Sec.302 I.P.C- the trial court acquitted the accused under sec.302 IPC - on appeal the high court convicted the accused under sec.302 IPC - Surveyor fixed boundary stone - Accused removed it - deceased when try to refix it - the accused attacked on him with axe on his head and on back resulted in death at Hospital - No sudden provocation, No exemption - intentionally attacked on him to kill as he know the consequences of his acts - not entitled for relief - Apex court held that High court rightly convicted the accused and as such dismissed the appeal = PUNDAPPA YANKAPPA PUJARI … APPELLANT VERSUS STATE OF KARNATAKA … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41735

Sec.302 I.P.C- the trial court acquitted the accused under sec.302 IPC - on appeal the high court convicted the accused under sec.302 IPC - Surveyor fixed boundary stone - Accused removed it - deceased when try to refix it - the accused attacked on him with axe on his head and on back resulted in death at Hospital - No sudden provocation, No exemption - intentionally attacked on him to kill as he know the consequences of his acts - not entitled for relief - Apex court held that High court rightly convicted the accused and as such dismissed the appeal = 

 By  the
impugned judgment the High Court partly allowed the appeal preferred by  the
State of Karnataka, set aside the judgment of  acquittal  of  the  appellant
for the offence under Section 302 IPC, held the  appellant  guilty  for  the
offence  under  Section  302  IPC  and  sentenced  him   to   undergo   life
imprisonment.=

We have noticed that there  exists  a  boundary  dispute  between  the
accused persons as well as the family of the deceased.
This  is  clear  from
the testimony of Somappa (PW-2), who has categorically stated that 10 to  15
days prior to the incident, Chandrappa (father of the deceased) and  accused
persons approached them regarding the boundary dispute of  their  lands.
He
himself, Sonnappa (PW-3),CWs-23 and 24 had  advised  both  the  parties  and
fixed the boundaries of their lands.
Thereafter, accused No.1  Pundappa  got
his land measured by a private surveyor. The private surveyor confirmed  the
boundary fixed by the elderly persons.
It is in  the  evidence  of  Laxmavva
(PW-7) that while she was grazing the sheep near the land of Giriyavva  (PW-
1), there was altercation between the deceased Mahantappa and  accused  No.1
regarding fixing of the boundary stone. 
It is also seen  from  her  evidence
that the boundary stone was found  removed  by  accused  No.1  and  deceased
Mahantappa attempted to refix the stone at  the  same  place.  
On  this  the
accused No.1 assaulted the deceased Mahantappa with axe over  his  head  and
back of the  neck  resulting  in  fracture,  which  had  led  to  his  death
subsequently in the Hospital.
26.   Considering the facts and circumstances of the  case  and  on  careful
examination of the act of the accused as proved by testimony  of  witnesses,
we are of the opinion that the said act of accused which resulted  in  death
of Mahantappa neither  comes  within  the  ambit  of  the  exceptions  under
Section 300 IPC nor within the scope of Section 304 IPC.  
 It  is  not  an
act done under grave and sudden provocation or in good faith or not an  act,
which he in  good  faith  believes  to  be  lawful  and  necessary  for  due
discharge in his duty or not  an  act  committed  without  premeditation  in
sudden fight. 
Therefore, the Appellate Court rightly held that  the  act  of
the accused No.1 thus falls  within  the  ingredients  of  Section  300  IPC
punishable under Section 302 IPC.
27.   We find no ground to interfere with the impugned judgment. In  absence
of any merit, the appeal is dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41735

                                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.1251  OF 2006

PUNDAPPA YANKAPPA PUJARI                            … APPELLANT

                                   VERSUS

STATE OF KARNATAKA                                 … RESPONDENT

                               J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.


      This appeal is directed against the judgment  dated  16th  June,  2006
passed by the High Court of Karnataka in Criminal Appeal No.9/2000.  By  the
impugned judgment the High Court partly allowed the appeal preferred by  the
State of Karnataka, set aside the judgment of  acquittal  of  the  appellant
for the offence under Section 302 IPC, held the  appellant  guilty  for  the
offence  under  Section  302  IPC  and  sentenced  him   to   undergo   life
imprisonment.
2.    The case of the prosecution is that the complainant –  Giriyavva,  her
sons, Shivalingappa, Adiveppa, deceased Mahantappa and Pundappa as  well  as
accused No.1, Pundappa Yankappa Pujari (appellant herein) and  accused  No.2
Siddappa  Pundappa  Pujari  are  the  resident  of  Yankanchi   village   of
Bagalkot’s Taluk. The land of the deceased’s family as well as the  land  of
the accused is adjacent to one  another.  The  deceased’s  land  is  on  the
northern side whereas the  accused’s  land  is  on  the  southern  side.  In
between there is a band fixed with  boundary  stone.  There  was  a  dispute
regarding fixing of boundary stone between the accused  and  the  deceased’s
father Chandrappa Telagi. On 5th July, 1997 at about 9  a.m.,  accused  No.1
was in  his  land  and  was  removing  the  boundary  stone.  The  deceased-
Mahantappa questioned as to why he was removing the boundary  stone  and  an
altercation took place between accused No.1 and  deceased-Mahantappa.  While
the deceased was putting boundary stone to the pit, accused  No.1  assaulted
him with an axe on his neck and caused severe fracture  and  injuries  which
resulted in profuse bleeding whereas, accused No.2  assaulted  the  deceased
with a stick. Laxmavva (PW-7), who was grazing  her  sheep,  on  seeing  the
incident of assault, shouted.  Immediately, Sangappa  (PW-8),  Chandrashekar
(PW-9) rushed to the spot and witnessed the incident  of  assault.  Laxmawwa
(PW-7) rushed towards the village. On the way, she met Bhimappa (PW-10)  and
Ranganagouda (PW-11) and informed them about the incident, who in turn  went
to the place of incident. Further, she proceeded and informed  the  incident
to complainant-Giriyavva (PW-1), the mother of  the  deceased.  Immediately,
Giriyavva (PW-1) rushed to the place of incident and noticed  the  injuries.
The deceased-Mahantappa was shifted to the village by Bhimappa  (PW-10)  and
Ranganagouda (PW-11). From there,  the  injured  was  shifted  to  Goverdhan
Hospital, Bagalkot.
3.    The injured was treated by Dr. Hanamant (PW-16) on 5th July, 1997  and
immediately, intimation was sent to Sub-Inspector of  Police,  Rural  Police
Station, Bagalkot as per Ex.P-12. The  Sub-Inspector  of  Police,  Sekharapa
(PW-14) on receipt of Ex.P-12 proceeded to Hospital and enquired  about  the
condition of the injured. The Doctor issued an  endorsement  as  per  Ex.P-9
stating  that  the  injured  was  not  in  a  position  to  give  statement.
Thereafter, Sub-Inspector of Police (PW-14)  received  a  written  complaint
Ex.P-1 from Giriyavva, the mother of injured. A  case  in  Crime  No.95/1997
for the offence under Section 326, 324 and 307 read with Section 34 IPC  was
registered and an FIR as per Ex.P-13  was  prepared  and  forwarded  to  the
Magistrate.  In  the  meantime,  the  Assistant  Sub-Inspector  of   Police,
Gousasab(PW-13) received the death intimation report of the injured  as  per
Ex.P10. Accordingly, a requisition was forwarded to the Court as  per  Ex.P-
11 seeking permission to alter the offence to one under Section 302 IPC.  On
the same day,  the  Sub-Inspector  of  Police  proceeded  to  the  place  of
occurrence, prepared a spot  panchnama  as  per  Ex.P-2,  seized  the  blood
stained earth and sample earth-Material Objects (hereinafter referred to  as
the “MOs”) – 1 and 2 and handed over further  investigation  to  the  Circle
Inspector of Police, Pandurang (PW-17). The Circle Inspector of Police  took
over further investigation. He  recorded  the  statement  of  witnesses  and
arrested accused No.1, Pundappa, seized the blood stained  shirt  under  the
mahazar and recorded  his  voluntary  statement  as  per  Ex.P-18.  He  sent
accused No.1, Pundappa to Hospital for medical examination and kept  him  in
custody. On 6th July, 1997, he  proceeded  to  General  Hospital,  Bagalkot,
prepared the inquest panchanama on the dead body of Mahantappa as per  Ex.P-
24 and recorded the statement of the witness. He seized  the  blood  stained
towel and chaddar – M.Os 4 and  5  under  the  panchanama  Ex.P-15.  At  the
instance of the accused No.1, he recovered M.O.10-axe and  M.O.11-stick  and
prepared panchanama Ex.P-7.  The  dead  body  was  subjected  to  postmortem
examination. On the same day accused No.2 was arrested and produced  by  the
Assistant Sub-Inspector of Police. The chargesheet was  filed  against  both
the accused for the offence under Section 302/34 IPC.
4.    Learned Sessions Judge secured the presence  of  the  accused,  framed
charges under Section 302  read  with  Section  34  IPC.  Both  the  accused
pleaded not guilty and claimed to be tried.
5.    The prosecution in all examined  17  witnesses,  marked  24  Exhibits,
produced 11 M.Os. The defence, in their turn, got  marked  Exs.D-1  to  D-6.
The statement of the accused was recorded under Section 313 Cr.P.C. and  the
defence is one of total denial. The accused  did  not  choose  to  lead  any
defence evidence.
6.    Learned Sessions Judge for the reason recorded in his  judgment  dated
15th December, 1998, acquitted  both  the  accused  for  the  offence  under
Section 302 read with 34 IPC. The said judgment of acquittal was  questioned
by the State before the  High  Court  wherein  the  High  Court  passed  the
impugned judgment setting aside the  order  of  acquittal  with  respect  to
accused No.1-appellant, convicting him under  Section  302  IPC  to  undergo
life imprisonment.
7.    Learned counsel for the appellant submitted that  the  view  taken  by
the Trial Court being reasonable, there was no occasion for Appellate  Court
to reverse the order of acquittal by expressing  a  different  view  on  the
same set of evidence. On the other hand, it was submitted on behalf  of  the
respondent that the Trial Court had committed an error  and  had  failed  to
assess the credibility and trustworthiness of the statements  given  by  the
eye-witnesses.
8.          In view of the submissions made by the parties, the  point  that
arises for determination is  :  whether  the  High  Court  is  justified  in
interfering with the order of acquittal by reversing  the  judgment  of  the
Trial Court.
9.    It is settled that if two views are reasonably possible from the  very
same evidence, the Appellate court on re-appreciation of the  same  evidence
cannot impose its own  view.  The  Appellate  Court  may  re-appreciate  the
evidence when it is satisfied that the Trial Court has  committed  an  error
and has failed to  consider  the  credibility  and  trustworthiness  of  the
account given by the eye-witnesses. The evidence on record has  to  be  read
as a whole and it is not proper to reject  one  or  other  evidence  on  the
ground of certain contradictions and omissions which do not go to the  roots
of the case.  If the testimony of the eye-witnesses  are  found  trustworthy
and remained unchanged, ignorance of  such  testimony  can  be  held  to  be
perverse.
10.   In Hem Raj and another vs. State of Punjab, (2003) 12  SCC  241,  this
Court held as follows:
      “36. In this state of the evidence on record, we find  that  the  view
taken by the trial court is also a possible reasonable view of the  evidence
on record. The evidence adduced by the prosecution  is  rather  inconsistent
and creates a serious doubt about the truthfulness of the prosecution  case.
Even if it may be possible to take a different view, we cannot say that  the
view taken by the trial court is not a reasonable view of  the  evidence  on
record. It is well settled that if on the basis of  the  same  evidence  two
views are reasonably possible and the trial court takes the view  in  favour
of the accused, the appellate court, in an appeal  against  acquittal,  will
not be justified in reversing the order of acquittal,  unless  it  comes  to
the  conclusion  that  the  view  taken  by  the  trial  court  was   wholly
unreasonable or perverse and it was not possible to take the view in  favour
of the accused on the basis of the evidence on record.”


