judgement:
Civil Appeal No. 3844 of 1983.
Appeal by Special leave from the Judgment and Order dated the 25th July, 1980 of the Delhi High Court in L.P.A. No. 89 of 1976.
A.K. Gupta for the Appellant.
G.B. Pai, S.N. Bhandari and Ashok Grover for Respondent.
No. 3.
R.N. Poddar for Respondent No. 1.
The Judgment of the Court was delivered by 951 CHINNAPPA REDDY, J.
It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits.
We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under article 226 of the Constitution and to this Court under article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade.
Industrial peace, one presumes, hangs in the balance in the meanwhile.
We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection.
There was a time when it was thought prudent and wise policy to decide preliminary issues first.
But the time appears to have arrived for a reversal of that policy.
We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.
Nor should High Courts in the exercise of their jurisdiction under article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them.
Neither the jurisdiction of the High Court under article 226 of the Constitution nor the jurisdiction of this Court under article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them.
article 226 and article 136 are not meant to be used to break the resistance of workmen in this fashion.
Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences.
After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections journeyings up and down.
It is also worth while remembering that the nature of the jurisdiction under article 226 is supervisory and not appellate while that under article 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice.
In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.
952 Having sermonised this much, we may now proceed to state the facts which provoked the sermon.
The appellant D.P. Maheshwari was an employee of Toshniwal Brothers Pvt. Ltd., when his services were terminated with effect from 28th July 1969.
He raised an industrial dispute and on 3rd July 1970 the Lt. Governor of Delhi referred the dispute for adjudication to the Additional Labour Court Delhi under sections 10(1)(c) and 12(5) of the Industrial Disputes Act.
The dispute referred for adjudication to the Labour Court was, "Whether the termination of services of Shri D.P. Maheshwari is illegal and/or unjustified and if so to what relief is he entitled and what directions are necessary in this respect ?" The Management straightaway questioned the reference by filing Writ petition No. 159 of 1972 in the Delhi High Court.
The writ petition was dismissed on 22nd May 1972.
Thereafter the management raised a preliminary contention before the Labour Court that D.P. Maheshwari was not a 'workman ' within the meaning of Section 2(s) of the Industrial Disputes Act and the reference was therefore incompetent.
The Labour Court tried the question whether D.P. Maheshwari was a workman as defined in Section 2(s) of the Industrial Disputes Act as a preliminary issue.
Both parties adduced oral and documentary evidence.
After referring to the evidence of the employee 's witnesses the Labour Court said, "Thus according to the evidence of the claimant 's witnesses the claimant was employed mainly for clerical duties and he did discharge the same." The Labour Court then referred to the evidence of the witnesses examined by the management and said, "Thus the said evidence falls far short of proving that the claimant was in fact discharging mainly Administrative of supervisory duties." The Labour Court then proceeded to refer to the documents produced by the management and observed, "Thus the documents filed by the respondent do not go to show that the real nature of the duties discharged by the claimant was supervisory or administrative in nature." The Labour Court next referred to what it considered to be an admission on the part of the management who had classified all their employees into three separate classes A, B and C, Class A described as 'Managerial ' Class B described as 'Supervisory ' and Class C described as 'Other Staff '.
The name of D.P. Maheshwari was shown in Class C. After reviewing the entire evidence the Labour Court finally recorded the following finding: "From the above discussion, it is clear that the claimant 's evidence shows that he was doing mainly 953 clerical work of maintaining certain registers preparing drafts and seeking instructions from the superiors and respondents ' lawyers during the period of his services though designated Accounts Officer or officer in special duty or store purchase officer . . . . . . . . . . . . . . . . . . .
As a result, in my opinion it has to be held that the nature of the main duties being discharged by the claimant was clerical and not supervisory or administrative despite his designation as officer.
Accordingly, he has to be held to be a workman under section 2(s) of the Industrial Dispute Act.
" The management was dissatisfied with the decision of the Labour Court on the preliminary issue.
So, they invoked the High Court 's extra ordinary jurisdiction under article 226 of the Constitution.
A learned single judge of the High Court, by his judgment dated 12th July 1976 allowed the Writ Petition and quashed the order of the Labour Court and the reference made by the Government.
A Division Bench of the High Court affirmed the decision of the Single Judge on 25th July 1980.
The matter is now before us at the instance of the workman who obtained special leave to appeal under article 136 on 4th April 1983.
The services of the workman were terminated on 28th July 1969.
A year later the dispute was referred to the Labour Court for adjudication.
Thirteen years thereafter the matter is still at the stage of decision on a preliminary question.
In our view, further comment is needless.
Shri A.K. Gupta, the learned counsel for the appellant submitted that the High Court literally exercised appellate powers and recorded findings of fact differing from those recorded by the Labour Court and this, he complained, had been done by an unfair reading of the order of the Labour Court and without the High Court itself considering a single item of evidence or document.
We are afraid there is considerable force in Shri Gupta 's criticism.
Curiously enough, the Learned Single Judge of the High Court affirmed the finding of the Labour Court that D.P. Maheshwari was not employed in a supervisory capacity.
He said, "In the face of this material and the admitted hypothesis the conclusion that the respondent was not 954 mainly employed in a supervisory capacity is certainly a possible conclusion that may be arrived at by any Tribunal duly instructed in the law as to the manner in which the status of an employee may be determined.
It is, therefore, not possible for this Court to disturb such a conclusion having regard to the limited admit of review of the impugned order." Having so held, the Learned Single Judge went on to consider whether the workman was discharging duties of a clerical nature.
He found that it would be difficult to say that D.P. Maheswari was discharging 'routine duties of a clerical nature which did not involve initiative, imagination, creativity and a limited power of self direction. ' The Learned Single Judge did not refer to a single item of evidence in support of the conclusions thus recorded by him.
He appeared to differ from the Labour Court on a question of fact on the basis of a generalisation without reference to specific evidence.
No appellate court is entitled to do that, less so, a court exercising supervisory jurisdiction.
Referring to the finding of the Labour Court that the workman was discharging mainly clerical duties the Learned Single Judge observed, "It is erroneous to presume, as was apparently done by the Additional Labour Court, that merely because the respondent did not perform substantially supervisory functions, he must belong to the clerical category.
" This was an unfair reading of the Labour Court 's judgment.
We have earlier extracted the relevant findings of the Labour Court.
The Labour Court not only found that the workman was not performing supervisory functions but also expressly found that the workman was discharging duties of a clerical nature.
The Division Bench which affirmed the judgment of the Learned Single Judge also read the judgment of the Labour Court in a similar unfair fashion and observed.
" It is no doubt true that the Labour Court held that the appellant 's evidence showed that he was doing mainly clerical work.
As we read the order as a whole it appears that in arriving at this conclusion the Labour Court was greatly influenced by the fact that the appellant was not employed in a supervisory capacity.
" We have already pointed out that the Labour Court did not infer that the appellant was discharging duties of a clerical nature from the mere circumstance that he was not discharging supervisory functions.
The Labour Court considered the entire evidence and recorded a positive finding that the appellant was 955 discharging duties of a clerical nature.
The finding was distinct from the finding that the appellant was not discharging supervisory function as claimed by the company.
