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Tuesday, March 31, 2015

Section 138 of the Negotiable Instruments Act - Cheque was issued by and on behalf of the firm - Notice issued about the dishonor of cheque - after completion of Trial - pending the case A2 died on 2-12-2006 - Trail court dismissed the complaint against the A1 firm and A2 as abated and after hearing the A 3 and A4 dismissed the case on merits - Whether Firm A1 too abated when it was represented by A3 and A4 other partners ? for the purpose of imposing fine of double the amount, the death of A2 does not abate the firm as other partners can continue the firm on the death of one of the partner as per law - Remanded the matter to decide the case on the point whether the firm dissolved or not with reference to the D-1 partnership deed already exhibited, from death of A-2 one of the partners and if not dissolved for nothing to abate to decide the liability of A-1 firm though not A-3 representing A-1 firm personally liable, to the liability of imposing fine against the firm in the event of the debt is proved legally enforceable - 2015 A.P.msklawreports



the Complainant is a merchant and doing
cotton business, A-1 is cotton merchant, A-2 to A-4 are its partners .                                                      they used to purchase cotton from several persons like complainant on credi
from 12.06.1998 onwards accused are
maintaining khata with the complainant in the course of their
business, that the said Khata is running and mutual
As per the khata
the accused has to pay an amount of Rs.4,89,655/- to the
complainant as on 05.12.2000 and the complainant demanded the   
accused several times to pay the said amount, that the accused gave
cheque for Rs.4,76,552/- and the same was when presented returned 
dishonoured.  
The complainant issued a statutory legal notice and the
accused got issued reply and did not pay the amount, for which the
complainant presented the complaint.

The trial Court recorded that the case against

Accused Nos.1 and 2 was abated on 05.12.2006, for death of A-2 who 
was representing A-1 firm and after hearing both sides and after
perusal of material and evidence on record, the trial Court held the
other two partners of the firm A-3 and A-4 not guilty for the offence
punishable under Section 138 of the Negotiable Instruments Act and
accordingly they were acquitted for said offence.
High court held that 
Thus, the trial Court ought not to have recorded the
proceedings against A-1 firm as abated, but for recording A-3 being
one of the partners on record to represent A-1 firm and once, A-1
firm is there on record, though not liable for imprisonment of A-3
representing A-1 firm, fine can be imposed to recover for not
exceeding double the value of the cheque amount. 
In particular for,
either from P.W-1 cross-examination or from D.W-1 evidence with
reference to Exs.P-1, P-4, P-9 and P-10, there is not much in dispute
of Ex.P-1 cheque issued by the firm duly signed by A-2 as its
authorised partner to make the firm responsible for the dishonor as
firm was also served with notice under Ex.P-4 acknowledged by A-2 in
his individual capacity also under Ex.P-5 and P-6 apart from A-3 and
A-4 under Exs.P-7 and P-8 acknowledgements referred supra.  
To that
extent as act of Court shall prejudice no man not sanctioned by law,
the matter requires remittance for re-trial to decide fresh, the
liability of A-1 entity by setting aside the trial Courts observation of
the prosecution against A-1 is abated from death of A-2 for still A-3
partner of A-1 firm continuous on record though as observed by the
trial Court and uphold by this Court, A-3 personally not made liable
equally A-4; A-1 if at all to be made liable being a firm to represent
by other partners for the reason of A-3 as partner of the firm on
record to represent A-1.  

   In the result, while upholding the trial Courts acquittal
judgment of A-3 and A-4, however by setting aside the recording of
abatement of the prosecution against A-1 firm by remitting the
matter to the trial Court for re-trial in directing to decide afresh by
arraying A-3 as representing A-1 firm as one of the partners for
continuation of the prosecution of A-1 firm to decide whether the
firm dissolved or not with reference to the D-1 partnership deed
already exhibited, from death of A-2 one of the partners and if not
dissolved for nothing to abate to decide the liability of A-1 firm
though not A-3 representing A-1 firm personally liable, to the liability
of imposing fine against the firm in the event of the debt is proved
legally enforceable.2015 A.P.msklawreports

question of jurisdiction = the principal Civil Court locating in Hyderabad cannot be a Court within the meaning of Section 2 (1) (e) of the aforesaid Act as no part of cause of action has arisen nor the respondents are having place of business within the territorial limit of this State. It would appear from said tripartite agreement that the same was executed and entered into at Bangalore. Works in terms of the contract is to be executed at Bangalore. Hence, performance of tripartite agreement has to be done in Bangalore. Nothing has happened in Hyderabad except the 2nd respondent is having his place of business at Hyderabad. It is settled position of law that by agreement of the parties jurisdiction cannot be conferred upon any Court which does not have under law. Admittedly, the agreement has been made and entered into at Bangalore, works which are to be performed in terms of bipartite agreement initially, now tripartite one at Bangalore, and performance and non-performance therefore, necessarily will take place at Bangalore. It is however argued that I can entertain this application by virtue of clause (b) of Section 20 of Code of Civil Procedure as one of the respondents carries on business at Hyderabad. This provision cannot be invoked having regard to approach of the application wherein seat of arbitration being Hyderabad is sought to be asserted, and no leave as required under clause (b) of Section 20 of C.P.C. has been asked for. In view of discussion, as above, no answer is called for as far as third question is concerned. In view of discussion above, I dismiss this application with liberty to file before appropriate Honble Chief Justice or designated Judge, as the case may be, of the High Court.-2015 A.P. MSK LAWREPORTS



The applicant is wholly owned subsidiary of
Solentanche-Freyssinet Group, and is dealing in mechanically
stabilized Reinforced Earth Retaining Walls/Precast Arch
Structures, etc.  
The 2nd respondent which was formerly known as
Maytas Infra Limited was awarded a contract, dated 29th February,
2008, for construction of boundary walls, roads, drains and earth
filling, by Bangalore Metro Rail Project at Bayappanhalli Depot,
Bangalore.  
Thereafter, on 28th March, 2008, it, having faced
difficulties in completing works of the principal contract as per
schedule, entered into a sub-contract with the applicant for the
works of construction of reinforced earth retaining wall of the main
contract on back to back basis.
 Thereafter, tripartite agreement
was executed on 3.6.2009 amongst the applicant on one hand and  
the respondents 1 & 2 on the other hand. 
 By this tripartite
agreement, it was agreed mutually that all the bills, including taxes
for materials supplied and services provided by the applicant
settled till 28th February, 2009 would be raised and submitted to
the 2nd respondent on 1st March, 2009 and to be paid by the 1st
respondent. 
In 
the contract dated 28.03.2008 the parties thereto by its clause-12
agreed to resolve the disputes arising out thereof of by the
mechanism of arbitration and the venue of the same would be in
Hyderabad only.  
Since by the tripartite agreement this arbitration
clause has also been accepted and incorporated therein, all the
parties to the tripartite agreement are bound by it.    
In spite of
making request to both the respondents for invoking arbitration
clause, no steps have been taken for appointment of arbitrators.

raised question of jurisdiction =  the principal Civil Court locating in Hyderabad cannot be
a Court within the meaning of Section 2 (1) (e) of the aforesaid Act as no part of cause of action has arisen nor the respondents are having place of business within the territorial limit of this State.  
It would appear from said tripartite agreement that the same was executed and entered into at  Bangalore.  
Works in terms of the contract is to be executed at Bangalore.  
Hence, performance of tripartite agreement has to be done in Bangalore. 
 Nothing has happened in Hyderabad except the  2nd respondent is having his place of business at Hyderabad. 