11.   In T. Subramanian vs. State of Tamil Nadu,  (2006)  1  SCC  401,  this
Court observed:
“17...Where two views are reasonably possible from the very  same  evidence,
prosecution cannot be  said  to  have  proved  its  case  beyond  reasonable
doubt.....”

12.   In the circumstances where evidence of witness  is  not  found  to  be
wholly trustworthy the principle of severability can  be  applied  and  that
part of the evidence which is reliable may be accepted and  the  other  part
can be discarded. This Court in Haji Khan vs. State of U.P., (2005)  13  SCC
353, held:

      “That part of his evidence which inspires confidence may  be  accepted
and the unreliable part discarded.”

            Further it was also observed that:

“9. From the evidence on record the Sessions Court and the High  Court  have
rightly held that the prosecution has failed  to  establish  the  conspiracy
theory, and that the motive to commit the crime has  not  been  proved,  but
does this mean that the High Court could  not  have  convicted  the  accused
placing reliance on the statement  of  the  eyewitnesses  just  because  the
prosecution failed to prove a particular theory. We do not think so.  It  is
not necessary that if the  prosecution  theory  of  the  conspiracy  or  the
motive fails, the entire case would crumble to the ground.  The  High  Court
has found the version given by the witnesses trustworthy and  found  support
to their statement from the medical evidence and lodging of the prompt  FIR,
apart from the fact that the  appellant  was  apprehended  on  the  spot  or
nearabout the spot of crime with the weapon which was used in commission  of
the crime. When the court finds that the evidence  of  the  eyewitnesses  is
true and can be relied upon, absence of proof of motive  or  the  conspiracy
to commit the crime would not dislodge the  prosecution  from  securing  the
conviction of the accused on the basis of reliable evidence.”


