Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revisions. A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks - more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive...."

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 222   OF 2015
                 (Arising out of SLP (Crl.) No.881 of 2014)

Kanaklata                                          ...Appellant

Versus

State of (NCT) of Delhi & Ors.                     ...Respondents


                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    This appeal arises out of an order dated 29th August, 2013  passed  by
a learned Single Judge of the High Court of Delhi  whereby  the  High  Court
has dismissed T.P. (Crl.) No.31 of  2013  filed  by  the  appellant  seeking
transfer of Sessions Case No.1006  of  2009  from  the  Court  where  it  is
presently pending to any other Sessions Court at Rohini or Tis Hazari.

3.     Sessions  Case  No.1006  of  2009  arises  out  of  FIR   No.156/2008
registered at P.S. Mukherjee Nagar for  commission  of  offences  punishable
under Sections 323/354 of the  IPC  and  Sections  3(i)  (X)  (XI)  (XV)  of
Scheduled Caste and Scheduled Tribe (Prevention of  Atrocities  Act),  1989.
Additional Sessions Judge, Rohini,  before  whom  the  matter  is  currently
pending, appears to have heard the parties on the  question  of  framing  of
charges and by an order  dated  22nd  March,  2010  discharged  the  accused
persons for the offences under the Scheduled  Castes  and  Scheduled  Tribes
(Prevention of Atrocities Act), 1989. The case was in that  view  made  over
to the illaqa Magistrate for consideration whether charges under the  Indian
Penal Code need to be framed in the case.

4.    The complainant questioned the discharge order  passed  by  the  trial
Court before the High Court in a revision petition which was allowed by  the
High Court by its order dated 10th December, 2012 with a  direction  to  the
trial Court to pass a fresh order on the  subject  after  hearing  both  the
parties.  It  was  at  this  stage,  that  the  complainant   expressed   an
apprehension about the fairness of the approach which the  trial  Court  may
adopt in view of the findings recorded in the  order  of  discharge  earlier
passed by her. The complainant  (appellant  herein)  expressed  these  fears
first in T.P. (Crl.) No.31 of 2013 filed before the Sessions  Judge,  Rohini
which was dismissed by the said court by order dated 22nd May, 2013  holding
that since no other officer  in  North  West  District  in  Delhi  has  been
notified for trial of cases under the Scheduled Caste  and  Scheduled  Tribe
(Prevention of Atrocities Act), 1989 the prayer for transfer in essence  was
tantamount to asking for a transfer  to  another  district  which  could  be
allowed only by the High Court. It  was  in  the  above  backdrop  that  the
complainant filed T.P. (Crl.) No.31 of 2013 before the  High  Court  seeking
transfer of the case to any other Court competent to try  the  same  outside
Rohini District. That application, as noticed above, has been  dismissed  by
the High Court in  terms  of  the  order  impugned  in  the  present  appeal
primarily on the ground that the order passed by the High Court has made  it
sufficiently clear that the observations made in the  order  passed  by  the
trial Court shall not influence any fresh order which  the  said  Court  may
pass pursuant to the remand made by the High Court. The High Court has  also
observed that the complainant (appellant herein) had while filing Crl.  R.P.
No.242 of 2010 against the discharge order  expressed  no  apprehension  nor
sought transfer of the case from the Court where it is pending to any  other
Court.

5.    We have heard learned counsel for the parties at some  length.  It  is
true that the trial Court had while discharging the  accused  persons  under
the Special  Act  mentioned  above,  made  certain  observations  about  the
alleged misuse of the provisions of the said Act  by  unscrupulous  elements
and also certain suggestions for remedying that situation. It is  also  true
that the trial Court had come to the conclusion that there is no real  basis
for it to frame any charge against the accused persons under the  said  Act.
But it is equally true that while setting aside that order and  directing  a
fresh order on the question of charge, the High Court has clearly  mentioned
that the trial Court shall remain uninfluenced by the  observation  made  in
its earlier order. That observation is, in the opinion of the High Court,  a
sufficient safeguard against any  possible  prejudice  to  the  complainant-
appellant herein making transfer of the case from the  Court  at  Rohini  to
any other Court unnecessary.  Now in the ordinary course if an order  passed
by the Court is set aside the observations  and  findings  recorded  therein
also get obliterated for all intents and  purposes.  So  also  if  the  High
Court  makes  the  position  clear  that  any  such  observation  shall  not
influence the Court concerned while making a fresh  order  the  same  should
ordinarily put the matter beyond the pale of any  controversy.  Having  said
that, there may still be situations where the  nature  of  the  observations
made by the court concerned create a reasonable apprehension in the mind  of
the litigant that the Court has so committed itself to a given  approach  or
thought process that it may not be possible for it to retrace its  steps  to
take a fair and non-partisan view in the matter. The present appears  to  be
one such case where despite the safeguards  provided  by  the  High  Court's
observations, the apprehension of the complainant continues to  subsist.  We
do not think that such apprehension is wholly misconceived  nor  can  it  be
dubbed as forum shopping in disguise. The earlier order passed by the  trial
Court is so strongly worded that it could in all likelihood give rise  to  a
reasonable apprehension in the mind  of  the  complainant  which  cannot  be
lightly brushed aside.  We must hasten to add that we are not in  the  least
suggesting that  the  Presiding  Officer  of  the  trial  Court  is  totally
incapable of adopting a fair approach while passing a fresh order  but  then
the question is not whether the Judge  is  biased  or  incapable  of  rising
above the earlier observations made by her.  The  question  is  whether  the
apprehension of the complainant is reasonable for us to direct  a  transfer.
Justice must not only be done but must seem to have been  done.   A  lurking
suspicion in the mind of the complainant will  leave  him  with  a  brooding
sense of having suffered injustice not because he had no case,  but  because
the Presiding Officer had a preconceived notion about it. On  that  test  we
consider the present to be a  case  where  the  High  Court  ought  to  have
directed a transfer.  In as much as it did not do so, we have no option  but
to interfere and direct transfer of the case to another Court.

6.    We are mindful of the fact that the transfer ordered by us  may  cause
inconvenience and harassment to the accused persons but  that  can,  in  our
opinion, be taken care of by directing  that  in  case  an  application  for
exemption from personal appearances is  filed,  the  Court  concerned  shall
consider the same and pass appropriate orders in accordance with law.

7.    In the result, we allow this appeal, set aside  the  order  passed  by
the High Court and direct that Sessions Case No.1006 of 2009 pending in  the
Court  of  Additional  District  and  Sessions  Judge,  Rohini  shall  stand
transferred from that Court to the Court of Sessions Judge, Tis Hazari,  who
shall try the same himself or make it over to any other Court duly  notified
and competent to do so. Record of the  case  shall  be  transmitted  to  the
transferee Court expeditiously.



                          ................................................J.
                                           (T.S. THAKUR)



                          ................................................J.
New Delhi,                           (ADARSH KUMAR GOEL)
February 4, 2015
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NO.  222    OF 2015
                 (Arising out of S.L.P. (Crl.) No. 881/2014)


KANAKLATA                                          ..Appellant



                                   Versus



STATE (NCT) OF DELHI & ORS.             .. Respondents



                               J U D G M E N T



R. BANUMATHI, J.



            I have had the benefit of going through  the  judgment  proposed
by his  Lordship  Justice  T.S.  Thakur.   For  the  reasons  which  I  have
indicated below, I am unable to agree with the proposed final  decision  and
in my view, the present appeal is liable to be dismissed.

2.            The   appellant    seeks    transfer    of    Sessions    Case
No.1006/2009 arising out of FIR No.156/2008  registered  at  Police  Station
Mukherjee  Nagar,  Delhi.    As   per   the   allegations    made   by   the
complainant/appellant in  the  FIR  dated  4.5.2008,  they  have  been   the
tenants  under the accused persons and on 3.5.2008, accused/respondent  Nos.
2 to 10 obstructed  and abused them by uttering  objectionable  caste  based
remarks against  them.   On  the  basis  of  the  complaint  lodged  by  the
complainant, FIR was registered under Sections 323/341/354 and  34  IPC  and
Section  3(i) (x), (xi) and (xv) of Scheduled Castes  and  Scheduled  Tribes
(Prevention of Atrocities) Act,1989.   On the discharge  petition  filed  by
respondent Nos.2 to 10, learned Additional Sessions  Judge,  Rohini  Courts,
vide  Order  dated  22.3.2010  discharged  all   the   respondents.    Being
aggrieved, the complainant moved the High Court in revision  petition  being
Criminal Revision No. 242/2010 challenging the  order  of  discharge.   Vide
Order dated 10.12.2012, the High Court set  aside  order  of  discharge  and
remitted the matter   back to the trial court to consider the matter  afresh
being uninfluenced by the observations  made  in  the  earlier  order  dated
22.3.2010.  Thereafter, the complainant moved  a  transfer  petition  before
the District & Sessions Judge, Rohini Courts and also the High Court.   Both
the petitions were  dismissed  vide  Order  dated  22.5.2013  and  29.8.2013
respectively. Being aggrieved, the complainant has filed this appeal by  way
of special  leave,  seeking  transfer  of  the  Sessions  Case  No.1006/2009
expressing apprehension that in spite of the direction of  the  High  Court,
the trial court might proceed on a pre-conceived notion.