We would further like to add that the circumstance that the appellant was not discharging supervisory functions was itself a very strong circumstance from which it could be legitimately inferred that he was discharging duties of a clerical nature.
If the Labour Court had drawn such an inference it would have been well justified in doing so.
But, as we said, the Labour Court considered the entire evidence and recorded a positive finding that the workman was discharging duties of a clerical nature.
The Division Bench, we are sorry to say, did not consider any of the evidence considered by the Labour Court and yet characterised the conclusion of the Labour Court as perverse.
The only evidence which the Division Bench considered was that of M.W.I.Shri K.K. Sabharwal and under the impression that the Labour Court had not considered the evidence of K.K. Sabharwal, the Division Bench observed.
"The non reference to the said evidence while discussing the point in issue, would clearly vitiate the order to the Labour Court.
" This was again incorrect since we find that the Labour Court did consider the evidence of M.W.I fully.
Shri G.B. Pai, Learned Counsel for the company, drew our attention to the qualifications of the appellant and certain letters written by him to the Managing Director and argued that the qualifications and the letters indicated that the appellant was discharging duties, not of a clerical nature but those of a senior executive closely in the confidence of the Managing Director.
We are enable to agree with Mr. Pai.
First, we are not prepared to go behind the finding of fact arrived at by the Labour Court which certainly was based on relevant evidence and next, all that we can say from the qualifications and the letters is that the appellant was occasionally deputed by the Managing Director to undertake some important missions.
The question is what were his main duties and not whether he was occasionally entrusted with other work.
On that question, the clear finding of the Labour Court is that he was mainly discharging duties of a clerical nature.
We are clearly of the opinion that the High Court was totally unjustified in interfering with the order of the Labour Court under article 226 of the Constitution.
We set aside the judgments of the Learned Single Judge and the Division Bench of the Delhi High 956 Court, restore the order of the Additional Labour Court and direct the Additional Labour Court to dispose of the reference within a period of three months from the date of communication of this order to that Court.
That appellant is entitled to his costs which we stipulate at Rupees five thousand.
H.L.C. Appeal allowed.

summary:
An industrial dispute concerning the termination of services of the appellant in 1969 was referred for adjudication by the Labour Court under sections 10 (1) (c) and 12 (5) of the Industrial Disputes Act in the year 1970.
The Management of the company in which he was employed questioned the reference itself by filing a petition under article 226 and when it was rejected, the Management raised a preliminary contention before the Labour Court that the appellant was not a 'workman ' and therefore the reference was incompetent.
The Labour Court, after a detailed and careful examination of the oral and documentary evidence produced by both the appellant and the Management came to the conclusion that the appellant was a 'workman ' under section 2 (s) of the Act as he was employed mainly for clerical duties.
This finding was challenged by the Management once again by filing a petition under article 226 and a Single Judge of the High Court allowed the same and quashed the order of the Labour Court as well as the reference made by the Government.
On his appeal having been rejected by a Division Bench of the High Court, the appellant approached this Court under article 136.
Allowing the appeal, ^ HELD: The nature of jurisdiction under article 226 is supervisory and not appellate while that under article 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice.
In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.
[951 G H] Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down.
Tribunals and Courts who are requested to decide preliminary questions must 950 ask themselves whether such threshold part adjudication is really necessary and whether it will not lead to other woeful consequences.
There was a time when it was thought prudent and wise to decide preliminary issues first.
But the time appears to have arrived for a reversal of that policy.
It is better that tribunals, particularly those entrusted with the task of adjudicating Labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.
Nor should High Courts in the exercise of their jurisdiction under article 226 stop proceedings before a Tribunal so that a preliminary issues may be decided by them.
Neither the jurisdiction of the High Court under article 226 nor the jurisdiction of this Court under Art 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them.
Articles 226 and 136 are not meant to be used to break the resistance of workmen in this fashion.
[951 F, C D] The instant case relates to a dispute originating in 1969 and referred for adjudication in 1970 which is still at the stage of decision of a preliminary objection.
The Labour Court considered the entire evidence and recorded a positive finding that appellant who was discharging duties of a clerical nature was a 'workman '.
The Single Judge of the High Court did not refer to a single item of evidence while reversing the finding of the Labour Court.
He appeared to differ from the Labour Court on a question of fact on the basis of a generalisation without reference to specific evidence.
The Division Bench which affirmed the judgment of the Single Judge also read the judgment of the Labour Court in a similar unfair fashion and did not consider any of the evidence considered by the Labour Court and yet characterised the conclusion of the Labour Court as perverse.
No appellate Court is entitled to do that less so, a Court exercising supervisory jurisdiction.
[951 C, 953 B, 954 C D, 955 C]


judgement:
tition (Criminal) No. 53 of 1983.
(Under Article 32 of the Constitution of India) J. Verghese for the Petitioner.
A. K. Sanghi and D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This writ petition has been filed on the basis of a letter addressed by one Ram Kumar Misra, President of Free Legal Aid Committee, Bhagalpur.
This letter complained that the workmen employed in two ferries one at Bhagalpur and the other at Sultanganj which were being operated by respondent No. 5 were not being paid minimum wages as prescribed by the relevant notification issued under the .
The wages of the workmen employed in these two ferries were given in the annexure to the letter and the amount of the difference between what the petitioner claimed to be the minimum wage payable to the workmen and the actual wage paid to them, was set out in the annexure.
The letter was treated as a writ petition and by an order dated 25th January, 1983, this Court issued notice on the writ petition and on Mr. Goburdhan, learned Advocate, for the State of Bihar, waiving service of the notice, the District Magistrate, Bhagalpur and Ram Kumar Misra, the petitioner, were directed to jointly carry out an inquiry into the various averments made in the writ petition and submit a report within two weeks from the date of the order.
The direction for holding an inquiry was given by us because we wanted to satisfy ourselves whether there was a prima facie case to proceed further with the writ petition.
Pursuant to the order made by us, the District Magistrate, Bhagalpur and the petitioner conducted a joint inquiry into the various averments made 1013 in the writ petition and they finally submitted a report dated 23rd February, 1983 stating that in their opinion, in the light of the material gathered at the inquiry, the ferries operated by respondent No. 5 at Bhagalpur and Sultanganj were establishments to which the applied, since they fell within Entry 27 in the Schedule to the Act and respondent No. 5 was, therefore, liable to pay minimum wage to the workmen employed in the two ferries with effect from 20th January, 1979, that being the date when the notification issued under section 3(1) (a) of the was amended so as to make the minimum wage applicable to "employment in any shop or establishment other than that covered under any of the other entries in this Schedule.
" We may point out that there was also one other complaint in the writ petition, namely, that the workmen were made to work as bonded labourers, but his complaint was not found to be correct by the District Magistrate, Bhagalpur and the petitioner in the Report made by them.
When the report was received by this Court, copies thereof were supplied to the learned Advocates appearing on behalf of the parties.
Respondent No. 5, who was joined as respondent to the writ petitions on an application made by him and who appeared at the hearing of the writ petition, disputed the correctness of the report made by the District Magistrate, Bhagalpur and the petitioner.
