judgement:
minal Appeal No. 618 of 1985.
From the Judgment and Order dated 17.5.1984 of the Allahabad High Court in Criminal Appeal No. 564 of 1977.
R.L. Kohli, and C.P. Lal for the Appellant.
S.P. Pandey and A.S. Pundir for the Respondent.
The Judgment of the Court was delivered by 584 N.P. SINGH, J.
The appellant along with Radhey Shayam and Munni Lal, was put on trial for an offence under Section 302 read with Section 34 of the Penal Code, for having committed the murder of Gokaran Prasad on 24.11.1975 at about 5.00 P.M.
It is the case of the prosecution that the deceased along with his brother, Parbhu Dayal PW 1, on 24.11.1975, had one to the Court of Tehsildar at Sitapur to attend their case, which had been fixed for hearing.
The case was, however, postponed.
In the evening they were returning to village.
On Sitapur Lucknow Road.
at about 5.00 P.M. the three accused persons, all armed with Bankas, emerged from the field of Rani Saheba and ran towards to deceased.
PW 1 started shouting for help.
The deceased fell down on the brick stack.
It is said that the appellant Ram Asrey pressed down the deceased, while Radhey Shyam and Munni Lal gave the blows with Bankas.
The occurrence was witnessed by Parbhu Dayal, PW 1, Jagannath, PW 5, and Narain, PW 6.
In respect of the motive for the commission of the offence.
it is said that two years prior to the occurrence aforesaid, accused Radhey Shyam had erected a wall in front of the house of the deceased, who resisted and did not allow the wall to be constructed.
For that Radhey Shyam was prosecuted and because of that he bore a grudge against the deceased.
The First Information Report was lodged by PW 1 at about 6.45 P.M., in which he gave the details of the occurrence and named PW 5 and PW 6 as the eyewitnesses of the occurrence.
The Investigating Officer visited the spot, made the inquest and sent the body for post mortem, which was held the next day.
During post mortem examination, the following injuries were found "1.
Incised wound 7 cms.
x. 1 cm.
x bone deep on the right side of head 6 cms.
above the right eye brow.
Lacerated wound 4 cms.
x. 1.5 cms.
x scalp deep in the mid line of head 6 cms.
above the root of nose.
Lacerated wound 4 cms.
x 1.5 cms.
x bone deep on the left side of head 3 cms.
above left eye brow.
Lacerated wound 4.5 cms.
x 1 cm.
x bone deep on the outer part of left eye brow extending down on the outer side of the outer angle.
of left eye and below its level.
585 5.
Incised wound 8 cms.
x 3 cms.
x scalp deep on the back of head ,on the left side of middle line 5 cms.
behind the left ear.
Incised wound 11 cms.
x 3 cms.
x vertebrae bone deep 4 cms.
below the right ear and 2.5 cms.
below left angle of left lower jaw at the level of the body of third cervical vertebrae, underneath of injury oecsophagus.
Thyroid cartilage and neck vessels of both the sides out.
Incised wound 2.5 cms.
x.5 cm.
x muscle deep over the front of 1st Pharyanx region of right thumb.
Incised wound 9 cms.
x 2 cms.
x muscle deep over the palmar aspect of left hand starting from the web of left thumb and index finger going inner and upper side towards the wrist.
" According to the doctor, who held the post mortem examination, the incised wound might have been caused by weapon like Banka.
He, however, pointed out that Banka had a sharp edge on one side and blunt on the other.
He stated "Injury No. 2, 3, 4 might be caused by some blunt weapon.
Injury No. 4 might be caused by some blunt side of the banka.
As in my opinion blunt part of the banka is about 1 cm.
in width, injury No. 2 and 3 might be caused by sharp fall on the heap of Bajri.
Injury No. 2 and 3 might be caused by blunt part of bank a if its width was 1.4 cms.
" In cross examination he states "Injuries No. 2, 3 and 4 are likely to be caused by lathi.
There was a fraction of fractured bone below injury No. 2.
The injury No. 2 is likely to occur if heavy weight weapon is struck with considerable force.
The injury No. 3 might occur by fall on the Bajri.
If anyone fall with face side in addition to injury Nos. 2 and 3 other abrasions are likely to occur on the face.
" Again, in cross examination about injuries Nos. 2, 3 and 4, he has stated that they are likely to be caused with lathi portion.
586 The Trial Court on consideration of the evidence came to the conclusion that prosecution had failed to prove the case beyond reasonable doubt.
On that finding the accused persons were acquitted.
The State Government filed an appeal against the judgment of acquittal.
During the pendency of the appeal, the main accused Radhey Shyam died.
The High Court, however, after referring to the different facts and circumstances of the case, recorded a finding that the charge levelled against the two accused persons, namely, the appellant and Munni Lal, had been proved beyond reasonable doubt.
On that finding the High Court convicted the appellant along with Munni Lal, for an offence under Section 302 read with Section 34 of the Penal Code and sentenced each of them to undergo rigorous imprisonment for life.
This appeal, under Section 379 of the Criminal Procedure ( 'ode, has been filed on behalf of Ram Asrey, the appellant.
We are informed that Munni Lal has not preferred any appeal to this Court.
On behalf of the appellant it was urged that the Trial Court had rightly disbelieved the evidence of the three eye witnesses PW 1.
PW 5 and PW 6 because of the inherent improbabilities in their deposition and lack of consistency and there was no occasion for the High Court while hearing the appeal against acquittal to reverse the finding recorded about their credibility.
It was also pointed out that so far Jaoannath, PW 5, is concerned, he has been disbelieved not only by the Trial Court but even by the High Court saying that he has changed his statement from stage to stage, to make it consistent with the statement of PW 1.
The High Court has observed in respect of PW 5 "We may, therefore, exclude his testimony from consideration, not so much because he might not have been present at the spot but because there are elements in his testimony which make it unsafe to place reliatice on it having been once disbelieved by the Trial Court.
That is the true angle in which the evidence must be considered by this Court when dealing with an appeal against acquittal.
" It was urged that the same approach should have been adopted in respect of Narain PW 6, who claimed to have accompanied PW 5, PW 6, has stated that he had clone that day to the market of khairabad to get Salim Mistry for repairing his Chakki, but Salim Mistry was not available and when he was returning to village he met PW 5 in the market of Khairabad and both of them started for their village.
587 He has further stated that at about 5 P.M. he saw the deceased and PW Ion Sitapur Lucknow Road.
Then he claimed to have seen the accused persons coming out from the field of Rani Saheba.
