judgement:
ition No. 8911 of 1981.
(Under article 32 of the Constitution of India) Petitioner in Person K.G. Bhagat, Addl.
Gen., N.C. Talukdar and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The petitioner in this petition under Article 32 of the Constitution is a resident of Sultanbattery area in the State of Kerala and describing himself as a commuter of the Indian Railways he has alleged violation of fundamental rights guaranteed under Articles 19 and 21 and claims reliefs of mandamus to the Union of India for implementing the reports of the Kunzru, Wanchoo and Sikri Committees, appointing a fact finding Commission to inquire and report about the numerous train accidents from 1970 onwards and for several other directions to the Union Government and the instrumentalities connected with the administration of the Railways.
As the petition which the petitioner, an allopathic doctor by profession, had himself drafted and filed was unduly long and repetitive, written submission with the assistance of counsel crystalising the issues for determination by the Court was filed, leave to amend the writ petition was granted and notice thereon was issued on August 2, 1982.
The petitioner alleged, inter alia, that the Railways in this country are owned by the Central Government and on account of failure to fulfil the constitutional, statutory and commercial obligations by the Railways, adequate safety protection to the passengers and their properties is not available.
The Indian Railways Act, 1890 ( 'Act ' for short) has prescribed several safety measures; based upon experience, the Railway Board through which apex body the administration is run and controlled has also prescribed rules and issued instructions which are not being properly implemented.
The Union Government had appointed three high powered Committees in the post independence period, namely, the Kunzru, Wanchoo and Sikri Committees to investigate into the 712 affairs of the Railways with particular reference to accidents and though detailed and useful recommendations have been made by these committees, there has been no adequate implementation thereof.
Particular reference has been made to the unmanned level crossings, increasing human error as a contributing factor to accidents, non allocation of adequate funds for improvements, improper utilisation of the assets and facilities, inefficiency in the administration at different levels, prevalence and increase of indiscipline, frequency of thefts, robberies and murders of passengers, ineffective checking and supervisory system, want of replacement of equipment and repairs to bridges as also non provision of adequate facilities to passengers.
The Joint Director (Safety) has filed a counter affidavit in answer to the Rule on behalf of the respondents.
It has been averred that the recommendations of the Accidents Enquiry Committees were examined and implemented within the limits of financial and material resources.
So far as manned level crossings are concerned there were as many as 14471 of them as on March 1, 1982; unmanned level crossings were provided mostly on roads where the volume of road and train traffic was low.
It has been further pleaded that periodic review is undertaken about manning of unmanned level crossings and opening of new level crossings in consultation with appropriate State Governments.
Initially it used to be the obligation of the respective State Governments to provide for such level crossings at their cost in view of the accepted position that at a level crossing the right of way is of the train in preference to the traffic on the road.
As that arrangement was not working well, with effect from April 1, 1966, a Railway Safety Work Fund has been set up and expenses are being met out of it.
From 1978 potentially hazardous unmanned level crossings with a volume of traffic of more than 6000 train vehicle units or poor approach visibility are being manned in a phased manner at the cost of the Railways and control at the gate is also being improved.
As on June 1, 1982, there were as many as 27233 unmanned level crossings on the Railways and if all of them are to be manned, a capital expenditure of 330 crore rupees would be necessary and similarly an annual recurring expenditure of Rs.44 crores will have to be met.
As a measure of safety, whistle boards have been fixed near unmanned level crossings requiring the engine driver to whistle while approaching such level crossings.
Most of the States have framed rules under the , making it obligatory for 713 drivers of motor vehicles to stop short of unmanned level crossings, observe and then proceed.
Speed breakers are usually provided on the road approaches to all unmanned level crossings.
With a view to educating the users of the roads wide publicity is given through newspapers, cinema slides, commercial broadcasting and the television about the hazards involved while negotiating unmanned level crossings.
It has been alleged that unmanned level crossings are gradually being replaced by manned ones and improved technical gadgets are being provided for efficient operation.
Relying on the Sikri Committee Report of 1978, it has been submitted that the State Governments appeared to be aware of their responsibilities in this matter and about 2/3 of the funds of the Safety Works had been utilised by March 31, 1982.
While admitting that in the initial period utilisation of funds was poor and finalisation of schemes for over bridges and under bridges was slow, the situation is claimed to have improved and in 1982 83 as many as 15 works in different States involving an expenditure of Rs.22 crores have been cleared.
Dealing with manpower, the counter affidavit asserts that direct recruits are given proper training required for the respective posts and only qualified people are entrusted with assignments.
Pragmatic and scientific classification of various posts has been made and suitable care is being taken in this regard.
So far as the locomotive drivers are concerned, strict vision standards have been laid down and general physical fitness is a prescribed pre requisite.
Drivers are subjected to periodical medical examination until the age of 45 at intervals of three years and thereafter until superannuation every year.
Every accident, it has been averred, is thoroughly enquired into to fix the responsibility for it and to visit the delinquent with proper punishment.
Ordinarily such enquiries are conducted by the administrative machinery.
Accidents involving loss of human life and properties estimated over one lakh are earmarked for enquiry by Commissioners of Railway Safety who as authorities appointed under section 4 of the Act function independently of the Railway Administration and are under the administrative control of the Ministry of Civil Aviation.
Enquiries by the Railway officials are stipulated to commence within three days of the accident and are intended to be over within one week of their commencement, while enquiries by Commissioners of Railway Safety are also required to start within three days and official reports are required to be made within 60 days 714 of the accident.
Adequate disciplinary control is exercised and on the findings of the enquiries, the delinquent officials are visited with necessary punishment.
Adverting to robberies and dacoities in the running trains, it has been pointed out that they are problems of law and order, maintenance of which is an obligation of the State Governments.
Government Railway Police, Civil Police and plain clothed CID officers operate for the purpose of reducing crime and for detection.
A moiety share of the cost of GRP is borne by the Railway administration.
Added to this the Railway Protection Force is maintained to protect consignments booked for transport as also Railway property.
The overall strength of the GRP stands at 6,740.
They escort passenger trains running at night by deploying armed guards, provide beat patrolling at stations and waiting halls, keep surveillance over criminals and post pickets at vulnerable points.
With reference to improvements in the rolling stock and required gadgets, it has been stated that the Sixth Plan for the Railways has been termed as 'Rehabilitation Plan '.
Overaged gadgets are intended to be withdrawn subject to availability of resources and manufacturing capacity within the country.
The Planning Commission which is an expert body is responsible for fixing of the priorities.
It has again been pleaded that there are nearly 120000 bridges on the Railways out of which 195 are important bridges and nearly 9400 are major bridges.
It is said that every bridge is annually inspected and continuous record is maintained in regard to every bridge in the bridge register.
On an average 400 to 600 bridges are annually built.
Speed restriction is imposed on old and weak bridges and at present there are 202 such bridges.
Figures of six years between 1977 and 1983 of the outlay on bridges have been provided which indicate substantial sums having been set apart for the rebuilding of bridges.