3.          We have heard the learned counsel  for  the  appellant  and  Ms.
Pinky Anand, learned Additional Solicitor General of  India  for  respondent
No.1 and Ms. Susmita Lal, learned counsel for respondent Nos. 2 to 10.

4.          An application for  transfer  of  a  case  pending  against  the
accused cannot be permitted merely because the learned  Sessions  Judge  had
made certain observations and recorded finding in the  earlier  order  dated
22.3.2010 while allowing the  discharge  petition.   The  said  order  dated
22.3.2010 was set aside by the High Court and the  matter  was  remanded  to
the Sessions Court to consider the matter afresh being uninfluenced  by  any
observation made in the earlier order.   When the  earlier  order  has  been
set aside by the High  Court  and  the  matter  was  remitted  back  to  the
Sessions Court for consideration of the matter afresh, apprehension  of  the
appellant that the learned trial judge may not  adopt  a  fair  approach  is
untenable.

5.          As rightly pointed out by  the  High  Court,  earlier  when  the
revision petition was allowed by the High Court and the matter was  remitted
back to the trial court, no apprehension  of  bias  was  expressed  nor  any
request was made for a transfer of the case from the Special Court  to  some
other court.  On behalf of the appellant, it is now contended  that  in  the
said revision petition, the appellant could not have asked for  transfer  of
the criminal case.   In  my  considered  view,  such  contention  cannot  be
countenanced.  Under Section  482  Cr.P.C.,  in  order  to  secure  ends  of
justice, the High Court  has  inherent  power  to  pass  appropriate  order.
Having accepted the order of remand to the trial court for consideration  of
the matter afresh, the appellant  is  not  justified  in  seeking  transfer.
The appellant has neither challenged the said order  of  remand  nor  raised
the apprehension that the trial court may not adopt a fair approach.

6.          It is pertinent to note that the case  has  been  registered  by
the complainant who  were  the  tenants  against  the  respondents-landlords
numbering as many as nine persons and the  matter  is  pending  trial  since
2009.  By filing transfer petition in 2013, the appellant  seems  to  appear
to be interested only in delaying the matter.

7.          In considering the transfer application, it is  to  be  kept  in
mind that whether a litigant could reasonably apprehend a bias  attributable
to a presiding Judge.  Transfer of a case from  one  court  to  another  has
serious  effects  on  the  Judge  from  whom  the  case  is  sought  to   be
transferred. Mere presumptions or possible assumptions  are  not  sufficient
for transfer of a case.  Only on good and sufficient grounds a transfer  can
be ordered.  In my considered view, the appellant has not made out any  good
and sufficient ground for transfer.

8.          It is also pertinent to note that any casual  observations  made
by a presiding officer of trial court would not be a sufficient  ground  for
transfer for the reason that the trial courts work in a  charged  atmosphere
and they do not have the benefit of a  detached  atmosphere  of  the  higher
courts so as to think cooly and decide patiently.   In this regard,  we  may
usefully refer to the decision of this Court in  K.P.  Tiwari  v.  State  of
M.P., 1994 (Supp. 1) SCC 540, in which this Court has observed as under:-

"...The higher courts every day come  across  orders  of  the  lower  courts
which are not justified either in law or in fact  and  modify  them  or  set
them aside. That is one of the functions of the superior courts.  Our  legal
system acknowledges the fallibility of the judges  and  hence  provides  for
appeals and revisions. A judge tries to discharge his duties to the best  of
his capacity. While doing so, sometimes, he is likely to  err.  It  is  well
said that a judge who has not committed an error is  yet  to  be  born.  And
that applies to judges at  all  levels  from  the  lowest  to  the  highest.
Sometimes, the difference in views of the higher and  the  lower  courts  is
purely a result  of  a  difference  in  approach  and  perception.  On  such
occasions, the lower courts are not necessarily wrong and the higher  courts
always right. It has also to be remembered that the lower judicial  officers
mostly  work  under  a  charged  atmosphere  and  are  constantly  under   a
psychological pressure with all the contestants  and  their  lawyers  almost
breathing down their necks - more correctly up to their  nostrils.  They  do
not have the benefit of a detached atmosphere of the higher courts to  think
coolly and decide patiently. Every error, however gross it may look,  should
not, therefore, be attributed to improper motive...."

9.          Appellant has not made out any sufficient  ground  for  transfer
and the request for transfer is  bereft  of  merits.   The  High  Court  has
rightly dismissed the transfer  petition  and  same  does  not  warrant  any
interference by this Court.   The appeal is dismissed.
                                 .........................................J.
                                                         (R. Banumathi)
New Delhi;
February 4, 2015

Household work performed by women throughout India is more than US $612.8 billion per year (Evangelical Social Action Forum and Health Bridge, p. 17). In order to award just and reasonable compensation income of the deceased is taken as Rs.3000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs.2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000 x 12 x 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses totaling Rs.8,000/-. The High Court has awarded conventional damages of Rs.15,000/- i.e. Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors.[6], and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors.[7], this Court has awarded substantial amount of Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs.1,00,000/- is awarded towards loss of consortium and Rs.1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs.15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs.6,47,000/-.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1415 OF 2015
                  (Arising out of SLP (Civil) No.4969/2014)