It is not necessary for us for the purpose of the present writ petition to go into the question whether the facts stated in the report are correct or not, because, as we have stated above, the report was called for by us for the purpose of satisfying ourselves that there was a prima facie case for respondent No. 5 to meet.
The only question which was raised before us and argued vehemently on both sides was whether the applied at all to the Bhagalpur and Sultanganj ferries owned by respondent No. 5.
argument of respondent No. 5 was that the had no application to these two ferries since they did not fall within any of the entries in the Schedule to the Act, whereas, on the other hand, both the petitioner and the State Government argued that the Act applied to these two ferries because they were establishments within Entry 27 of the Schedule to the Act.
These rival contentions raised a short question of construction of the relevant provisions of the and the notifications issued under that Act.
1014 The provides for fixation of Minimum rates of wages in certain employments.
3(1) (a) provides that the appropriate Government shall fix the minimum rates of wages payable to employees employed in an employment specified in or of the Schedule.
Sub section (IA) of Section 3 enacts that "Notwithstanding anything contained in sub sec.
(1), the appropriate Government may refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are in the whole state less than 1,000 employees engaged in such employment.
" It is obvious that sub sec.
(IA) of sec.
3 does not preclude the appropriate Government from fixing minimum rates of wages in respect of any scheduled employment even if there are in the whole State less them 1,000 employees engaged in such employment.
It merely empowers the appropriate Government to refrain from fixing minimum rates of wages in respect of such employment.
Leaving it open to the appropriate Government to fix minimum rates of wages in respect of such employment, if it so thinks fit.
The Schedule to the Act lists various employments in respect of which minimum rates of wages can be fixed by the appropriate Government.
Mr. Verghese, learned Advocate appearing on behalf of the petitioner, relied on Entry 6 of the Schedule which reads "Employment under any local authority" but we do not think any reliance can be placed upon it, because in the present case, the workmen, on whose behalf claim of minimum wages has been made, are not employed under any local authority.
Respondent No. 5, who is the employer of the workmen employed in the Bhagalpur and Sultanganj ferries, is not a local authority; he is merely a lessee of the tolls of public ferry.
Entry 6 in the schedule can, therefore, have no application in the present case, but there is Entry 27 in the Schedule which helps the petitioner.
This Entry prior to its amendment by the State Government on 25th November, 1978 read as follows: "27.
Employment in Shops and Establishments registered under the Bihar Shops and Establishments Act, 1953 other than those covered under any of the other entries in this Schedule.
" The Bhagalpur and Sultanganj ferries were not establishments registered under the Bihar Shops and Establishments Act, 1953 and prima 1015 facie, they would not, therefore, be covered by Entry 27 as it stood prior to 25th November, 1978.
But Entry 27 was amended to enlarge its scope and the amended Entry ran as follows: 27.
Employment in any Shop or establishment other than that covered under any of the other entries in this Schedule.
" The State Government thereafter issued a Notification dated 20th January, 1979 in exercise of the powers conferred under sec.
3(1) (a) of the amending an earlier Notification dated 25th June 1975 under which rates of minimum wages were fixed for different categories of employees employed in shops and establishments registered under the Bihar Shops and Establishments Act, 1953 other than those covered under any of the other entries in the Schedule and by this amendment, the words "Employment in Shops and establishments registered under the Bihar Shops and Establishments Act, 1953 other than those covered under any of the other entries in this Schedule" were substituted by the words "Employment in any shop or establishment other than that covered under any of the other entries in this Schedule.
" The object of the amendment was to make the Notification dated 25th June, 1975 applicable in relation to employment in any shop or establishment other than that covered under any of the other entries in the Schedule so as to bring it in line with the amended Entry 27 in the Schedule.
Now it is clear from the Explanation to the amended Entry 27 that the word "establishment" in that entry has the same meaning which is assigned to it in the Bihar Shops and Establishments Act, 1953 and we must, therefore, look at the definition of "establishment" as given in the Bihar Shops and Establishments Act, 1953 in order to determine as to whether the Bhagalpur and Sultanganj ferries could be said to be establishments within the meaning of the amended Entry 27.
The word "establishment" is defined in sec.
2(6) of the Bihar Shops and Establishments Act, 1953 to mean an establishment which carries on any business, trade or profession or any work in connection with, or incidential or ancillary to, any business, trade or profession.
Now it can hardly be disputed that the Bhagalpur and Sultanganj ferries are establishments which carry on business or trade of plying ferries across the Ganges and they are clearly within the meaning of the word "establishment" in sec.
2(6) 1016 of the Bihar Shops and Establishments Act, 1953 and consequently they would also be establishments within the meaning of that expression as used in the amended Entry 27.
The would, therefore, clearly be applicable to employment in the Bhagalpur and Sultanganj ferries.
Since the Notification dated 25th June, 1975 as amended by the Notification dated 20th January, 1979 fixed rates of minimum wages for different categories of employees employed in any establishment, which would cover the Bhagalpur and Sultanganj ferries, there can be no doubt that the workmen employed in these two ferries were entitled to receive minimum wages as laid down in the Notification dated 25th June, 1975 read with the Notification dated 20th January, 1979 with effect from the date of latter notification.
It appears that a further Notification was issued by the State Government on 26th November, 1981 in exercise of the powers conferred under sec.
3(1) read with sec.
5(2) of the revising the minimum rates of wages for different categories of employees employed in any shop or establishment other than that covered under any of the other entries in the Schedule.
This Notification came into force with effect from 26th November, 1981.
The workmen employed in Bhagalpur and Sultanganj ferries were, therefore, entitled to the revised minimum wage as set out in the Notification dated 26th November, 1981 with effect from that date.
We accordingly reach the conclusion that the workmen employed in the Bhagalpur and Sultanganj ferries were entitled to receive minimum wage as set out in the Notification dated 25th June 1975 as amended by the Notification dated 20th January 1979 for the period from 20th January 1979 upto 25th November 1981 and thereafter at the rate fixed in the Notification dated 26th November 1981.
The question, however, remains whether the workmen were paid wages at these minimum rates.
Since there is a dispute between the parties in regard to this question, the argument of the petitioner being that the workmen were not paid wages at these minimum rates, while the contention of respondent No. 5 being that they where so paid, it becomes necessary to give directions for the purpose of determining whether the workmen employed in these two ferries were paid wages at these minimum rates with effect from 20th January, 1979.
We would therefore direct the Labour Department of the Government of Bihar to intimate to the petitioner as to which 1017 is the appropriate authority under the Minimum wages Act, 1948 for adjudicating upon the claims of the workmen employed in these two ferries for arrears of minimum wage.
The appropriate authority will, by adopting suitable means including the giving of publicity, invite the workmen to file their claims for arrears of minimum wage and not only the workmen will be entitled to file their claims but the petitioner who has moved this court will also be at liberty to file claims on behalf of the workmen for arrears of minimum wage.
The appropriate authority will inquire into all such claims which may be filed before it by or on behalf of the workmen and determine, after giving full opportunity to respondent No. 5 of being heard in the matter, whether any and if so what arrears of minimum wage in the light of this judgment remain to be paid by respondent No. 5 to the workmen employed in these two ferries.
