69. Effect of non- registration. --- (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 instant case, the firm was no doubt registered. However, the name of the person (PW.1), who instituted the proceedings on behalf the firm, is said to have been inducted later on as a partner, but his name was not entered in the register of firms. The appellant did make an effort to convince the trial Court that intimation of PW.1 joining the firm as a partner was given, to the Registrar of Firms in Ex.A.5. The fact, however, remains that by the time the suit was filed, the name of PW.1 was not entered in the register of firms. - In M/s. Shreeram Finance Corporation v. Yasin Khan[3], the Supreme Court held that a suit filed on behalf of a reconstituted firm cannot be maintained, unless the name of the newly added partner, and in whose name the suit is filed has been entered in the register of firms. The ratio of that judgment gets straight away attracted to the facts of the present case. The law requires that it is only when the firm is registered and the name of such person acting as a partner is entered in the register of firms, that he would be entitled to validly institute the proceedings. - the observation of the Supreme Court reads: “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 regarding 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…”

* THE HON’BLE MR JUSTICE L.NARASIMHA REDDY

+ Second Appeal No.49 of 2013

           

%Dated 15.02.2013

#M/s. Chandu Financiers, Chittoor, rep. by its foreman Y.Raghu.

…appellant.

and

$ G.Ramakrishna Naidu and another

                                                                                      

…Respondents

! Counsel for appellant:     Sri Mehar Chand Noori

^ Counsel for Respondents :  Sri Sumanth

< GIST:

> HEAD NOTE:

? Cases referred

1. 1999 (6) ALT 681
2. (1999) 9 SCC 113
3. (1989) 3 SCC 476

  THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

Second Appeal No.49 of 2013

JUDGMENT:

         

The plaintiff in O.S.No.1238 of 1999 on the file of the III Additional Junior Civil Judge, Chittoor, is the appellant.  The appellant is a Partnership Firm, and it filed the suit against the respondents for recovery of amount covered by a chit transaction.  While the 1^st respondent was the prized subscriber, the 2^nd respondent is the guarantor.  It was pleaded that the appellant started chits in Group No.7 of the value of Rs.50,000/-, of the duration of 20 months with monthly subscription of Rs.2,500/-.  
1^st respondent subscribed to one of the chits and became successful bidder in August, 1995.  He stated that having received the prize amount of Rs.33,300/-, the 1^strespondent committed default in payment of the instalments.  Interest was claimed @24% per annum.

The 1^st respondent filed a written statement and the
2^nd respondent adopted the same.  It was admitted that the
1^st respondent is a prized subscriber.  However, it was urged that all the instalments were paid as per the schedule.  An objection was raised as to the maintainability of the suit, on the ground that the foreman, by name, Mr.Y.Raghu, through whom the suit is filed, is not competent to represent the partnership firm.  According to the respondents, one Mr.Bhaskar Naidu is the Managing Partner, and on account of the disputes with him, Raghu got the suit filed.  The trial Court dismissed the suit, through judgment, dated 08.09.2004, by accepting the plea as to the bar of the suit under Section 69 of the Partnership Act (for short ‘the Act’).  A.S.No.168 of 2004 filed by the appellant before the District Court, Chittoor, was dismissed on 06.08.2008.  Hence, this Second Appeal.

Sri Mehar Chand Noori, advanced arguments on behalf of the appellant.  He contends that the bar under Section 69 of the Act operates only against a firm, which is not registered and the appellant herein did not suffer from any disability, since it is registered.  He contends that once the firm is registered, it is not necessary that the name of every partner must be entered to enable them to institute independent proceedings in relation to the firm.  He has places reliance upon a judgment rendered by this Court in Sri Laxmi Cloth Stores, Vijayawada v. Ratna and Co., Cloth Merchant, Machilipatnam[1], and the judgment of the Supreme Court in Gwalliar Oil Mills v. Supreme Industries[2].

Sri Sumanth, learned counsel for the respondents, on the other hand, submits that the prohibition contained under Section 69 of the Act disables not only an unregistered firm, but also a partner, whose name is not entered in the register, maintained by the Registrar of Firms.

As observed earlier, the suit was filed for recovery of amount covered by a chit transaction. When the issues were framed at the initial stage, it appears that much attention was not paid to the effect of Section 69 of the Act, on the suit.  Accordingly, the following issues were framed:

1.                               “Whether the discharge of the chit instalments as alleged in the written statement is correct?

2.                               Whether there is cause of action for the plaintiff to file the suit?

3.                               To what relief?”

Thereafter, the following additional issues were framed:

1.      “Whether Y.Raghu is the foreman of the plaintiff?

2.      Whether the plaintiff has issued legal notice as alleged in para 11 of the plaint?”

On behalf of the appellant, PW.1 was examined and Exs.A.1 to A.17 were filed.  On behalf of respondents, DWs.1 and 2 were examined and Exs.B.1 to B.5 were filed.  The trial Court answered issue No.1 in favour of the appellant herein.  Issue No.2 was treated as superfluous.  However, it answered additional issues 1 and 2 against the appellant.  In A.S.No.168 of 2004, the lower Appellate Court framed the following points for its considered and dismissed the appeal.

1.                                   “Whether Y.Raghu, who is representing the plaintiff-firm is competent to file the suit on behalf of the plaintiff-firm?

2.                                   Whether the suit claim is hit by Section 25(1) of A.P.Chit Fund Act?”

The suit is based upon a chit transaction.  The 1^st respondent did not dispute the existence of the same.  Though he pleaded the payment of all the instalments, the trial Court held that he did not pay certain instalments.  That finding has also become final, since neither independent appeal, nor any cross-objections were filed by the respondents.  However, the suit as well as the appeal were dismissed by taking into account, the purport of Section 69 of the Act.  Therefore,
it needs to be examined as to whether the view taken by the trial Court and the lower Appellate Court on the facts of the case is correct.

Section 69 of the Act prohibits the institution of the suits for enforcement of right arising out of a contract, or other rights by or on behalf of a firm, unless it is registered.  In addition to placing embargo on the firm, as such, the provision proceeds to extend the bar against any person, unless his name has been shown in the register of firms as a partner. The provision reads:

69. Effect of non- registration.

(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person

alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(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.

(3) The provisions of sub- sections (1) and (2) shall apply also to claim of set- off or other proceeding to enforce a right arising from contract, but shall not affect-

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Presidency- towns Insolvency Act, 1909, (2 of 1909 ), or the Provincial Insolvency Act, 1920, (5 of 1920 ), to realize the property of an insolvent partner.

(4) This section shall not apply-

(a) to firms or to partners in firms which have no place of business in 1[ the territories to which this Act extends], or whose places of business in 2[ the said territories] are situated in areas to which, by notification under 3[ section 56], this Chapter does not apply, or

(b) to any suit or claim of set- off not exceeding one hundred rupees in value which, in the Presidency- towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882, (15 of 1882 ), or, outside the Presidency- towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, (9 of 1887 ), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.

From a perusal of the section, it becomes clear that sub-section (1) thereof disables an individual, claiming to be a partner of a firm, from instituting any proceedings against the firm or its other partners, unless such firm is registered and the plaintiff in such a suit has been shown in the Register of Firms as a partner.  In other words, this provision deals with the disputes between a person, who is a partner of an unregistered firm, on the one hand, and the firm, on the other hand.  It also takes in its fold instances where the firm may have been registered, but the plaintiff is not shown as a partner in the register of firms. 

Sub-section (2) attaches the disability on the firm as such from instituting proceedings against third parties.  Here again, the requirement is dual in nature.  The first is that the firm must be registered and the second is that even if the firm is registered the person representing the firm must be shown as a partner in the register of firms.  The exceptions that are provided for under sub-sections (3) and (4) of Section 69 of the Act do not get attract the facts of the present case.

In the instant case, the firm was no doubt registered.  However, the name of the person (PW.1), who instituted the proceedings on behalf the firm, is said to have been inducted later on as a partner, but his name was not entered in the register of firms.  The appellant did make an effort to convince the trial Court that intimation of PW.1 joining the firm as a partner was given, to the Registrar of Firms in Ex.A.5.  

The fact, however, remains that by the time the suit was filed, the name of PW.1 was not entered in the register of firms. 

 In M/s. Shreeram Finance Corporation v. Yasin Khan[3], the Supreme Court held that a suit filed on behalf of a reconstituted firm cannot be maintained, unless the name of the newly added partner, and in whose name the suit is filed has been entered in the register of firms. The ratio of that judgment gets straight away attracted to the facts of the present case.

Learned counsel for the appellant made an attempt to convince this Court that the disjunctive employed in sub-section (2) separates the requirement as to the registration of the firm on the one hand, and enter the name of the partner in the register of firms, on the other hand. 
In other words, he contends that once the firm is registered, it is not necessary that the name of the partner, who instituted the suit, must be entered in the register of firms.  However, it is difficult to accept that contention.  

Firstly, the provision is clear in its purport, and the same legal requirement is incorporated in sub-sections (1) and (2), may be in different context.  Secondly, the fact that a partnership firm has no independent legal existence and it must be represented by the Managing Partner or an ordinary partner, duly authorized, becomes significant. 
An individual can, at the best, adjust his state of affairs vis-à-vis others.  Once he makes an attempt to represent others, the authorization must be proper and legal, since a partner proposes to represent not only himself, but also rest of the partners of the firm, and their collective rights and obligations. 

The law requires that it is only when the firm is registered and the name of such person acting as a partner is entered in the register of firms, that he would be entitled to validly institute the proceedings.  

In Sri Laxmi Cloth Stores, Vijayawada’s case, a learned Single Judge of this Court took the view that once a certificate of registration of a firm is filed, it is not necessary that the name of the person, representing the firm as a partner, must be entered in the register of firms.  

