judgement:
Appeal No. 1605 of 1972.
Appeal by Special leave from the Award dated November 24, 1971 of the Labour Court, Delhi in L.C.I.C. No. 31 of 1971.
M. K. Ramamurthi and J. Ramamurthi, for the appellant.
V. M. Tarkunde, O. C. Mathur, D. N. Mishra, and Sudhir K. Khanna, for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Industrial law in India has many twilight patches, illustrated by the present appeal which projects the problem of an employee whose services have been terminated similiciter by the Management, a pump manufacturing enterprise, issuing a notice ending the ,employment and offering one month 's pay as authorized by the relevant Standing orders.
The thorny legal issue is whether the ipse dixit of the employer that he has lost confidence in the employee is sufficient justification jettison the latter without levelling and proving the objec tionable conduct which has undermined his confidence so that the tribunal may be satisfied about the bona fides of the 'firing ' as contrasted with the colourable exercise of power hiding a not so innocuous purpose.
The backdrop The facts and circumstances become decisive of the fate of the, ,case even where the law is simplistic or fair in its face.
Here, what are the events and environments of employment leading to the worker being given the boot ? Is the order an innocent and, therefore, legal quit notice sanctioned by the Standing Orders which does not stigmatize the worker but merely bids him good bye ? Oris it a sinister intent to punish as a guileless order based on 'loss of confidence ', an alibi which, on a certain reading of this Court 's rulings, is also a protective armour against judicial probe and setting aside ? 491 Michael, a permanent employee of proved efficiency and six years standing, was appreciatively given two 'merit ' increments.
But a letter of September 2, 1970 told him off service, giving him one month 's 'notice pay ' discharging him without damning, as distinguished from dismissing him for misconduct.
The rival versions illumine the factual confrontation, the resolution of which is no easy legal essay.
The worker, Michael, through his Union, protested against the 'sack ' order as victimisation of a Trade Union activist but the Management was heedless, conciliation was fruitless and the dispute between the Union and the Management was eventually referred by the Delhi Administration to the Labour Court for adjudication.
The reference ran thus "Whether the termination of services of Shri L. Michael is illegal and/or unjustified and, if so, to what relief is he entitled and what directions are necessary in this respect ?" Both sides stated their cases in their pleadings and the true nature of the conflict emerges from them.
The story set out by the employee in his statement before the Labour Court was that although he was efficient, appreciated and awarded merit increments, the Management was antagonized by his active part in the formation of an Employees ' Union, especially because oral warnings by the Regional Manager against his Unionist proclivity was ignored.
Michael became the treasurer of the Union.
This Union chapter claimed its price, for the Management quietly terminated his services by a simple letter which reads: "We are sorry to advise that your services are no longer required by the Company.
As such, this letter may be treated as a notice for the termination of your services with immediate effect.
As for the terms of your employment letter, on termination of services you will be paid one month 's salary extra.
You may please call on the undersigned and have your accounts settled.
" This act, claims the worker, was 'in flagrant violation of elementary principles of natural justice without assigning any reason and without giving him an opportunity to defend himself.
This, in his statement he challenged the termination as 'wrongful, mala fide, illegal, and an act of victimisation '.
The counter case of the management get up in its statement, as is apparent from the discharge order, is that no dismissal is involved, no enquiry necessary and no illegality invalidates.
The management claimed that the alleged annoyance with the, workman for union activity was a concoction in self defence, as the Management had not even knowledge of the formation of the Union.
This fatter limb of the plea is a little too naive.
The warning by the Regional Manager was denied and the reference to trade union activities by the worker was more 'to create a ground for the workman 's claim and has been leveled as a matter of habit and routine.
The basic plea of the management was that the action being a simple 492 termination without a sting, the process and consequence of a disciplinary action were not attracted.
The Management, however, took the Court into confidence to explain why the employee was discharged.
He was employed as a Receipt and Dispatch Clerk in the office upto 10 3 1970.
As an insider with a to office correspondence the employee misused his position by passing on 'very important and secret information about the affairs of the company to certain outsiders.
He was consequentially shifted to the post of clerk handling posting of bins and collection of payments but the workman, although denied direct access to correspondence in the Receipt and Dispatch section, made attempt 'to elicit information from the section with a view to pass it on to outsiders '.
The upshot of these activities of which the management was alerted was a loss of confidence in the employee.
This unreliability was visited with non injurious termination of service by a bona fide order.
Therefore, the action was claimed to be legal and immune to judicial interference.
Two socially vital factors must inform the understanding and application of Industrial jurisprudence.
The first is the constitutional mandate of Part IV obligating the State to make 'provision for securing just and humane conditions of work '.
Security of employment is the first requisite of a worker 's life.
The second equally axiomatic consideration is that a worker who willfully or anti socially holds up the wheels of production or undermines the success of the business is a high risk and deserves, in industrial interest, to be removed without tears.
Legislation and judicial interpretation have woven the legal fabric.
We have to see whether on the facts of the present case what the relevant law is, whether it has been applied by the Labour Court rightly and whether the appellant has merit on his side, judged by the social conscience and judicial construction of the law in this branch of discharge simpliciter versus disguised ' dismissal.
A few salient facts need emphasis before the principles of law are applied.
The workman in his statement stressed the case of malaus antinus due to his union activities, although he did vaguely refer to the termination of service as wrongful and malafide.
From this it cannot be argued, as the Management sought to make out, that his denial of leaking out office secrets was an after thought pleaded only in the rejoinder and therefore liable to be discredited.
How could the worker have a hunch about the management 's undisclosed ground for dismissal ? When the latter stated the reason which prompted this action for the first time before the Labour Court, the workman in his reply refuted this case.
It is noteworthy that there is no speck of record or any hint of written material in support of the story that the management had credible information of the appellant betraying sensitive secrets of business.
The letters sent by the Union and the worker requesting for reinstatement were being ignored.
The management could well have disclosed their suspicion in reply and told the Union and the workman that they resorted to an innocuous discharge to avoid punitive trauma.
The management could have divulged in writing to 493 the Conciliation Officer their legitimate fears about the worker 's integrity and their considerate action of simple termination.
This too they failed to do.
In their written statement in Court the Management asserted for the first time that the employee was an intractable smuggler of inside information.
The statement winds up with the legalistic plea : 'the management had, in the meanwhile, lost confi dence in the workman '.
This culminating collapse of trust is alleged to be the primary cause for the discharge from employment.
At the time of the evidence, M.W.1, a former Regional Manager, swore that the workman joined as a pump operator in 1963, was promoted as clerk in 1967, that the suspicion of disloyal communication arose 'for the first time in 1968 ' and yet 'thereafter he was given two increments extra in addition to normal increments.
He was a hard working man and has a very good memory but the suspicion was there '.
These are the facts and the evidence in the case and it has been fairly conceded before the Labour Court by the Management 's representative that were the action regarded as punitive it was bad, there having been no enquiry whatever with liberty to the employee to meet the charge.
But the single slender strand on which the discharge was suspended was 'loss of confidence of the management in the employee.
The Labour Court argued: "According to the management, as there was no proof with it for this suspicion it could not proceed against him departmentally and, in the circumstances, it was considered desirable to terminate his services by passing an order of discharge without any stigma attached to it." While on all hands it was agreed that the employee was efficient, the court took the view that the motivation for the termination was the suspicion Which lurked in the mind of the Regional Manager that information regarding tenders was being passed on by the workman '.
