judgement:
ivil Appeal No. 1548 of 1974.
From the Judgment and Order dated 12.12.
1972 of the Bombay High Court in F.A. No. 152 of 1972.
V.A. Bobde, B.R. Agarwala and R.B. Hathikhanwala for the Appellants.
M.S. Gupta for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by special leave granted under Article 136 of the Constitution of India against the judgment of a Division Bench of the Bombay High Court (Nagpur Bench) in First Appeal No. 152 of 1972, the judgment having been delivered on December 12, 1972.
The appellants are a firm registered under the Partner ship Act, 1932 and inter alia carry on the business of hire purchase of automobile vehicles.
The appellants were the owners of a diesel truck complete with tools and other accessories.
On January 24, 1962 respondent No. 1 hired the said truck from the appellants under a Hire Purchase Agree ment in writing of the same date.
Under the said agreement, respondent No. 1 agreed to pay to the appellants a sum of Rs. 10,000 as initial hire charges and certain monthly hire charges.
It was provided under the said agreement that on the payment of all the monthly hire charges and other amounts payable under the agreement 486 on the respective due dates and fulfilment of the other terms and conditions of the agreement, respondent No. 1 would have the option to purchase the said truck.
However, if any of the monthly hire charges were not paid or there was a breach of any of the terms and conditions of the agreement, the appellants were entitled to take possession of the truck.
Until respondent No. 1 validly exercised the option to purchase the said truck, the said truck was to remain the property of the appellants.
Respondent No. 2 is the guarantor.
Respondent No. 1 failed to pay the monthly hire charges to the appellants as provided under the agree ment.
In fact, he paid only the initial hire of Rs. 10,000 and hire charges for one month only.
Giving up certain claims for damages and other items the appellants filed a suit in the Court of Civil Judge (Senior Division) at Nagpur for recovery of a sum of Rs. 13,422.23 p against the re spondents.
Several issues were framed by the learned Trial Judge and they were all decided in favour of the appellants.
However, the learned Trial Judge dismissed the suit on the ground that it was not maintainable in view of the provi sions of section 69(2) of the Partnership Act, 1932.
The appellants preferred an appeal against this decision to the Bombay High Court (Nagpur Bench).
The said appeal was, however, dismissed by the High Court upholding the view of the learned Trial Judge regarding the non maintainability of the suit.
It is against this decision, that the present appeal is directed.
In order to appreciate the controversy before us, it is necessary to take note of a few further facts none of which is disputed.
The appellant firm was registered under the Partnership Act, 1932 on November 2, 1960.
There was a change in the consti tution of the firm on July 1, 1962 but we are not concerned with that change.
What is material is that, on July 1, 1967, there was another change in the constitution of the firm whereby two of the then partners retired and one new part ner, namely, Smt.
Sarita Agrawal joined as a partner of the said firm; and two minors, namely, Ashish Kumar and Rohit Kumar were admitted to the benefits of the said partnership firm.
On the said date, namely, July 1, 1967 two of the then partners, namely, Smt.
Sheela R. Agrawal and Shri Ramkishan retired as aforestated from the said partnership firm.
The suit was instituted on July 22, 1968.
The notice regarding the change in the constitution of the said firm as aforesaid was given to the Registrar of Firms on August 28, 1968 and a note was taken of the said change in the Register of Firms subsequently.
Thus, as pointed out by the learned Trial Judge, on the date when the suit was filed, two partners shown as partners in the appellant firm in the relevant entries in the Register of Firms had 487 already retired, one new partner had joined the said firm and two minors had been admitted to the benefit of the said partnership firm and no notice had been given to the Regis trar of Firms in respect of these changes.
The notice re garding these changes was given to the Registrar of Firms subsequently and noted on November 19, 1968.
Section 69 of the said Partnership Act deals with the effect of non registration of firms.
Sub section (2) of the said section, which is material for the purposes of this appeal, runs as thus: "(2).
No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
" In the present case the suit filed by the appellants is clearly hit by the provisions of sub section (2) of section 69 of the said Partnership Act, as on the date when the suit was filed, two of the partners shown as partners as per the relevant entries in the Register of Firms were not, in fact, partners, one new partner had come in and two minors had been admitted to the benefit of the partnership firm regard ing which no notice was given to the Registrar of Firms.
Thus, the persons suing, namely, the current partners as on the date of the suit were not shown as partners in the Register of Firms.
The result is that the suit was not maintainable in view of the provisions of sub section (2) of section 69 of the said Partnership Act and the view taken by the Trial Court and confirmed by the High Court in this connection is correct.
Although the plaint was amended on a later date that cannot save the suit.
Reference has been made to some decisions in the judgment of the Trial Court; however, we do not find it necessary to refer to any of them as the position in law, in our opinion, is clear on a plain reading of sub section (2) of section 69 of the said Part nership Act.
In the result, the appeal fails and is dismissed with costs.
N.P.V. Appeal dismissed.

summary/full:
Under a Hire Purchase agreement entered into with the appellant, a firm registered under the Partnership Act, 1932, carrying on the business of hire purchase of automo bile vehicles, Respondent No. 1 hired the truck owned by the appellant, under the agreement Respondent No. 1 agreed to pay initial hire charge of Rs. I0,000 and certain monthly hire charges on due dates.
On the failure of Respondent No. 1 to pay the monthly hire charges, after paying the initial hire charges and charges for one month, the appellant filed a suit against Respondent No. 1 and his guarantor on July 22, 1968, for the recovery of a sum of Rs. 13,422.23 for breach of terms and conditions of the agreement.
There was a change in the constitution of the firm on July 1, 1967 with the retirement of two of the then part ners, and addition of one new partner as also admission of two minors to the benefits of the Partnership.
This change was notified to the Registrar of Firms on August 28, 1968 and was duly taken note of in the Register of Firms subse quently.
Thus, no notice of the change had been given to the Registrar of firms.
The Trial Judge dismissed the suit as not maintainable in view of Section 69(2) of the Partnership Act, 1932.
Upholding this decision, the High Court dismissed the appeal of the firm.
Hence, the appeal, by special leave, by the appellant firm.
Dismissing the appeal, the Court.
HELD: Sub section (2) of Section 69 of the Partnership Act lays down that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing were or had been shown in the Register of Firms as partners in the firm.
[487C] In the present case, the suit tided by the appellant firm is clearly 485 hit by the provisions of sub section (2) of Section 69 of the said Partnership Act, as on the date when the suit was filed, two of the partners shown as partners as per the relevant entries in the Register of Firms were not, in fact, partners, one new partner had come in and two minors had been admitted to the benefit of the partnership firm regard ing which change no notice was given to the Registrar of Firms.
Thus, the persons suing, namely, the current partners as on the date of the suit were not shown as partners in the Register of Firms.
Therefore, the suit was not maintainable in view of the provisions of sub section (2) of section 69 of the Partnership Act, 1932.
[487D E] Although the plaint was amended on a later date, that cannot save the suit.


judgement:
ivil Appeal No. 3 1543 155 of 1985.
From the Judgment and Order dated 26.3.
1985 of the Jammu & Kashmir High Court in L.P.A. (W) No. 59 of 1984.
For the Appellant In Person in Civil Appeal No. 3 154/85 M.N. Tiku, Rakesh Tiku and Pandey Associates for the Respondents.
431 M.N. Tiku, Rakesh Tiku and Pandey Associates for the Appellants.
For the Respondent In Person in Civil Appeal No. 3155/85.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Jammu & Kashmir Industries Limited (hereinafter called 'company ') is a company registered under the Indian and is wholly owned and managed by the State of Jammu & Kashmir.
Pyare Lal Sharma was employed by the company as Chemical Engineer.
His serv ices were terminated by the Managing Director of the company on June 14, 1983.
Sharma 's writ petition was allowed by a learned Single Judge of the Jammu & Kashmir High Court.
On appeal by the company the Letters Patent Bench upheld the judgment but denied back wages to Sharma.
This is how these two appeals, one by the.company and the other by Sharma, are before us.
We may briefly notice the necessary facts.
Pyare Lal Sharma joined the company as Assistant Chemical Engineer on July 12, 1972.
In 1974 he was sent to England as management trainee but he returned back without completing the train ing.
Sharma 's conflict with the company started in 1976 when he filed a suit against the company in Jammu & Kashmir High Court with various reliefs including a direction that he be again sent to England on company 's expense.
The suit was dismissed and further appeal to the Division Bench was also dismissed.
He then filed another suit in the Delhi High Court claiming Rs.50 lakhs as damages from the company but the same did not proceed on technical grounds.