13.   Laxmawwa (PW-7) in her examination-in-chief stated that she  had  gone
to the land of Giriyavva (PW-1), for watching the sheep at 10 a.m.  At  that
time the deceased, Mahantappa had come to the  land.  Accused  persons  were
present  in  the  land.  Accused  No.1-Pundappa  removed   boundary   stone.
Mahantappa asked accused No.1 as to why he had removed the  boundary  stone.
Accused No.1 told Mahantappa that  boundary  stone  shall  lie  there  only.
Mahantappa insisted that he will put the boundary stone at  the  place  from
where it was removed. Accused No.1-Pundappa  challenged  Mahantappa  to  put
boundary stone in its  original  place.  When  Mahantappa  was  putting  the
boundary stone in the pit, accused No.1-Pundappa assaulted  Mahantappa  with
the  axe  on  the  neck.  At  that  time  accused  No.2-Siddappa   assaulted
Mahantappa on his head with the stick. Accused No.1-Pundappa  had  assaulted
Mahantappa six to seven times with the axe on the neck and on the  head.  On
seeing the incident Laxmawwa (PW-7) shouted, hearing  his  shouting,  Charge
Witnesses,  CWs.13,  14  and  15  (CWs.  14  and  15  are  PW-8   and   PW-9
respectively) came there. When she was returning back to the house,  on  her
way she met CWs.-17 and 19 (PW-10 & PW-11) and she narrated the incident  to
them. She proceeded further and informed the incident to  Giriyavva  (PW-1),
mother of the Mahantappa. Giriyavva (PW-1) went to see her  son  Mahantappa,
who was brought to Yankanchi village  and  from  Yankanchi  village  he  was
shifted to Bagalkot. Mahantappa died in the Hospital at Bagalkot at  3  p.m.
Her statement was recorded by the Police.
      In her cross-examination she reiterated that she had seen the  alleged
incident. She stated that accused  No.1  was  found  sitting  in  his  land.
Mahantappa came there and took rounds in the land. Mahantappa  came  to  the
boundary by passing through his land. She was standing in the middle of  the
road. From there she heard the  exchange  of  words  and  saw  the  incident
taking place. She went near Mahantappa and had seen him. At that time,  both
the accused persons were present there. During the cross-examination at  one
stage she stated that she had not seen who had removed  the  boundary  stone
but reiterated that when Mahantappa wanted to put the boundary stone in  the
pit, accused No.1-Pundappa objected for it  and  quarrel  took  place.  When
Mahantappa was putting the stone  in  the  pit,  accused  No.1  and  2  have
assaulted Mahantappa.Mahantappa fell down on the ground  near  the  boundary
stone. Mahantappa sustained bleeding injuries and the blood  had  fallen  on
the ground and near the boundary stone. When she enquired  from  Mahantappa,
Mahantappa fell down, she shouted  and  when  she  left  the  spot,  accused
persons were still there. There is no reason to doubt  the  credibility  and
trustworthiness of the account given by this eye-witness.
14.   Sangappa (PW-8), in his deposition stated that he  along  with  CW-13-
Pundappa and PW-9, Chandrashekhar had gone to the  land  of  CW-24  Rangappa
Sannappa Gouli for ploughing the land.  At  about  9  a.m.  they  heard  the
shoutings. They had seen Mahantappa being assaulted  with  the  axe  on  his
neck and head, two to three times. They had seen another  person  assaulting
Mahantappa with the stick on his head.  When  they  went  there,  they  were
threatened by the accused  persons.  He  stated  that  Laxmavva  (PW-7)  was
present there at that time. Laxmavva (PW-7) went to the village and  on  the
way she met Bhimappa (PW-10) and   Ranganagouda  (PW-11)  and  narrated  the
incident to  them.  They  had  given  water  to  Mahantappa  and  thereafter
Mahantappa was shifted to Vankanchi  village  and  from  Yankanchi  village,
Mahantappa was shifted to Bagalkot for medical treatment.
      In his cross-examination he stated that  he  left  the  village  at  7
a.m.He went to the spot on hearing the shouting  and  at  the  spot  he  saw
Mahantappa falling down due to  assault.  Thereafter,  the  accused  persons
stood there for five minutes. When they enquired with  the  accused  persons
as to why they had assaulted Mahantappa, accused No.1-Pundappa went  towards
Sindal village taking the axe and the stick. Accused No.2-Siddappa  went  to
graze the sheeps.
15.   Chandrasekhar (PW-9) in  his  statement  stated  that  he  along  with
Sangappa (PW-8) and  CW-13 (Pundappa) had gone for ploughing the land of CW-
24 (Rangappa) on that day at about 9 a.m. Accused No.1 and 2  had  assaulted
Mahantappa and Mahantappa fell down. Accused No.1 had  assaulted  Mahantappa
with the axe and Accused No.2 had assaulted Mahantappa with stick.  Laxmavva
(PW-7) was present there at that time. Laxmavva (PW-7) went to  the  village
and informed about the incident. Giriyavva (PW-1)  and  the  villagers  came
there. Injured Mahantappa was shifted to the Hospital at Bagalkot at 2  p.m.
and finally Mahantappa succumbed to the injuries in the Hospital.
       Chandrashekar  (PW-9)  disputed  the  suggestion  that  the  land  of
Chandrashekar  (PW-9)  belonged  to  their  ancestors  previously.  He  also
disputed the suggestion that there was any dispute between  their  ancestors
and the accused persons regarding the land of the accused  persons.  In  his
cross-examination he reiterated that when they heard the exchange of  words,
the distance between them and those persons was about 10 feet.  By the  time
they went there Mahantappa was found lying on  the  ground.  After  reaching
the land, they have seen accused No.1 assaulting Mahantappa  with  the  axe.
He denied the suggestion that the scene of offence was not visible from  the
place where they were ploughing.
16.   Giriyavva (PW-1), mother of the  deceased,  is  the  complainant.  She
stated that on the fateful day her son, Mahantappa had gone  to  their  land
at about 7 a.m. for seeing the crop. The land  of  the  accused  persons  is
adjoining to their land. At about 10 a.m., she was present in her house.  At
that time, Laxmavva (PW-7) came and informed her  that  her  son  Mahantappa
was assaulted by accused No.1-Pundappa and accused No.2-Siddappa.  She  went
to the site of occurrence. Her son had sustained injuries on  the  head  and
on the back of the neck. Bhimappa (PW-10) and Ranganagouda (PW-11) had  come
to her land at that time. Bhimappa (PW-10)  had  brought  her  injured  son,
Mahantappa to the village Yankanchi. From Yankanchi  village  they  came  to
Mugalolli village and then the injured Mahantappa was  brought  to  Bagalkot
and admitted in the Government Hospital at Bagalkot. Mahantappa  died  at  3
p.m. in the Hospital at Bagalkot.
      In her cross-examination she stated that on that day  at  6  a.m.  her
husband left for Bagalkot. Laxmavva (PW-7)  came and reported  the  incident
to her in the house when she alone was present in  the  house.  At  about  9
a,m.  Laxmavva  reported  the  incident  to  her.  Luxmavva(PW-7)  did   not
accompany her to her land. She went to her land alone. Bhimappa (PW-10)  and
Ranganagouda (P-11) of their own accord came to her land  by  the  time  she
reached, Bhimappa (PW-10) and Ranganagouda (P-11) were present in her  land.
She further stated that except her. Bhimappa (PW-10)  and  Ranganagouda  (P-
11), none else were present in her land. At that time Mahantappa  was  in  a
position to talk.
17.   Bhimappa (PW-10) in his evidence, stated that he knows Giriyavva  (PW-
1), deceased Mahantappa, accused persons and also Ranganagouda  (PW-11).  He
further  stated  that  at  about  9.30  a.m.  Mahantappa  was  found  having
sustained injuries on his neck and stated that he covered  a  towel  on  the
injuries of Mahantappa and shifted  him  from  that  place.  The  towel  and
chaddar are M.Os.4 and 5.
18.   Coming to the evidence of Sangappa (PW-8)  and  Chandrasekhar  (PW-9),
we find that both of them have deposed that they  heard  the  shouting  when
they came near the place of incident, they  saw  accused  No.1  and  accused
No.2 assaulting  Mahantappa  with  axe  and  with  stick.  Even  though  the
witnesses were cross-examined at depth, no much evidence  were  elicited  to
discredit the testimony of Sangappa (PW-8) and Chandrasekhar (PW-9).  It  is
apparent in the evidence of Bhimappa (PW-10) and  Ranganagouda  (P-11)  that
they came to the land of one Rangappa Gouli for  ploughing  at  about  7  or
7.30 a.m. then they heard the screaming and rushed to the spot wherein  they
noticed the presence of Laxmavva (PW-7) who proceeded to  the  village  side
to inform the same to the complainant Giriyavva (PW-1).
19.   It is true that there are  certain  discrepancies  in  mentioning  the
time of the incident. Laxmavva (PW-7) stated that the  incident  took  place
at about 11 a.m. whereas, Sangappa(PW-8)  and  Chandrasekhar  (PW-9)  stated
that  the  incident  of  assault  took  place  at  9  or  9.30   a.m.   Such
discrepancies cannot be  a  ground  to  disbelieve  the  statements  of  the
witnesses if the difference is about one hour, as  the  villagers  generally
suggest the approximate time.
20.   The testimony of Laxmavva (PW-7), clearly indicates that  on  the  day
of the incident, she was grazing her sheep near the land of  Giriyavva  (PW-
1). According to her evidence, accused No.1-Pundappa Yankappa Pujari was  in
his land whereas, accused No.2 was grazing his sheep near  Durgamma  Temple.
Thereafter, the deceased Mahantappa came to his land, which is  adjacent  to
the land of accused  persons.  The  deceased  noticed  the  removal  of  the
boundary stone, When the deceased went to put the stone  in  the  same  pit,
there was some altercation between them regarding  fixing  of  the  boundary
stone at the very same place. It is  clear  from  her  evidence  that  while
Mahantappa was putting the stone in the pit, the accused No.1 assaulted  him
with axe over his neck and head  three  or  four  times.  As  a  result,  he
suffered with multiple  fracture  injuries  and  collapsed.  On  seeing  the
incident, Laxmavva (PW-7) shouted. Then Sangappa (PW-8), and  Chandrashekhar
(PW-9) who were ploughing the land at a distance of about  10  feet  in  the
land of one Rangappa, rushed to the spot. The testimony of  Laxmavva  (PW-7)
clearly indicates that it was accused No.1, who  inflicted  blows  with  the
axe on the neck and head  of  the  deceased  Mahantappa.  Apart  from  that,
though Laxmavva  (PW-7)  has  been  lengthily  cross-examined,  the  defence
failed to bring  out  some  evidence  that  would  lead  to  disbelieve  her
testimony with respect to the incident of assault.
21.   The testimony of Giriyavva (PW-1), mother of the  deceased  Mahantappa
shows that she knows the accused persons. She stated that at about 10  a.m.,
while she was in the house, Laxmavva (PW-7) came and informed her  that  her
son Mahantappa was assaulted by  accused  No.1  Pundappa  and  accused  No.2
Sidappa with axe and stick respectively. Further, she stated that  then  she
went to the land and saw Mahantappa lying on ground  with  injuries  on  the
head and back of the neck. She also stated that by that time  Bhimappa  (PW-
10), Ranganagouda (PW-11) also came to their land. Bhimappa (PW-10)  shifted
her son Mahantappa to  the  village  and  from  there,  he  was  brought  to
Bagalkot Hospital and admitted.
      In the cross-examination, she clearly stated that on  that  day  at  6
a.m. her husband had left for Bagalkot. Laxmavva (PW-7)  came  and  reported
the incident when she was alone in the house at about 10 a.m.
      From the testimony of the complainant, Giriyavva (PW-1)  it  is  clear
that when she was in the house  Laxmavva  (PW-7)  came  about  10  a.m.  and
informed her about the incident of assault  on  Mahantapp  by  accused  No.1
Pundappa. On a careful reading of the deposition of the complainant,  it  is
clear that Mahantappa left house early in the morning towards  the  land  to
see the crop after taking food. The fact that the deceased took food in  the
early morning is supported by  the  medical  evidence.   In  the  postmortem
report, Dr. Hanamant (PW-16) has  clearly  stated  that  stomach  is  intact
containing plenty of food particles more of rice. Therefore,  the  testimony
of Giriyavva (PW-1)  is  fully  corroborated  with  medical  evidenceof  Dr.
Hanamant (PW-16) in so far as the  deceased  Mahantappa  leaving  the  house
early in the morning.
22.    The  evidence  of  Dr.  Hanamant  (PW-16)  shows  that  he   examined
Mahantappa on 5th July, 1997 at 1 p.m. and found the following  six  incised
wounds:
“Incised wound of 5x2x2 cms. bone deep  in  left  parietal  scalp  are  with
blood clots.