The workmen will be entitled to appear before the appropriate authority either personally or through their agent or advocate and the petitioner will also be at liberty to appear before the appropriate authority on behalf of the workmen.
If any amount is determined by the appropriate authority to be payable by respondent No. 5 to any of the workmen in respect of the arrears of minimum wage, respondent No. 5 is directed to make payment of the same within one month from the date of the order of the appropriate authority.
The appropriate authority will carry out the directions given by us and complete the assignment entrusted to it within six months from today.
We would also direct respondent No. 5 to pay to the workmen employed in these two ferries minimum wage at the rate fixed under the Notification dated 26th November 1981 or at such other revised rate or rates as may be fixed from time to time.
So far as the costs of the writ petition are concerned since the petitioner has come to this Court for the purpose of vindicating the rights of poor workmen, he we would direct the State of Bihar to pay to the petitioner a sum of Rs. 2,000 by way of costs.
H.S.K. Petition allowed.

dataset_name: IN-Abs

summary:
The petitioner complained that the workmen employed in the two ferries, one at Bhagalpur and the other at Sultanganj, operated by respondent No. 5 were not being paid minimum wages as prescribed by the relevant notifications issued by the State of Bihar under the .
Respondent No. 5 contended that the was not applicable to these two ferries.
Allowing the writ petition, ^ HELD: The Schedule to the lists various employments in respect of which minimum rates of wages can be fixed by the appropriate Government.
Entry 27 of the Schedule which dealt with employment in shops and establishments registered under the Bihar Shops and Establishments Act, 1953, was amended on 25.11.1978 to enlarge its scope to cover employment in any shop or establishment other than that covered under any of the other entries in the Schedule.
It is clear from the Explanation to the amended Entry 27 that the word "establishment" in that entry has the same meaning which is assigned to it in the Bihar Shops and Establishments Act, 1953 and the court must, therefore, look at the definition of "establishment" as given in the Bihar Shops and Establishments Act, 1953 in order to determine as to whether the Bhagalpur and Sultanganj ferries could be said to be establishments within the meaning of the amended Entry 27.
The word "establishment" is defined in see.
2(6) of Bihar Shops and Establishments Act, 1953 to mean an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession.
Now it can hardly be disputed that the Bhagalpur and Sultanganj ferries are establishments which carry on business or trade of plying ferries across the Ganges and they are clearly within the meaning of the word "establishment" in sec.
2(6) of the Bihar Shops and Establishments Act, 1953 and consequently they would also be establishments within the meaning 1012 of that expression as used in the amended Entry 27.
The would, therefore, clearly be applicable to employment in the Bhagalpur, and Sultanganj ferries.
[1014 D, G H; 1015 A B G H; 1016A] The workmen employed in the Bhagalpur and Sultanganj ferries were entitled to receive minimum wage as set out in the Notification dated 25th June 1975 as amended by the Notification dated 20th January 1979 for the period from 20th January 1979 upto 25th November 1981 and thereafter at the rate fixed in the Notification dated 26th November 1981.
[1016 F G]


judgement:
N: Criminal Appeal No. 609 of 1981.
Appeal by Special leave from the judgment and Order dated the 22nd July, 1983 of the Allahabad High Court in Criminal Appeal No. 1237 of 1979.
O.P. Malhotra and D. Bhandari for the Appellant.
V. M. Tarkunde, U.R. Lalit, Dr. B.S. Chauhan and B.B. Singh, for the Respondent.
The Judgment of the Court was delivered by THAKKAR, J.
A doctor in a Government Hospital was found guilty of demanding and accepting illegal gratification from the father of a patient under his treatment at the Hospital and was convicted for an offence under Section 5 (1) (d) of Prevention of Corruption Act, 1947, and for an offence under Section 161 of Indian Penal Code by the Special Judge, Kanpur.
The appeal preferred by the convict, Dr. Ghosh was allowed, and the order of conviction and sentence was set aside by the High Court.
The State has called into question the said order of acquittal rendered by the High Court in this appeal by special leave.
The High Court allowed the appeal on forming the opinion that Dr. Ghosh (the respondent herein) might have demanded and accepted the amount as and by way of his professional fees inasmuch as a Government doctor was permitted to have private practice of his own as per the relevant rules, though such was not his defence at any stage.
Having regard to the facts and circumstances of the case, even the learned counsel for the respondent is unable to support the reasoning which found favour with the High Court.
The respondent accused had not offered any such explanation in his statement recorded under Section 313 of the Code of Criminal Procedure.
In fact the defence of the respondent before the Sessions Court was that 996 he had never accepted any such amount from PW 3 Babu Lal.
It was his case that the story regarding passing of the currency notes was concocted and that he had not accepted any currency notes from PW 3, as alleged by the prosecution.
According to him he had been 'framed '.
What is more, it is obvious that if the respondent had accepted monetary consideration in respect of a patient being treated at the Government hospital, it could scarcely have been contended that it was a part of permissible private practice and not illegal gratification.
The High Court resorted to surmises and conjectures for which there was not the slightest basis, apart from the fact that no such defence was taken and no such plea was ever advanced by the respondent accused.
Under the circumstances the decision of the High Court cannot be sustained on the basis of the reasoning which found favour with it.
The finding of guilt, recorded by the Sessions Court, will therefore have to be examined afresh on merits, since the High Court has altogether failed to undertake the exercise of scrutinizing and making assessment of the evidence.
If only the High Court had performed this function, as usual, and had recorded its finding in regard to the question of reliability and credibility of witnesses, and, after weighing the probabilities, and taking into account the circumstantial evidence, had recorded a finding of fact, as it was expected to do, we would not have been obliged to undertake this function which properly falls within the sphere of the High Court in its capacity as the appellate court.
As it is, in the peculiar facts and circumstances of the case, we have no option put to do so here.
The prosecution case broadly stated is as under: Respondent was an Orthopaedic Surgeon in the UHM Hospital at Kanpur.
He was incharge of the Orthopaedic Department In his capacity as a Government Medical Officer he was allotted an official residence within the campus of the Hospital.
As per the then prevailing rules he was permitted consultation practice at his residence in the evening.
One Kumari Ramsri, 13 years old daughter of PW 3, Babu Lal, a worker employed in a parachute factory as a packer, was suffering from bone T. B. and was admitted to the UMH Hospital on 18th February 1976.
She was referred to the Orthopaedic section on 19th February 1976.
She was placed under the treatment of respondent Dr. Ghosh.
After about six or seven days respondent asked PW 3 to remove the patient from the hospital saying that she was cured.
PW 3 objected saying that the condition of his child had not improved.
The respondent asked PW 3 to see 997 him at his residence in the evening.
It appears that at the hospital Babu Lal learnt that he would have to pay some money to the respondent, Dr. Ghosh, if he wanted his child to be treated properly.
PW 3 therefore paid Rs. 20 to the respondent when he called on him at his residence in the evening as suggested earlier.
Thereupon the respondent told PW 3 that his child would be permitted to remain in the hospital for treatment.
Even so some seven or eight days later respondent asked PW 3 to remove the child from the hospital.
It appears that PW 3 gathered the impression that he would have to pay money to the respondent for obtaining proper treatment at the hospital.
