advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws. This blog is only for information but not for legal opinions
Saturday, March 28, 2015
Friday, March 27, 2015
Accident Case - High court enhanced the compensation for Rs.5,35,000/- failed to consider the Medical Bills and other settled laws - Apex court enhanced the compensation to Rs.16,58,600/- under 7 heads with 9% interest and further said though all are equal share - the parents were alloted each one lakh and whereas the rest of their share amount was ordered to be distributed equally to the minor children taking into consideration of their education etc., - 2015 SC MSKLAWREPORTS
whether the appellants are entitled for
enhancement of compensation amount as prayed in these appeals?
On 27.11.2006, Jhabbu Verman, aged 35 years, was on his way back from
Tripuri to Garha (Jabalpur) on his motorcycle bearing registration No. MP-
20-Y-7669 and met with an accident when a truck bearing registration No. MP-
20-GA-2221 being driven by respondent No.1 rashly and negligently collided
with the back of his motorcycle. As a result of the same, Jhabbu Verman
fell towards his right and the wheel of the vehicle ran over his hands
which lead to severe damage to his left hand. Due to the grievous injuries
caused in the said accident, he was immediately taken to the Mahakaushal
College and Hospital and he remained under medical treatment from
28.11.2006, during which period he underwent an operation and plastic
surgery twice on his chest and was advised for amputation of his left hand.
However, due to the severity of injuries caused to him in the accident,
Jhambu Verman died on 08.12.2006.
The High Court after examining the facts, circumstances and
evidence on record enhanced the amount to a total compensation of
Rs.5,35,000/- under all heads with interest at the rate of 8% per annum.
The following is the breakup of compensation under various heads awarded by
the High Court:-
Loss of dependency - Rs. 4,50,000/-
Funeral Expenses - Rs. 5,000/-
Loss of estate - Rs. 5,000/-
Loss of consortium - Rs. 5,000/-
Loss of love - Rs. 20,000/-
and affection
Towards pecuniary - Rs. 50,000/-
Loss
------------------------------------
TOTAL - Rs. 5,35,000/-
In the result, the appellant shall be entitled to compensation under
the following heads:
|1. |Loss of dependency |Rs.9,93,600/- |
|2. |Loss of estate |Rs.1,00,000/- |
|3. |Loss of consortium |Rs.1,00,000/- |
|4. |Loss of love and affection |Rs.2,00,000/- |
| |to children | |
|5. |Funeral expenses |Rs.25,000/- |
|6. |Medical expenses |Rs.1,40,000/- |
|7. |Loss of love and affection |Rs.1,00,000/- |
| |to parents | |
| |TOTAL |Rs. 16,58,600/- |
Further, though all the appellants are legally entitled for equal share of
Rs.1,98,720/- (Rs.9,93,600/- divided by 5) each out of the compensation
awarded towards loss of dependency, however, by keeping in mind the age of
the parents of the deceased and also the future educational requirements of
the minor-children of the deceased, we are of the view that the parents of
the deceased shall be entitled to 1 lakh each out of the total compensation
amount awarded towards loss of dependency and the remaining part of their
share (i.e. Rs.98,720/- each) shall be equally divided and added to the
appellant-minors' share of compensation.
Therefore the following is the
apportionment of the amount awarded towards loss of dependency of the
appellants with proportionate interest:
Appellant No.1 - Rs. 1,98,720/-
Appellant No.2 - Rs. 2,97,440/-
Appellant No.3 - Rs. 2,97,440/-
Appellant No.4 - Rs. 1,00,000/-
Appellant No.5 - Rs. 1,00,000/-
Thus, the total compensation payable to the appellants by the respondent-
Insurance Company will be Rs. 16,58,600/- with interest at the rate of 9%
p.a. from the date of filing of the application till the date of payment.- 2015 SC.MSKLAWREPORTS
safai kamdars-unfair trade practices - The appellant-Gram Panchayat was duly established under the provisions of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of the Panchayat, some of whom are now deceased and are being represented by their legal heirs, were appointed to the post of safai kamdars of the appellant- Panchayat and have served for many years, varying from 18 years, 16 years, 8 years, 5 years etc. They were however, considered as daily wage workers and were therefore, not being paid benefits such as pay and allowances etc. as are being paid to the permanent safai kamdars of the appellant- Panchayat.= We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees...."" Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors.[3], does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them. The appellant is further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The same shall be implemented within six weeks from the date of receipt of copy of this judgment and compliance report of the same shall be submitted for the perusal of this Court. No Costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION
CIVIL APPEAL Nos.3209-3210 OF 2015
(Arising Out of SLP (C) Nos.7105-7106 of 2014)
UMRALA GRAM PANCHAYAT ......APPELLANT
Versus
THE SECRETARY, MUNICIPAL
EMPLOYEES UNION & ORS. ......RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J.