High court held that

It is settled position of law that
by agreement of the parties jurisdiction cannot be conferred upon any Court which does not have under law. 
 In any view of the matter, this forum selection clause is not sought to be enforced by the applicant.  
Much emphasis has been placed to take benefit of clause-12 quoted above read with judgment of Constitution Bench.
The Supreme Court in case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (1 supra) 
 as per Judgment,  it appears that under the Arbitration and Conciliation Act, 1996 two courts will have jurisdiction to deal with the matter; 
one is natural forum, which would have jurisdiction
under Section  2 (1) (e) of the aforesaid Act, and
 another one within whose jurisdiction arbitration takes place.
the Legislature mindfully clarified by making a provision in clause (b) of sub-section (12) of Section 11 read with Section 2 (1) (e) of the Act, 1996.  
 It would appear that provision of Section 2 (1) (e) of the Act,
1996 has been adopted by clause (b) of sub-section (12) of Section 11 by way of reference not by way of incorporation.
Therefore, Chief Justice or designated person or institution has to be construed strictly as being only one of the High Court within whose jurisdiction principal Civil Court is situated and which could have decided the matter, if the same had been the subject matter of
a suit, not any other High Court Chief Justice.   Logically, jurisdiction of principal Civil Court has to be traced from the provisions of Sections 16 to 20 of the Code of Civil Procedure only.
Moreover, even if, for arguments sake, above statement of law in paragraph-96 of the judgment is applied, the Constitution Bench has not ruled out applicability of the concept of forum conveniens.
I find here, applying this principle, nothing has taken
place in Hyderabad.  
Admittedly, the agreement has been made and  entered into at Bangalore, works which are to be performed in terms of bipartite agreement initially, now tripartite one at Bangalore, and performance and non-performance therefore,  necessarily will take place at Bangalore.   
 It is however argued that I can entertain this application by virtue of clause (b) of Section 20
of Code of Civil Procedure as one of the respondents carries on business at Hyderabad.  
This provision cannot be invoked having regard to approach of the application wherein seat of arbitration being Hyderabad is sought to be asserted, and no leave as required under clause (b) of Section 20 of C.P.C. has been asked for.
In view of discussion, as above, no answer is called for as far as third question is concerned.

In view of discussion above, I dismiss this application with liberty to file before appropriate Honble Chief Justice or designated Judge, as the case may be, of the High Court. -2015 A.P.MSKLAWREPORTS

Arbitration and Conciliation Act, 1996 two courts will have jurisdiction to deal with the matter; one is natural forum, which would have jurisdiction under Section 2 (1) (e) of the aforesaid Act, and another one within whose jurisdiction arbitration takes place. - 2015 S.C.(2012) MSKLAWREPORTS



      Section 2(1)(e) of the Arbitration Act, 1996 reads as under:
   2. Definitions.(1) In this Part, unless the context otherwise
requires 
   (a)-(d)      *       *       *
   (e) Court means the Principal Civil Court of Original
Jurisdiction in a district, and includes the High Court in exercise
of its ordinary original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter of the arbitration
if the same had been the subject-matter of a suit, but does not
include any civil court of a grade inferior to such Principal Civil
Court, or any Court of Small Causes;

We are of the opinion, the term subject-matter of the arbitration
cannot be confused with subject-matter of the suit. 
The term
subject-matter in  Section 2(1)(e) is confined to Part I. It has a
reference and connection with the process of dispute resolution.
Its purpose is to identify the courts having supervisory control
over the arbitration proceedings. Hence, it refers to a court
which would essentially be a court of the seat of the
arbitration process. 
In our opinion, the provision in Section
2(1)(e) has to be construed keeping in view the provisions in
Section 20 which give recognition to party autonomy. Accepting
the narrow construction as projected by the learned counsel for
the appellants would, in fact, render Section 20 nugatory. 
In our
view, the legislature has intentionally given jurisdiction to two
courts i.e. the court which would have jurisdiction where the
cause of action is located and the courts where the arbitration
takes place. 
This was necessary as on many occasions the  
agreement may provide for a seat of arbitration at a place which
would be neutral to both the parties. 
Therefore, the courts where
the arbitration takes place would be required to exercise
supervisory control over the arbitral process. For example, if the
arbitration is held in Delhi, where neither of the parties are from
Delhi, (Delhi having been chosen as a neutral place as between a
party from Mumbai and the other from Kolkata) and the tribunal
sitting in Delhi passes an interim order under Section 17 of the
Arbitration Act, 1996, the appeal against such an interim order
under Section 37 must lie to the courts of Delhi being the courts
having supervisory jurisdiction over the arbitration proceedings
and the tribunal. 
This would be irrespective of the fact that the
obligations to be performed under the contract were to be
performed either at Mumbai or at Kolkata, and only arbitration is
to take place in Delhi. 
In such circumstances, both the courts
would have jurisdiction i.e. the court within whose jurisdiction the
subject-matter of the suit is situated and the courts within the
jurisdiction of which the dispute resolution i.e. arbitration is
located. - 2015 S.C.(2012) MSK LAWREPORTS
         

Monday, March 30, 2015

In the instant case the factum of rash and negligent driving has been established. This court has been constantly noticing the increase in number of road accidents and has also noticed how the vehicle drivers have been totally rash and negligent. It seems to us driving in a drunken state, in a rash and negligent manner or driving with youthful adventurous enthusiasm as if there are no traffic rules or no discipline of law has come to the centre stage. The protagonists, as we perceive, have lost all respect for law. A man with the means has, in possibility, graduated himself to harbour the idea that he can escape from the substantive sentence by payment of compensation. Neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, worse then death. Such developing of notions is a dangerous phenomenon in an orderly society. Young age cannot be a plea to be accepted in all circumstances. Life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months. 18. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a non-challant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re-look and re-visit the sentencing policy in Section 304A, IPC. We say so with immense anguish. 19. Resultantly, the appeal is allowed to the extent indicated above and the respondent be taken into custody forthwith to suffer the remaining period of sentence.

 

                     IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.520 OF 2015
               [Arising out of S.L.P. (Crl.) No. 5825 of 2014]




State of Punjab                              ... Appellant

                                   Versus

Saurabh Bakshi                                     ... Respondent




                               J U D G M E N T


Dipak Misra, J.


Long back, an eminent thinker and author, Sophocles, had to say:
           "Law can never be enforced unless fear supports them."