It is said that the total life of 80 years for steel work and 100 years for masonry part of the bridges stipulated in the Railway Code is for the purpose of provision in the Depreciation Reserve Fund.
The codal life does not have any direct relevance with the condition of a bridge and there is no necessity of rebuilding a bridge when its codal life is over.
There has been no instance where the work of bridge rebuilding has been postponed for lack of funds and no accident has occurred owing to structural failure of any bridge or girders.
715 Colour light signalling which is an improved device less dependent on direct visibility and where signal is pre warned by a signal in the rear, is being provided on the trunk and main routes on a graduated scale.
Automatic warning system has been introduced in Gaya, Mughalsarai and Howrah Burdwan chord line sections on the Eastern Railway.
Due to theft of aluminium track magnets the system has been found not very satisfactory.
Experiments are being made for evolving a design which would not be prone to theft.
The petitioner has filed a rejoinder pointing out that the counter affidavit clearly indicated a negative approach on the part of the respondents to the entire matter.
According to the petitioner assistance of 500 crores of rupees was to come during the year ending March 31, 1983 and from out of such funds, pressing improvements like manning the unmanned level crossings could be undertaken.
Reliance has been placed on the observations of Sikri Committee that accidents at unmanned level crossings take a heavy toll of human lives every year.
The petitioner has pleaded for abolition of overtime employment of safety category staff.
He has pointed out that though he asked for directions for providing appropriate monitoring of speed of trains particularly at accident prone spots in the track, no reply has been given thereto in the counter affidavit.
The strength of the GRP has been said to be totally inadequate keeping in view the size of the Railways and volume of the passenger traffic it handles.
The petitioner has denied the assertion in the counter affidavit that no accident has taken place on account for defective bridges and has pointed out that the accident of June 6, 1981 on a river bridge in the Bihar State was attributable to this factor only.
The petitioner has pleaded again for the introduction of the automatic warning system and has referred to a publication of the Directorate of Safety, Railway Board, entitled, "A Review of Accidents on Indian Railways 1979 80", where the introduction of automatic warning system has been suggested to be introduced to avoid accidents.
He has also pleaded for enhancing the minimum compensation in the event of loss of life of a passenger arising out of accidents to a sum of Rs. 75,000 by appropriate amendment of section 82A (2) of the Act.
The petitioner has found fault with the counter affidavit for being silent in regard to his plea for the appointment of Railway Inspectors to make periodical inspection of carriages, engines, tracks, etc.
716 The lis before us is not of the ordinary type where there are two contending parties, a claim is raised by one and denied by the other, issues are struck, evidence is led and the findings follow.
Though the petitioner is commuter of trains run by the Indian Railways, the writ petition is essentially in the nature of public interest litigation and the petitioner has attempted to voice the grievances of the community availing the services of the Indian Railways.
In view of the recent pronouncements of this Court no objection has been raised in the counter affidavit and we have not been called upon to adjudge the locus standi of the petitioner to maintain an action like this.
Railways came to India in 1853 and the first track to be laid was of a small length connecting the then city of Bombay with a suburb.
Through the decades that followed the expansion was usually for considerations of trade and commerce, troop movement and administrative convenience.
More of expansion came gradually connecting almost the entire country through a well woven net work of Railways and by the time the country became independent most of the Railways had been nationalised and Railways constituted the most important commercial activity of the Government of India.
As early as 1850 and three years before the opening of the first Railway track, Lord Dalhousie, the then Governor General of India had said in his minutes: "I trust they (the East India Company and the Government of India) will ever avoid the error of viewing Railways as private undertakings and will regard them as national works, over which the Government may justly exercise and is called upon to exercise stringent and salutary control This control should not be an arbitrary right of interference but a regulated authority defined and declared by law which is not to be needlessly or vexatiously exacted but which, in my humble judgment, is necessary at once for the interests of the State and for the protection of the public." (Minutes of Lord Dalhousie, July 4, 1850).
This regard for the public interest during the pre independence period was often subject to the limitations imposed by the British Capital and Management and by British Commercial and economic interests until the Railways were nationalised between 1925 and 1944.
717 At any rate, by 1947 when the foreign domination ended, the Railways had emerged as the main viable and stable means of transport and were providing the lifeline and link throughout the length and breadth of the country.
By 1955 the total length of all Indian Railways was 34705 miles and the capital sunk was more than 900 crore rupees.
The rise in the importance of the Railways in the national sphere has been gradual.
With the expansion of the Railways a high powered body known as the Railway Board has come to be placed at the apex of control and with the new set up following independence a Minister remained incharge to administer the affairs of the Railways through the Board.
As early as 1924 by a resolution known as the Convention Resolution of the Legislative Assembly the Railway budget had been separated from the general budget and this historical practice has been continued till today.
Today the Railways provide the most effective means of transport both for passengers also for the goods traffic.
The Railways have a great impact in holding this great country together and in promoting and running its economy.
Their contribution to the community is manifold some seen and others not apparently visible.
Briefly stated, it is a big force, the largest employer in the country and a monopoly transport agency.
Before we come to deal with the specific aspects raised in the writ petition and countered by the respondents certain general observations need be made.
The Indian Railways are a socialised public utility undertaking.
There is at present a general agreement among writers of repute that the price policy of such a public Corporation should neither make a loss nor a profit after meeting all capital charges and this is expressed by covering all costs or breaking even; and secondly, the price it charges for the services should correspond to relative costs.
Keeping the history of the growth of the Railways and their functioning in view, the commendable view to accept may be that the rates and fares should cover the total cost of service which would be equal to operational expenses, interest on investment, depreciation and payment of public obligations, if any.
We need not, however, express any opinion about it.
After independence, keeping to the ideologies that had been nurtured during the period of struggle an attempt has been made 718 for the simplification of the classes in the Railways.
Instead of first class, second class, inter class and third class, two classes only have been maintained, namely, the first class and the second class besides the air conditioned class.
In developed countries usually the classification is higher and lower; sleeping or sitting and the like.
In India 90% of the earnings in respect of passenger traffic come from the lower class commuters.
Also after independence expansion projects have been undertaken and many areas which have hitherto remained unlinked and unconnected have been joined up as part of the national lifeline.
Pandit Jawahar Lal Nehru, first Prime Minister of India had once said: "Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural level. .
Every thing that comes in the way will have to be removed; gently if possible, forcibly, if necessary.
And there seems to be little doubt that coercion will often be necessary.
" This approach on principle does not appear to have been abandoned.
It is proper that this is worked out also in the Railways and, as quickly as possible, classification conforming to this is introduced.
It is manifest that the Indian Constitution has definitely rejected the authoritarian form of Government and directed the State to bring about an egalitarian social order through the rule of law.
In keeping with this mandate several guiding policies are being indicated but implementation is not being made.
What Tolstoy remarked can relevantly be quoted as apt: "The abolition of slavery has gone on for a very long time.
