judgement:
ON: Criminal Appeal No. 133 of 1955.
Appeal by special leave from the judgment and order dated the 10th January 1955 of the High Court of Judicature at Jodhpur in Criminal Appeals Nos.
57 & 83 of 1953 arising out of the judgment and order dated the 26th May 1953 of the Court of 289 Sessions Judge at Merta in Criminal Original Case No. 1 of 1952.
Jai Gopal Sethi, K. R. Krishnaswami and K. R. Chaudhry for the appellants.
Porus A. Mehta and P. G. Gokhale, for the respondent.
April 5.
The Judgment of the Court was delivered by BOSE J.
Four persons were killed about 11 p.m. on the night of the 21st July 1951 and a number of others injured.
This was said to be the result of a riot that occurred in the village Dhankoli.
Thirty six persons were committed for trial.
Of these, two died during the course of the proceedings.
The remainder were all charged under section 325/149 of the Indian Penal Code and eleven were also charged under section 302/149.
The learned Sessions Judge acquitted twenty five of the charge under section 325/149 and convicted nine.
He acquitted all the eleven who were charged under section 302/149 but convicted nine of them under section 325/149.
The State did not appeal against the acquittals of the twenty five under section 325/149 nor did it appeal against the acquittals of two of the eleven who were charged under section 302/149 but it appealed against the acquittals of the remaining nine who had been convicted under section 325/149.
These nine convicts also appealed.
The High Court therefore had two appeals before it, one against the acquittals of nine persons under section 302/149 and the other by the same persons against their convictions under section 325/149.
The High Court dismissed the appeal of the convicts and allowed that of the State.
The convictions of these nine persons were accordingly altered to ones under section 302/149 of the Indian Penal Code and the lesser sentence of transportation was given to each.
It is admitted on both sides that there was bad 290 blood in the village Dhankoli between a caste known as Baories on one side and three other castes of the village namely, Jats, Dhobis and Khaties on the other.
The case for the prosecution is that this was due to a dispute over a field that belonged to some of the Jats.
There were some court proceedings about the field in which Parsia (one of the Baories who was killed) had appeared against the Jats.
The accused Sukha, Gumana, Begla and Govinda were in particular interested in this field and so bore a grudge against Parsia.
The defence also allege enmity.
Their case is that the enmity is due to the fact that the villagers decided not to employ the Baories for watch and ward work in the village as they suspected that the Baories were responsible for certain thefts that had occurred there.
The other castes in the village therefore did this work themselves by turns.
This was resented by the Baories and the allegation is that the Baories were responsible for the fight and attacked some of the others in the village and that led to a fight; but none of the appellants was concerned with it.
From this point it will be convenient to divide the narrative into a series of numbered steps.
1.On the day in question, two of the Baories, Chhotiya and Parsia, bad been to a neighbouring village to bid at an auction where the field, which according to the prosecution engendered the dispute, was being sold.
They returned to their village about 11 p.m. and ran into the accused Sukha and Gumana (both Jats).
They were challenged and when they disclosed who they were, Sukha and Gumana cried out "kill them.
They had gone for the auction of the field.
" On that Sukha fired a gun which he had with him and hit Parsia on the legs.
Parsia fell down and Gumana bit him over the head with a sword.
He also hit Chhotiya over the head with a sword and Chhotiya also fell down.
2.Parsia and Chhotiya at once cried out for help and their cries, coupled with the sound of the gun fire, brought a number of persons to the scene.
The 291 number varies widely.
Chhotia (P.W. 8) says 30 to 35, Ruga (P.W. 1) says 50 or 60, Bedu (P.W. 2) puts it at 30 or 40 and so does Lachhuri (P.W. 10), while Ladia (P.W. 11) thinks there were as many as 100 to 150.
There are other estimates too, mostly in the neighbourhood of 30 to 40, but the exact number does not matter because it is evident that a crowd assembled.
Those who did the attacking are said to have been about 30 or 40 but it is clearly proved that several Baories were there and that some of them were assaulted.
The point of stressing these facts is to bring out the fact that most of the persons there did not assemble for an unlawful purpose and so did not form an unlawful assembly.
The problem is to sort out those who formed an unlawful assembly from those who did not.
Mr. Sethi argued that there is no evidence to support a finding that there was an unlawful assembly because it is impossible to determine who came to attack and who did not.
But we will deal with this later.
For the present, we will continue our narrative outlining the prosecution case.
3.After the gun was fired and Parsia and Chhotiya struck down, a large number of persons rushed to the scene and, among them, some 30 or 40 were armed with various kinds of weapons.
Of these, Kamla, Balia, Todia and Bhawana (all Jats) had pharsies, Gumana, Govinda and Jodbiya (also Jats) had swords and the rest (Jats, Dhobis and Khaties) had lathis.
These persons also attacked Chhotiya and Parsia.
4.The cries of Chhotiya and Parsia attracted Mana, Govinda, Pemla, Rambuxa and Gangli and some others.
These persons are Baories.
This crowd of 30 or 40 turned on Mana and Govinda and attacked them.
Sukha then fired his gun a second time and hit Mana on his left hand.
5.In the meanwhile, Ganesh and his wife Seruri (Baories) arrived and said "don 't beat, don 't beat".
Sukha and Gumana said that they should also be beaten and thereupon these 30 or 40 persons started to beat them too and they fell down.