Thereafter, it seems, Sharma started suspecting mala fide in every action of the company and resorted to court proceedings even on slight pretext.
He challenged the order of transfer from Baramulla to the headquarters by way of suit in the Jammu & Kashmir High Court.
Interim stay, initially granted, was vacated by the High Court.
In December, 1979 he applied for leave on medical grounds without disclosing the ailment.
He remained absent from December 7, 1979 to March 7, 1980 without any sanctioned leave.
Disciplinary proceedings were initiated against him on the charge of unauthorised absence and he was placed under suspension on March 8, 1980.
He filed Writ Petition No. 58/80 in the Jammu & Kashmir High Court against suspension.
Ultimately Sharma expressed re grets and he was reinstated into service by an order dated May 15, 1980.
In April, 1981 he was transferred from head quarters to one of 432 the units.
He again filed a writ petition in the Jammu & Kashmir High Court challenging the order of transfer but the same was dismissed.
Thereafter he filed Writ Petition No. 4086 of 1982 in this Court which was heard by Chinnappa Reddy, J. (Vacation Judge) on 1st of June, 1982.
The learned Judge passed the following order: "Issue notice returnable on June 15, 1982.
Notice be also served on the counsel for the State of Jammu & Kashmir Mr. Altar Ahmad.
Mr. Altar Ahmad will take instructions from his clients and assist this Court to know the precise facts of the case which it is impossi ble to find from the petitioner.
1 have sug gested to the petitioner that he may engage a counsel but he does not appear to be inclined to do so.
Nor is he willing to be assisted by the counsel engaged by the court.
" The writ petition was, however, dismissed as withdrawn on June 15, 1982.
Sharma filed two more writ petitions being 293 of 1982 and 410 of 1982 in the Jammu & Kashmir High Court challenging the promotions of some other officers.
Sharma absented from duty on September 8, 1982.
He was asked to explain his absence.
A para out of his reply is as under: "I have been submitting charge sheet against you since last one year to authorities about your corrupt practices, communal character, and illegal financial advancement you have made but no action has been taken against you since you utilise political pressure and bribed the chairman.
" Sharma was served with a charge sheet dated September 24, 1982 and he was placed under suspension.
Use of deroga tory language in various communications was one of the charges against him.
He submitted his reply to the charge sheet on October 7, 1982.
Part of the opening paragraph is as under: "You have become frustrated, lost balance of mind and to cover the various irregularities committed by you for example . .
You will be prosecuted for levelling false charge sheet and false charges against me.
Coming to the charge sheet with above reverence I have to say as under." On October 22, 1982 an enquiry officer was appointed to enquire 433 into the charges against Sharma.
He challenged the order of suspension by way of Civil Writ Petition 661 of 1982 in the Jammu & Kashmir High Court.
The High Court stayed the sus pension by its order dated December 20, 1982.
The order of suspension having been stayed by the High Court it was incumbent on Sharma to have joined duty.
But inspite of company 's letters asking him to do so he remained absent.
Sharma filed Writ Petition 471/82, Writ Petition 129/83 and Letters Patent Appeal 24/83 for payment of his salary and allowances for various periods which were granted by the High Court.
It is also on record that while in service Sharma unsuc cessfully fought assembly elections on two occasions.
He filed his nomination papers for contesting elections to the Lok Sabha from Baramulla constituency.
But the nomination papers were rejected.
Regulation 16.14 of Jammu & Kashmir Industries Employees Service Rules and Regulations before amendment was as under: "The service of the permanent employee shall be terminated by the company, if (a) his post is abolished or (b) he is declared on medical grounds to be unfit for further service after giving three months ' notice or pay in lieu thereof.
For similar reasons the service of a temporary employee also be dispensed with after giving him one month 's notice or pay in lieu thereof.
" The above quoted regulation 16.14 was amended on April 20, 1983.
Amended regulation is as under: "16.14.
the services of an employee shall be terminated by the Company if: (a) his post is abolished, or (b) he is declared on medical grounds to be unfit for further service, or (c) if he remains on un authorised absence, or(d) if he takes part in active politics.
In the case of (a) and (b) above the services shall be terminated after giving three months notice to a permanent 434 employee and one month 's notice to a temporary employee or pay in lieu thereof.
In the case of (c) and (d) above the services of an employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of issue of notice.
The management shall be empowered to take a decision without resorting to further enquiries.
By order of the Board of Directors.
" The company issued a show cause notice dated April 21, 1983 in terms of clause (c) of amended regulation 16.
The notice was in the following terms: "In compliance to the orders of the Hon 'ble High Court Your suspension was stayed till further orders vide Order No. JKI/319/82 dated 21.12.82 issued vide endorsement No. Adm.(P) 80 65/4866 dated 21.12.82.
From that date also you have continuously remained absent unautho risedly from your duties.
You are, therefore, served this notice to show cause within a period of 15 days as to why your services should not be terminated under rules of the Corporation." No reply to the show cause notice was submitted by Sharma.
By an order dated June 14, 1983 the Managing Direc tor of the company terminated his service,.
The termination order is reproduced as under: "Shri Pyare Lal Sharma Chemical Engineer, Jammu and Kashmir Industries Limited has remained on unauthorised absence continuously from 21.12.82 (since the date of his suspen sion was stayed as per orders from the Hon 'ble High Court).
Shri Sharma was served with a notice under Jammu & Kashmir Industries Limit ed Employees Service Rules to show cause within a period of 15 days as to why his services should not be terminated.
This notice was served to him under registered post but the same was received back in this office and later on delivered to him in person on 7.5.83 as per his request.
Shri Sharma has failed to explain his position.
It has now also been established that Shri Sharma was 435 taking part in active politics during the period of his un authorised absence and has filed nomination papers for contesting elec tion from 1 Baramulla Parliamentary Con stituency.
Now that his unauthorised absence as well as his taking part in the active politics has been established, and in exercise of the powers vested in the management under Jammu & Kashmir Industries Employees Services Regulations the services of said Shri Pyare Lal Sharma Chemical Engineer J & K Industries Limited are hereby terminated.
" Sharma challenged the order of termination by way of Writ Petition No. 70 of 1984 before the Jammu & Kashmir High Court.
Learned Single Judge by his judgment dated October 16, 1984 allowed the writ petition on three grounds.
The learned Judge found the impugned order violative of Rules of Natural Justice as no opportunity to show cause was afforded to Sharma in respect of the ground of taking part in active politics.
It was also held that the Board of Directors having appointed Sharma, The Managing Director who is subordinate authority could not terminate his services.
Finally, the learned Judge held regulation 16.14 to be arbitrary and as such violative of Article 14 of the Consti tution of India.
The Letters Patent Bench of the High Court dismissed the appeal of the company but denied back wages to Sharma.
The Bench held that Sharma 's services could not be terminated by an authority subordinate to the authority which appointed him.
The Bench also found that either three months notice or salary in lieu thereof under regulation 16.14 was mandatory.
The Division Bench did not agree with the other reasons given by the learned Single Judge in support of his judg ment.
Mr. Pyare Lal Sharma appeared in person and argued his case.
He has been of no assistant to us.
During the course of arguments we suggested to Mr. Sharma to engage a counsel which de declined.
We also repeatedly offered to him to have the services of a counsel engaged by the Court but he did not agree and insisted on arguing the case himself.
From the pleadings of the parties, documents on the record, the judgment of the learned Single Judge and of the Letters Patent Bench 436 and from Sharma 's arguments the following points arise for our consideration: 1.
Whether Regulation 16.14 is arbitrary and as such ultra vires Article 14 of the Constitution of India.
Whether three months ' notice or pay in lieu of the notice period was required to be given under Regulation 16.14.
The termination order having been passed by the Managing Director who was an authority subordinate to the Board of Direc tors which appointed Sharma, the order was bad on that ground.
Whether the impugned order is viola tive of rules of natural justice so much so that the ground of taking part in active politics was not mentioned in the show cause notice whereas it was relied upon in the termination order.
Whether the period of absence, which was prior to the date of coming into force of the amended Regulation 16.14, could be taken into consideration for invoking ground (c) of the Regulation.
We see no arbitrariness in Regulation 16.14.
The Regula tion has been framed to meet four different eventualities which may arise during the service of a company employee.
Under this regulation services of an employee may be termi nated (a) if his post is abolished or (b) if he is declared on medical grounds to be unfit for further service or (c) he remains on unauthorised absence or (d) if he takes part in active politics.
