action for claiming damages, a right not taken away by industrial law, and secondly,.
because a misconduct resulting in dismissal may be such as may undermine discipline in the workmen, in which case it would be extremely difficult to assess the financial loss.
As regards the qualifying period, the Court laid down 10 years service in cases, of resignation or retirement and "following the principles laid down in the former decisions of this Court" provided 15 years ' service for qualifying for gratuity in cases of dismissal for mis conduct.
In the case of Delhi Cloth & General Mills Co. Ltd. (1) an objection was raised on behalf of the workmen to cl. 3 of the gratuity scheme framed by the Tribunal.
That clause provided as follows : "On termination of service on any ground whatsoever except on the ground of misconduct as in cl. 1 (a) and 1 (b) above.
" Cl. 1 (a) and 1 (b) provided for payment of gratuity in the eventof the death of an employee while in service or on his being physically and mentally incapacitated for further service and ' laid down the rates and the qualifying periods as follows : (a) After 5 years continuous service and less than 10 years ' service 12 days ' wages for each completed year of service (b) After continuous service of 10 years 15 days ' wages for each completed year of service.
The effect of cl. 3, therefore, was that in case of termination of service an employee would be entitled to get gratuity at the above (1) C.A. Nos.2168, 2569 of 1966 and 76, 123 and 560 of 1967, decided on September 27, 1968.
946 rates if he had put in service for the aforesaid periods, but would forfeit it if the termination was due to any misonduct committed by him.
The objection was that this provision was inconsistent with the decisions so far given by this Court, that according to those decisions the only provision permissible to the Tribunal was to enable Ox employer to deduct actual monetary loss arising from misconduct, and that therefore, the mere fact that a work man 's service was terminated for misconduct was no ground for depriving him altogether of gratuity earned by him as a result of his long and meritorious service, until the date, when he commits such misconduct.
In examining, the validity of this contention the Court analysed the previous decisions and pointed out that none of them laid down a general principle, that an industrial tribunal cannot _justifiably provide that an employer need not be made to pay gratuity even where, the workman had incurred termination of service on account of his having committed misconduct, not merely technical but of a grave character.
The Court observed that in some decisions this Court, no doubt, had held that the fact that dismissal of a workman on account of his having committed misconduct need not entail forfeiture and that it would be sufficient to forfeit partially the gratuity payable to him to the extent of monetary loss caused to the employer.
But then no decision had laid down as a principle that a provision for such forfeiture cannot be justified, however grave the misconduct may be, provided it had not caused monetary loss.
The Court noticed that the trend in the earlier decisions was to deny gratuity in all cases where the, workman 's service was terminated for misconduct but that in later years in cases such as the Garment Cleaning Works(1) "a less rigid approach" was adopted.
The Court then observed: "A bare perusal of the Schedule (Model Standing Orders) shows that the expression "misconduct ' covers a large area of human conduct.
On the one hand arc the habitual late attendance, habitual negligence and neglect of work on the other hand are riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, wilful insubordination or disobedience.
Misconduct falling under several of these latter heads of misconduct may involve no direct loss or damage to the employer, but would render the functioning of the establishment impossible or extremely hazardous.
For instance, assault on the manager of an establishment may not directly involve the, employer in any loss or damage, which could be equated in terms of money, but it would render the working of the establishment impossible.
One may also (1) 947 envisage several acts of misconduct not directly involving the establishment in any loss, but which are destructive of discipline and cannot be tolerated.
In none of the cases cited any detailed examination of what mis conduct would or would not involve to the employer loss capable of being compensated in terms of money was made.
It was broadly stated in the cases which have come before this Court that notwithstanding dismissal for misconduct a workman will be entitled to gratuity after deducting the loss occasioned to the employer.
If the cases cited do not enunciate any broad principle we think that in the application of those cases as precedents a distinction should be made between technical misconduct which leaves no trail of.
indiscipline, misconduct resulting in damage to the employer 's property, which may be compensated by forfeiture of gratuity or part thereof, and serious misconduct which though not directly causing damage,, such as acts of violence against the management or other employees or riotous or disorderly behaviour, in or near the place of employment is conducive to grave indiscipline.
The first should involve no forfeiture: the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third may entail forfeiture of gratuity due to the workmen.
The precedents of this Court, e.g., Wenger & Co. vs Its Workmen [1963(2) L.L.J. 388], Remington Rand of India Ltd. 's case [1968(1) L.L.J. 542] and Motipur Zamindari (P) Ltd. 's case [1965(2) L.L.J. 139] do not compel us to hold that no misconduct however grave may be visited with forfeiture of gratuity.
In our _judgment, the rule set out by this Court in Wenger & Co. 's case and Motipur Zamindari (P) Ltd. 's case applies only to those cases where there has be en by actions wailful or negligent any loss occasioned to the property of the employer and the miscon duct does not involve acts of violence against the management or other employees, or riotous or disorderly behaviour in or near the place of employment.