After this, Parsia 's wife Lacbhuri came there 292 and some 10 or 1 1 persons out of the original 30 or 40 started to chase her.
But she ran away and managed to escape with only a slight beating.
7.While this was happening, the five Baories who had been felled to the ground (Parsia, Ganesh, Mana, Govinda and Seruri) started to cry out.
The ten or eleven who had chased Lachhuri came back and on hearing the cries of these five on the ground, Sukha and Gumana said that they were crying and should be killed outright.
On that these eleven persons divided into three groups and attacked the five on the ground as follows: Parsia was beaten by Sukha (with a pharsi), Jeewana (dangri) and Chokla (dangri).
Mana and Govinda were beaten by Gumana (sword), Balia (pharsi) and Jankiya and Naraina (lathis).
Ganesh was beaten by Bhawana (dangri), Govinda (sword), Kumla (pharsi) and Begla (dangri).
All four died on the spot.
The accused were charged as follows.
One group consisting of 25 persons were charged under section 325/149 of the Indian Penal Code for intentionally beating, along with the other accused, 1.
Chhotiya 2.
Seruri 3.
Parsia 4.
Mana 5.
Govinda and 6.
Ganesh.
At a later stage, the following sentence was added to the charge: "which you inflicted as a member of an unlawful assembly in prosecution of its common intention".
These twenty five were acquitted and we are not concerned with them except to note that they were not concerned with that part of the occurrence which we have set out as steps 6 and 7 above.
The charge against the remaining eleven can be divided into two parts.
Under the first, each, except Sukha, is charged with beating the Baories Parsia, Mana, Govinda, Ganesh, Chhotiya, Seruri, etc. "along with other accused".
Five of the eleven are said to 293 have beaten them with "swords and lathis"; another five "with lathis, etc." while the eleventh, Sukha, is said to have fired at Parsia and Mana "as a result of which they fell down".
Then each charge continues "and when all had fallen down as a result of these injuries".
After that the charges divide off into three groups: One group charges (1) Gumana, (2) Naraina, (3) Balia and (4) Jankiya with beating Govinda and Mana, "who were groaning, with lathis with intent to kill them till they were actually killed".
The next group charges (1) Jeewana, (2) Sukha and (3) Chokhla with hitting Parsia with lathi blows "with intent to murder him till he died".
The third group charges (1) Begla, (2) Govinda, (3) Kumla and (4) Bhawana with as saulting Ganesh with lathis with intent to murder till he died.
The following sentence was also added in the end of each of these charges: "And you did this as a member of an unlawful assembly in prosecution of its common intention".
There has been some confusion in both the Sessions Court and the High Court between "common intention" and "common object".
It is true the two sometimes overlap but they are used in different senses in law and should be kept distinct.
In a case of unlawful assembly or riot we are concerned with a common object.
However, we are satisfied that has not caused any prejudice.
But the reason why we have set out these charges at some length is because counsel for the appellants argued that the prosecution case is that there were two separate assemblies, one of twenty five persons to beat six specific persons and another of eleven to kill them in three groups.
He argued that the twenty five who constituted the first assembly have all been acquitted; that the only material from which an unlawful assembly can be inferred in the other case is the instigation of Sukha and Gumana for a second time after they bad returned from chasing Lachhuri.
That story, he said, has been disbelieved, so all must be acquitted.
It will be necessary at this stage to set out the 294 findings of the two lower courts.
The learned Sessions Judge starts by rejecting the evidence of Ruga (P.W. 1), Bodu (P.W. 2) and Bhagwatia (P.W. 3) on the question of identification of any of the accused and the evidence of Arjun (P.W. 4) about the conspiracy to beat up the Baories.
But he finds that the evidence of the Baori witnesses, Chhotiya (P.W. 8), Lachhuri (P.W. 10), Ladia (P.W. 11), Seruri (P.W. 12), Gangli (P.W. 13) and Pemla (P.W. 14) is consistent "so far as these II accused are concerned regard ing their beating 4 persons to death and causing injuries to Lachhuri, Ganesh 's wife, Seruri and Chhotiya " Later, he states "From the evidence of these Baori witnesses. . . . it is found that these eleven accused were involved in the beating of the injured persons.
Whether they formed part of a bigger assembly is not now material because I have already discussed the cases of other accused and given them benefit of doubt.
These eleven accused even amongst themselves being more than five in number could be regarded as members of an unlawful assembly".
But the learned Judge only accepted this story in part.
He believed Chhotiya (P.W. 8), Seruri (P.W. 12), Gangli (P.W. 13) and Pemla (P.W. 14) in so far as they stated that Sukha had a gun and that Sukha used it against Parsia and Mana, but he did not accept the evidence of Chhotiya (P.W. 8) in so far as he said that Gumana hit Chhotiya with a sword.
He also rejected the prosecution version that the incidents occurred in two parts, first with a bigger assembly that beat all the accused and next with a smaller one that ran after Lachhuri and beat her and then returned to beat the others to death at the instigation of Sukha and Gumana.
On this part of the case, the learned Sessions Judge found that " whatever beating was done was done immediately after the scuffle between Chhotiya and Parsia and Sukha and Gumana and Gumana and Naraina, and those accused who had arrived on the spot.
Nobody instigated anybody".
(Para 103).
It was argued on behalf of the defence that the learned Sessions Judge discarded the evidence about 295 instigation in toto.