Delay condoned. Leave granted.
These appeals have been filed by the appellant against the final judgment
and order dated 23.07.2013 passed in Letters Patent Appeal No. 551 of 2013
in Misc. Civil Application No.3071 of 2012 in Special Civil Application No.
7082 of 1994, by the High Court of Judicature of Gujarat at Ahmedabad,
whereby the High Court has dismissed the same as being not maintainable and
has upheld the judgment and order of the learned single Judge of the High
Court dated 13.07.2010, passed in Special Civil Application No. 7082 of
1994, which is also impugned herein, wherein the application filed by the
appellant has been dismissed by the High Court by confirming the Award
dated 15.05.1991 passed by the Labour Court in Reference (LCD) No. 6 of
1988.
For the purpose of considering the rival legal contentions urged on behalf
of the parties in these appeals and with a view to find out whether this
Court is required to interfere with the impugned judgment and orders of the
High Court as well as the Award of the Labour Court, the necessary facts
are briefly stated hereunder:
The appellant-Gram Panchayat was duly established under the provisions
of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of the
Panchayat, some of whom are now deceased and are being represented by their
legal heirs, were appointed to the post of safai kamdars of the appellant-
Panchayat and have served for many years, varying from 18 years, 16 years,
8 years, 5 years etc. They were however, considered as daily wage workers
and were therefore, not being paid benefits such as pay and allowances etc.
as are being paid to the permanent safai kamdars of the appellant-
Panchayat.
On 23.07.1987, the workmen raised an industrial dispute before the
Conciliation Officer at Bhavnagar, through the respondent no.1, Municipal
Employees Union (for short "Union") stating therein that after rendering
services for a number of years, the workmen are entitled to the benefit of
permanency under the appellant-Panchayat. The settlement between the
workmen and the appellant-Panchayat failed to resolve amicably during the
conciliation proceedings and therefore, the failure report was sent to the
Dy. Commissioner of Labour, Ahmedabad, who referred the same to the Labour
Court vide Reference (LCD) No.6/88. The Labour Court by its Award held that
the workmen are to be made permanent employees as safai kamdars in the
appellant-Panchayat. The Labour Court has further directed the appellant-
Panchayat that the workmen should be paid wages, allowances and other
monetary benefits as well for which they are legally entitled to.
Aggrieved by the Award of the Labour Court, the appellant-Panchayat filed
an appeal before the single Judge of the High Court, whereby the same was
dismissed and it was held that the view taken by the Labour Court is just
and proper as it has assigned cogent and convincing reasons for arriving at
the conclusion that the services of the concerned workmen should be made
permanent as the other employees of the appellant. The appellant,
thereafter, filed an LPA before the Division Bench of the High Court, which
was also dismissed as not maintainable. Hence, these appeals have been
filed by the appellant seeking to set aside the judgments and orders of the
High Court as well as the Award passed by the Labour Court.
It has been contended by Mr. Mahendra Anand, the learned senior counsel on
behalf of the appellant that the workmen were not appointed on a permanent
basis as the rules and regulations as prescribed under the provisions of
the Act have not been followed. He has further contended that the High
Court has erred in upholding the Award passed by the Labour Court as the
same is illegal and there is non application of mind by the courts below.