JITENDRA KHIMSHANKAR TRIVEDI & ORS.        ..Appellants

                                   Versus

KASAM DAUD KUMBHAR & ORS.                   ..Respondents


                               J U D G M E N T

R. BANUMATHI, J.

            Delay condoned.   Leave granted.
2.          Being dissatisfied with the quantum of compensation  awarded  by
the High Court of Gujarat in First Appeal No. 4021 of 1998 dated  16.1.2012,
the claimants have filed this appeal   seeking enhancement  of  compensation
on account of death of    Smt.  Jayvantiben  Jitendra  Trivedi  in  a  motor
accident on 21.9.1990.
3.          Undisputed facts emerging from this case can be  briefly  stated
as under:-   On  21.9.1990  respondent  No.1  while  driving  tempo  bearing
registration No. GQY-4701 in a rash and negligent manner  lost  the  control
over  it  and  hit  Smt.  Jayvantiben  Jitendra   Trivedi   (deceased)   who
subsequently succumbed to injuries.    Appellant  No.1  is  the  husband  of
deceased and appellant Nos. 2 to  5  are  husband's  sisters,  daughter  and
father-in-law respectively of the  deceased  Jayvantiben.   Claimants  filed
claim petition before the Motor  Accidents  Claims  Tribunal,  Bhuj-Kachchh,
Gujarat, interalia,  claiming compensation  under  different  heads  to  the
tune of  Rs.2,96,480/- along with interest at the rate of 18  per  cent  per
annum.  The appellants averred in the claim petition that the  deceased  was
a housewife at the time of accident and was aged  22 years and that she  was
doing embroidery and knitting work and was earning Rs.900/- per  month  from
the said work and was maintaining her family.  Respondents No. 1 and  2  did
not  enter  into  defence.   Respondent  No.3-Insurance  Company  has  filed
counter  statement  denying  averments  made  in  the  claim  petition   and
contended that the compensation claimed is on the higher side.
4.           After  considering  the  oral  and  documentary  evidence,  the
tribunal came to the conclusion that the death of Smt. Jayvantiben  Jitendra
Trivedi was caused due to the  rash  and  negligent  driving  of  respondent
No.1.  Based on the oral  testimony  of  witnesses,  tribunal  came  to  the
conclusion that deceased was earning Rs.900/- per month.  Relying  upon  the
decision in General Manager, Kerala S.R.T.C. vs. Susamma Thomas  &  Ors.[1],
the tribunal assessed the income of the deceased at  Rs.1,500/-  per  month.
After deducting 1/3rd for personal expenses and  after  adopting  multiplier
of 18, tribunal has calculated the  loss  of  dependency  at  Rs.2,16,000/-.
Adding conventional damages Rs.8,000/-,  vide  award  dated  30.4.1998,  the
tribunal awarded total compensation of Rs.2,24,000/- with  interest  at  the
rate of 15 per cent per annum.
5.          Being aggrieved by the award of the tribunal, respondents  filed
appeal being First Appeal  No.4021/1998  under  Section  171  of  the  Motor
Vehicles Act 1988 before the High  Court  of  Gujarat  at  Ahmedabad.   Vide
impugned judgment dated 16.1.2012, the High Court partly allowed the  appeal
taking the income of the deceased at  Rs.1,350/-  per  month  and  deducting
1/3rd for personal expenses, the High Court  held  that  the  claimants  are
entitled to compensation of   Rs.2,09,400/-   along  with  interest  at  the
rate of 12 per cent per annum from the date of filing of the claim  petition
till the date of realization.
6.          Learned counsel for the claimants submitted that the  owner  has
neither filed written statement nor contested the claim petition before  the
tribunal and while so the insurance company cannot challenge  the  award  on
merits.  It was further submitted that the High Court did not keep  in  view
that the deceased was self-employed person apart from  being  a  home  maker
and while so, the High Court erred in reducing the compensation as  well  as
the rate of interest.
7.          Learned counsel  for  the  respondents  contended  that  in  the
absence of furnishing documentary proof  like  receipts  of  work,  accounts
books, any authenticated evidence of income no reliance  can  be  placed  on
oral testimony to prove that  the  deceased  was  earning  income  as  self-
employed at the  time  of  accident.   Further,  it  is  asserted  that  the
deceased being self-employed therefore no enhancement  in  income  could  be
lawfully granted in the light of future prospects of the deceased.
8.           Admittedly,  claimants  adduced  only  oral  testimony  of  the
witnesses to substantiate their claim that deceased  was  self-employed  and
was earning Rs.900/- per  month.   Smt.  Godavariben   Khimshankar  Trivedi-
mother-in-law and  Shri  Khimshankar  Raguram  Trivedi,  father-in-law  have
deposed to the effect that deceased at  the  time   of  accident  was  doing
tailoring, embroidery and knitting and  was  earning   Rs.900/-  per  month.
They further deposed that their daughters were also  doing the same work  as
the deceased Jayvantiben Jitendra Trivedi was then  doing  and  that   their
daughters were earning Rs.3,000/-  per  month  and  had  the  deceased  been
alive, she would have also earned Rs.3,000/- per month.
9.           The  tribunal  observed  that  in  the  district   of   Kachchh
embroidery work,  stitching  work and local traditional embroidery  work  is
doing well and had the deceased been alive she would have  earned Rs.1,500/-
 per month. Deducting 1/3rd for personal expenses  and  adopting  multiplier
of 18, tribunal has calculated  the  loss  of  dependency  at  Rs.2,16,000/-
(Rs.1000   x  12  x  18  ).   Though  in  their   cross-examination,    Smt.
Godavariben Khimshankar Trivedi  and  Khimshankar  Raguram  Trivedi  deposed
that they did not keep voucher and account books, reasoning of the  tribunal
that the embroidery and tailoring work is doing  well  in  the  district  of
Kachchh and that the deceased would have earned  not  less  than  Rs.1,500/-
per month is well merited.  It is to be pointed  out  that  the  respondents
have not adduced any evidence to prove that the deceased was not  doing  any
embroidery or tailoring work or the like.   While  so, in the light  of  the
factual findings recorded by the tribunal,  High Court was not justified  in
reducing the income of the deceased to Rs.1,350/- per month  from Rs.1,500/-
.
10.         As noticed  earlier,  tribunal  has  taken  the  income  of  the
deceased at Rs.1,500/-  whereas  the High Court  has   assessed  the  income
of the deceased at Rs.1,350/- per  month.   As  observed  by  the  tribunal,
embroidery work, stitching work and local traditional  embroidery  work  was
doing  well  in  the  district  of  Kachchh  and  there  was  good  earning.
Considering the nature of the work and the evidence of claimants' witnesses-
father-in-law  and  mother-in-law  of  the  deceased,   had   the   deceased
Jayvantiben been alive she would have earned not less  than  Rs.3,000/-  per
month.
11.          Even  assuming  Jayvantiben  Jitendra  Trivedi  was  not  self-
employed doing embroidery and tailoring work, the fact remains that she  was
a housewife and a home maker.  It is hard to   monetize  the  domestic  work
done by a house-mother.  The services of the  mother/wife  is  available  24
hours  and  her  duties  are  never  fixed.   Courts  have  recognized   the
contribution made by the wife to the house is invaluable and that it  cannot
be computed in terms of money.  A house-wife/home-maker does  not  work   by
the clock  and she is in constant  attendance of  the family throughout  and
such services rendered by the home maker has to be necessarily kept in  view
while calculating the loss  of  dependency.   Thus  even  otherwise,  taking
deceased Jayvantiben Jitendra Trivedi as the home maker,  it  is  reasonable
to  fix her income at Rs.3,000/- per month.
12.         Recognizing the services of the home  maker  and  that  domestic
services have to be recognized in terms of money,  in Arun Kumar  Agrawal  &
Anr. vs. National Insurance Company Ltd. & Ors.[2],  this Court has held  as
under:-
"The alternative to imputing money values is to measure the  time  taken  to
produce these services and compare these with the  time  that  is  taken  to
produce goods and services which are commercially viable. One has  to  admit
that in the long run, the  services  rendered  by  women  in  the  household
sustain a supply of labour to the economy and keep human societies going  by
weaving the social fabric and keeping it in good repair. If  we  take  these
services for granted and do not attach any value to this, this may  escalate
the unforeseen costs in terms of deterioration of  both  human  capabilities
and social fabric.

Household work performed by women throughout India is more  than  US  $612.8
billion per year (Evangelical Social Action  Forum  and  Health  Bridge,  p.
17). We often forget that the time spent by women in  doing  household  work
as homemakers is the time which they can devote to paid  work  or  to  their
education. This lack of sensitiveness and recognition of their  work  mainly
contributes  to  women's  high  rate  of  poverty  and  their  consequential
oppression  in  society,  as  well   as   various   physical,   social   and
psychological problems. The courts and tribunals should do  well  to  factor
these considerations  in  assessing  compensation  for  housewives  who  are
victims of road accidents and quantifying the amount in the name  of  fixing
"just compensation".


13.         The tribunal has awarded  Rs.2,24,000/-  as  against  the  same,
claimants have not filed any appeal.  As against the  award  passed  by  the
tribunal when the claimants have not filed any appeal, the  question  arises
whether the income of the  deceased  could  be  increased  and  compensation
could be enhanced.  In terms of Section 168 of the Motor Vehicles  Act,  the
courts/tribunals are to pass awards determining the amount  of  compensation
as to be fair and reasonable and  accepted  by  the  legal  standards.   The
power of the courts in awarding reasonable compensation  was  emphasized  by
this Court in Nagappa vs. Gurudayal Singh  &  Ors.[3],  Oriental   Insurance
Company Ltd. vs. Mohd. Nasir & Anr.[4],  and  Ningamma  &  Anr.  vs.  United
India Insurance Company Ltd.[5].   As  against  the   award  passed  by  the
tribunal even though the claimants  have not filed  any  appeal,  as  it  is
obligatory on the part of courts/tribunals  to  award  just  and  reasonable
compensation, it is appropriate to increase the compensation.
14.         In order to award just and  reasonable  compensation  income  of
the deceased is taken as Rs.3000/- per month.  Deducting 1/3rd for  personal
expenses contribution of the  deceased  and  the  family  is  calculated  at
Rs.2,000/- per month.  At the time of her  death  deceased  Jayvantiben  was
aged about 22 years,  proper multiplier  to  be  adopted  is  18.   Adopting
multiplier of 18, total loss of dependency is  calculated  at  Rs.4,32,000/-
(Rs.2000 x 12 x 18).  With  respect  to  the  award  of  compensation  under
conventional  heads, tribunal has awarded Rs.5,000/- towards loss of  estate
and Rs.3,000/- towards  funeral  expenses  totaling  Rs.8,000/-.   The  High
Court has awarded  conventional  damages  of  Rs.15,000/-  i.e.  Rs.10,000/-
towards loss of estate and Rs.5,000/- towards funeral expenses.  The  courts
below have not awarded any  compensation  towards  loss  of  consortium  and
towards love and affection.  In Rajesh & Ors. vs. Rajbir  Singh  &  Ors.[6],
and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan  &  Ors.[7],  this  Court  has
awarded substantial amount of Rs.1,00,000/- towards loss of  consortium  and
Rs.1,00,000/- towards loss of love and affection.  Following  the  same,  in
the case in hand, Rs.1,00,000/- is awarded towards  loss of  consortium  and
Rs.1,00,000/- towards  loss of love and affection  to  the  minor  children.
Towards loss of estate  and  funeral  expenses,  award  of  compensation  of
Rs.15,000/- awarded by the High Court  is maintained.  Thus,  the  claimants
are entitled to a total compensation of Rs.6,47,000/-.
15.         As against the award passed by  the  tribunal  even  though  the
claimants have not preferred any appeal and even though the  claimants  have
then prayed for compensation of Rs.2,96,480/-, for  doing  complete  justice
to  the  parties,   exercising  jurisdiction  under  Article  142   of   the
Constitution  of  India,  we  deem  it   appropriate   to   award   enhanced
compensation of Rs. 6,47,000/ to the claimants.
16.         In situation of this nature, for doing complete justice  to  the
parties,  this Court has always exercised  the  jurisdiction  under  Article
142 of the Constitution of India.  In  Oriental  Insurance  Company  Limited
vs. Brij Mohan and Ors.,[8]  this Court held as under:-
"13.However, Respondent 1 is a  poor  labourer.  He  had  suffered  grievous
injuries.  He  had  become  disabled  to  a  great  extent.  The  amount  of
compensation awarded in his favour appears to be on a  lower  side.  In  the
aforementioned situation, although we reject the  other  contentions  of  Ms
Indu Malhotra, we are inclined to exercise  our  extraordinary  jurisdiction
under Article 142 of the Constitution of India so  as  to  direct  that  the
award may be satisfied by the appellant but it would be entitled to  realise
the same from the owner of the tractor and the  trolley  wherefor  it  would
not be necessary for it to initiate any separate  proceedings  for  recovery
of the amount as provided for under the Motor Vehicles Act.