In the case of (a) and (b) three months notice to a permanent employee and one month notice to temporary employee or pay in lieu thereof is to be given.
In case of (c) and (d) a show cause notice, to explain his conduct satisfactorily, is to be given.
So far as grounds (a) and (b) are concerned there cannot be any objection.
When a post is abolished or an employee is declared medical ly unfit for further service the termination is the obvious consequence.
In the case of abolition of post the employee may be adjusted in some other post if legally permitted.
Ground (c) has also a specific purpose.
"Remains on un authorised absence" means an employee who has no respect for discipline and absents himself repeatedly and without any justification 437 or the one who remains absents for a sufficiently long period.
The object and purport of the regulation is to maintain efficiency in the service of the company.
The provision of show cause notice is a sufficient safe guard against arbitrary action.
Regarding ground (d) "acting politics" means almost whole time in politics.
Company job and active politics cannot go together.
The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regu lation 16.14 concerning the employees of companies/corpora tions/public undertakings is within the competence of the management.
We do not agree with the Division Bench of the High Court that three months ' notice or pay in lieu thereof was to be given to Sharma under Regulation 16.14.
It is clear from the plain language of the regulation that three months notice or pay in lieu, is only required when termination is under ground (a) or (b).
Regarding (c) and (d), the regula tion provides for a 15 days notice to explain the conduct satisfactorily and there is no requirement of any other notice or pay in lieu thereof.
We may now take up the third point.
Sharma was appointed as Chemical Engineer by the Board of Directors.
The powers of the Board of Directors to appoint officers of Sharma 's category were delegated to the Managing Director on Septem ber 12, 1974 and as such from that date the Managing Direc tor or became the appointing authority.
Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311(1) of the Constitution of India nor the extension of that guaran tee on parity.
There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under Article 311(1) of the Constitution of India.
An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed.
Since on the date of termination of Sharma 's services the Managing Direc tor had the powers of appointing authority, he was legally competent to terminate Sharma 's services.
The learned Single Judge allowed the writ Petition on the fourth point though the same did not find favour with the Division Bench.
Grounds (c) and (d) in regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee.
Once it is established to the satisfaction of the authority that an employee 438 remains on unauthorised absence from duty, the only action which can be taken is the termination of his services.
Similar is the case when an employee takes part in active politics.
The finding in the termination order regarding taking part in active politics cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining unauthorised absence from duty.
This Court in State of Orissa vs Vidyabhushan Mohapatra, [1963] 1 Supp.
SCR 648 and Railway Board vs Niranjan Singh, has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the courts to consider whether that ground alone would have weighed with the authority punishing the public servant.
Thus there is no force in this argument.
This takes us to the last point which we have discovered from the facts.
Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground.
The company had no authori ty to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceed ings against him.
The regulation was amended on April 20, 1983 and grounds (c) and (d) were added.
Amended regulation could not operate retrospectively but only from the date of amendment.
Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date.
The show cause notice was issued to Sharma on April 21, 1983.
The period of absence indicated in the show cause notice is obviously prior to April 20, 1983.
The period of absence prior to the date of amendment cannot be taken into consideration.
When prior to April 20, 1983 the services of person could not be terminat ed on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma.
It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed.
The date of show cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983.
Whole of this period being prior to the date of amendment of regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14.
The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside.
439 When the termination order is set aside by the courts normally the servant becomes entitled to back wages and other consequential benefits.
This case has a chequered history.
From 1976 onwards there has been continuous litiga tion and mistrust between the parties.
The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation.
In view of the facts and circumstances of this case we order that sixty per cent of the back wages be paid to Sharma.
Money already received by Sharma under orders of this Court or the High Court shall be adjusted and the balance paid to him.
If the money already paid to Sharma is more than what we have ordered then there shall be no recovery from him.
Civil Appeal 3154/85 is allowed to the extent indicated above, Civil Appeal 3155/85 filed by the company is dis missed.
C.M.P. 1213/ 88 is dismissed as infructuous.
There shall be no order as to costs.

dataset_name: IN-Abs

summary/full:
According to the Regulation 16.14 of the Jammu & Kashmir Industries Employees Service Rules & Regulations the serv ices of the permanent employee could be terminated if the post is abolished or he is declared medically unfit after giving three month 's notice or pay in lieu thereof and in case of temporary employee one month 's notice or pay in 429 lieu thereof.
This regulation was amended on April 20, 1983 by adding two more grounds namely, if the employee remains on an unauthorised absence or if he takes part in active politics, in such cases the services shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of issue of notice and the management shall be empowered to take a decision without resorting to further enquiries.
Pyare Lal Sharma was employed as a Chemical Engineer by the Jammu & Kashmir Industries Ltd. hereinafter called 'Company '.
The Company issued a show cause notice on 21.4.83 in terms of the added clauses for his unauthorised absence from duty.
As no reply was submitted, the M.D. terminated his services by an order dated 14.6.1983.
Sharma challenged the order of termination by way of a writ petition before the J & K High Court.
Learned Single Judge allowed the Writ Petition on three grounds namely, violation of Rules of Natural Justice, that the Board of Directors having appoint ed Sharma, the M.D. who is subordinate authority could not terminate his services and that the regulation 16.14 was arbitrary and violative of article 14 of the Constitution of India.
The Letters Patent Bench of the High Court dismissed the appeal of the Company but denied backwages to Sharma.
Aggrieved by that order both the Company as well as Sharma came up in appeals before this court.
While allowing the appeal of Sharma partially and dismissing the appeal of the Company, this Court, HELD: That Regulation 16.14 was not arbitrary.
The provision of show cause notice is a sufficient safeguard against arbitrary action.
Under grounds (a) & (b) of the Regulations three months notice or pay in lieu thereof is required.
Regarding grounds (c) & (d) the regulations pro vide for 15 days notice to explain the conduct satisfactori ly and there is no requirement of any other notice or pay in lieu thereof.
[437C D] There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under article 311(1) of the Constitution of India.
An employee of the Company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed.
Since on the date of termination of Sharma 's services the M.D. had the powers of the appointing authority he was legally competent to terminate Sharma 's services.
[437F G] 430 Grounds (c) & (d) in regulation 16.14 exclusively and individually are sufficient to terminate the services of an employee.
Once it is established that an employee remains on an unauthorised absence from duty the only action which can be taken is termination of his services.
Similar is the case when an employee takes part in active politics.
The finding in the termination order cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of his remaining on unauthorised absence from duty.
[437H; 438A B] State of Orissa vs Vidyabhushan Mohapatra, [1963] 1 Supp.
SCR 648 and Railway Board vs Niranjan Singh, , relied upon.
It is a basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed.
The date of show cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from Decem ber 20, 1982 to April 20, 1983.
Whole of this period being prior to the date of amendment of regulation 16.14, the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14.
The Notice served on the appellant was thus illegal and as a consequence the order of termina tion can not be sustained and has to be set aside.
[438F G] When the termination order is set aside by the courts normally the employee becomes entitled to backwages and all other consequential benefits.
In view of the facts and circumstances of this case the court ordered that only sixty percent of the backwages be paid to Sharma.
Moneys already received by Sharma under orders of either this Court or High Court shall be adjusted and the balance paid to him.
If the money already paid to Sharma is more than what has been ordered to be paid now then there shall be no recovery from him.
[439A C]


judgement:
ivil Appeal No. 2098 of 1980.
From the Judgment and Order dated 20.6.1980 of the Andhra Pradesh High Court in Civil,Revision Petition No. 736 of 1980.
K. Madhava Reddy, A.D.N. Rao, and A.Subba Rao for the Appellant.
U.R. Lalit, C.P. Sarthy and A.T.M. Sampath for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal with leave arising out of a judgment of the High Court of Andhra Pradesh illus trates how the "land reform" and the progressive policy of "land to the tiller" could be defeated by vested interests and lukewarm attitude of statutory authorities.
The relevant facts.
The appellants were in possession of certain agricultur al lands as tenants.
After coming into force of the A.P. (T.A.) Tenancy & Agricultural Lands Act, 1950 ("The Act"), they were recognised as protected tenants.
A "protected tenant" means that he is protected from 474 eviction.
If he is dispossessed, the Tehsildar suo motu or on application shall put him in possession.
Rev. Rutar Ford Padri and Vundru Padri were admittedly their landlords.
The appellants had no problem with them.
It seems that they had left the country long ago.