Rome abolished slavery; America abolished it and we did, but only the words were abolished, not the thing.
" The implementing machinery has become non functional.
This is so not only in our country.
Wilfred Jenks in his address in April 1972 to the International Law Organisation had summed up the position thus: 719 "Throughout the world there is an acute crisis of confidence in integrity and fairness.
This crisis of confidence lies at the heart of political instability, economic disorder, industrial disturbance, racial and religious conflict, cultural anarchy, youth unrest and continuous international tension.
Disruptive in all these fields, it paralyses action to remove its causes.
" Burger, C.J. of the United States has said: "We are approaching the status of an imperfect society where capability of maintaining elementary security in the streets, in the schools and for the homes of our people is in doubt.
At every stage of the criminal process, the system cries out for change.
" What has been extracted above appropriately summarises the current situation all the world over.
No purpose is served by placing the blame at the doors of the Government of the day.
We must have realism and candour.
Independence has been secured at great cost and sacrifice.
It is our obligation to maintain it and create an environment in which its fruits can be harvested and shared.
Freedom brings responsibility.
There can be no rights without responsibilities.
In our country, unfortunately individual rights seem to have received disproportionate emphasis without proper stress on corresponding social obligations and responsibilities.
In a welfare State like ours the citizen is for ever encountering public officials at various levels, regulators and dispensers of social services and managers of State operated enterprises.
It is of the utmost importance that the encounters are as just and as free from arbitrariness as are the familiar encounters of the rights.
Edmund Burke spoke thus: "All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and they are to account for their conduct, in that trust to the one great master, author and founder of society.
" 720 Equally apt are the observations of Lord Denning in his address to the National Conference of the Law Society in 1980: "When you look upon these scientific achievements, then look back for a moment on our world today, what do you see, Crime, increasing every where; sins, disgraceful sins, corroding corruption, increasing everywhere.
When we see this, surely we recall the words of 2000 years ago what doth it profit a man if he gains the whole world and loses his own soul.
" What is, therefore, of paramount importance is that every citizen must get involved in the determined march to resurrect the society and subordinate his will and passion to the primordial necessity of order in social life.
Abraham Lincoln once told his Congress: "This country, with its institutions, belongs to the people who inhabit it." Such also is the position in our country.
Everyone in the country must realise this and be told the great truth said by Lord Wright: "The safeguard of British liberty is in the good sense of the people." Liver sidge vs Anderson ; It is useful to conclude our general observations by quoting from Robert Ingersoll: "A Government founded on anything except liberty and justice cannot stand.
All the wrecks on either side of the stream of time, all the wrecks of the great cities and all the nations that have passed away all are a warning that no nation founded upon injustice can stand.
From the sand enshrouded Egypt, from the marble wilderness of Athens, and from every fallen crumbling stone of the once mighty Rome, comes a wail as it were the cry that no nation founded on injustice can permanently stand.
" 721 Having thus cleared the way by indicating the approach, ordinarily the powers of the Court to deal with a matter such as this which prima facie appears to be wholly within the domain of the Executive, should have been examined.
Lord Simond in Shaw vs Director, Public Prosecution, has observed: "I entertain no doubt there remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order, but also the moral welfare of the State and that it is their duty to guard against attacks which may be more insiduous because they are novel and unprepared for.
" Mathew, J. in Murlidhar Aggarwal vs State of U.P., indicated: "Public policy does not remain static in any given community.
It may vary from generation to generation and even in the same generation.
Public policy would be almost useless if it were to remain in fixed moulds for all time.
If it is variable, if it depends on the welfare of the community at any given time, how are the courts to ascertain it ! The Judges are more to be trusted as interpreters of the law than as expounders of public policy.
However, there is no alternative under our system but to vest this power with Judges.
The difficulty of discovering what public policy is at any given moment certainly does not absolve the Judges from the duty of doing so.
In conducting an enquiry, as already stated, Judges are not hidebound by precedent.
The Judges must look beyond the narrow field of past precedents, though this still leaves open the question in which direction they must cast their gaze." The learned Judge then quoted with approval the famous statement of Cardozo (The Nature of Judicial Process): 722 "No doubt there is no assurance that Judges will interpret the mores of their day more wisely and truly than other men.
But this is beside the point.
The point is rather that this power must be lodged somewhere and under our Constitution and laws, it has been lodged in the Judges and if they have to fulfil their function as Judges, it would hardly be lodged elsewhere.
" The petitioner has grounded his petition on Articles 19 and 21 of the Constitution.
Article 19, inter alia, guarantees freedom of movement throughout the territory of India and to practice any profession, to carry on any occupation, trade or business, and Article 21 guarantees that no person shall be deprived of his life and personal liberty except according to procedure prescribed by law.
The petitioner has maintained that he, may every citizen of this country for the matter of that, is entitled to demand that the State shall provide adequate facilities and create and maintain an environment in which the right to move freely and carry on any business or profession would both be practicable and feasible.
Since the State maintains the Railways which provide the link and make working out of both these rights possible, it is contended, such facilities should be in good shape, adequate, prompt, efficient, economic and within the reach of the common man, free from danger or apprehension of life.
Similarly, this service must operate efficiently for transport of goods to facilitate business and practice of profession and trade by citizens.
There is hardly any scope to doubt that the guarantees provided in Part III of the Constitution are fundamental and it is the paramount obligation of the State to ensure availability of situations, circumstances and environments in which every citizen can effectively exercise and enjoy those rights.
The right to life has recently been held by this Court to connote not merely animal existence but to have a much wider meaning to include the finer graces of human civilization.
If these rights of the citizens are to be ensured, it is undoubtedly the obligation of the Union of India and its instrumentalities to improve the established means of communication in this country.
Here again, however, we need not express any opinion as we do not propose to give any directions to the opposite parties.
No dispute regarding maintainability having been raised, that question also did not arise for consideration.
We have said earlier that the Railways are a public utility service run on monopoly basis.
Since it is a public utility, there is 723 no justification to run it merely as a commercial venture with a view to making profits.
We do not know at any rate it does not fall for consideration here if a monopoly based public utility should ever be a commercial venture geared to support the general revenue of the State but there is not an iota of hesitation in us to say that the common man 's mode of transport closely connected with the free play of this fundamental right should not be.
We agree that the Union Government should be free to collect the entire operational cost which would include the interest on the capital outlay out of the national exchequer.
Small marginal profits cannot be ruled out.
The massive operation will require a margin of adjustment and, therefore, marginal profits should be admissible.
It is of paramount importance that the services should be prompt, efficient and dignified.
The quality of the service should improve.
Travel comforts should be ensured.
Facilities in running trains should be ensured.
Quality of accommodation and availability thereof should be ensured.
The administration should remain always alive to the position that every bona fide passenger is a guest of the service.
Ticketless travelling has to be totally wiped out.
We are of the view that it is this class of passengers which is a menace to the system.