According to him, this appellant held down the deceased, while the other two accused persons Radhey Shyam and Munni Lal struck the deceased with Bankas and caused his death.
The High Court has observed that if the testimony of PW 6 is examined in the light of surrounding circumstances, then it is consistent with the version of PW 1 and, as such, the evidence of PW 1 receives adequate corroboration.
The High Court has rightly pointed out that PW 6 was not connected with the prosecution party in any manner and there was no reason for him to depose falsely, claiming to be an eye witness of the occurrence.
As such, his evidence can be taken into consideration to corroborate the evidence of the informant PW 1.
On behalf of the appellant, it was said about PW 1 that on his own statement, he lodged the First Information Report, on the basis of a report written by Lallu Ram PW 8 at the spot, which he took to Police Station Khairabad.
This aspect of the matter has been dealt with in the judgment under appeal.
We are in complete agreement.
That merely because PW 1 lodged the First Information Report on basis of a report prepared by PW 8, by itself shall not affect the prosecution version.
The matter would have been different.
if the accused persons had shown some oblique motive on the part of PW 8, who is said to have prepared the report.
The occurrence took place at about 5.00 P.M. and the First lnformation Report was lodged at 6.45 P.M. with in two hours, the police station being at the distance of four miles from the place of occurrence.
In the First Information Report the same version of the occurrence was disclosed, which has been stated in Court.
Apart from naming himself, PW 1 also named PW 5 and PW 6 as eye witnesses of the occurrence.
The Investigating Officer reached the place of occurrence at 9.00 P.M. the same evening.
In such a situation there does not appear to be any scope for concoction of a false case to implicate the accused persons leaving out the real culprits.
PW 1 being the brother of the deceased, his going to the Court of Tehsildar at Sitapur and returning to village with the deceased is most natural.
His evidence cannot be rejected merely on the ground that he happened to be the brother of the victim.
It has been repeatedly pointed out by this Court that near relations will be the last persons to leave out the real culprits and to implicate those who have not participated in the crime.
Taking all facts and circumstances into consideration.
we are of the view that prosecution has been able to prove the case as disclosed in the First Information Report against the accused persons and there is no reason to reject the same.
The next question which has to be examined is as to whether so far the 588 appellant is concerned who, according to the prosecution case itself, has not given any Banka blow to the victim, but is said to have pressed down the deceased, before the other two accused persons Radhey Shyam and Munni Lal had given the blows, should have been held guilty for an offence under Section 302 read with Section 34 of the Penal Code.
It was pointed out that the appellant was a school student and there was no reason on his part to share the common intention of committing the murder of the victim.
In this connection, reference was made to the injuries found on the person of the victim during the post mortem examination.
It was pointed out that the injuries were not consistent with the prosecution case that the other two accused persons caused those injuries with Bankas.
About injuries Nos. 2, 3 and 4 the Doctor, who held the post mortem examination, has clearly stated that they must have been caused by some blunt weapon.
In respect of injury No. 4, he has said that it might have been caused by the blunt side of the Banka.
This itself shows that amongst the two participants in tile occurrence.
They had different intentions.
One out of the two assailants i.e. Radhey Shyam and Munni Lal had used the back side of the Banka.
If one of the two assailants had used the back side of the Banka, then from this conduct it can be reasonably inferred that such assailant had not the intention to cause the death of the victim, otherwise there was no reason to use the back side of the Banka, instead of sharp side which in normal course could have caused the death of the victim.
However, so far the present appeal is concerned, we are not concerned with either of the two other accused persons.
But this circumstance can be taken into consideration for judging the role played by the appellant.
According, to us, by merely pressing down the victim before the other two accused persons assaulted him, it cannot be held that appellant had shared the common intention of causing the death of the victim.
In the facts and circum stances of the case, of course, it has to be held that he shared only the common intention of culpable homicide not amounting to murder.
He can be attributed with the intention that the injuries, which were being caused by the other two accused persons, were likely to cause the death of the victim.
Accordingly, we set aside the conviction of the appellant under Section 302 read with Section 34, as well as his sentence to imprisonment for life.
He is convicted under Section 304, Part 1, read with Section 34 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years.
The appeal is accordingly allowed in part to the extent indicated above.
S.K. Appeal Partly allowed.

summary/full:
The appellant alongwith Radhey Shyam and Munni Lal were charged with the murder of Gokaran Prasad on 24.11.1975 at about 5 PM.
The Trial Court on consideration of the evidence concluded that the prosecution has failed to prove the case beyond reasonable doubts and acquitted the accused persons.
On appeal, the High Court appreciating the facts and circumstances of the case convicted Munni Lal along with the appellant for an offence under Section 302 read with 34 I.P.C. and sentenced each of them to undergo rigorous imprisonment for life.
During the pendency of the appeal the main accused Radhey Shyam died.
This appeal is against the High Court 's Judgment under Section 379 of the code of Criminal Procedure.
Allowing the Appeal in part, HELD : 1.
The High Court has rightly pointed out that PW 6 was not connected with the prosecution party in any manner and there was no reason for him to depose falsely, claiming to be an eye witness of the occurrence.
As such, his evidence can be taken into consideration.
to corroborate the evidence of the informant PW 1.
(587 C) 2.
The occurrence took place at about 5 P.M. and the first information report was lodged at 6.45 P.M. within two hours, the Police Station being at the distance of four miles from the place of occurrence.
In the first information report the same version of the occurrence was disclosed, which has been stated in Court.
Apart from naming himself, PW 1 also named PW 5 and PW 582 6 as eye witness of the occurrence.
The Investigating Officer reached the place of the occurrence at 9.
P.M. the same evening.
In such a situation there does not appear to be any scope for concoction of a false case to implicate the accused persons leaving out the real culprits.
PW 1 being the brother of the deceased, his going to the Court of Tehsildar at Sitapur and returning to village with the deceased is most natural.
His evidence cannot he rejected merely on the ground that he happened to be the brother of the victim.
It has been repeatedly pointed out by this Court that near relations will be the last persons to leave out the real culprits and to implicate those who have not participated in the crime.
Taking all facts and circumstances into consideration, the prosecution has been able to prove the case as disclosed in FIR against the accused persons.
(587 E G) 3.The appellant was a school student and there was no reason on his part to share the common intention of committing the murder of the victim.
By merely pressing down the victim before the other two accused persons, assaulted him, it cannot be held that appellant had shared the common intention of causing the death of the victim.
In the facts and circumstances of the case it has to he held that he shared only the common intention of culpable homicide not amounting to murder.
He can be attributed with the intention that the injuries, which were being caused by the other two accused persons, were likely to cause the death of the victim.