Incised wound of  in  vertex  placed  long-itudinally  of  5x2x2  cms.  with
fracture of underlying skull bone with blood clots.

Incised wound behind the left ear of  7x3x2 cms. with  lacerate  of  muscles
underlying.

Incised wound in right part of occipital area of 5x3x2 cms with fracture  of
that  bone with blood clots.

Incised wound in right part of occipital  area  of  4x2x2  cms.  with  blood
clots and bone deep.

Incised wound in right parietal scalp area of 2x1x1 cms  with blood clots.

He issued the wound certificate as per Ex.P16.  It is also in evidence  that
on the death of Mahantappa, he conducted  the  post  mortem  and  found  the
following injuries.

Head is completely shaved and there were 7 stitched scalp wounds  are  found
all were opened and examined.

Cut lacerated wound  along  with  midline  in  vertex  of  5x1x1  cms.  with
depressed fracture of right parietal bone.

Cut lacerated wound placed obliquely in right parietal scalp area.

Cut lacerated wound of 5x2x1 cms. in upper part  of  occipital  area  placed
transversely.

Cut lacerated wound behind the left ear of  4x1x1 cms. placed obliquely.

At  the  hair  line  at  the  hape  of  neck  cut  lacerated  would   placed
transversely of 5x2x2 cms. bone deep.

Cut lacerated would in left part of occipital area of 5x2x1 ccms  bone  deep
placed obliquely.

Transverse cut lacerated would in right part of occipital  region  of  5x2x2
cms. with fracture of that bone.

Abrasion of 2x2 cms. over right malar region dark brown colour.

Abrasion on right forehead of 4x3 cms dark brown colour.”


      Thus from the nature of incised injuries found on  the  scalp,  it  is
clear that death of Mahantappa was due to injury to the brain  as  a  result
of wounds caused to the head probably by multiple hits by heavy sharp  edged
weapon and the same is marked as Ex.P-17. There is no dispute regarding  the
cause of death that the deceased met with homicidal death.
23.   The aforesaid medical evidence also  corroborates  the  statements  of
Laxmavva (PW-7), Sangappa (PW-8) and Chandrasekhar (PW-9).
24.   Normally, the ploughing of the land is being done in the  morning  and
in the evening till sun set. This is the  normal  practice.  Therefore,  the
presence  of  Sangappa  (PW-8)  and  Chandrasekhar  (PW-9)  witnessing   the
incident is proved by the testimony of Laxmavva (PW-7). Merely, due to  some
discrepancies in the statements of witnesses as to timings 1 & ½  hour  does
not go to the root of the case. The evidence  on  record,  particularly  the
testimonies  of  eye-witnesses  -Laxmavva  (PW-7),   Sangappa   (PW-8)   and
Chandrasekhaar (PW-9) are consistent,  trustworthy  and  fully  corroborates
with one another, without giving any room to doubt their credibility.  Their
evidence is also fully supported by the testimony  of  Bhimappa  (PW-10  and
Ranganagouda (PW-11), who went to the spot  after  coming  to  know  of  the
incident from Laxmavva (PW-7). All the above facts  directly  point  to  the
guilt of the accused No.1.
25.   We have noticed that there  exists  a  boundary  dispute  between  the
accused persons as well as the family of the deceased. This  is  clear  from
the testimony of Somappa (PW-2), who has categorically stated that 10 to  15
days prior to the incident, Chandrappa (father of the deceased) and  accused
persons approached them regarding the boundary dispute of  their  lands.  He
himself, Sonnappa (PW-3),CWs-23 and 24 had  advised  both  the  parties  and
fixed the boundaries of their lands. Thereafter, accused No.1  Pundappa  got
his land measured by a private surveyor. The private surveyor confirmed  the
boundary fixed by the elderly persons. It is in  the  evidence  of  Laxmavva
(PW-7) that while she was grazing the sheep near the land of Giriyavva  (PW-
1), there was altercation between the deceased Mahantappa and  accused  No.1
regarding fixing of the boundary stone. It is also seen  from  her  evidence
that the boundary stone was found  removed  by  accused  No.1  and  deceased
Mahantappa attempted to refix the stone at  the  same  place.  On  this  the
accused No.1 assaulted the deceased Mahantappa with axe over  his  head  and
back of the  neck  resulting  in  fracture,  which  had  led  to  his  death
subsequently in the Hospital.
26.   Considering the facts and circumstances of the  case  and  on  careful
examination of the act of the accused as proved by testimony  of  witnesses,
we are of the opinion that the said act of accused which resulted  in  death
of Mahantappa neither  comes  within  the  ambit  of  the  exceptions  under
Section 300 IPC nor within the scope of Section 304 IPC.     It  is  not  an
act done under grave and sudden provocation or in good faith or not an  act,
which he in  good  faith  believes  to  be  lawful  and  necessary  for  due
discharge in his duty or not  an  act  committed  without  premeditation  in
sudden fight. Therefore, the Appellate Court rightly held that  the  act  of
the accused No.1 thus falls  within  the  ingredients  of  Section  300  IPC
punishable under Section 302 IPC.
27.   We find no ground to interfere with the impugned judgment. In  absence
of any merit, the appeal is dismissed.
                                                         ……………………………………………J.
                                     (SUDHANSU JYOTI MUKHOPADHAYA)

                                                         ……………………………………………J.
                                        (RANJANA PRAKASH DESAI)

NEW DELHI,
JULY 2, 2014.