The first respondent claims to be the Property Association of the Baptists Churches (Pvt.) Ltd. ("The Association") The Association does not dispute that the lands were originally purchased by Rev. Rutar Ford Padri and Vandru Padri but it says that they purchased for the benefit of American Baptish Formation Society.
The lands stood transferred to the Association as per order made by the Madras High Court in company petition Nos. 109 and 110 of 1973.
The Association thus claims to be the owner and also says that it is in defacto possession of the lands.
In 1976, the Association issued notice under sec.
19(2) of the Act terminating the appellants ' tenancy.
In the notice, it was alleged that the appellants were self styled tenants.
They have not paid the rents for more than three decades.
They were working off and on as casual labourers.
They were being paid for their services.
There was no other relationship between them and the Association.
It was fur ther alleged that the appellants sub divided the lands and alienated bit by bit to third parties and thereby denied title of the landholder.
They have been, therefore, treated as trespassers.
On May 31, 1976, the appellants received the said notice but did not send any reply.
Thereafter the Association moved the Tehsildar Jangaon under secs.
19(2) read with 28(1) of the Act seeking symbolic possession of the lands from the appellants.
It is interesting to note some of the averments made in that application: "Neither of the above persons had possession during the statutory period under sec.
34 of the Tenancy Act to claim protected tenancy over the said lands.
The said persons by taking undue advantage of the similarity of the names appearing in the Tenancy Registers with respect to the said lands are asserting fictitious and imaginary rights of Protected Tenancy in the above lands.
It is submitted that without any basis or foundation and are made without any notice to the then landlords and even if it is to assume that the said persons are the protected tenants with respect to the above lands, their so called rights have been duly and legally terminated under sec.
19 of the Tenancy Act by giving them notices for the Statutory period of six months 475 which they have received on 31.5.1976 but failed to give reply to it.
The termination of the Protected Tenancy Rights is irrevocable and after the expiry of the statutory period from the said date of receipt of the notice, they are not entitled to claim any rights whatsoever much less Protected Tenancy Rights on the above lands.
" XX XX XX XX XX XX "In all the above lands the appellant is having his own cultivation for the benefit of the said schools and hostels.
Some lands are cultivated by the students themselves under the "Cow Boy" System.
All the above lands are in physical possession of the applicant here in.
But to overcome the legal implications, the applicants are claiming symbolic posses sion pursuant to termination notice.
" Before the Tehsildar, the appellants denied all the above allegations.
They did not recognise the Association as their landlord.
They asserted that they were protected tenants entitled to remain in possession of the lands.
On November 28, 1977, the Tehsildar made an order ac cepting the contentions of the Association.
The Association was held to be the owner of the lands.
The appellants were held to have no right since their tenancy was duly terminat ed.
The appellants appeared to the Joint Collector, Warran gal, who dismissed the appeal with the following observa tions: "It is evident from records that the appellants are not in possession of the suit lands whereas the respondent Association is possessing and enjoying it.
The suit land is covered by structures like Mission School, residential quarters, hostels for students, etc.
and the rest of the land is in possession and occupation of respondent Association and some third persons.
Since the appellants are adversely out of possession, their rights also stands extinguished under sec.
27 of the Limitation Act . .
Since the facts of non payment of rents, assignment of interest in the land personally which constitute the grounds for respondent Association to termi nate the tenancy under sec. 19 of the Act are proved before the lower court and 476 neither rebutted in this appeal nor the find ings of the lower court on these points are challenged, the appeal does not merit any consideration.
" The appellants then approached the High Court with revision petition under sec.
91 of the Act.
The High Court did not do anything better except blessing the observations made by the Collector.
The High Court observed that the appellants were not cultivating the lands personally.
They did not dispute non payment of rent.
Nor denied assignment of interest in the land to third parties.
So Stating, the revision was dismissed.
The contentions.
Counsel for the appellants argued that Rutar Ford Padri and Vundru Padri were the landholders under whom the appel lants were protected tenants.
That has been so recorded in the final record of Agricultural tenancy.
The appellants were not parties to the company petition Nos. 109 and 110 of 1973 in the High Court of Madras.
Nor they had any notice of that proceedings.
Since they were protected tenants, the landholders had no right to transfer the lands to the Asso ciation without first offering the same to them.
It is a mandatory requirement under the Act.
The alienation to the Association even if true, was in contravention of the stat ute and therefore, invalid and unenforceable.
The appellants could not pay the rent to Rutar Ford Padri and Vundru Padri because their whereabouts were not known.
The Association has adopted illegitimate means to dispossess the appellants by setting students against them.
The action of the Associa tion was illegal and an offence punishable under the Act.
With these and other contentions, it was urged that the possession of lands should be restored to the appellants.
Counsel for the Association on the other hand sought to justify the orders under appeal.
We heard counsel for both the parties.
We have carefully perused the material on record.
The relevant statutory provisions: Section 5 of the Act reads: 477 "5.
Persons deemed to be tenants: A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated person ally by the landholder and if such person is not (a) a member of the landholder 's family; or (b) a servant on wages payable in cash or kind, but not in crop share or a hired labourer cultivating the land under the per sonnel supervision of the landholder or any member of the landholder 's family; or (c) a mortgagee in possession.
Provided that if upon an application made by the landholder within one year from the commencement of this Act to the Tehsildar within whose jurisdiction the land is situat ed (a) The Tehsildar declares that such person is not a tenant and his decision is not reversed on appeal or revision, or (b) The Tehsildar refuses to make such declaration but his decision is reverted on appeal or revision such person, shall not be a tenant.
" Section 19 provides for termination of tenancy and so far as material it is as follows: "19.
Termination of tenancy; 19(1) xxxxxxxxxxxx 19(2) The landholder may terminate a tenancy on the grounds that the tenant (a)(i) has failed to pay in any year, within fifteen days from the day fixed under the Andhra Pradesh (Telengana Area) Land Revenue Act 13 17 F) for the payment of the last instalment of land revenue due for the land concerned in that year, the rent of such land for the year; or 478 (ii) xxx xxx xxx xxx (iii) xxx xxx xxx xxx (b) has done any act which is de structive or permanently injurious to the land; or (c) has sub divided the land; or (d) has sub let the land or failed to culti vate the land; (e) personally, or has assigned any interest therein; or (f) has used such land for a purpose other than agriculture; Provided that no tenancy of any land by a tenant shall be terminated on any of the grounds mentioned in this sub section unless the landholder gives six months ' notice in writing intimating his decision to terminate the tenancy and the grounds for such termina tion.
" Section 28 provides relief against termi nation of tenancy for nonpayment of rent.
Section 32 provides for taxing possession of tenanted lands: "32.
Procedure of taking possession: (1) A tenant of an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Teh sildar in writing in the prescribed form for such possession.
(2) No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form.
(3) On receipt of an application under sub sec.
(1) of sub section (2), the Tehsildar shall, after holding an enquiry pass such order thereon as he deems fit.
479 (4) Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub section (1) or sub section (2) as the case may be, shall, without prejudice to his liability to the penalty provided in sec.
96, he liable to forfeiture of the crops, if any, grown on the land to the payment of such costs as may be awarded by the Tehsildar or by the Collector on appeal from the Tehsildar.
" It will be convenient at this stage to read four other sections, namely, sees.
34, 37, 38(D) and 38(E).
They are as follows: Sec. 34, omitting immaterial words provides: "Protected tenants: (1) A person shall, subject to the provisions of sub sees.
(2) and (3) be deemed to be a Protected Tenant in respect of land, if he (a) has held such land as a tenant continuous ly (i) for a period of not less than six years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive) or (ii) for a period of not less than six years immediately preceding the 1st day of January, 1948 or (iii) for a period of not less than six years commencing not earlier than the 1st day of Fasli year 1353 (6th October, 1943) and completed before the commencement of this Act, and (b) has cultivated such land person ally during such period.
" Section 37 is in these terms: "37.
Persons not entitled under sec.
34 deemed in certain circumstances to be protected tenants: (1) Every person who at the com mencement of this Act holds as tenant any land in respect of which no person is deemed to be a protected tenant under sec.
34, shall, on 480 the expiration of one year from such commence ment or, the final rejection of all claims by any other person to be deemed under sec. 34 to be a protected tenant in respect of such land, whichever is later, be deemed to be a protected tenant in respect of such land unless the landholder has before such expiration or final rejection as aforesaid made an application in the pescribed form to the Tehsildar for a declaration that such person is not a protected tenant." (Emphasis Supplied) Section 38(D) reads: "Procedure when landholder intends to sell land to a protected tenant: (1) If the landholder at any time intends to sell the land held by the protected tenant, he shall give a notice in writing of his intention to such protected tenant and offer to sell the land to him.