Counsel for the State, however, contended that this passage refers to the second instigation which is said to have been given after the eleven had chased and beaten Lacbhuri and returned to finish off the others who were lying on the ground.
We think that is right.
In paragraph 101 of his judgment the learned Sessions Judge set out the fact that the prosecution witnesses divide the incidents into two parts: one in which a larger assembly beat all the injured persons and the other in which eleven killed the four deceased persons at the instigation of Sukha and Gumana.
In paragraph 102 be set out reasons why he was not able to believe this story.
The first was because "Ladia (P.W. 11) did not state in his statement before the police that after beating Lachhuri, when ten or eleven persons had returned then at the instigation of Sukha and Gumana the injured were again beaten to death".
Then, after setting out four more reasons, the learned Judge reached the conclusion just enumerated in paragraph 103.
In paragraph 117 he said "Leaving Begla and Govinda, I am fully convinced that Sukha, Gumana, Naraina, Kumla, Balia, Jeewana, Chokhla, Bhawana Khati and Jankiya did commit rioting with the common object of beating the Baories".
In paragraph 118 he said "I am not convinced that the intention of all these accused was to murder the whole lot of Baories. . . " In para 119 "The accused did give sound beating to the injured".
He concluded that no common object to kill could be deduced but held that a common object to beat was clear.
As he was unable to determine which accused gave the fatal blows be convicted all under section 302 read with section 149 of the Indian Penal Code.
We think it is clear from this judgment, read as a whole, that the learned Sessions Judge disbelieved 296 the story of instigation at any stage because if he had believed even the first instigation, a common object to kill would have emerged.
We are unfortunately not able to obtain much assistance from the judgment of the learned High Court Judges.
They have not analysed the evidence and have not reached clear findings about a common object due in some measure to the fact that they do not appear to have appreciated the difference between a common object and a common intention.
They hold that six witnesses can be relied on to the extent that "the villagers were armed with guns, swords, farsies and lathis".
They do not believe all that these witnesses say because they hold "Though, therefore, we do not believe that these eleven persons deliberately murdered the four injured Baories who were lying there saying that they should be killed, there is no doubt in our minds that these eleven persons who have all been mentioned by these six witnesses were certainly seen taking more active part in this incident".
Then they hold "We are, therefore, satisfied on the statements of these witnesses that the incident took place in the main as stated by them and that the prosecution has given the right version of the affair".
Next, they hold that the fact that a large number of villagers, including the nine appellants, turned up armed with various weapons immediately they beard the quarrel between Chhotiya and Parsia on the one side and Gumana on the other "shows that there must have been some consultation from before and that these persons arrived in prosecution of the common object. . . " And they add this reason: "There is also the evidence of the prosecution witnesses that as the Baories came, some one or the other of these accused incited the rest of the villagers to beat up the Baories".
From this they conclude that there was an unlawful assembly with the common object of beating up the Baories.
297 This is very unsatisfactory.
The learned Judges were dealing with an appeal against an acquittal and though they have allowed the appeal they have not been specific about which part of the evidence they rely on in support of their findings nor do their conclusions follow logically from the premises on which they are based.
Take, for example, the finding about prior consultation.
In the first place, no prior consultation is required when a common object is in question.
The essence of the distinction between common object and common intention lies there.
In the next place, the six witnesses, who are relied on, say that a crowd of 30 or 40 persons assembled.
Among that crowd were Baories because three Baories (other than Parsia and Chhotiya) were killed and others injured.
It is also evident that some of these Baories must have had some sort of weapons because three of the accused had slight injuries on their person and one a fracture.
The evidence discloses that there had been thefts in t the village.
The uproar occurred at 11 in the night.
In those circumstances, it would be natural for the villagers to rush to the scene and arm themselves with whatever came to band.
Some may have been motivated by an unlawful motive but many would not, and to deduce a common intention with prior concert in such circumstances is impossible.
A common object is different and courts of fact are entitled to conclude on the evidence that has been accepted that some of those who rushed to the scene went there with the object of beating up persons whom they thought to be thieves and not merely to apprehend them or defend their properties; in other words, that some of those persons individually had an unlawful object in view.
If each bad the same object, then their object would be common and if there were five or more with this object, then they would form an unlawful assembly without any prior concert among themselves.
Next, take the High Court 's finding about incitement.
They have rejected the version given by the prosecution witnesses because they hold that the 298 story about the second beating is an improvement and also because they disbelieve the evidence that indicates that these eleven persons deliberately murdered the four injured Baories.
But the only evidence about incitement is that Sukha and Gumana called on the others to kill Barsia, and later to kill the others.
The incitement was quite clearly to kill and not merely to beat.
If this is rejected, then there is no evidence about incitement, so we are left in the dark to know what the learned Judges based their conclusion on.
That has left us with the task of finding whether there is, or could be, any proper basis for these convictions.
Now, as we understand the learned Sessions Judge, he has believed the first part of the story which we have set out as step No. I except the portion that speaks about an incitement to kill.
He finds that there was the meeting between Sukha and Gumana on the one side and Parsia and Chhotiya on the other.
He says "It can safely be deduced from the incidents as related by the witnesses in this case that in the beginning the fighting was between a couple of persons only and on hearing their cries their relatives, friends and relations and other villagers reached the spot and some of the villagers did beat the Baories".
Pausing there, it is evident that there was no unlawful assembly when the beating started; nor can it be deduced that all the persons who rushed to the scene, whether the number was 30 or 150, formed an unlawful assembly.