      Though the aforesaid statement was made centuries  back,  it  has  its
pertinence, in a way, with the enormous vigour, in today's society.   It  is
the duty of every right-thinking citizen to show veneration to law  so  that
an orderly, civilized and peaceful society emerges.  It has to be  borne  in
mind that law is averse to any kind of chaos.  It is totally  intolerant  of
anarchy.  If any one defies law, he has to face the wrath of law,  depending
on the concept of proportionality that the law recognizes.  It can never  be
forgotten that the purpose of  criminal  law  legislated  by  the  competent
legislatures,  subject  to   judicial   scrutiny   within   constitutionally
established parameters, is to  protect  the  collective  interest  and  save
every  individual  that  forms  a  constituent  of   the   collective   from
unwarranted hazards.  It is sometimes said in an egocentric and  uncivilised
manner that law cannot bind the individual actions which  are  perceived  as
flaws by the large body of people, but, the truth is  and  has  to  be  that
when the law withstands  the  test  of  the  constitutional  scrutiny  in  a
democracy, the individual notions are  to  be  ignored.   At  times  certain
crimes assume more accent and gravity depending on the nature and impact  of
the crime on the society.  No court should ignore the same being  swayed  by
passion of mercy.   It is the obligation of the court to  constantly  remind
itself that the right of the victim, and be it said,  on  certain  occasions
the person aggrieved as well as the society at large can be  victims,  never
be marginalised.  In  this  context  one  may  recapitulate  the  saying  of
Justice Benjamin N. Cardizo "Justice, though due to the accused, is  due  to
the accuser too".   And,  therefore,  the  requisite  norm  has  to  be  the
established principles laid down in precedents.  It is neither to be  guided
by a sense of sentimentality nor to  be  governed  by  prejudices.   We  are
constrained to commence with this prologue because we are required  to  deal
with the concept of adequacy of quantum of  sentence  imposed  by  the  High
Court under Section 304A of the Indian Penal Code  (IPC)  after  maintaining
the conviction of the respondent of the said offence as the prosecution  has
proven the charge that the respondent has caused death  of  two  persons  by
rash and negligent driving of a motor vehicle.
2.    The facts which are necessitous to be stated  are  that  on  14.6.2007
Jagdish Ram and his nephew, Shavinder  Kumar  @  Tinku,  sister's  son,  had
proceeded from Sangrur to Patiala in their Maruti car  bearing  registration
PB-11-M-8050.  The said  vehicle  was  also  followed  by  Ramesh  Chand  in
another Maruti car bearing registration no. PB-09-C-6292.  Be it noted  that
all of them had gone to house of one Des Raj at Sangrur in  connection  with
matrimonial alliance of Shavinder Kumar alias Tinku.  The vehicle  that  was
driven by Tinku was ahead of Ramesh's at a distance of 25/30 kadams.   After
they reached some distance ahead of the bus stand  village  Mehmadpur  about
2.00 p.m. an Indica car bearing registration no. HR-02-6800  came  from  the
opposite side at a very high speed and  the  driver  of  the  said  car  hit
straightaway the car of Jagdish and dragged it to  a  considerable  distance
as a result of which  it  fell  in  the  ditches.   Ramesh  Chand,  who  was
following in his car, witnessed  that  his  brother-in-law  and  nephew  had
sustained number of injuries and their condition was  critical.    A  police
ambulance came to the spot and the injured persons were  taken  to  Rajindra
Hospital, Patiala where Jagdish and Shavinder Kumar succumbed  to  injuries.
In view of the said incident as FIR was lodged by Ramesh Chand,  brother-in-
law  of  Jagdish  and  accordingly  a  crime  under  Section  279/304A   was
registered against the respondent  for  rash  and  negligent  driving.   The
learned  trial  Magistrate,  Patiala  framed  charges   for   the   offences
punishable under Section 279/304A IPC to which the  respondent  pleaded  not
guilty and claimed to be tried.   The prosecution  in  order  to  prove  its
case examined six witnesses.  The learned Addl. Chief  Judicial  Magistrate,
Patiala vide judgment and order dated  23.4.2012  convicted  the  respondent
for the offences punishable under Section 304A  IPC  and  sentenced  him  to
undergo rigorous imprisonment for a period of one year and  pay  a  fine  of
Rs.2000/- with a default clause.  On an appeal being preferred, the  learned
Addl. Sessions Judge, Patiala dismissed the appeal  by  judgment  and  order
dated 6.9.2013.
3.    As the factual matrix would unveil the  respondent  being  grieved  by
the aforesaid conviction and the sentence preferred  Criminal  Revision  No.
2955 of 2013 and the High Court while disposing off  the  Criminal  Revision
addressed to the quantum of sentence and in that context observed that:-
"...the legal heirs of Jagdish Ram have been awarded a sum of  Rs.7,30,000/-
as compensation by the  MACT  and  Rs.12,07,206/-  to  the  legal  heirs  of
Swinder Kumar @ Tinku by the MACT.  The FAO Nos. 5329 and 5330  are  pending
in this Court.  In compliance of order dated 19.9.2013, the  petitioner  has
deposited Rs.85,000/- before the trial court as compensation to be  paid  to
the  LRs  of  deceased  Jagdish  Ram  and  Swinder  Kumar  @   Tinku.    The
compensation shall be divided as Rs.50,000/- to the LRs of Swinder  Kumar  @
Tinku and Rs.35,000/- to the LRs of Jagdish Ram.  The receipt  is  taken  on
record.  As per custody certificate petitioner Saurabh Bakshi has  undergone
24 days as on 30.9.2013 out of one year."

Being of this view the High Court upheld  the  conviction  and  reduced  the
sentence, as has been  stated  before,  to  the  period  already  undergone.
Hence, the State is in appeal.
4.    At this juncture, it is essential to state  that  the  respondent  who
had initially wanted  to  argue  the  matter  in-person  had  agreed  to  be
assisted  by  a  counsel  and  accordingly  this  court  had  appointed  Ms.
Meenakshi Arora, learned senior counsel to assist the court in the matter.
5.    We have heard Mr. V. Madhukar,  learned  Additional  Advocate  General
and Ms. Meenakshi Arora, learned senior counsel for the respondent.
6.    It is submitted by Mr. Madhukar that when  the  prosecution  had  been
able to establish the charges leveled against the respondent  and  both  the
trial court and the appellant court had maintained the  sentence  there  was
no justification on the part of the High Court to  reduce  the  sentence  to
the period already undergone solely on the basis  that  the  respondent  had
paid some compensation.  It is his further submission that keeping  in  view
the gravity of the offence that two  deaths  had  occurred  the  High  Court
should have kept itself alive to the nature of the  crime  and  should  have
been well advised not to interfere with the quantum  of  sentence.   He  has
commended us to the decisions in State of  Punjab  v.  Balwinder  Singh  and
Others[1] and Guru Basavaraj Alias Benne Settappa v. State of Karnataka[2].
7.    Ms. Meenakshi, learned senior counsel, per contra, has contended  that
the respondent was quite young at the time the accident took  place  and  it
may be an act of negligence, but the contributory facet by  the  Maruti  car
driver cannot be ruled out.  That apart, there are mitigating  circumstances
for reduction of the sentence and in the obtaining factual matrix  the  High
Court has appositely adopted corrective machinery which  also  reflects  the
concept of proportionality.  The learned senior counsel  would  also  submit
that when the High Court has exercised the discretion which  is  permissible
under Section 304A this court should be slow to interfere.  It is  urged  by
her that when the compensation had been paid, the High  Court  has  kept  in
view the aspect of rehabilitation of the victim and when that  purpose  have
been sub-served the reduction of sentence should  not  be  interfered  with.
The learned senior counsel has drawn inspiration from Gopal Singh  v.  State
of Uttarakhand[3] and a recent judgment in Criminal Appeal No. 290  of  2015
titled State of M.P. v. Mehtaab[4].
8.    At the outset, it is essential  to  note  that  the  respondent  stood
convicted by the trial court as well by the appellate court.   The  findings
recorded by the said two courts are neither perverse nor did they  call  for
interference in exercise of the revisional jurisdiction.  The High Court  as
we notice has been persuaded by the factum of  payment  of  compensation  by
the respondent herein, amounting to  Rs.85,000/-  to  the  LRs  of  deceased
Jagdish Ram and his nephew and the said compensation had  been  directed  to
be paid by virtue of the order dated 19.9.2013 passed  by  the  High  Court.
It is submitted  by  Ms.  Arora  that  apart  from  the  young  age  of  the
respondent at the time of occurrence the aforesaid aspect  would  constitute
the mitigating factor.  In Mehtaab's case  a  two-Judge  Bench  was  dealing
with the case under Section 304A IPC wherein the  respondent  was  convicted
under Section 304A IPC and 337 IPC and sentenced to  undergo  one  year  and
three  months  rigorous  imprisonment  respectively.   The  High  Court  had
reduced the sentence to 10 days.  It is apt to note here that in  that  case
the deceased had received injuries due to shock of  electric  current.   The
court took note of the submission of the learned counsel for the  State  and
proceeded to opine as follows:-
"7. Learned Counsel for the State submitted that the accused Respondent  had
installed a transformer in his field  and  left  the  electric  wires  naked
which was a negligent act. The deceased Sushila Bai died on account  of  the
said naked wire which had high voltage and was not visible in the dark.  The
offence having been fully proved by the evidence on record, the  High  Court
was not justified in reducing the sentence to 10 days  which  was  not  just
and fair. Even if liberal view on sentence of imprisonment was to be  taken,
the High Court ought to have enhanced the sentence of  fine  and  awarded  a
reasonable compensation as a condition for reduction of sentence.

8. We find force in the submission. It is the duty of  the  Court  to  award
just sentence to a convict  against  whom  charge  is  proved.  While  every
mitigating or aggravating circumstance may be given due  weight,  mechanical
reduction  of  sentence  to  the  period   already   undergone   cannot   be
appreciated. Sentence has to be fair not only to the  accused  but  also  to
the victim and the society. It is  also  the  duty  of  the  court  to  duly
consider the aspect  of  rehabilitating  the  victim.  Unfortunately,  these
factors are missing in  the  impugned  order.  No  cogent  reason  has  been
assigned for imposing only 10 days sentence when an innocent life  has  been
lost."