The plea similar to the one raised by the learned counsel for the appellant was accepted.  The support was drawn from the two judgments rendered by this Court.  

 However, it does not appear that the attention of this Court was drawn to the judgment of the Supreme Court in Sriram Finance Corporation’s case, the observation of the Supreme Court reads:      

“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 regarding 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…” 

The facts of the present case squarely fit into that.  Therefore, the judgment of this Court in Sri Laxmi Cloth Stores, Vijayawada, cannot be treated as a binding precedent.

The judgment of the Supreme Court in Gwalilar Oil Mill’s case was totally in a different context.  That was the case in which the names of the new partners, who filed the suit on behalf of the firm, were, no doubt, not entered in the register of firms as on the date of filing of the suit.  However, during the pendency of the suit, the reconstitution of the firm with the name of the person, who filed the suit, representing the firm, was certified with effect from 01.01.1976.  In that view of the matter, the Supreme Court held that the bar under Section 69 of the Act did not operate.  Such is not the case here.

For the foregoing reasons, the second appeal is dismissed.  There shall be no order as to costs.

The miscellaneous petition filed in this second appeal shall also stand disposed of.

____________________

L.NARASIMHA REDDY, J.   

Dated:15.02.2013

L.R. copy to be marked.

GJ

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Writ Petition No. of 2012

Date:.02.2013

GJ                                                                     

---

[1] 1999 (6) ALT 681

[2] (1999) 9 SCC 113

[3] (1989) 3 SCC 476

whether the appellants, who have been working as Child Development Project Officer (CDPO) in the Integrated Child Development Services (ICDS) since July, 1999, are entitled to be paid salary in the pay scale prescribed for that post.

Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2521 OF 2013
(Arising out of SLP(C) No. 7420 of 2012)
Arindam Chattopadhyay and others …Appellants
versus
State of West Bengal and others …Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. The question which arises for consideration in this appeal is whether
the appellants, who have been working as Child Development Project
Officer (CDPO) in the Integrated Child Development Services (ICDS)
since July, 1999, are entitled to be paid salary in the pay scale prescribed
for that post.
3. On being selected by the West Bengal Public Service Commission,
the appellants were appointed as Assistant Child Development Project
Officer (ACDPO) in 1986-87. After about 12 years, the competent
1Page 2
authority issued order dated 7.7.1999 with the concurrence of the Finance
Department of the Government whereby the petitioners were temporarily
transferred to ICDS projects to act as CDPOs in their existing pay scales.
4. The appellants made representation dated 15.2.2011 with the prayer
that they may either be promoted to the post of CDPO or be given pay
scale of that post by asserting that they had been discharging the duties of
the post of CDPO.
5. After about 2 years, the appellants filed O.A. No.330/2003 before
the State Administrative Tribunal, West Bengal (for short, ‘the Tribunal’)
and prayed for issue of a direction to the respondents to pay them salary
and allowances in the scale of Rs.5500-11200 attached to the post of
CDPO from the date they were working as acting CDPO, i.e., 7.7.1999. In
paragraph 4 of the application, the appellants averred as under:
“Your Applicants state that although your Petitioners have
been posted as Acting Child Development Project Officer,
(CDPO) by virtue of said Office Order (Annexure (‘P/l’)
and have been shouldering the higher responsibilities of
the post of C.D.P.O., the impugned order stipulates
that your Applicants and others covered by the said order,
should get pay and allowance in their existing pay scale
of A.C.D.P.O. Such denial of higher scale of pay and
allowances of the post of Child Development Project
Officer (CDPO) to your Applicants is unjust, improper and
illegal under the law of the land, since no employee
should get the pay and allowances of the post he holds,
even in Acting capacity. Your Applicants, therefore, pray
to the Hon'ble Bench for appropriate direction or
directions in the Respondents 1 to 3 to pay the pay and
allowance of the post of Child Development Project Officer
(CDPO), the scale of pay being Rs.470-1160/-(ROPA
1981)/1640-3625 (ROPA 1990)/5500-l1200 (ROPA 1988),
from the date of Applicants have been working as Acting
2Page 3
CSPO by dint of Office Order dated 07.07.99 (Annexure
‘P/1’).”
6. In the counter filed by the respondents, it was not disputed that the
appellants had been discharging the duties of CDPO but it was averred
that there is no recruitment rule exclusively for the post of CDPO which is
governed by West Bengal Junior Welfare Services Rules (for short, “the
Rules”). This is evinced from paragraphs 3 and 4 of the reply, which are
extracted below:
“(3) With regard to the statements made in paragraph
4.11 of the instant application the respondents state that
there is no recruitment rule exclusively for the post of CDPOS. The post of CDPOS are manned from the WBJSW service cadres along with 8 other posts. Hence the question
of changing recruitment rules for the post of CDPOS holds
no ground. In respect of the projects having no regular
CDPO the ACDPOS are ordered to hold the charge of the
projects in order to run the projects. It is a common practice of the Administration to order the office second in
command to hold the charge of the office whenever the
office first in command goes on leave, or tour, or otherwise the post falls vacant. Such duties have also been
mentioned in the job chart of the ACDPOS published by
the Government of India. To remain in charge does not
qualify him to enjoy the pay scale of the head of office.
The respondent deny and dispute all allegations, imputations and contentions made in this paragraph which are
not borne out by records and those which are contrary to
inconsistent with what have been stated above. All allegations, not specifically admitted herein shall be deemed to
have been set out herein and denied seriatim.
(4) With regard to the statements made in the rest of
the paragraphs of the instant application the respondents
state all the employees under the state of West Bengal
are governed by WBSR. Under WBSR, holding of temporary charge of a higher post does not qualify an officer to
enjoy the higher pay scale which is enjoyed by an officer
3Page 4
of higher cadre service normally holding the post. The
ACDPOS have been appointed under Rules framed for appointment to the post clearly mentioning the pay scales,
terms and conditions and job responsibilities. To remain
in charge of the CDPOs in their absence is within the job
chart of the ACDPOs. Hence question of violation of natural justice by not allowing them pay scale attached to the
WBJSWS does not arise. The respondents reiterate that
there is no pay scale specifically attached to the post of
CDPO, hence no question of allowing that pay scale to the
ACDPOs in charge of the projects at all arise. Proper steps
have been taken to fill up the posts of CDPOs with the
WBJSWS cadre but the process have been delayed due to
objection of ACDPOs themselves and such steps go
against their own interest as well.
Save those stated above and those which are matters of
record all other allegations made in these paragraphs are
denied.”
7. The Tribunal dismissed the Original Application vide order dated
16.9.2005 by recording the following observations:
“Now, the question to be decided is
whether the applicants are entitled to get the pay scale of
CDPO when they were posted there as Acting. In the instant case, from their order issued by a letter dated
07.07.99 it is clear that the ACDPOs, i.e., the applicants
were transferred temporarily to the ICDS projects to act
as CDPO officers in the existing scale of pay with immediate effect and until further orders. So, from the order itself it is clear that they were posted to act as CDPO in
their existing scale of pay. It is also categorically stated
by the respondent that there is no specific pay scale for
CDPOs. So, the question of issue of separate pay scale to
the applications does not arise.
Ld. Lawyer for the petitioners relied upon the judgement
reported in 1990 S.C. cases (L&S 1127). We have gone
through the said judgment. It is the settled principle of law
that each case shall be decided on its own merits. After
going through the said judgment we find that the order issued by the Deptt. is specific and clear. This runs as follows:-
"the Directors of Education, A & N Islands is pleased to
order the transfer of Shri Selveraj, primary School
4Page 5
Teacher attached to Middle School, Kanyapur to Directorate of Education (Scouts Section ) to look after the duties of Secretary (Scouts) with immediate effect. His pay
will be drawn against the post of Secretary (Scouts) under
GFR 77".
So, from the order itself it appears that it is already mentioned clearly the pay which will be drawn.
In the present case the order is also itself is very clear that
the applications will act as CDPO in their existing scale of
pay.
The applicants are also quite under the WBSR rules. The
said rule does not provide that holding the temporary
charge of a higher post qualify an officer to enjoy the
higher pay scale which is enjoyed by an office of a higher
cadre service normally holding the post. Considering all
these aspects we do not find any merit to consider the
prayer of the applicants. Hence, the application is dismissed on contest.”
8. The appellants challenged the order of the Tribunal in WPST
No.775/2005 but could not convince the High Court to entertain their
prayer. Their writ petition was dismissed vide order dated 5.12.2011, the
relevant portion of which is extracted below:
“In the instant case we find from the order of the Tribunal
that post of C.D.P.O. did not have any particular pay
scale. Be that as it may, once the petitioners were asked
to man the post temporarily, it would mean officiation in a
superior post that would attract appropriate officiating
allowance. Pay scale in the superior post can only be
achieved once they are promoted or absorbed in such
post on promotional basis. We, however deprecate the
practice of the State by asking them to temporarily man
such post without filling up the post on regular basis. It is
high time the State should look into the problem and
solve it on perpetual basis. Till then, the petitioner would
be entitled appropriate officiating allowance as per the
rules. Such officiating allowance would be available to the
petitioners from the date of filing of the petition before
5Page 6
the Tribunal.”
9. Shri S. Bhattacharjee, learned counsel for the appellants relied upon
the judgments of this Court in Selvaraj v. Lt. Governor of Island, Port
Blair and others (1998) 4 SCC 291 and State of West Bengal and others v.
Pantha Chatterjee and others (2003) 6 SCC 469 and argued that in view of
the doctrine of equality enshrined in Articles 14 and 16 read with Article
39(d), the appellants are entitled to be paid salary and allowances in the
scale meant for the post of CDPO because they are discharging the duties
of that post. Learned counsel further argued that the stipulation contained
in order dated 7.7.1999 that the appellants are temporarily transferred to
ICDS project to act as CDPOs in their existing pay scale cannot be made
the basis for depriving them of their constitutional right guaranteed under
Articles 14 and 16.
10. Learned counsel for the respondents referred to the provisions
contained in the Rules framed by the Governor under proviso to Article
309 of the Constitution to show that the post of CDPO is required to be
filled by promotion and argued that the appellants do not have the right to
be paid salary in the higher pay scale because they have so far not been
promoted as CDPOs.
11. We have considered the respective submissions. The applicability
of the doctrine of equality, enshrined in Articles 14 and 16 of the
6Page 7
Constitution, in the matter of pay and allowances was explained in
Randhir Singh v. Union of India (1982) 1 SCC 618 in the following
words:
“It is true that the principle of “equal pay for equal work”
is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal.
Article 39(d) of the Constitution proclaims “equal pay for
equal work for both men and women” as a directive principle of State Policy. “Equal pay for equal work for both
men and women” means equal pay for equal work for
everyone and as between the sexes. Directive Principles,
as has been pointed out in some of the judgments of this
Court have to be read into the fundamental rights as a
matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the