PW 3 in this background made a request to the respondent to issue a certificate so that he could get a loan or advance for the medical expenses.
The respondent told PW 3 that he would have to pay a sum of Rs. 250 to obtain a certificate to enable him to obtain a loan of Rs. 500.
PW 3 refused to accede to the demand.
Thereupon the respondent told him to remove the patient from the hospital.
In view of what transpired, PW 3 met the respondent on March 13, 1976, and requested him to issue a certificate to enable him to obtain a loan from the factory.
The respondent again told him that he would not issue a certificate unless his demand for Rs. 250 was met.
PW 3 made entreaties to the respondent but the respondent did not relent.
He told him to remove the patient from the hospital.
Thereupon PW 3 promised to the respondent that he would make some payment immediately and that the remaining amount would be paid shortly thereafter.
PW 3 went back to bring the money.
It appears that he felt exasperated and conceived the idea of trapping the respondent at this juncture.
He had five currency notes of the denomination of Rs. 10 with him.
He noted down the numbers of these notes and carried the sum with him when he again approached the respondent.
The respondent accepted the five currency notes but refused to issue a certificate unless the remaining amount of Rs. 200 was paid to him, though PW 3 promised to pay the remaining amount within three or four days.
PW 3 was thereupon very much annoyed by the attitude of the respondent and he decided to approach the Vigilance Department.
He approached the Vigilance Officer and lodged complaint exhibit KA 8 on March 31, 1976.
It appears that he had borrowed Rs. 200 with a view to provide the currency notes for laying a trap.
He had carried 20 ten rupee notes with him.
In the complaint lodged by him, Exhibit KA 8, he specified the numbers of the 5 ten rupee notes which he had already given to the respondent on the earlier occasion, the numbers of which he had noted down previously.
He also specified the numbers of the 20 ten rupee notes provided by 998 him at the time of lodging the complaint.
The Superintendent of the Vigilance Department, Shri I.P. Bhatnagar, called his Deputy, Dy.
section P. Pandey, and asked him to do the needful in the matter.
section P. Pandey asked PW 3 to meet him on April 2, 1976 at 5 30 p. m. in Kaushik Park.
Meanwhile, Superintendent Bhatnagar contacted the Director of Vigilance Department and moved the competent authority for the requisite permission.
The Commissioner Cum Secretary of the Vigilance Department, Shri Khodaji, granted written permission to lay a trap against respondent Dr. Ghosh.
On receiving the sanction Superintendent Bhatnagar directed Dy.
section P. Pandey to proceed to lay the trap.
It is the prosecution case that thereafter PW 3 contacted Dy.
section P. Pandey at Kaushik Park on April 2, 1976 at 5 30 p.m. Two witnesses were called.
The currency notes were handed over to PW 1, Inspector Bahadur Singh.
Initials were made on the 20 G. C. notes, the notes were treated with Phenophthalin powder and the plan of the trap was explained to PW 3, the public witnesses, and to the members who were to accompany the party.
As per the plan, initially, Sham Lall and Thakur Parshad were sent to the consultation room of the respondent on the second floor of his residence.
What transpired need not be stated as he has not been examined as a witness.
After Sham Lal returned.
PW 3, along with PW 2 Constable Bachu Lal, entered the Consultation room.
PW 2 was in plain clothes and had posed as the elder brother of PW 3.
When both of them entered the Consultation room respondent enquired from PW 3 whether he had brought the money.
PW 3 replied in the affirmative.
PW 3 then handed over the 20 ten rupee notes which had been treated with powder and the numbers of which had been noted down in the complaint against the respondent.
The respondent took these notes in his hands and placed the same in the left front pocket of his bush shirt.
Thereafter the respondent took the form on which he was to issue the certificate from P.W. 3 and started filling in the details.
The form was a typed one and there were blank spaces which were required to be filled in.
The typed portion appeared as under: Certified that Shri/Km.______________________D/o Shri __________________ _______ of ORDANCE PARACHUTE FACTORY, Kanpur has been admitted in the Hospital for the treatment of___________________.
He will stay in Hospital for ____________ days.
The anticipated expenditure likely to incur is Rs. _________ .
Shri________________________ is recommended to draw Medical Advance of Rs.______________________ 999 ________________from_______________________from his employer.
Station Kanpur Medical Officer Date: Kanpur The respondent filled in the name of the patient in the first line and mentioned her age (Ramsri, 13) in his own hand by pen.
He also mentioned the name of PW 3 (Babu Lal) in the relevant column in the second line.
In the fourth line in the blank space he mentioned the name of the disease (T.B. Left Hip).
He also mentioned the date of admission in his own hand (18 2 76).
Having filled in these blanks he was about to fill up the blank in the fifth line for mentioning the number of days for which the patient was retained in the hospital and to mention the estimated amount of expenditure and to fill up the details in the remaining columns.
At this juncture, it is the prosecution case, the members of the raiding party carried out the raid in the wake of a signal given by PW 2 Bachu Lal as per the instructions given at the time of arranging the plan.
Since the respondent was interrupted when he was filling up the blanks, he could not complete the form and make his signature.
The half filled certificate form, exhibit KA 5, was seized in the presence of the public witnesses.
The respondent was asked if he had accepted money from PW 3.
The respondent hereupon took out the 20 ten rupee notes from his pocket and handed over the same to Dy. section P. Pandey.
The numbers of the currency notes were tallied with the numbers mentioned in complaint, exhibit KA 3, and incorporated in Farad exhibit KA 1.
The currency notes were placed in an envelope which was sealed.
The hand of the respondent was washed in a cup of solution of Sodium Carbonate in the presence of the witnesses.
The solution turned red.
The parse of the respondent was searched.
The bushshirt put on by the respondent, exhibit KA 22, was also seized and a part of the bush shirt was washed in a solution which thereupon turned red.
Thereafter Dy. section P. Pandey made enquiry about the 5 ten rupee notes given by PW 3 on the earlier occasion and carried out the search of the living room of the bungalow which was on the first floor.
It is the prosecution case that the respondent provided the key of the almirah which was in the living room and the almirah was opened with that key.
Two ten rupees notes were found from that almirah.
The numbers of these notes were tallied with two of the five numbers specified in Complaint KA 8.
These notes were 1000 also seized and were placed in an envelope which was sealed.
Meanwhile, the respondent had fainted.
The copy of the Farad prepared at the time of raid was therefore handed over to his wife after obtaining her signature on the Farad in token of the receipt of the copy thereof.
Thereafter the investigation was taken over by PW 6 Dy.
section P. Tripathi of the Vigilance Establishment, who interrogated the witnesses concerned and recorded the statements in the course of the investigation.
The sanction for prosecuting respondent Dr. Ghosh was obtained from the Government of U.P. and the charge sheet against the accused was submitted in due course.
At the trial Dr. section P. Pandey could not be examined because he was not alive at the relevant point of time (he was killed in the course of an encounter with dacoits before the trial commenced).
Out of the two public witnesses, one, PW 5 Ram Singh, has been examined.
The other public witnesses Thakur Prasad has not been examined as his evidence would have been of a repetitive nature.