We therefore have to scan the evidence carefully to see what happened after that.
The finding is that the eleven accused who were charged for the murder were all involved in the beating of the injured persons.
That satisfies one of the ingredients of rioting, namely the presence of five or more persons.
But that of course is not enough.
There must in addition, be an "assembly" and that assembly must have a "common object" and the object must be "unlawful".
But a common object is different from a common intention in that it does not require prior concert and 299 a common meeting of minds before the attack, and an unlawful object can develop after the people get there.
It is not for us to re assess the evidence in special leave.
All we can say is that there are circumstances from which courts of fact could deduce that an unlawful object developed with more than five to share it once the marpit bad started; and as two courts of fact are satisfied that it did, there is no reason for us to interfere.
Persons who had come there quite lawfully, in the first instance, thinking there were thieves could well have developed an intention to beat up the "thieves" instead of helping to apprehend them or defend their properties; and if five or more shared the object and joined in the beating, then the object of each would become the common object.
This is not to say that all those present were members of that assembly.
The presumption of innocence would preclude such a conclusion.
Those who rushed to the scene in the circumstances disclosed must be presumed to have gone there for a lawful purpose even if they were armed.
The apprehension of marauders who prowl the town at night and the defence of person and property are lawful objects.
But when that object is exceeded and persons begin to beat up the suspects the act of beating becomes unlawful, for private persons are no more entitled to beat and illtreat thieves than are the police, especially at a time when there is nothing beyond suspicion against them.
But if five or more exceed the original lawful object and each has the same unlawful intention in mind and they act together and join in the beating, then they in themselves form an unlawful assembly.
There is no difference in principle between this and a case in which the original object was unlawful.
The only difference is that a case like this is more difficult to establish and must be scrutinised with greater care.
But that scrutiny is here and we are satisfied that there is evidence in this case on which courts of fact could base the conclusion that they have reached.
Now, did these eleven persons constitute an assembly or were they there individually without any 300 common factor to link them together? That, we think, is easily answered.
It is clear that each (barring Sukha and Gumana who were already there) assembled at the spot because of the cries of Parsia and Chhotiya and because of the noise of the fight.
That imports a common factor into their meeting and links them together as an assembly.
Their object in assembling may have been innocent but the fact that a common factor like this induced them to come together constitutes them into an "assembly" though not, on that evidence alone, into an unlawful assembly.
We next have to see whether any of them had an unlawful object in view.
The object of Sukha and Gumana was clearly unlawful.
Now the evidence which has been believed shows that the other nine actually joined in the beating and that they did this after Sukha had fired his gun at Parsia and Parsia had fallen to the ground.
It also shows that these others turned on Parsia 's relations and friends when they came to their support.
Therefore, whatever the original object of each may have been, it achieved a unity of purpose the moment the others joined in and continued to assist Sukha and Gumana and helped them to beat up the other Baories who came to Parsia 's help.
It is not a case of stray sporadic acts but indicates a certain continuity of purpose, each striving to achieve the same end, namely either to help Sukha and Gumana in beating up Parsia and Chhotiya and those who came to help them or to join in the beating for ends of their own.
But the commonness of purpose is an inference of fact which courts of fact would be entitled to make.
It does not matter whether the others joined in because of an initial instigation or whether, seeing the assault in progress, they joined in on their own account, because so long as each bad the object of beating up Parsia and Chhotiya and those who came to their assistance, that would make their object common.
The distinction between the common intention required by section 34 of the Indian Penal Code and the common object set out in section 149 lies just 301 there.
In a case under section 149 there need not be a prior meeting of minds.
It is enough that each has the same object in view and that their number is five or more and that they act as an assembly to achieve that object.
All these features are to be found in that part of the evidence which has been believed.
Therefore, on these findings which the courts of fact are entitled to reach, the object of the assembly was unlawful, but up to this point the highest common denominator was merely to beat and not to kill.
Up to that point, the convictions of the learned Sessions Judge under section 325/149, Indian Penal Code, are unassailable.
The next question is whether, that being the case, the convictions by the High Court under section 302/149 can be upheld.
Neither the Sessions Judge nor the High Court believe that there was any common intention to kill, therefore the convictions for the more serious offence can only be sustained under section 149 if it can be shown (1) that an actual killing of some of the persons attacked was likely to result from the beating which formed the common object and (2) that each person so convicted knew that might be a likely result.
Now so far as Sukha and Gumana are concerned, there can be no doubt.
They started the fight with deadly weapons.
Sukha fired at least twice and bit two persons.
He himself may not have had an intention to kill and indeed the fact that the wounds are on non vital parts must be used as a factor in his favour, but any person who carries a fire arm at that hour of the night and uses it and then continues a fight after an excited crowd has assembled and when at least nine of them rush in to join in the beating after his first shot must know either that somebody is likely to deal a fatal blow or at least that the cumulative effect of blows inflicted by a number of persons armed with lathis is likely to cause death from shock.
Riots of this kind are common and death frequently results, therefore, not only was a killing a likely consequence of such an assault conducted in this fashion but Sukha and Gumana as men of ordinary intelligence must have known that.
302 Much the same considerations apply in the case of the other appellants.
They rushed in to hit persons who had already been fired on and who had been felled to the ground.
They were in the midst of a crowd which could hardly have been calm and impassive and they joined in with several others to beat them up.