law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to
any office under the State. These equality clauses of the
Constitution must mean something to everyone. To the
vast majority of the people the equality clauses of the
Constitution would mean nothing if they are unconcerned
with the work they do and the pay they get. To them the
equality clauses will have some substance if equal work
means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and
smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the
matter of grant of licences or permits confers unfettered
discretion on the Executive, whether the take-over of the
empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions
of people of this country untouched. Questions concerning
wages and the like, mundane they may be, are yet matters
of vital concern to them and it is there, if at all that the
equality clauses of the Constitution have any significance
to them. The Preamble to the Constitution declares the
solemn resolution of the people of India to constitute India
into a Sovereign Socialist Democratic Republic. Again the
word “socialist” must mean something. Even if it does not
7Page 8
mean ‘to each according to his need’, it must at least
mean “equal pay for equal work”. “The principle of
“equal pay for equal work” is expressly recognized by all
socialist systems of law, e.g., Section 59 of the Hungarian
Labour Code, para 2 of Section 111 of the Czechoslovak
Code, Section 67 of the Bulgarian Code, Section 40 of the
Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has
been incorporated in several western Labour Codes too.
Under provisions in Section 31 (g. No. 2d) of Book I of
the French Code du Travail, and according to Argentinian
law, this principle must be applied to female workers in
all collective bargaining agreements. In accordance with
Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance” (vide
International Labour Law by Istvan Szaszy, p. 265). The
Preamble to the Constitution of the International Labour
Organisation recognises the principle of ‘equal remuneration for work of equal value’ as constituting one of the
means of achieving the improvement of conditions “involving such injustice, hardship and privation to large
numbers of people as to produce unrest so great that the
peace and harmony of the world are imperilled”. Construing Articles 14 and 16 in the light of the Preamble and
Article 39 (d), we are of the view that the principle “equal
pay for equal work” is deducible from those Articles and
may be properly applied to cases of unequal scales of pay
based on no classification or irrational classification
though those drawing the different scales of pay do
identical work under the same employer.”
(emphasis supplied)
12. Though the judgment in Selvaraj v. Lt. Governor of Island, Port
Blair and others (supra) can be distinguished on the ground that in the order passed by the competent authority requiring the appellant, who was
holding the post of primary teacher, to look after the duties of Secretary
8Page 9
(Scouts), it was mentioned that pay will be drawn against the post of Secretary (Scouts) under general fundamental rules, the principles laid down
in State of West Bengal and others v. Pantha Chatterjee and others (supra)
has direct bearing on the question arising in this appeal. The respondents
in that case were appointed as part-time Border Wing Home Guards.
They filed writ petition before the Calcutta High Court with the complaint
that they were being discriminated vis-à-vis other regular Border Wing
Home Guards of West Bengal and the Border Security Force Personnel
despite the fact that they were performing similar duties and discharging
same responsibilities. The learned Single Judge referred to the judgments
in Bhagwan Dass v. State of Haryana (1987) 4 SCC 634, Daily Rated
Casual Labour through Bhartiya Dak Tar Mazdoor Manch v. Union of India (1988) 1 SCC 122 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress 1991 Supp (1) SCC 600, and held that the respondents are
entitled to the same benefits as are admissible to the permanent Border
Wing Home Guards. The Division Bench of the High Court agreed with
the learned Single Judge and dismissed the appeal filed by the State of
West Bengal with some modification. While dismissing the appeal, this
Court observed:
“There is no dispute about the fact that there has been disparity in emoluments and other working conditions,
between the part-time BWHG and the BWHG on the permanent staff although both have been deployed for performing the same nature of duties and have been working
9Page 10
for the same duration in the same conditions but one of
them with and the other without the necessities of the job,
facilities and benefits of the service. It is true and rightly
held that BWHG could not compare themselves with BSF
personnel but the difference between the permanent staff
and the part-time staff which had been made in the
Scheme was obliterated and rendered ineffective. There is
no real distinction between the two, namely, the permanent BWHG and the part-time BWHG in absence of nonrelease of the latter after three months of the appointment,
as per the Scheme. It has not been indicated by the appellants or the Union of India that the petitioners were ever
disengaged of their assignment temporarily or the State
Government had availed of their services after due and
prior permission of the Central Government, or they were
ever freed to resume their old vocational pursuits. It is in
the affidavit of the authorities that BWHG are under operational command of BSF authorities, when deployed for
patrolling along the Indo-Bangladesh border. In the background of what has been indicated above, in our view the
findings arrived at by the High Court cannot be faulted
with.
With a view to recapitulate the legal position, we may
briefly refer to some decisions of this Court apart from
those relied upon by the High Court. In a decision reported in Jaipal v. State of Haryana (1988) 3 SCC 354 it has
been held to be a constitutional obligation to ensure equal
pay for equal work where the two sets of employees discharge similar responsibilities under similar working conditions. The plea of temporary or casual nature of employment or full-time and part-time employees had been negated. Similarly, in the case reported in Dhirendra Chamoli
v. State of U.P. (1986) 1 SCC 637 it was held that casual
workers could not be denied same emoluments and benefits as admissible to the temporary employees on the
ground that they had accepted the employment with full
knowledge of their disadvantage. In Grih Kalyan Kendra
Workers' Union v. Union of India (1991) 1 SCC 619
though on facts no discrimination was found but the principle of “equal pay for equal work” was upheld and recognized where all were placed similarly and discharging
same duties and responsibilities irrespective of the casual
nature of work. This right had been held to have assumed
10Page 11
the status of a fundamental right in service jurisprudence
having regard to the constitutional mandate of “equality”
in Articles 14 and 16. In Daily Rated Casual Labour
through Bhartiya Dak Tar Mazdoor Manch v. Union of
India (1988) 1 SCC 122 right of daily-rated casual workers in the P & T Department was recognized and they
were directed to be paid in minimum of the scale as was
admissible to the regular workers as both discharged similar work and responsibilities.”
(emphasis supplied)
13. Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and
posted them to work as CDPOs in ICDS projects. If this would have been
a stop gap arrangement for few months or the appellants had been given
additional charge of the posts of CDPO for a fixed period, they could not
have legitimately claimed salary in the scale of the higher post, i.e.,
CDPO. However, the fact of the matter is that as on the date of filing of
the Original Application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of
the writ petition, they had worked on the higher post for about 6 years. By
now, they have worked as CDPOs for almost 14 years and discharged the
duties of the higher post. It is neither the pleaded case of the respondents
nor any material has been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the
degree of their responsibility is different from other CDPOs. Rather, they
have tacitly admitted that the appellants are working as full-fledged CD-
11Page 12
POs. since July, 1999. Therefore, there is no legal or other justification for
denying them salary and allowances of the post of CDPO on the pretext
that they have not been promoted in accordance with the Rules. The convening of the Promotion Committee or taking other steps for filling up the
post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government’s failure to undertake
the exercise of making regular promotions.
14. In the result, the appeal is allowed. The impugned order as also the
one passed by the Tribunal are set aside and the respondents are directed
to pay salary and allowances to the appellants in the pay scale of the post
of CDPO with effect from the date they took charge of those posts. This
exercise must be completed within 8 weeks from today. The arrears shall
be paid to the appellants within a period of 9 months.
15. Since regular promotions to the post of CDPO have not been made
for more than one decade, we direct the respondents to do the needful
within a period of six months from today.
..….………………….…J.
 [G.S. SINGHVI]
..….………………….…J.
 [H.L. GOKHALE]
New Delhi,
March 13, 2013.
12

whether the respondent, who had sought voluntary retirement from service and was paid gratuity by the appellant under the Payment of Gratuity Act, 1972 (for short, ‘the 1972 Act’) along with Contributory Provident Fund is entitled to pension. At this stage, we may mention that vide communication dated 14.7.1986 sent to the Central Government, the appellant had sought exemption from the operation of the 1972 Act but its prayer was not entertained. It is also worth noticing that in pursuance of industry level settlement signed on 24.4.2010, the appellant offered another option to those employees who could not exercise option for pension under the 1995 Scheme and the respondent exercised such option vide letter dated 22.9.2010. 17. Reference may also be made to Section 14 of the 1972 Act, which reads as under: “Section 14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.” In view of the plain language of the above reproduced provision, which contains a non-obstante clause, every eligible employee is, notwithstanding anything inconsistent contained in any other enactment or instrument or contract is entitled to gratuity. Therefore, even if the respondent had opted for pension, he could have legitimately claimed gratuity without being required to refund the amount of pension already received by him. In the result, the appeal is dismissed. The appellant is directed to implement the order of the High Court within a period of eight weeks from today.