(588 E F) 4.
The conviction of the appellant under Section 302 read with 34 I.P.C. as well as his sentence to imprisonment for life is set aside.
He is convicted under Section 304, Part 1, read with Section 34 of the Penal Code sentenced to undergo rigorous imprisonment for ten years.
(588 G)


judgement:
iminal Appeal No.397 of 1993.
From the Judgment and Order dated 11.7.90 of the Calcutta High Court in Crl.
Revision No. 1453 of 1987.
D.N. Mukherjee, D. Sinha and J.R. Das for the Appellant.
Sukumar Guha and A.K. Sengupta for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
In this appeal by special leave two questions arise for our consideration, namely, (i) whether a Special Court constituted under Section 12A of the (hereinafter called 'the Act ') is empowered to exercise powers under sub section (5) of Section 167 of Code of Criminal Procedure, 1973 ( 'the Code ' for short) in relation to an accused person forwarded to it under clause (b) of sub section (1) of section 12AA of the Act? and (ii) whether a Special Court can, notwithstanding the fact that the charge sheet has been filed after the expiry of the period of six months from the date of arrest of the accused person or the extended period, take cognizance of the offence and proceed to try and punish the accused person? These two questions arise in the backdrop of the following facts.
A police party headed by an Inspector of Police raided the business premise 574 and godown of the respondents on March 16, 1984 and in the presence of respondent Faguni Dutta seized certain essential commodities stored in contravention of certain orders issued under section 3 read with section 5 of the Act.
The accused Falguni Dutta was arrested on the same day for the commission of an offence punishable under section 7(1) (a) (ii) of the Act but the charge sheet was submitted after the expiry of the period of six months from the date of arrest on September 30, 1986.
The learned Judge presiding over the Special Court Constitute of under section 12A of the Act took cognizance of the offence on March 13, 1987 on the basis of the charge sheet submitted under section 173 of the Code.
Thereupon the accused persons moved an application before the learned Special Judge for quashing the proceedings on the ground that since the case was triable as a summons case in view of section 12AA(1) (f) of the Act, clause (5) of section 167 of the Code was attracted which enjoined that the proceedings be dropped.
The learned Special Judge relying on a decision of a learned Single Judge of the High Court in Kanta Dev vs The State of West Bengal (1986) Calcutta Criminal Law Reporter 158 = (1986) 1 CHN 267 rejected the application on July 24, 1987 holding that the provision of section 167 (5) of the Code had no application to a case initiated for the commission of an offence punishable under section 7 (1) (a) (ii) of the Act.
We may incidentally point out that the same view was expressed in Babulal Agarwal vs State (1987) 1 CHN 218.
Being aggrieved by the rejection of the application the accused preferred a Revision Application to the High Court challenging the legality of the said order.
A learned single Judge of the High Court placing reliance on a Division Bench decision of the High Court of Andhra Pradesh in the case of Public Prosecutor, High Court of Hyderabad & etc.
vs Anjaneyulu and etc.
held that sub section (5) of section 167 of the Code stood attracted and the learned Special Judge ought to have stopped the further investigation on the expiry of six months and ought to have discharged the accused.
He, therefore, set aside the order of the learned Special Judge and also quashed the prosecution and discharged the accused.
It is against this order of the High Court that the present appeal is preferred.
We may incidently mention that when the learned Single Judge was disinclined to follow the earlier two decisions of other learned single Judges of the High Court the proper course was to refer the matter to a Division Bench for decision.
however, has now lost significance in view of the subsequent decision of the Division Bench in Jnan Prakash Agarwala vs State of WestBengal (1992) 1 CHN 213 taking a contrary view.
In the said case the Division Bench has taken the view which the learned Single Judge has taken in the present case.
We will deal with these decisions in some detail hereafter.
At the outset we deem it appropriate to notice the relevant provisions of the 575 concerned statutes.
The Act was enacted to provide, in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, certain commodities.
Section 3, inter alia, lays down that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating and prohibiting the production, supply and distribution thereof and trade and commerce therein.
By section 4 it is provided that an order made under section 3, may, confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government and may contain directions any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties.
The Central Government is empowered by section 5 to direct that the power to make orders or issue notifications under section 3, shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable, inter alia, by such State Government, as may be specified in the direction.
In exercise of the power so conferred certain orders were issued by the State Government in regard to certain essential commodities from time to time.
Section 7 prescribes the penalties for the contravention of any order made under section 3.
The relevant portion of section 7 with which we are concerned reads as under: "7 (1) If any person contravenes any order made under section 3, (a) he shall be punishable, (i) in the case of an order made with reference to clause (i) of subsection (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii)in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine.
In the present case the accused came to be charged under section 7 (1) (a) (ii) of the Act.
Having regard to the fact that the punishment prescribed for the said offence extends to seven years and fine, the case would fall within the definition of warrant case under section 2(x) of the Code.
This becomes evident if we read the definitions of 'summons case ' and ' warrant case ' together.
They are as under: 576 2 (w) Summons case means a case relating to an offence, and not being a warrant case.
2(x) Warrant case means a case relating to an offence, punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
" However, by Amending Act 18 of 1981 the Legislature, for dealing more effectively with persons indulging in antisocial activities like hoarding and blackmarketing and for combating the evil of inflationary prices, considered it necessary to make special provisions for a temporary period of five years (extended by another five years),namely, to provide: (i) for the control, in a summary way of all offences under the Act; and (ii)for the constitution.
for the purposes of such trial, of Special Courts, consisting of a Single Judge.
To achieve this objective section 12A was amended with a view to empowering the State Government for the purpose of providing speedy trial of the offences under the Act to constitute as many Special Courts as may be necessary for such area or areas to be to be specified in the notification.
Section 12AA which too was inserted by the said Amending Act begins with a non obstance clause and provides that all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence was committed or where there are more Special Courts than one in such area by one of them as may be specified in this behalf by the High Court.
Clause (b) of sub section (1) of section 12AA next provides that where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub section (2) or subsection (2A) of Section 167 of the Code, such Magistrate may authorise the detention of such person such custody as he thinks fit for a period.
not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where such Magistrate is an Executive Magistrate unless his detention for such period is unnecessary.
Clause (c) of that sub section is relevant for our purpose and may be extracted: "(c) The Special Court, may, subject to the provisions of clause (d) of this Section, exercise, in relation to person forwarded to it under clause (b), the said power which a Magistrate having jurisdic 577 tion to try a case may exercise under section 167 of the Code in relation to an accused person in such case who has been forwarded to him under this section.