Any man of reasonable intelligence would have known that somebody would be likely to be killed in a melee like that.
Therefore, the requisite knowledge can be imputed to them also.
Two questions remain.
One was directed against the reliability of that part of the evidence that has been believed.
The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness ' evidence is disbelieved, it is unsafe to act on the rest of his testimony.
The answer is equally hackneyed, namely that judges of fact have the right to do this and that this is not a court of appeal when it acts under article 136.
The findings about this are concurrent, so, following our usual practice, we decline to review the evidence.
The other is that the absence of this in the charge occasioned prejudice.
We have recently decided that we will be slow to entertain question of prejudice when details are not furnished; also the fact that the objection is not taken at an early stage will be taken into account.
There is not a hint of prejudice in the petition filed by the appellants here in the High Court for leave to appeal to this Court; nor was this considered a ground for complaint in the very lengthy and argumentative petition for special leave filed in this Court.
The only complaint about prejudice was on the score that there was no proper examination under section 342 of the Criminal Procedure Code.
We decline to allow this matter to be raised.
The appeal fails and is dismissed.

summary/full:
Common intention required by section 34 of the Indian Penal Code and common object set out under section 149, though they sometimes overlap, are used in different senses and should be kept distinct.
In a case under section 149 there need not be a prior concert and meeting of minds, it is enough that each has the same object in view and their number is five or more and they act as an assembly to achieve that object.
When a crowd assembles and there is an uproar and people are killed and injured, it is only natural for others to rush to the scene with whatever arms they can snatch.
Some may have an unlawful motive but others may not, and in such circumstances it is impossible to say that they were all motivated by a common intention with prior concert.
What a court of fact should do in such a case is to find from the evidence which of them individually had an unlawful object in view, or having originally a lawful object in view deve loped it later on into an unlawful one and if it finds that there were five or more such persons who acted together there would be an unlawful assembly.
Consequently, in a case where there were circumstances from which the courts of fact could deduce that an unlawful object developed with more than five to share it after the fighting started and they were satisfied that it did, there was no reason why their concurrent decisions should be set aside.
This court will be slow to entertain a question of prejudice when details are not furnished; also, the fact that the objection was not taken at an early stage will be taken into account.


judgement:
Civil Appeal No. 2411 of 1978.
Appeal by Special Leave from the Judgment and order dated 26 7 1978 of the Karnataka High Court in Writ Petition No. 10203/ 77.
And ORIGINAL JURISDICTION: Writ Petitions Nos.
4473 4474, 4415, 4488, 4528, and 4539 of 1978.
(Under Article 32 of the Constitution).
D G. B. Rikar, K. R. Nagaraja and Mrs. Gayathri Balee for the Petitioner (In WP.
4473 4474, 4488, 4539/78).
R. B. Datar and Navin Sinha for the Petitioner (In WP.
4415 and 4528 and for Appellant in CA 2411/78).
V. A. Sayield Mohammad and N. Nettar for the State of Karnataka and for Respondent No. 3 in WPs.
4473 4474, 4488, 4528 and 4539 and C.A. 2411/78.
L. N. Sinha, Attorney General, K. K. Venugopal, Additional Solicitor General, V. A. Sayied Mohammad and Vineet Kumar for Karnataka State Road Transport Corporation (in All W.P.s & C.A.).
It would, therefore, be convenient to dispose them of by this common judgment.
The short question involved in these cases is, whether the employees of the erstwhile contract carriage operators in the State of Karnataka acquired a vested right of absorption in service with the Karnataka State Road Transport Corporation under sub cl.
(3) to cl. 20 of the Karnataka Contract Carriages (Acquisition) ordinance 1976.
688 It will be convenient to refer in the first place to the legislative changes.
On January 30, 1976 the Karnataka Contract Carriages (Acquisition) ordinance, 1976 was promulgated by the Governor of Karnataka under cl.
(1) of article 213 of the Constitution.
The said ordinance was promulgated with the object of acquiring contract carriages operating in the State and for certain matters connected therewith.
On the same day, i.e., on January 30, 1976 the State Government issued a notification under cl.
4(1) of the ordinance vesting every contract carriage owned or operated by such contract carriage operator, along with permit, in the State Government absolutely free from all encumbrances.
On the same day, the State Government made an order under sub cl.
(1) to cl. 20 of the ordinance transferring all the contract carriages that vested in the State Government under the notification issued under sub cl.
(1) to cl. 4 of the ordinance, to the Karnataka State Road Transport Corporation (hereinafter referred to as 'the Corporation ').
Sub clause (3) to cl. 20 of the ordinance provided for absorption of certain categories of employees of contract carriage operators in the service of the Corporation.
It also provided the ratio for absorption for different categories of employees that were entitled to be absorbed in the service of the Corporation.
The ordinance was subsequently replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976, Which was published in the gazette on March 12, 1976.
The ordinance was repealed by the Act, and it re enacted the provisions of the repealed ordinance, with a saving clause in sub section
(2) of section 31, for preservation of anything done or action taken.
The Act was substantially in similar terms except for the difference that the ratio prescribed by proviso to sub cl.
(3) to cl. 20 of the ordinance, which laid down the categories of persons who could be absorbed in the service of the Corporation, was substantially altered and a new ratio was inserted in the proviso to sub section
(3) of section 19 of the Act.