Sham Lal was not examined on the ground that he had been won over by the defence.
Apart from complainant, PW 3 Babulal, three of the members of the raiding party viz. PW 1 Bahadur Singh, Inspector Vigilance Department, and PW 2 constable Bachu Lal who had posed as the brother of PW 3 and had accompanied him when he entered the consultation room, were examined at the trial.
The defence examined five witnesses.
Though the respondent did not himself enter into the witnesses box to give evidence on oath, he was interrogated section 313 of Cr.
P.C. He made his oral statement in the court and also submitted a written statement in order to explain the circumstances appearing against him.
The learned Special Judge excluded from consideration the evidence of PW 5 Ram Singh in view of the criticism levelled by the defence in regard to his selection.
The learned judge however considered the evidence of PW 3 complainant Babulal as reliable.
He also relied upon the evidence of PW 1 Inspector Bahadur Singh and PW 2 Constable Bachulal.
Taking into account the totality of the evidence including the direct evidence and the circumstantial evidence (which inter alia consisted of the seizure of the incomplete form, KA 5, from the consultation room of the respondent at the time of the raid) and the explanation offered by the respondent in regard to various circumstances appearing against him, the learned Special Judge reached the conclusion that the prosecution had established beyond reasonable doubt that the respondent had demanded and accepted illegal gratification.
The learned Special 1001 Judge thereupon convicted the respondent for the offence under Section 161 IPC as also for the offence under Section 5(1) (d) of the Prevention of Corruption Act.
He imposed a substantive sentence of Rigorous Imprisonment for two years and imposed a fine of Rs. 5,000 (in default to undergo R.I. for four months).
The appeal preferred by the respondent was allowed in the circumstances mentioned earlier in the course of the judgment.
For the reasons indicated earlier, the judgment rendered by the High Court is of no assistance and we will have to reach our own conclusion as to whether the learned Special Judge was justified in recording the finning of guilt and convicting the respondent in the aforesaid manner.
The learned Special Judge was perfectly justified in making the cautious approach adopted by him in excluding from consideration the evidence of the public witness, PW 5, Ram Singh.
We will have also to do likewise and exclude his evidence from consideration to be on the safe side.
We will have to examine whether the learned Special Judge was justified in recording the finding of guilt on the basis of the rest of the evidence, and the circumstances appearing against the respondent, taken along with the explanation offered by him.
By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant.
There are numerous reasons for the reluctance.
In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers.
He has to provide his own currency notes for arranging a trap.
He has to comply with several formalities and sign several statements.
He has to accompany the officers and participants of the raiding party and play the main role.
All the while he has to remain away from his job, work, or avocation.
He has to sacrifice his time and effort whilst doing so.
Thereafter, he has to attend the court at the time of the trial from day to day.
He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault.
In the result, a citizen who has been harassed by a Government officer, has to face all these hazards.
And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the 1002 wrath of the Government servants of the department concerned, in his future dealings with the department.
No one would therefore be too keen or too anxious to face such an ordeal.
Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap.
His evidence cannot therefore be easily or lightly brushed aside.
Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go bye to the rules, the official refuses to yield.
It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness.
This is true, but only to an extent a very limited extent.
He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification, is protected and the role of his department in the protection of such citizens is vindicated.
Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap.
At the same time it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant.
In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to except the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience.
The court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent.
When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case.
The present appears to be a case of that nature.
If the circumstantial evidence is of such a 1003 nature that it affords adequate corroboration to the prosecution case, as held by the learned Special Judge, the appeal must succeed.
If on the other hand the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal necessarily must fail.
Two facts have emerged from the evidence.
First, that when the fingers of the accused were dipped in the solution, the liquid turned red, evidencing the presence of phenolpththalein in powder on the fingers of the accused.
The second feature of the prosecution case is the seizure of an incomplete form of medical certificate which was half filled in the handwriting of the accused himself.
It is not disputed that this document was seized by the Investigating Officer.
It is not disputed that the certificate is half filled.
A part of it is admittedly filled in the handwriting of the accused himself.
It is not disputed that when the blanks in the form were being filled the accused abruptly stopped and did not complete the remaining part of the form.
Now, the prosecution version is that illegal gratification was demanded by the accused from the complainant (PW 3, Babulal) for issuing this medical certificate.
It is also the prosecution case that when the agreed amount of Rs. 200 was paid to the accused he accepted the currency notes and put the same in the pocket of his bush coat.
Thereafter, he started filling the form of medical certificate which was to be issued as and by way of consideration for the illegal gratification paid to him.
When he was in the process of preparing this certificate, at the point of time when he had filled it partly, the raiding party arrived upon the pre agreed signal being given.
In other words the prosecution case is that it was in these circumstances that a form of medical certificate which was partly filled in by the accused and which was partly incomplete was found on the table of the accused and was seized from his private consultation room.
It must be realised that even the most crafty police officer who conspired with the complainant to lay a false case in order to rope in an innocent doctor would not be in a position to obtain a half complete medical certificate partly filled in the handwriting of the accused himself.
If the prosecution version is believed, the seizure of the incomplete medical certificate partly filled in by the accused himself leaves no room for doubt that the accusation is true.
It is rarely that such a piece of evidence would be available to the prosecution.
The fact that the form has been partly filled by the accused himself is admitted in the statement made by him under Section 313 of the Code of Criminal Procedure.
It is an undisputed 1004 fact that the medical certificate was being prepared at the request of the complainant by the accused in his own handwriting and that he abruptly stopped midway and left the from half filled and incomplete.
The prosecution version pertaining to the circumstances in which this situation arose has already been adverted to.
The defence version as to (1) the circumstances in which he started preparing the medical certificate in his own writing and stopped abruptly and (2) the circumstances in which the said half completed certificate happened to fall into the hands of the Investigating Officer, must now be scrutinized with a view to find out whether the version passes the test of probabilities unscathed.
And with a view to find out whether the explanation offered by the defence, in order to move away the finger of guilt pointed at him by this incriminating circumstance, is good enough.
If the outcome is in favour of the defence, the order of acquittal can be sustained.
Not otherwise.
This is therefore, one of the crucial circumstances on which, in a way, the entire case turns.
Let us now therefore have a close look at the explanation offered by the accused, which may be quoted verbatim for the sake of preciseness: "Once after finishing my round I was returning back.
At that time Babulal came to me and told that in the present days of emergency he was not given leave.
He requested me to write only this much in the form that his daughter Ram Shri is under my treatment so that he could have leave for attending his daughter.
I replied that I will come back after performing an operation.
You place the form on table and am also calling for Bed Head Ticket.
Having returned from operation theatre I started filling the form and found that the form is incorrect.
At that time Babu Lal was not present there.
I stopped writing the form and kept the same on the table itself.
I can 't say as to how that from reached to the hands of Shri R.N. Pandey.
This from is exhibit Ka. 5.
Shri R.N. Pandey used to come to Shri B.M. Pandey.
" The explanation offered by the respondent does not carry conviction and appears to be highly improbable.
The respondent could not have been unaware of the form in which the certificate was to be issued.