In these exceptional cases the third class of cases the employer may exercise the right to forfeit gratuity; to hold otherwise would be to put a premium upon con duct destructive of maintenance of discipline.
" In this view, the Court modified cl. 3 of the scheme by adding an explanation, the effect of which was that though the employer could not deprive the workman of the gratuity in all cases of misconduct, he could do so where it consisted of acts involving violence against the management or other 'employees or riotous 5Sup.
Cl/70 15 948 or disorderly behaviour in or near the place of employment and also gave right to the employer to deduct from gratuity such amount of loss as is occasioned by the workman 's misconduct.
We may mention that the Court did not alter the qualifying period in cases of misconduct since no objection appears to have been raised on that ground.
As against the contention that a provision in accordance with these two decisions should be introduced in the scheme under examination, Mr. Ramamurthi submitted that the two decisions should not be construed as if they laid down principles which should have the cumulative effect, firstly, as to the qualifying period, and secondly, as to deprivation of gratuity in cases specified in the Delhi Cloth & General Mills case(1).
It is true that this decision does not lay down that the qualifying period in cases of misconduct should be 15 years as was held in Calcutta Insurance Company(2).
But, as aforesaid, that was because that ques tion was not raised, while in the Calcutta Insurance Co. case(2) it was expressly raised and the Court laid down that in such cases it would be proper to provide 15 years continuous service as a criterion.
Once the principle that gratuity is paid to ensure good con duct throughout the period that the workman serves his employer is accepted as laid down in Calcutta Insurance Co.(2) some distinction in the matter of the qualifying period between cases of resignation and retirement on the one hand and dismissal for misconduct on the other becomes logically necessary.
Such a distinction cannot legitimately be assailed as unreasonable.
Similarly, if the object underlying schemes of gratuity is to secure industrial harmony and satisfaction among workmen it is impossible to equate cases of death, physical incapacity, retirement and resignation with cases of termination of service incurred on account of misconduct.
Besides, a longer qualifying period in the latter cases would ensure restraint against wailful use of violence and force neglect etc.
No serious argument was advanced that such a distinction would not be reasonable.
The objection was against the insertion of both and not against the merit of such distinction.
As regards the clause as to misconduct, it is not possible to disagree with the proposition laid down in the Delhi Cloth & General Mills case( ) that acts amounting to misconduct as defined in the standing orders, where they are made, or the model standing orders, where they are applicable, differ in degree of (1) 11969] 2 S.C.R. 307.
(2) (19671 2 S.C.R. 596.
949 gravity, nature and their impact on the discipline and the working of the concern, and that though grave in their nature and results, all of them may not result in loss capable of being calculated in terms of money.
Amongst them there would be some which would forthwith disentitle the workman from retaining his employment and justifying his dismissal.
For the reasons given in the Delhi Cloth & General Mills ' case(1) with which we, with respect, concur, we must agree with counsel for the company that it is necessary to modify the scheme and to add in cl. 5 thereof a proviso that in cases where there has been termination of service on account of an employee found guilty of act or acts involving violence against the management or other employees or riotous or disorderly behaviour in or near the company 's premises, the company would be entitled to forfeit the gratuity which would otherwise be payable to the concerned workman.
5 should also be modified so as to introduce therein 15 years continuous service as the qualifying period for earning gratuity in cases where the service of the employee has been terminated on account of misconduct and that such gratuity should be payable at the rate prescribed in cl. 3(d) of the scheme.
The appeal is allowed and the award is set aside to the extent aforesaid.
The gratuity scheme and the scheme for medical benefit, as revised by the Tribunal, are modified as stated above.
So far as the question of hours is concerned, that question is remanded to the Tribunal to decide it in accordance with the observations made hereinabove.
The Tribunal will give liberty to the parties to adduce for that purpose such further evidence as they think necessary.
There will be no order as to costs.
Y.P. Appeal allowed.

summary:
An industrial dispute between the appellant company and its workmen relating,.
inter alia, to bonus, medical benefits anti gratuity was, referred by the State Government of.
Madras on April 6, 1965 to the Industrial Tribunal for adjudication.
Tribunal awarded bonus at 2O,% of the consolidated wages as provided in the .
As to medical benefit& the Tribunal diverted that the company should pay the cost of medicines prescribed by the company 's doctor and the full cost of hospitalisation when it was.
recomanded by the company 's doctor.
The Tribunal modified, the company '& gratuity scheme in accordance with the workmen 's demands.
The company appealed to, this Court against the award The question of bonus had to be considered, in, the light of this Courts decision in Japan Trading, Company 's law.