" Sub clause (d)provides that no court other than the Special Court or the High Court shall release an accused on bail.
Sub clause (f) of this sub section is also relevant and reads as under: "(f) All offences under this Act shall be tried in a summary way and the provisions of sections 262 to 265 (both inclusive) of the Code shall.
as far as may be.
apply to such trioal; Provided that in the case of any conviction in a summary trial under this section it shall be lawful for the Special Court to pass such sentence of imprisonment for a term not exceeding two years.
" It will thus be seen that while the penalty provided for an offence under section 7(1) (a) (ii) extends to seven years and fine, by virtue of clause (f) of subsection (1) of section 12AA if the offence is tried in a summary way applying the provisions of sections 262 to 265 of the Code the penalty would be restricted by the proviso to a maximum of two years, which would, it is argued, bring the case within the meaning of a 'summons case ' as defined in section 2(w) of the Code, thereby attracting sub section (5) of section 167 of the Code.
It would be advantageous to reproduce sub section (5) of section 167 of the Code.
It reads as under: "If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary.
" To complete reference to the provisions of the Act we may also state that section 10A posits that notwithstanding anything contained in the Code, every offence punishable under the Act shall be cognizable and non bailable.
Section 11 provides that cognizance of an offence under the Act shall be taken only on a written report.
Section 12AC makes the provisions of the Code applicable to proceedings be fore a Special Court unless otherwise provided.
These, in brief are 578 the relevant provisions of the Act and the Code with which we are concerned.
It may here be mentioned that section 12A was first inserted by Amendment Act of 1964.
It then empowered the Central Government to specify any order under section 3 to be a special order the contravention whereof may be tried summarily to which the provisions of sections 262 to 265 of the Code were made applicable.
The proviso stipulated that in the case of conviction in a summary trial it shall be lawful for the Magistrate to pass a sentence of imprisonment not exceeding one year, Subsequently by Amendment Act 18 of 198 1.
section 12A was substituted by the present provisions and new sections 12AA to 12AC were inserted.
The avowed object of these legislative changes was expeditious disposal of offences under the Act by Special Courts employing summary procedure and applying the provisions of the Code to such trials save as otherwise provided.
This enabled the Special Courts to take cognizance of the offences under the Act without a formal order of commitment.
It thus becomes clear from the plain language of the provisions introduced by Act 18 of 1981 that the legislature desired to ensure that all offences under the Act were tried by the Special Court Constituted under Section 12A in a summary manner applying the provisions of sections 262 to 265 of the Code and further provided that in case of conviction the sentence shall not exceed two years, bringing the offence within the definition of a summons case under the Code.
But for the insertion of section 12A in its present form and section 12AA, the offence under section 7 (1) (a) (ii) of the Act would have attracted the definition of a warrant case.
It is, therefore, obvious that the Amending Act 18 of 1981 has brought about a substantial change.
The position in law as emerging after the amendment of the Act by Act 18 of 1981 is crystal clear, namely, that on the constitution of special Courts all offences under the Act are triable only by the Special Court for the Area in which the offence has been committed.
Section 12AA (1) (b) provides that where a person accused of an offence under the Act is forwarded to a Magistrate under subsection (2) or sub section (2A) of section 167 of the Code, such Magistrate is empowered to authorise the detention of such person in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where he is Executive Magistrate.
Clause (c) of that sub section provides that the Special Court may exercise in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section.
Section 12AC says that the provisions of the Code shall apply to proceedings before a Special Court save as otherwise provided in the Act.
A conjoint reading of these provisions makes it clear, that after the constitution of 579 Special Courts all offences under the Act have to be tried by that court in a summary way by applying the provisions of sections 262 to 265 (both inclusive) of the Code.
The proviso places a fetter on the power of the Court in the matter of passing a sentence on conviction, namely, that notwithstanding the fact that section 7 (1) (a) (ii) prescribes a punishment extending upto seven years and fine, Special Court shall not pass a sentence of imprisonment for a term exceeding two years.
It is this proviso which attracts the definition of a summons case, the trial whereof must be undertaken in accordance with the procedure out lined in Chapter XX of the Code.
Chapter XXI of the Code deals with Summary Trials.
Section 262 of the Code which outlines the procedure for summary trials in terms states that the procedure specified in the Code for the trial of summons case shall be followed, except otherwise provided.
Section 16.7 (5) says that if in any case triable as a summons case, the investigation is not concluded within a period of six months from the date on which the accused came to be arrested.
the Magistrate shall make an order stopping further investigation into the offence unless the Magistrate, for special reasons and in the interests of justice considers it necessary to permit continuation of the investigation.
The prosecution in question being a summons case triable in a summary manner as per procedure outlined in sections 262 to 265 of the Code, which in turn attracts the procedure meant for summons case, it is obvious that the power conferred by sub section (5) of section 167 can be invoked by the Special Court by virtue of clause (c) of section 12AA (1) of the Act which in terms states that the Special Court may exercise the same powers which a Magistrate may exercise under section 167 of the Code.
Thus a special Court is expressly empowered by clause (c) of section 12AA (1) to exercise the same powers which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code in relation to an accused person who has been forwarded to him under that provision.
We have, therefore, no manner of doubt that the High Court was right in concluding that section 167 (5) of the Code was attracted in the present case and the Special Court was entitled to exercise the power conferred by that sub section.
That being so the view taken by the Division Bench of the Calcutta High Court in the case of Jnan Prakash (supra) insofar as it relates to the application of section 167 (5) to an offence under section 7 (1) (a) (ii) of the Act triable by the Special Court constituted under section 12A of the Act cannot be doubted.
That is also the view of the High Court of Andhra Pradesh in the case of Public Prosecutor, High Court of Hyderabad (supra).
Therefore, the Special Court can stop further investigation into the offence if the investigation is not concluded within a period of six month from the day of arrest of the accused person unless for special reasons and in the interest of justice the continuation of the investigation beyond that period is necessary.
In the present case the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months.
The object of 580 this sub section clearly is to ensure prompt investigation into an offence triable as summons case to avoid hardship and harassment to the accused person.
Both the High Courts of Calcutta and Andhra Pradesh have taken the view that after the amendment of the Act by Act 18 of 1981 and the introduction of section 12AA the power conferred on the Magistrate under section 167 (5) of the code is exercisable by the Special Court constituted under section 12A of the Act.
We also concur with the High Court of Calcutta that the two decisions rendered by the learned Single Judges of that Court earlier in point of time did not lay down the correct law.