The from presented to him was a typed form (it has 1005 been reproduced in extenso in the earlier part of the judgment) containing about eight lines with blank spaces which were required to be filled up.
He would have immediately realised at a bare glance that it was not the proper form before starting to fill up the form.
In any event if he had realised that the form was not a proper form after filling up four gaps, he would have at least conveyed to PW 3 that he could not issue the certificate in that form.
It is not even his case that he did so.
Besides, there was no point or purpose in keeping the half filled form on his table.
Why should he have preserved it at all ? It is inconceivable why he should preserve that half filled form and keep it in his office room on the hospital premises so that it can somehow make its way in the hands of the police.
It is also difficult to understand how anyone should know about the existence of this form, steal it, and pass it on to PW 3 or to the police officers so that it could be readily used in order to weave it in the story pertaining to what transpired at the time of the raid.
The respondent himself is unable to explain how the half filled form which was lying in his office room in the hospital made its way into the hands of the police officers.
Again, it will have to be assumed that the police officers from the very beginning knew that the respondent would not accept the currency notes from the complainant and they would have to 'frame ' him by preparing a Farad in which false recitals regarding seizure of the form were to be incorporated.
One does hot come across such co incidences in the ordinary course of life.
On probabilities it is well nigh impossible to believe that so many co incidences could have occurred namely, (1) the respondent could not realise that the form was not a correct form till he had filled up the particulars relating to the name of the patient, the date of the admission of the patient (which would have to be ascertained from the record), and the ailment from which the patient was suffering.
(2) It is also difficult to visualize that at that point of time on realizing the mistake, instead of tearing 'off ' the form, he would preserve the half completed form, and would go away from the office keeping it on the top of the table, so that some one could conveniently take it away.
(3) That such a form should conveniently fall into the hands of somebody inimical to him who could do quick thinking, conceive a design to trap him, and preserve it for future use to implicate him and (4) that such a person would know PW 3 and the police officers and pass it on to them to use it to 'frame ' the respondent.
Nobody could have known that such a form would be lying on his table.
Even if any member of the staff had found it on the table he would not have realised that 1006 it could be utilised for trapping the respondent through PW 3.
It is too much to believe that someone interested in framing the respondent had an easy access to his office room, could enter his office room in the absence of the respondent, and take away such a paper lying on his table.
And that such a person would contact PW 3, Babulal, and the police officers, and plant in their mind the idea that this document could be availed of for framing the accused.
It does not happen in real life.
On the other hand the prosecution version is very natural and probable.
The story regarding the demand for Rs. 200 was mentioned in Complaint Ka 14 which was forwarded by the Vigilance Commissioner to the Government for obtaining sanction.
The evidence of PW 3, Babulal, and the evidence of PW 2, Police Constable Bachu Lal, who accompanied him goes to show that as soon as the currency notes were handed over by PW 3 to the respondent he started filling up the form.
It was at that point of time that the signal was given and the raid materialized.
The respondent was caught red handed while actually engaged in filling up the form, now that his demand was met.
The form was seized under a Farad and a copy of this Farad was handed over immediately to the wife of the respondent after obtaining her signature on the original Farad in token of having received the copy.
This would go to show that there was no room or scope for any manipulation after the police officer left the consultation room of the respondent after the raid.
It was but natural for the respondent to start filling up the form as soon as the amount demanded by him was paid.
The fact that he had to stop in the midst when he was engaged in completing the form provides a very strong corroboration to the version of PW 2 and PW 3.
And when this evidence is weighed in the light of the explanation offered by the respondent, which fails to carry conviction and sounds extremely improbable, the circumstantial evidence provided thereby assumes very great importance.
The learned Special Judge was therefore perfectly justified in attaching great importance to this piece of circumstantial evidence.
As discussed earlier, it is very difficult to believe that PW 3, a poor mill worker, would go to the length of framing a Medical Officer of the Hospital where his child was taking treatment.
On probabilities it is not possible to believe that he would go to the length of securing currency notes to the tune of Rs. 200 to provide the same to the police officers for arranging the trap, and to expose himself to the hazards of becoming a witness in a criminal trial, just in order to rope in the respondent against whom there was no personal enmity.
On the other hand it is understandable if he was 1007 exasperated when he felt that his child was being denied proper medical treatment by the doctor who insisted on illegal gratification under one pretext or another.
And on account of the strong feeling of injustice it was understandable if he lodged a complaint with the Vigilance Department out of exasperation.
The respondent has no other explanation to except and save to the effect that PW 3 must have done it at the instance of one of his ambitious colleagues who was junior to him.
This is what the respondent says in his statement in this connection: "Baboo Lal had gone wrongly under this impression that his daughter had not been benefited by the treatment.
When she was brought in the hospital her condition was most precarious and was unable to speak.
She even was not in a position to tell her grief.
The treatment recovered her to this extent that she regained her senses and was able to talk and cry about her pain and grief.
Having regained sensibility she started feeling pain and she used to cry.
Baboo Lal hardly used to meet me.
I could see him in the hospital only once.
Whenever I went to check this patient at the time of round Baboo Lal never was there.
He never gave me this opportunity to convey him that how much the patient has been benefited and recovered by the treatment.
Baboo Lal used to come at evening and used to return back after meeting with doctors.
Dr. B. M. Pandey who was my immediate junior used to sit in my office in my absence because we both had a common office.
Dr. section P. Bhatnagar Pathologist had checked Kumari Ramsri and his report is present in the file.
Dr. B. M. Pandey and Dr. section P. Bhatnagar were close friends.
section P. Bhatnagar of Vigilance department is related to I. P. Bhatnagar.
Dr. B. M. Pandey and R. D. Pandey Director Vigilance are both residents of Distt.
Basti and are collaterals in family.
Once Dr. B. M. Pandey had attempted to dislodge me from U. H. M. Hospital and suddenly I got a transfer order.
All the ministers, M. L. As and Dy.
Ministers who were Pandeys were in the back of Shri B. M. Pandey.
My 1008 transfer was stayed by the Court.
Meanwhile, Dr. B. M. Pandey was posted in my department.
Dr. B. M. Pandey was posted on run way duty.
He was (Sic) not (Sic) of beds, but he had raised a dispute regarding allotment of beds.
Thereafter Dr. R. Shingal told me that he had been pressurised too much and he allotted ten beds of the Verandh to Dr. B. M. Pandey.
But B. M. Pandey was not allotted any bed in the family ward.
These beds of family ward remained under me.
It might be possible that Baboo Lal usually visited there and had meetings with Dr. Pandey.
" So also it is not possible to believe that all the police officers had from the beginning conspired to rope in the respondent by hook or crook and had carried with them the half complete form which was acquired in a fortuitous manner to the consulting room in order to prepare the fictitious Farad at the time of the raid.
It is not possible to believe that nothing had transpired at the raid, and yet, an imagined account of the occurrence and the seizure was incorporated in the Farad with a view to falsely implicate the respondent.
The explanation of the respondent as to why the police officers should have falsely implicated the respondent is also not convincing.
This is what he says: "A person by the name of Nathu had died in police lock up Hahi Police Station.
In that case Shri R. K. Shukla and other police officials were involved.
A vast enquiry was done in that case.
The post mortem of the dead body of Nathu was performed by me.