On the question.
of medical benefits the Court had to consider whether the company 's scheme for its Calcutta employees could be extended to Madras Region.
In regard to gratuity the main questions for consideration were as, to, the qualifying, period for payment of gratuity to workmen who were guilty of misconduct, and whether gratuity should be payable for workmen whose misconduct consisted of violence, riotous behaviour etc.
HELD: (i) In View of this Court 's decision in Jalian Trading Company 's case the.
Payment of Bonus Act, 1965 was not applicable in respect of the year in question, and the bonus payable had to be calculated in accordance with, the Full Bench, Formula.
The award to that extent therefore had to be set aside and remanded, to the Tribunal for determining the bonus in accordance with the said Formula [937 E] Jalam Trading Co. vs Mill Mazdoor Union, ; , referred to.
(ii) In the appellant company 's earlier cases relating to its Bangalore, Hyderabad and Kerala Branched this Court had held that the Company 's Calcutta scheme relating to medical benefit for its workmen was fair and reasonable and had made the said scheme applicable to these areas also.
No substantial difference had been shown between these areas and the Madras region affecting the question of medical benefit.
These areas and the no legitimate reason why the Calcutta scheme should not be applied to the workmen in the present case.
[The Court framed an eight point scheme for medical benefit based on the Calcutta scheme] [939 A 940 C] Remington Rand of India vs The Workmen, C.A. Nos.
856/68 etc.
10 12 1968, applied.
(iii.) Once the principal, that gratuity is paid to ensure good conduct throughout the period that the workman serves his employer as laid drown 936 in Calcutta Insurance Co. some distinction in the matter of the qualifying period between cases of resignation and retirement on the one hand and dismissal for misconduct on the other becomes logically necessary.
Such a distinction cannot legitimately be assailed as unreasonable.
Similarly if the object underlying the scheme of gratuity is to secure industrial harmony and satisfaction among workmen it is impossible to equate cases of death, physical incapacity, retirement and resignation with cases of termination of service incurred on account of misconduct.
Besides, a longer qualifying period in the latter cases would ensure restraint against wailful use of violence and force, neglect etc.
[948 E] As laid down in Delhi Cloth & General Mills case that acts amounting to misconduct as defined in the standing orders, when they are made, or the model standing orders, where they are applicable differ in degree of gravity, nature and their impact on the discipline and the working of the concern, and that though grave in their nature all of them may not result in loss capable of being calculated in terms of money.
Amongst, them there would be some which would forthwith disentitle the workman from retaining his employment and justifying his dismissal.
For the reasons given in the Delhi Cloth & General Mills case it was necessary to modify the scheme of gratuity and to add in cl. 5 thereof a proviso that in cases where there has been termination of service on account of an employee found guilty of act or acts involving violence against the management or other employees or riotous or disorderly be haviour in or near the company 's premises, the company would be entitled to forfeit the gratuity which would otherwise be payable to the concerned workmen.
Clause 5 should also be modified so as to introduce therein 15 years continuous service as the qualifying period for earning gratuity in cases when the service of an employee has been terminated on account of misconduct and that such gratuity should be payable at the rate prescribed in cl. 3(d) of the scheme.
[948 G 949 D] Calcutta Insurance Co. Ltd. vs Their Workmen, ; and Delhi Cloth & General Mills Co. Ltd. vs The Workmen, ; , applied.
Garment Cleaning Works vs Its Workmen, , Motipur Zamindari (P) Ltd. vs Workmen, , Employees vs Reserve Bank of India, ; , 58, Remington Rand of India Ltd. vs ' Their Workmen, , Remington Rand of India vs The Workmen, , 168 and Indian Oxygen & Acetylene Co Ltd. case , considered.


judgement:
Appeal No. 2170 of 1967.
Appeal from the judgment and order dated September 5, 1963 of the Calcutta High Court in Civil Rule No. 2864 of 1952.
Purshottam Chatterjee and G. section Chatterjee, for the appellant.
D. B. Mukherjee and section C. Majumdar, for respondent No. 1.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgment of the Calcutta High Court arising, out of a petition filed by the appellant under section 26F of the Bengal Tenancy Act, 1885 claiming a right of preemption over certain lands purchased by respondent No. 1.
926 The facts may be briefly stated.
On July 23, 1950, the ap pellant purchased certain portion of land in C.S. Dag No. 3605 of Monza Kasba from the occupancy raiyats respondents Nos. 2 and 3 and one Bhabesh Chandra Kundu deceased.
By another deed the appellant purchased from the said vendors another plot of land measuring 31 acres.
By a Kabala dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to respondent No. 1 for Rs. 2,700.
The appellant filed an application before the Second Subordinate Judge, Alipore district 24 Parganas under section 26F of the Bengal Tenancy Act claiming the right of preemption over the land purchased by respondent No. 1.