Similarly the Division Bench of the High Court of Andhra Pradesh was also right in holding that sub section (5) of section 167 of the Code would be applicable to prosecutions under the Act triable by the Special Court.
The taxes us to the question whether the Special Court can,beside directing stoppage of investigation, entertain and act on a charge sheet or a police report submitted under section 173 (2) of the Code in such cases.
The expression 1 police report ' has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under sub section (2) of section 173 [section 21.
Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.
It will thus be seen that the police report under section 173(2) has to be submitted as soon as the investigation is completed.
Now, if the investigation has been stopped on the expiry of six months or the extended period, if any by the Magistrate in exercise of power conferred by sub section (5) of section 167 of the Code, the investigation comes to an end and, therefore, on the completion of the investigation section 173(2) enjoins upon the officer in charge of the police station to forward a report in the prescribed form.
There is nothing in sub section (5) of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub section, the officer in charge of the police station will be absolved from the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation, The High Court of Andhra Pradesh rightly observed in paragraph 13 of the Judgment as under: "Under the new Code in addition to definition for investigation ' in section 2(h), a separate definition for 'police report ' is given by section 2(r).
This coupled with the newly introduced sub section (5) of section 167 brings out the distinction between investigation by the police and the police report on which a court is to take cognizance.
The report cannot now be said to be an integral part of 581 investigation.
The introduction of section 167 (5) in the Code, cannot have the effect of invalidating the investigation done within the period of six months or enabling the court to stopping the filing of police report under section 173 (2).
If the investigation done during the period of six months discloses an offence, a police report may be founded on it and the court can take cognizance of the same." in Hussainara Khantoon & Ors.
vs Home Secretary State of Bihar, Patna 1 9791 3 SCR 760 this Court held that the investigation done within the period of six months is not rendered invalid merely because the investigation is not completed and further investigation is stopped.
The exact words used are: ". . in such a case the Magistrate is bound to make an order stopping furthe r investigation in that event, only two courses would be open: either the police must immediately proceed to file a chargesheet, if the in vestigation conducted till then warrants such a course, or if no case for proceeding against the under trial prisoner is disclosed by the investigation, the undertrial must be released forthwith from detention.
" We, therefore ,concur with the view taken by the Andhra Pradesh High Court in this regard.
In the result we partly allow this appeal.
While we agree with the view taken by the High Court of Calcutta that in the case of an offence punishable under section 7(1) (a) (ii) of the Act which is tried by a Special Court constituted under section 12A, the provision of sub section (5) of section 167 of the Code gets attracted if the investigation has not been completed within the period allowed by that sub section but we find it difficult to sustain that part of the order of the High Court by which the order of the Special Court taking cognizance of the offence on the police report, i.e., charge sheet submitted under section 173 (2) of the Code came to be quashed.
We set aside that latter part of the order and hold that the Special Court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof.
We, therefore, direct that the Special Court will proceed with the trial from that stage onwards and complete the same as early as possible in accordance with law.
Appeal partly allowed.

dataset_name: IN-Abs

summary/full:
On 16.3.1984, the police raided the business premise and godown of the respondents and sized certain essential commodities which were stored there in contravention of certain orders issued under section 3 read with section 5 of the .
On the same day the respondents were arrested for the commission of an offence punishable under section 7(1) (a) (ii) of the Act.
But chargesheet was submitted under section 173, Code of Criminal Procedure on 30.9.1986, after expiry of the period of six months.
The Special Court constituted under section 12A took cognizance of the offence on 13.3.1987 on the basis of the charge sheet.
The respondent No. 1 moved an application before the Special Court to quash the proceeding since the case was triable as a summon case in view of section 12AA (1) (f) of the , sub section (5) of Section 167 of Code of Criminal Procedure was attracted.
Relying on the decision in Kanta Dey vs The State of West Bengal (1986) Calcutta Criminal Law Reporter 158, the Special Court rejected the application holding that the provision of section 167 (5) of the Code had no application to a case initiated for the commission of an offence punishable under section 7(1) (a) (ii) of the Act.
571 Respondents ' revision application against the order of Special Court was allowed by single judge of the high Court.
The High Court relying on the decision in public Prosecutor, High Court of Hyderabad vs Anjaneyulu, , held that sub section (5) of section 167 of the Code stood attracted.
On the High court quashing the prosecution, the respondents were discharged.
The present appeal by special leave was filed by the State against the order of the High Court.
On the questions, 1 whether a Special Court constituted under "Section 12A of the is empowered to exercise powers under section 167 (5) of the Code of Criminal Procedure, 1973 in relation to an accused person forwarded to it under section 12AA (1) (b) of the Act and (ii) whether a Special Court can take cognizance of the offence and proceed to try and punish the accused person, notwithstanding the fact that the charge sheet is filed after expiry of the period of six months from the date of arrest of the accused person?", partly allowing the appeal, this Court, HELD: 1.1.
From the plain language of the provisions, introduced by Act 18 of 1981 the legislature desired to ensure that all offences under the Act were tried by the Special Court constituted under section 12A in a summary manner applying the provisions of sections 262 to 265 of the Code and further provided that in case of conviction the sentence shall not exceed two years, bringing the offence within the definition of a summons case under the Code.
But for the insertion of section 12A in its present form and section 12AA, the offence under section 7 (1) (a) (ii) of the Act would have attracted the definition of a warrant case.
(578 D) 1.2.
The avowed object of these legislative changes was expeditious disposal of offences under the Act by Special Courts employing summary procedure and applying the provisions of the Code to such trials save as otherwise provided.
This enabled the special Courts to take cognizance of the offences under the Act without a formal order of commitment.
(578 C) 1.3.
After the constitution of Special Courts all offences under the Act have to he tried by that court in a summary ways by applying the provision,% of section. .
262 to 265 (both inclusive) of the Code.
The proviso places a fetter on the power of the Court in the matter of passing a sentence on conviction, namely, notwithstanding the fact that section 7(1) (a ) (ii) prescribes a punishment extending upto seven years and fine, Special Court shall not pass a sentence of imprisonment for a term exceeding two years .
It is this proviso which attracts the definition of a summon case, the trial whereof must he 572 undertaken in accordance with the procedure outlined in Chapter XX of the Code.
(579 A B) 1.4.Section 167 (5)says that if in any case triable as a summons case,the investigation is wit concluded within a period of six months from the date on which tile accused came to he arrested, the Magistrate shall make an order stopping further investigation into the offence unless the Magistrate for special reasons and in the interest of justice considers it necessary.
to permit continuation of the investigation.
(579 C) 1.5.