On that day Shri R. N. Pandey met me and presurrised me to give post mortem report to the effect that no reason could be ascertained of causing death.
I told him that whatever will be right and truth I would be giving the same in my report.
Shri R.N. Pandey told me that enmity with police is not good.
About 18 20 police employees were suspended on my report.
That case is still pending against the police officials.
I had performed the post mortem in Dec. 1974, and the revenge of the same was taken during emergency by Shri R. N. Pandey while having league with Dr. B.M. Pandey by laying a trap on me.
Baboo Lal was made a willing stooge." 1009 The incident was a relatively stale one and it is highly improbable that the entire police force would nurse a grievance on this score and wait for such an opportunity.
Be it realized that the child of PW 3 was genuinely afflicted with bone T.B. and was a genuine patient at the hospital.
The defence version is therefore altogether improbable.
The fact that the fingers of the respondent were dipped in the solution and the solution turned into red indicating that the flingers had come in contact with phenolphthalein powder is not disputed by the respondent, but he does not offer any explanation.
This all that he says: "Q. No. 11: It has come in the evidence that your fingers, pocket of the shirt from which currency notes were recovered were both separately dipped and washed in the solution of Sodium Carbonate.
The colour of the solution turned red.
Both the solutions were sealed in separate bottles which are Ext.
24 and Ext.
What you have to say in this regard ? Ans: I can 't say of what contents this solution was prepared.
When my fingers were got dipped in that solution the colour of the same turned red.
My bush shirt had been made to put off by me.
In my presence the pocket of the bush shirt was not dipped in the solution.
I don 't know whether they had sealed this red solution in bottles or not.
" Taking an overall view of the evidence of PW 1, PW 2, PW 3, and the circumstantial evidence, it is not possible to believe that the raid had proved abortive and yet everyone conspired together in order to falsely rope in the respondent.
Counsel for the respondent contended that it was not probable that PW 3 would agree to pay Rs. 250 in order to secure a loan of Rs. 500.
It must be realised that the amount which was being demanded was in the background of the fact that the complainant felt that his child was not being given proper treatment and unless money was paid to the respondent his child would not get proper treatment.
Nor can one be oblivious of the evidence of PW 3 to the effect that he was being asked to remove his child from the hospital even though she had not recovered.
Evidently the request for the issuance of the certificate merely provided an opportunity 1010 which was seized upon by the respondent for making PW 3 yield to this demand.
Again, the complainant had no option but to agree to give the amount demanded from him or to lay a trap, having regard to the fact that he was feeling that his child would not get proper treatment unless the demand was acceded to.
If the complainant was interested in inventing a story nothing could prevent him from inventing the story to the effect that the demand was being made for a smaller amount of say Rs. 50 or so.
This circumstance therefore cannot detract from the overall effect of the testimony of PW 3 Baboo Lal and PW 2 Bachu Lal who were present at the time of raid and the clinching circumstance as regards the seizure of the certificate which was admittedly filled in partly by the respondent in his own hand.
The evidence of PW 1 and PW 2 as also of PW 3, thus stands fully corroborated by the circumstantial evidence which lends assurance to it.
Under the circumstances the finding of guilt and the order of conviction recorded by the learned Special Judge was unexceptionable.
The High Court, as we pointed out earlier, set aside this finding under a serious misconception, on an altogether untenable reasoning, which even the counsel for the respondent has not been able to support.
Turning to the question of sentence, having regard to the fact that the respondent had to undergo the tension of a pending trial and a pending appeal for six years, and the fact that it will have adverse impact on his employment after 23 years, of service, no useful purpose would be served by imposing a long term of jail sentence.
The substantive sentence of two years ' R.I. is, therefore, reduced to one of 6 months ' R.I.
The appeal is accordingly allowed, the order of acquittal rendered by the High Court is set aside, and the finding of guilt and the order of conviction recorded by the learned Special Judge is restored, but the sentence is modified to the aforesaid extent.
The respondent shall surrender to bail in order to undergo the substantive sentence imposed on him.
S.R. Appeal allowed.

summary:
Respondent was an orthopaedic surgeon in the U.H.M. Hospital and was incharge of the Orthopaedic Department.
He was allotted an official residence within the campus of the hospital and as per the prevailing rules he was permitted consultation practice at his residence, He was found guilty of demanding and accepting illegal gratification from the father of a patient under his treatment at the hospital and was convicted for an offence under section 5(1) (d) of the Prevention of Corruption Act, 1947 and for an offence under section 161 of the Penal Code by the Special Judge, Kanpur.
Consequently he was sentenced to undergo to two years ' rigorous imprisonment and to pay a fine of Rs.5,000 (in default to undergo 4 months ' R.I.) The appeal preferred by the convict was allowed and the order of conviction and sentence was set aside by the High Court.
Hence the appeal by State, by special leave.
Allowing the appeal, restoring the finding of guilt, and order of conviction, but modifying the sentence, the Court, ^ HELD: (1) Only in exceptional cases and in the peculiar facts and circumstances of a case, the Supreme Court would be obliged, as in the instant case, to undertake upon itself the function of appreciation of evidence, which function properly falls within the sphere of the High Court in its capacity as the appellate Court.
Here, the High Court resorted to surmises and conjectures for which there was not the slightest basis.
The High Court failed to undertake the exercise of scrutinising, and making assessment of the evidence and failed to record a finding of fact in after considering the question of reliability and credibility of the witnesses and weighing the probabilities in the context of the circumstantial evidence.
[996 B E] 2:1.
By and large a citizen is somewhat reluctant, rather than anxious, to complain to the vigilance Department and to have a trap arranged even if 994 illegal gratification is demanded by a Government servant.
There are numerous reasons for the reluctance.
In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers.
He has to provide his own currency notes for arranging a trap.
He has to comply with several formalities.
He has to accompany the officers and participants of the raiding party.
All the while he has to remain away from his job, work, or avocation.
He has to sacrifice his time and effort whilst doing so.
Thereafter, he has to attend the court at the time of the trial from day to day.
He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault.
In the result, a citizen who has been harassed by a Government Officer, has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned in his future dealings with the department.
No one would therefore be too keen or too anxious to face such an ordeal.
Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap.
His evidence cannot therefore be easily or lightly brushed aside.
[1001 E H; 1002 A B] 2:3.
Of course, it cannot be gain said that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go bye to the rules, the official refuses to yield.
[1002 B C] 3:1.
The evidence of a police officer cannot be brushed aside as that of an interested witness.
That he has an interest is true only to an extent a very limited extent.
He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government Officer making a demand for illegal gratification, is protected and the role of his department in the protection of such citizens is vindicated.
Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap.
At the same time it must be realised that it is not frequently that a police officer, himself being a Government Servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant.
In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience.
The court may therefore, depending on the circumstances of a case, feels safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent.
When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case.
The present appears to be a case of that nature.[1002 D H] 995 3:2.
In the instant case, taking an overall view of the evidence of PW 1, PW 2, PW 3 and the circumstantial evidence, it is not possible to believe that the raid proved abortive and yet everyone conspired together in order to falsely rope in the respondent.
[1009 F]