After so stating the court referred to the decision in Suresh  v.  State  of
Haryana[5] and enhanced  the  compensation  taking  note  of  the  financial
capacity of the accused respondent therein, and directed as follows:-
"10. As already  observed,  the  Respondent  having  been  found  guilty  of
causing death by his  negligence,  the  High  Court  was  not  justified  in
reducing the sentence of  imprisonment  to  10  days  without  awarding  any
compensation to the heirs of the deceased. We are of the view  that  in  the
facts and circumstances of the case, the order of  the  High  Court  can  be
upheld only with the modification that the accused will pay compensation  of
Rs. 2 lakhs to the heirs of the deceased within six months. In  default,  he
will undergo RI for six months. The compensation of Rs.  2  lakhs  is  being
fixed having regard to the limited financial resources of  the  accused  but
the said compensation may not be adequate for the heirs of the deceased.  In
such situation, in addition to the compensation to be paid by  the  accused,
the State can be required to pay compensation Under  Section 357-A.  As  per
judgment of this Court in Suresh (supra), the scheme adopted  by  the  State
of Kerala is applicable to all the States and the said scheme  provides  for
compensation upto Rs. 5 lakhs in the case of death. In the present case,  it
will  be  appropriate,  in  the  interests  of  justice,  to  award  interim
compensation of Rs. 3 lakhs Under Section 357-A payable  out  of  the  funds
available/to be made available by the  State  of  Madhya  Pradesh  with  the
District Legal Services, Authority, Guna. In case, the accused does not  pay
the compensation awarded as above, the State of Madhya Pradesh will pay  the
entire amount of compensation of Rs.  5  lakhs  within  three  months  after
expiry of the time granted to the accused."

9.    In our considered view the  decision  in  the  said  case  has  to  be
confined to the facts of that case.  It cannot be said as a  proposition  of
law  that  whenever  an   accused   offers   acceptable   compensation   for
rehabilitation of a victim, regardless of the gravity  of  the  crime  under
Section 304A, there can be reduction of sentence.
10.   In this  context,  we  may  refer  with  profit  to  the  decision  in
Balwinder Singh (supra) wherein the High Court had allowed the revision  and
reduced the quantum of sentence awarded by the  Judicial  Magistrate,  First
Class, for the offences punishable under Section 304A, 337, 279  of  IPC  by
reducing the sentence of imprisonment already undergone  that  is  15  days.
The court referred to the decision in Dalbir Singh v.  State  of  Haryana[6]
and  reproduced  two  paragraphs  which  we  feel  extremely  necessary  for
reproduction:-
"1. When automobiles have become death traps any leniency shown  to  drivers
who are found guilty of rash  driving  would  be  at  the  risk  of  further
escalation of road accidents. All those who  are  manning  the  steering  of
automobiles, particularly professional drivers, must be kept under  constant
reminders of their duty to adopt utmost care and also  of  the  consequences
befalling them in cases of dereliction. One of the most  effective  ways  of
keeping such drivers under mental vigil is to maintain a  deterrent  element
in the sentencing sphere. Any latitude shown to them in  that  sphere  would
tempt them to make driving frivolous and a frolic.
*           *                      *
13. Bearing in mind the galloping trend in road accidents in India  and  the
devastating consequences visiting the victims and their  families,  criminal
courts cannot treat the nature of the offence under  Section  304-A  IPC  as
attracting the benevolent provisions  of  Section  4  of  the  Probation  of
Offenders Act. While considering the quantum of sentence to be  imposed  for
the offence of causing death by rash or negligent  driving  of  automobiles,
one of the prime considerations should be deterrence. A professional  driver
pedals the accelerator of  the  automobile  almost  throughout  his  working
hours. He must constantly inform himself that he cannot  afford  to  have  a
single moment of laxity or inattentiveness when his leg is on the  pedal  of
a vehicle in locomotion. He cannot and should not  take  a  chance  thinking
that a rash driving need not necessarily cause any accident; or even if  any
accident occurs it need not necessarily result in the  death  of  any  human
being; or even if such death  ensues  he  might  not  be  convicted  of  the
offence; and lastly, that even if he is convicted he  would  be  dealt  with
leniently by the court. He must always keep in  his  mind  the  fear  psyche
that if he is convicted of the offence for [pic]causing  death  of  a  human
being due to his callous driving of the vehicle  he  cannot  escape  from  a
jail sentence. This is the role which the courts can play,  particularly  at
the level of trial courts, for lessening the high rate  of  motor  accidents
due to callous driving of automobiles."

11.   In B. Nagabhushanam  v.  State  of  Karnataka[7]   the  appellant  was
directed to undergo simple imprisonment for  six  months  for  the  offences
punishable under Section 304A IPC.  The two-Judge Bench referred  to  Dalbir
Singh (supra) and declined to interfere with the quantum  of  sentence.   Be
it stated, in the  said  case  a  passage  from  Ratan  Singh  v.  State  of
Punjab[8] was quoted:-
"Nevertheless, sentencing must have a policy of correction. This driver,  if
he has to become a good driver, must have a better training in traffic  laws
and moral responsibility, with special reference to the potential injury  to
human  life  and  limb.  Punishment  in  this  area  must,   therefore,   be
accompanied by these components. The State, we hope, will  attach  a  course
for better driving together with a livelier sense  of  responsibility,  when
the punishment is for driving offences. Maybe, the State  may  consider,  in
case of men with poor families, occasional parole  and  reformatory  courses
on appropriate application, without the rigour of the old  rules  which  are
subject to Government discretion."

12.   In Guru Basavaraj (supra) the  appellant  was  found  guilty  for  the
offences punishable under Sections 337, 338, 279 and 304A IPC and  sentenced
to suffer simple imprisonment of six months and to pay a fine  of  Rs.2000/-
and in default to suffer simple imprisonment  of  45  days.   The  two-Judge
Bench after placing reliance on State of  Karnataka  v.  Krishna[9],  Sevaka
Perumal v.  State  of  T.N.[10],  Jashubha  Bharatsinh  Gohil  v.  State  of
Gujarat[11], State of Karnataka v. Sharanappa Basanagouda Aregoudar[12]  and
State of M.P. v. Saleem[13] opined that there is a constant concern  of  the
court on imposition  of  adequate  sentence  in  respect  of  commission  of
offences regard being had to the nature of the offence  and  demand  of  the
conscience of the society.  There  has  been  emphasis  on  the  concern  to
impose adequate sentence for the offence punishable under Section 304A  IPC.
 The Court  has  observed  that  it  is  worthy  to  note  that  in  certain
circumstances, the mitigating factors have  been  taken  into  consideration
but the said aspect is dependent on the facts of each case. As the trend  of
authorities  would  show,  the  proficiency  in  professional   driving   is
emphasised upon and deviation therefrom that results in rash  and  negligent
driving and causes accident has been condemned. In a motor accident, when  a
number of people sustain injuries and a death occurs, it creates a  stir  in
the society; sense of fear  prevails  all  around.  The  negligence  of  one
shatters the tranquility of the collective. When such  an  accident  occurs,
it has the effect potentiality  of  making  victims  in  many  a  layer  and
creating a concavity in the social fabric. The  agony  and  anguish  of  the
affected persons, both direct and vicarious, can  have  nightmarish  effect.
It has its impact on the society and the impact is felt more when  accidents
take place quite often because of rash driving  by  drunken,  negligent  or,
for that matter, adventurous drivers who have, in  a  way,  no  concern  for
others. Be it noted, grant of  compensation  under  the  provisions  of  the
Motor Vehicles Act, 1988 is in  a  different  sphere  altogether.  Grant  of
compensation under Section 357(3)  CrPC  with  a  direction  that  the  same
should be paid to the person who has suffered any loss or injury  by  reason
of the act for which the accused has been sentenced has a different  contour
and the same is not to be regarded as a substitute in all circumstances  for
adequate sentence. Thereafter, the Court proceeded to observe:-
"32. We may note with profit that an appropriate punishment works as an eye-
opener for the persons who are not careful while  driving  vehicles  on  the
road and exhibit a careless attitude possibly  harbouring  the  notion  that
they would be shown indulgence or lives of others are  like  "flies  to  the
wanton boys". They totally forget that  the  lives  of  many  are  in  their
hands, and the sublimity of safety of a human being  is  given  an  indecent
burial by their rash and negligent act.