In case the protected tenant intends to purchase the land, he shall intimate in writing his readiness to do so within six months, from the date of the receipt of such notice.
If there is any dis pute about the reasonable price payable by the protected tenant for the land, the provisions of sub section (3) to (8) of sec.
38 shall apply mutatis mutandis.
(2) If the protected tenant does not exercise the right of purchase in response to the notice given to him by the landholder under sub sec.
(1) such protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person.
On such a purchase by any other person, the protected tenant shall forfeit all his rights in the land save those provided for in sec.
" Section 38(E) provides: "Ownership of lands held by protected tenants to stand transferred to them from a notified date: (1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, con tract or grant to the contrary, the 481 Government may, by notification in the Andhra Pradesh Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their landholder in such area under any provision of this chapter shall, subject to the condition laid down in sub section (7) of sec.
38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands; Provided that where in respect of any such land any proceeding under sec.
19 or sec.
32 or sec.
44 is pending on the date so noti fied, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceed ing.
Explanation: If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tehsil dar as provided in sec.
32, is not in posses sion of the land on the date of the notifica tion issued hereunder, then for the purpose of the sub section, such protected tenant shall, notwithstanding any judgment, decree or order of any Court, or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tehsildar shall notwithstanding anything contained in the said section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant has held the land on the date of such notification.
" This then is the main structure of the Act.
In sum . . 482 (i) The protected tenant has a right to become full owner of the lands in his possession.
He becomes the owner when the Government issues a notification under section 38(E).
We are told that the Government had issued such a notification on October 1, 1973, relating to the District where the lands in question are situated.
It was about three years earlier to termination of the appellants ' tenancy by the Association.
If the appellants had a right to become owners of the tenanted lands, the question of terminating their tenancy would not arise.
(ii) The protected tenant cannot be dispossessed ille gally by the landlord or anybody else.
If so dispossessed, the Tahsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant.
That is the mandate of section 38(E) and the Explanation thereof.
(iii) The landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in ac cordance with the law.
The landholder will have to take recourse to sec.
He must approach the Tahsildar to hold an enquiry and pass such order as he deems fit.
(iv) Section 38(D) prohibits the landholder from alien ating the tenanted land to third parties.
If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant.
The first offer must be given to the protected tenant.
It is only when the pro tected tenant does not exercise the right to purchase, the landholder could sell the land to this parties.
The aliena tion made in contravention of these provisions has no legal effect.
So return to the case.
The contention of the Association that it is in defacto possession and entitled to symbolic possession is unavailable and indeed, unnacceptable.
First ly, there cannot be any dispute in this case about the protected tenancy rights of the appellants.
The revenue documents like Pananipatrika and final record of agricultur al tenancy clearly establish that the appellants were recog nised as protected tenants.
Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they trans ferred the same to the Association.
Therefore, in the light of the statutory provisions to which we have called atten tion, the appellants title cannot be said to be legitimate.
Counsel for the Association also appeared to have antic ipated this inevitable result.
He made an impassioned appeal for leave to 483 withdraw the original petition filed before the Tehsildar.
He perhaps wanted to give quietus to these proceedings, leaving the appellants free to agitate their rights else where.
But we cannot agree with him.
We cannot also accede to his request.
The Association cannot be permitted to take advantage of its high handedness.
It is an exploitation of the exploited.
It is an oppression of the oppressed.
The Court cannot contenance it.
In the result, we allow the appeals.
In reversal of the impugned orders, we direct the Tehsildar to put the appel lants in possession of the agricultural lands in question within one month.
The appellants however, are not interested in taking possession of their lands covered with buildings of the Association.
They want to be fair in spite of their tribulation.
The lands covered with the buildings may, therefore, be excluded.
The Association must pay the costs of the appellants which we quantify of Rs.20,000.
The Collector is directed to ensure that this order is faithfully complied with by the concerned.
R.N.J. Appeal allowed.

summary/full:
The appellants were in possession of certain agricultur al lands as tenants.
Rev. Rutar Ford Padri and Vandru Padri were their landlords who had left the country long ago.
But it was alleged that the land was purchased for the benefit of American Baptist Formation Society and the respondents claim to be the Property Association of the Baptist Churches (Pvt.) Ltd. ( "The Association").
The land stood transferred to the Association as per order made by the Madras High Court in company petition.
The Association thus claimed to be the owner and also in defacto possession of the lands.
In 1975 the Association issued notice u,s 19(2) of the Act terminating the appellant 's tenancy on May 31, 1975.
The appellants received the said notice but did not send any reply.
Thereafter the Association moved the Tehsildar u/ss 19(2) read with 28(1) of the Act for the symbolic possession of the lands from the appellants.
Before the Tehsildar, appellants denied all the allegations and asserted that they were protected tenants.
On Nov., 1977 Tehsildar made an order accepting the contentions of the Association holding that the appellants had no right since their tenancy stood terminated.
Appellants appeal was also dismissed by the Joint Collector, Warrangal.
The appellants then approached the High Court by way of revision petition u/s 91 of the Act.
The High Court dismissed the revision.
Thereafter appellants came up before the Supreme Court by way of Spe cial Leave to appeal.
Accepting the appeal, this Court, HELD: That the contentions of the Association that it is in 473 defacto possession and entitled to symbolic possession is unavailable and indeed unacceptable.
Firstly, there can not be any dispute in this case about the protected tenancy rights of the appellants.
The revenue documents like Panani patrika and final record of Agricultural tenancy clearly establish that the appellants were recognised as protected tenants.
Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vandru Padri first offered the land to the appellants before they transferred the same to the Association.
The Court also observed that the Associ ation cannot be permitted to take advantage of its high handedness.
It is an exploitation of the exploited.
It is an oppression of the oppressed.
The Court cannot countenance it.
[482F G; 483B] Reversing the impugned orders the Court directed the Tehsildar to put the appellants in possession of the agri cultural land in question within one month and ordered that the Association must pay the costs of the appellants quanti fied at Rs.20,000.
[483C D]


judgement:
minal Appeal No. 183 of 1957.
862 Appeal by special leave from the judgment and order dated January 21, 1957, of the Patna High Court in Criminal Appeal No. 34 of 1956, arising out of the judgment and order dated January 23, 1956, of the Court of the 2nd Assistant Sessions Judge at Darbhanga in Sessions Trial No. 52 of 1955.
P. K. Chatterjee, for the appellant.
D. P. Singh, for the respondent.
May 20.
This appeal by special leave is limited to a particular question only, namely, correctness of the conviction of the appellant Galfu Sah for an offence under section 436 read with section 109, Indian Penal Code, and the propriety of the sentence passed thereunder.
The short facts are these.
Some 22 accused persons, of whom the appellant was one, were tried by the learned Assistant Sessions Judge of Darbhanga for various offences under the Indian Penal Code alleged to have been committed by them.
The prosecution case was that on May 16, 1954, in village Dharhara in the district of Darbbanga a, mob of about 40 50 persons, including the accused persons, formed an unlawful assembly, the common objects of which were (1) to dismantle the hut of one Mst.
Rasmani, (2) to set fire to it and (3) to commit assault, if resisted.
One Tetar Mian, who was the chaukidar of village Dharhara, had come to the village at about 10 a.m. to ascertain births and deaths for the purpose of supplying the said information to the officer in charge of the police station for registration.
When this chaukidar reached near the hut of Mst.
Rasmani, who was the widow of one Ganpat, he found the mob engaged in dismantling the hut.
The chaukidar protested.
On this, it was alleged, the appellant hit him with a lathi on the left high.
The chaukidar then raised an alarm and several other persons came there including Ramji, Nebi and Munga Lal.
Thereafter, it was alleged, the appellant ordered another member of the unlawful assembly named Budi to set fire to the hut of Mst.
Rasmani and he further ordered an assault 863 on Ramji and Nebi.
Budi, it was alleged, set fire to the hut and the hut was burnt.
Some members of the mob chased Ramji and Nebi and assaulted them.
The learned Sessions Judge found that all the accused persons before him did form an unlawful assembly and came to the hut of Mst.
Rasmani on the date and at the time alleged, armed with weapons, with the common object of dismantling the hut and of committing an assault on remonstrance.
He held that in prosecution of the aforesaid common objects the offences of rioting and hurt etc., were committed.
So far as the charge of arson was concerned, he held that the act of incendiarism was an isolated act of some members of the unlawful assembly, there being no common object of the entire unlawful assembly to set fire to the hut of Mst.