14. It is well settled that in a situation of  this  nature  this  Court  in
exercise of its jurisdiction under Article 142 of the Constitution of  India
read with Article 136 thereof can issue suit directions for  doing  complete
justice to the parties".

In  Deddappa  &  Ors.  vs.  Branch  Manager,  National  Insurance    Company
Limited,[9]  it was observed as under:-
"26.  However, as the appellant hails from the lowest strata of society,  we
are of the opinion that in a case of this nature, we should, in exercise  of
our extraordinary jurisdiction under Article  142  of  the  Constitution  of
India, direct Respondent 1 to pay the amount  of  claim  to  the  appellants
herein and recover the same from the owner of the  vehicle  viz.  Respondent
2, particularly in view of the fact that no appeal was preferred by him.  We
direct accordingly".

17.         The next question falling for our consideration is the  rate  of
interest to be awarded.  The tribunal has awarded interest at  the  rate  of
15 per cent which was reduced to 12 per cent by the High  Court.   The  rate
of interest awarded by both the courts is on higher side.  In Amresh  Kumari
vs. Niranjan Lal Jagdish Prasad Jain & Ors.[10] and  Mohinder  Kaur  &  Ors.
vs. Hira Nand Sindhi (Ghoriwala) and Anr.[11], this Court  has  awarded  the
compensation amount payable to the claimants with interest at the rate of  9
per cent.

18.         The compensation reduced by the High  Court  from  Rs.2,24,000/-
to Rs.2,09,400/- is enhanced to Rs.6,47,000/-. The quantum  of  compensation
claimed is Rs.2,96,480/- i.e. payable  with interest at the rate  of  9  per
cent from the date of the filing of the claim  petition  till  the  date  of
payment.  So far as the enhanced compensation of  Rs.3,50,520/-  is  payable
with interest at the rate of 9 per cent from  the  date  of  filing  of  the
special  leave  petition  till  the  date  of  realization.   The   enhanced
compensation of Rs.3,50,520/- alongwith accrued interest  shall  be  equally
divided between the appellants No.1 and 4 Jitendra Khimshankar Trivedi,  Ku.
Preeti Jitendra Trivedi (husband and daughter respectively of the  deceased-
Jayvantiben Jitendra Khimshankar) in equal share.


19.         In the result, impugned judgment of the High Court  is  modified
and the appeal  is partly allowed  in the above terms.   In  the  facts  and
circumstances of the case, we make no order to as to costs.

                                                ..........................J.
                                                                        (V.
                                Gopala Gowda)


                                                ..........................J.
                                                                        (R.
                                 Banumathi)

New Delhi;
February 3, 2015


ITEM NO.1B-For Judgment      COURT NO.12           SECTION IX

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

Civil Appeal No(s)......../2015 arising from SLP(C)No. 4969/2014

JITENDRA KHIMSHANKAR TRIVEDI & ORS.               Appellant(s)

                                VERSUS

KASAM DAUD KUMBHAR & ORS.                        Respondent(s)

Date : 03/02/2015 This petition was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Mr. Abhijat P. Medh,Adv.

For Respondent(s)
                     Ms. Manjeet Chawla,Adv.


            Hon'ble Mrs. Justice R. Banumathi  pronounced  the  judgment  of
the Bench comprising Hon'ble Mr. Justice V. Gopala Gowda  and  Hon'ble  Mrs.
Justice R. Banumathi.
            Leave granted.
             The  appeal  is  partly  allowed  in  terms   of   the   signed
Reportable judgment.


    (VINOD KR.JHA)                              (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)
-----------------------
[1]   [2] (1994)  2 SCC 176
[3]   [4] (2010) 9 SCC 218
[5]   [6] (2003) 2 SCC 274
[7]   [8] (2009) 6 SCC 280
[9]   [10] (2009) 13 SCC 710
[11]  [12] (2013) 9 SCC 54
[13]  [14] (2013) 9 SCC 166
[15]  [16] (2007) 7 SCC 56
[17]  [18] (2008) 2 SCC 595
[19]  [20] (2010) ACJ 551
[21]  [22] (2007) ACJ  2123

The International Council of Museums (ICOM) (working with the support of UNESCO) has issued guidelines for disaster preparedness in Museums which are well known to those concerned with the management of Museums. The UNESCO in its quarterly journal "Museum" has suggested measures for security of museum objects in the light of studies undertaken by it. Performance audit of preservation and conservation of Monuments and Antiquities is also conducted by the Comptroller and Auditor General of India (CAG).

REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                      WRIT PETITION (C) NO.252 OF 2004


SUBHAS DATTA
...PETITIONER

                       VERSUS

UNION OF INDIA AND ORS.                                     ...RESPONDENTS


J U D G M E N T

ADARSH KUMAR GOEL, J.
1.    This petition has been filed as  public  interest  litigation  on  the
issue of protection of historical objects preserved at different  places  in
the country particularly in various museums.  Prayer in the petition is  for
a direction for adequate security arrangements and for proper  investigation
into the incidents of theft and damage to  several  historical  objects  and
also for making an inventory of available articles for future.
2.    Initially, the respondent in the writ petition was the Union of  India
through Ministry of Human Resource Development but by order  of  this  Court
dated 7th July, 2008, the Director General, National  Museum,  Janpath,  New
Delhi;  the Director General, Archaeological Survey of India,  Janpath,  New
Delhi; the Director, National Gallery of Modern  Art,  Jaipur  House,  India
Gate, New Delhi; the Director, India  Museum,  27,  Jawaharlal  Nehru  Road,
Kolkata; the Secretary & Curator, Victoria  Memorial  Hall,  1,  Queen  Way,
Kolkata; the General Secretary, Asiatic Society, 1,  Park  Street,  Kolkata;
the Director, Salar Jung Museum, Hyderabad; the Acting  Director,  Allahabad
Museum, Allahabad; the Director,  Nehru  Memorial  Museum  &  Library,  Teen
Murti House, New Delhi were impleaded as parties  as  the  said  respondents
are directly concerned with the issue raised in the petition.
3.    Immediate trigger for the  petitioner  appears  to  be  the  theft  of
historical artefacts of Kabiguru Rabindra Nath Tagore, kept  in  the  museum
of Viswabharati University at Santiniketan in West  Bengal  of  which  Prime
Minister is the Chancellor.  Reference has been made in the petition to  the
incident of stealing of golden coins from the Asiatic  Society  of  Calcutta
in the year 1990.  Further reference has been made to theft from the  Nandan
Art Gallery of Viswabharati  University  in  the  year  1984  and  also  the
incidents of thefts in Victoria Memorial
at Calcutta.
4.    Case set out in the petition is that the material at  various  centres
like Asiatic Society, National Library,  Viswabharati  University,  Victoria
Memorial and other Indian Museums is  national  asset  which  needs  safety,
security,  preservation  and  maintenance.   Under   Article   49   of   the
Constitution, the State is  under  obligation  to  protect  every  monument,
place or object of artistic or historic interest declared to be of  national
importance from spoilation, disfigurement,  destruction,  removal,  disposal
or export, as the case may be.  Under Article 51A(f)  of  the  Constitution,
there is fundamental duty to value and preserve the  rich  heritage  of  our
composite culture.  There should  be  proper  inventory  of  all  historical
objects preserved at different centres and such inventory should be kept  at
a central place under the Government of India.  There should  be  periodical
stock taking by an independent agency.  Ancient Monuments Preservation  Act,
1904 requires proper preservation of objects of archaeological,  historical,
or artistic interest.  Reference has also been made to Prevention of  Damage
of Public Property Act, 1984 to state that any damage to public property  is
national loss.
5.    In response to the writ petition, a counter affidavit has  been  filed
on behalf of the Union of  India  by  the  Director,  Ministry  of  Culture,
acknowledging that theft of Nobel Prize Medal  from  Viswabharti  University
at Santiniketan was a matter of grave concern.  It is  further  stated  that
the CBI has been entrusted with the task of  investigation,  but  no  report
has been received.  Similarly,  incident  of  theft  of  golden  coins  from
Asiatic Society of Calcutta has  been  acknowledged  as  a  fact  for  which
investigation was undertaken but closed.   There  is  no  report  about  the
recovery  of  the  lost  objects.   Theft  at  Victoria  Memorial  is   also
acknowledged  and  it  is  stated  that  the  answering  respondent  was  in
agreement with the petitioner that all possible steps  should  be  taken  by
the concerned organizations for the proper  safety,  security,  preservation
and maintenance of artefacts under their custody.  The Union  of  India  was
taking every possible step  for  safety  of  artefacts  in  the  custody  of
Museums/Organizations controlled by them.  The artefacts are  scattered  all
over the country in various museums controlled by the State  Government  and
also with Private  Museums   who  have  their  own  security  systems.   The
Government of India had entrusted the security to the CISF wherever  it  was
felt necessary. The security scenario is reviewed from  time  to  time.   It
was not  possible  to  take  responsibility  of  entire  private  and  State
Government owned Museums and it was also not financially feasible to do  so.
The Ministry of Culture, provides funds for museums to  acquire  equipments.