The Labour Court has wrongly held that there are 13 permanent posts
available for the category in which the concerned employees are working as
the other three employees who are made permanent employees have been made
so only because there were clear vacant posts available in the approved
strength in the capacity in which these three employees were made permanent
and thus, there is no question of any discrimination or unfair labour
practice on the part of the appellant-Panchayat in not making the concerned
workmen as permanent employees of the appellant.
It has been further contended by the learned senior counsel that the
concerned workmen were engaged in the services, as and when required by the
appellant-Panchayat and it is not obligatory on the part of the appellant-
Panchayat to provide work to the workmen on a day-to-day basis and the
appellant-Panchayat has no control over them as there is no employer-
employee relationship between them. It has been further contended by him
that the appellant-Panchayat has no right to make them permanent employees.
For making their services permanent in the appellant-Panchayat, an
application has to be made before the District Panchayat, Bhavnagar and a
demand has to be raised before it and the recruitment of the employees of
the appellant-Panchayat is done by the Gujarat Panchayat Service Selection
Board and directions will be issued on its behalf. However, there are no
such directions issued in relation to the concerned workmen.
On the other hand, it has been contended by Mr. S.C. Patel, the learned
counsel appearing on behalf of the respondent-Union that the concerned
workmen have been working for many years, such as 18 years, 16 years, 8
years continuously and some of them have been working for more than 5 years
in the appellant-Panchayat. They are not paid the monetary benefits and
allowances etc. as are being paid to other permanent safai kamdars who are
working in the appellant-Panchayat. He has further contended that the
concerned workmen are doing the same work as is being done by the permanent
safai kamdars and they have been working for similar number of hours, i.e.
eight hours per day like the permanent employees of the appellant-
Panchayat. In spite of it, they are being monetarily exploited by the
appellant-Panchayat by not being paid regular salary and other monetary
benefits for which they are legally entitled to but are being paid much
lesser wage, i.e. Rs.390/- per month. Therefore, the learned counsel has
contended that the appellant is practicing unfair labour practice as
defined under Section 2(ra) of the Industrial Disputes Act, 1947 (in short
"the ID Act") as enumerated at Entry No.10 in the Fifth Schedule to the ID
Act. Therefore, the action of the appellant-Panchayat is illegal and the
workmen should be allowed to get permanency in the said posts.
With reference to the abovementioned rival legal contentions urged on
behalf of the parties, we have to examine the impugned judgements and
orders of the High Court as well as the Award passed by the Labour Court,
to find out whether any substantial question of law would arise in these
appeals to exercise the appellate jurisdiction of this Court?
On a perusal of the same, we have come to the conclusion that the High
Court has rightly dismissed the case of the appellant as the Labour Court
has dealt with the same in detail in its reasoning portion of the Award in
support of its findings of fact while answering the points of dispute and
the same cannot be said to be either erroneous or error in law. In support
of the above said conclusions arrived at by us, we record our reasons
hereunder:
It is an admitted fact that the work which was being done by the
concerned workmen was the same as that of the permanent workmen of the
appellant- Panchayat. They have also been working for similar number of
hours, however, the discrepancy in the payment of wages/salary between the
permanent and the non-permanent workmen is alarming and the same has to be
construed as being an unfair labour practice as defined under Section 2(ra)
of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is
prohibited under Section 25(T) of the ID Act. Further, there is no
documentary evidence produced on record before the Labour Court which shows
that the present workmen are working less or for lesser number of hours
than the permanent employees of the appellant-Panchayat. Thus, on the face
of it, the work being done by the concerned workmen has been permanent in
nature and the Labour Court as well as the High Court have come to the
right conclusion on the points of dispute and have rightly rejected the
contention of the appellant-Panchayat as the same amounts to unfair labour
practice by the appellant-Panchayat which is prohibited under Section 25(T)
of the ID Act and it also amounts to statutory offence on the part of the
appellant under Section 25(U) of the ID Act for which it is liable to be
prosecuted.
Further, the Labour Court has rightly held that there is no restriction
for the recruitment of the workmen in the Panchayat's set-up as there is
evidence to show that by making a proposal, the District Panchayat has
increased the work force in the establishment of the appellant-Panchayat
and therefore, the contention urged by the learned senior counsel appearing
for the appellant-Panchayat that there are only limited number of permanent
vacancies for the workmen in the Panchayat of the appellant is not tenable
in law.