Without any payment these law breakers disturb the administration and genuine passengers.
Stringent laws should be made and strictly enforced to free the Railways from this deep rooted evil.
Security both to the travelling public as also to the non travelling citizens must be provided and this means that accidents have to be avoided, attack on the persons of the passengers and prying on their property has to stop.
Scientific improvements made in other countries and suitable to the system in our country must be briskly adopted.
The obligations cast by the Railways Act and the Rules under it must be complied with.
It is relevant to point out here that in the counter affidavit the respondents have denied some of the assertions of the petitioner, yet no dispute has been generally raised to the stand taken in the writ petition.
We are alive to the fact that Government have limitations, both of resources and capacity, yet we hope that the Government and the Administration would rise to the necessity of the occasion and take it as a challenge to improve this great public utility in an effective way and with an adequate sense of urgency.
If necessary, it shall set up a high powered body to quickly handle the many faced problems standing in the way.
Giving directions in a matter like this where availability of resources has a material bearing, policy regarding 724 priorities is involved, expertise is very much in issue, is not prudent and we do not, therefore, propose to issue directions.
We, however, do hope and believe that early steps shall be taken to implement in a phased manner the improvements referred to in the counter affidavit and in our decision.
We think it proper to conclude our decision by remembering the famous saying of Henry Peter Broughan with certain adaptations: "It was the boast of Augustus that he found Rome of bricks and left it of marble.
But how noble will be the boast of the citizens of free India of today when they shall have it to say that they found law dear and left it cheaper; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.
" It is only in a country of that order that the common man will have his voice heard.
The dream can become a reality if every citizen becomes aware of his duty and before asking for enforcement of his right, volunteers to perform his obligation.
And before we part, we must record our appreciation of the performance of the petitioner.
He has taken great pains to highlight his stand collected a lot of relevant material and argued his case quite well a doctor by profession though.
As this was a public interest litigation, we direct that he shall be entitled to consolidated cost of Rs. 5,000 recoverable from the Railway Ministry of the Union Government unless paid within two months hence.

summary/full:
Disposing off the petition, making certain observations and expressing its inability to issue any directions, except awarding costs, the Court. ^ HELD: 1.
Giving directions in a matter like this, where availability of resources has a material bearing, policy regarding priorities is involved, expertise is very much in issue is not prudent to issue any directions.
Ordinarily the powers of the court to deal with a matter such as this, which prima facie appears to be wholly within the domain of the Executive must be examined.
[723 H, 724 A] The Govt.
have limitations, both of resources and capacity.
Yet, it is hoped that the Government and the Administration would rise to the necessity of the occasion and take it as a challenge to improve this great public utility (Railways) in an effective way and with an adequate sense of urgency.
If, necessary, it shall set up a high powered body to quickly handle the many faced problems standing in the way.
[723 G H] 2.
As the present case is a public interest litigation, the petitioner is entitled to consolidated costs of Rs. 5,000 recoverable from the Railway Ministry of the Union Government.
[724 F G] 3.
There is hardly any scope to doubt that the guarantees provided in Part III of the Constitution are Fundamental and it is the paramount obligation of the State to ensure availability of situations, circumstances, and environments in which every citizen can effectively exercise and enjoy these rights.
The right to life has recently been held by the Supreme Court to connote not merely animal existence but to have a much wider meaning to include the finer graces of human civilization.
If these rights of the citizens are to be ensured, 710 it is undoubtedly the obligation of the Union of India and its instrumentalities to improve the established means of communication in this country.
[722 E G] 3.2.
The Railways are a public utility service run on monopoly basis.
Since it is a public utility, there is no justification to run it merely as a commercial venture with a view to making profits.
It is not known if a monopoly based public utility should ever be a commercial venture geared to supply the general revenue of the State but there is no doubt that the common man 's mode of transport closely connected with the free play of his fundamental right should not be.
[722 H, 723 A] 3.3.
The Union Government should be free to collect the entire operational cost which would include the interest on the capital outlay out of the national exchequer.
Small marginal profits cannot be ruled out.
The massive operation will require a margin of adjustment and, therefore, marginal profits should be admissible.
[723 B C] 3.4.
On the other hand, it is of paramount importance that the services should be prompt.
The quality of the service should improve.
Travel comforts, facilities in running trains and quality of accommodation and availability thereof should be ensured.
The Administration should remain always alive to the position that every bonafide passenger is a guest of the service.
Ticketless travelling has to be totally wiped out.
It is this class of passengers which is a menace to the system without any payment, these law breakers disturb the administration and genuine passengers.
Stringent laws should be made and strictly enforced to free the Railways from this deep rooted evil Security both of the travelling public as also to the travelling citizens must be provided and this means that accidents have to be avoided, attack on the persons of the passengers and prying on their property has to stop.
Scientific improvements made in other countries and suitable to the system in our country must be briskly adopted.
The obligations cast by the Railways Act and the Rules under it must be complied with.
[723 C F] 3.5.
At the same time, no purpose is served by placing the blame at the doors of the Government of the day.
All of us should have realism and condour Independence has been secured at great cost and sacrifice.
It is every citizen 's obligation to maintain it and create an environment in which its fruits can be harvested and shared.
[719 D E] 3.6 Freedom brings responsibility.
There can be no rights without responsibilities.
In our country unfortunately individual rights have received disproportionate emphasis without proper stress on corresponding social obligations and responsibilities.
In a welfare State like ours the citizen is for ever encountering public officials at various levels, regulators and dispensers of social services and managers of State operated enterprises.
It is of utmost importance that the encounters are as just and as free from arbitrariness as are the familiar encounters of the rights.
What is, therefore, of paramount importance is that every citizen must get involved in the determined march to resurrect the society and subordinate his will and passion to the primordial necessity of order in 711 social life.
If is only in a country of that order that the common man will have his voice heard.
The dream can become a reality if every citizen becomes aware of his duty and before asking for enforcement of his right, volunteers to perform his obligation.
[719 E F, 720 B C, D, 724 E]


judgement:
Civil Appeal No. 3191 of 1983.
WITH S.L.P. (CIVIL) No. 4311 of 1983.
From the Judgment and Order dated the 30th November, 1982 passed by the Govt.
of India u/s.22 of the Monopolies & Restrictive Trade Practices Act, 1969 bearing No.2/18/80 M II.
Anil B. Divan and B.V. Desai for the Appellant.
B. V. Desai for the petitioner.
P. R. Mridul, Ravindra Narain, D. N. Misra and Ashok Sagar for the respondent in C. A. No. 3191/83.
M. L. Talukdar, C.V. Subba Rao and R. N. Poddar for the respondent.
D.N. Misra and R. N. Poddar for the respondent in S.L.P. No.4311/83.
816 The Order of the Court was delivered by CHANDRACHUD, C. J.
The order of the Government dated November 30, 1982 which is impugned in these proceeding leaves much to be desired.