A meeting was convened on 8th April, 2004 by  the  Ministry  of  Culture  on
issues relating to security.  A Committee was set up under the  chairmanship
of Director General, National Museum, for assessing the  security  needs  of
various museums.  The museums  under  the  Ministry  of  Culture  have  been
advised to follow security norms suggested by the Committee.  It may not  be
financially viable to deploy a specialized force at  all  places  where  the
administration and custody of artefacts is either in the  State  Governments
or in private hands, but privately run security agencies could be hired  for
the purpose.  The Museums under the administrative control  of  Ministry  of
Culture were keeping the inventory of art objects which were  verified  from
time to time.  The state organizations were  engaged  in  the  programme  of
digitization of artefacts.  Initiatives were being  taken  in  mission  mode
for proper documentation of artefacts and monuments. The Antiquities  &  Art
Treasures Act, 1972 is in place to provide legal safeguards.
6.    According to the guidelines annexed to  the  counter  affidavit  there
should be four  layer  coverage  for  external  and  internal  security  for
museums by guarding  perimeter  at  entry  points,  galleries,  surveillance
through manual and electronic gadgets and  intangible  intelligence.   There
should be effective Access Control System (ACS); security should be  with  a
single agency; Standard Operating Procedure (SOP)  should  be  rehearsed  at
regular intervals;  Galleries  and  Security  Points  should  have  Intercom
Networking;  a Contingency Plan should be prepared to deal with  fire/smoke;
robbery; power failure;  spotting  a  suspicious  person  on  CCTV  monitor;
there should be regulation of movements of daily wagers/private workers  for
repair and maintenance;  there should be least number of entry/exit  points;
 preventive and deterrent measures should be increased;  Door  Framed  Metal
Detector (DFMD) should be installed at the main entrance;  Hand  Heed  Metal
Detector (HHMD) should be provided to security staff;  CCTV  cameras  should
be installed at different locations;  Walkie-Talkie  and  Intercom  facility
should be provided at each security point;  there should be Control Room  to
coordinate functioning of museum and security staff; there  should  be  Auto
Camera at the main entrance.    Infra-red  Alarm  system  or  Punched  Taped
Concertina or Electric Fencing should be installed at the perimeter  of  the
Museum building.  The grills in the windows should  be  re-enforced.   There
should  be  baggage  X-Ray  machine.   There  should  be  Electronic   Locks
(Magnetic) for all doors of Galleries, Storages and Strong  Rooms.   Visitor
flow  should  be  regulated  by  Biometric  Photography  system.    Internal
intelligence staff should  be  employed.   Every  museum  should  carry  out
security audit and impart orientation programme in  strategic  areas.   Safe
keeping of keys of Museum should be ensured.  A Curator  should  be  deputed
for opening and closing of the museum.  Gallery locks should  be  installed.
Regular drill should be carried out at least once in  three  months.   There
should be Spatial  Planning  for  Security  which  should  be  aesthetically
attractive with a  consistent  Signage  System,  service  units  should  not
remain in gallery areas.  There should be stand-by Automatic  Power  Back-Up
System.  There should be bullet-proof glass for vulnerable art  objects  and
jewellery items should be stored in the Strong Room.   Infra-red  System  or
painting gallery and Electronic Sensor Tags should  be  used  for  displayed
objects.  6mm to 8mm thickness of glass should be used for table  showcases.
 Police verification of workers should be carried out.  Preventive and  Fire
Fighting Measures should be adopted, smoke detectors  should  be  installed.
Fire alarm system should be installed.  Electronic choke should be  used  in
showcases.  Tripping system should be  strengthened  for  identification  of
short circuits.  Inspection  of  fire  fighting  in  the  electronic  system
should be carried out.  Minimum wooden items should be  used  in  galleries,
fire resistant cloth, cupboard and locker  should  be  used  for  partition.
The Standing Committee of the Museum should ensure that plug points are  not
broken, conduited electrical wiring should be used and  electrical  fittings
are   replaced.    The   museum   should   have    technical    staff    for
Curatorial/Technical/Official  Management.   Record  should  be   maintained
properly as per detailed guidelines laid down.
7.    Noticing the stand in the counter affidavit, this Court on
12th August, 2005 directed the  Ministry  to  file  a  better  and  detailed
affidavit about the implementation of the recommendations  and  the  results
achieved.  The Ministry was also directed  to  consider  giving  specialized
training in respect of security and  also  to  consider  the  suggestion  of
verification being done by outside agencies.
8.    Accordingly, an additional affidavit was filed on  9th  January,  2006
stating that the matter was reviewed by the Security  Committee   headed  by
Director General, National Museum.  The recommendation was forwarded to  the
selected museums and also to the State Governments.  The  State  Governments
were  also  requested  to  apply  for  financial  assistance  for  equipment
relating to security systems for which a  provision  of  Rs.2500  lakhs  was
made.  The Trusts, Private Bodies and Semi Govt. Bodies have their  separate
security systems based on  their  needs  and  locations  and  perception  of
theft.  With regard to museums under the control  of  Ministry  of  Culture,
the status of security arrangements has been indicated.   According  to  the
affidavit, recommendations of Security Committee have  been  implemented  by
various  museums  and  some  recommendations  were   in   the   process   of
implementation.  It  has  been  further  stated  that  though  the  physical
verification is regularly done by  museum  staff,  the  idea  of  entrusting
physical verification to outside agency has been accepted in principle.   As
regards specialized training, it is stated that security of National  Museum
and Salar Jung Museum has been handed over to CISF, while security of IGRMS-
Bhopal, NMML, New Delhi, NGMA-Mumbai and New Delhi are  being  looked  after
by their own security staff  viz.  Security  Assistant,  Gallery  Attendant,
Chowkidars etc.  It  is not  financially  feasible  to  organize  a  special
force for the security of Museums  spread  all  over  the  country,  as  the
various museums/sites are under the control  of  various  agencies  such  as
Central  Government,  State  Government,  Semi  Government  Bodies,  Trusts,
Private Bodies etc.
9.    An affidavit has also been filed by  Under  Secretary,  Government  of
India, Ministry of Culture on 22nd October, 2007 in response  to  additional
affidavit of the petitioner annexing the status report on implementation  of
recommendation of Security Committee at various organizations. It is  stated
that physical verification has been done by outside agency in  the  case  of
National Museum and such verification  was  in  progress  in  certain  other
museums.  Museums under the control of  Ministry  of  Culture  were  in  the
process of computerizing the details of the artefacts.  There  are  internal
physical verification systems under which artefacts are verified at  regular
intervals in museums under the control of  Ministry  of  Culture.   Physical
verification is specialized job which should be done  only  by  experts.   A
Committee for physical verification was constituted under  the  Chairmanship
of  Shri  M.N.  Deshpande,  retired  Director   General,   ASI   which   was
reconstituted  by  substituting  Shri  M.  Varadarajan,   former   Secretary
(Culture) in
April, 1999.  National Museum had more than 2  lakhs  works  of  art,  which
were physically verified by the  Committee  in  a  phased  manner.  Physical
verification of art objects in Indian Museum,  Kolkata  was  being  done  by
outside experts.  Verification of art objects in Victoria Memorial Hall  was
being done by internal verification agency.   Theft  of  Nobel  Prize  Medal
from Viswabharti Museum and Fifth Century Buddha Head  from  Indian  Museum,
Kolkata were  being  investigated  by  CBI.   The  issues  emerging  in  the
observations of audit were being addressed.  The modalities  for  relocation
of all the  administrative  and  other  service  units  outside  the  museum
premises were being worked out.  Affidavits have also been filed  on  behalf
of the  Salar  Jung  Museum,  Hyderabad,  Allahabad  Museum,  Archaeological
Survey of India, in response to directions of this Court.
10.   On 10th January, 2013, the CBI  was  directed  to  apprise  the  Court
about the progress of investigation relating to missing of  Budha  Bust  and
other cases in question.  The Ministry  of  Culture  was  also  directed  to
respond to the  affidavit  of  the  Director,  Indian  Museum  that  due  to
shortage of manpower and absence of scholars and experts in  Indian  Museum,
Kolkata, the work of verification which was started in the year  2005  could
not be completed even in seven years.  The Ministry of Culture was  directed
to look into the matter and provide resources so that  substantial  progress
could be achieved.  The Ministry was also directed to look into the  paucity
of sufficient place as the Museum was not  in  a  position  to  display  its
items and to  maintain  their  museum.   Directions  were  also  issued  for
completion of verification of the remaining items by the  Victoria  Memorial
Hall.  The Government of India was directed to  look  into  the  requirement
for residential accommodation for the  CISF  staff  near  Victoria  Memorial
Hall.  The State Government was also directed to look into this aspect.
11.   Thereafter affidavit dated 2nd April, 2013 has been  filed  on  behalf
of the Minister stating that a meeting was held in the Ministry  to  discuss
the issue of physical verification of objects at Indian Museum, Kolkata  and
Victoria Memorial Hall and CISF had agreed to provide  necessary  staff  for
security subject to accommodation being  provided.   Affidavits  dated  21st
September, 2013 have also been filed on  behalf  of  the  Victoria  Memorial
Hall and the Indian Museum stating that verification of all items  available
with it had almost been carried out and that the issue of security was  also
being sorted out.
12.   We have heard the petitioner in-person and  learned  counsel  for  the
respondents.
13.   The petitioner in person submits that inspite  of  various  directions
of this Court during pendency of this petition for the last  more  than  ten
years,  the  situation  is  still  not  satisfactory.   Neither  the  stolen
articles have been recovered nor adequate security measures  fully  adopted.
The updating of inventory and its cross checking needs to be ensured.
14.   Learned Additional Solicitor General and the learned counsel  for  the
respondents fairly stated that the concern of the petitioner is genuine  and
there is every need to review  the  security  measures  and  to  update  the
inventory.  They assured the Court that the concern will  be  addressed  and
necessary steps in the matter will be taken.
15.   It can hardly be gainsaid  that  preservation  of  rich  heritage  and
culture of the country is a constitutional mandate.   In  UNESCO  Convention
on the means of Prohibiting and Preventing the Illicit  Import,  Export  and
Transfer  of  Ownership  of  Cultural  Property  adopted  in   the   General
Conference of  the  United  Nations  Educational,  Scientific  and  Cultural
Organization, meeting in Paris from
12th October to 14th November 1970, at  its  sixteenth  session,  which  has
been duly ratified by India,  the  spirit  of  the  said  mandate  has  been
reiterated.  The International Council of Museums (ICOM) (working  with  the
support of UNESCO)  has  issued  guidelines  for  disaster  preparedness  in
Museums which are well known to  those  concerned  with  the  management  of
Museums.  The  UNESCO  in  its  quarterly  journal  "Museum"  has  suggested
measures for security of museum objects in the light of  studies  undertaken
by it.  Performance audit of preservation and conservation of Monuments  and
Antiquities is also conducted by the  Comptroller  and  Auditor  General  of
India (CAG).
In its 18th report of 2013, various observations have been made by
the CAG.  Learned counsel for the respondents accept the legal position  and
also  submit  that  the  security  and  maintenance  of  historic  artefacts
requires serious and continuous  efforts  by  technically  trained  persons.
The challenges pointed out by the respondents, who are running and  managing
museums, in their affidavits that  there  are  space  constraints,  manpower
shortage and lack of other resources need to be looked into by the  Ministry
of Culture  and  other  concerned  authorities  and  appropriate  monitoring
mechanism needs to be put in place.  Requisite funds have  to  be  allocated
so as to ensure safe keeping of the valuable artefacts.
16.   In view of assurance  of  learned  Additional  Solicitor  General  and
other counsel for the respondents, it may  not  be  necessary  to  give  any
specific direction at this stage.  There is no reason to doubt the stand  of
the Central Government and the other respondents that  all  necessary  steps
will be taken and reviewed from time to time.  This Court expects  that  the
Secretary, Ministry  of  Culture  will  review  the  matter  and  take  such
necessary steps as may be identified within  one  month  from  the  date  of
receipt of a copy of this order.  Thereafter, review meetings  may  be  held
at least once in every six months to consider further course of action.   If
any grievance survives, it will be open to  any  aggrieved  person  to  take
legal remedies in accordance with law.
17.   With the above observations, the writ petition is disposed of.