Otherwise, sub section
(3) of section 19 of the Act and sub cl.
(3) to cl. 20 of the ordinance were identical in every respect.
Under proviso to sub cl.
(3) to cl. 20, the total strength of the employees of the erstwhile contract carriage operators allowable for absorption was 7.9 per vehicle, while under proviso to sub section
(3) of section 19 of the Act the same works out to 4.45 per vehicle.
Further, while under the ordinance conductors were entitled to be absorbed, the ratio provided under the Act shows that conductors are not included in the categories of persons who can be absorbed in the service of the Corporation.
689 It appears that although as many as 785 contract carriages were A notified for acquisition, only 601 vehicles were actually acquired.
The change in the ratio of absorption from 7.9 per vehicle under sub cl.
(3) to cl. 20 of the ordinance to 4.45 per vehicle under sub section
(3) of section 19 of the Act adversely affected a large number of employees of the erstwhile contract carriage operators.
A large number of writ petitions were, therefore, filed in the High Court challenging the vires of the proviso to sub section
(3) of section 19 of the Act on various grounds, but by the judgment under appeal the High Court has repelled all the contentions.
Thereafter, the remaining writ petitions were all withdrawn.
The appeal is against the judgment of the High Court and the employees have also directly approached the Court under article 32.
Before dealing with the contention advanced in the appeal, it is necessary to set out the relevant provisions.
Sub clause (3) to cl. 20 of the ordinance read as follows: "20.(3) Every person who is a workman within the meaning of the (Central Act 14 of 1947) and has been immediately before the commencement of this ordinance exclusively employed in connection with the acquired property, shall ', on and from the notified date, become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation.
Any person not willing to become such an employee of the corporation shall be entitled to retrenchment compensation as provided in the : Provided that the number of workmen that shall become employees of the corporation under this sub section shall not exceed the following scale, the junior most being excluded: Scale per vehicle 1.
Drivers . .
1.5 2.
Conductors .
2.65 3.
Supervision .
0.125 4.
Higher Supervision staff and Managers .
0.075 5.
Ministerial and Secretariat staff .
0.8 6.
Technical staff including Foreman .
2.75 690 Sub section (3) of section 19 of the Act, which replaced sub cl.
(3) to cl. 20 of the ordinance, provides: "19.(3) Every person who is a workman within the meaning of the (Central Act 14 of 1947) and has been immediately before the commencement of this Act exclusively employed in connection with the acquired property, shall, on and from the notified date, become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation.
Any person not willing to ' become such an employee of the Corporation shall be entitled to retrenchment compensation as provided in the .
Provided that the number of workmen that shall become employees of the Corporation under this sub section shall not exceed the following scale, the junior most being excluded: Scale per vehicle 1.
Drivers . . .
1.5 2.
Supervision staff and managers .
0.1 3.
Ministerial and Secretariat Staff.
0.1 4.
Technical staff including foreman.
2.75 4.45" The saving clause to be found in sub section
(2) of section 31 of the Act, so far as material, runs thus: "31 (2) Notwithstanding such repeal: (i) anything done or any action taken under the said ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act.
" It is strenuously argued that it is clear from the language of subcl.
(3) to cl.
(20) of the ordinance that there was, by operation of law, automatic absorption of the employees of the erstwhile contract carriage operators to the extent provided therein with effect from January 30, 1976, the date on which the notification was issued under sub cl.
(1) to cl. 4 and the date on which the Government made an order under sub cl.
(1) to cl. 20.
It is submitted that the words "shall become an employee of the Corporation", ill sub cl.
(3) to cl. 20 are clear and unambiguous and they must result in the consequence that all persons employed in connection with the acquired 691 contract carriages, became employees of the Corporation.
It is said A that, though the process of absorption may take time, as and when the necessary steps were taken to fit in such employees falling within the categories mentioned in the proviso to sub cl.
(3) to cl. 20, their absorption relates back to the notified date, i.e. January 30, 1976.
In other words, the submission was that the legal effect of absorption of such ' employees under sub cl.
(3) to cl. 20 of the ordinance is automatic.
That being so, their right of absorption could not be whittled down by the subsequent enactment of the new proviso to sub section
(3) of section 19 of the Act, inasmuch as they had acquired a vested right to absorption in the ratio mentioned in sub cl.
(3) to cl. 20 of the ordinance.
C The ordinance promulgated by the Governor in the instant case was a 'legislative act ' of the Governor under article 213(1) and, therefore, undoubtedly a temporary statute, and while it was still in force the Repealing Act was passed containing the saving clause in section 31(2) (i) providing that, notwithstanding such repeal, 'anything done ' or any 'action taken ' under the repealed ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act.
The enquiry is, therefore, limited to the question whether anything was done or action taken under the repealed ordinance.
If that be so, a further question arises on the submission whether the words 'things done ' in section 31 (2) (i) reasonably interpreted can mean not only things done but also the legal consequences flowing therefrom.
In considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule.
It certainly requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re create an expired right.
If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired.
In order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the Act, 'the line of enquiry would be not whether ', in the words of Mukherjea J. in State of Punjab vs Mohar Singh(1), 'the new Act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to ' destroy them '.
Another line of approach may be to see as to how far the new Act is retrospective in operation.
It is settled both on principle and authority, that the mere right existing under the repealed ordinance, to take advantage of the pro 11 visions of the repealed ordinance, is not a right accrued.