Sec.14 B and Sec.17 B of EPF Act - Damages under sec.14 B are recoverable jointly and severally from Saroda Tea Company Ltd. as well as Everaeady Industries (India ) Ltd Now Mcleod Russel India Ltd - Apex court up held that The Special Bench of the High Court of Calcutta in Dalgaon Agro Industries Ltd. has rendered a detailed judgment on the conundrum before us. Succinctly stated, the Special Bench has opined that (a) the transferor and the transferee managements remain jointly and severally liable under Sections 14B and 17B of the Act for all sums due including damages; and dismissed the appeal = MCLEOD RUSSEL INDIA LIMITED ….. APPELLANT vs REG. PROVIDENT FUND COMMISSIONER, JALPAIGURI & ORS. ….. RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41734

  Sec.14 B and Sec.17 B of EPF Act - Damages under sec.14 B are recoverable jointly and severally from Saroda Tea Company Ltd. as well as Everaeady Industries (India ) Ltd Now Mcleod  Russel India Ltd - Apex court up held that The Special Bench of the  High  Court  of  Calcutta  in  Dalgaon  Agro Industries Ltd. has rendered a detailed judgment  on  the  conundrum  before us.    Succinctly  stated,  the  Special  Bench  has  opined  that  (a)  the transferor and the  transferee  managements  remain  jointly  and  severally liable under Sections 14B and 17B of the Act  for  all  sums  due  including damages; and dismissed the appeal = 

Eveready  Industries  (India)  Ltd.
undauntedly contended before the RPF Commissioner, Jalpaiguri, in the  event
in futility, that proceedings under Section 14B of the EPF  Act  against  it
were unjustified as it was not the “employer” defined under Section 2(e)  of
the  EPF  Act,  which  defaulted  in   paying   contributions. 
It held that on  a  conjoint  reading
of Sections 14B and 17B of the EPF Act  it  was  clear  that  damages  under
Section 14B were recoverable jointly and severally from Saroda  Tea  Company
Ltd. as well as Eveready Industries  (India)  Ltd.

After  tabulating  the
rates of damages, i.e. percentage of arrears  per  annum  depending  on  the
period of default,  damages  were  assessed  at  Rs.70,37,950;  and  it  was
further  directed  that  failure  to  deposit  penal  damages   within   the
stipulated period would attract the provisions of  Section  7Q  of  the  EPF
Act, thereby enhancing the liability to include simple interest at the  rate
of 12 per cent per annum on the damages.

The Special Bench of the  High  Court  of  Calcutta  in  Dalgaon  Agro
Industries Ltd. has rendered a detailed judgment  on  the  conundrum  before
us.    Succinctly  stated,  the  Special  Bench  has  opined  that  (a)  the
transferor and the  transferee  managements  remain  jointly  and  severally
liable under Sections 14B and 17B of the Act  for  all  sums  due  including
damages; (b) the transferor’s indebtedness comes to a halt on  the  date  of
the transfer but includes the sums computed under both these  Sections  till
the date of transfer; (c) the transfer does not bind  either  the  employees
or the Fund; (d) the transferee stands cautioned by virtue of Sections  1(3)
and  17B  that  the  erstwhile  as  well  as  the  current  employer  remain
responsible for liabilities under both the  Sections  as  a  consequence  of
liability being that of the establishment in  question  of  which  employers
are merely fictional representatives to facilitate  recovery  of  dues;  (e)
recovery of any amount due is protected under  Section  11(2)  of  the  Act,
which grants priority to the amount so due over all other  debts  under  any
other statute as being the first charge on the assets of the  establishment;
(f) the Act has  innovated  radical  and  effective  modes  of  recovery  as
evident from Sections 8B and 8F, which  further  reinforces  the  fact  that
liability to pay dues  is  of  the  establishment  recoverable  through  the
employer; (g) liability  under  Section  14B  admits  no  waiver  except  as
provided; (h) damages  could  be  recovered  regardless  of  any  reasonable
period  of  prescription;  (i)  the  covenants  in  the  Transfer  Deed  are
irrelevant for determination and recovery  of  dues  and  damages;  and  (j)
criminal liability would be attracted only in  the  event  the  outstandings
are not completely recovered.=

In  our  opinion,  Section
14B is  complete  in  itself  so  far  as  the  computation  of  damages  is
concerned.   It is conceivable that the money due  from  an  employer  would
have to be calculated under Section 7A, and in  the  event  the  default  or
neglect of the employer is contumacious and contains the requisite mens  rea
and actus reus yet another exercise of  computation  has  to  be  undertaken
under Section 14B.    Where the Authority is of  the  opinion  that  damages
under Section 14B need to be imposed, the  computations  would  come  within
the purview  of  Section  14B  and  it  would  be  recoverable  jointly  and
severally from the  erstwhile  as  well  as  the  current  managements.    A
perusal of the Appeals Section, namely, 7I is illustrative of the fact  that
these exercises are distinct from each other as per the  enumerations  found
in the first sub-Section of Section 7I.   It also appears logical to us,  in
the wake of the numerous and different dates  of  amendments,  that  Section
7A(2) would also be available to proceedings under Section 14B of  the  Act.
 The applicability of  Civil  Procedure  Code,  1908  to  proceedings  under
Section 14B has not specifically been barred by the statute.
13         It is necessary to clarify that Eveready Industries (India)  Ltd.
had in the interregnum of this litigation changed its name to Mcleod  Russel
India Ltd.  In view of our above analysis,  it  is  our  considered  opinion
that the impugned Judgment deserves to be upheld.   It contains  a  detailed
and logical exposition of facts  as  well  as  the  law  pertaining  to  the
present  dispute.  We  also  approve  the  pithy  observations  of  the  RPF
Commissioner, Jalpaiguri in the subject Order that failure on  the  part  of
the employers  to  make  remittances  of  accumulations  and  contributions,
undermines the objectives and purposes of the statute.   We underscore  that
the liability of the Fund to  pay  interest  to  subscribers  regardless  of
whether  employers  have  paid  their   dues,   runs   relentlessly.     The
Commissioner has specifically recorded that he has taken a lenient  view  in
the matter and has eschewed imposition of damages to the extent of  100  per
cent of the arrears even though this is envisaged  by  the  EPF  Act.    The
Appellant-Petitioner has, in  the  circumstances  of  the  case,  been  also
rightly burdened with the payment of interest under Section 7Q  of  the  EPF
Act.   Accordingly, the Appeal is  dismissed  and  the  interim  Orders  are
recalled.   Although, it is our opinion that the Appeal is wholly devoid  of
merit, we refrain from imposing costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41734

                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 5927 OF 2014
                   [Arising out of SLP(C) No.7704 of 2008]

MCLEOD RUSSEL INDIA LIMITED                  ….. APPELLANT

      vs

REG. PROVIDENT FUND COMMISSIONER,
JALPAIGURI    &     ORS.                                                 …..
RESPONDENTS