We, have to find out whether the holding in the award that, on the materials above placed, the action could be called colourable or saved as bona fide, could be castigated as achieving an illegitimate end or supported as a premature but straight forward and harmless farewell.
In short, was loss of confidence a legal label affixed by the management to eject the workman, there being no other legal method of accompli shing their wish to remove him for misconduct ? Two questions, therefore, fall for decision.
Can a person, reasonably instructed in the law and scrutinising with critical faculties the facts on record, conic to the conclusion that the snapping of the tic of master and servant in the present case was innocuous andbona fide or oblique circumvention of the processual protection the law provides before a workman is dismissed for mis conduct ? We can discern harmony and consistency in case lawfrom Chartered Bank(1) and Murugan(2) through Sudder Office(3) and (1) ; (2) (3) [1970] II L. L. J. 620.
423SCI/75 494 Air India Corporation(1).
The social justice ice perspective and particular facts are important, though.
The plethora if precedents need not, be covered in extenso as the law laid down is the same except that judicial response to each case situation leads to emphasis on different facets of the principle.
Even so some milestone decisions, if we may say so, may be considered.
In Murugan Mills Case (supra) Wanchoo J (as he then was), speaking for the Court made the following observations : "The right of the employer to terminate the services of his workman under a standing order like cl.17(a) in the present case, which amounts to a claim 'to hire and fire ' an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication, came up for consideration before the Labour Appellate Tribunal in Buckingham & Carnatic Co. Ltd vs Workers of the Company The matter then came up before this Court also in Chartered Bank vs Chartered Bank Employees Union ; and the Management of U. B. Dutt & Co. vs Workmen of U. B. Dutt & Co. (1962 Supp. 2 SCR 822) wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the present the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination.
The form of the order in such a case is not conclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of unfair labour practice.
If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice, it would have the jurisdiction to intervene and set aside such termination.
" In that case the form of the order had no foul trace, but before the Tribunal dereliction of duty and go slow tactics were disclosed as the inarticulate reasons.
This Court ruled : "This clearly amounted to punishment for misconduct and therefore to pass an order under cl.17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provisions of the Standing Orders." Shri M. K. Ramamurthy, counsel for the appellants, contended for the proposition that even where a management had the power to terminate the services of its employee without reasons but with notice pay only, the colourable exercise of that power invalidated it, and the (1)[1972] 3 section C. R. 606.
495 Court could probe, beneath the surface to check upon the bonafides behind the exercise of the power.
If the reasons including the termination were victimisation, unfair labour practice or misconduct, it was foul play to avoid a fair enquiry and fall back upon the power to terminate simpliciter There are myriad situations where an employer may in good faith, have to reduce his staff, even though he may have only a good word for his employees.
Simple termination is a weapon usable on such occasions and not when the master is willing to strike but afraid to wound.
We have been referred to the Bihar State Road Transport Corporation case(1).
The power of the Court to go behind the language of the order is reaffirmed there.
In Suddek Office (supra) the Court apparently laid stress on the Management 's right to terminate the services simpliciter under the terms of contract, where there was no lack of bona fides, unfair labour practice or victimisation.
It is significant that this Court used language and laid down law very much like in the earlier cases and did refer to the precedents on the point.
For instance, Vaidialingam J., 'there observed : " It is needless to point out that it has been held by this Court in The Chartered Bank, Bombay vs The Chartered Bank Employees ' Union that if the termination of service is a colourable exercise of the power vested in the management or as a result of victimisation or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such termination.
In order to find out whether the order of termination is one of termination simpliciter under the provisions of contract or of standing orders, the Tribunal has ample jurisdiction to go into all the circumstances which led to the termination simpliciter.
" The manner of dressing up an order does not matter.
The Court will lift the veil to view the reality or substance of the order.
The Court, in that case, examined the circumstances in detail to see whether a dismissal for misconduct was being masked as a simple send off with a month 's pay, and held ultimately : "We are satisfied that the management has passed the order of termination simpliciter and the order does not amount to one of dismissal as and by way of punishment.
" of course, loss of confidence in the workman was alleged by the management and the Court found that it was not a camouflage.
It may be noticed that in that case the workman was being entrusted with stores worth several lakhs of rupees, some goods were lost from the stores and the Union was informed by the management that it had lost confidence in the workman.
In the written statement before the Labour Court the management alleged that the workman was the head godown clerk who was the custodian of the company 's property, the post being one of trust and confidence.
It is noteworthy that in the High Court the workman did not even file a counter affidavit and the counsel for the Union and the workman agreed that the order of termination was not a camouflage to cover up what really was an order (1) 496 of dismissal.
He merely urged that the termination of the services was really by way of dismissal.
In this conspectus of circumstances, this Court found that the Head Clerk in charge of the engineering godown and responsible for the maintenance of considerable stores, held a sensitive position.
This Court observed : "The entire basis of the Labour Court 's award for holding that the order is one of dismissal is its view that the management has invoked cl. 9 to camouflage its action.
When that approach has been given up on behalf of the workman before the High Court the reasoning of the Labour Court falls to the ground and the High Court has acted within the jurisdiction under article 226 when it set aside the order of the Labour Court especially when there has been no finding of victimisation, unfair labour practices or mala fides recorded, against the management.
To conclude we are satisfied that the High Court was justified in setting aside the order of the Labour Court.
" We have gone into this decision at length to disabuse the impression that a new defence mechanism to protect termination of service simpliciter, viz., loss of confidence, had been propounded in this ruling.
We do not agree, that any such innovation has been made.
The Air, India Corporation Case (supra) may seem to support the 'no confidence ' doctrine but a closer study contradicts any such view.
of course, Shri Tarkunde, counsel for the management, placed great reliance on this ruling.
Needless to say, this Court recognised the power of the Tribunal to go behind the form of the order, look at the substance and set aside what may masquerade as termination simpliciter, if in reality it cloaked a dismissal for misconduct 'as a colourable exercise of power by the management.
The Court repeated that an Industrial employer cannot 'hire and fire ' his workmen on the basis of an unfettered right under the contract of employment.
On the facts of the Air India Case (supra) the Court concluded that it was 'not possible to hold this order to be based on any conceivable misconduct '.
Special reference was made to the grave suspicion regarding the complainant 's private conduct with air hostesses.
Where no misconduct spurs the action and a delicate unsuitability for the job vis a vis the young women in employment in the same firm is strongly suspected, resort to termination simpliciter cannot be criticized as a malafide machination.
In that background, the action was held to be bonafide and the overall unsuitability led to a loss of confidence in the employee.
Not that the loss of.
confidence was exalted as a ground but the special circumstances of the case exonerated bad faith in discharge simpliciter.
Before concluding the discussion, we may refer to the case of Delhi Transport Undertaking vs Goel(1) adverted to by the Labour Court.
Indeed that decision turned on Regulations framed under the Delhi Road Transport Authority Act, 1950 and not on pure Industrial Law or construction of the Standing Orders.
Moreover, the Court, in that (1) [1970] II LLJ 20.
497 case, appears to have discussed rulings under article 311 also.
However, on the facts of that case, the Court was satisfied that order of termination was not a disguise or cloak for dismissing the employee and the ground given that he was a cantankerous person undesirable to be retained was good.
We do not read the Delhi Transport case (supra) to depart from Murugan Mills Case (supra).
Indeed, the latter did not, and maybe could not, over rule the former.
The above study of the.
chain of rulings brings out the futility of the contention that subsequent to Murugan Mill 's Case (supra) colourable exercise of power has lost validity and loss of confidence has gained ground.