Further, we have also taken note of the fact that the financial position
of the Panchayat is not so unsound as no activity of the Panchayat has been
discontinued, as all the other workers of the appellant-Panchayat are being
paid their wages regularly. Thus, there would be no difficulty for the
appellant-Panchayat to bear the extra cost for the payment of the
wages/salary and other monetary benefits to the concerned workmen if they
are made permanent.
Further, Section 25(T) of the ID Act clearly states that unfair labour
practice should not be encouraged and the same should be discontinued. In
the present case, the principle "equal work, equal pay" has been violated
by the appellant-Panchayat as they have been treating the concerned workmen
unfairly and therefore, the demand raised by the respondent-Union needs to
be accepted. The High Court has thus, rightly not interfered with the Award
of the Labour Court as the same is legal and supported with cogent and
valid reasons.
Therefore, the learned single Judge as well as the Division Bench of the
High Court have exercised the power under Articles 226 and 227 of the
Constitution of India and have rightly held that the Labour Court has
jurisdiction to decide the industrial dispute that has been referred to it
by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon
the decision of this Court in the case of Maharashtra State Road Transport
Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana[1], wherein
it has been held thus:
"32.The power given to the Industrial and Labour Courts under Section 30 is
very wide and the affirmative action mentioned therein is inclusive and not
exhaustive. Employing badlis, casuals or temporaries and to continue them
as such for years, with the object of depriving them of the status and
privileges of permanent employees is an unfair labour practice on the part
of the employer under item 6 of Schedule IV. Once such unfair labour
practice on the part of the employer is established in the complaint, the
Industrial and Labour Courts are empowered to issue preventive as well as
positive direction to an erring employer."
Further, reliance has been placed upon the decision of this Court in the
case of Durgapur Casual Workers Union v. Food Corporation of India,[2]
wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer and
the effect of decision of Umadevi (3) in the grant of relief was considered
by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil
Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this
Court observed and held as follows:
20. The provisions of Industrial Disputes Act and the powers of the
Industrial and Labour Courts provided therein were not at all under
consideration in Umadevi's case. The issue pertaining to unfair labour
practice was neither the subject matter for decision nor was it decided in
Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of
industrial disputes and for certain other purposes as mentioned therein. It
prohibits unfair labour practice on the part of the employer in engaging
employees as casual or temporary employees for a long period without giving
them the status and privileges of permanent employees....""
Thus, in the light of the above referred cases of this Court, it is amply
clear that the judgments and orders of the High Court and the Award passed
by the Labour Court are reasonable and the same have been arrived at in a
just and fair manner.
The reliance placed by the learned senior counsel for the appellant upon
the decision of this Court in Secretary, State of Karnataka & Ors. v.
Umadevi & Ors.[3], does not apply to the fact situation of the present case
and the same cannot be accepted by us in the light of the cogent reasons
arrived at by the courts below.
In view of the reasons stated supra and in the light of the facts and
circumstances of the present case, we hold that the services of the
concerned workmen are permanent in nature, since they have worked for more
than 240 days in a calendar year from the date of their initial
appointment, which is clear from the evidence on record. Therefore, not
making their services permanent by the appellant-Panchayat is erroneous and
also amounts to error in law. Hence, the same cannot be allowed to sustain
in law.
For the reasons stated supra, we dismiss the appeals and direct the
appellants to treat the services of the concerned workmen as permanent
employees, after five years of their initial appointment as daily wage
workmen till they attain the age of superannuation for the purpose of
granting terminal benefits to them.
The appellant is further directed to pay the regular pay-scale as per
the revised pay scale fixed to the post of permanent safai kamdars for a
total period of 15 years to the concerned workmen and the legal
representatives of the deceased workmen. The same shall be implemented
within six weeks from the date of receipt of copy of this judgment and
compliance report of the same shall be submitted for the perusal of this
Court. No Costs.
............................................................J.