Page 1
NON-REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9024 OF 2012
Allahabad Bank …Appellant
versus
A.C. Aggarwal …Respondent
J U D G M E N T
G. S. Singhvi, J.
1. The question which arises for consideration in this appeal filed
against the order of the Allahabad High Court is
whether the respondent,
who had sought voluntary retirement from service and was paid gratuity by the appellant under the Payment of Gratuity Act, 1972 (for short, ‘the 1972 Act’) along with Contributory Provident Fund is entitled to pension.
2. The appellant’s predecessor, i.e., Allahabad Bank Ltd. was
established in 1865. Its employees were given pensionary benefits w.e.f.
14.3.1890. After 22 years, the Board of Directors of the appellant’s
predecessor passed Resolution dated 2.3.1912 vide which the benefit of
1Page 2
Contributory Provident Fund was extended to the employees. The
appellant’s predecessor was nationalized in 1969 along with 13 other
commercial banks through the Banking Companies (Acquisition and
Transfer of Undertakings) Ordinance, 1970, which was repealed by the
Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970 (for short, ‘the 1970 Act’). Section 12(2) of that Act reads as under:
“Save as otherwise provided in sub-section (1), every officer or
other employee of an existing bank shall become, on the
commencement of this Act, an officer or other employee, as the
case may be, of the corresponding new bank and shall hold his
office or service in that bank on the same terms and conditions and
with the same rights to pension, gratuity and other matters as
would have been admissible to him if the undertaking of the
existing bank had not been transferred to and vested in the
corresponding new bank and continue to do so unless and until his
employment in the corresponding new bank is terminated or until
his remuneration, terms or conditions are duly altered by the
corresponding new bank.”
3. In 1974, the appellant framed a scheme titled ‘Allahabad Bank
Employees’ Pension Scheme (Old)’ (for short, ‘the Old Pension
Scheme’). Thereafter, circular dated 10.3.1975 was issued and the
employees/officers were given the choice to opt for payment of gratuity
or pension under the Old Pension Scheme. After four years, the appellant
framed the Allahabad Bank (Officers’) Service Regulations, 1979 (for
short, ‘the Regulations’). In terms of clause 46 of the Regulations, the
officers became entitled to gratuity equivalent to one month pay for every
completed year of service subject to a maximum of 15 months. The
proviso to Regulation 46 postulated payment of additional gratuity at the
2Page 3
rate of half month’s pay for each completed year of service to those who
had completed more than 30 years service. After 20 years, the appellant
notified Allahabad Bank Employees’ Pension Regulations, 1995.
4. The respondent joined service as Clerk in 1961. He was promoted
as an officer with effect from 10.08.1970 and was granted Middle
Management Scale-III in September, 1993. After serving the appellant
for almost 40 years, the respondent applied for voluntary retirement under
the Voluntary Retirement Scheme, 2000. His application was accepted by
the competent authority and he was relieved from service w.e.f.
30.04.2001. He was paid gratuity under the 1972 Act along with the
amount of Contributory Provident Fund. The respondent made
representations dated 30.7.2001, 6.10.2001 and 20.10.2001 for grant of
pension but the concerned authority of the appellant did not give any
response. However, in reply to the notice sent by the respondent, the
appellant informed him vide letter dated 24.11.2001 that he can get
benefit under the Old Pension Scheme subject to the condition of refund
of the amount of gratuity already paid to him and submission of an
irrevocable undertaking that he will be getting pension in lieu of the
gratuity. The relevant portions of that letter are extracted below:
“In response to your above notice of the 9th instant we have to
advise that your client is entitled to old pension in lieu of Gratuity
provided he fulfils the relevant criteria as required by the bank
which are as under :-
3Page 4
(1) Sri A.C. Aggarwal has to complete 30 years of active
service and should have been recruited/promoted as an officer on
or before 1.7.79.
(2) He has to refund the entire gratuity amount already
released through the disbursing branch and remit the
same by a CREDIT ADVICE (Ct 20A) alongwith the copy of
Gratuity receipt duly discharged.
(3) He has to submit an irrevocable undertaking
stating that he is interested to receive old
Pension in lieu of Gratuity.”
5. The respondent challenged the aforesaid communication in Writ
Petition No.2261 of 2002 and prayed that the appellant be directed to
release the pensionary benefits with effect from 30.4.2001 along with
interest at the rate of 24% per annum or, in the alternative, pay him
pension under the New Pension Scheme. He pleaded that the decision of
the appellant to insist upon the refund of gratuity as a condition for
payment of pensionary benefits is ultra vires the provisions of the 1972
Act and Articles 14, 16 and 21 of the Constitution. In para 25 of the writ
petition, the respondent averred that the State Bank of India was paying
gratuity to its employees in addition to other retiral benefits and,
therefore, there was no justification to discriminate the employees and
officers of the appellant. In support of his claim, the appellant relied upon
the judgment of this Court in Som Prakash Rekhi v. Union of India
(1981) 1 SCC 449. He further pleaded that in terms of Resolution dated
2.3.1912 passed by the Board of Directors of the appellant’s predecessor,
the employees were entitled to the benefit of pension as well as gratuity
4Page 5
and, as such, there was no justification to ask him to refund the amount of
gratuity as a condition for grant of pensionary benefits.
6. In the counter affidavit filed on behalf of the appellant, reliance
was placed on Chapter II of the Regulations and Section 19 of the 1970
Act and it was pleaded that the employees who are paid gratuity under
the 1972 Act are not entitled to pension. The appellant also relied upon
the judgments of this Court in Ramesh Hiranand Kundanmal v.
Municipal Corporation, Greater Bombay (1992) 2 SCC 472 and Delhi
Transport Corporation Retired Employees’ Association v. Delhi
Transport Corporation (2001) 6 SCC 61 and pleaded that the respondent
is not entitled to the benefit of pension because he had already been paid
gratuity under the 1972 Act.
7. The Division Bench of the High Court relied upon the judgment of
this Court in Allahabad Bank and another v. All India Allahabad Bank
Retired Employees Association (2010) 2 SCC 44 and held that the
respondent is entitled to pension in addition to gratuity already paid to
him under the 1972 Act.
8. Shri R.F. Nariman, learned senior counsel for the appellant argued
that the impugned order is liable to be set aside because it is based on
misreading of the judgment in Allahabad Bank and another v. All India
Allahabad Bank Retired Employees Association (supra). Learned senior
5Page 6
counsel submitted that the only point raised, argued and considered in the
Allahabad Bank and another v. All India Allahabad Bank Retired
Employees Association (supra) was whether the employees, who had
already availed benefit under the Old Pension Scheme, were estopped
from claiming benefits under the 1972 Act and the answer given by this
Court was limited to the entitlement of the employees to receive gratuity.
Shri Nariman emphasized that in that case, the Court was not called upon
to decide the question whether retired employees/officers of the appellant
are entitled to get double benefits, i.e., gratuity under the 1972 Act and
pension under the Old Pension Scheme and, therefore, that judgment
could not have been made basis by the High Court for declaring that the
respondent is entitled to pension in addition to gratuity already received
by him. Shri Nariman relied upon some of the judgments on the
interpretation of statutes and understanding of the ratio of the Courts’
judgment and argued that the declaration granted by this Court that the
retired employees are entitled to benefits under the 1972 Act cannot lead
to an inference that the employees who have already received benefit
under the 1972 Act can claim pension without refunding the amount of
gratuity.
9. Shri Jitendra Sharma, learned senior counsel supported the
impugned order and argued that the High Court did not commit any error
6Page 7
by ordaining payment of pension to the respondent because his case is
squarely covered by the ratio of the judgment in Allahabad Bank and
another v. All India Allahabad Bank Retired Employees Association
(supra) and order dated 29.1.2010 passed in IA No. 6 of 2009. Learned
senior counsel argued that the appellant is under a statutory obligation to
pay gratuity under the 1972 Act and an employee who has been paid
gratuity cannot be denied pension under the Old Pension Scheme by
requiring him to refund the amount of gratuity. He submitted that there
cannot be any estoppel against the statute and the respondent cannot be
deprived of the benefit of pension under the Old Pension Scheme merely
because he has been paid gratuity under the 1972 Act.
10. We have considered the respective arguments. In Allahabad Bank
and another v. All India Allahabad Bank Retired Employees Association
(supra), this Court considered the question whether the retired employees
who have received pension are entitled to gratuity under the 1972 Act.
The Association of retired employees had represented to the appellant
that its members be paid gratuity in accordance with the provisions of the
1972 Act. The appellant rejected the claim of the Association and this
was conveyed vide letter dated 10.1.1989 sent by the Chief Manager (PA)
to the General Secretary of the Association, the relevant portion of which
is extracted below:
7Page 8
“Ref. No. Admn./5/0280 Dated: 10-1-1989
The General Secretary,
All India Allahabad Bank Retired
Employees Association,
Central Office, Ram Bhawan,
C-1254B, Sector-A,
Mahanagar, Lucknow.
Dear Sir,
Payment of Gratuity
This has reference to your letter Bank/14/8 dated 14-11-
1988 and enclosures.
In this connection, we have to advise that Allahabad Bank
has accepted Contributory Provident Fund Scheme, which is
not available to government employees. Besides this, the
Bank has a pension scheme in which an employee/officer
may exercise option for pension or gratuity; but the dual benefits are not available under the scheme. Since the respective pensioners have exercised their option voluntarily for
availing of pension in lieu of gratuity on their retirement
from the Bank's service, they are not eligible for gratuity at
all. They are receiving pension since their retirement and as
such we are not in a position to accede to your request for
payment of gratuity in addition to pension to the persons
named in your letter under reference.
Yours faithfully,
sd./-
(R.K. Nath)
Chief Manager (P.A.)”
11. The Association challenged the decision of the appellant bank by
filing writ petition under Article 226 of the Constitution. It was the
pleaded case of the Association that the consent or option given by the
employees for Pension Scheme cannot be made basis for depriving them
8Page 9
of their statutory right to gratuity under the 1972 Act. The appellant
contested the writ petition by relying upon the awards known as ‘Shastry
Award’ and ‘Desai Award’ and the Settlements under which the
employees were entitled either to the benefit of pension or of gratuity at
one’s own option but not the both. It was the specific case of the
appellant that the members of the Association had voluntarily opted for
the pension scheme and, as such, they are not entitled to gratuity.
According to the appellant, all the employees were paid the amount of
contributory provident fund and pension in terms of the option exercised
by them and, therefore, they were estopped from claiming gratuity under
the 1972 Act.
12. The High Court allowed the writ petition and directed the appellant
to pay gratuity to the employees who had opted for pension. On appeal by
the bank, the two Judge Bench of this Court noted the background in
which the 1972 Act was enacted by Parliament, referred to Section 5
thereof which empowers the appropriate Government to exempt any
establishment, factory, mine, oil field, plantation, etc. and observed:
“A plain reading of the provisions referred to hereinabove
makes it abundantly clear that there is no escape from payment of gratuity under the provisions of the Act unless the
establishment is granted exemption from the operation of the
provisions of the Act by the appropriate Government.”
The Bench then referred to the judgments in Som Prakash Rekhi v. Union
9Page 10
of India (1981) 1 SCC 449, Sudhir Chandra Sarkar v. TISCO Ltd. (1984)
3 SCC 369 and observed:
“Gratuity payable to an employee on the termination of his