Sub section 692 (2) of section 31 of the Act was not intended to preserve abstract right conferred by the repealed (ordinance.
The legislature has the competence to so re structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services.
It could re enact the ordinance according to its original terms, or amend or alter its provisions.
What were the 'things done ' or 'action taken ' under the repealed ordinance ? The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub cl.
(3) to cl. 20.
The employees of the former contract carriage operators in normal course filled in the pro form giving their service particulars and reported to duty.
This was in the mere 'hope or expectation ' of acquiring a right.
The submission of these 'call reports ' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service.
As a matter of fact, nothing was done while the ordinance was in force.
The Act was published on March 12, 1976.
on May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators.
The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter se seniority, met on June 2, 1976.
The Committee decided that even in the case of helpers cleaners, there should be a 'trade test ' and ' the staff cleared by the Committee for the posts of helper 'B ' helper 'A ' and assistant artisans should be on the basis of their technical competence, experience, ability etc.
The Committee also decided that all other employees of contract carriage operators who were, eligible for absorption, should be interviewed by that p Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities.
These norms were not laid down till June 2, 1976.
Till their actual absorption, the employees of the erstwhile contract carriage operators had only an incohate right.
The distinction between what is, and what is not a right preserved by the provisions of section 6 of the General Clauses Act is often one of great fineness.
What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of ', or liberty to apply for, acquiring a right.
In Director of Public Works vs Ho Po Sang( ') Lord Morris speaking for the Privy Council observed: "It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, some 693 investigation or legal proceeding is necessary.
The right is then unaffected and preserved.
It will be preserved even if a process of quantification is necessary.
But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so to right should be or should not be given.
On a repeal the former is preserved by the Interpretation Act.
The latter is not." (Emphasis supplied) It must be mentioned that the object of section 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced.
Further, it is significant to notice that the saving clause that we are considering in section 31(2) (i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance.
It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder.
It is also clear that even section 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance.
It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute.
Employees in excess of the scale prescribed for the categories specified under proviso to sub section
(3) of section 19 of the Act are clearly not entitled for absorption.
Though sub cl.
(3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it does not follow that there was an automatic absorption as from that date.
Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning of the ; (2) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub cl.
(3) to cl. 20.
The whole object of inserting sub cl.
(3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment.
For this purpose the Corporation had necessarily to screen the applicants.
It is necessary to mention that cl. 5 of the Ordinance, which corresponds to section 5 of the Act, provided that every contract carriage 8 625SCI/79 694 operator shall within 15 days from the notified date or within such further time as the State Government may allow, furnish to the State Government or any officer authorised by it in this behalf, complete particulars among others of persons who were in their employment immediately before the notified date.
It was only after such information was received that steps had to be taken for the purpose of ascertaining as to who were entitled to be absorbed in the service of the Corporation in accordance with sub cl.
(3) to cl. 20 of the ordinance.
The authorities after collecting the necessary information had to determine not only the corresponding posts to which the erstwhile employees of the contract carriage operators could be absorbed in the service of the Corporation but also their relative seniority, for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption.
As sub cl.
(3) to cl. 20 itself provides that a person who is not willing to become an employee of The Corporation is entitled to retrenchment compensation as provided for in the , the authorities were also required to ascertain as to whether the employee, who was entitled to be absorbed in service, was willing to become an employee of the Corporation or not.
It was only if the employee was willing to be absorbed in the service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub cl.
(3) to cl. 20 were satisfied.
Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub cl.
(3) to cl. 20 of the ordinance.
The very fact that all these Various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible.
When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements.
The legislature, therefore, stepped in and reduced the scale of absorption in the proviso to sub section
(3) of section 19 from 7.9 per vehicle to 4.45 per vehicle.
This is, in our judgment, sufficient for the determination of the appeal.
But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion.
That contention is of this nature.
It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of 695 the Corporation by virtue of sub cl.
(3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken away by the proviso to sub section
(3) of section 19.
Even if contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature.
The contention does not take note of the fact that by sub section
(1) of section 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated.
The Act substitutes a 'new ' proviso in sub section
(3) of section 1 in place of the old proviso to sub cl.
(3) to cl. 20 of the ordinance, altering the whole basis of absorption.
The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976.
The proviso in sub cl.
(3) to cl. 20 laying down a particular ratio of absorption, is pro tanto avoided by an express enactment of a 'new ' proviso to sub section
(3) of section 19 which is entirely inconsistent with it.
When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected.
In the result, the appeal as well as the writ petitions must fail and are dismissed.
There shall be no order as to costs.
N.V.K. Appeal and Petitions dismissed.

dataset_name: IN-Abs

summary/full:
The Karnataka Contract Carriage (Acquisition) ordinance, 1976 was promulgated on January 30, 1976 with the object of acquiring the contract carriages operating in the State.
Sub clause (3 ) to cl. 20 of the ordinance provided for absorption of certain categories of employees of contract carriage operators in the service of the Corporation, and the ratio for absorption for the different categories of employees that were entitled to be absorbed.
On the same day, the State Government made an order under sub cl.
(I) to cl. 20 of the ordinance transferring the contract carriages that vested in the State Government to the Karnataka State Road Transport Corporation.
This ordinance was subsequently replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976 which was published in the Gazette dated March 12, 1976.