The law is.
simply this : The Tribunal has the power land, indeed, the duty to X ray the order and discover its true nature, if ,,he object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated.
But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent looking order of termination simpliciter, such action is bad and is liable to be set aside.
Loss of confidence is no new Armour for the management; otherwise security of tenure, ensured by the new industrial Jurisprudence and authenticated by a catena of cases of this Court, can be subverted by this neo formula.
Loss of confidence in the Law will be the conse quence of the Loss of Confidence doctrine.
In the light of what we have indicated, it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set facts and motivations.
The Court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination.
In a reasonable case of a confidential or responsible post being misused or a sensitive or strategic position being abused, it may be a high risk to keep the employee, once suspicion has started and a disciplinary en quiry cannot be forced on the master.
There, a termination simpliciter may be bow fide, not colourable, and loss of confidence may be evidentiary of good faith of the employer.
In the present case, the catalogue of circumstances set out in the earlier part of the judgment strikes a contrary note.
The worker was not told when he wrote; the Union was not disclosed when they demanded; the Labour Court was treated to verbal statements like; very reliable sources ' and other credulous phrases without a modicum of evidence to prove bonafides.
Some testimony of unseemly attempts by the workman to get at secrets outside his orbit, some indication of the source of suspicion, some proof of the sensitive or strategic role of the employee, should and would have been forthcoming had the case been bona fide.
How contradictory, that even when a strong suspicion of leaking out sensitive secrets was being entertained about the employee he was being given special merit increments over and above the normal increments ' A case of res ipsa loauitur.
Circums tances militate against the 'I say so ' of M.W.1 that the management had suffered an ineffable loss of confidence.
To hit below the belt by trading legal pharses is not Industrial Law.
We are constrained to express ourselves unmistakably lest industrial unrest induced by 498 wrongful terminations based on convenient loss of confidence should be generated.
Before we conclude we would like to add that an employer who believes or suspects that his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge.
But such belief or suspicion of the employer should not be a mere whim or fancy.
It should be bona fide and reasonable.
It must rest on some tangible basis and the power has to be exercised by the employer objectively, in good faith, which means honestly with due care and ' prudence.
If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice, the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially.
In the instant case this has not been done.
There is only the ipse dixit of the employer that he was suspecting since 1968 that the appellant was divulging secrets relating to his business.
The employer has not dis closed the grounds oil which this suspicion arose in 1968.
Further after 1968, the appellant was given two extra increments, in addition to his normal increments, as stated already, in appreciation of his hard work.
This circumstance completely demolishes even the whimsical and tenuous stand taken by the employer.
It was manifest therefore that the impugned action was not bona fide.
It was urged by Mr. Tarkunde, learned counsel for the employer that the question whether or not the employer had lost confidence in the employee, was essentially one of fact aad this Court should not disturb the finding of fact recorded by the trial court on this point.
It is true that this Court, in appeal, as a rule of practice, is loath to interfere with a finding of fact recorded by the trial Court.
But if such a finding is based on no evidence, or is the result of a misreading of the material evidence, or is so unreasonable or grossly unjust that no reasonable person would judicially arrive at that conclusion, it is the duty of this Court to interfere and set matters fight.
The case before us is one such instance , where we are called upon to do so.
The Labour Court has misled itself on the law land we set aside its order.
The workmans will be reinstated with back wages.
However the management will be free, if it has sufficient material and if so advised, to proceed against the workman for misconducts or on other ,grounds valid in law.
The appeal is, accordingly, allowed with costs.
P.B.R. Appeal allowed.

summary/full:
The services of the appellant, who was an employee of the respondents, were terminated by the latter by giving him a month 's notice as per the standing orders without assigning any reasons for the termination.
The consequential industrial dispute was referred to the Labour Court.
The management alleged that the dismissed employee misused his position by passing on important and secret information about the affairs of the company to certain outsiders, that even after he was transferred to another section he made attempts to elicit information from the section with a view to pass it on to outsiders, and that, therefore, the management lost confidence in the employee and terminated his services by a bona fide order.
The Labour Court confirmed the order of termination.
In appeal to this Court, it was contended that, even where a management had the Power to terminate the services of its employees without reasons but with notice pay the colourable exercise of that power invalidated the order and the Court court probe, beheath the surface to check upon the bona fides behind the exercise of the power, Allowing the appeal to this Court.
HELD: 1(a) Ile Labour Court has misled itself on the law and its order should be set aside.
The word will be reinstated with back wages.
[498 G] (b) The manner of dressing up an order does not matter.
The Court will lift the veil to view the reality or substance of the order.
[495 F] (2) (a) 'The Tribunal has the power and.
indeed, the duty to X ray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose be to dismiss the employee because he is an evil to be eliminated.
But if the management, to cover up the inability to establish by an inquiry, illegitimately but ingeniously passes an innocent looking order of termination simpliciter, such action is bad and is liable to be set aside.
Loss of confidence is no new Armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this Court can be subverted by this neo formula Loss of confidence in the law will be the consequence of the Loss of Confidence doctrine.
[497 C D] (b) An employer who believe or suspects that _his employee, particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of the employment permit, terminate his employment and discharge him without any stigma attaching to the discharge.
But such belief or suspicion of the employer should not be a mere whim or fancy.
it should be bona fide and reasonable.
It must rest on some tangible basis and the Power has to be exercised by the employer objectively, in good faith, which means honestly and with due care and prudence.
If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice.
the employer must disclose to the Court the grounds of his impugned action so that the same may be tested judicially.
[498 B C] In the instant case this has not been done.
There is only the ipse dixit of the employer that he was suspecting since 1968 that the appellant was divulging secrets relating to his business.
The employer has not disclosed the grounds on which this suspicion arose in 1968.
Further after 1968, the appellant was given 490 two extra increments in addition to his normal increments in appreciation of his hard work.
This circumstance completely demolishes even the whimsical and tenuous stand taken by the employer.
It was manifest that the impugned action was not bona fide.
[498 D] The Chartered Bank vs The Chartered Bank Employees ' Union ; ; Murgan Mills Ltd. vs Industrial Tribunal, Madras ; and Workmen of Sudder Office, Cinnamare vs Management, [MO] II L.L.J. 620. followed.
Air India Corporation Bombay v, V. A. Rebellow & Anr. ; distinguished.
Delhi Transport Undertaking vs Goel [1970] II LIJ, 20, referred to.
(3) It is true that this Court, in appeal, as a rule of practice, is loath to interfere with a finding of fact recorded by the trial court.
But if such a finding is based on no evidence or is the result of a misreading of the material evidence or is so unreasonable or grossly unjust that no reasonable Person would judicially arrive at that conclusion.
it is the duty of this Court to interfere and set matters right.
[498 E F]


judgement:
iminal Appeal No. 12 of 1972.
From the Judgment and Order dated the 1st May, 1971 of the Madhya Pradesh High Court in Crl.
Appeal No. 653 of 1970.
2 470SCI/75 520 R. K. Bhatt for the appellant.
Ram Punjwani, H. section Parihar and 1.
N. Shroff, for the respondent.
The, Judgment of the Court was delivered by BEG, J. The sole appellant Ram Kumar Pandey, aged 45 years, was tried together with Suresh Kumar aged 20.
years, and Mulkraj, aged 45 years, and Ramesh Kumar, aged 17 years, on two charges framed against him.