The object of sub section clearly (5) of Section 167 is to ensure prompt investigation into all offence triable as summons case to avoid hardship and harassment to the accused person.
(646 C) 1.6.
The prosecution in question being a summons case triable in a summary manner as per procedure outlined in sections 262 to 265 of the Code which in turn attracts tile procedure meant for summons case, it is obvious that the power conferred by sub section (5) of section 167 can be invoked by the Special Court by virtue or clause (c) of section 12AA (1) of the Act which in terms states that the Special Court may exercise the same powers which a Magistrate may exercise under section 167 of the Code.
Thus a special Court is expressly empowered by clause (c) of section 12AA (1) to exercise the same powers which a Megistrate having jurisdiction to try a cast may exercise under section 167 of the Code in relation to an accused person who has been forwarded to him under that provision.
(579 1)) 1.7.
The High Court was right in concluding that section 167(5) of the Code was attracted in the present case and the Special Court was entitled to exercise the power conferred by that sub section.
(579 F) 1.8.
In the case of an offence punishable under section 7(i) (a) (ii) of the Act which is tried by a Special Court constituted under section 12A, the provision (of sub section (5) of section 167 of the Code get attracted if tile investigation has not been completed within the period allowed by that sub.section.
(582 F) 1.9.
The Special Court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof Therefore the Special Court is directed to proceed with the trial from that stage on wards and complete the same as early as possible in accordance 573 with law.
(582 G) Kanta Dev vs The State of west Bengal, (1986) Calcutta Criminal Law Reporter 158 (1986) 1 CHN 267 and Babulal Agarwal vs State, (1987) 1 CHN 218, overruled.
(639 B C) Jnan Prakesh Agarwala vs State of West Bengal, (1992) 1 CHN 218 and Public Prosecution High Court of Hyderabad & etc.
vs Ajnaneyulu and etc.
, , approved.
Hussainara Khantoon & Ors.
vs Home Secretary State of Bihar, Patna, ; , referred to.
(639 H, 647 F)


judgement:
Appeal No. 166 (NL) of 1983.
the Award dated 19.4.1982 of the Labour Court, Haryana at Faridabad in Reference No. 227 of 198 1.
R.K. Jain, R.P. Singh, Aseem Malhotra, Ashish Verma, Manoj Goel, R.K. Khanna and Ms. Abha R. Sharma for the Appellant.
Dr. Anand Prakash, Ghosh for M/s Fox Mandal & Co. and Som Mandal for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave is against the award of the Labour Court, Haryana at Faridabad dated April 19, 1982 which was published in the State Gazette on August 10, 1982.It upheld the termination of the appellant 's service as legal and valid.
The respondent, by its letter dated December 12, 1980 which was received by the appellant on December 19, 1980, intimated that the appellant wilfully absented from duty continuously for more than 8 days from December 3, 1980 without leave or prior information or intimation or previous permission from the management and, therefore, "deemed to have left the service of the company on your own account and lost your lien and the appointment with effect from December 3, 1980.
" In support thereof reliance was placed on clause 13 (2) (iv) of its Certified Standing Order.
The appellant averred that despite his reporting to duty on December 3, 1980 and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register.
He pleaded that he was not permitted to join duty without assigning any reasons.
His letter of December 3, 1980 was marked herein as Annexure 'A ' wherein he explained the circumstances in which he was prevented to join duty.
The Tribunal found that the appellant had failed to prove his case.
The action of the respondent is in accordance with the standing Orders and it is not a termination nor retrenchment under the for short 'the Act '.
The appellant in terms of standing orders lost his lien on his appointment and so is not entitled to reinstatement.
Clause 13 (2) (iv) standing order reads thus: "If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his 936 appointment unless.
(a) he returns within 3 calander days of the commencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be; and (b) explains to the satisfaction of the manager/management the reason of his absence o r his inability to return on the expiry of the leave, as the case may.
The workman not reporting for duty within 8 calander days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment.
His name shall be struck off from the Muster Rolls in such an eventuality.
" A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calander days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended.
He has to give a satisfactory explanation to the Manager/Management of his reasons for absence or inability to return to the duty on the expiry of the leave.
On completion of eight calander days ' absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment.
Thereafter the management has been empowered to strike off the name from the Muster Rolls.
Section 2(oo) of the Act defines '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 of 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.
" Section 25F prescribes mandatory procedure to be followed before the retrenchment becomes valid and legal and violation thereof visits with invalida 937 tion of the action with consequential results.
In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs Presiding Officer, Labour Court, Chandigarh and Ors., the Constitution Bench considered the scope of the word 'retrenchment ' defined by s.2(oo) and held in para 71 at page 716 that "analysing the definition of retrenchment in Section 2(oo) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in Clauses (a) and (b) namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of continued ill health.
There would be no violational element of the employer.
Their express exclusion implies that those would otherwise have been included".
In para 77 at page 719 it was further held that "right of the employer and the contract of employment has been effected by introducing Section 2(oo)".
The contention of the management to terminate the service of an employee under the certified standing Orders and under the contracts of employment was negatived holding that the right of the management has been effected by introduction of section 2(oo) and section 25F of the Act.
The second view was that the right as such has not been effected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of section 25F of the Act to tide over the financial difficulty which subserves the social policy.
This court relied on the maxim Stat pro ratione valuntas populi; the will of the people stands in place of a reason.
In paragraph 82 at page 722 this court concluded that the definition in s.2(oo) of the Act of retrenchment means "the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section".
Same view was taken by three benches of three Judges of this Court in State Bank of India vs Sri N. Sundara Mani; ; ; Delhi Cloth & General Mills Lid.
vs Shambhu Nath Mukherjee & Ors ; and Hindustan Steel Ltd. vs The Presiding Officer.
Labour Court ; and two benches of two judges in Robert D 'Souza vs Executive Engineer, Southern Railway and Anr. ; and H. D. Singh vs Reserve Bank of India and Ors.
[1985] 4 SCC 201 took the same view.
Therefore, we find force in the contention of Sri R. K. lain, the learned Senior counsel for the appellant that the definition 'retrenchment ' in S.2(oo) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever.
We need not, however, rest our conclusion on this point as in our considered view it could be decided on the other contention raised by Sri Jain that the order is violative of the principles of natural justice.
We are impressed with that argument.
Before dealing with it, it is necessary to dispose of inter related contentions raised by Dr. Anand Prakash.
938 The contention of Dr. Anand Prakash that since this appeal was deleted from the constitution bench to be dealt with separately, the finding of the constitution bench deprived the respondent of putting forth the contention based on Cl. 13 of the certified standing order to support impugned action and the respondent is entitled to canvass afresh the correctness of the view of the constitution bench is devoid of force.