The latter took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs. 300 as brokerage; the appellant had thus waived his right of preemption.
The learned trial Judge disbelieved the case set up by respondent No. 1 and allowed the application of the appellant for preemption.
Respondent No. 1 filed an appeal in the court of,the Additional District Judge, Alipore.
He held that the appellant 's claim for preemption was barred owing to waiver on his part.
The appellant filed a petition for revision in the High Court but the same was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver.
The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case.
Moreover waiver could not be proved by estopped.
Learned counsel for the appellant relied on the observations of Lord Russel of Killowen in Dawson 's Bank Limited vs Nippon Menkwva Kabushiki Kaisha(1).
While stating the distinction between estopped and waiver, it was said, that "waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right.
" According to the appellant all that had been found was that by his act and conduct he had waived his right of preemption.
It was pointed out that there was no evidence for any consideration having moved from respondent No. 1 in the matter of abandonment of the appellant 's right of preemption.
In the well known work of Sir William P. Anson "Principles of the English Law of Contract", 22nd Edn., it has been stated at p. 107 that at Common Law the waiver of existing obligations does not appear to require the presence of detriment in order to make it effective.
(1) 62 I.A. 100, 108. 927 In India the general principle with regard to waiver of contractual obligations is to be found in section 63 of the Indian Contract Act.
Under that section it is open to a promise to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit.
Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver.
This Court has already laid down in Waman Shriniwas Kini vs Ratilal Bhagwandas & Co.(1) that waiver is the abandonment of a right which normally everybody is at liberty to waive.
"A waiver is nothing unless it amounts to a release.
It signifies nothing more than an intention not to insist upon the right.
" It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right.
So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence.
The contention that the waiver of the appellant 's right under section 26F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected.
A faint attempt was made to assail the finding of the High Court that on the facts which had been proved waiver had been established.
We find no reason or justification for interfering with the conclusion of the High Court on the point.
The appeal fails and it is dismissed with costs.
R.K.P.S. Appeal dismissed.
(1) [1959] Supp.
2 S.C.R. 217, 226.

dataset_name: IN-Abs

summary:
The appellant filed an application under section 26(f) of the Bengal Tenancy Act claiming right of preemption over the land purchased by the respondent.
The respondent took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle had acted as brokers in the transaction and received brokerage; the appellant had thus waived his right of preemption.
The trial Judge allowed the application.
The appeal Court held that the appellant 's claim was barred owing to waiver on his part.
A revision to the High Court was unsuccessful.
In appeal to this Court it was urged that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver.
HELD, : Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver.
A waiver signifies nothing more than an intention not to insist upon the right.
It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of forfeiture of such a right.
So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence.
The contention that the waiver of the appellant 's right under section 26F of the Bengal Tenancy Act must be founded on contrast or agreement cannot therefore be acceded to.
[927 A D] Wanman Shrinwas Kini vs Ratilal Bhagwandas & Co., [1959] Supp. 2, S.C.R. 217, 226 and Dawson 's Bank Limited vs Nippon Menkwa Kabushiki Kaisha, 62 I.A. 100, 108 referred to.


judgement:
minal Appeal No. 191 of 1967.
Appeal by special leave from the judgment and order dated March 14, 1967 of the Rajasthan High Court in Criminal Appeal No. 720 of 1965.
B. D. Sharma, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Sikri, J.
Hari Ram, respondent, filed a complaint against Lala Ram, appellant, alleging that Lala Ram had attacked him 899 with a Kassi on June 10, 1964, at about 6 p.m.
Poonaram, who was standing there prevented the blow from falling on Hari Ram by receiving it on his hand.
The respondent, however, made a second attack and inflicted an injury on the left shoulder of Hari Ram.
Hari Ram and Poonaram got themselves examined by the Civil Assistant Surgeon of the city and the injury report was submitted alongwith the complaint.
The learned Magistrate acquitted the accused.
Hari Ram filed an application under section 417(3) of the Criminal Procedure Code for leave to appeal against the order of the Magistrate.
Leave was granted by the High Court, and thereupon Hari Ram filed the appeal.
The High Court accepted the appeal and convicted the appellant, Lala Ram, under section 324, I.P.C., and sentenced him to four months ' rigorous imprisonment.
The attention of the High Court was not drawn to the Proba tion of Offenders Act, 1958, during the hearing of the a peal but subsequent to the delivery of the judgment an application was filed under section 561 A, Cr.
P.C., read with sections 3, 4 and 6 of the Probation of Offenders Act.
It was alleged in the application that the appellant was 20 years old and the High Court should have given him the benefit of the Probation of the Offenders Act.
The High Court did not accede to this application.
The appellant having obtained special leave from this Court, the appeal is now before us.
The main contention of law which arises before us is whether the appeal to the High Court was filed within limitation.