Rasmani.
He accepted the evidence given before him to the effect that the present appellant had given the order to Budi to set fire to the hut and that Budi had set fire to it in consequence of the abetment.
Accordingly, he convicted the accused persons of various offences under sections 147, 148 and 323 etc.
of the Indian Penal Code.
Budi was further convicted under section 436, Indian Penal Code, and the present appellant under section 436 read with section 109, Indian Penal Code.
There was then an appeal to the High Court of Patna and the learned Judge who heard it found that the evidence against Budi in respect of the allegation that he had set fire to the hut of Mst.
Rasmani was not very satisfactory and he acquitted Budi of the charge under section 436, Indian Penal Code.
So far as the appellant Gallu Sah was concerned, he held that the evidence satisfactorily established that Gallu Sah had given the order to set fire to the hut and the hut was actually set on fire by one member or another of the unlawful assembly.
On this finding, he affirmed the conviction and sentence of the appellant under section 436 read with section 109, Indian Penal Code, the sentence being one of four years ' rigorous imprisonment.
The conviction and sentence of the appellant for the offences under sections 147 and 323, Indian Penal Code, were also affirmed, but the conviction and sentence 110 864 under section 324 read with section 149, Indian Penal Code, were set aside.
We are, however, not concerned with those convictions and sentences and nothing more need be said about them.
We now come to the particular question to which this appeal is limited, namely, propriety of the conviction and sentence passed on the appellant for the offence under section 436 read with section 149, Indian Penal Code.
Mr. P. K. Chatterjee has appeared on behalf of the appellant and has contested the correctness of the conviction on two grounds: firstly, he has submitted that the evidence on which the conviction was based is the same evidence which was given against Budi Sah, and if that evidence was disbelieved with regard to Budi Sah, it should not have been believed against the appellant; secondly, he has submitted that though he does not wish to contend that in every case where the principal offender has been acquitted of the offence, a person said to have abetted the commission of the offence must also be acquitted, there is no evidence in this particular case that whoever set fire to the hut of Mst.
Rasmani did so in consequence of the order of the appellant, assuming that the appellant gave an order to set fire to the hut, and therefore, the conviction of the appellant for abetment is bad in law.
As to the first point, the learned Judge has in his judgment given good reasons why the evidence of the witnesses with regard to Budi Sah was not accepted and why the testimony of the same witnesses was accepted with regard to the appellant.
The witnesses on this point were four persons, namely, Tetar, Ramji, Nebi and Munga Lal.
Tetar, it appears, did not mention in his first information that Budi had set fire to the hut, but he did mention that the appellant had given the order to set fire to the hut A similar infirmity was found in the evidence of Ramji who also failed to tell the sub inspector of police that Budi had set fire to the hut.
Nebi, it appears, could not be cross examined as he died before the trial began in the Court of Session.
So far as Munga Lal was concerned, it was elicited in cross examination that he did not speak at the spot, or subsequently, to any of his co. 865 villagers that Budi had set fire to the hut.
On these grounds the learned Judge did not accept the testimony of the aforesaid four witnesses so far as the allegation against Budi was concerned.
The infirmity which was found in the evidence of the aforesaid four witnesses with regard to Budi Sah was not, however, present so far as the allegation against the present appellant was concerned, and the learned Judge expressly said that the evidence of the aforesaid four witnesses was consistent against the appellant.
We see no violation of any rule of law nor even of prudence in the learned Judge accepting the testimony of some of the witnesses against the appellant, though he did not accept that testimony against Budi Sah.
We now turn to the second point urged on behalf of the appellant.
It must be emphasised here that the learned Judge was satisfied that (1) the appellant gave the order to set fire to the hut and (2) tha the hut was actually set fire to by one member or another of the unlawful assembly, even though the unlawful assembly as a whole did not have any common object of setting fire to the hut of Mst.
Rasmani.
The point taken by learned counsel for the appellant is that when the learned Judge did not accept the evidence of the witnesses that Budi set fire to the hut, there was really no evidence to show that the person who set fire to the hut of Mst.
Rasmani did so in consequence of the order given by Gallu Sah.
The learned Advocate points out that one of the essential ingredients of the offence is that the act abetted must be committed in consequence of the abetment.
It is necessary to read at this stage some of the sections of the Indian Penal Code with regard to the offence of abetment.
Section 107 defines what abetment is.
It says " section 107.
A person abets the doing of a thing, who First.
Instigates any person to do that thing; or Secondly.
Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or 866 Thirdly.
Intentionally aids, by any act or illegal omission, the doing of that thing.
" Section 108 is in two parts and explains who is an abettor in two circumstances (1) when the offence abetted is committed and (2) when an act is committed which would be an offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
We are not concerned with the second circumstance in the present case.
We are concerned with a person who abets the commission of an offence.
Then comes section 109 which is in these terms: " section 109.
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation.
An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
" It seems to us, on the findings given in the case, that the person who set fire to the hut of Mst.
Rasmani must be one of the persons who were members of the unlawful assembly and he must have done so in consequence of the order of the present appellant.
It is, we think, too unreal to hold that the person who set fire to the hut of Mst.
Rasmani did so irrespective, or independently, of the order given by the present appellant.
Such a finding, in our opinion, would be unreal and completely divorced from the facts of the case and it is necessary to add that no such finding was given either by the learned Assistant Sessions Judge who tried the appellant or the learned Judge of the High Court.
As we read the findings of the learned Judge, it seems clear to us that he found that the person who set fire to the hut of Mst.
Rasmani did so in consequence of the abetment, namely, the instigation of the appellant.
It is necessary to refer to two decisions to which our attention has been drawn by the learned Advocate.
867 The decision in Raja Khan vs Emperor (1) related to a case where one Torap Ali was held to be guilty of cheating by personating one Sabdar Faraji and using his name on a surety bond.
The charge against Torap Ali was that he was the principal in the case and the charge against Raja Khan and Cherak Ali Akon, the two appellants in that case, was that they abetted by being present at the personation which was alleged to have been committed by Torap Ali.
Torap Ali was acquitted by the jury.
The learned Judge who presided at the jury trial did not, however, tell the jury what would be the effect of the acquittal of Torap Ali on the charge of abetment against Raja Khan and Cherak Ali.
It was because of this omission that the conviction of Raja Khan and Cherak Ali was set aside.
The head note of the report, however, said in general terms that where a person is charged with having committed an offence and another is charged with having abetted him in the commission thereof, and the prosecution fails to substantiate the commission of the principal offence, there can be no conviction for abetment.
This general statement was considered in a later decision in Umadasi Dasi vs Emperor (2), and it was pointed out that in the majority of cases the aforesaid general statement might bold good; but there are exceptions to the general rule, particularly when there is evidence which satisfactorily establishes that the offence abetted is committed and is committed in consequence of the abetment.
We accordingly hold that the conviction of the appellant for the offence under section 436 read with section 109, Indian Penal Code, is not bad in law.
As to the sentence it does not appear to us that it errs oil the side of severity.
It has been stated that the appellant was released on bail on serving out the sentence passed against him for the offences under sections 147 and 323, Indian Penal Code.
In our opinion, the appeal has no merit and must be dismissed.
The appellant must now surrender himself to serve out the remainder of his sentence.
(1)A.I.R. Appeal dismissed.

summary/full:
The prosecution case was that a mob Of 40 50 persons including the appellant, formed an unlawful assembly with the common objects of dismantling the hut of R, of setting fire to it and committing assault, if resisted; they assaulted some persons, and the appellant ordered one Budi to set fire to the hut and Budi set fire to it with the result that it was burnt down, Twenty two persons including the appellant and Budi, were sent up for trial.
The Sessions judge found that all of them formed an unlawful assembly with the common objects of dismantling the hut and committing assault on remonstrance, but that there was no common object to set fire to the hut and the act of incendiarism was an isolated act of some members of the unlawful assembly.
He found that the appellant had given the order to Budi to set fire to the hut and Budi had set fire to it in consequence of the abetment.
The Sessions judge convicted the accused persons under sections 147, 148 and 323 of the Indian Penal Code.
Budi was further convicted under section 436 and the appellant under section 436 read with section 109 of the Indian Penal Code.
On appeal the High Court set aside the conviction of Budi under section 436 holding it not proved that he had set fire to the hut.
The High Court upheld the conviction of the appellant under section 436 read with section :cog holding that he had given the order to set fire to the hut and that it was actually set on fire by one of the members of the unlawful assembly.