[V. GOPALA GOWDA]
..........................................................J.
[C.NAGAPPAN]
New Delhi,
March 27, 2015
ITEM NO.1A-For Judgment COURT NO.10 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
C.A.No......./2015 @ SLP (C) No(s). 7105-7106/2014
(Arising out of impugned final judgment and order dated 23/07/2013 in LPA
No. 551/2013,23/07/2013 in SCA No. 7082/1994,23/07/2013 in MCA No.
3071/2012,13/07/2010 in SCA No. 7082/1994 passed by the High Court Of
Gujarat At Ahmedabad)
UMRALA GRAM PANCHAYAT Petitioner(s)
VERSUS
THE SEC.MUNICIPAL EMPLOYEE UNION & ORS Respondent(s)
Date : 27/03/2015 These petitions were called on for pronouncement of
JUDGMENT today.
For Petitioner(s)
Mr. Pukhrambam Ramesh Kumar,Adv.
For Respondent(s)
Mr. S. C. Patel,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
Leave granted.
The appeals are dismissed in terms of the signed
Reportable Judgment.
(VINOD KR. JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
-----------------------
[1]
[2] (2009) 8 SCC 556
[3]
[4] (2014) 13 SCALE 644
[5]
[6] (2006) 4 SCC 1
IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION
CIVIL APPEAL Nos.3209-3210 OF 2015
(Arising Out of SLP (C) Nos.7105-7106 of 2014)
UMRALA GRAM PANCHAYAT ......APPELLANT
Versus
THE SECRETARY, MUNICIPAL
EMPLOYEES UNION & ORS. ......RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J.
Delay condoned. Leave granted.
These appeals have been filed by the appellant against the final judgment
and order dated 23.07.2013 passed in Letters Patent Appeal No. 551 of 2013
in Misc. Civil Application No.3071 of 2012 in Special Civil Application No.
7082 of 1994, by the High Court of Judicature of Gujarat at Ahmedabad,
whereby the High Court has dismissed the same as being not maintainable and
has upheld the judgment and order of the learned single Judge of the High
Court dated 13.07.2010, passed in Special Civil Application No. 7082 of
1994, which is also impugned herein, wherein the application filed by the
appellant has been dismissed by the High Court by confirming the Award
dated 15.05.1991 passed by the Labour Court in Reference (LCD) No. 6 of
1988.
For the purpose of considering the rival legal contentions urged on behalf
of the parties in these appeals and with a view to find out whether this
Court is required to interfere with the impugned judgment and orders of the
High Court as well as the Award of the Labour Court, the necessary facts
are briefly stated hereunder:
The appellant-Gram Panchayat was duly established under the provisions
of the Gujarat Panchayat Act, 1993 (in short 'the Act'). The workmen of the
Panchayat, some of whom are now deceased and are being represented by their
legal heirs, were appointed to the post of safai kamdars of the appellant-
Panchayat and have served for many years, varying from 18 years, 16 years,
8 years, 5 years etc. They were however, considered as daily wage workers
and were therefore, not being paid benefits such as pay and allowances etc.
as are being paid to the permanent safai kamdars of the appellant-
Panchayat.
On 23.07.1987, the workmen raised an industrial dispute before the
Conciliation Officer at Bhavnagar, through the respondent no.1, Municipal
Employees Union (for short "Union") stating therein that after rendering
services for a number of years, the workmen are entitled to the benefit of
permanency under the appellant-Panchayat. The settlement between the
workmen and the appellant-Panchayat failed to resolve amicably during the
conciliation proceedings and therefore, the failure report was sent to the
Dy. Commissioner of Labour, Ahmedabad, who referred the same to the Labour
Court vide Reference (LCD) No.6/88. The Labour Court by its Award held that
the workmen are to be made permanent employees as safai kamdars in the
appellant-Panchayat. The Labour Court has further directed the appellant-
Panchayat that the workmen should be paid wages, allowances and other
monetary benefits as well for which they are legally entitled to.