The application for leave to appeal to the High Court under section 417 (3) against the order of acquittal of the Magistrate, dated August 31, 1965, was filed on November 1, 1965.
It was claimed by the applicant that two days were necessary for obtaining the certified copy of the order of the Magistrate and the applicant was entitled to deduct these two days taken for obtaining the certified copy of the order of the Magistrate.
There is no doubt that the application would be in time, if these two days are deducted.
But the learned counsel for the appellant contends that section 12(2) of the Indian Limitation Act is not attracted to applications under section 417(3), Cr.
P.C. Section 417(3) and (4) read as follows "417.
(1) Subject to the provisions of sub section (5), the, State Government may, in any ease, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a, High Court.
(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on L5SupCI/70 12 900 an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(4) No application under sub section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
It is contended that the period of 60 days mentioned in s.417(4) is not a period of limitation within the meaning of s.12(2) of the Limitation Act.
Section 12(2) of the Limitation Act reads as follows : "12(2) In computing the period of limitation for an ,appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the, time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
" The learned counsel says that what s.417(4) provides is a prohibition and it bars the jurisdiction of the High Court to deal with the application if a period of 60 days has expired from the date of the order of acquittal.
In our opinion there is no force in these contentions.
In Kaushalya Rani vs Gopal Singh(1) this Court, while dealing with the question whether s.5 of the Limitation Act applies to applications under s.417(3) described this period of 60 days ment ioned in s.417(3) as follows: "In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications.
" This Court further observed "Once it is held that the special rule of limitation laid down in sub section
(4) of section 417 of the Co de is a especial law ' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the con clusion that s.5 of the Limitation Act is wholly out of the way, in view of s.29 (2) (b) of the Limitation Act." (1) ; 987.
901 This Court approved the judgment of the Full Bench of the Bombay High Court in Anjanabai vs Yashwantrao Dauletrao Dudhe(l).
The Full Bench of the Bombay High Court had observed in Anjanabai 's case "Sub section (4) prescribes a period of limitation for such an application.
It states that no such application shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal.
This period of limitation is prescribed not for all appeals under the Criminal Procedure Code, or even for all appeals from the orders of acquittal.
It is prescribed only for applications for special leave to appeal from orders of acquittal.
It is therefore a special provision for a special subject and is consequently a special law within the meaning of s.29(2) of the Limitation Act.
" It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that s.417(4) of the Criminal Procedure Code prescribes a period of limitation.
The learned counsel, however, contends that there was no discussion of this aspect.
Be that as it may, it seems to us that s.417 (4) itself prescribes a period of limitation for an application to be made under s.417(3).
It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under s.417(3), Cr.
P.C.; it was open to it to prescribe a period of limitation in the Code itself.
The learned counsel also suggests that the word "entertain" which occurs in s.417 (4) means "to deal with or hear" and in this connection he relies on the judgment of this Court in Lakshmi Rattan Engineering Works vs Asstt.
Commissioner Sales Tax (2).
It seems to us that in this context "entertain" means "file or received by the Court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within 60 days of the order of acquittal.
In the result we hold that the application under s.417(3) to the High Court was within time.
The learned counsel then contends that the High Court should not have interfered with the order of acquittal passed by the Magistrate.
He has taken us through the evidence of Poonaram who was injured and the statement of P.W. 3, Ananda, who was present and who seems to be an independent witness.
We agree (1) I.L.R. [1961]Bom.135, '137.
(2) ; 902 with the High Court that the Magistrate was not entitled to reject the evidence of the eye witnessess.
No reason has been shown to us why we should interfere with the finding of fact arrived at by the High Court.
The learned counsel further contends that no offence was committed because the accused had a right of private defence of property.
Assuming that he had a right of private defence of property he had ample opportunity of having recourse to the authorities and there was no need for the appellant to have taken the law into his own hands.
The only question that remains now is the question whether the benefit of s.6 of the Probation of Offenders Act should be extended to the appellant.
In spite of opportunity being given no good proof has been furnished to establish that the appellant was at the relevant time under the age of 21 years.
For the aforesaid reasons the appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.

summary:
An application for leave to appeal to the High Court under section 417(3) Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965.
It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate.
The application would be in time if these two days were deducted.
The High Court accepted the appeal and convicted the appellant.
In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 417(4) was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal.
HELD : The application under section 417(3) to the High Court was within time.
Section 417(4) itself prescribes a period of limitation; it was open to the legislature to prescribe a period of limitation in the code itself.
In the context of section 417(4) the word "entertain" means "file or receive by the court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal.
[901 D F] Kaushalya Rani vs Gopal Singh, , 987, Anjanabai vs Yeshwantrao Daplatrao Dudhe, I.L.R. (1961) Bom.