                               J U D G M E N T

VIKRAMAJIT SEN,J.
1     Leave granted.
2     This Appeal assails the judgment of the Division  Bench  of  the  High
Court at Calcutta  which  had  allowed  the  Appeal  preferred  against  the
judgment  of  the  learned  Single  Judge,  who  in  turn  had  applied  and
implemented the opinion of the Division Bench  as  expressed  in  Darjeeling
Dooars Plantation Ltd. vs Regional Provident Fund  Commissioner,  1995  ILLJ
939 Cal.   In the  impugned  Order,  the  present  Division  Bench  had  the
advantage of perusing the view taken by a Special  Bench  of  three  learned
Judges of the Calcutta High Court in Dalgaon Agro Industries Ltd.  vs  Union
of India, (2006) 1 CALLT 32 (HC),  which  was  decided  on  24.06.2005.  The
Special Bench was constituted in view of a reference submitted by  a  Single
Judge in Writ Petition No. 16037(W), who had entertained  an  opinion  which
differed with three earlier decisions rendered by  Single  Judges  in  three
separate matters. Along  with  the  aforestated  writ  petition,  an  appeal
pending before a Division Bench against one of those Single Judge  decisions
was also taken up by the Special Bench.  In this Appeal, therefore, we  have
primarily to consider whether the exposition of law by the Special Bench  in
Dalgaon Agro Industries Ltd. is the logical and acceptable view.
3     The factual matrix obtaining in the case at hand,  succinctly  stated,
is that M/s. Mathura Tea Estate, P.O. Mathura  Bagan,  District  Jalpaiguri,
West Bengal, owned by Saroda Tea Company Ltd., indubitably an  establishment
covered by the Employees’ Provident Funds and Miscellaneous Provisions  Act,
1952  (‘the  EPF  Act’  for  brevity),  had  defaulted  in   remitting   the
contributions and accumulations payable under the EPF  Act  and  the  sundry
Schemes formulated under that statute.   It was in those circumstances  that
the Regional Provident Fund Commissioner (‘RPF Commissioner’  for  brevity),
Jalpaiguri, West Bengal, had issued  notices  to  M/s.  Mathura  Tea  Estate
enabling it to show cause against the imposition of ‘damages’  as  envisaged
under Section 14B of the EPF Act.   M/s. Mathura Tea Estate requested for  a
waiver of damages, which request came to  be  rejected  on  the  predication
that the said establishment was neither a sick unit nor the subject  of  any
scheme for  rehabilitation  sanctioned  by  the  Board  for  Industrial  and
Financial  Reconstruction.  In  the  duration  of  those  proceedings,   the
management of M/s. Mathura Tea  Estate  under  the  erstwhile  ownership  of
Saroda Tea Company Ltd. was taken over by Eveready Industries  (India)  Ltd,
which thereafter  discharged  the  liability  of  entire  principal  sum  of
Provident Fund dues to the tune of  Rs.75,76,000/- pertaining to the  period
prior to the takeover in consonance with  the  Memorandum  of  Understanding
entered into  between it and Saroda  Tea  Company  Ltd.  Significantly,  the
said Memorandum of Understanding also included a clause to the  effect  that
any damages payable for the failure  to deposit the dues  and  accumulations
under the EPF Act would be the exclusive liability  of  Saroda  Tea  Company
Ltd making it palpably evident that the appellant was fully  alive  to  this
liability.  It is in these premises that Eveready  Industries  (India)  Ltd.
undauntedly contended before the RPF Commissioner, Jalpaiguri, in the  event
in futility, that proceedings under Section 14B of the EPF  Act  against  it
were unjustified as it was not the “employer” defined under Section 2(e)  of
the  EPF  Act,  which  defaulted  in   paying   contributions.     The   RPF
Commissioner has recorded that M/s. Mathura  Tea  Estate  had  defaulted  in
payment of dues for the period from March, 1989  to  February,  1998,  which
assertion of fact is not in dispute.   It held that on  a  conjoint  reading
of Sections 14B and 17B of the EPF Act  it  was  clear  that  damages  under
Section 14B were recoverable jointly and severally from Saroda  Tea  Company
Ltd. as well as Eveready Industries  (India)  Ltd.    After  tabulating  the
rates of damages, i.e. percentage of arrears  per  annum  depending  on  the
period of default,  damages  were  assessed  at  Rs.70,37,950;  and  it  was
further  directed  that  failure  to  deposit  penal  damages   within   the
stipulated period would attract the provisions of  Section  7Q  of  the  EPF
Act, thereby enhancing the liability to include simple interest at the  rate
of 12 per cent per annum on the damages.     It was this Order  of  the  RPF
Commissioner that failed to find favour with the  learned  Single  Judge  of
the High Court at Calcutta, who set  aside  the  Commissioner’s  Orders  and
directed the said Authority to reconsider the  issues  within  a  period  of
three months.   The learned Single Judge had drawn reliance from the  ruling
reported  as  The  Regional  Provident  Fund  Commissioner,   Mangalore   vs
Karnataka Forest Plantations  Corporation  Ltd.,  Bangalore,  2000  (1)  LLJ
1134, which  had  ruled  that  on  an  interpretation  of  Section  17B  the
transferee employer would be liable to  pay  all  outstanding  contributions
even for the period preceding the transfer, but it  could  not  be  fastened
with punitive liability for acts of omission or commission of  the  previous
employer for the period anterior to the transfer. It will  bear  reiteration
that in terms of the judgment of the Division Bench impugned before us,  the
decision of the learned Single Judge in its own turn  was  reversed  on  the
application of the dictum of the Special Three-Judge Bench in  Dalgaon  Agro
Industries Ltd.
4     The Special Bench of the  High  Court  of  Calcutta  in  Dalgaon  Agro
Industries Ltd. has rendered a detailed judgment  on  the  conundrum  before
us.    Succinctly  stated,  the  Special  Bench  has  opined  that  (a)  the
transferor and the  transferee  managements  remain  jointly  and  severally
liable under Sections 14B and 17B of the Act  for  all  sums  due  including
damages; (b) the transferor’s indebtedness comes to a halt on  the  date  of
the transfer but includes the sums computed under both these  Sections  till
the date of transfer; (c) the transfer does not bind  either  the  employees
or the Fund; (d) the transferee stands cautioned by virtue of Sections  1(3)
and  17B  that  the  erstwhile  as  well  as  the  current  employer  remain
responsible for liabilities under both the  Sections  as  a  consequence  of
liability being that of the establishment in  question  of  which  employers
are merely fictional representatives to facilitate  recovery  of  dues;  (e)
recovery of any amount due is protected under  Section  11(2)  of  the  Act,
which grants priority to the amount so due over all other  debts  under  any
other statute as being the first charge on the assets of the  establishment;
(f) the Act has  innovated  radical  and  effective  modes  of  recovery  as
evident from Sections 8B and 8F, which  further  reinforces  the  fact  that
liability to pay dues  is  of  the  establishment  recoverable  through  the
employer; (g) liability  under  Section  14B  admits  no  waiver  except  as
provided; (h) damages  could  be  recovered  regardless  of  any  reasonable
period  of  prescription;  (i)  the  covenants  in  the  Transfer  Deed  are
irrelevant for determination and recovery  of  dues  and  damages;  and  (j)
criminal liability would be attracted only in  the  event  the  outstandings
are not completely recovered.
5     For facility of reference, the relevant provisions of the EPF Act  are
reproduced:-
      An Act to provide for the  institution  of  provident  funds,  pension
fund and deposit-linked insurance fund for employees in factories and  other
establishments.

Section 1(3) Subject to the provisions contained in section 16,  it  applies
-
(a) to every establishment which  is  a  factory  engaged  in  any  industry
specified in Schedule I and in which twenty or more  persons  are  employed,
and
(b) to any other establishment employing twenty or more persons or class  of
such establishments which the Central Government  may,  by  notification  in
the Official Gazette, specify in this behalf:
Provided that the Central Government may, after giving  not  less  than  two
months’ notice of its intention so to do, by notification  in  the  Official
Gazette, apply the provisions of this Act  to  any  establishment  employing
such number of  persons  less  than  twenty  as  may  be  specified  in  the
notification.

Section 2(e) “employer” means –
(i) in relation to an  establishment  which  is  a  factory,  the  owner  or
occupier of the factory, including the agent of such owner or occupier,  the
legal representative of a deceased owner or occupier  and,  where  a  person
has been named as a manager of the factory under clause (f)  of  sub-section
(1) of section 7 of the Factories Act, 1948 (63  of  1948),  the  person  so
named; and
(ii) in relation  to  any  other  establishment,  the  person  who,  or  the
authority  which,  has  the  ultimate  control  over  the  affairs  of   the
establishment, and where the  said  affairs  are  entrusted  to  a  manager,
managing director or managing agent,  such  manager,  managing  director  or
managing agent;

      Section 7A. Determination of moneys due  from  employers.  –  (1)  The
Central Provident Fund Commissioner, any Additional Central  Provident  Fund
Commissioner,  any  Deputy  Provident  Fund   Commissioner,   any   Regional
Provident Fund Commissioner or any  Assistant  Provident  Fund  Commissioner
may, by order, -
(a) in a case where a dispute arises regarding  the  applicability  of  this
Act to an establishment, decide such dispute; and
(b) determine the amount due from any employer under any provision  of  this
Act, the Scheme or the [Pension] Scheme or  the  Insurance  Scheme,  as  the
case may be,
        and for any of the aforesaid purposes may conduct  such  inquiry  as
he may deem necessary.

Section 7Q. Interest payable by the  employer  --   The  employer  shall  be
liable to pay simple interest at the rate of twelve per cent  per  annum  or
at such higher rate as may be specified in the  Scheme  on  any  amount  due
from him under this Act from the date on which the amount has become so  due
till the date of its actual payment:
Provided that higher rate of interest specified  in  the  Scheme  shall  not
exceed the lending rate of interest charged by any scheduled bank.

Section 8. Mode of recovery of moneys due from employers– Any amount due -
(a) from the employer in relation to an establishment to  which  any  Scheme
or the Insurance Scheme applies in respect of any
contribution payable to the Fund or, as the case may be, the Insurance  Fund
damages  recoverable  under  section  14B,  accumulations  required  to   be
transferred under sub-section (2) of section 15 or under sub-section (5)  of
section 17, or any charges payable by him under any other provision of  this
Act or of any provision of the Scheme or the Insurance Scheme; or
(b) from the employer in relation to an exempted  establishment  in  respect
of any damages recoverable under section 14B or any charges payable  by  him
to the appropriate Government under any provision of this Act or  under  any
of  the  conditions  specified  under  section  17  or  in  respect  of  the
contribution payable by him  towards  the  Pension  Scheme  under  the  said
section 17,
        may, if the  amount  is  in  arrear,  be  recovered  in  the  manner
specified in sections 8B to 8G.