But we do not propose to admit the appeal since after hearing a longish argument from Shri Anil B. Divan on behalf of the appellant, we are satisfied on the material produced before us and on perusal of the counter affidavit of the Government that, there were good reasons for passing the impugned order.
We must, however, impress upon the Government that while disposing of applications under Sections 21, 22 and 23 of the it must give good reasons in support of its order and not merely state its bald conclusion.
The faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders.
The relevant material must be made available to be objectors because with out it, they cannot possibly must the claim or contentions of the applicants under Sections 21, 22 and 23 of the MRTP Act.
The refusal of the Government to furnish such material to the objectors can amount to a denial of a reasonable opportunity to the objectors to meet the applicant 's case.
And denial of a reasonable opportunity to meet the other man 's case is denial of natural justice.
On the question of the need to give reasons in support of the conclusions to which the Government has come, the authorities concerned may, with profit, see the Judgments of this Court in Union of India vs Mohan Lal Capoor & Ors., Siemens Engineering & Manufacturing Co. of India Limited vs Union of India & Ans.
and Uma Charan vs State of Madhya Pradesh & Anr.
With these observations we dismiss the special leave petition and the appeal.
H.L.C. Petition dismissed.

dataset_name: IN-Abs

summary/full:
HELD: The faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders.
Refusal to furnish relevant materials to the objectors can amount to denial of reasonable opportunity and violation of natural justice.
[816 C & E]


judgement:
ivil Appeal Nos.
3085 of 1981 and 3628 3649 of 1982.
From the judgment and Order dated the 6th July, 1981 and 5th August, 1982 of the High Court of Karnataka at Bangalore in Writ Appeal Nos.
724/81 and 1324/80, 1470, 1788, 1894/81, 55, 94, 368/82, 475/81, 1133/82, 21310/80, 22158, 21822/80, 10531, 10612/82, 1086, 1778/80, 12332, 12890/78, 19550/79, 11089/82, 11228 & 19410/82.
N. K. Sharma, Ms. Depika Saxena and Vineet Kumar for the appellants.
R. K. Garg, D. K. Garg, P. R. Ramasesh and Ms. R. Bagai for the respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The employer Karnataka State Road Transport Corporation created under a State Act entitled the Transport Corporation Act of 1950 ( 'Corporation Act ' for short) is in appeal by special leave and the common decision of a Division Bench of the High Court which held that termination of employees while on probation on ground of unsuitability amounted to retrenchment and for non compliance with the provisions of section 25F of the ( 'Disputes Act ' for short), the termination is bad, is challenged.
As per Rule 7 made under section 45 of the Corporation Act, direct recruits are to be on probation for two years and such probation can be extended.
The employer terminated the employment 785 of some of the employees during the initial period of probation and of some others during the extended period on the ground of unsatisfactory service.
Thereupon an industrial dispute was raised questioning the legality of their termination and the State Government referred the dispute to the Labour Court for adjudication under section 10 of the .
The Labour Court held, overruling the stand of the employer that section 25F of the had no application, to the effect that the discharge was invalid.
The employer Corporation came before the High Court challenging the Award.
A learned single Judge dismissed the writ petition holding that the order of discharge amounted to retrenchment as defined in section 2(oo) of the and those orders were bad for noncompliance of section 25F. The employer Corporation challenged the decision of the single Judge before a Division Bench and the Division Bench by the impugned judgment upheld the decision of the learned single Judge.
Admittedly the employees were probationers at the time of discharge from service.
There is no dispute that as a condition precedent to discharge the requirements of section 25F of the had not been complied with.
If the discharge of the employees would amount to retrenchment, appellant 's counsel does not dispute that the order of discharge would be bad for non compliance of section 25F of the .
The only question for consideration in these appeals, therefore, is whether the discharge of the employees from service amounted to retrenchment.
It is the stand of the employer Corporation that the employees were probationers and the order of discharge in every case was on account of unsatisfactory service.
Since the order of discharge has been grounded upon unsatisfactory service during the period of probation, it has been argued that such termination of service is not retrenchment.
Section 2(oo) of the defines retrenchment to mean: " 'retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation 786 if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health.
" A Constitution Bench of this Court in Hariprasad Shivshanker Shukla vs A.D. Divikar, examined the true meaning of the expression 'retrenchment ' and posed the following question: "The question however, before us is does this definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the employer.
" It went on to say: "There is no doubt that when the Act itself provides a dictionary for the words used we must look into that dictionary first for an interpretation for the words used in the statue.
We are not concerned with any presumed intention of the legislature; our task is to get at the intention as expressed in the statute.
Therefore, we propose first to examine the language of the definition and see if the ordinary, accepted notion of retrenchment fits in, squarely and fairly, with the language used.
What is the ordinary, accepted notion of retrenchment in an industry.
Let us now see how far that meaning fits in with the language used.
We have referred earlier to the four essential requirements of the definition, and the question is, does the ordinary meaning of retrenchment fulfil those requirements ! In our opinion it does.
When a portion of the staff or labour force is discharged as surplusage in a continuing business, there are (a) termination of the service of a workman; (b) by the employer; (c) for 787 any reason whatsoever; and (d) otherwise than as a punishment inflicted by way of disciplinary action." The Constitution Bench further said: "The legislature is using the expression 'for any reason whatsoever ' says in effect : It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfilled, then it is retrenchment.
" In the absence of any compelling words to indicate that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expression altogether from its context to give it such a wide meaning as is contended for by learned counsel for the respondents.
What is being defined is retrenchment, and that is the context of the definition; It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended.
Where, within the framework of the ordinary acceptation of the word every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.
" After referring to certain decisions the Constitution Bench concluded by saying: "For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court, that retrenchment as defined in section 2(oo) and as used in section 25F has no wider meaning than the ordinary, accepted connotation of the word; it means the discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action," The ratio of this decision has been pressed into service by the appellant Corporation for its stand that in the instant case the services have been terminated on the ground of unsuitability and it was not a case of disbanding surplus labour force and, therefore, did 788 not amount to retrenchment.
On the other hand, counsel for the employees have contended that the consensus of judicial opinion in later decisions of this Court is against the appellant 's stand.
The first decision is the case of State Bank of India vs N. Sundara Money.
A Bench of three learned Judges of this Court referred to the definition in section 2(oo) of the and observed : "To protect the weak against the strong this policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced.
" Then came the decision in Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa & Ors, when a three Judge Bench of this Court again examined the true meaning of the definition of the expression 'retrenchment '.
On this occasion reference was made to the Constitution Bench decision and as would appear from page 589 of the Report, counsel had submitted that the three Judge decision of this Court in Sundara Money 's case (supra) was in apparent conflict with the Constitution Bench decision and required reconsideration.
This submission of counsel was considered and facts of the Constitution Bench case were analysed and Gupta, J, who spoke for the Court, stated: "On the facts of the case before us, giving full effect to the words 'for any reason whatsoever, would be consistent with the scope and purpose of section 25F of the , and not contrary to the scheme of the Act.