employment after rendering continuous service for not less
than 5 years and on superannuation or retirement or resignation, etc. being a statutory right cannot be taken away except
in accordance with the provisions of the Act whereunder an
exemption from such payment may be granted only by the
appropriate Government under Section 5 of the Act which itself is a conditional power. No exemption could be granted
by any Government unless it is established that the employees are in receipt of gratuity or pension benefits which are
more favourable than the benefits conferred under the Act.
In our considered opinion, pensionary benefits or the retirement benefits as the case may be whether governed by a
scheme or rules may be a package consisting of payment of
pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not
exclude the other. Only in cases where the gratuity component in such pension schemes is in better terms in comparison
to that of what an employee may get under the Payment of
Gratuity Act the Government may grant an exemption and
relieve the employer from the statutory obligation of payment of gratuity.”
The appellant’s plea that under the Old Pension Scheme, an employee is
entitled to only two terminal benefits, viz., Contributory Provident Fund
and either gratuity or pension was negatived by the Court in the following
words:
“It is not the case of the Bank that at the time of superannuation of the employees there was a scheme for payment of
gratuity under which the employees were entitled to payment of gratuity and the said scheme in comparison to that
of the provisions of the Act was more beneficial to the work-
10Page 11
men. On the other hand, the scheme that was prevalent at the
relevant time in clear and categorical terms provided that:
“the gratuity will not be payable in case where a pension is granted by the Bank. But if a pensioned officer
should die before receiving any pension payments an
aggregate sum at least equal to the gratuity which he
would otherwise have received then the Bank will pay
the difference between such aggregate sum and gratuity to the officer's widow; if any, otherwise to his
legal representative.”
Be it noted that in the counter-affidavit filed in the High
Court the Bank placed reliance on Shastry and Desai
Awards which have taken the view that Allahabad Bank
which had pension scheme of its own was more advantageous than the provisions of the gratuity to its employees. It is
asserted that under the said Awards and the subsequent settlements an employee is entitled to receive either the benefit
of pension or gratuity at his own option but not both. The
contention was that such of those employees who had voluntarily opted for pension scheme were not entitled to receive
gratuity as well. The respective comparative figures under
pension and/or gratuity, in terms of Shastry/Desai Awards
and/or Bipartite Settlement on one hand and the gratuity
payable under the Act on the other were made available for
the perusal of the Court to buttress the Bank's submission
that what has been paid to the employees was better in terms
and more favourable than the benefits conferred under the
Act.
The submission is totally devoid of any merit for more than
one reason, namely, that it is for the appropriate Government
to form the requisite opinion that the employees were in receipt of gratuity or pensionary benefits which were more favourable than the benefits conferred under the Act and therefore, the establishment must be exempted from the operation
of the provisions of the Act. The Bank having failed to obtain exemption from the operation of the provisions of the
Act cannot be permitted to raise this plea.
No establishment can decide for itself that employees in
such establishments were in receipt of gratuity or pensionary
benefits not less favourable than the benefits conferred un-
11Page 12
der the Act. Sub-section (5) of Section 4 protects the rights
of an employee to receive better terms of gratuity from its
employer under any award or agreement or contract as the
case may be. Admittedly, the Scheme under which the employees of the Bank received the pension was in lieu of gratuity. There is no question of comparing the said Scheme
and arrive at any conclusion that what they have received
was much better in terms than the benefits conferred under
the Act. Reliance upon sub-section (5) of Section 4 is therefore unsustainable.
In the present case the real question that arises for our consideration is whether the employees having exercised their
option to avail the benefits under the pension scheme are estopped from claiming the benefit under the provisions of the
Act?
The appellant being an establishment is under the statutory
obligation to pay gratuity as provided for under Section 4 of
the Act which is required to be read along with Section 14 of
the Act which says that the provisions of the Act shall have
effect notwithstanding anything inconsistent therein contained in any enactment or in any instrument or contract
having effect by virtue of any enactment other than this Act.
The provisions of the Act prevail over all other enactments
or instruments or contracts so far as the payment of gratuity
is concerned. The right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or
contract.”
The Court also referred to an interlocutory order passed on 22.3.2006
whereby the parties were directed to appear before the Controlling
Authority and the latter was directed to decide whether the benefits
admissible to the employees under the Old Pension Scheme were more
beneficial than the gratuity payable under the 1972 Act, referred to the
decision of the Controlling Authority and held:
12Page 13
“Section 7 deals with procedure for determination of the
amount of gratuity. Every person who is eligible for payment of gratuity under the Act is required to send a written
application to the employer in the prescribed form for payment of such gratuity. Sub-section (2) of Section 7 provides
that once the gratuity becomes payable, the employer shall,
whether an application has been made or not, determine the
amount of gratuity and give notice in writing to the person to
whom the gratuity is payable and also to the Controlling Authority specifying the amount of gratuity so determined and
arrange to pay the amount of gratuity to the person to whom
the gratuity is payable.
The scheme envisaged under Section 7 of the Act is that in
case of any dispute as to the amount of gratuity payable to
an employee under the Act or as to the admissibility of any
claim of, or in relation to, an employee payable to gratuity,
etc. the employer is required to deposit with the Controlling
Authority the admitted amount payable as gratuity. In case
of any dispute the parties may make an application to the
Controlling Authority for deciding the dispute who after due
inquiry and after giving the parties to the dispute, a reasonable opportunity of being heard, determine the matter or
matters in dispute and if, as a result of such inquiry any
amount is found to be payable to the employee, the Controlling Authority shall direct the employer to pay such
amount to the employee.
Sub-section (7) of Section 7 provides for an appeal against
the order of the Controlling Authority. The Act nowhere
confers any jurisdiction upon the Controlling Authority to
deal with any issue under sub-section (5) of Section 4 as to
whether the terms of gratuity payable under any award or
agreement or contract is more beneficial to employees than
the one provided for payment of gratuity under the Act. This
Court's order could not have conferred any such jurisdiction
upon the Controlling Authority to decide any matter under
sub-section (5) of Section 4, since Parliament in its wisdom
had chosen to confer such jurisdiction only upon the appropriate Government and that too for the purposes of considering to grant exemption from the operation of the provisions
of the Act.
13Page 14
Even on merits the conclusions drawn by the Controlling
Authority that the Pension Scheme (Old) offered by the
Bank is more beneficial since the amount of money the pensioners got under the pension scheme is more than the
amount that could have been received in the form of gratuity
under the provisions of the Act is unsustainable. The Controlling Authority failed to appreciate that sub-section (5) of
Section 4 of the Act protects the right of an employee to receive better terms of gratuity under any award or agreement
or contract with the employer than the benefits conferred under the Act. The comparison, if any, could be only between
the terms of gratuity under any award or agreement or contract and payment of gratuity payable to an employee under
Section 4 of the Act. There can be no comparison between a
pension scheme which does not provide for payment of any
gratuity and right of an employee to receive payment of gratuity under the provisions of the Act.”
13. IA No.6 of 2009 filed by the Association for clarification was
disposed of by this Court vide order dated 29.1.2010, the relevant portion
of which is extracted below:
“We have heard learned counsel for the petitioner as well as
learned counsel appearing for the Bank.
Paragraph 28 of the Judgment shall now read as under:
“Judgment is, however, applicable to all the members
of the Petitioner's Association/Pensioners in the
respondent-Bank governed by the Pension
Regulations (old) 1890 of the Bank as well as those
pensioners who retired during the period 1.1.1986 to
31.10.1993.
It is made clear that such of those officers of the Bank
working prior to 1.7.1979 and have retired after
coming into force of the said Act on 31st October,
1993, shall alone be entitled for the benefits.”
I.A. is disposed of accordingly.”
14Page 15
14. In the impugned order, the Division Bench of the High Court
noticed the aforesaid judgment of this Court and observed:
“Though the Supreme Court limited the judgment aforesaid
to the employees of the Bank working prior to 1st July, 1979
and who had retired after coming into force of the said Act
on 31st October, 1993 and in which the petitioner as
aforesaid is covered but even if we were to consider the case
of the petitioner as not covered by the said dates, the counsel
for the respondent Bank is unable to show as to how the
ratio aforesaid of the judgment would not apply to the
petitioner. The petitioner is admitted to be entitled to
pension under the Old Pension Scheme of the year 1890 of
the respondent Bank. The said pension is sought to be
denied to the petitioner only for the reason of the gratuity
under the Gratuity Act having been paid to the petitioner but
which gratuity the Supreme Court has held to be a statutory
right not affected by the pension. 
We have also put it to the
counsel for the respondent Bank as to whether the petitioner
would not have been in the same position as the retired
employees before the Supreme Court had he not been paid
gratuity and had started availing of the pension and would
have thereafter claimed the gratuity. No reply to the said
proposition has been forthcoming.”
15. In our view, the High Court’s interpretation/understanding of the
judgment of this Court is correct and there is no merit in the argument of
Shri Nariman that the respondent, who had received gratuity under the
1972 Act, is not entitled to pension or that he must refund the amount of
gratuity as a condition for payment of pension.
16. At this stage, we may mention that vide communication dated
14.7.1986 sent to the Central Government, the appellant had sought
15Page 16
exemption from the operation of the 1972 Act but its prayer was not
entertained. It is also worth noticing that in pursuance of industry level
settlement signed on 24.4.2010, the appellant offered another option to
those employees who could not exercise option for pension under the
1995 Scheme and the respondent exercised such option vide letter dated
22.9.2010. 
17. Reference may also be made to Section 14 of the 1972 Act, which
reads as under:
“Section 14. Act to override other enactments, etc. –
 The
provisions of this Act or any rule made thereunder shall
have effect notwithstanding anything inconsistent therewith
contained in any enactment other than this Act or in any
instrument or contract having effect by virtue of any
enactment other than this Act.”
18. In view of the plain language of the above reproduced provision,
which contains a non-obstante clause, every eligible employee is,
notwithstanding anything inconsistent contained in any other enactment
or instrument or contract is entitled to gratuity. Therefore, even if the
respondent had opted for pension, he could have legitimately claimed
gratuity without being required to refund the amount of pension already
received by him.
19. In the result, the appeal is dismissed. The appellant is directed to
16Page 17
implement the order of the High Court within a period of eight weeks
from today.
………………………….J.
 [G.S. SINGHVI]
………………………….J.
[GYAN SUDHA MISRA]
New Delhi,
March 13, 2013.
17