These were : "Firstly; That you on or about the 23rd day of March 1970 at Raipur, did an act, to wit, hit Uttam Singh with a knife with such intention or.
knowledge and under such circumstances, that if by that act, you had caused the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said act and that you thereby committed an offence, punishable under Section 307 I.P.C. and; Secondly : That at the said time and place, you or some other persons did commit murder by intentionally or knowingly causing the death of Harbinger Singh and the said act was done in furtherance of the common intention of all and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of the Court of Sessions.
" Suresh Kumar, Mulkraj and Ramesh Kumar, were accused of ,offences punishable under Sections 307/114 and Section 302 read with Section 34 and 114 Indian Penal Code.
The Sessions ' Judge of Raipur, who had tried the case, found Suresh Kumar guilty of the murder by stabbing of Harbinder Singh, aged about 16 years, and sentenced him to life imprisonment.
He convicted the appellant under Section 324 I.P.C. only for the injury inflicted on Uttam Singh and sentenced him to one year 's rigorous imprisonment, but acquitted him of other charges.
He also acquitted the accused Ramesh and Mulkraj of all charges leveled against him.
The State of Madhya Pradesh appealed against the acquittal of the appellant Ram Kumar Pandey of the charge under Section 302/34 I.P.C., and of Mulkraj and Ramesh Kumar of all charges.
Suresh Kumar, the son of Mulkraj appealed against his conviction under Section 302 simplicitor, but this appeal was dismissed by the High Court which maintained his life imprisonment.
The High Court also allowed the States appeal against the acquittal of Ram Kumar Pandey for injuries caused to Harbinder Singh, and, convicting him under Section 302/34 I.P.C., it sentenced him to life imprisonment.
It convicted Mulkraj of an offence punishable only under Section 323 I.P.C. and sentenced him to a fine of Rs. 200/ , and, in default of payment of fine, to rigorous imprisonment for two months.
It, upheld the acquittal of Ramesh Kumar Ahuja of all charges.
This appeal has come up before us after a certificate granted by the High Court under Article 134(1) (c) of the Constitution, but the 521 certificate says that the appellant is entitled to it under the , strictly speaking, no certificate of the High Court is required for such an appeal where an acquittal has been converted into a conviction finder Section 302/34 I.P.C., and a sentence of life imprisonment imposed upon an accused person.
Thus appeal, in such a case, lies as a matter of right to this Court under the Act of 1970.
The only question before us now is whether the appellant, who had not appealed at all to the High Court against his conviction under Section 324 I.P.C., which stands, was rightly convicted by the High Court under Section 302/34, I.P.C., after setting aside his acquittal for the graver offence for injuries resulting in the death of Harbinder Singh.
The well settled rule of practice in a case of an appeal against an acquittal is that the appellate Court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction.
But, if the view of the Trial Court is not reasonably sustainable, on the evidence on record, the appellate Court will interfere with an acquittal.
If the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the Trial Court, on evidence on record, is at least as acceptable as the one taken by the High Court, before we could interfere with the High Court 's judgment.
The prosecution case, as set out in the First Information Report was ; Uttam Singh, PW 1, residing at Ganj Parao, on the first floor went home at about 3.30 p.m. on 23 3 1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Uttam Singh had been quarreling with members of his family.
Uttam Singh requested him to take his seat and promised to look into the matter.
This angered Suresh Ahuja.
Thereafter, his, elder brother arrived and started quarreling with Uttam Singh 's daughter.
At this stage, the landlord Mulkraj Ahuja, accompanied by the appellant Ram Kumar Pandey, who lives with his family in a side room on the ground floor, entered and immediately gave him a blow on his eye ,brow.
Uttam Singh fell down.
As Uttam Singh got up, the appellant struck him with a knife from behind.
Mukhraj asked Pandey to run down stairs.
Both the accused tried to run away.
Uttam Singh tried to catch them but failed.
Uttam Singh when asked his son Harbinder Singh to make a telephone call.
At this point, Suresh, son of Mulkraj, stabbed Harbinder Singh who fell down in the lane.
Uttam Singh saw Harbinder Singh lying near the house of Saudager Shah with an injury on his chest which was bleeding profusely.
Harbinder Singh was carried to a hospital on a cart and Gurcharan Singh telephoned the police.
Joginder Singh also came while the injuries were being inflicted.
Uttam Singh 's daughters Amarit Kaur and Taranjit Kaur saw Uttam Singh wrapping a chadar an the wound of Harbinder Singh.
Raj Jaggi had seen Harbinder 522 Singh falling down.
The motive for this incident was that Mulkraj Ahuja, the landlord, wanted his house vacated by Uttam Singh.
Harbinder Singh had died while being taken to hospital.
The above mentioned First information Report was lodged at Police Station Ganj on 23 3 1970 at 9.15 p.m.
The time of this incident is stated to be 5 p.m.
The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh.
The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.I.R. only as persons who saw the wrapping of the chadar on the wound of Harbinder Singh, What is most significant is that it is nowhere mentioned in the F.I.R. that the appellant had stabbed Harbinder Singh at all.
It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh.
No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it.
But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were, known up to 9.15 p.m. on 23 3 1970, were bound to have been communicated.
If his daughters had seen the appellant inflicting a blow ' on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that or missions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
Even Joginder Singh, PW 8, was not an eye witness of the, occurrence.
He merely proves an alleged dying declaration.
He stated that Harbinder Singh (described by his pet name as "Pappi") rushed out of his house by opening its door, and held his hand on his chest with blood flowing down from it.
He deposed that, when he asked Pappi what had happened, Pappi had stated that Suresh and Pandey had injured him.
It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made.
Uttam Singh did not mention there that any dying declaration indicating that the appellant had also injured Harbinder Singh.
was made by Harbinder Singh.
The omission to mention any injury inflicted on Harbinder Singh by the appellant in the F.I.R. seems very significant in the circumstances of this case.
Indeed, according to the version in the F.I.R., Joginder Singh, who was in the lane, is said to have arrived while Harbinder Singh was being injured.
Therefore, if this was correct, the two injuries on Harbinder Singh must also have been inflicted in the lane outside.
Satwant Kaur, PW 7, the wife of Uttam Singh, who claimed to have been an eye witness of the whole occurrence, was also not mentioned in the F.I.R. Suresh had, according to her, stabbed Harbinder Singh on the right side of the chest at the door of the kitchen, and thereafter, Pandey was said to have attacked him.
523 Again, we find that Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, daughters of Uttam Singh, have figured as eye witnesses of the whole occurrence including the stabbing of Harbinder Singh by the appellant.
As already indicated, they are not mentioned in the F.I.R. as eye witnesses of the murder.
This is also very significant in the present case.
They have been mentioned only as witnesses of wrapping a chadar on the wound of Harbinder Singh who was then said to be lying in the lane after the occurrence.
In order to explain how Harbinder Singh, said to have been attacked near the kitchen of Uttam Singh on the first floor, was found lying in the lane in a pool of blood, the persecution version is that, after the attack with knives by Suresh and the appellant, Harbinder Singh ran and rushed down the steps into the lane.
It was pointed out that, in view of the nature of two injuries sustained, by Harbinder Singh and the medical evidence about them, it was not possible for Harbinder Singh either to have rushed down, or, in any case, to have made a dying declaration.
The injuries on Harbinder Singh found by Dr. section C. Vishnoi were as follows : "(i) An incised wound on the left side of the chest placed anteriorly and measuring 1 1/2" x 1" x 1 1/2" deep.
In the fifth intercostal space closed to the lateral border of the left side of the sternum.
It had clean cut and blood stains margins.
(ii) An incised wound on the right side of back in the 8th intercostal space 2" below the inferior angle of scapula.