135, 137 and Lakshmi Rattan Engineering Works vs Asstt.
Commissioner Sales Tax; , , referred to.


judgement:
minal Appeal No. 203 of 1966.
Appeal by special leave from the judgment and order dated April 5, 1966 of the Patna High Court in Criminal Appeal No. 602 of 1963.
D. P. Singh, for the appellant.
Nur ud din Ahmed and D. Goburdhun, for the respondents.
The Judgment of the Court was delivered by Bachawat, J.
The prosecution case was that Bhaiya Ramanuj Pratap Deo was the proprietor of village Phatpani and owned and possessed bakasht and gairmazura lands therein including plot No. 1311 and the mahua trees standing thereon.
On April 10, 1962 at 3 p.m. his employee PW 33 Bindeshwari Singh was in charge of collection of mahua fruits in plot No. 1311 and the victims Ram Swarup Singh and Ramdhari Singh were supervising the collection.
PW 1 Dhaneshwari, PW 2 Deokalia, PW 3 Dewal, PW 4 Rajmatia, PW 6 Udal Singh, PW 7 Border Singh, PW 8 Meghan Chamar, PW 9 Ram Dihal Kharwar, PW 10 Ram Torai Kharwar, PW 11 Manan Singh and PW 13 Jhagar Kharwar were collecting mahua fruits when suddenly accused Mathua Pandey, Kundal Pandey and Muneshwardhar Dubey armed with garassas, Chandradeo Pandey, Dayanand Pandey and Nasir Mian armed with bhalas and Bife Bhogta, Thegu Bhogta, Nageshwardhar Dubey and Uma Shankar Dubey armed with lathis surrounded Ramswarup and Ramdhari and assaulted them with their weapons.
Dewal also was assaulted by Bife and Thegu and suffered minor injuries.
Ramdhari died on the spot.
Ramswarup died while preparations were being made to carry him to the hospital.
Bindeshwari lodged the first information report at 8 p.m. on the same date.
On April 14, 1962 'accused Mathu gave a report 360 at Nagaruntari hospital.
He said that on April 10, 1962 at 3 p.m. while he was returning home, he was assaulted with lathis, garassas and bhalas by the employees of the Bhaiya Saheb.
The following injuries were found on the dead body of Ram swarup Singh : "(1) abrasion 1 1/2"x 1 1/4" with ecchymosis on anterior aspect of right knee joint,, (2) another abrasion 1/2" x 1/4 " with ecchymosis on anterior aspect of right leg, (3) a small abrasion with ecchymosis on anterior aspect of left knee joint, (4) an incised wound 4" x 1" x scalp on anterior aspect of the left side of the head, (5) a lacerated wound 31" X 1/3" X scalp with ecchymosis on right side of head and ' (6) a penetrating wound with clean cut margins 2 1/2" X 1" X abdominal cavity placed transversely on right hypochondrium just right to mid line with stomach and loop of large bowel bulging out of it.
" On opening the abdominal wall it was found that the peritoneum was con gested and the stomach was perforated on its anterior wall.
Injuries 1, 2, 3 and 5 were caused by hard and blunt substance such as lathi.
Injury No. 4 was caused by sharp cutting weapon such as garassa.
Injury No. 6 on the abdominal cavity was caused by some sharp pointed weapon with sharp cutting margin such as bhala.
The death was due to shock and internal haemorrhage caused by the abdominal wounds.
The following injuries were found on the dead body of Ramdhari Singh : "(1) the helix of left ear was cut; (2) a lacerated wound 1/2" x 1/10" x 1/10" with ecchymosis on the outer part of the left eye brow, (3) a punctured wound with clean cut margins 2 1/2"X I" X 1 1/2" on left thigh below its middle, (4) a punctured wound with clean cut margin 1" X 1/4" X 1" on posterior aspect of the left thigh in its middle, and (5) a penetrating wound with clean cut margins 2 1/4" x 3/4" x abdominal cavity on right side of the abdomen.
The loops of intestines were bulging out of this opening.
Injury No. 2 was caused by hard and blunt substance such as lathi.
The other injuries were caused by a sharp pointed weapon with sharp cutting edge such as bhala.
Death was due to shock and internal haemorrhage caused by injury No. 5 the abdominal wound.
The trial court convicted the accused respondents Mathu, Chandradeo, Kundal, Dayanand, Bife, Thegu, Nasir, Munesh wardhar, Nageshwardhar, Umashankardhar under section 302 read with section 149 of the Indian Penal Code for the murders of Ram dhari and Ramswarup and sentenced them to rigorous imprison ment for life each.
Bife, Thegu, Nageshwardhar and Umashan kardhar were convicted under section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for six months each.
The remaining respondents were convicted under section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for one year 361 each.