33. There can hardly be any cavil that there has to be a proportion  between
the crime and the punishment. It is the  duty  of  the  court  to  see  that
appropriate sentence is imposed regard being had to the  commission  of  the
crime and its impact on the social order. The  cry  of  the  collective  for
justice [pic]which includes adequate punishment cannot be lightly ignored."

Being of this view, the Court declined to interfere.

13.   In Siriya v. State of M.P.[14] it has been held as follows:-
"Protection of society and stamping out  criminal  proclivity  must  be  the
object of law which must  be  achieved  by  imposing  appropriate  sentence.
Therefore, law as a cornerstone of the edifice of "order"  should  meet  the
challenges confronting the society. Friedman in his Law in Changing  Society
stated that: "State of criminal  law  continues  to  be-as  it  should  be-a
decisive reflection of  social  consciousness  of  society".  Therefore,  in
operating the sentencing system, law should adopt the  corrective  machinery
or deterrence  based  on  factual  matrix.  By  deft  modulation  sentencing
process be stern where it should  be,  and  tempered  with  mercy  where  it
warrants to be."

14.    In  Alister  Anthony  Pareira  v.  State  of  Maharashtra[15]   while
emphasizing on the inherent danger the Court observed thus:-
"39. Like Section 304-A, Sections 279, 336, 337 and 338  IPC  are  attracted
for only the negligent or rash act. The scheme of Sections 279, 304-A,  336,
337 and 338 leaves no manner of  doubt  that  these  offences  are  punished
because of the inherent danger of the acts  specified  therein  irrespective
of knowledge or intention to produce the  result  and  irrespective  of  the
result. These sections make punishable the acts themselves which are  likely
to cause death or injury to human life."

15.   While dealing with the policy of sentencing  in  Gopal  Singh  (supra)
the two-Judge Bench quoted a paragraph from Shailesh  Jasvantbhai  v.  State
of Gujarat[16] which is as follows:-
"7. The law regulates social interests, arbitrates  conflicting  claims  and
demands. Security of persons and property of  the  people  is  an  essential
function of the State. It  could  be  achieved  through  instrumentality  of
criminal law. Undoubtedly, there is a cross-cultural conflict  where  living
law must find answer to the new challenges and the courts  are  required  to
mould the sentencing  system  to  meet  the  challenges.  The  contagion  of
lawlessness would undermine social order and lay it in ruins. Protection  of
society and stamping out criminal proclivity  must  be  the  object  of  law
which must be achieved by imposing appropriate sentence. Therefore,  law  as
a  cornerstone  of  the  edifice  of  'order'  should  meet  the  challenges
confronting the society. Friedman in his  Law  in  Changing  Society  stated
that: 'State of criminal law continues to  be-as  it  should  be-a  decisive
reflection of social consciousness of society.' Therefore, in operating  the
sentencing system, law should adopt the corrective machinery  or  deterrence
based on factual matrix. By deft modulation,  sentencing  process  be  stern
where it should be, and tempered with mercy where it  warrants  to  be.  The
facts and given circumstances in each case, the nature  of  the  crime,  the
manner in which it was planned and committed, the motive for  commission  of
the crime, the conduct of the accused, the nature of weapons  used  and  all
other attending circumstances are relevant facts which would enter into  the
area of consideration."

In the said case it has been laid as follows:-
"18. Just punishment is  the  collective  cry  of  the  society.  While  the
collective cry has to be kept uppermost  in  the  mind,  simultaneously  the
principle of proportionality between the  crime  and  punishment  cannot  be
totally brushed aside. The principle of just punishment is  the  bedrock  of
sentencing in respect of a criminal offence.  A  punishment  should  not  be
disproportionately  excessive.  The  concept  of  proportionality  allows  a
significant discretion to the Judge  but  the  same  has  to  be  guided  by
certain principles.  In  certain  cases,  the  nature  of  culpability,  the
antecedents of the [pic]accused, the factum of age, the potentiality of  the
convict to become a criminal in future, capability of  his  reformation  and
to lead an acceptable life in the prevalent milieu, the effect -  propensity
to become a social threat or nuisance, and sometimes lapse of  time  in  the
commission of the crime and his conduct in the interregnum bearing  in  mind
the nature  of  the  offence,  the  relationship  between  the  parties  and
attractability of the doctrine of bringing the convict  to  the  value-based
social mainstream may be the guiding factors. Needless to  emphasise,  these
are certain illustrative aspects put forth in a  condensed  manner.  We  may
hasten to add that there  can  neither  be  a  straitjacket  formula  nor  a
solvable theory in mathematical exactitude. It would  be  dependent  on  the
facts  of  the  case  and  rationalised  judicial  discretion.  Neither  the
personal perception of  a  Judge  nor  self-adhered  moralistic  vision  nor
hypothetical apprehensions should be allowed to have  any  play.  For  every
offence, a drastic measure cannot be  thought  of.  Similarly,  an  offender
cannot be allowed to be treated  with  leniency  solely  on  the  ground  of
discretion  vested  in  a  court.  The  real  requisite  is  to  weigh   the
circumstances in which the crime has been committed  and  other  concomitant
factors which we have indicated hereinbefore and also have been stated in  a
number of pronouncements by this Court. On such  touchstone,  the  sentences
are to be imposed. The discretion should not be in the realm  of  fancy.  It
should be embedded in the conceptual essence of just punishment."

16.   In Shyam Narain v. State (NCT of Delhi) [17]  though  in  a  different
context while dealing with the issue of sentencing it has been  stated  that
primarily it is to be borne in mind that sentencing for any  offence  has  a
social goal. Sentence is to be imposed regard being had  to  the  nature  of
the offence and the manner in which the  offence  has  been  committed.  The
fundamental purpose of imposition of sentence  is  based  on  the  principle
that the accused must realise that the crime committed by him has  not  only
created a dent in his life but also a concavity in the  social  fabric.  The
purpose of just punishment is  designed  so  that  the  individuals  in  the
society which ultimately constitute the collective do not  suffer  time  and
again for such crimes. It serves as a deterrent.  True  it  is,  on  certain
occasions, opportunities  may  be  granted  to  the  convict  for  reforming
himself but it is equally true that [pic]the  principle  of  proportionality
between an offence committed and the penalty  imposed  are  to  be  kept  in
view. While carrying out this complex exercise,  it  is  obligatory  on  the
part of the court to see the impact of the  offence  on  the  society  as  a
whole and its ramifications on the  immediate  collective  as  well  as  its
repercussions on the victim.
17.   In the instant case the factum of rash and negligent driving has  been
established.  This court  has  been  constantly  noticing  the  increase  in
number of road accidents and has also noticed how the vehicle  drivers  have
been totally rash and negligent.  It  seems  to  us  driving  in  a  drunken
state, in a rash and negligent manner or driving with  youthful  adventurous
enthusiasm as if there are no traffic rules or  no  discipline  of  law  has
come to the centre stage.
The protagonists, as we perceive, have lost all  respect  for  law.   A  man
with the means has, in possibility, graduated himself to  harbour  the  idea
that  he  can  escape  from  the  substantive   sentence   by   payment   of
compensation.  Neither the law nor the court that implements the law  should
ever get oblivious of the fact that in such  accidents  precious  lives  are
lost or the victims who survive are crippled  for  life  which,  in  a  way,
worse then death.  Such developing of notions is a dangerous  phenomenon  in
an orderly society.  Young age cannot be  a  plea  to  be  accepted  in  all
circumstances.  Life to the poor or the impecunious is as worth  living  for
as it is to the rich and the luxuriously temperamental.   Needless  to  say,
the principle of sentencing recognizes the  corrective  measures  but  there
are occasions when the deterrence is an imperative necessity depending  upon
the facts of the case.  In our opinion, it  is  a  fit  case  where  we  are
constrained to say that the High Court has been swayed away by  the  passion
of mercy in applying the principle that payment of compensation is a  factor
for reduction of sentence to 24 days.  It is  absolutely  in  the  realm  of
misplaced sympathy.  It is, in a way mockery of  justice.   Because  justice
is "the crowning glory", "the sovereign mistress" and "queen of  virtue"  as
Cicero had said.  Such a crime blights not only the  lives  of  the  victims
but of many others around them.  It ultimately shatters  the  faith  of  the
public in judicial system.  In  our  view,  the  sentence  of  one  year  as
imposed by the trial Magistrate which has been  affirmed  by  the  appellate
court should be reduced to six months.
18.   Before parting with the case we are compelled to  observe  that  India
has a disreputable record  of  road  accidents.   There  is  a  non-challant
attitude among the drivers.  They feel that they are the  "Emperors  of  all
they survey".  Drunkenness contributes to careless driving where  the  other
people become their prey.  The poor feel that their lives are not safe,  the
pedestrians  think  of  uncertainty  and  the  civilized  persons  drive  in
constant fear but still apprehensive about the  obnoxious  attitude  of  the
people who project themselves as "larger  than  life".   In  such  obtaining
circumstances,  we  are  bound  to  observe  that   the   lawmakers   should
scrutinize, re-look and re-visit the  sentencing  policy  in  Section  304A,
IPC.  We say so with immense anguish.
19.   Resultantly, the appeal is allowed to the extent indicated  above  and
the respondent be taken into  custody  forthwith  to  suffer  the  remaining
period of sentence.