We do not find anything in Hariprasad 's case which is inconsistent with what has been held in State Bank of India vs N. Sundara Money (supra).
" The same question came up for consideration before a two Judge Bench of this Court in Santosh Gupta vs State Bank of Patiala.
The facts of the case were more or less the same as in the present dispute.
Employment there had been terminated upon failure of the workman to pass the test which would have enabled her to be confirmed in service and it was contended on behalf of the 789 management that termination of service was not due to discharge of surplus labour force and, therefore, it did not amount to retrenchment.
The Division Bench referred to the Constitution Bench decision and observed: "If the definition of 'retrenchment ' is looked at unaided and unhampered by precedent, one is at once struck by the remarkably wide language employed and particularly by the use of the words "termination for any reason whatsoever".
The definition expressly excludes termination of service as a 'punishment inflicted by way of disciplinary action '.
The definition does not include, so it expressly says, voluntary retrenchment of the workman or retrenchment of the workman on reaching the age of superannuation or termination of the service of the workman on the ground of continuous ill health.
Voluntary retrenchment of a workman or retrenchment of the workman on reaching the age of superannuation can hardly be described as termination by the employer of the service of a workman.
Yet, the Legislature took special care to mention that they were not included within the meaning of 'termination by the employer of the service of a workman for any reason whatsoever '.
This, in our opinion, emphasizes the broad interpretation to be given to the expression 'retrenchment '.
In our view if due weight is given to the words 'the termination by the employer of the service of a workman 'for any reason whatsoever ' are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment ' must include every termination of the service of a workman by an act of the employer.
The underlying assumption, of course, is that the undertaking is running as an undertaking and the employer continues as an employer but where either on account of transfer of the undertaking or on account of the closure of the undertaking the basic assumption disappears, there can be no question of 'retrenchment, within the meaning of the definition contained in section 2(oo).
This came to be realised as a result of the decision of this Court in Hariprasad Shivshanker Shukla vs A. D. Divikar (supra).
The Parliament then stepped in and introduced 25F and 25FFF by providing that compensation shall be payable to workmen in case of transfer of 790 undertaking or closure of undertaking as if the workmen had been retrenched.
We may rightly say that the termination of the service of a workman on the transfer or closure of an undertaking was treated by Parliament as 'deemed retrenchment '.
The effect was that every case of termination of service by act of employer even if such termination involved was a consequence of transfer or closure of the undertaking was to be treated as 'retrenchment ' for the purposes of notice, compensation etc.
Whatever doubts might have existed before Parliament enacted 25FF and 25FFF about the width of 25F there cannot now be any doubt that the expression 'termination ' of service for any reason whatsoever now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the Act such as sections 25FF and 25FFF." The learned Judges drew support from what had been observed in Indian Hume Pipe Co. Ltd. vs The Workmen, "The object of retrenchment compensation is to give protection to the retrenched employee and his family to enable them to tide over the hard period of unemployment," and observed: "Once the object of 25F, 25FF and 25FFF is understood and the true nature of the compensation which those provisions provide is realised, it is difficult to make any distinction between termination of service for one reason and termination of service for another." Chinnappa Reddy, J. thereafter referred to the Constitution Bench decision and said: "It is true that there are some observations which, if not properly understood with reference to the question at issue, seemingly support the submission of Dr. Anand Prakash that "termination of service for any reason whatsoever" means no more and no less than discharge of a labour force which is a surplusage.
The misunderstanding of the observations and the resulting confusion stem from not appreciating (1) the lead question which 791 was posed and answered by the learned judges and (2) that the reference to 'discharge on account of surplusage ' was illustrative and not exhaustive and by way of contrast with discharge on account of transfer or closure of business. ' It was further observed: "The ratio of Shukla 's case in fact has already been explained, in Hindustan Steel Ltd. vs The Presiding Officer, Labour Court Orissa & Ors.
The decisions in Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa & Ors.
and State Bank of India vs N. Sundara Money have, in our view, properly explained Shukla 's case and have laid down the correct law.
" The same question arose for consideration before another two Judge Bench in Mohan Lal vs Management of M/s. Bharat Electronics Ltd. Desai, J. spoke for the Court thus: "Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the section itself.
The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill health.
It is not the case of the respondent that termination in the instant case was a punishment inflicted by way of disciplinary action.
If such a position were adopted, the termination would be ab initio void for violation of principle of natural justice or for not following the procedure prescribed for imposing punishment.
It is not even suggested that this was a case of voluntary retirement or retirement on reaching the age of superannuation or absence on account of continued ill health.
The case does not fall under any of the excepted categories.
792 There is thus termination of service for a reason other than the excepted category.
It would ' indisputably be retrenchment within the meaning of the word as defined in the Act.
It is not necessary to dilate on the point nor to refer to the earlier decisions of this Court in view of the later two pronouncements of this Court to both of which one of us was a party.
A passing reference to the earliest judgment which was the sheet anchor till the later pronouncements may not be out of place.
In Hariprasad Shivshanker Shukla vs A. D. Divikar, after referring to Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, a Constitution Bench of this Court quoted with approval the following passage from the aforementioned case: 'But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. ' "This observation was made in the context of the closure of an undertaking and being conscious of this position, the question of the correct interpretation of the definition of the expression 'retrenchment ' in section 2(oo) of the Act was left open.
Reverting to that question, the view was re affirmed but let it be remembered that the two appeals which were heard together in Shukla 's case were cases of closure,. . " In the majority judgment in Surendra Kumar Verma etc.
vs The Central Government Industrial Tribunal cum Labour Court, New Delhi & Anr., the ratio of the latter case has been followed.
A Bench of two learned Judges in the case of L. Robert D 'Souza vs The Executive Engineer, Southern Railway & Anr., re examined the entire position.
Desai, J. who again spoke for the Court indicated: 793 "At the outset it must at once be pointed out that the construction put by the Full Bench of the Kerala High Court on the expression 'retrenchment ' in section 2(oo) of the Act that it means only the discharge of surplus labour or staff by the employer for any reason whatsoever is no more good law and in fact the decision of the full Bench of Kerala High Court in L. Robert D 'Souza vs Executive Engineer, Southern Railway & Anr., [(1970) has been specifically overruled by this Court in Santosh Gupta vs State Bank of Patiala.
This Court has consistently held in State Bank of India vs N. Sundara Money, Hindustan Steel Ltd. vs Presiding Officer, Labour Court, and Delhi Cloth & General Mills Ltd. vs Shambhu Nath Mukherjee, [(1971) 1 SCR 591] that the expression 'termination of service for any reason whatsoever ' now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the Act such as sections 25FF and 25FFF.
It was attempted to urge that in view of the decision of this Court in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, the ratio of which was re affirmed by a Constitution Bench of this Court in Hariprasad Shivshanker Shukla vs A. D. Divikar, all the later decisions run counter to the Constitution Bench and must be treated per in curium.