It had measured 1" x 1" x 1".
It had clean cut and bloodstains margins.
There was found difficulty in probing through this wound".
The Doctor said about the first injury "This injury had entered the cavity of the right ventrical.
It was a very serious injury.
Right ventrical is an important part of the heart.
Generally such an injury would result in an instantaneous death.
Injury to the right ventrical and the paricardium had resulted in profused hemorrhage".
He also said : Injury to the lobe of the right lung and the pleura as found in this case will result in shock.
Ordinarily such a injury would immediately be fatal".
The main points for decision which emerged from the evidence in the case were: 1.
Where was Harbinder Singh stabbed? 2.
Who could have been the witness of the stabbing? 3.
Could the alleged eye witnesses be believed? 4.
Could the dying declaration, said to have been made, to 524 Joginder Singh, be made the sole basis of the conviction of the appellant under section 302/34 IPC if the evidence ,of alleged eye witnesses was to be discarded? As regards the place where the stabbing ' took place, the High Court had itself felt highly dissatisfied with the manner in which the case was investigated.
The site plans do not show any place where the blood was found.
if blood marks had been shown and blood had been taken from spots where it had fallen, it would have afforded very valuable evidence on the question whether any stabbing of Harbinder Singh did take place at door of the kitchen and whether he ran after that.
The site plans did not show even where the kitchen was.
Therefore, we cannot know, by looking at these, whether the three ladies, who are alleged to be eye witnesses at the trial, could have seen the occurrence in the room in which Uttam Singh was injured as well as at the door of the kitchen.
Taking all the relevant evidence on this point into account, it is far 'more likely that, as the Sessions ' Judge had guessed, the deceased had been stabbed by Suresh twice in the lane, probably once from the front and again while he fell or was trying to run away.
He could not have moved far from the scene where he was stabbed.
The High Court 's reasons to dislodge this inference are insufficient.
As regards the second and third points, we are unable to give credence to the version of the three alleged eye witnesses as they were not mentioned as eye witnesses in the F.I.R. made in the circumstances indicated above.
Lastly, the alleged dying declaration is also not mentioned in the F.I.R.
On the other hand, the F.I.R., mentions Joginder Singh, who tried to prove the dying declaration as an eye witness.
It may be pointed out that the charge against the appellant for offences under Section 302/34 I.P.C. is also defective inasmuch as it shows that either the appellant "or some other person" committed the murder.
It does not show how or even mention that the appellant acted in concert with anyone else.
However, no grievance has been made of any defect in the charge or any prejudice to the appellant from it.
We therefore, ignore it.
It may also be mentioned that the High Court had itself recorded the following finding: "All the eye witnesses have admitted that the four accused did not come together ;it the same time in the room where the incident happened.
Suresh Kumar came in that room first, Ramesh Kumar then entered the room and some time after they were followed by Mulkraj and Ram Kumar Pandey.
There is nothing to show that there was a preconcert between the four accused to commit any particular offence in the room.
It appears that the whole incident took an ugly and unexpected turn and the most unfortunate result 525 was that Harbinder Singh was killed.
We are of the view that the trial Court was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar were individually responsible for their acts".
It is difficult, after this finding to follow the reasoning of the High Court in coming to the conclusion that the appellant was guilty of an offence punishable under Section 302/34 I.P.C. Consequently, we allow this appeal and set aside the conviction and sentence of the appellant under Section 302/34 I.P.C. If the appellant has already served the sentence awarded under Section 324 I.P.C., as is stated on his behalf, he will be released forthwith.
V.M.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was charged with two offences, (i) under section 307 I.P.C. with respect to one person, and (ii) under section 302/34, I.P.C. for having, along with other accused, caused the death of another.
The trial court convicted him under s.324 I.P.C. on the first charge and acquitted him of the other charge.
The appeal by the State against the acquittal on the second charge was allowed by the High Court and the appellant was convicted under s.302/34 I.P.C. and sentenced to life imprisonment.
Allowing the appeal to this Court, HELD : (1) In the case of an appeal against an acquittal the appellate court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction.
But if the view of the trial court is not reasonably sustainable, on the evidence on record.
the appellate court will interfere with the acquittal.
If the High Court sets aside an acquittal and convicts, this Court has to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the trial court, on the evidence on record, is atleast as acceptable as the one taken by the High Court, before this Court could interfere with the decision of the High Court.
[521D] (a) The First Information Report is a previous statement which, strictly speaking, can be only used to corroborate or contradict the maker of it.
In the present case, the F.I.R. was made by the father of the deceased to whom all the important facts of the occurrence were bound to have been communicated.
But, though the F.I.R. was given about 4 hours after the incident, it was not mentioned therein that the appellant had stabbed the deceased.
The omission of such an important fact affecting the probabilities of the case is relevant under s.11 of the Evidence Act in judging the veracity of the prosecution case.
[522D] (b) The evidence, shows that the deceased was stabbed by one or the other accused; that the place of occurrence had been shifted by the witnesses for the prosecution; that the version of the alleged eye witnesses is not credible; and that the alleged dying declaration is unreliable.
[524B D] (2) The High Court, having found that the appellant and the other accused were individually responsible for their acts, erred in finding the appellants guilty on the basis of common intention, of an offense under section 302/34 I.P.C. [524FG] (3) An appeal to this Court by the accused, in a case where his acquittal had been converted into a conviction and the sentence of life imprisonment was imposed upon him, lies as a matter of right under the , and no certificate of the High Court is necessary.
[521A]


judgement:
Appeal No. 2053 of 1971.
Appeal by special leave from the Judgment & Order dated the 8th July, 1971 of the Bombay High Court in S.C.A. No. 1346/68.
M. C. Bhandare, P. H. Parekh and section Bhandare, for the appellant.
The Judgment of the Court was delivered by SARKARIA, J.
Whether the difference of 10 per cent between an Industrial Company and other Companies in the levy of Income tax provided in the Finance Act, 1966 is to be construed a "rebate" or "relief" in the payment of any direct tax, for the development of an industry for the purposes of section 7(e) of the , (for short, the Bonus Act) is the short question that falls to be answered in this appeal by special leave.
The appellant is a Private Ltd. Company.
it manufactures automobile ancillaries and other goods in its Factory at Bombay.
It employs about 170 workmen.
The workmen demanded bonus for the year 1964 65.
Their demand was not met by the Company.
Conciliation proceedings before the Conciliation Officer having failed, the dispute was submitted to the Government which by its Order, dated May 2, 1967 referred the same for adjudication to the Industrial Tribunal.
One of the points mooted before the Tribunal was, whether in calculating the available surplus, the direct tax payable by the Company was deductible at the rate of 55 per cent or 65 per cent.
The case of the Mazdoor Saneh (Respondent No. 1) was that the rate should be 55 per cent as the Company was paying the tax at the rate As against this, the Company contended that it was entitled to deduct as per section 7(e) of the Bonus Act, direct tax at the normal rate of 65 per cent and not at 55 per cent which was only a confessional levy amounting to a "relief" for the purpose of development.
The Tribunal accepted the contention of the Company.
After referring to the speech of the Finance Minister on the Budget of 196667, the Tribunal held: assessed to income tax at the rate of 65 per cent, those engaged in industrial undertakings have been assessed at the concessional rate of 55 per cent, as a measure of rendering assistance to their growth.
Such a concession would, unquestionably amount to relief for the purpose of development as contemplated by Section 7(e) of the Act.