The appellant challenged his conviction under section 436 read with section 109 on the ground that it was not established that the person who set fire to the hut had done so in consequence of the order of the appellant Held, that the appellant was rightly convicted under section 436 read with section 109 of the Indian Penal Code.
On the findings given in the case it must be held that the person who set fire to the hut was one of the members of the unlawful assembly and that he did so in consequence of the order of the appellant.
Raja Khan vs Emperor, A.I.R. 1920 Cal. 834 and Umadasi Dasi vs Emperor Cal. 112, referred to.


judgement:
Criminal Appeal Nos. 49 & 24 of 1978.
From the Judgment and Order dated 8.4.1977 of the Madhya Pradesh High Court in Misc.
Criminal Nos. 34 & 35 of 1977.
Vrijendra Jain, Ms. Hima Kohali and Umanath Singh for the Appellant.
The Judgment of the Court was delivered by NATARAJAN, J.
In both the appeals by special leave, a common question of law is involved and hence they were heard together and are being disposed of by a common judgment.
In Crl.
Appeal No. 49/78, a lorry driver and two cleaners and in Crl.
Appeal No. 24/78 a lorry driver and a coolie were prosecuted for exporting fertilisers without a permit there for from Madhya Pradesh to Maharashtra in contravention of the Fertilisers (Movement Control) Order, 1973 (for short the F.M.C. Order) read with Sections 3 and 7 of the Essen tial Commodities Act, 1955, (for short the E.C. Act).
In both 552 the cases, the Trial Magistrate held that the prosecution had failed to prove that the accused were attempting to export the fertilisers and he therefore acquitted them.
On the State preferring appeals against acquittal under Section 378(3) Criminal Procedure Code, the High Court declined to grant leave.
Hence the State has preferred these appeals by special leave.
The facts in the two cases are identical.
In Crl.
Appeal No. 49/78, a truck bearing registration No. M.P. 3668 carry ing 200 bags of fertilisers and proceeding from Indore to Maharashtra was intercepted on 12.2.74 at Sendhwa Sales Tax Barrier situate at a distance of 8 miles from the border of Maharashtra State on the Agra Bombay Road viz. National Highway No. 3.
The lorry driver was in possession of in voices and other records but they did not include a permit issued under the F.M.C. Order.
In Crl.
Appeal No. 24/78, a lorry bearing registration No. MPM 4866 proceeding from Indore to Maharashtra was similarly intercepted on 30.10.1973 at Sendhwa Sales Tax Barrier.
The truck was carrying 170 bags of fertilisers.
The documents seized from the lorry driver contained the invoices and other records but they did not include a permit issued under the F.M.C. Order.
Consequently, the lorry driver and the cleaners in the first case and the lorry driver and the coolie in the second case were prosecuted under the F.M.C. Order read with Sections 3 & 7 of the E.C. Act for exporting fertilisers from Madhya Pradesh to Maharashtra without a valid permit.
In both the cases, the accused did not deny the factum of the transport of fertiliser bags in their respective lorries or the interception of the lorries and the seizure of the fertiliser bags or about the fertiliser bags not being covered by a permit issued under the F.M.C. Order.
The defence however was that they were not aware of the contents of the documents seized from them and that they were not engaged in exporting the fertiliser bags from Madhya Pradesh to Maharashtra in concious violation of the provisions of the F.M.C. Order.
The Trial Magistrate as well as the High Court have taken the view that in the absence of the evidence of an employee of the transport company, there was no material in the cases to hold that the fertiliser bags were being ex ported to Maharashtra from Madhya Pradesh.
The Trial Magis trate and the High Court refused to attach any significance or importance to the invoices recovered from the lorry drivers because the drivers had said they had no knowledge of the contents of the documents seized from them.
The Trial Magistrate and the High Court have further opined that the materials on record would, at best, make out only a case of preparation by the accused to 553 commit the offence and the evidence fell short of establish ing that the accused were attempting to export the fertilis er bags from Madhya Pradesh to Maharashtra in contravention of the FM.C. Order.
As we have already stated, the respondents admit that the trucks in question were intercepted at Sendhwa Sales Tax Barrier on 12.2.74 and 30.10.73 and they were carrying 200 bags and 170 bags of fertilisers respectively and the con signments were not covered by export permits issued under the F.M.C. Order.
In such circumstances what fails for consideration is whether the prosecution must prove mens rea on the part of the accused in exporting are fertiliser bags without a valid permit for securing their conviction and secondly whether the evidence on record established only preparation by the accused for effecting export of fertilis er bags from the State to another without a permit therefor and not an attempt to export fertiliser bags.
For answering these questions, it is necessary to refer to some of the relevant provisions in the Fertiliser (Movement Control) Order, 1973 framed in exercise of the powers conferred under Sec.
3 of the E.C. Act.
In the said Order, the relevant provisions to be noticed are clauses 2(a) and 3.
Definitions In this Order unless the context otherwise requires, (a) "Export" means to take or cause to be taken out of any place within a State to any place outside that State"; "3.
Prohibition of Export of Fertilisers, No person shall export, or attempt to export, or abet the export or any fertilisers from any State." (Emphasis supplied).
Section 7 of the provides the penalty for contravention of any order made under Sec tion 3 and reads as under: "7.
Penalties.
(1) If any person contravenes whether know ingly, intentionally or otherwise any order made under Sec.
3 (a) he shah be punishable (Emphasis supplied) 554 (i) in the case of an order made with reference to clause (h) or clause (i) of sub sec.
(2) of that Sec., with impris onment 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 may extend to five years and shall also be liable to fine; XX XX XX Taking up the first question for consideration, we may at once state that the Trial Magistrate and the High Court have failed to comprehend and construe Section 7(1) of the Act in its full perspective.
The words used in Sec.
7(1) are "if any person contravenes whether knowingly, intentionally or otherwise any Order made under Sec. 3".
The Section is comprehensively worded so that it takes within its fold not only contraventions done knowingly or intentionally but even otherwise i.e. done unintentionally.
The element of mens tea in export of fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a person for contravention of an order made under Sec. 3 if the factum of export or attempt to export is established by the evidence on record.
The sweep of Sec.
7(1) in the light of the changes effected by the Legislature has been considered by one of us (Ahmadi, J.) in Swastik Oil Industries vs State, (Special Criminal Application) 1978 (19) Gujarat Law Reporter 117.
In that case, M/s. Swastik Oil Industries, a licencee under the Gujarat Groundnut Dealers Licensing Order, 1966 was found to be in possession of 397 tins of groundnut oil in violation of the conditions of the licence and the provisions of the Licensing Order.
Consequently, the Collector ordered confis cation of 100 tins of groundnut oil from out of the 397 tins under Sec.
6(1) of the .
On the firm preferring on appeal, the Appellate Authority viz Additional Sessions Judge, Kaira at Nadiad held "that cl.
(11) of the Licensing Order had been contravened but such contravention was not deliberate as it arose out of a mere bona fide misconception regarding the true content of cl.
(11) of the Licensing Order.
" The Additional Sessions Judge therefore held that the contravention was merely a technical one and not a wilful or deliberate one and hence the confis cation of 100 tins of groundnut oil was too harsh a punish ment and that confiscation of only 25 tins would meet the ends of justice.
Against this order, the firm preferred a petition under Arti 555 cle 227 of the Constitution to the High Court.
Dealing with the matter, the High Court referred to Sec. 7 of the Act as it originally stood and the interpretation of the Section in Nathu Lal vs State of Madhya Pradesh, AIR 1966 SC 43 wherein it was held that an offence under Sec. 7 of the Act would be committed only if a person intentionally contravenes any order made under Sec.
3 of the Act as mens rea was an essen tial ingredient of the criminal offence referred to in Sec. 7.
The High Court then referred to the change brought about by the Legislature to Sec.
7 after the decision in Nathu Lal 's case (supra) was rendered by promulgating Ordinance 6 of 1967 which was later replaced by Act 36 of 1967 and the change effected was that with effect from the date of the Ordinance i.e. September 16, 1967 the words "whether know ingly, intentionally or otherwise" were added between the word "contravenes" and the words and figure "any order made under Sec. 3".
Interpreting the amendment made to the Sec.
the High Court held as follows: "The plain reading of the Section after its amendment made it clear that by the amendment, the Legislature intended to impose strict liability for contravention of any order made under Sec. 3 of the Act.
In other words, by the use of the express words the element of mens tea as an essential condi tion of the offence was excluded so that every contravention whether intentional or otherwise was made an offence under Sec. 7 of the Act.