This contention need not detain us because first in Hindustan Steel Ltd. case ' than in Santosh Gupta 's case, (supra) and lastly in Mohan Lal vs Bharat Electronics Ltd., it was in terms held that the decision in Sundara Money 's case was not at all inconsistent with the decision of the Constitution Bench in Hariprasad Shukla 's case and not only required no reconsideration but the decision in Sundara Money 's case was approved in the aforementioned three cases. 'This position is further buttressed by the decision in Delhi Cloth & General Mills Ltd. case wherein striking off the name of a workman from the roll was held to be retrenchment.
" In the series of cases that have come later the Constitution Bench decision has been examined and the ratio indicated therein has been confined to its own facts.
The view indicated by this Court in that case obviously did not meet with the approval of Parliament and, 794 therefore, the law has been subsequently amended as already indicated.
Lord Devlin once observed: "I am not one of those who believe that the only function of law is to preserve the status quo.
Rather, I should say that law is the gate keeper of the status quo.
There is always a host of new ideas galloping around the outskirts of society 's thought.
All of them seek admission but each must first win its spurs; the law at first resists, but will submit to a conqueror and become his servant.
In a changing society the law acts a valve.
New policies must gather strength before they can force an entry; when they are admitted and absorbed into the consensus, the legal system should expand to hold them, as also it should contract to squeeze out old policies which have lost the consensus they once obtained.
" We are inclined to hold that the stage has come when the view indicated in Money 's case (supra) has been "absorbed into the consensus" and there is no scope for putting the clock back or for an anti clockwise operation.
Once the conclusion is reached that retrenchment as defined in s.2(oo) of the covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment.
Admittedly the requirements of section 25F of the had not been complied with in these cases.
Counsel for the appellant did not very appropriately dispute before us that the necessary consequence of non compliance of section 25F of the in a case where it applied made the order of termination void.
The High Court, in our opinion, has, therefore, rightly come to the conclusion that in these cases the order of retrenchment was bad and consequently it upheld the Award of the Labour Court which set aside those orders and gave appropriate relief.
These appeals are dismissed.
There would be one set of costs.
Consolidated hearing fee is assessed at Rs. 5,000.
N.V.K. Appeal dismissed.

summary/full:
The appellant Corporation terminated the employment of some of its employee respondents who were probationers on the ground of unsatisfactory service, some during the period of their probation and others during the extended period of probation.
The Labour Court, to which the dispute was referred, held that section 25F of the had no application, and that for this reason the discharge was invalid.
Dismissing the employer 's writ petition a Single Judge held that the orders of discharge amounted to retrenchment as defined in S.2 (oo) of the Act and were bad for non compliance of s.25F. A Division Bench of the High Court upheld this decision.
In the appeal to this court it was contended on behalf of the appellant that the services of the respondents had been terminated on the ground of their unsuitability and it was not a case of disbanding surplus labour force and, therefore, such termination did not amount to retrenchment.
Dismissing the appeal, ^ HELD: 1.
Once the conclusion is reached that retrenchment as defined in section 2 (oo) of the covers every case of termination of service except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment.
[794 E] In the instant case the requirements of section 25F had not been complied with.[794 F] 784 2.
The stage has come when the views indicated in State Bank of India vs N. Sundara Money ; has been "absorbed into the consensus" and there is no scope for putting the clock back or for an anti clockwise operation.
[794 D] Hariprasad Shivshanker Shukla vs A.D. Divikar, 1957 S.C.R. 121; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court; Orissa & Ors.
; ; Santosh Gupta vs State Bank of Patiala, ; ; Indian Hume Pipe co. Ltd. vs The Workmen, ; Mohan Lal vs Management of M/s. Bharat Electronics Ltd. ; ; Surendra Kumar Verma etc.
vs The Central Government Industrial Tribunal cum Labour Court, New Delhi and Anr.[1981] 1 S.C.R. 789; L. Robert D ' Souza vs The Executive Engineer, Southern Railway & Anr.
[1982] 3 S.C.R. 251 referred to.


judgement:
N: Criminal Appeal No. 260 of 1972.
Appeal by Special leave from the Judgment and Order dated the 22.3.1972 of the Gujarat High Court in Criminal Appeal No. 171 of 1971.
R.L. Kohli, Ramesh Kohli, Naresh K. Sharma and Vineet Kumar for the Appellant.
M. N. Phadke, H. R. Khanna and R. N. Poddar for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
After hearing counsel for the parties, by virtue of our Order dated October 4, 1983, we had allowed the appeal and acquitted the accused appellant.
We now proceed to give the reasons for the said Order.
The appellant was convicted by the High Court under section 408 read with section 109, Indian Penal Code in respect of criminal breach of 799 trust with regard to several items which have been detailed in the judgment of the High Court.
The appellant was also convicted under sections 471 and 467 read with section 109 of the I.P.C.
Under the first count (section 408) the appellant was sentenced to two years R.I. and a fine of Rs. 1000, in default of payment of fine, further six months R.I.
Under the second count (section 471) he was sentenced to imprisonment for one year.
The High Court further convicted the appellant under s.409 I.P.C. for having committed breach of trust in respect of certain oil engines and sentenced him to 3 years R.I. and a fine of Rs. 1000, in default of payment of fine, imprisonment for six months.
Thus, the sum total of the sentences under various sections mentioned above comes to five years but as the sentences have been made to run concurrently, the total sentences would be three years apart from the fine.
The learned Sessions Judge had acquitted the appellant holding that the charges framed against him were not proved but the High Court in an appeal by the State of Gujarat reversed the decision of the Sessions Judge and set aside the appellant 's acquittal and convicted him as aforementioned.
The facts of the case have been detailed in the judgments of the High Court and the Sessions Judge with clarity and lucidity and need not be repeated all over again except so far as they are relevant for the purpose of deciding the appeal.
There was an organisation known as 'Jasdan Taluka Sahkari Kharid Vechan Sangh Ltd. (hereinafter referred to as the 'Sangh ') which was like an autonomous cooperative society directly within the control and supervision of the Government.
The appellant was the chairman of the Sangh and the other members of the Sangh consisted of two categories, viz., members nominated by the Registrar of Cooperative Societies and those elected by the Sangh itself.
The managing Committee of the Sangh consisted of 8 members out of whom the appellant was the Chairman and A 2 was the Manager while the Tehsildar was the ex officio Member of the Sangh.
Having received a number of complaints against the Sangh, the Registrar of Cooperative Societies ordered one V. B. Shah to act as special auditor and examine and audit the accounts of the Sangh for the year 1965 66.
On the basis of the audit report, the Managing Committee was superseded and an administrator was appointed.
Meanwhile the Sangh moved the High Court to obtain a stay order against the appointment of the 800 administrator as a result of which the appointment of the administrator was stayed for some time and the stay was vacated in July 1966.
Subsequently, one M. K. Parikh was appointed an administrator.