The ordinance was repealed by the Act, which re enacted the provisions of the repealed ordinance, with a saving clause in sub section
(2) of section 31 for presentation of any thing done or any action taken.
The Act was substantially in similar terms, except for the difference that the ratio prescribed by proviso to sub cl.
(3) to cl. 20 of the ordinance which laid down the categories of persons who could be absorbed in the service of the Corporation, was substantially altered and a new ratio was inserted in the proviso to sub section
(3) of section 19 of the Act.
Otherwise, sub section
(3) of section 19 of the Act and sub cl.
(3) to cl. 20 of the ordinance were identical in every respect.
Under the Proviso to sub cl.
(3) to cl. 20, the total strength of the employees of the erstwhile Carriage operators allowable for absorption was 7.9 per vehicle while under the proviso to sub section
(3) of section 19 of the Act, the ratio worked out to 4.45 per vehicle.
Further, while under the ordinance, conductors were entitled to be absorbed, the ratio provided under the Act showed that conductors were not included in the categories of persons who could be absorbed in the service of Corporation.
The change in the ratio of absorption from 7.9 per vehicle under. sub cl.
(3) to cl. 20 of the ordinance to 4.45 per vehicle under sub section
(3) of section 19 of the Act adversely affected a large number of employees of the erstwhile contract carriage operators who filed writ petitions in the High Court, 685 challenging the vires of the proviso to sub section
(3) of section 19 of the Act, which dismissed the writ petitions.
In the appeal and the writ petitions to this Court the question for consideration was, whether the employees of the erstwhile contract carriage operators in the State of Karnataka acquired a vested right of absorption in the service with the Karnataka State Road Transport Corporation under sub cl.
(3) to cl. 20 of the Karnataka Contract Carriage (Acquisition) ordinance 1976.
Dismissing the appeal and writ petitions; ^ HELD: 1.
The High Court rightly observed that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub cl.
(3) to cl. 20.
[692 C] 2.
The ordinance promulgated by the Governor in the instant case was a 'legislative act ' of the Governor under article 213(1) and, therefore, undoubtedly a temporary statute, and while it was still in force the repealing Act was passed containing the saving clause in section 31(2)(i) providing that, notwithstanding such repeal, 'anything done ' or any 'action taken ' under the repealed ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act.
[691 C D] 3.
In considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule.
It requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re create an expired right.
If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired.
In order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the Act, 'the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to destroy them.
Another line of approach may be to see as to how far the new Act is retrospective in operation.
[691 F G] State of Punjab vs Mohar Singh, ; , referred to 4.
(i) Sub section
(2) of section 31 of the Act was not intended to preserve abstract rights conferred by the repealed ordinance.
The legislature had the competence to so re structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services.
It could re enact the ordinance according to its original terms, or amend or alter its provisions.
[692 A] (ii) When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements.
The legislature, therefore stepped in and reduced the scale of absorption in the proviso to sub section
(3) of section 19 from 7.9 per vehicle to 4.45 per vehicle.
[694G] 5.
The object of section 31(2)(i) is to preserve only the things done and action taken under the repeated ordinance and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability 686 incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced.
It is unlike the usual saving clauses which presented unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder.
[693 C, D] 6.
(i) Every person eligible for absorption had to fulfil three conditions, viz., (1) he had to be a workman within the meaning of the ; (2) he should have been, immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub cl.
(3) to cl. 20.
The whole object of inserting sub cl.
(3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment, for which purpose, the Corporation had necessarily to screen the applicants.
[693 G] (ii) It was only if the employee was willing to be absorbed in the service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub cl.
(3 ) to cl. 20 were satisfied.
[694 E] (iii) Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub cl.
(3) to cl. 20 of the ordinance, which indicates that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible.
[694 F] 7.
The distinction between what is and what is not a right presented by the provisions of section 6 of the General Clauses Act.
is often one of great fineness.
What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of ', or liberty to apply for acquiring a right.
[692 G] Director of Public Works vs Ho Po Sang, [1962] 2 All.
ER 721 PC, referred to.
The Act substitutes a 'new ' proviso in sub section
(3) of section 19 in place cf the old proviso to sub cl.
(3) to cl. 20 of the ordinance, altering the whole basis of absorption.
The new proviso is given a retrospective effect, and it holds the field from the notified date i.e., January 30, 1976.
The proviso in subcl.
(3) to cl. 20 laying down a particular ratio of absorption, is pro tanto avoided by an express enactment of a 'new ' proviso to sub section
(3) of section 19 which is entirely inconsistent with it.
When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected.
[695 C] 9.
(i) The employees of the former contract carriage operators in normal course filled in the pro forma giving their service particulars and reported to duty.
This was in the mere 'hope or expectation ' of acquiring a right.
The submission of these 'call reports ' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service.
[692 C] (ii) The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter sc seniority, met on June 2, 1976.
The Committee decided that even in the 687 case of helpers cleaners, there should be a 'trade test ' and the staff cleared by the Committee for the posts of helper 'B ', helper 'A ' and assistant artisans should be on the basis of their technical competence, experience, ability etc.
The Committee also decided that all other employees of contract carriage operators, who were eligible for absorption, should be interviewed by that Committee for the purpose of absorption on the basis of experience, ability duties and responsibilities.
These norms were not laid down till June 2, 1976 Till their actual absorption, the employees of the erstwhile contract carriage operators had only an inchohate right.
[692 E F]