                                  ........................................J.
                                 [DIPAK MISRA]



                                  ........................................J.
                                            [PRAFULLA C. PANT]

NEW DELHI
MARCH 30, 2015.

-----------------------
[1]    (2012) 2 SCC 182
[2]    (2012) 8 SCC 734
[3]    (2013) 7 SCC 545
[4]    2015 (2) SCALE 386
[5]    Crl Appeal No. 420 of 2012, decided on 28.11.2014
[6]     (2000) 5 SCC 82
[7]    (2008) 5 SCC 730
[8]    (1979) 4 SCC719
[9]    (1987) 1 SCC 538
[10]   (1991) 3 SCC 471
[11]   (19940 4 SCC 353
[12]   (2002) 3 SCC 738
[13]   (2005) 5 SCC 554
[14]   (2008) 8 SCC 72
[15]   (2012) 2 SCC 648
[16]   (2006) 2 SCC 359
[17]   (2013) 7 SCC 77

-----------------------
24

Saturday, March 28, 2015

Expert Opinion - Vs- Positive Evidence "Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances".-2015 S.C. (1963) MSKLAWREPORTS

Expert Opinion - Vs- Positive Evidence 

"Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period.
 He also admitted that he applied no chemical tests in this case. 
So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. 
Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". 
In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances".-2015 S.C. (1963) MSKLAWREPORTS

శ్రీ రామ నవమి శుభాకాంక్షలు


 

రామా 

రావయ్యా

మా ఒంటిమిట్టకు 

మా ఆనంద భాష్పాలు తప్ప 

గోదావరి లేదు నీ కాళ్ళు కడుగ 

మా హృదయ పీటం తప్ప

భద్రాది లేడు నీకు పీట వేయ 

చిరు కానుకలు తప్ప 

చింతాకు పతకం తేలేము 

నీ నామా  సంకీర్తన తప్ప

రామదాసు నగలు చేయించలేము

 ఈ ఒంటి మిట్టనే నీ పంచవటి అనుకోని 

మా హృదయ రాజ్యాన్ని నీ మహాసామ్రాజ్యం అనుకోని 

 రామా 

రావయ్యా

మా ఒంటిమిట్టకు 

మీకు మీ కుటుంబానికి  శ్రీ రామ నవమి శుభాకాంక్షలు


Friday, March 27, 2015

Accident Case - High court enhanced the compensation for Rs.5,35,000/- failed to consider the Medical Bills and other settled laws - Apex court enhanced the compensation to Rs.16,58,600/- under 7 heads with 9% interest and further said though all are equal share - the parents were alloted each one lakh and whereas the rest of their share amount was ordered to be distributed equally to the minor children taking into consideration of their education etc., - 2015 SC MSKLAWREPORTS



whether  the  appellants  are   entitled   for
enhancement of compensation amount as prayed in these appeals?


 On 27.11.2006, Jhabbu Verman, aged 35 years, was  on  his  way  back  from
Tripuri to Garha (Jabalpur) on his motorcycle bearing registration  No.  MP-
20-Y-7669 and met with an accident when a truck bearing registration No. MP-
20-GA-2221 being driven by respondent No.1 rashly and  negligently  collided
with the back of his motorcycle. As a result  of  the  same,  Jhabbu  Verman
fell towards his right and the wheel of  the  vehicle  ran  over  his  hands
which lead to severe damage to his left hand.  Due to the grievous  injuries
caused in the said accident, he was immediately  taken  to  the  Mahakaushal
College  and  Hospital  and  he  remained  under  medical   treatment   from
28.11.2006, during which  period  he  underwent  an  operation  and  plastic
surgery twice on his chest and was advised for amputation of his left  hand.
However, due to the severity of injuries caused  to  him  in  the  accident,
Jhambu Verman died on 08.12.2006.

The  High  Court  after  examining  the  facts,  circumstances  and
evidence  on  record  enhanced  the  amount  to  a  total  compensation   of
Rs.5,35,000/- under all heads with interest at the rate  of  8%  per  annum.
The following is the breakup of compensation under various heads awarded  by
the High Court:-
Loss of dependency - Rs. 4,50,000/-
Funeral Expenses   - Rs.    5,000/-
Loss of estate     - Rs.    5,000/-
Loss of consortium - Rs.    5,000/-
Loss of love       - Rs.   20,000/-
and affection

Towards pecuniary  - Rs.   50,000/-
Loss
------------------------------------
TOTAL              - Rs. 5,35,000/-

 In the result, the appellant shall be  entitled  to  compensation  under
the following heads:
|1.       |Loss of dependency         |Rs.9,93,600/-            |
|2.       |Loss of estate             |Rs.1,00,000/-            |
|3.       |Loss of consortium         |Rs.1,00,000/-            |
|4.       |Loss of love and affection |Rs.2,00,000/-            |
|         |to children                |                         |
|5.       |Funeral expenses           |Rs.25,000/-              |
|6.       |Medical expenses           |Rs.1,40,000/-            |
|7.       |Loss of love and affection |Rs.1,00,000/-            |
|         |to parents                 |                         |
|         |TOTAL                      |Rs. 16,58,600/-          |

Further, though all the appellants are legally entitled for equal  share  of
Rs.1,98,720/- (Rs.9,93,600/- divided by 5)  each  out  of  the  compensation
awarded towards loss of dependency, however, by keeping in mind the  age  of
the parents of the deceased and also the future educational requirements  of
the minor-children of the deceased, we are of the view that the  parents  of
the deceased shall be entitled to 1 lakh each out of the total  compensation
amount awarded towards loss of dependency and the remaining  part  of  their
share (i.e. Rs.98,720/- each) shall be equally  divided  and  added  to  the
appellant-minors' share of compensation.  
Therefore  the  following  is  the
apportionment of the amount  awarded  towards  loss  of  dependency  of  the
appellants with proportionate interest:
Appellant No.1 - Rs. 1,98,720/-
Appellant No.2 - Rs. 2,97,440/-
Appellant No.3 - Rs. 2,97,440/-
Appellant No.4 - Rs. 1,00,000/-
Appellant No.5 - Rs. 1,00,000/-
Thus, the total compensation payable to the appellants  by  the  respondent-
Insurance Company will be Rs. 16,58,600/- with interest at the  rate  of  9%
p.a. from the date of filing of the application till the  date  of  payment.- 2015 SC.MSKLAWREPORTS

safai kamdars-unfair trade practices - The appellant-Gram Panchayat was duly established under the provisions of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of the Panchayat, some of whom are now deceased and are being represented by their legal heirs, were appointed to the post of safai kamdars of the appellant- Panchayat and have served for many years, varying from 18 years, 16 years, 8 years, 5 years etc. They were however, considered as daily wage workers and were therefore, not being paid benefits such as pay and allowances etc. as are being paid to the permanent safai kamdars of the appellant- Panchayat.= We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees...."" Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors.[3], does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them. The appellant is further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The same shall be implemented within six weeks from the date of receipt of copy of this judgment and compliance report of the same shall be submitted for the perusal of this Court. No Costs.