It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the court deemed appropriate to refer to a larger bench in the larger public interest to advance the cause of justice.
The constitution bench in fact went into the self same question vis a vis the right of the employer to fall back upon the relevant provision of the certified standing Orders to terminate the service of the workman/employee.
By operation of section 2(oo) the right of the employer under Cl.13(2) (iv), and the contract of employment has been effected.
Moreover in Ambika Prasad Mishra vs State of U.P. and Ors.
, ; at 72 23 para 5 & 6.
A constitution bench held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent.
It does not lose its authority 'merely ' because it was badly argued, inadequately considered and fallaciously reasoned.
In that case the ratio of this court on article 31A decided by 13 Judges bench in Keshwanand Bharti vs Union of India [1973] Suppl.
SCR was sought to be reopened but this court negatived the same.
His contention that expiry of eight days ' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance.
The constitution bench specifically held that the right of the employer given under the standing Orders gets effected by statutory operation.
In Robert D ' Souza 's case (supra) in para 7, this court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done.
It was further held that striking of the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consequitive days amounts to misconduct and termination of service on such grounds without complying with minimum prin ciples of natural justice would not be justified.
In Shambhunath 's case three Judges bench held that striking of the name of the workman for absence of leave itself amounted to retrenchment.
In H.D. Singh vs Reserve Bank of India & Ors.
(supra), this court held that striking of the name from the rolls amounts to an arbitrary action.
In State Bank of India vs Workmen of State Bank of India and Anr.[1991] 1 SCC 13, a two judge bench of this court to which one of us, K.R.S.,J. was a member was to consider the effect of discharge on one month 's notice or pay in 939 lieu thereof.
It was held that it was not a discharge simplicitor or a simple termination of service but one camouflaged for serious misconduct.
This court lifted the veil and looked beyond the apparent tenor of the order and its effect.
It was held that the action was not valid in law.
The principle question is whether the impugned action is violative of principles of natural justice.
In A.K. Kriapak and Ors.
vs Union of India & Ors., a Constitution bench of this court held that the distinction between quasi judicial and administrative order has gradually become thin.
Now it is totally clipsed and obliterated.
The aim of the rule of the natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules operate in the area not covered by law validly made or expressly excluded as held in Col. J.N. Sinha vs Union of India & Anr.
[1971] 1 SCR 791.
It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice.
Conversely the Act made exceptions for the application of principles of natural justice necessary implication from specific provisions in the Act like Ss.25F; 25FF; 25FFF; etc, the need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service are completed, the need to dispense with the services may arise.
In that situation, on compliance of the provisions of section 25F resort could be had to retrench the employees in conformity therewith particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication.
In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies.
The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially.
It is not so much to act judicially but is to act fairly, namely ' the procedure adopted must be just, fair and reasonable in the particular circumstances of the case.
In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the concerned person.
940 It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case.
An order involving civil consequences must be made consistently with the rules of natural justice.
In Mohinder Singh Gill & Anr.
vs The Chief Election Commissioner & Ors.
at 308F the Constitution Bench held that 'civil consequence ' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non pecuniary damages.
In its comprehensive connotion every thing that affects a citizen in his civil life inflicts a civil consequence.
Black 's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action.
In State of Orissa vs Dr. (Miss) Binapani Dei & Ors., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice.
The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken.
Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
In State of West Bengal vs Anwar Ali Sarkar , per majority, a seven Judge bench held that the rule of procedure laid down by law comes as much within the purview of article 14 of the Constitution as any rule of substantive law.
In Maneka Gandhi vs Union of India,. 1, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art, 14.
The test of reason and justice cannot be abstract.
They cannot be divorced from the needs of the nation.
The tests have to be pragmatic otherwise they would cease to he reasonable.
The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual.
The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.
Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done.
They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness.
They have to act in a manner which is patently impartial and meets the requirements of natural justice.
The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of article 14.
941 and such law would be liable to be tested on the anvil of article 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of article 14.
So it must be right,just and fair and not arbitrary, fanciful or oppressive.
There can be no distinction between a quasi judicial function and an administrative function for the purpose of principles of natural justice.
The aim of both administrative.
inquiry as well as the quasi .judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi judicial enquiry and not to administrative enquiry.
It must logically apply to both.
Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable.
The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice.
article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence.
When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportu nity of being heard and fair opportunities of defence.
article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates.
Equality is the antithesis of arbitrariness.
It is, thereby, conclusively held by this Court that the principles of natural justice are part of article 14 and the procedure prescribed by law must be just, fair and reasonable.
In Delhi Transport Corpn.
vs D. T. C. Mazdoor Congress and Ors, [1991] Suppl.
1 SCC 600 this court held that right to public employment and its concomitant right to livelihood received protective umbrella under the can copy of articles 14 and 21 etc.
All matters relating to employment includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just.
fair and reasonable procedure prescribed under the provisions of the constitution and the rules made under the provisions of the constitution and the rules made under proviso to article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour.
They must be conformable to the rights guaranteed in Part III and IV of the Constitution.
article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary.
The principles of natural 942 justice is an integral part of the Guarantee of equality assured by article 14.
Any law made or action taken by an employer must be fair,just and reasonable.
The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of ' natural justice.
articles 14 strikes at arbitrary action.
It is not the form of the action but the substance of the order that is to be looked into.
It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive.
Fair play is to secure justice, procedural as well as substantive.
The substance of the order is the soul and the affect thereof is the end result.
It is thus well settled law that right to life enshrined under article 21 of the Constitution would include right to livelihood.
The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents.
Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
In D. 7. C. vs D.
T.C. Mazdoor Congress and Ors.
(supra) the constitution bench, per majority, held that termination of the service of a workman giving one month 's notice or pay in lieu thereof without enquiry offended article 14.
The order terminating the service of the employees was set aside.
In this case admittedly no opportunity was given to the appellant and no enquiry was held.
The appellant 's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register.
The Tribunal did not record any conclusive finding in this behalf.
It concluded that the management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant.
Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv).
Otherwise it would become arbitrary.
unjust and unfair violating articles 14.
When so read the impugned action is violative of the principles of natural justice.
This conclusion leads us to the question as to what relief the appellant is entitled to.
The management did not conduct any domestic enquiry nor given the appellant any opportunity to put forth his case.
Equally the appellant is to blame himself for the impugned action.
Under those circumstances 50 per cent of the back wages would meet the ends of justice.