              ............................................................J.
                                   (T.S. THAKUR)



               ...........................................................J.
                                    (ADARSH KUMAR GOEL)

NEW DELHI
FEBRUARY 3, 2015

whether the appellants are entitled to claim the relief of payment of retrenchment compensation.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 1389 OF 2015
                    (Arising out of SLP(C) No.33509/2011)


Oshiar Prasad and Others                     Appellant(s)


                             VERSUS


      The Employers in relation to
Management of Sudamdih
Coal Washery of M/s BCCL,
Dhanbad, Jharkhand                      Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    Leave granted.
2.    This civil appeal  is  filed  by  the  unsuccessful  writ  petitioners
against the judgment and order dated 17.06.2011 passed by the High Court  of
Jharkhand at Ranchi in L.P.A. No. 447 of 2009 which arises out of the  order
dated 03.09.2009 passed by the learned single Judge of  the  High  Court  in
C.W.J.C. No. 616 of 1999(R).
3.    By impugned judgment, the Division  Bench  dismissed  the  appellants'
intra court appeal and upheld  the  order  of  the  writ  court,  which  had
dismissed the appellants' writ petition and in consequence upheld the  award
dated 21.12.1998  passed by  the Labour Court in Reference Case  No.  75  of
1995.
4.    In order to appreciate the controversy involved in this appeal, it  is
necessary to set out the facts in detail.
5.    The respondent - M/s Bharat Coking Coal Ltd (hereinafter  referred  to
as "the BCCL") is a Government of India undertaking.  It is engaged  in  the
business of manufacture and sale  of  various  kinds  of  coal.   It  has  a
colliery at Dhanbad, Jharkhand known as "Sudamdih Coal Washery".
6.    On 24.07.1974, the BCCL invited tenders for  construction  of  Washery
on Turnkey basis for running the colliery.   The  contract  was  awarded  to
one Company - M/s MC Nelly, Bharat  Engineering  Company  Ltd.  (hereinafter
referred to as "the Contractor").  An  agreement  was  accordingly  executed
between the BCCL and the Contractor on 29.01.1976.  Since the  execution  of
the work was to be done on turnkey basis, the Contractor was required to  do
every thing  to  make  the  Washery  operational.   The  work  included  the
complete  design  of  the  Washery,  supply  of   materials   required   for
construction of plant, building, installation of  machinery,  all  kinds  of
construction of the structures of Washery etc.
7.    Pursuant to the contract, the Contractor started the work in  1977  by
employing several skilled and unskilled workers and completed  the  same  by
December 1979. After completion of the work, the Contractor  terminated  the
employment of all the workers and offered them retrenchment compensation  as
per the provisions of Section 25 of Industrial Disputes Act, 1947 (in  short
"the Act") except 39 skilled workers, who were retained to  look  after  the
maintenance work of Washery after it was  made  operationalized.   These  39
workers continued to work.  After retaining their  services  for  about  one
year, the Management terminated  the  services  of  these  39  employees  in
January,  1981.   These  39  employees  raised  a  dispute  demanding  their
absorption and continuation in service with the BCCL.  Since  their  demands
were not accepted, a reference was made under  Section  10  of  the  Act  to
Industrial Tribunal No. 3 Dhanbad vide Reference Case  No.  58  of  1981  to
answer the following question:
"Whether the management of Sudamdih Coal Washery of M/s Bharat  Coking  Coal
Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing  Sarvashri
Gorakh Sharma and 38 others as their regular employees?   If  not,  to  what
relief are the said workmen entitled?"