" Aggrieved, the Mazdoor Sangh impugned the Tribunal 's Award, dated 29 2 1968, by a Writ Petition under Article 227 of the Con 544 stitution before the High Court of Bombay.
The High Court held that the Company being an Industrial Company, was liable to pay tax under the Finance Act, 1966 at the rate of 55% only on its total income after deducting depreciation.
Therefore it could not claim deduction at a rate higher than 55% in calculating the available surplus.
In the result, the High Court set aside the Award and remitted the case to the Tribunal for further disposal in accordance with law.
Hence this appeal by the Company.
Broadly, the scheme of the Bonus Act is this : At first, the gross profits derived by an employer from an establishment are calculated in the manner specified in the First Schedule, or the Second Schedule, whichever may be applicable (section 4).
On the basis of such gross profits, the available surplus for the particular accounting year is computed.
This is done by deducting therefrom the sums referred to in Section 6.
According to Clause (c) of Section 6, one of the sums so deductible is: "Subject to the provisions of Section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year".
Section 7, to which section 6(c) is subject, provides how for the purposes of the Act, the direct tax payable by the employer is to be calculated.
Clause (e) of Section 7 is material.
It runs thus : "no account shall be taken of any rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbefore mentioned in section) in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act, for the development of any industry".
The rates of income tax applicable to Private Ltd. Companies tinder Paragraph F, Part I of the First Schedule fixed by the Finance Act, 1966, are as follows : 1.
In the case of a domestic Company(A) (1). (2) where the Company is not a company in which the public are substantially interested.
(i) in the case of an industrial Company (1) on so much of the total income as does not exceed Rs. 10,00,000 55 per cent.
(2) on the balance, if any of the total income 60 per cent.
(ii) in any other case 65 per cent of the total income".
It is not disputed that the Company being an industrial Company with total income for the relevant year, not exceeding Rs. 10,00,900,, 545 the rate of tax under the above Paragaph 1(A) (2) (i), applicable to it was 55 per cent and not 65 per cent of the total income.
However, Mr. Bhandare 's contention is that this was only a concessional rate and not the normal rate which was prescribed under Clause (ii) of the above Paragraph 1(A) (2).
The point pressed into argument is that this ten per cent concession in the tax rate was given to Industrial Companies with a view to promote development of Industry and, as such, must be deemed to be a "relief" or "rebate" in the payment of direct tax of the kind contemplated by Section 7(e) of the Act.
Reliance for this contention has been placed on the speech of the Finance Minister on the Budget of 1966 67, wherein he proposed to provide "certain reliefs" which he considered "necessary for providing a suitable climate of growth", and, in that context, described the rate of 55% tax on Industrial Companies as a "concessional rate".
We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7.
The language of that provision is manifestly clear and unequivocal.
It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.
As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain ing the object which the Legislature had in view in using the words in question.
In the case before us, the language of Section 7(e) is crystal clear and self contained.
It indicates in unmistakable terms that the 'rebate or relief ' in the payment of any direct tax in order to fall within the purview of this clause must satisfy two conditions, viz., (i) that it must be a rebate or relief "allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act", and further, (ii) that it must be a relief or rebate for the development of any Industry.
In the present case, condition (i) is lack ing.
The Finance Act, 1966, does not say that this difference of 10per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry.
Nor has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.
546 The High Court was, therefore, right in holding that it was not ,permissible to use the speech of the Finance Minister to construe the clear language of the statute,.
For the forgoing reasons the question posed above is answered in the negative and the appeal is dismissed.
As regards the costs, the delay in payment of the bonus caused by the pendency of this appeal has been amply compensated vide this Court 's order dated February 17, 1972, which is to this effect "The order of ex parte stay is made absolute on the condition that the petitioner appellant shall pay six percent interest on any amount that is found payable by the appellant to the respondent workmen from the date the award become enforceable till the disposal of the appeal in this Court, in case the appeal fails in this Court.
" The appeal has been heard ex parte, we therefore make no order as to costs.
P.B.R. Appeal dismissed.

summary/full:
Section 7 of the Bonus Act provides as to how the direct tax payable by an employer is to be calculated for the purpose of computing the available surplus.
Clause (e) of section 7 enacts that no account shall be taken of any 'rebate ' or 'relief ' or deduction in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act for the development of any industry.
in the case of an industrial company, which is not a company in which public ,arc substantially interested, the Finance Act.
1966 fixed the rate of income tax at 55% on so much of the total income as did not exceed Rs. ten lakhs, on the balance, if any, of the total income 60% and 65% in the case of any other ,company.
In a dispute between its employees and the appellant, which is an industrial company the latter contended that for the purpose of computing the available surplus it was entitled to deduct direct tax at 65% and not 55% which was only a confessional levy amounting to a 'relief ' for the purpose of development.
The Tribunal accepted the contention of the appellant.
The High Court allowed the respondent 's writ petition under article 227 of the Constitution holding that the company being an industrial company could not claim deduction at a rate higher than 55% in calculating the available surplus.
On appeal it was contended that the 10% concession in the rate was given to industrial companies with a view to promote development of industry and as such must be deemed to be a 'relief ' or 'rebate ' in be payment of direct tax contemplated by section 7(e) of the Bonus Act.
Reliance for this had been placed on the speech of the Finance Minister on the budget for the year 1966 67.
Dismissing the appeal, HELD : (1) The company being an industrial company with total income not exceeding rupees ten lakhs the rate of tax under paragraph 1(A)(2)(i) of the Finance Act.
1966 applicable to it was 55% and not 65% of the total income.
[544H 545A] (2) The 'rebate or relief ' in the payment of any direct tax, in order to fall within the purview of section 7(e) of Bonus Act.
must be a rebate or relief "allowed under any law for the time being in force relating.
to direct taxes or under the relevant Finance Act.
for the development of any industry" which is one of the conditions to be satisfied.
In the present case it did not satisfy this condition.
The Finance Act, 1966 did not say that this difference of 10% in the rate of tax applicable to an industrial company and any other company is to be deemed to be a rebate or relief for the development of industry.
No, has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.
[545F H] 3 (a) It was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.
[545C D] (b) As a general principle of interpretation, where the words of a statute are ,plain, precise and unambiguous the intention of the Legislature has to be gathered from the language of the statute itself and no external evidence such as Parliamentary debate , Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more 543 than one meaning or shades of meaning that external evidence as to the evils.
if any.
which the statute was intended to remedy.
or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain ing the object which the Legislature had in view in using the words in question.
[545D F]


judgement:
Appeal No. 11 of 1954.
68 Appeal from the judgment and Decree dated the 20th day of June 1950 of the High Court of Judicature for the State of Punjab at Simla in Regular First Appeal No. 73 of 1941 arising out of the Decree dated the 19th day of December 1940 of the Sikh Gurudaras Tribunal, Lahore in Suit No. 11 of 1938.
Gurbachan Singh and R. section Narula, for the appellant.
Achhru Ram, (Naunit Lal with him), for the respondents Nos.
I and 2.
K. L. Mehta, for the respondents Nos.
3 to 5. 1955.
March 24.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal on leave granted by the High Court of Punjab against its judgment affirming the decree of the Sikh Gurdwara Tribunal dated the 19th December, 1940, dismissing the plaintiff 's suit.
The plaintiff in the appeal is the Committee of Management of Sikh Gurdwaras within the Municipal limits of Amritsar (except the Gurdwara Sri Akal Takhat Sahib, Amritsar).