Aggrieved by the Award of the Labour Court, the appellant-Panchayat filed
an appeal before the single Judge of the High Court, whereby the same was
dismissed and it was held that the view taken by the Labour Court is just
and proper as it has assigned cogent and convincing reasons for arriving at
the conclusion that the services of the concerned workmen should be made
permanent as the other employees of the appellant. The appellant,
thereafter, filed an LPA before the Division Bench of the High Court, which
was also dismissed as not maintainable. Hence, these appeals have been
filed by the appellant seeking to set aside the judgments and orders of the
High Court as well as the Award passed by the Labour Court.
It has been contended by Mr. Mahendra Anand, the learned senior counsel on
behalf of the appellant that the workmen were not appointed on a permanent
basis as the rules and regulations as prescribed under the provisions of
the Act have not been followed. He has further contended that the High
Court has erred in upholding the Award passed by the Labour Court as the
same is illegal and there is non application of mind by the courts below.
The Labour Court has wrongly held that there are 13 permanent posts
available for the category in which the concerned employees are working as
the other three employees who are made permanent employees have been made
so only because there were clear vacant posts available in the approved
strength in the capacity in which these three employees were made permanent
and thus, there is no question of any discrimination or unfair labour
practice on the part of the appellant-Panchayat in not making the concerned
workmen as permanent employees of the appellant.
It has been further contended by the learned senior counsel that the
concerned workmen were engaged in the services, as and when required by the
appellant-Panchayat and it is not obligatory on the part of the appellant-
Panchayat to provide work to the workmen on a day-to-day basis and the
appellant-Panchayat has no control over them as there is no employer-
employee relationship between them. It has been further contended by him
that the appellant-Panchayat has no right to make them permanent employees.
For making their services permanent in the appellant-Panchayat, an
application has to be made before the District Panchayat, Bhavnagar and a
demand has to be raised before it and the recruitment of the employees of
the appellant-Panchayat is done by the Gujarat Panchayat Service Selection
Board and directions will be issued on its behalf. However, there are no
such directions issued in relation to the concerned workmen.
On the other hand, it has been contended by Mr. S.C. Patel, the learned
counsel appearing on behalf of the respondent-Union that the concerned
workmen have been working for many years, such as 18 years, 16 years, 8
years continuously and some of them have been working for more than 5 years
in the appellant-Panchayat. They are not paid the monetary benefits and
allowances etc. as are being paid to other permanent safai kamdars who are
working in the appellant-Panchayat. He has further contended that the
concerned workmen are doing the same work as is being done by the permanent
safai kamdars and they have been working for similar number of hours, i.e.
eight hours per day like the permanent employees of the appellant-
Panchayat. In spite of it, they are being monetarily exploited by the
appellant-Panchayat by not being paid regular salary and other monetary
benefits for which they are legally entitled to but are being paid much
lesser wage, i.e. Rs.390/- per month. Therefore, the learned counsel has
contended that the appellant is practicing unfair labour practice as
defined under Section 2(ra) of the Industrial Disputes Act, 1947 (in short
"the ID Act") as enumerated at Entry No.10 in the Fifth Schedule to the ID
Act. Therefore, the action of the appellant-Panchayat is illegal and the
workmen should be allowed to get permanency in the said posts.
With reference to the abovementioned rival legal contentions urged on
behalf of the parties, we have to examine the impugned judgements and
orders of the High Court as well as the Award passed by the Labour Court,
to find out whether any substantial question of law would arise in these
appeals to exercise the appellate jurisdiction of this Court?