8.    The Industrial Tribunal by its award  dated  03.03.1983  answered  the
reference in workers' favour and directed that 39  workers  be  absorbed  by
the BCCL in their employment as their regular employees and  they  be  given
all such consequential benefits to which they were entitled to claim due  to
their regularization in the services of BCCL.  The BCCL  did  not  challenge
the award and implemented  the  directions  by  absorbing  and  regularizing
these 39 workers in their employment.
9.    It may be  mentioned  that  five  workers  (including  the  appellants
herein), who claimed to be working in the same  project,  filed  Title  Suit
No. 51/1980 against the BCCL in the Court of Munsif 2nd Dhanbad under  Order
I Rule 11 of the Code of Civil Procedure, 1908  for  declaration  that  they
are entitled to continue in their services under the BCCL  and  prayed  that
their services be absorbed and regularized in the services of BCCL with  all
consequential benefits. They also prayed for an injunction  restraining  the
BCCL from terminating their services pending civil suit.
10.   The Trial Court, however, on contest declined to grant  the  temporary
injunction to the plaintiffs. It is not in dispute that during the  pendency
of the suit, the services of these workers  were  discontinued.  They  were,
therefore, no more in the employment.
11.    By judgment and decree dated 27.05.1983, the trial Court decreed  the
suit and held that the plaintiff's are entitled to continue in  services  of
BCCL.
12.   Felt aggrieved,  the BCCL filed Title Appeal No.  71  of  1983  before
the Appellate Court.  The  Appellate  Court  by  judgment  and  order  dated
16.12.1986 dismissed the appeal and confirmed the  judgment  and  decree  of
the Trial Court.
13.   The BCCL pursued the matter further and filed an appeal  being  Second
Appeal No.23 of 1987(R) before the High Court. The High Court,  by  judgment
and order dated 05.03.1993 allowed the  Second  Appeal  and  set  aside  the
judgment and decree of the two Courts  which  had  decreed  the  plaintiffs'
suit. It was held that the  suit  was  not  maintainable  in  the  light  of
provisions of Labour laws.
14.    Against  the  aforesaid  judgment,  the  plaintiffs  (workers)  filed
Special Leave Petition being Special Leave Petition (C)  No.  4495  of  1994
before this Court.  By order dated 14.11.1994, this  Court,  after  granting
leave, dismissed the appeal  (C.A.  No.8403/1994)  with  a  liberty  to  the
plaintiffs/appellants to approach the Industrial Tribunal for  claiming  any
appropriate relief, if so advised.
15.   It is with this background, the plaintiffs (five  workers)  approached
the Central Government under Section 10 of the Act and also on behalf of  as
many as 150 workers espousing their cause  in  representative  capacity  for
their absorption and regularization and  prayed  for  making  an  industrial
reference to the Industrial Tribunal for its  adjudication.  The  Government
acceded to their request and accordingly made  the  following  reference  to
the Industrial Tribunal to adjudicate:
"Whether the management of Sudamdih Coal Washery of M/s Bharat  Coking  Coal
Ltd., P.O. Sudamdih,  Dist. Dhanbad are justified in  not  absorbing  Ainuel
Haque and 150 others (as in the list annexed) as  their  regular  employees?
If not, to what reliefs are the said workmen entitled?"

16.   The  Industrial  Tribunal  by  award  dated  21.12.1998  answered  the
reference against the workers.  It was held that they were not  entitled  to
seek their absorption in the Services of BCCL as  their  regular  employees.
The workers, felt aggrieved, filed C.W.J.C.No. 616  of  1999(R)  before  the
High Court.  The learned single Judge by orders dated  03.09.2009  dismissed
the writ petition and upheld the award passed by the Tribunal.  The  workers
pursued the matter and filed intra Court appeal  being  L.P.A.  No.  447  of
2009.  The Division Bench by impugned judgment dismissed the appeal  finding
no fault in the award. Challenging the said order, the  workers  filed  this
appeal by way of special leave before this Court.
17.    While  assailing  the  legality  and  correctness  of  the   impugned
judgment, Mr. R.P. Bhatt, learned Senior Counsel for the  appellants  mainly
urged two points. His first submission was that the Courts  below  erred  in
not answering the reference in favour of the appellants and  thereby  Courts
below erred in not granting them the relief  for  which  the  reference  was
made.   His  second  submission  was  that  since  the  identical  reference
(Reference Case No.58/1981) made at the instance of  39  workers  alike  the
appellants was answered in workers' favour vide award  dated  03.03.1983,  a
fortiori, the present reference being identical in nature should  also  have
been answered in favour of the appellants  to maintain the parity. In  other
words, the submission was that  if  one  set  of  workers  got  the  benefit
earlier in point of time from the Court, the other set of workers  similarly
placed too should have been granted the same benefits.  In the  alternative,
learned Senior Counsel urged that in any  event,  the  appellants  were  not
paid any retrenchment compensation, for which otherwise they  were  entitled
to get from the Contractor or/and BCCL as per the provisions of  Section  25
of the Act read with the  provisions  of  Contract  Labour  Prohibition  and
Regulation  Act, 1970 and hence to this extent, this Court can still  direct
either Contractor or the BCCL or both, as  the  case  may  be,  to  pay  the
retrenchment compensation to the appellants.
18.   In Contra, learned  Counsel  for  the  respondent-BCCL  supported  the
impugned order and contended that no case is made out by the  appellants  to
interfere in the impugned order and hence the appeal merits dismissal.
19.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in  the  main  submissions  of  the
appellants but find substance in the alternative submission.
20.   Before we examine the factual matrix of the case in hand, we  consider
it apposite to take note of law  laid  down  by  this  Court  regarding  the
powers of the appropriate Government in making reference  under  Section  10
of the Act  and  the  jurisdiction  of  the  Tribunal  while  answering  the
reference.  Indeed it is well settled and remains no more res integra.
21.   One of the questions which fell for consideration  by  this  Court  in
Delhi Cloth and General Mills Co. Ltd. vs. The Workmen and Others (AIR  1967
SC 469) was that what are the powers of  the  appropriate  Government  while
making a reference and the scope and  jurisdiction  of  Industrial  Tribunal
under Section 10 of the Act.


22.   Justice Mitter, speaking for the  Bench, held as under:
"(8) ......Under S. 10(1)(d) of the Act,  it  is  open  to  the  appropriate
Government when it is of opinion that any industrial dispute exists to  make
an order in writing referring
"the dispute or any  matter appearing to be connected with, or  relevant  to
the dispute,.....to a Tribunal for adjudication" under s. 10(4)
"where in an order referring  an  industrial  dispute  to  a  Labour  Court,
Tribunal or National Tribunal under this section or in a  subsequent  order,
the  appropriate  Government  has  specified  the  points  of  dispute   for
adjudication, the Labour Court or the Tribunal or the National Tribunal,  as
the case may be, shall confine its adjudication to those points and  matters
incidental thereto."

(9) From the above it therefore  appears  that  while  it  is  open  to  the
appropriate Government to refer the dispute or any matter  appearing  to  be
connected  therewith  for  adjudication,  the  Tribunal  must  confine   its
adjudication to the  points  of  dispute  referred  and  matters  incidental
thereto. In other words, the Tribunal is not free to enlarge  the  scope  of
the dispute referred to it but must confine  its  attention  to  the  points
specifically mentioned and anything which is incidental  thereto.  The  word
'incidental' means according to Webster's New World Dictionary :
"happening or likely to  happen  as  a  result  of  or  in  connection  with
something more important; being an incident;  casual;  hence,  secondary  or
minor, but usually associated :"

"Something incidental to a dispute" must therefore mean something  happening
as a result of or in connection with the  dispute  or  associated  with  the
dispute. The dispute is the fundamental  thing  while  something  incidental
thereto is an adjunct to it. Something incidental, therefore, cannot cut  at
the root of the main thing to which it is an adjunct to it....."

23.   The same issue came up for consideration before three Judge  Bench  in
a case reported in Pottery Mazdoor Panchayat vs. Perfect  Pottery  Co.  Ltd.
and Another, (1979) 3 SCC 762.   Justice  Y.V.  Chandrachud  -  the  learned
Chief Justice speaking for the Court laid down the following proposition  of
law:

"10. Two questions were argued before the High Court: Firstly,  whether  the
tribunals had jurisdiction to question the  propriety  or  justification  of
the closure and secondly, whether they  had  jurisdiction  to  go  into  the
question of retrenchment compensation. The High Court has held on the  first
question that the jurisdiction of the Tribunal  in  industrial  disputes  is
limited to the points specifically referred  for  its  adjudication  and  to
matters incidental thereto and that the Tribunal cannot go beyond the  terms
of the reference made to it. On the  second  question  the  High  Court  has
accepted the respondent's  contention  that  the  question  of  retrenchment
compensation has to be decided under Section 33-C(2) of the Central Act.
11. Having heard a closely thought out argument made by Mr. Gupta on  behalf
of the appellant, we are of the opinion that the High Court is right in  its
view on the first question. The very terms of the references show  that  the
point of dispute between the parties was not the fact of the closure of  its
business by the respondent  but  the  propriety  and  justification  of  the
respondent's  decision  to  close  down  the  business.  That  is  why   the
references were expressed  to  say  whether  the  proposed  closure  of  the
business was proper and justified. In other words, by  the  references,  the
Tribunals were not called upon by the  Government  to  adjudicate  upon  the
question as to whether there was in fact a closure of  business  or  whether
under the pretence of closing the business the workers were  locked  out  by
the management. The references [pic]being limited to the narrow question  as
to whether the closure was proper and justified, the Tribunals by  the  very
terms of the references, had no  jurisdiction  to  go  behind  the  fact  of
closure and inquire into the question  whether  the  business  was  in  fact
closed down by the management."