Thus by introducting these words in Sec. 7 by the aforesaid statutory amendment, the Legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathu Lal 's case.
" The High Court thereafter proceeded to consider the further amendment effected to Sec. 7 of the Act pursuant to the recommendation of the Law Commission in its 47th Report.
Though for the purpose of the two appeals on hand, it would be enough if we examine the correctness of the view taken by the High Court in the light of the words contained in Sec. 7 of the Act as they stood at the relevant time viz a contravention made of an order made under Sec.
3 "whether knowingly, intentionally or otherwise", it would not be out of place if we refer to the further change noticed by the High Court, which had been made to Sec. 7 by Parliament by an Ordinance which was later replaced by Amending Act 30 of 1974.
The High Court has dealt with the further amendment made to Sec.
7(1) in 556 the Swastik Oil Industries as follows and it is enough if we extract the same. "But again in the year 1974, pursuant to the recommendations of the Law Commission in their 47th Report and the experi ence gained in the working of the Act, by an Ordinance, Sec. 7 of the Act was amended whereby the words "whether knowing ly, intentionally or otherwise" which were introduced by Amending Act 36 of the 1967 were deleted and the material part of sec.
7(1) restored to its original frame and a new provision in Sec.
10 of the Act was added which reads as under: "10. C(I) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation: In this Section, "culpable mental state" in cludes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
(2) For the purposes of this Section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is estab lished by a preponderance of probability.
" This Ordinance was replaced by Amending Act 30 of 1974.
The effect of this subsequent change in the statute is that a presumption of guilty mind on the part of the accused in respect of offences under the Act, including Sec. 7, would arise and it would be open to the accused to rebut the same.
As the law now stands in any prosecution under the Act which requires a culpable mental state on the part of the accused, the 'same must be presumed unless the accused proves that he had no such mental state with respect to the offence for which he is tried.
Now according to the explanation to Sec.
10(c) culpable mental state includes intention, motive, knowledge of a fact and belief in or reason to believe a fact.
The degree of proof expected to rebut the presumption has been indicated by sub sec.
(2) thereof 557 which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will not be sufficient to prove its existence by preponderance of probability.
Thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that required for the proof of a fact by the prosecution.
There can therefore be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Nathu Lal 's case (supra) and the same no longer holds the field." Reverting back to Sec.
7 of the Act as amended by Act 36 of 1967, it is manifestly seen that the crucial words "whether knowingly, intentionally or otherwise" were insert ed in Sec. 7 in order to prevent persons committing offences under the Act escaping punishment on the plea that the offences were not committed deliberately.
The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation.
To the same end, a further amendment came to be made in 1974, with which we are not now directly concerned but reference to which we have made in order to show the scheme of the Act and the amplitude of Sec. 7 at different stages.
We are in full agreement with the enunciation of law as regard Sec.
7 of the Act in Swastik Oil Industries (supra).
We therefore hold that.
the Trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the F.M.C. Order read with Sec. 3 and 7 of the E.C. Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra.
As regards the second question, we find that the Trial Magistrate and the High Court have again committed an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from Madhya Pradesh to Maharashtra in contravention of the F.M.C. Order and they cannot be found guilty of having attempted to export the fertiliser bags.
In the commission of an offence there are four stages viz intention, prepara tion, attempt and execution.
The first two stages would not attract culpability but the third and fourth stages would certainly attract culpability.
The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from Madhya Pradesh to Maharash tra.
558 The trucks were coming from Indore and were proceeding towards Maharashtra.
The interception had taken place at Sendhwa Sales Tax Barrier which is only 8 miles away from the border of Maharashtra State.
If the interception had not taken place, the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharshtra State in contravention of the F.M.C. Order.
It was not therefore a case of mere preparation viz. the re spondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharash tra.
They were cases where the bags had been procured and were being taken in the lorries under cover of sales in voices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sendhwa Sales Tax Barrier.
Surely, no one can say that the respondents were taking the lorries with the fertiliser bags in them for innocuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh State itself.
They were therefore clearly cases of attempted unlawful export of the fertiliser bags and not cases of mere preparation alone.
We have already seen that Clause 3 forbids not only export but also attempt to export and abetment of export of any fertiliser from one State to another without a permit.
It would therefore be wrong to view the act of transporta tion of the fertiliser bags in the trucks in question by the respondents as only a preparation to commit an offence and not an act of attempted commission of the offence.
Hence the second question is also answered in favour of the State.
In the light of our pronouncement of the two questions of law, it goes without saying that the judgments of the Trial Magistrate and the High Court under appeal should be declared erroneous and held unsustainable.
The State ought to have been granted leave under Sec.
378(3) Cr.
P.C. and the High Court was wrong in declining to grant leave to the State.
However, while setting aside the order of acquittal in each case and convicting the respondents for the offence with which they were charged we do not pass any order of punishment on the respondents on account of the fact that more than fifteen years have gone by since they were acquit ted by the Trial Magistrate.
The learned counsel for the appellant State was more interested in having the correct position of law set out than in securing punishment orders for the respondents in the two appeals for the offence committed by them.
Therefore, while allowing the appeals and declaring that the 559 Trial Magistrate and the High Court were wrong in the view taken by them of the Fertilizer (Movement Control) Order read with Sections 3 and 7 of the , we are not awarding any punishment to the respondents for the commission of the aforesaid offence.
T.N.A. Appeals allowed.

summary/full:
The respondents who were lorry drivers, cleaners and coolie were carrying fertiliser bags in trucks from Indore (Madhya Pradesh) to Maharashtra.
They were intercepted at a Sales Tax Barrier near the border of Maharashtra State.
The documents seized from the lorry drivers contained the in voices and other records, but did not include permits issued under the Fertilisers (Movement Control) Order, 1973.
Conse quently, they were prosecuted under the Fertiliser (Movement Control) Order, 1973 read with sections 3 and 7 of the for exporting fertilisers from Madhya Pradesh to Maharashtra without a valid permit.
The Trial Court acquitted the respondents holding that: (i) the prosecution had failed to prove mens rea on the part of the respondents, and (ii) the act of transportation of the fertiliser bags in trucks by the respondents constituted merely preparation and not attempted commission of the offence.
Appeals were tided by the State against the acquittal under section 378(3) of the Cr.
P.C. 1973 but the High Court declined to grant leave.
Hence these appeals by the State.
Allowing the appeals, 550 HELD: 1.
The words used in section 7(1) are "if any person contravenes whether knowingly, intentionally or otherwise any Order made under section 3".
The section is comprehensively worded so that it takes within its fold not only contraventions done knowingly or intentionally but even otherwise, i.e., done unintentionally.
The element of mens rea in export of fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a person for contravention of an order made under section 3 if the factum of export or attempt to export is established by the evidence on record.
[554C D] 1.1.
The crucial words "whether knowingly, intentionally or otherwise" were inserted in section 7 in order to prevent persons committing offences under the Act escaping punish ment on the plea that the offences were not committed delib erately.
The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation.
[557C] 1.2.
Therefore, the Trial Court and the High Court committed an error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the Fertiliser (Movement Control) Order, 1973 read with sections 3 and 7 of the because the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra.
[557E] Swastik Oil Industries vs State, [1978] 19 Guj.
Law Reporter 1117; approved.
Nathu Lal vs State of Madhya Pradesh, A.I.R. 1966 S.C. 43, referred to. 2.
In the commission of an offence there are four stages viz. intention, preparation, attempt and execution.
The first two stages would not attract culpability but the third and fourth stages would certainly attract culpability.
[557G] 2.1.
The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from Madhya Pradesh to Maharashtra.
If the inter ception had not taken place at the Sales Tax Barrier the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the Fertiliser (Movement Control) Order, 1973.
It was not therefore a case of mere preparation viz. the resport 551 dents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharash tra.
They were cases where the bags had been procured and were being taken in the lorries under cover of sales in voices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sales Tax barrier.
Surely, no one can say that the respondents were taking the lorries with ferti liser bags in them for innocuous purposes or for more thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh State itself.
The acts of transportation of the fertiliser hags in the trucks in question by the respondents were therefore clearly cases of attempted unlaw ful export of the fertiliser bags and not cases of mere preparation alone.
[557H, 558A B C D] [Section 7 of the was again amended in 1974 and the words "whether knowingly, intentionally or otherwise" were deleted and a new provision in section 10 of the Act was added.
The effect of this amendment is that a presumption of guilty mind on the part of the accused in respect of offences under the Act, includ ing Sec. 7, would arise and it would be open to the accused to rebut the same.]