Section 11(2) Without prejudice to the provisions  of  sub-section  (1),  if
any amount is due from an employer whether  in  respect  of  the  employee’s
contribution deducted from the wages  of  the  employee  or  the  employer’s
contribution, the amount so due shall be deemed to be the  first  charge  on
the  assets  of  the  establishment,  and  shall,  notwithstanding  anything
contained in any other law for the time being force, be paid in priority  to
all other debts.

Section 14B. Power to recover damages - Where an employer makes  default  in
the payment of any  contribution  to  the  Fund  the  Pension  Fund  or  the
Insurance  Fund  or  in  the  transfer  of  accumulations  required  to   be
transferred by him under sub-section (2) of section 15  or  sub-section  (5)
of section 17 or in the payment of  any  charges  payable  under  any  other
provision of this Act or of any Scheme or Insurance Scheme or under  any  of
the conditions specified  under  section  17,  the  Central  Provident  Fund
Commissioner or such other officer as  may  be  authorised  by  the  Central
Government, by notification in the Official  Gazette,  in  this  behalf  may
recover from the employer by way of penalty such damages, not exceeding  the
amount of arrears, as may be specified in the Scheme.
Provided that before levying  and  recovering  such  damages,  the  employer
shall be given a reasonable opportunity of being heard.
Provided further that the Central Board may  reduce  or  waive  the  damages
levied under this section in relation to an establishment which  is  a  sick
industrial company and in respect of which a scheme for  rehabilitation  has
been sanctioned by the Board for  Industrial  and  Financial  Reconstruction
established under section  4  of  the  Sick  Industrial  Companies  (Special
Provisions) Act, 1985 (1 of 1986), subject to such terms and  conditions  as
may be specified in the Scheme.

Section 17B. Liability in case of  transfer  of  establishment  -  Where  an
employer, in relation to an establishment, transfers that  establishment  in
whole or in part, by sale, gift, lease or licence or  in  any  other  manner
whatsoever, the employer and the person to  whom  the  establishment  is  so
transferred shall jointly and severally be liable to  pay  the  contribution
and other sums due from the employer under any provision of this Act or  the
Scheme or the Pension Scheme or the Insurance Scheme, as the  case  may  be,
in respect of the period up to the date of such transfer:
Provided that the liability of the transferee shall be limited to the  value
of the assets obtained by him by such transfer.”

6     We shall briefly discuss a  decision  of  this  Court  namely,  Sayaji
Mills Ltd. vs. Regional Provident Fund Commissioner, 1984  (Supp)  SCC  610,
even though the questions before this Court are disparate in quotient.   The
management/owners of the Sayaji Mills had contended that since  the  factory
had been purchased in  1955  in  certain  liquidation  proceedings  and  the
period of three years had not elapsed from the date  of  its  establishment,
the EPF Act would have  no  applicability  to  it  under  unamended  Section
16(1)(b) of the Act.  This Court observed that the statute is  a  beneficent
legislation  and  any  interpretation  facilitating  the  evasion   of   its
provisions should be abjured, as employers  would  “spare  no  ingenuity  in
seeking to deprive the employees of all the benefits conferred  upon  them”;
that the old establishment should virtually have come to an end for the  EPF
Act to apply afresh; and most significantly,  that  the  said  Act  is  made
applicable to the factory in contradistinction  to  its  owner.   Once  this
rationale is applied to the present conundrum, it becomes apparent that  the
inter se covenants between the Eveready Industries  (India)  Ltd.   and  the
erstwhile owners viz. Saroda Tea Company Ltd. would not insulate the  former
from the rigours of damages  imposed  by  the  EPF  Act.   Damages  must  be
calculated, it is plain, and be recovered  by  the  Authority  in  the  most
efficacious and convenient manner.  This decision, Sayaji  Mills  Ltd.,  was
not brought to the notice of the Division Bench of the Karnataka High  Court
in Karnataka Forest Plantations Corporation Limited, otherwise it would  not
have endeavoured  to  explore  which  party/employer  was  ‘guilty’  of  the
infraction of the statutory provisions.   The  reasoning  of  the  Karnataka
decision is evidently flawed and runs counter to the intendment of  the  EPF
Act as is crystal  clear  from  a  perusal  of  its  Preamble  (supra);  and
manifests the ingenuity that employers may devise to circumvent liability.
7     Mr. Jayant Bhushan, learned  Senior  Counsel  for  the  Appellant  has
sought sustainment for  his  submissions  from  Employees’  State  Insurance
Corporation vs HMT Ltd. (2008) 3 SCC 35, but in our consideration, in  vain.
  In that case,  the  ESIC  raised  a  claim  for  deposit  of  interest  on
outstanding contributions of the management  under  the  ESIC  Act  and  the
concerned Regulations, and in addition thereto levied damages  in  terms  of
Section 85B of the Employees’ State Insurance  Act,  1948  (‘ESIC  Act’  for
brevity). Section 85B of the ESIC Act is essentially  para  materia  Section
14B of the EPF Act, and therefore this decision  assumes  great  importance.
The submission of the HMT Management  was  that  damages  ought  not  to  be
levied, since Section 85B was an enabling provision and did  not  intend  to
make levy  of  damages  mandatory.   We  shall  reproduce  for  facility  of
reference and comparison, the statutory  provision  of  ESIC  Act,  1948  to
spotlight the legal nodus with which we are presently engrossed –
85B. Power to recover damages. – (1) Where an  employer  fails  to  pay  the
amount due in respect of any contribution or any other amount payable  under
this Act, the Corporation may recover from the employer by  way  of  penalty
such damages not exceeding the amount of arrears as may be specified in  the
regulations:
Provided that before recovering such damages, the employer shall be given  a
reasonable opportunity of being heard:
Provided further that the  Corporation  may  reduce  or  waive  the  damages
recoverable under this section in relation to an establishment  which  is  a
sick industrial company in respect of which a scheme of  rehabilitation  has
been sanctioned by the Board for  Industrial  and  Financial  Reconstruction
established under section  4  of  the  Sick  Industrial  Companies  (Special
Provisions) Act, 1985 (1 of 1986), subject to such terms and  conditions  as
may be specified in regulations.
(2) Any damages recoverable under sub-section (1) may  be  recovered  as  an
arrear of land revenue or under section 45C to section 45-I.