Bife and Thegu were convicted under section 323 of the Indian Penal Code for causing hurt to Dewal and sentenced to rigorous imprisonment for six months each.
The sentences of each respondent were to run concurrently.
The trial court held that (1) Bhaiya Saheb was in possession of plot No. 1311; (2) while Ramswarup and Ramdhari were collecting mahua on the plot, the respondents armed with bhalas, garassas and lathis inflicted fatal injuries on them with a view to forcibly prevent them from collecting the mahua, (3) Thegu and Bife assaulted Dewal with lathis, (4) the accused persons knew that there was likelihood of murders being committed in prosecution of the common object, and (5) the assailants inflicted the injuries on Ramswarup and Ramdhari with the intention of murdering them.
The respondents filed an appeal in the High Court of Patna.
The High Court allowed the appeal and set aside all the convictions and sentences.
The High Court, found that (1) respondent Chandradeo was the thikadar of plot No. 1311 and was in possession of the mahua trees standing thereon, (2) on the date of the occurrence,, the members of the prosecution party including Ramdhari and Ramswarup committed theft on the fruits of the mahua trees, and the respondents had the right of private defence of property against the theft; (3) Ramswarup carrying a tangi and Ramdhari carrying a danta caused severe injuries to respondent Mathu on his head, leg, and that while doing so they were not defending themselves; Mathu became unconscious.
He regained consciousness on April 14, 1962.
(4) the theft of mahua fruits was committed under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised.
Accordingly, the respondents ' right of private defence of property extended under section 103 of the Indian Penal Code to voluntarily causing death to Ramdhari and Ramswarup subject to the restrictions mentioned in section 99; (5) the person or persons who caused the two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence.
These findings are based on adequate evidence and are not shown to be perverse.
In this appeal under article 136 of the Constitution from an order of acquittal passed by the High Court, we are not inclined to interfere with the above findings.
The question is whether in these circumstances the High Court rightly acquitted the appellants.
, The fatal wounds on the abdominal cavities of Ramdhari and Ramswarup were caused by bhalas.
The prosecution case was that Chandradeo, Dayanand and Nasir were armed with bhalas.
The High Court rightly held that the prosecution failed to established that Chandradeo was armed with a bhala.
The prosecution witnesses said generally that all the respondents surrounded Ram 362 dhari and Ramswarup and.
assaulted them.
The prosecution case has been found to be false in material respects.
It is not possible to record the finding that Chandradeo, Dayanand and Nasir were armed with bhalas.
Some of the respondents were armed with bhalas but it is not possible to say which of them were so armed and which of them inflicted the fatal wounds on Ramdhari and Ramswarup.
Accordingly we cannot convict any of the respondents under section 302.
The only question is whether they can be convicted under section 302 read with either section 149 or section 34.
In order to attract the provisions of section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly.
Under the fourth clause of section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any Person.
Section 141 must be read with sections 96 to 106 dealing with the right of private defence.
Under section 96 nothing is an offence which is done in the exercise of the right of private defence.
The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or supposed right" in the fourth clause of section 141.
In Kapildeo Singh vs The King(1) the High Court had affirmed the appellant 's conviction and sentence under section 147 and section 304 read with section 149, without considering the question as to who was actually in possession of the plot at the time of the occurrence.
The High Court observed that the question of possession was immaterial and that the appellants party were members of an unlawful assembly, "as both sides were determined to vindicate their rights by show of force or use of force.
" The Federal Court set aside the conviction and sentence.
It held that the High Court judge stated the law too loosely "if by the use of the word 'vindicate ' he meant to include even cases in which a party is forced to maintain or defend his rights".
The assembly could not be designated as an unlawful assembly if its object was to defend property by the use of force within the limits prescribed by law.
The charges against the respondents were that they "were members of an unlawful assembly in prosecution of the common object of which, viz., in forcibly preventing Ramdhari Singh and Ramswarup Singh from collecting mahua from Barmania field of village Phatnapi and if necessary in causing the murder of the said two persons, for the purpose, "that some of them caused the murders of Ramdhari and Ramswarup and that thereby all of them committed offences under section 302 read with section 149.
We have found that respondent Chandradeo was in possession of plot (1) 363 No. 1311 and the mahua trees standing thereon.
The object of the respondent 's party was to prevent the commission of theft of the mhua fruits in exercise of their right of private defence of property.
This object was not unlawful.
Nor is it possible to say that their common object was to kill Ramdhari and Ramswarup.
Those who killed them exceeded the right of private defence and may be individually held responsible for the murders.
But the murders were not committed in prosecution of the common object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object.
The accused respondents cannot be made constructively responsible for the murders under section 302 read with section 149.
In Kishori Prasad & Ors.
vs State of Bihar(1) the High Court convicted the appellants under section 326/149 of the Indian Penal Code though the appellant Hirdaynarain was in lawful possession of the western portion of plot No. 67 and the attempt by the prorecution party to cultivate the same was high handed.