                                 REPORTABLE
           IN THE SUPREME COURT OF INDIA                           CIVIL
                           APPELLATE JURISDICTION


                     CIVIL APPEAL Nos.3209-3210 OF 2015
               (Arising Out of SLP (C) Nos.7105-7106 of 2014)


UMRALA GRAM PANCHAYAT                        ......APPELLANT

                                    Versus

THE SECRETARY, MUNICIPAL
EMPLOYEES UNION & ORS.                   ......RESPONDENTS



                               J U D G M E N T

V. GOPALA GOWDA, J.

      Delay condoned. Leave granted.
 These appeals have been filed by the appellant against the  final  judgment
and order dated 23.07.2013 passed in Letters Patent Appeal No. 551  of  2013
in Misc. Civil Application No.3071 of 2012 in Special Civil Application  No.
7082 of 1994, by the High Court  of  Judicature  of  Gujarat  at  Ahmedabad,
whereby the High Court has dismissed the same as being not maintainable  and
has upheld the judgment and order of the learned single Judge  of  the  High
Court dated 13.07.2010, passed in Special  Civil  Application  No.  7082  of
1994, which is also impugned herein, wherein the application  filed  by  the
appellant has been dismissed by the  High  Court  by  confirming  the  Award
dated 15.05.1991 passed by the Labour Court in  Reference  (LCD)  No.  6  of
1988.

 For the purpose of considering the rival legal contentions urged on  behalf
of the parties in these appeals and with a view to  find  out  whether  this
Court is required to interfere with the impugned judgment and orders of  the
High Court as well as the Award of the Labour  Court,  the  necessary  facts
are briefly stated hereunder:

    The appellant-Gram Panchayat was duly established under  the  provisions
of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of  the
Panchayat, some of whom are now deceased and are being represented by  their
legal heirs, were appointed to the post of safai kamdars of  the  appellant-
Panchayat and have served for many years, varying from 18 years,  16  years,
8 years, 5 years etc. They were however, considered as  daily  wage  workers
and were therefore, not being paid benefits such as pay and allowances  etc.
as are  being  paid  to  the  permanent  safai  kamdars  of  the  appellant-
Panchayat.

 On  23.07.1987,  the  workmen  raised  an  industrial  dispute  before  the
Conciliation Officer at Bhavnagar, through the  respondent  no.1,  Municipal
Employees Union (for short "Union") stating  therein  that  after  rendering
services for a number of years, the workmen are entitled to the  benefit  of
permanency  under  the  appellant-Panchayat.  The  settlement  between   the
workmen and the appellant-Panchayat failed to resolve  amicably  during  the
conciliation proceedings and therefore, the failure report was sent  to  the
Dy. Commissioner of Labour, Ahmedabad, who referred the same to  the  Labour
Court vide Reference (LCD) No.6/88. The Labour Court by its Award held  that
the workmen are to be made permanent  employees  as  safai  kamdars  in  the
appellant-Panchayat. The Labour Court has further  directed  the  appellant-
Panchayat that the workmen  should  be  paid  wages,  allowances  and  other
monetary benefits as well for which they are legally entitled to.

 Aggrieved by the Award of the Labour Court, the  appellant-Panchayat  filed
an appeal before the single Judge of the High Court, whereby  the  same  was
dismissed and it was held that the view taken by the Labour  Court  is  just
and proper as it has assigned cogent and convincing reasons for arriving  at
the conclusion that the services of the concerned  workmen  should  be  made
permanent  as  the  other  employees  of  the  appellant.   The   appellant,
thereafter, filed an LPA before the Division Bench of the High Court,  which
was also dismissed as not  maintainable.  Hence,  these  appeals  have  been
filed by the appellant seeking to set aside the judgments and orders of  the
High Court as well as the Award passed by the Labour Court.



 It has been contended by Mr. Mahendra Anand, the learned senior counsel  on
behalf of the appellant that the workmen were not appointed on  a  permanent
basis as the rules and regulations as prescribed  under  the  provisions  of
the Act have not been followed. He  has  further  contended  that  the  High
Court has erred in upholding the Award passed by the  Labour  Court  as  the
same is illegal and there is non application of mind by  the  courts  below.
The Labour Court  has  wrongly  held  that  there  are  13  permanent  posts
available for the category in which the concerned employees are  working  as
the other three employees who are made permanent employees  have  been  made
so only because there were clear vacant  posts  available  in  the  approved
strength in the capacity in which these three employees were made  permanent
and thus, there is no  question  of  any  discrimination  or  unfair  labour
practice on the part of the appellant-Panchayat in not making the  concerned
workmen as permanent employees of the appellant.



 It has been further contended  by  the  learned  senior  counsel  that  the
concerned workmen were engaged in the services, as and when required by  the
appellant-Panchayat and it is not obligatory on the part of  the  appellant-
Panchayat to provide work to the workmen  on  a  day-to-day  basis  and  the
appellant-Panchayat has no control  over  them  as  there  is  no  employer-
employee relationship between them. It has been  further  contended  by  him
that the appellant-Panchayat has no right to make them permanent  employees.
For  making  their  services  permanent  in  the   appellant-Panchayat,   an
application has to be made before the District Panchayat,  Bhavnagar  and  a
demand has to be raised before it and the recruitment of  the  employees  of
the appellant-Panchayat is done by the Gujarat Panchayat  Service  Selection
Board and directions will be issued on its behalf.  However,  there  are  no
such directions issued in relation to the concerned workmen.

 On the other hand, it has been contended by Mr.  S.C.  Patel,  the  learned
counsel appearing on behalf  of  the  respondent-Union  that  the  concerned
workmen have been working for many years, such as  18  years,  16  years,  8
years continuously and some of them have been working for more than 5  years
in the appellant-Panchayat. They are not  paid  the  monetary  benefits  and
allowances etc. as are being paid to other permanent safai kamdars  who  are
working in the  appellant-Panchayat.  He  has  further  contended  that  the
concerned workmen are doing the same work as is being done by the  permanent
safai kamdars and they have been working for similar number of  hours,  i.e.
eight  hours  per  day  like  the  permanent  employees  of  the  appellant-
Panchayat. In spite of it,  they  are  being  monetarily  exploited  by  the
appellant-Panchayat by not being paid  regular  salary  and  other  monetary
benefits for which they are legally entitled to  but  are  being  paid  much
lesser wage, i.e. Rs.390/- per month. Therefore,  the  learned  counsel  has
contended that  the  appellant  is  practicing  unfair  labour  practice  as
defined under Section 2(ra) of the Industrial Disputes Act, 1947  (in  short
"the ID Act") as enumerated at Entry No.10 in the Fifth Schedule to  the  ID
Act. Therefore, the action of the appellant-Panchayat  is  illegal  and  the
workmen should be allowed to get permanency in the said posts.



 With reference to the  abovementioned  rival  legal  contentions  urged  on
behalf of the parties, we  have  to  examine  the  impugned  judgements  and
orders of the High Court as well as the Award passed by  the  Labour  Court,
to find out whether any substantial question of law  would  arise  in  these
appeals to exercise the appellate jurisdiction of this Court?