24.   The abovesaid principle of law has  been  consistently  reiterated  in
M/s Firestone  Tyre  &  Rubber  Co.  of  India  (P)  Ltd.  vs.  The  Workmen
Empoloyed, represented by Firestone Tyre employees' Union AIR 1981 SC  1626,
National Engineering Industries Ltd. vs. State of Rajasthan &  Ors.,  (2000)
1 SCC 371,  Mukand Ltd. vs. Mukand Staff & Officers' Association, (2004)  10
SCC 460 and  State Bank of Bikaner & Jaipur vs. Om Prakash Sharma, (2006)  5
SCC 123.
25.   It is thus clear that the appropriate Government is empowered to  make
a reference under Section 10  of  the  Act  only  when  "Industrial  dispute
exists" or "is apprehended between  the  parties".  Similarly,  it  is  also
clear that the Tribunal while answering the reference  has  to  confine  its
inquiry to the question(s)  referred  and  has  no  jurisdiction  to  travel
beyond the question(s) or/and the terms of  the  reference  while  answering
the reference. A fortiori, no inquiry can be made on those questions,  which
are  not  specifically  referred  to  the  Tribunal  while   answering   the
reference.
26.   Coming now to the facts of this case, it is an admitted case that  the
services of the appellants and those at whose  instance  the  reference  was
made were terminated long back prior to  making  of  the  reference.   These
workers were, therefore, not in the services  of  either  Contractor  or/and
BCCL on the date of making the reference in question.  Therefore, there  was
no industrial  dispute  that  "existed"  or  "apprehended"  in  relation  to
appellants' absorption in the services of the BCCL on  the  date  of  making
the reference.
27.   Indeed a dispute regarding the appellants' absorption was  capable  of
being referred to in reference for adjudication, had the appellants been  in
the services of Contractor or/and  BCCL.   But  as  said  above,  since  the
appellants' services were discontinued or/and  retrenched  (whether  rightly
or wrongly) long back, the question of their  absorption  or  regularization
in the services of BCCL, as claimed by them, did  not  arise  and  nor  this
issue could have been gone into on its merits for the  reason  that  it  was
not  legally  possible  to  give  any  direction  to  absorb/regularize  the
appellants so long as they were not in the employment.
28.   It is a settled principle of law that  absorption  and  regularization
in the service can be claimed or/and  granted  only  when  the  contract  of
employment subsists and is in force inter se employee  and  employer.   Once
it comes to an end either by efflux of time or  as  per  the  terms  of  the
Contract of employment or by its termination by the employer, then  in  such
event, the relationship of employee and employer comes  to  an  end  and  no
longer subsists except for the limited purpose to examine the  legality  and
correctness of its termination.
29.   In  our  considered  opinion,   the  only  industrial  dispute,  which
existed for being referred to the Industrial Tribunal for  adjudication  was
in relation to termination of appellants' employment   and    -  whether  it
was legal or not? It is an admitted fact that it was  not  referred  to  the
Tribunal and, therefore, it attained finality against the appellants.
30.   In our considered opinion, therefore, the reference, even if  made  to
examine the issue of absorption of the appellants in the services  of  BCCL,
the same was misconceived.
31.   Apart from this infirmity noticed in this case, we have also not  been
able  to  find  any  parity  in  the  facts   of   the   earlier   reference
(R.C.No.58/81) and the case in hand. As noted above, the  earlier  reference
was made to decide the absorption of 39 workers in the BCCL. This  could  be
made because they were in the service.   So  far  as  the  present  case  is
concerned, the appellants  were  not in service.
32.   It can safely be noted that merely because the  workers  in  both  the
references were working in one project by itself  was  not  enough  to  give
them any right to claim parity with the claim of others.  So  long  as,  the
parity was not proved on all the relevant issues arising  in  the  case,  no
worker whether individual or collectively was entitled to claim  the  relief
only on the basis of similarity in the status qua employer.
33.   In the light  of  foregoing  discussion,  we  are  of  the  considered
opinion that  the  reference  made  to  examine  the  issue  of  appellants'
absorption qua the BCCL was incapable of  being  referred  to  on  the  said
question and in any event,  it was incapable of being answered in favour  of
the appellants.
34.   That apart, when three Courts, despite this infirmity, went  into  the
facts  and  held  that  the  appellants  were  not  entitled  to  claim  any
absorption in the services qua the BCCL, then  in  our  considered  opinion,
they were right in holding so and we do not find any good ground to go  into
the factual issues de  novo  in  our  appellate  jurisdiction.  The  factual
findings recorded by the three Courts are binding on this Court.
35.   We, therefore, find no ground to set  aside  the  impugned  order  and
accordingly uphold the same.
36.   This takes us to the next question as to whether  the  appellants  are
entitled to claim  the  relief  of  payment  of  retrenchment  compensation.
Having given our  anxious  consideration  to  this  issue,  we  are  of  the
considered view that having regard to the peculiar facts of  this  case  and
the reasons, which we have set out hereinbelow,  we  are  inclined  to  hold
that the appellants are entitled  to  claim  the  retrenchment  compensation
from the Contractor/BCCL.
37.   It is for the reason that firstly, the  respondent  in  their  written
statement filed before the Tribunal have offered  to  pay  the  retrenchment
compensation to all such  workers  in  accordance  with  the  provisions  of
Section 25F of the Act. Secondly, no documents were filed by the  respondent
to show that any such compensation was paid to  the  appellants  or  to  any
worker till date by the respondent and lastly, more than three decades  have
passed and yet the issues of absorption, and/or payment of compensation  has
not attained finality.
38.   Indeed, in similar circumstances, this Court in the  case  of  Pottery
Mazdoor Panchayat's  case  (supra)  had  directed  payment  of  retrenchment
compensation to the workers and made the  following  pertinent  observations
in the concluding paras:
"17. It is unnecessary to  consider  the  second  question  as  regards  the
payment of retrenchment compensation and  we  will,  therefore,  express  no
opinion as to whether  the  Tribunals  had  jurisdiction  to  go  into  that
question. Happily,  the  parties  have  arrived  at  a  settlement  on  that
question under which, the respondent agrees to fix within a  period  of  six
months from today the retrenchment compensation payable  to  the  retrenched
workers in accordance with the provisions of Section 25FFF  of  the  Central
Act, namely, the Industrial Disputes Act,  1947,  without  the  aid  of  the
proviso to that section. After the retrenchment compensation is so fixed,  a
copy of the decision fixing the compensation payable to each of  the  worker
will be sent by the respondent to the appellant Union. The workers or  their
legal representatives, as the case may be, will then be entitled to  receive
the retrenchment compensation from the respondent, which agrees to  pay  the
same to them. The respondent will be entitled to set off of the  amounts  of
retrenchment compensation already paid to the workers  against  the  amounts
found due to them under  this  settlement.  On  receiving  the  retrenchment
compensation the workers concerned shall withdraw the applications, if  any,
filed by them for relief in that behalf.

18. We would only like to add that the compensation which will  be  paid  to
the workers will be without  prejudice  to  their  right,  if  any,  to  get
employment from the respondent in the new  business  as  and  when  occasion
arises."

39.   Following  the  course  adopted  by  this  Court  in  Pottery  Mazdoor
Panchayat (supra), we direct the Industrial Tribunal to verify the  case  of
the appellants (150 or so) for deciding each worker's claim for  payment  of
retrenchment compensation to him/her as per the provisions  of  Section  25F
of the Act and accordingly he/she be  paid  retrenchment  compensation.   In
case any worker has expired then his/her  compensation  amount  be  paid  to
his/her legal representative after making proper verification of the case.
40.   We, however, make it clear that the respondent  would  not  raise  any
objection about the maintainability of workers' claim nor  would  raise  any
objection on merits before the Tribunal and the inquiry would  only  confine
to determine the  quantum  of  retrenchment  compensation  payable  to  each
worker.
41.   The appellants and respondents would appear  before  the  Tribunal  on
16.02.2015 and file necessary documents to enable  the  Tribunal  to  verify
the claim of each worker for determining the quantum of  compensation.   The
Tribunal would issue notice to the Contractor to enable them to  participate
in  the  proceedings  in  the  light  of  provisions  of   Contract   Labour
Prohibition and Regulation Act, 1970. The appellants and  all  such  workers
can be represented through recognized Union before the Tribunal.
42.   The entire exercise should be completed and payment  be  made  to  the
workers within six months.
43.   With these directions, the appeal stands disposed of.

.............................................................J.
                 [FAKKIR MOHAMED IBRAHIM KALIFULLA]



...............................................................J.
                       [ABHAY MANOHAR SAPRE]


      New Delhi;
      February 02, 2015.
-----------------------
26