This Court set aside the conviction and sentence.
Ramaswami J. observed "In a case where the accused person could invoke the right of private defence it is manifest that no charge of rioting under section 147 or section 148, Indian Penal Code can be established for the common object to commit an offence attributed in the charge under section 147 or section 148, Indian Penal Code is not made out.
If any accused person had exceeded the right of private defence in causing the death of Chitanu Rai or in injuring Gorakh Prasad it is open to the prosecution to prove the individual assault and the particular accused person concerned may be convicted for the individual assault either under section 304, Indian Penal Code or of the lesser offence under section 326, Indian Penal Code.
The difficulty in the present case is that the High Court has not analysed the evidence given by the parties and given a finding whether any or which of the appellants are guilty of causing the death of Chitanu Rai or of assaulting Gorakh Prasad.
As we have already said, none of the appellants can be convicted of the charge of rioting under section 148 or of the constructive offence under section 326/149, Indian Penal Code.
" We accordingly hold that the respondents cannot be convicted under section 302 read with section 149, Indian Penal Code.
Nor is it possible to convict them under section 302 read with section 34.
The High 'Court rightly found that the respondents wanted to prevent the (1) Cr.
No. 191 of 1966 decd.
on 5 12 1968.
364 collection of mahua fruits and that a common intention of all of them to murder Ramdhri and Ramswarup was not established.
The case of Gurudittamal vs State of U.P.(1) is distinguish able.
In that case the Court found that (1) the accused persons who were in possession of a field had exceeded the right of private defence of property by murdering four persons who were peacefully harvesting the crops standing on the field and (2) each of the four appellants killed one member of the prosecution party and each of them individually committed an offence under section 302 (see paragraph 6 and end of paragraph 14).
In these circumstances, the Court upheld their conviction and sentence under section 302.
The Court also found that the appellants had the common intention to kill the victims and could be convicted under section 302 read with section 34 (see paragraph 12 and 9).
In the present case, none of the respondents can be convicted under section 302.
As a common intention to murder Ramdhari or Ramswarup is not established, they cannot be convicted under section 302 read with section 34.
In the result, the appeal is dismissed.
R.K.P.S. Appeal dismissed.
(1) A.I.R. 1965 S.C. 257.

summary:
In proceedings against the accused respondents the prosecution case was that on certain land belonging to one B where some of his men were gathering fruits, the respondents, armed with bhallas, lathis, etc., attacked these men killing two of them and injuring others.
The trial court convicted the respondents under section 302 read with section 149 I.P.C. of the murder of the two deceased persons and of offences for inflicting injuries on other persons.
The respondents ' appeal to the High Court was allowed and that Court set aside all the convictions and sentences.
The High Court found that the land in question was in the possession of one of the respondents and that on the date of occurrence, the members of the prosecution party including the murdered victims committed thefts of fruits on the land and that the respondents had the right of private defence of property against the theft; the theft of the fruits was committed under such circumstances as might reasonably cause apprehension that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised.
Accordingly, the respondents ' right of private defence of property extended under section 103 I.P.C. to voluntarily causing death of the two murdered victims subject to the restrictions mentioned in section 99.
In appeal to this Court against the acquittal of the respondents, it was contended that they were members of an unlawful assembly prosecuting the common object of forcibly preventing the two deceased from collecting 'fruit from the land in question and if necessary in causing the murder of the said two persons for the purpose; that some of them caused the murder of the two victims and that thereby all of them committed offences under section 302 read with section 149.
HELD : The respondents could not be convicted under section 302 read with section 149 I.P.C., nor was it possible to convict them under section 302 read with section 34.
In order to attract the provisions of section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly.
Under the fourth clause of section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person.
Section 141 must be read with Ss. 96 to 106 dealing with the right of private defence.
Under section 96 nothing is an offence which is done in the exercise of the right of private defence.
The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or supposed right" in the fourth clause of section 141.
[362 C] 359 As it had been found 'in the present case that the land in question was in the possession of one of the respondents, the object of the respondents ' party was to prevent the commission of theft of the fruits in exercise of their right of private defence of property.
This object was not un lawful.
Nor was it possible to say that their common object was to kill the two deceased victims.
Those who killed them exceeded the right of private defence and may be individually held responsible for the murders.
But the murders were not committed in prosecution of the common object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object.
The accused respondents could not be made constructively responsible for the murders under section 302 read with section 149.
[363 B] Kapildeo Singh vs The King, ; Kishori Prsad & Ors.
vs State of Bihar Cr.
Appeal No. 191 of 1966 decd.
on 5 12 1968; and.
Gurudittamal vs State of U.P.
A.I.R. 1965 S.C. 257; referred.