The police after usual investigation submitted chargesheet under section 120B, IPC against all the accused for entering into a conspiracy to commit criminal breach of trust.
So far as the appellant is concerned he was never charged under the sections mentioned earlier.
The charge of conspiracy failed and the Sessions Judge acquitted all the accused except A 3 who was convicted under s.408 to R.I. for two years and a fine of Rs.1000.
In the instant case, we are only concerned with the appellant who was Chairman of the Managing Committee.
Mr. Phadke, learned counsel for the respondent, has very fairly conceded that excepting 3 items he would not press the case of the prosecution against the appellant.
These items are mentioned at page 154 of the paper book and may be extracted as follows: (1) Item about purchase of the truck; (2) Item about purchase of fertilisers; (3) Items of the amounts of Rs. 600 and 1100 received by accused No. 3 after the audit was done; (4) non finding of five oil engines by the administrator when he took over charge.
So far as item No.(1) is concerned, the High Court itself found that there was absolutely no legal evidence to connect the appellant with the purchase of the truck and so far as misappropriation by the appellant in regard to this item is concerned that stands disproved.
Coming to the other three items, viz., purchase of fertilisers, the amounts of Rs. 600 and Rs. 1100 and the missing of five oil engines, these formed the basis of the conviction of the appellant by the High Court.
Mr. Phadke conceded that he would not press the case with respect to item No. (1) but would try to show that so far as items (2) to (4) are concerned the case has been fully proved against the appellant.
801 Having gone through the judgment of the High Court we find ourselves unable to accept the argument of Mr. Phadke.
The counsel for the appellant rightly argued with great force and vehemence that taking the findings of the High Court ex facie no case of defalcation of Items (2) to (4) has been made out.
In our opinion, the contention raised by the counsel for the appellant is well founded and must prevail.
With due respect what the High Court seems to have missed is that in a case like this where there was serious defalcation of the properties of the Sangh, unless the prosecution proved that there was a close cohesion and collusion between all the accused which formed the subject matter of a conspiracy, it would be difficult to prove the dual charges particularly against the appellant (A 1)The charge of conspiracy having failed, the most material and integral part of the prosecution story against the appellant disappears.
The only ground on the basis of which the High Court.
has convicted him is that as he was the chairman of the Managing Committee, he must be held to be vicariously liable for any order given or misappropriation committed by the other accused.
The High Court, however, has not referred to the concept of vicarious liability but the findings of the High Court seem to indicate that this was the central idea in the mind of the High Court for convicting the appellant.
in a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to items 2, 3 and 4.
It is conceded by Mr Phadke that no such direct evidence is forthcoming and he tried to argue that as the appellant was chairman of the Sangh and used to sign papers and approve various tenders, even as a matter of routine he should have acted with care and caution and his negligence would be a positive proof of his intention to commit the offence.
We are however unable to agree with this somewhat broad statement of the law.
In the absence of a charge of conspiracy the mere fact that the appellant happened to be the Chairman of the Committee would not make him criminally liable in a vicarious sense for items 2 to 4.
There is no evidence either direct or circumstantial to show that apart from approving the purchase of fertilisers he knew that the firms from which the fertilisers were purchased did not exist.
Similar is the case with the other two items.
Indeed, if the chairman was to be made liable then all members of the Committee, viz, Tehsildar and other nominated members, would be equally liable because all of them participated in the deliberations of the meetings of the Committee, a conclusion 802 which has not even been suggested by the prosecution.
As chairman of the Sangh the appellant had to deal with a large variety of matters and it would not be humanly possible for him to analyse and go into the details of every small matter in order to find out whether there has been any criminal breach of trust.
in fact, the hero of the entire show seems to be A 3 who had so stage managed the drama as to shield his guilt and bring the appellant in the forefront.
But they by itself would not be conclusive evidence against the appellant.
There is nothing to show that A 3 had either directly or indirectly informed the appellant regarding the illegal purchase of fertilisers or the missing of the five oil engines which came to light much later during the course of the audit.
Far from proving the intention the prosecution has failed to prove that the appellant had any knowledge of defalcation of items 2 to 4, In fact, so far as item 3 is concerned, even Mr. Phadke conceded that there is no direct evidence to connect the appellant.
In these circumstances, we do not find any justification for the High Court to have interfered with the order of acquittal passed by the Sessions Judge in favour of the appellant and having considered the fact and circumstances of the case, we are clearly of the opinion that the case against the appellant has not been proved beyond reasonable doubt and he was wrongly convicted by the High Court.
Even putting the prosecution case at the highest it cannot be said that two views are not reasonably possible, For the reasons given above, we allow the appeal, set aside the conviction and sentences imposed by the High Court and acquit the appellant of the charges framed against him.
The appellant will now be discharged from his bail bonds and need not surrender.
N.V.K. Appeal allowed.

summary/full:
The appellant was the Chairman of an autonomous cooperative society under the control and supervision of the State Government.
On receipt of complaints about the financial management of the Society, the Registrar of Cooperative Societies appointed a special auditor to audit the Society 's accounts.
On the basis of the audit report a charge sheet was filed against all the accused for entering into a conspiracy to commit criminal breach of trust.
The conspiracy charge having failed, all the accused except one were acquitted by the Sessions Judge.
On appeal by the State, the High Court convicted the appellant in respect of three items, namely, purchase of fertilisers involving two transactions and missing of certain oil engines, on the ground that as Chairman of the Managing Committee he must be held to be vicariously liable for any order given or misappropriation committed by the other accused.
In appeal to this Court it was contended on behalf of the appellant that no case of defalcation had been made out against the appellant.
Allowing the appeal, ^ HELD: 1.
There was no justification for the High Court to interfere with the appellant 's acquittal.
The case against the appellant had not been proved beyond reasonable doubt and he was wrongly convicted by the High Court.
[802 D E] 798 2.
In a case where there was serious defalcation of the properties, unless the prosecution proved that there was a close cohesion and collusion between all the accused which formed the subject matter of a conspiracy, it would be difficult to prove the charges against the appellant.
The charge of conspiracy having failed, the most material and integral part of the prosecution story against the appellant disappeared.
[801 B C] 3.
In a criminal case of such serious nature mens rea cannot be excluded.
Once the charge of conspiracy has failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to the items purchased.
[801 E] 4.
In the absence of a charge of conspiracy the mere fact that the appellant happened to be the Chairman of the Committee would not make him liable in a vicarious sense.
There is no evidence either direct or circumstantial to show that apart from approving the purchase of fertilisers he knew that the firms from which the fertilisers were purchased did not exist.
If the Chairman was to be made liable then all members of the Committee, viz Tehsildar and other nominated members would be equally liable because all of them participated in the deliberation of the meetings of the Committee.
The appellant as Chairman of the Sangh, had to deal with a large variety of matters and it would not be humanly possible for him to analyse and go into the details or every small matter in order to find out whether there has been any criminal breach of trust.
[801 G H; 802 A B]