8     In HMT Ltd., this Court noted the beneficial nature of the  ESIC  Act;
that subordinate legislation must conform to the provisions  of  the  parent
Act. Despite giving due regard to the use of the words “may recover  damages
by way of penalty”, and mindful that mens rea and actus reus  to  contravene
a statutory provision are necessary ingredients for levy of damages,    this
Court set aside the interference of the High Court vis-à-vis the  imposition
of damages and further held that imposition of damages  by  way  of  penalty
was not mandated in each and every case.  The dispute was remitted  back  to
the High Court for fresh consideration, i.e. to proceed on the premise  that
the levy of penalty under the Act was  not  a  mere  formality,  a  foregone
conclusion  or  an  inexorable  imposition;  and  that   the   circumstances
surrounding the  failure  to  deposit  the  contribution  of  the  employees
concerned would also have to be cogitated upon.    This  decision  does  not
prescribe that damages or penalties cannot  or  ought  not  to  be  imposed.
Further, the presence or absence of mens rea and/or actus reus  would  be  a
determinative factor in imposing damages under  Section  14B,  as  also  the
quantum thereof since it is not inflexible that 100 per cent of the  arrears
has to be imposed in all the cases.  Alternatively stated, if  damages  have
been imposed under Section 14B it will be only logical that mens rea  and/or
actus reus was prevailing at the relevant time.    We  may  also  note  that
this  Court  had  yet  again  reiterated  the  well-known  but  oft  ignored
principle that High Courts or any Appellate Authority created by  a  statute
should not substitute their perspective of discretion on that of  the  lower
Adjudicatory Authority if the impugned Order  does  not  otherwise  manifest
perversity in the process of decision taking.  HMT Ltd. does  not  proscribe
imposition of damages; that would negate  the  intent  of  the  legislature.
The submission of the petitioner before us is that the liability was of  the
erstwhile management and since the petitioner was not the “employer” at  the
relevant time, default much less deliberate and wilful default on  the  part
of the petitioner was absent.  However, it  seems  to  us  that  once  these
damages have  been  levied,  the  quantification  and  imposition  could  be
recovered from the party which has assumed the management of  the  concerned
establishment.
9     The Two-Judge Bench decision in Organo Chemical  Industries  vs  Union
of India (1979) 4 SCC 573, makes compelling reading not only because of  the
contrasting styles of two of our illustrious predecessors; A.P.  Sen  J  for
his erudite, efficient and precise exposition of the law  and  V.R.  Krishna
Iyer J for his elegance of expression and verve  impregnated  with  humanism
and compassion.   Organo  involved  a  petition  under  Article  32  of  the
Constitution challenging the Constitutional vires of Section 14B of the  EPF
Act.    The contention was that the default  of  the  employer/establishment
was not wilful, rendering inappropriate  the  imposition  of  damages  of  a
penal nature;  and  since  the  computation  of  damages  was  left  totally
unguided  and  untrammelled,  violation  of  Article  14  was  plainly   and
expectedly obvious.   The Court while upholding the Constitutional  validity
of Section 14B held that the raison d’etre for the introduction  of  Section
14B (by Act 40 of 1973) was to deter and thwart  employers  from  defaulting
in forwarding contributions to the  Funds,  most  often  with  the  ulterior
motive  of  misutilizing  not  only  their  own  but  also  the   employees’
contributions. Section 14B originally restricted damages to 25 per  cent  of
the withheld amounts which, having been found  to  be  ineffectual  for  the
attainment to the objectives of  the  Act,  was  increased  to  a  sum  “not
exceeding the amount of arrears”.   This Court also  interred  the  division
or dichotomy of opinions flowing from differing decisions of different  High
Courts by clarifying that the word  ‘damages’  has  been  employed  in  this
dispensation  to  mean  penalty  on  recalcitrant   employers  as  well   as
reparation for loss caused to the Fund.   The  Court  stoutly  repelled  the
contention that damages were merely compensatory in nature  and,  therefore,
should not exceed the interest that would have  accrued  in  favour  of  the
Funds had  the  contributions  been  diligently  dispatched  to  the  Funds.
Organo has been favourably followed in Babubhai & Co. vs. State  of  Gujarat
(1985) 2 SCC 732.
10    There is no gainsaying that  criminal  liability  remains  steadfastly
fastened to the actual perpetrator and cannot be transferred by any  compact
between persons  or  even  by  statute.   But  this  incontrovertible  legal
principle does  not  support  or  validate  the  contention  of  Mr.  Jayant
Bhushan, Learned Senior Advocate for the Appellants, that damages levied  in
terms of Section 14B of the EPF Act cannot  be  foisted  onto  his  clients.
Sections 14, 14A, 14AA, 14AB and 14AC of the  EPF  Act  are  the  provisions
postulating prosecution; in contradistinction Section 14B  contemplates  the
power to “recover from the employer by way  of  penalty  such  damages,  not
exceeding the amount of arrears, as may be specified in the Scheme”.  It  is
true that it is  not  a  river  but  a  mere  rivulet  that  segregates  and
distinguishes the legal concepts  of  damages  or  compensatory  damages  or
exemplary damages or deterrent damages or punitive  damages  or  retributory
damages.  We shall abjure from writing a  dissertation  on  this  compelling
legal nodus; save to clarify that modern jurisprudence recognizes  that  the
imposition  of  punitive   damages,   quintessentially   quasi-criminal   in
character, can be resorted to even in  civil  proceedings  to  deter  wilful
wrongdoing by making an admonished example of the wrongdoer.   This  is  the
essential purpose, it seems to us, of Section 14B of the  EPF  Act,  and  an
imposition within its confines does not assume criminal  prosecution  so  as
to  stand  proscribed  insofar  as  transfer  of  establishment   from   one
management/employer to its successor is concerned.
11    It has also been argued that damages  as  postulated  in  Section  14B
would not be transferable under  Section  17B.   This  argument  has  to  be
stated only to be rejected for the  reason  that  Section  17B  specifically
speaks of “the contributions and other sums due from the employer under  any
provision of this Act or the  Scheme”  (emphasis  added).   The  proviso  to
Section 17B indeed clarifies the position inasmuch as  it  restricts  and/or
limits the liability of the transferee up to the date  of  the  transfer  to
the value of the assets obtained by him through such transfer.
12     We are also not impressed by the argument addressed  by  Mr.  Bhushan
to the effect that damages under Section 14B are not jointly and  separately
recoverable from the erstwhile and the  present  managements  under  Section
17B as Section 14B  moves  in  its  own  and  independent  orbit.    Several
amendments have been made to the EPF  Act  so  far  as  the  fasciculous  of
Sections 7A to Section 7Q is concerned.    This is also true of the  pandect
containing Sections 14A, 14AA, 14AB, 14AC, 14B and 14C; and for that  matter
Sections 17A, 17AA and 17B.   Where such widespread amendments  and  changes
are incorporated in a statute,  it  is  always  salutary  and  advisable  to
reposition the provisions and number them sequentially and logically.    The
argument that the phrase “determination of amounts due  from  any  employer”
is found in Section 7A as well as in Section 17B is not  factually  correct.
 Section 17B  speaks  of   “contributions  and  other  sums  dues  from  the
employer under any provision of  this  Act  …….”;  the  latter  Section  is,
therefore, wider in ambit than the previous one.  In  our  opinion,  Section
14B is  complete  in  itself  so  far  as  the  computation  of  damages  is
concerned.   It is conceivable that the money due  from  an  employer  would
have to be calculated under Section 7A, and in  the  event  the  default  or
neglect of the employer is contumacious and contains the requisite mens  rea
and actus reus yet another exercise of  computation  has  to  be  undertaken
under Section 14B.    Where the Authority is of  the  opinion  that  damages
under Section 14B need to be imposed, the  computations  would  come  within
the purview  of  Section  14B  and  it  would  be  recoverable  jointly  and
severally from the  erstwhile  as  well  as  the  current  managements.    A
perusal of the Appeals Section, namely, 7I is illustrative of the fact  that
these exercises are distinct from each other as per the  enumerations  found
in the first sub-Section of Section 7I.   It also appears logical to us,  in
the wake of the numerous and different dates  of  amendments,  that  Section
7A(2) would also be available to proceedings under Section 14B of  the  Act.
 The applicability of  Civil  Procedure  Code,  1908  to  proceedings  under
Section 14B has not specifically been barred by the statute.
13         It is necessary to clarify that Eveready Industries (India)  Ltd.
had in the interregnum of this litigation changed its name to Mcleod  Russel
India Ltd.  In view of our above analysis,  it  is  our  considered  opinion
that the impugned Judgment deserves to be upheld.   It contains  a  detailed
and logical exposition of facts  as  well  as  the  law  pertaining  to  the
present  dispute.  We  also  approve  the  pithy  observations  of  the  RPF
Commissioner, Jalpaiguri in the subject Order that failure on  the  part  of
the employers  to  make  remittances  of  accumulations  and  contributions,
undermines the objectives and purposes of the statute.   We underscore  that
the liability of the Fund to  pay  interest  to  subscribers  regardless  of
whether  employers  have  paid  their   dues,   runs   relentlessly.     The
Commissioner has specifically recorded that he has taken a lenient  view  in
the matter and has eschewed imposition of damages to the extent of  100  per
cent of the arrears even though this is envisaged  by  the  EPF  Act.    The
Appellant-Petitioner has, in  the  circumstances  of  the  case,  been  also
rightly burdened with the payment of interest under Section 7Q  of  the  EPF
Act.   Accordingly, the Appeal is  dismissed  and  the  interim  Orders  are
recalled.   Although, it is our opinion that the Appeal is wholly devoid  of
merit, we refrain from imposing costs.


............................................J.
                                          [T.S. THAKUR]



............................................J.
                                          [VIKRAMAJIT SEN]
New Delhi;
July 02, 2014.