On a perusal of the same, we have come to the conclusion that the High
Court has rightly dismissed the case of the appellant as the Labour Court
has dealt with the same in detail in its reasoning portion of the Award in
support of its findings of fact while answering the points of dispute and
the same cannot be said to be either erroneous or error in law. In support
of the above said conclusions arrived at by us, we record our reasons
hereunder:
It is an admitted fact that the work which was being done by the
concerned workmen was the same as that of the permanent workmen of the
appellant- Panchayat. They have also been working for similar number of
hours, however, the discrepancy in the payment of wages/salary between the
permanent and the non-permanent workmen is alarming and the same has to be
construed as being an unfair labour practice as defined under Section 2(ra)
of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is
prohibited under Section 25(T) of the ID Act. Further, there is no
documentary evidence produced on record before the Labour Court which shows
that the present workmen are working less or for lesser number of hours
than the permanent employees of the appellant-Panchayat. Thus, on the face
of it, the work being done by the concerned workmen has been permanent in
nature and the Labour Court as well as the High Court have come to the
right conclusion on the points of dispute and have rightly rejected the
contention of the appellant-Panchayat as the same amounts to unfair labour
practice by the appellant-Panchayat which is prohibited under Section 25(T)
of the ID Act and it also amounts to statutory offence on the part of the
appellant under Section 25(U) of the ID Act for which it is liable to be
prosecuted.
Further, the Labour Court has rightly held that there is no restriction
for the recruitment of the workmen in the Panchayat's set-up as there is
evidence to show that by making a proposal, the District Panchayat has
increased the work force in the establishment of the appellant-Panchayat
and therefore, the contention urged by the learned senior counsel appearing
for the appellant-Panchayat that there are only limited number of permanent
vacancies for the workmen in the Panchayat of the appellant is not tenable
in law.
Further, we have also taken note of the fact that the financial position
of the Panchayat is not so unsound as no activity of the Panchayat has been
discontinued, as all the other workers of the appellant-Panchayat are being
paid their wages regularly. Thus, there would be no difficulty for the
appellant-Panchayat to bear the extra cost for the payment of the
wages/salary and other monetary benefits to the concerned workmen if they
are made permanent.
Further, Section 25(T) of the ID Act clearly states that unfair labour
practice should not be encouraged and the same should be discontinued. In
the present case, the principle "equal work, equal pay" has been violated
by the appellant-Panchayat as they have been treating the concerned workmen
unfairly and therefore, the demand raised by the respondent-Union needs to
be accepted. The High Court has thus, rightly not interfered with the Award
of the Labour Court as the same is legal and supported with cogent and
valid reasons.
Therefore, the learned single Judge as well as the Division Bench of the
High Court have exercised the power under Articles 226 and 227 of the
Constitution of India and have rightly held that the Labour Court has
jurisdiction to decide the industrial dispute that has been referred to it
by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon
the decision of this Court in the case of Maharashtra State Road Transport
Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana[1], wherein
it has been held thus:
"32.The power given to the Industrial and Labour Courts under Section 30 is
very wide and the affirmative action mentioned therein is inclusive and not
exhaustive. Employing badlis, casuals or temporaries and to continue them
as such for years, with the object of depriving them of the status and
privileges of permanent employees is an unfair labour practice on the part
of the employer under item 6 of Schedule IV. Once such unfair labour
practice on the part of the employer is established in the complaint, the
Industrial and Labour Courts are empowered to issue preventive as well as
positive direction to an erring employer."
Further, reliance has been placed upon the decision of this Court in the
case of Durgapur Casual Workers Union v. Food Corporation of India,[2]
wherein it has been held thus:
"19. Almost similar issue relating to unfair trade practice by employer and
the effect of decision of Umadevi (3) in the grant of relief was considered
by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil
Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this
Court observed and held as follows:
20. The provisions of Industrial Disputes Act and the powers of the
Industrial and Labour Courts provided therein were not at all under
consideration in Umadevi's case. The issue pertaining to unfair labour
practice was neither the subject matter for decision nor was it decided in
Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of
industrial disputes and for certain other purposes as mentioned therein. It
prohibits unfair labour practice on the part of the employer in engaging
employees as casual or temporary employees for a long period without giving
them the status and privileges of permanent employees....""
Thus, in the light of the above referred cases of this Court, it is amply
clear that the judgments and orders of the High Court and the Award passed
by the Labour Court are reasonable and the same have been arrived at in a
just and fair manner.
The reliance placed by the learned senior counsel for the appellant upon
the decision of this Court in Secretary, State of Karnataka & Ors. v.
Umadevi & Ors.[3], does not apply to the fact situation of the present case
and the same cannot be accepted by us in the light of the cogent reasons
arrived at by the courts below.