Sections 304B and 498A, IPC= In the alternative, the Trial Court and the High Court could have sought for an expert's opinion under Section 45 of the Evidence Act on whether the handwriting and signature were that of the deceased. But unfortunately, neither the Trial Court nor the High Court have resorted to these provisions of the Evidence Act and instead by their own imaginary reasoning disbelieved the defence of the appellant that Ext.D19 could not have been written by the deceased.- “While cleaning our house we found a chit on our dressing table. The said chit was written by my wife and it is in her handwriting and it also contains her signature. Ex. D 19 is the said chit. I identified the handwriting of my wife in Ex. D19 because my wife used to write chits for purchasing of monthly provisions as such on tallying the said chit and Ex. D19 I came to know that it was written by my wife only. Immediately I took the Ex. D19 to the P.S. Mangalhat and asked them to receive but they refused to take the same.” From the aforesaid evidence, it is clear that while cleaning the house the appellant came across a chit written in the handwriting of his wife and containing her signature. This chit has been marked as Ext. D19 and the appellant has identified the handwriting and signature of the deceased in Ext. D19 which is written in Hindi. The English translation of Ext.D19 reproduced in the impugned judgment of the High Court is extracted hereinbelow: “I, Meenakshi W/o Vipin Kumar, do hereby execute and commit to writing this in my sound mind, consciousness and senses and with my free will and violation to the effect that nobody is responsible for my death. My parents family members have harassed much to my husband. I am taking this step as I have fed up with his life. Due to me the quarrels are taking place here, as such I want to end my life and I beg to pardon by all.” It appears from Ext. D19 that the deceased has written the chit according to her free will saying that nobody was responsible for her death and that her parents and family members have harassed her husband and she was taking the step as she was fed up with her life and because of her quarrels were taking place. 8. When the appellant, who is the husband of the deceased, has said in his evidence as DW1 that the aforesaid chit (Ext. D19) has been written by the deceased herself and has been signed by her and it also appears from his evidence quoted above that he was acquainted with her handwriting and signature, the Trial Court and the High Court could have recorded a finding one way or the other by comparing her handwriting and signature with some of her other handwritings and signatures under Section 73 of the Evidence Act. In the alternative, the Trial Court and the High Court could have sought for an expert's opinion under Section 45 of the Evidence Act on whether the handwriting and signature were that of the deceased. But unfortunately, neither the Trial Court nor the High Court have resorted to these provisions of the Evidence Act and instead by their own imaginary reasoning disbelieved the defence of the appellant that Ext.D19 could not have been written by the deceased. 9. In our considered opinion, the evidence of DW1 (the appellant) and Ext.D19 cast a reasonable doubt on the prosecution story that the deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A, IPC and the essential ingredient of offence under Section 498A is that the accused, as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to Section 498A, IPC. Similarly, for the Court to draw the presumption under Section 113B of the Evidence Act that the appellant had caused dowry death as defined in Section 304B, IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment or cruelty, neither of the offences under Sections 498A and 304B, IPC has been made out by the prosecution. 10. We accordingly allow this appeal, set aside the impugned judgment of the High Court and that of the Trial Court and direct that the bail bond furnished by the appellant shall stand discharged.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1431 OF 2007
VIPIN JAISWAL(A-I) Appellant (s)
VERSUS
STATE OF A.P. REP.BY PUB.PROSECUTOR Respondent(s)
JUDGMENT
A.K. PATNAIK, J.
This is an appeal against the judgment dated 11th
December, 2006 of the Andhra Pradesh High Court in
Criminal Appeal No. 544 of 2003.
2. The facts briefly are that an FIR was lodged
by Gynaneshwar Jaiswal on 4.4.1999 at 2.15 p.m. in
Mangalhat Police Station, Hyderabad. In the FIR it was
stated by the informant that his daughter Meenakshi
Jaiswal was married to the appellant on 22.2.1996 and
at the time of marriage he gave sufficient goldPage 2
2
jewellery, silver items, furniture, electrophinic
gadgets etc., worth above Rs.2,50,000/- but ever since
her marriage, she was subjected to physical and mental
torture by her husband Vipin Jaiswal, her husband's
parents Prem Kumar Jaiswal and Yashoda Bai and her
husband's sister Supriya and her husband and they all
brutally assaulted her on innumerable occasions for not
getting sufficient dowry. It was further stated in the
FIR that on 2.4.1999 the informant received a call from
the appellant and he went to the house of the appellant
along with his relatives to find out what had happened
as well as to give invitation for a function at his
place but they all abused him and the appellant
physically assaulted and pushed him out from the house
but fearing the safety of his daughter and her welfare,
he did not report the matter to the police. It is
further stated in the FIR that on 4.4.1999 at about
1.00 p.m. when he came back home, he was informed on
telephone by his son that Meenakshi had received severe
burn injuries and as a result died in the house of the
appellant. The police registered a Criminal Case under
Section 304B, IPC and took up investigation and
submitted a charge-sheet against the appellant and his
other relatives under Sections 304B and 498A, IPC.Page 3
3
3. At the trial, besides other witnesses, the
prosecution examined the father of the deceased
(informant) as PW 1, the cousin of PW 1 as PW 2 and the
mother of the deceased as PW 4. The appellant
volunteered to be a witness and got examined himself as
DW 1 and took the defence that the deceased had left
behind a suicide note written by her one day before her
death in which she has stated that she had committed
suicide not on account of any harassment by the
appellant and her family members but due to the
harassment by her own parents. The Trial Court,
however, disbelieved the defence and convicted the
appellant and his other relatives under Sections 304B
and 498A, IPC. The Trial Court in particular held that
there was material that two days prior to the death of
the deceased, her father (PW1) and his relative (PW2)
were called by her and told that she has been harassed
by the appellant and her in laws for not being paid the
amount demanded by the appellant and when PWs 1 and 2
went to the house of the appellant, they were abused by
the appellant and on 4.4.1999, PW 1 and others were
informed by one Suresh Kumar, a neighbour of the
appellant, about the incident. From the aforesaid and
other evidence, the Trial Court came to the conclusion
that the deceased was subjected to torture andPage 4
4
harassment by the accused, mainly for the reason that
an amount of Rs.50,000/- was not given to the appellant
by PW 1. The appellant and other relatives of the
appellant carried Criminal Appeal No. 544 of 2003
before the High Court and by the impugned judgment, the
High Court acquitted the two other relatives of the
appellant (A2 and A3) but maintained the conviction of
the appellant under Sections 304B and 498A, IPC.
4. At the hearing before us, learned senior
counsel for the appellant submitted that the findings
of the Trial Court and of the High Court with regard to
the demand of dowry are in relation to the demand of
Rs.50,000/-. He submitted that this demand of
Rs.50,000/- is not mentioned in the FIR (Ext. P1). He
further submitted that in any case, the evidence of PW1
and PW4 is clear that this demand of Rs.50,000/- by the
appellant was not a dowry demand but an amount which
the appellant wanted from the family of the deceased to
purchase a computer and set up his own business. He
further submitted that the Trial Court and the High
Court ought not to have disbelieved the suicide note
(Ext. D19) which was in the handwriting of the deceased
as proved by DW1. In this context, he explained that
the signature on the suicide note (Ext. D19) purportingPage 5
5
to be that of the deceased, tallied with the signature
of the deceased in Ext. D1 which was a hall ticket
issued by Dr. B.R. Ambedkar Open University for an
examination which the deceased took in March, 1998.
5. Learned counsel for the State, on the other
hand, submitted that both the Trial Court and the High
Court have discussed the evidence of the prosecution
witnesses, and in particular, the evidence of PWs 1, 2
and 4 to establish that there was demand of dowry of
not only Rs.50,000/- but other items as well. He
further submitted that Section 2 of the Dowry
Prohibition Act, 1961 defines 'dowry' as any property
or valuable security given or agreed to be given either
directly or indirectly at or before or any time after
the marriage in connection with the marriage of the
parties to the marriage. He submitted that the
expression “in connection with the marriage of the
parties to the marriage” is wide enough to cover the
demand of Rs.50,000/- made by the appellant for
purchase of a computer. He further submitted that so
far as the suicide note (Ext. D19) is concerned, the
same cannot be believed to have been written by the
deceased who was only a matriculate and the High Court
has given good reasons in the impugned judgment why thePage 6
6
suicide note cannot be believed to have been written
by the deceased. He argued that in any case only on the
basis of the evidence given by DW1, the Court cannot
hold that the suicide note had been written by
the deceased and not by someone else. He submitted that
since the prosecution has been able to prove that the
deceased had been subjected to not only a demand
of dowry but also cruelty soon before her death,
the Trial Court and the High Court have rightly
held the appellant guilty both under Sections 304B and
498A, IPC.
6. We have perused the evidence of PW 1 and
PW 4, the father and mother of the deceased
respectively. We find that PW 1 has stated that at the
time of marriage, gold, silver articles, ornaments,
T.V., fridge and several other household articles worth
more than Rs.2,50,000/- were given to the appellant and
after the marriage, the deceased joined the appellant
in his house at Kagaziguda. He has, thereafter, stated
that the appellant used to work in a xerox cum type
institute in Nampally and in the sixth month after
marriage, the deceased came to their house and told
them that the appellant asked her to bring Rs.50,000/-
from them as he was intending to purchase a computerPage 7
7
and set up his own business. Similarly, PW4 has stated
in her evidence that five months after the marriage,
the appellant sent her away to their house and when she
questioned her, she told that the appellant was
demanding Rs.50,000/- and that the demand for money is
to purchase a computer to start his own business. Thus,
the evidence of PW1 and PW4 is that the demand of
Rs.50,000/- by the appellant was made six months after
the marriage and that too for purchasing a computer to
start his own business. It is only with regard to this
demand of Rs.50,000/- that the Trial Court has recorded
a finding of guilt against the appellant for the
offence under Section 304B, IPC and it is only in
relation to this demand of Rs.50,000/- for purchase of
a computer to start a business made by the appellant
six months after the marriage that the High Court has
also confirmed the findings of the Trial Court with
regard to guilt of the appellant under Section 304B,
IPC. In our view, both the Trial Court and the High
Court failed to appreciate that the demand, if at all
made by the appellant on the deceased for purchasing a
computer to start a business six months after the
marriage, was not in connection with the marriage and
was not really a 'dowry demand' within the meaning of
Section 2 of the Dowry Prohibition Act, 1961. ThisPage 8
8
Court has held in Appasaheb & Anr. Vs. State of
Maharashtra (2007) 9 SCC 721:
“In view of the aforesaid definition of
the word "dowry" any property or valuable
security should be given or agreed to be
given either directly or indirectly at or
before or any time after the marriage and in
connection with the marriage of the said
parties. Therefore, the giving or taking of
property or valuable security must have some
connection with the marriage of the parties
and a correlation between the giving or
taking of property or valuable security with
the marriage of the parties is essential.
Being a penal provision it has to be strictly
construed. Dowry is a fairly well known
social custom or practice in India. It is
well settled principle of interpretation of
Statute that if the Act is passed with
reference to a particular trade, business or
transaction and words are used which
everybody conversant with that trade,
business or transaction knows or understands
to have a particular meaning in it, then the
words are to be construed as having that
particular meaning. (See Union of India v.
Garware Nylons Ltd., AIR (1996) SC 3509 and
Chemicals and Fibres of India v. Union of
India, AIR (1997) SC 558).”
7. In any case, to hold an accused guilty of
both the offences under Sections 304B and 498A, IPC,
the prosecution is required to prove beyond reasonable
doubt that the deceased was subjected to cruelty or
harassment by the accused. From the evidence of the
prosecution witnesses, and in particular PW1 and PW4,
we find that they have made general allegations of
harassment by the appellant towards the deceased and
have not brought in evidence any specific acts ofPage 9
9
cruelty or harassment by the appellant on the deceased.
On the other hand, DW1 in his evidence has stated that
on 4.4.1999, the day when the incident occurred, he
went to the nearby temple along with his mother (A2)
and his father (A3) went to the bazar to bring ration
and his wife (deceased) alone was present at the house
and at about 1.00 p.m., they were informed by somebody
that some smoke was coming out from their house and
their house was burning. Immediately he and his mother
rushed to their house and by that time there was a huge
gathering at the house and the police was also present.
He and his family members were arrested by the police
and after one month they were released on bail.
What
DW1 has further stated is relevant for the purpose of
his defence and is quoted hereinbelow:
“While cleaning our house we found a
chit on our dressing table. The said chit was
written by my wife and it is in her
handwriting and it also contains her
signature. Ex. D 19 is the said chit. I
identified the handwriting of my wife in Ex.
D19 because my wife used to write chits for
purchasing of monthly provisions as such on
tallying the said chit and Ex. D19 I came to
know that it was written by my wife only.
Immediately I took the Ex. D19 to the P.S.
Mangalhat and asked them to receive but they
refused to take the same.”
From the aforesaid evidence, it is clear that while
cleaning the house the appellant came across a chit
written in the handwriting of his wife and containing
Page 10
10
her signature. This chit has been marked as Ext. D19
and the appellant has identified the handwriting and
signature of the deceased in Ext. D19 which is written
in Hindi. The English translation of Ext.D19
reproduced in the impugned judgment of the High Court
is extracted hereinbelow:
“I, Meenakshi W/o Vipin Kumar, do hereby
execute and commit to writing this in my
sound mind, consciousness and senses and with
my free will and violation to the effect that
nobody is responsible for my death. My
parents family members have harassed much to
my husband. I am taking this step as I have
fed up with his life. Due to me the quarrels
are taking place here, as such I want to end
my life and I beg to pardon by all.”
It appears from Ext. D19 that the deceased has written
the chit according to her free will saying that nobody
was responsible for her death and that her parents and
family members have harassed her husband and she was
taking the step as she was fed up with her life and
because of her quarrels were taking place.
8. When the appellant, who is the husband of the
deceased, has said in his evidence as DW1 that the
aforesaid chit (Ext. D19) has been written by the
deceased herself and has been signed by her and it
also appears from his evidence quoted above that he
was acquainted with her handwriting and signature, 
the
Trial Court and the High Court could have recorded a
Page 11
11
finding one way or the other by comparing her
handwriting and signature with some of her other
handwritings and signatures under Section 73 of the
Evidence Act. 
In the alternative, the Trial Court and
the High Court could have sought for an expert's
opinion under Section 45 of the Evidence Act on
whether the handwriting and signature were that of the
deceased. But unfortunately, neither the Trial Court
nor the High Court have resorted to these provisions
of the Evidence Act and instead by their own imaginary
reasoning disbelieved the defence of the appellant
that Ext.D19 could not have been written by the
deceased.
9. In our considered opinion, the evidence of
DW1 (the appellant) and Ext.D19 cast a reasonable
doubt on the prosecution story that the deceased was
subjected to harassment or cruelty in connection with
demand of dowry. In our view, onus was on the
prosecution to prove beyond reasonable doubt the
ingredient of Section 498A, IPC and the essential
ingredient of offence under Section 498A is that the
accused, as the husband of the deceased, has subjected
her to cruelty as defined in the Explanation to
Section 498A, IPC. Similarly, for the Court to draw
Page 12
12
the presumption under Section 113B of the Evidence Act
that the appellant had caused dowry death as defined
in Section 304B, IPC, the prosecution has to prove
besides the demand of dowry, harassment or cruelty
caused by the accused to the deceased soon before her
death. Since the prosecution has not been able to
prove beyond reasonable doubt this ingredient of
harassment or cruelty, neither of the offences under
Sections 498A and 304B, IPC has been made out by the
prosecution.
10. We accordingly allow this appeal, set aside
the impugned judgment of the High Court and that of
the Trial Court and direct that the bail bond
furnished by the appellant shall stand discharged.
............................J.
(A.K. PATNAIK)
............................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
MARCH 13, 2013