The plaint was filed under section 25 A of the Sikh Gurdwaras Act, 1925, (Punjab Act VIII of 1925) (hereinafter referred to as the Act) for possession of certain properties situated in Amritsar, marked and bounded as specified in the plaint and purporting to have been declared as a Sikh Gurdwara by the Government of Punjab under section 17 of the Act by means of the notification No. 9 G dated the 3rd March, 1937.
The case of the plaintiff Committee is that these properties were, and were determined to be, a Sikh Gurdwara, by name Gurdwara Bunga Sarkar, by the Sikh Gurdwara Tribunal by its decree dated the 4th November, 1935 and confirmed on appeal therefrom by the High Court of Judicature at Lahore, on the 16th June, 1936 and that accordingly the Committee was entitled to possession of the properties.
The facts that have led up to the present appeal are as follows: After the Act was passed and within one year of its commencement the then existing non statutory Shiromani Gur 69 dwara Parbandhak Committee filed a list under section 3 of the Act claiming the suit properties and certain other items attached thereto as belonging to the Gurdwara Harmandir Sahib.
These properties comprised two items called Bunga Sarkar and Bunga Mai Mallan and the shops appurtenant to each of them.
Objections were filed to this list by way of two applications under section 8 of the Act claiming these as private properties.
One was by Sardar Balwant Singh dated the 8th March., 1928 and the other was by Sardar Raghbir Singh dated the 10th March, 1928.
Sardar Raghbir Singh claimed the whole of Bunga Sarkar and its appurtenant shops as well as 1/3rd of the Bunga Mai Mallan and of the appurtenant shops.
Sardar Balwant Singh 's claim was confined to 1/3rd share in Bunga Mai Mallan and in the appurtenant shops.
The other 1/3rd share in Bunga Mai Mallan was apparently treated by these claimants as belong ing to some other person who was not a party to these proceedings.
These two applications were forwarded under section 14 of the Act to the Gurdwara Tribunal for its decision.
The parties to these proceedings entered into a compromise on the 6th february, 1930.
There were two compromises one relating to each of the applications.
The net effect of the compromises was that some out of the items claimed were admitted to be the private property of the respective claimants and the rest as wakf bungas for the Yatries to Sri Darbar Sahib, that the non personal properties were to remain in the management of the claimants, their heirs and representatives as such wakf with certain stipulations as to how that management was to be carried on.
The Tribunal disposed of the two applications before them in terms of these compromises.
It may be mentioned that though the original list under section 3 of the Act was filed by the then non statutory Shiromani Gurdwara Parbandhak Committee, the compromises were entered into by the Managing Committee of the Gurdwaras within the limits of the Municipal Committee, Amritsar, which presumably had already by then been formed Linder section 85 of the Act.
Now, quite independently of these 70 proceedings befere the Tribunal, and prior to the filing of the list under section 3 and of the objections under section 5 above referred to, there had been filed a petition under section 7 of the Act, signed by 55 Sikhs, claiming these very properties as being in themselves a Sikh Gurdwara by name Bunga Sarkar (Maharaja Ranjit Singh Saheb) and enclosing a list of properties as belonging thereto under section 7(2) of the Act.
It does not appear that this petition was brought to the notice of the Gurdwara Tribunal when it passed the decree in terms of the compromise with reference to the objections under section 5 of the Act.
The petition under section 7 was in the usual course followed by a notification issued by the Government on the 18th February, 1930, under section 7(3) of the Act.
This resulted in (1) an objection under section 8 by the Granthis objecting that this was not a Sikh Gurdwara, and (2) two other objections by Sardar Raghbir Singh and Sardar Balwant Singh, already previously above referred to, under section 10 of the Act claiming the properties as their own and objecting to the claim made that they were Sikh Gurdwaras.
These objections were filed on the 5th April, 1930.
It may be noticed that the notification under section 7(3) of the Act was within a few days after the compromise decrees in the proceedings under section 5 of the Act and it does not appear whether the compromises were brought to the notice of the Government or not.
These objections under sections 8 and 10 (and presumably also the petition under section 7) were forwarded to the Tribunal for its decision under section 14 of the Act.
The petition under section 8 filed by the Granthis was contested by the Shiromani Gurdwara Parbandhak Committee (Statutory) and after recording some evidence, the Tribunal came to the conclusion that Bunga Sarkar was a Sikh Gurdwara and declared it as such on the 28th August, 1935.
On the objections under section 10; notices were given to the Committee of Manaaement as well as to the Shiromani Gurdwara Parbandhak Committee but they declined to become parties to it.
The contest under section 10 of the Act 71 was only as between the claimants and some of the Sikhs who filed the petition under section 7.
At the hearing before the Tribunal both sides relied upon the previous compromises in support of their respective claims.
The Tribunal by its decision dated the 4th November, 1935, decided that the properties which had been declared as the properties of Sardar Raghbir Singh and Sardar Balwant Singh respectively, should be declared to be their personal properties and that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Mallan should be declared to be Sikh Gurdwaras and as properties appurtenant thereto.
It was also declared that these two Gurdwaras and the properties held to be appurtenant to them should vest in the management of Sardar Raghbir Singh and Sardar Balwant Singh by virtue of and as per terms of the compromises.
As against these decrees two appeals were presented by the Sikh worshippers to the High Court and the only question that ultimately appears to have been raised was that the direction given by the Tribunal to the effect that the properties should remain in the management of the claimants, Sardar Raghbir Singh and Sardar Balwant Singh, was illegal.
The High Court without giving any decision on the legal question so raised was of the opinion that it was no function of the Sikh Gurdwara Tribunal to pass an order on an application made under section 10 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the compromises.
They thought that the question of right of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the management should be deleted therefrom and that the rest of the decrees of the Sikh Gurdwara Tribunal is to stand.
They expressed their conclusion in the following terms: "That portion of the decree of the Sikh Gurdwara s Tribunal which has declared the respondents ' right to manage the Gurdwaras and the properties appended thereto shall form no part of the decree granted by the Tribunal; the rest of the decree of the Sikh Gur 72 dwaras Tribunal stands, that is to say, the properties which have been declared to be the personal properties of Sardar Raghbir Singh and Sardar Balwant Singh shall remain their properties and the properties which have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras".
The High Court also added that though the proceedings mentioned the existence of two Gurdwaras by name Bunga Sarkar and Bunga Mai Mallan, the real position seemed to be that there was only one Gurdwara, viz. Bunga Sarkar, and that Bunga Mai Mallan had no separate existence as a Gurdwara but was a well known part of Bunga Sarkar.
This decision of the High Court was on the 16th June, 1936.
This was followed by notification No. 9 G dated the 3rd March, 1937, under section 17 of the Act which is the foundation of the present suit.
On these facts a number of contentions were raised by both sides before the High Court as well as before us.
The judgment of the High Court as well as the arguments before us have covered a wide range.
On the merits, the case for the plaintiff is quite simple.
The plaintiff says that whatever may be the position with reference to the earlier compromises arrived at between the parties in the proceedings under section 5 of the Act, the later proceedings with reference to those very properties under section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is conclusive and binding.
By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of section 25 A of the Act.
On the side of the defendants various objections have been raised which may be summarised as follows: (1) The proceedings under section 10 did not result in any specific declaration in favour of the Committee that the properties in dispute in the present suit constituted a Sikh Gurdwara or belong to a Sikh Gurdwara.
No such declaration can be gathered from the decision of the Tribunal dated the 4th November, 1935, or from that of 73 the High Court on appeal dated the 16th June, 1936.
(2) The Tribunal had no jurisdiction in disposing of an application under section 10 of the Act, to give a positive declaration that the property in question is a Sikh Gurdwara.