The appeal is accordingly allowed.
The award of the Labour Court is set aside and the letter dated December 12, 1980 943 of the management is quashed.
There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order.
The appeal is allowed accord ingly.
The parties would bear their own costs.
N.P.V. Appeal allowed.

summary/full:
The respondent company terminated the appellant 's services on the ground that since he had willingly absented from duty continuously for more than 5 days from December 3, 1980, without leave or prior information of intimation or previous permission of the management, he had been deemed to have left the service of the company on his own and lost the lien and the appointment with effect from December 3, 1980.
It relied on clause 13(2) (iv) of the Certified Standing Order in support of its action.
The appellant 's plea that despite his reporting to duty on December 3, 1980 and every day continuously thereafter, he was prevented entry at the gate and was not allowed to sign the attendance register and that he was not permitted to join duty without assigning any reasons, was not accepted.
The Labour Court upheld the termination order as legal and valid.
It held that the appellant had failed to prove his case, that the action of the respondent was in accordance with the Standing Orders and it was not a termination nor retrenchment under the and that the appellant in terms of Standing Orders lost his lien on his appointment and was not entitled to reinstatement.
Allowing the appeal of the employee, this Court HELD:1.1.
The action of the management in terminating the appellant 's service is violative of the principles of natural justice.
Under clause 13 (2) (iv) of Certified Standing Orders, on completion of eight calendar days ' absence from duty an employee shall be deemed to have abandoned the services and lost his lien on his appointment.
Thereafter, the management is empowered to strike off the name from the Muster Rolls.
But it is not correct to say that expiry of eight days ' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic.
The prin ciples of natural justice must be read into the Standing Order No. 13 (2) (iv).
Otherwise, it would become arbitrary, unjust and unfair violating Article 14.
Keshwanand Bharti vs Union of India, and State Bank of India vs Workmen of State Bank of India and Anr. ; , referred to. 1.2.
In the instant case,admittedly,the management did not conduct any domestic enquiry nor gave the appellant any opportunity to put forth his case.
932 The Labour Court did not record any findings on the appellant 's plea that despite his reporting to duty on December 3,1980 and on all subsequent days and readiness to, join duty he was prevented from reporting to duty, nor he was permitted to sign the attendance register, but held that the management had power under clause 13 of the Certified Standing Orders to terminate the service of the appellant.
Under the circumstances, the award of the Labour Court is set aside.
The respondent should reinstate the appellant forthwith with 50 per cent of the back wages.
Certified Standing Orders have statutory force which do not expressly exclude the application of the principles of natural justice.
Conversely, the made exceptions for the application of principles of natural justice by necessary implication from specific provisions in the Act like Sections 25F, 25FF, 25FFF etc.
The need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily, to a service of such temporary workmen to meet such exigencies and as soon as the work or service is completed, the need to dispense with the services may arise.
In that situation, on compliance of the provisions of Section 25F resort could be had to retrench the employees in conformity therewith.
Particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication.
In other respects, the principles of natural justice would apply unless the employer should justify the exclusion on given special and exceptional exigencies.
Col. J.N. Sinha vs Union of India & Anr., [1971] 1 S.C.R. 791, relied on.
Application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority to act arbitrarily affecting the rights of the concerned person.
No decision must be taken which will affect the right of any person without first being informed of the case and be given him/her an opportunity of putting forward his/her case.
An order involving civil consequences must he made consistently with the rules of natural justice.
It is not so much to act judicially but to act fairly, namely, the procedure adopted must he just, fair and reasonable in the particular circumstances of the case.
The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 of the Constitution and such law would be liable to be tested on the anvil of Article 14.
The procedure prescribed by a 933 statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of the Article.
The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice.
Article 14 has a pervasive processual potency and versatile quality, equalitarian it its soul and allergic to discriminatory dictates.
Equality is the antithesis of arbitrariness.
Therefore, the principles of natural justice are part of Article 14 and the procedure prescribed by law must be right, just, fair and reasonable and not arbitrary, fanciful or oppressive.
Mohinder Singh Gill & Anr.
vs The Chief Election Commissioner & Ors. ; State of Orissa vs Dr. (Miss) Binapani Dei & Ors.
, ; ; State of West Bengal vs Anwar Ali Sarkar, ; and Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621, relied on.
Blak 's law Dictionary 4th Edn.
p. 1487; referred to.
Article 21 of the Constitution clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence.
When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence.
The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents.
Therefore, before taking any action putting an end to the tenure of an employee/workman, fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
Delhi Transport Corpn.
vs D. T.C. Mazdoor Congress, and Ors., [1991] Suppl.
1 S.C.C. 600, relied on.
The aim of the rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules operate in the area not covered by law validly made or expressly excluded.
There can be no distinction between a quasi judicial function and an administrative function for the purpose of principles of natural justice.
The aim of both administrative inquiry as well as the quasi judicial enquiry is to 934 arrive, at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it must logically be applicable both to quasi judicial enquiry and administrative enquiry and not only to quasi judicial enquiry.
A. K. Kriapak and Ors.
vs Union of India & Ors. , relied on.
An authoritative law laid after considering all the relevant provisions and the previous precedents is no longer open to be recanvassed on new grounds or reasons that may be put forth in its support unless the Court deemed it appropriate to refer to a larger bench in the larger public interest to advance the cause of justice.
Ambika Prasad Mishra vs State of U. P. & Ors. 10 and Keshwanand Bharti vs Union of India, , relied on.
The Constitution Bench in fact went into the self same question visa vis the right of the employer to fall back upon the relevant provision of the Certified Standing Orders to terminate the service of the workman/employee.
Therefore, it is not correct to say that since the present appeal was deleted from the Constitution Bench to be dealt with separately, the finding of the Constitution Bench deprived the respondent of putting forth the plea based on clause 13 of the Certified Standing Order to support the action in question and the respondent is entitled to canvass afresh the correctness of the view of the Constitution Bench.
The definition of 'retrenchment ' in Section 2(oo) of the is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever.
Punjab Land Development and Reclamation Corpn.
Ltd., Chandigarh vs Presiding Officer, Labour Court, Chandigarh and Ors., ; State Bank of India vs Sri N. Sundara Mani; , ; Delhi Cloth & General Mills Ltd. vs Shambhu Nath Mukherjee & Ors., [1978] 1 S.C.R. 591; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, ; Robert D ' Souza vs Executive Engineer Southern Railway, and Anr., ; and H.D. Singh vs Reserve Bank of India & Ors., [1985] 4 S.C.C.201, referred to. 935