The important question that falls for determination in the instant appeal is about the ambit and scope of the inherent powers of the High Courts under Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”) in quashing of the criminal proceedings in non-compoundable offences relating to matrimonial disputes. - In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings. 13) There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders. In the light of the above discussion, we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code. Under these circumstances, we set aside the impugned judgment of the High Court dated 04.07.2012 passed in M.CR.C. No. 2877 of 2012 and quash the proceedings in Criminal Case No. 4166 of 2011 pending on the file of Judicial Magistrate Class-I, Indore. 15) The appeal is allowed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 447 OF 2013
(Arising out of S.L.P. (Crl.) No. 6462 of 2012)
Jitendra Raghuvanshi & Ors. .... Appellant(s)
Versus
Babita Raghuvanshi & Anr. .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) The important question that falls for determination in
the instant appeal is about the ambit and scope of the
inherent powers of the High Courts under Section 482 of the
Code of Criminal Procedure, 1973 (in short “the Code”) in
quashing of the criminal proceedings in non-compoundable
offences relating to matrimonial disputes. 
1Page 2
3) This appeal is directed against the final judgment and
order dated 04.07.2012 passed by the High Court of Madhya
Pradesh, Bench at Indore in M.CR.C. No. 2877 of 2012,
whereby the High Court dismissed the petition filed by the
appellants herein under Section 482 of the Code for quashing
of proceedings in Criminal Case No. 4166 of 2011 pending in
the Court of Judicial Magistrate Class I, Indore.
4) Brief facts:
a) The marriage of Jitendra Raghuvanshi (Appellant No. 1
herein) and Babita Raghuvanshi, respondent-wife, was
solemnized on 22.02.2002 as per Hindu rites and rituals.
After the marriage, the parties were residing together as
husband and wife at District Baitul, M.P. On 05.03.2003, an
FIR being No. 172 of 2003 was registered at P.S. Sarni, Dist.
Baitul for the offences punishable under Sections 498A, 406
read with Section 34 of the Indian Penal Code, 1860 (in short
‘the IPC’) at the instance of Babita Raghuvanshi –
respondent-wife owing to the harassment and torture meted
out to her in the matrimonial home by her husband and his
relatives. A Criminal Case being No. 4166 of 2011 was also
2Page 3
registered against the appellants herein for the offences
punishable under Sections 498A and 406 of the IPC and
Sections 3 and 4 of the Dowry Prohibition Act, 1961.
b) During the pendency of the criminal proceedings, in the
year 2012, with the help and intervention of family members,
friends and well-wishers, the parties amicably settled their
differences by way of mutual settlement. Pursuant to the
same, on 03.04.2012, a compromise/settlement application
was filed for dropping of the criminal proceedings in Criminal
Case No. 4166 of 2011 and FIR No. 172 of 2003 dated
05.03.2003 before the trial Court. Respondent-wife also filed
an affidavit stating that she did not wish to pursue the
criminal proceedings against the appellants. However, by
order dated 03.04.2012, learned trial Judge rejected the said
application.
c) Being aggrieved by the order dated 03.04.2012, on
09.04.2012, the appellants herein filed an application being
M.CR.C. No. 2877 of 2012 before the High Court invoking its
inherent powers under Section 482 of the Code to quash the
criminal proceedings launched against them. The High
3Page 4
Court, by impugned order dated 04.07.2012, dismissed the
application filed by the appellants herein stating that the
court has no power to quash the criminal proceedings in
respect of offences under Sections 498A and 406 of IPC since
both are non-compoundable.
d) Aggrieved by the said order, the appellants have filed
the present appeal by way of special leave.
5) Heard Ms. Preetika Dwivedi, learned counsel for the
appellants and Mr. S.K. Dubey, learned senior counsel for
Respondent No. 2 and Mr. Rahul, learned counsel for
Respondent No.1.
6) The scope and ambit of power under Section 482 of the
Code has been examined by this Court in a catena of earlier
decisions. In the present case, we are concerned about
interference by the High Court exercising jurisdiction under
Section 482 in relation to matrimonial disputes.
7) It is not in dispute that matrimonial disputes have been
on considerable increase in recent times resulting in filing of
complaints under Sections 498A and 406 of IPC not only
against the husband but also against the relatives of the
4Page 5
husband. The question is when such matters are resolved
either by the wife agreeing to rejoin the matrimonial home or
by mutual settlement of other pending disputes for which
both the sides approached the High Court and jointly prayed
for quashing of the criminal proceedings or the FIR or
complaint by the wife under Sections 498A and 406 of IPC,
whether the prayer can be declined on the sole ground that
since the offences are non-compoundable under Section 320
of the Code, it would be impermissible for the Court to quash
the criminal proceedings or FIR or complaint.
8) It is not in dispute that in the case on hand subsequent
to the filing of the criminal complaint under Sections 498A
and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition
Act, 1961, with the help and intervention of family members,
friends and well-wishers, the parties concerned have
amicably settled their differences and executed a
compromise/settlement. Pursuant thereto, the appellants
filed the said compromise before the trial Court with a
request to place the same on record and to drop the criminal
proceedings against the appellants herein. It is also not in
5Page 6
dispute that in addition to the mutual settlement arrived at
by the parties, respondent-wife has also filed an affidavit
stating that she did not wish to pursue the criminal
proceedings against the appellants and fully supported the
contents of the settlement deed. It is the grievance of the
appellants that not only the trial Court rejected such prayer
of the parties but also the High Court failed to exercise its
jurisdiction under Section 482 of the Code only on the ground
that the criminal proceedings relate to the offences
punishable under Sections 498A and 406 of IPC which are
non-compoundable in nature.
9) Learned counsel for the parties, by drawing our
attention to the decision of this Court in B.S. Joshi and
Others vs. State of Haryana and Another, (2003) 4 SCC
675, submitted that in an identical circumstance, this Court
held that the High Court in exercise of its inherent powers
under Section 482 can quash criminal proceedings in
matrimonial disputes where the dispute is entirely private
and the parties are willing to settle their disputes amicably.
It is not in dispute that the facts in B.S. Joshi (supra) are
6Page 7
identical and the nature of the offence and the question of
law involved are almost similar to the one in hand. After
considering the law laid down in State of Haryana vs.
Bhajan Lal, 1992 Supp (1) SCC 335 and explaining the
decisions rendered in Madhu Limaye vs. State of
Maharashtra, (1977) 4 SCC 551, Surendra Nath Mohanty
& Anr. vs. State of Orissa, (1999) 5 SCC 238 and Pepsi
Foods Ltd. & Anr. vs. Special Judicial Magistrate &
Ors., (1998) 5 SCC 749, this Court held:
“8. … …. We are, therefore, of the view that if for the
purpose of securing the ends of justice, quashing of FIR
becomes necessary, Section 320 would not be a bar to the
exercise of power of quashing. It is, however, a different
matter depending upon the facts and circumstances of
each case whether to exercise or not such a power.”
Considering matrimonial matters, this Court also held:
“12. The special features in such matrimonial matters are
evident. It becomes the duty of the court to encourage
genuine settlements of matrimonial disputes.”
10) As stated earlier, it is not in dispute that after filing of a
complaint in respect of the offences punishable under
Sections 498A and 406 of IPC, the parties, in the instant
case, arrived at a mutual settlement and the complainant
7Page 8
also has sworn an affidavit supporting the stand of the
appellants. That was the position before the trial Court as
well as before the High Court in a petition filed under Section
482 of the Code. A perusal of the impugned order of the
High Court shows that because the mutual settlement
arrived at between the parties relate to non-compoundable
offence, the court proceeded on a wrong premise that it
cannot be compounded and dismissed the petition filed
under Section 482. A perusal of the petition before the High
Court shows that the application filed by the appellants was
not for compounding of non-compoundable offences but for
the purpose of quashing the criminal proceedings.
11) The inherent powers of the High Court under Section
482 of the Code are wide and unfettered. In B.S. Joshi
(supra), this Court has upheld the powers of the High Court
under Section 482 to quash criminal proceedings where
dispute is of a private nature and a compromise is entered
into between the parties who are willing to settle their
differences amicably. We are satisfied that the said decision
is directly applicable to the case on hand and the High Court
8Page 9
ought to have quashed the criminal proceedings by
accepting the settlement arrived at.
12) In our view, it is the duty of the courts to encourage
genuine settlements of matrimonial disputes, particularly,
when the same are on considerable increase. Even if the
offences are non-compoundable, if they relate to matrimonial
disputes and the court is satisfied that the parties have
settled the same amicably and without any pressure, we hold
that for the purpose of securing ends of justice, Section 320
of the Code would not be a bar to the exercise of power of
quashing of FIR, complaint or the subsequent criminal
proceedings. 
13) There has been an outburst of matrimonial disputes in
recent times.
  The institution of marriage occupies an
important place and it has an important role to play in the
society. Therefore, every effort should be made in the
interest of the individuals in order to enable them to settle
down in life and live peacefully. If the parties ponder over
their defaults and terminate their disputes amicably by
mutual agreement instead of fighting it out in a court of law,
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in order to do complete justice in the matrimonial matters,
the courts should be less hesitant in exercising its
extraordinary jurisdiction. It is trite to state that the power
under Section 482 should be exercised sparingly and with
circumspection only when the court is convinced, on the
basis of material on record, that allowing the proceedings to
continue would be an abuse of the process of the court or
that the ends of justice require that the proceedings ought to
be quashed. We also make it clear that exercise of such
power would depend upon the facts and circumstances of
each case and it has to be exercised in appropriate cases in
order to do real and substantial justice for the administration
of which alone the courts exist. It is the duty of the courts to
encourage genuine settlements of matrimonial disputes and
Section 482 of the Code enables the High Court and Article
142 of the Constitution enables this Court to pass such
orders. 
14) In the light of the above discussion, we hold that the
High Court in exercise of its inherent powers can quash the
criminal proceedings or FIR or complaint in appropriate cases
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in order to meet the ends of justice and Section 320 of the
Code does not limit or affect the powers of the High Court
under Section 482 of the Code. Under these circumstances,
we set aside the impugned judgment of the High Court dated
04.07.2012 passed in M.CR.C. No. 2877 of 2012 and quash
the proceedings in Criminal Case No. 4166 of 2011 pending
on the file of Judicial Magistrate Class-I, Indore. 
15) The appeal is allowed. 
………….…………………………J.
(P. SATHASIVAM)
 ………….…………………………J.
(JAGDISH SINGH KHEHAR)
………….…………………………J.
(KURIAN JOSEPH)
NEW DELHI;
MARCH 15, 2013.
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