Its only function was to decide whether or not the properties claimed were the private properties of the claimants.
Hence even if the decision of the Tribunal and of the High Court can be treated as a decision declaring the properties as a Sikh Gurdwara that is not valid and the notification issued thereupon is void.
(3) Any such decision would be contrary to section 37 of the Act and also contrary to the principles of res judicata and would be, therefore, a nullity on that ground.
(4) The conduct of the Gurdwara Parbandhak Committee and the concerned Committee of Management, in entering into the compromises in the proceedings under section 5 of the Act without disclosing the pendency of the petition filed by the 55 Sikhs under section 7 of the Act, followed up by their declining to be made parties in the section 10 proceedings and in virtually promoting the contest of the proceedings under sections 8 and 10, was fraudulent.
They are accordingly estopped from relying on the decree obtained under section 10 proceedings and basing their right to relief thereon.
(5) The suit under section 25 A lies only where the decision on an objection under section 10(1) is reached after the notification that the Gurdwara is a Sikh Gurdwara is published since the section refers to.
a decision in favour of a "Notified Sikh Gurdwara" implying the pre existence of such notification.
(6) The suit under section 25 A was barred by limitation.
(7) The whole appeal abated in the High Court inasmuch as one of the respondents, Sardar Balwant Singh died during the pendency of the appeal.
His legal representatives were not brought on record in time and the High Court declined to excuse the delay and to set aside the abatement, as a result of which the entire appeal abated, the claim against both the respondents being joint and not being maintainable against one only in the absence of 10 74 the other.
In addition to these contentions which have been put forward before us and strenuously argued by both sides, the High Court also based its decision on the view that section 7 of the Act assumes the existence of a Gurdwara and that a notification issued under section 7 (3) without there being in fact a Gurdwara in existence would be ultra vires.
In the present case, in view of the prior proceedings under section 5 and the compromises following thereupon, the non existence of the Gurdwara as claimed in the petition under section 7(1) must be taken to have been made out and therefore the notification and all the proceedings following thereupon are illegal and ultra vires.
Though we have heard elaborate arguments from both sides on these various contentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other contentions raised.
The question of limitation arises with reference to the terms of section 25 A which is as follows: "25 A. (1) When it has been decided under the provisions of this Act that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara , or any person, the Committee of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tribunal shall if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly.
(2)Notwithstanding anything contained in any Act to the contrary, the court fee payable on the plaint in such suit shall be five rupees".
75 This section provides, for the filing of the suit, the period of one year from the date of the decision or the date of the constitution of the committee whichever is later.
Now the date of the decision in this case must be taken to be the date when the High Court on appeal disposed of the proceedings under section 10, i.e., the 16th June, 1936.
The present suit has been filed on the 25th February, 1938, i.e., clearly beyond one year of the decision.
The question for consideration, therefore, is whether the suit can be said to have been within one year from the date of the constitution of the Committee of the Gurdwara concerned.
Now, one has to turn to sections 85, 86 and 88 of the Act to appreciate which is, the Committee concerned with this Gurdwara and what the date of its constitution is.
Section 85 is as follows (in so far as it is relevant): "Subject to the provisions of section 88, there shall be one committee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib".
Section 86 is as follows (in so far as it is relevant): "For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act".
Section 88 is as follows (in so far as it is relevant): "(1)The committees described in sections 85 and 86 shall be constituted as soon as may be after the constitution of the Board, provided that no committee shall be constituted for any gurdwara under the provisions of this Act unless and until it has been declared to be a Sikh Gurdwara under the provisions of this Act.
(2)When all the members of any committee described in section 85 have been elected or co opted, as the case may be, according to the provisions of that section, the Provincial Government shall notify the fact that the committee has been duly constituted, 76 and the date of the publication of the notification shall be deemed to be the date of the constitution of the committee".
Now, it is not disputed that the present plaintiff which is the Committee of Management for all the Gurdwaras situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was constituted prior to the year 1930 and was in fact functioning at the date of the compromises in the section 5 proceedings dated the 6th February, 1930.
It is also not disputed that by virtue of section 85(2), this committee also became the Committee concerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar.
But it is contended for the appellants that this Committee becomes concerned with the suit Gurdwara only from the date when the notification under section 17 is issued, i.e., from the 3rd March, 1937, and that, therefore,, the plaintiff had one year from that date for the filing of the suit and that in the situation, section 25 A in providing the alternative period of limitation as being "one year from the date of the constitution of the committee", must be construed reasonably as being one year from the date of the notification in such a case and that for the purposes of this section, the pre existing committee must be deemed to have been constituted for the suit Gurdwara only on the date of the notification.
In support of this contention it has been pointed out that the specific policy of the Act as disclosed in sections 86 and 88 is that no Committee is to be formed for a Gurdwara until after ' it has been declared a Sikh Gurdwara under the provisions of the Act.
It is accordingly urged that the phrase "constitution of the committee" in section 25 A should be construed so as to indicate a point of time not earlier than the notification of the concerned Gurdwara and that in the circumstances and in such cases the date of the notification of the Gurdwara must be the date of the constitution of the concerned committee.
It appears to us, however, that this contention is untenable.
Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras 77 specified in section 85.
Hence so far as our present purpose is concerned, the policy underlying section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists.
Moreover, sub section (2) of section 88 provides with reference to Committees under section 85, that, as soon as all the members described therein have been elected or co opted, the fact should be duly notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of the Committee.
In the face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purposes of the Act and to imply an exception and an addendum to the specific deeming provision.
This would be legislating.
We cannot, therefore, accept the contention of the appellant that the date of the notification under section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25 A. It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under section 25 A would become inapplicable.
It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course.
That, at any rate, is not the present case where the notification was in fact issued within nine months of the decision of the High Court.
The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit.
However this may be, we do not consider that there is any question of hardship, 78 because obviously section 25 A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself.
We are clearly of the opinion that the present suit under section 25 A is barred by limitation and on this ground the appeal must fail.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

summary/full:
The plaintiff which is the Committee of Management for all Gurudwaras situated within the Municipal limits of Amritsar, except the Gurudwara Sri Akal Takht Sabib, was constituted prior to the year 1930 and by virtue of section 85(2) of the Sikh Gurudwaras Act (Punjab Act VIII of 1925) became the Committee concerned with the suit Gurudwara.
There were certain proceedings under the Act in respect of the suit properties which were ultimately decided by the High Court on the 16th June 1936 and the decision was followed by a notification under section 17 of the Act on the 3rd March 1937.
As a result the plaintiff became entitled to get possession of the said properties by instituting a suit before a tribunal under section 25 A of the Act within one year from the date of the decision or the date of the constitution of the Committee, whichever was later.
The present suit was filed on the 25th February 1938 which was beyond one year of the decision and the question was whether the suit can be said to have been instituted within one year of the date of the constitution of the Committee of the Gurudwara concerned, the contention being that the plaintiff must be deemed to have become the committee concerned with the suit Gurudwara only on the date of the notification thereof in 1937 under section 17 of the Act by virtue of the provisions of sections 86 and 88.
Held, that the date of the notification in 1937 under section 17 cannot be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25 A and that the present suit is barred by limitation.
Section 86 does not apply to Gurudwaras within the Municipal limits of Amritsar specified in section 85, in respect of which a Committee already exists and by virtue of sub section (2) of section 88 the date of the publication of the notification of the Committee which already has been in existence since 1930 will be the date of the constitution of the Committee within the meaning of section 25 A.