    On a perusal of the same, we have come to the conclusion that  the  High
Court has rightly dismissed the case of the appellant as  the  Labour  Court
has dealt with the same in detail in its reasoning portion of the  Award  in
support of its findings of fact while answering the points  of  dispute  and
the same cannot be said to be either erroneous or error in law.  In  support
of the above said conclusions arrived  at  by  us,  we  record  our  reasons
hereunder:



      It is an admitted fact that the work  which  was  being  done  by  the
concerned workmen was the same as that  of  the  permanent  workmen  of  the
appellant- Panchayat. They have also been  working  for  similar  number  of
hours, however, the discrepancy in the payment of wages/salary  between  the
permanent and the non-permanent workmen is alarming and the same has  to  be
construed as being an unfair labour practice as defined under Section  2(ra)
of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which  is
prohibited under  Section  25(T)  of  the  ID  Act.  Further,  there  is  no
documentary evidence produced on record before the Labour Court which  shows
that the present workmen are working less or  for  lesser  number  of  hours
than the permanent employees of the appellant-Panchayat. Thus, on  the  face
of it, the work being done by the concerned workmen has  been  permanent  in
nature and the Labour Court as well as the  High  Court  have  come  to  the
right conclusion on the points of dispute  and  have  rightly  rejected  the
contention of the appellant-Panchayat as the same amounts to  unfair  labour
practice by the appellant-Panchayat which is prohibited under Section  25(T)
of the ID Act and it also amounts to statutory offence on the  part  of  the
appellant under Section 25(U) of the ID Act for which it  is  liable  to  be
prosecuted.



   Further, the Labour Court has rightly held that there is  no  restriction
for the recruitment of the workmen in the Panchayat's  set-up  as  there  is
evidence to show that by making  a  proposal,  the  District  Panchayat  has
increased the work force in the  establishment  of  the  appellant-Panchayat
and therefore, the contention urged by the learned senior counsel  appearing
for the appellant-Panchayat that there are only limited number of  permanent
vacancies for the workmen in the Panchayat of the appellant is  not  tenable
in law.



  Further, we have also taken note of the fact that the  financial  position
of the Panchayat is not so unsound as no activity of the Panchayat has  been
discontinued, as all the other workers of the appellant-Panchayat are  being
paid their wages regularly. Thus, there  would  be  no  difficulty  for  the
appellant-Panchayat  to  bear  the  extra  cost  for  the  payment  of   the
wages/salary and other monetary benefits to the concerned  workmen  if  they
are made permanent.



  Further, Section 25(T) of the ID Act clearly  states  that  unfair  labour
practice should not be encouraged and the same should  be  discontinued.  In
the present case, the principle "equal work, equal pay"  has  been  violated
by the appellant-Panchayat as they have been treating the concerned  workmen
unfairly and therefore, the demand raised by the respondent-Union  needs  to
be accepted. The High Court has thus, rightly not interfered with the  Award
of the Labour Court as the same is  legal  and  supported  with  cogent  and
valid reasons.



  Therefore, the learned single Judge as well as the Division Bench  of  the
High Court have exercised the power  under  Articles  226  and  227  of  the
Constitution of India and have  rightly  held  that  the  Labour  Court  has
jurisdiction to decide the industrial dispute that has been referred  to  it
by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed  upon
the decision of this Court in the case of Maharashtra State  Road  Transport
Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana[1],  wherein
it has been held thus:

"32.The power given to the Industrial and Labour Courts under  Section 30 is
very wide and the affirmative action mentioned therein is inclusive and  not
exhaustive. Employing badlis, casuals or temporaries and  to  continue  them
as such for years, with the object of  depriving  them  of  the  status  and
privileges of permanent employees is an unfair labour practice on  the  part
of the employer under item  6  of  Schedule  IV.  Once  such  unfair  labour
practice on the part of the employer is established in  the  complaint,  the
Industrial and Labour Courts are empowered to issue preventive  as  well  as
positive direction to an erring employer."

   Further, reliance has been placed upon the decision of this Court in  the
case of Durgapur Casual Workers  Union  v.  Food  Corporation  of  India,[2]
wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer  and
the effect of decision of Umadevi (3) in the grant of relief was  considered
by this Court in Ajaypal Singh v. Haryana Warehousing  Corporation in  Civil
Appeal No. 6327 of 2014 decided on 9th July, 2014. In the  said  case,  this
Court observed and held as follows:
20. The provisions  of  Industrial  Disputes  Act  and  the  powers  of  the
Industrial and  Labour  Courts  provided  therein  were  not  at  all  under
consideration in Umadevi's case.  The  issue  pertaining  to  unfair  labour
practice was neither the subject matter for decision nor was it  decided  in
Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for  settlement  of
industrial disputes and for certain other purposes as mentioned therein.  It
prohibits unfair labour practice on the part of  the  employer  in  engaging
employees as casual or temporary employees for a long period without  giving
them the status and privileges of permanent employees....""

  Thus, in the light of the above referred cases of this Court, it is  amply
clear that the judgments and orders of the High Court and the  Award  passed
by the Labour Court are reasonable and the same have been arrived  at  in  a
just and fair manner.



  The reliance placed by the learned senior counsel for the  appellant  upon
the decision of this Court in  Secretary,  State  of  Karnataka  &  Ors.  v.
Umadevi & Ors.[3], does not apply to the fact situation of the present  case
and the same cannot be accepted by us in the light  of  the  cogent  reasons
arrived at by the courts below.



  In view of the reasons stated supra and in the  light  of  the  facts  and
circumstances of the  present  case,  we  hold  that  the  services  of  the
concerned workmen are permanent in nature, since they have worked  for  more
than  240  days  in  a  calendar  year  from  the  date  of  their   initial
appointment, which is clear from the  evidence  on  record.  Therefore,  not
making their services permanent by the appellant-Panchayat is erroneous  and
also amounts to error in law. Hence, the same cannot be allowed  to  sustain
in law.



   For the reasons stated supra, we  dismiss  the  appeals  and  direct  the
appellants to treat the services  of  the  concerned  workmen  as  permanent
employees, after five years of  their  initial  appointment  as  daily  wage
workmen till they attain the  age  of  superannuation  for  the  purpose  of
granting terminal benefits to them.



   The appellant is further directed to pay the  regular  pay-scale  as  per
the revised pay scale fixed to the post of permanent  safai  kamdars  for  a
total  period  of  15  years  to  the  concerned  workmen  and   the   legal
representatives of the deceased  workmen.  The  same  shall  be  implemented
within six weeks from the date of receipt  of  copy  of  this  judgment  and
compliance report of the same shall be submitted for  the  perusal  of  this
Court. No Costs.






............................................................J.

                                 [V. GOPALA GOWDA]



        ..........................................................J.

                                 [C.NAGAPPAN]

            New Delhi,
            March 27, 2015



ITEM NO.1A-For Judgment     COURT NO.10               SECTION XV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A.No......./2015 @ SLP (C)  No(s). 7105-7106/2014

(Arising out of impugned final judgment and order dated 23/07/2013 in LPA
No. 551/2013,23/07/2013 in SCA No. 7082/1994,23/07/2013 in MCA No.
3071/2012,13/07/2010 in SCA No. 7082/1994 passed by the High Court Of
Gujarat At Ahmedabad)

UMRALA GRAM PANCHAYAT                              Petitioner(s)

                                VERSUS

THE SEC.MUNICIPAL EMPLOYEE UNION & ORS             Respondent(s)

Date : 27/03/2015 These petitions were called on for pronouncement of
JUDGMENT today.

For Petitioner(s)
                     Mr. Pukhrambam Ramesh Kumar,Adv.

For Respondent(s)
                     Mr. S. C. Patel,Adv.


            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
            Leave granted.
             The  appeals   are   dismissed   in   terms   of   the   signed
Reportable Judgment.

    (VINOD KR. JHA)                             (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)

-----------------------
[1]
      [2] (2009) 8 SCC 556
[3]
      [4] (2014) 13 SCALE 644
[5]
      [6] (2006) 4 SCC 1