In view of the reasons stated supra and in the light of the facts and
circumstances of the present case, we hold that the services of the
concerned workmen are permanent in nature, since they have worked for more
than 240 days in a calendar year from the date of their initial
appointment, which is clear from the evidence on record. Therefore, not
making their services permanent by the appellant-Panchayat is erroneous and
also amounts to error in law. Hence, the same cannot be allowed to sustain
in law.
For the reasons stated supra, we dismiss the appeals and direct the
appellants to treat the services of the concerned workmen as permanent
employees, after five years of their initial appointment as daily wage
workmen till they attain the age of superannuation for the purpose of
granting terminal benefits to them.
The appellant is further directed to pay the regular pay-scale as per
the revised pay scale fixed to the post of permanent safai kamdars for a
total period of 15 years to the concerned workmen and the legal
representatives of the deceased workmen. The same shall be implemented
within six weeks from the date of receipt of copy of this judgment and
compliance report of the same shall be submitted for the perusal of this
Court. No Costs.
............................................................J.
[V. GOPALA GOWDA]
..........................................................J.
[C.NAGAPPAN]
New Delhi,
March 27, 2015
ITEM NO.1A-For Judgment COURT NO.10 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
C.A.No......./2015 @ SLP (C) No(s). 7105-7106/2014
(Arising out of impugned final judgment and order dated 23/07/2013 in LPA
No. 551/2013,23/07/2013 in SCA No. 7082/1994,23/07/2013 in MCA No.
3071/2012,13/07/2010 in SCA No. 7082/1994 passed by the High Court Of
Gujarat At Ahmedabad)
UMRALA GRAM PANCHAYAT Petitioner(s)
VERSUS
THE SEC.MUNICIPAL EMPLOYEE UNION & ORS Respondent(s)
Date : 27/03/2015 These petitions were called on for pronouncement of
JUDGMENT today.
For Petitioner(s)
Mr. Pukhrambam Ramesh Kumar,Adv.
For Respondent(s)
Mr. S. C. Patel,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
Leave granted.
The appeals are dismissed in terms of the signed
Reportable Judgment.
(VINOD KR. JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
-----------------------
[1]
[2] (2009) 8 SCC 556
[3]
[4] (2014) 13 SCALE 644
[5]
[6] (2006) 4 SCC 1
whether, in the given facts and circumstances the case, the role attributed to the present three Accused-respondents lead to their implication under Section 34 of IPC. 11. Limiting ourselves to the above question, we find that there is indeed enough material to infer the common and shared intention of the present accused-respondents with that of Shyamu. Although, the learned counsel for the respondents has argued that they had not thrown the deceased down to the drain with intention of killing him but merely assaulting him. According to him, the shooting by Shyamu was an independent act. However, we find that firstly, there was no justifiable reason for the 4 accused persons to go 100-150 yards inside the field of the complainant. Second, the fact that they carried a weapon being 315 bore country-made pistol with them clearly shows that they had all the wrong intentions. Nowhere in the case of defence has this come out that the present three accused-respondents were not aware of the fact that Shyamu carried the weapon. Also, the exhortation made by the accused persons against the complainant and the deceased mentioned about killing them. Having made such an exhortation, they threw the deceased on the ground. It goes on to show that they all shared a common intention and worked in tandem. Balbir Singh is the father of other three accused persons; he could have asked Shyamu to stop short of shooting, but he did not do so. We find, in the light of these circumstances, that the High Court erred in acquitting the present accused-respondents. We are satisfied that the view taken by the High Court is not even a possible view and therefore calls for interference in this appeal. 12. On the basis of above discussion, we allow the present appeal. The impugned judgment of the High Court is set aside and the judgment and order passed by the Sessions Court is restored. 13. Learned counsel for the accused persons - respondents herein has submitted that there is a marriage in the house of the accused persons on 22nd April, 2015 and prayed that the accused may not be arrested till the marriage is solemnized. In view of this submission, we grant six weeks' time to the three accused-respondents to surrender, failing which the Court concerned shall take appropriate steps to take them into custody.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 205 OF 2009
Ranbeer Singh (dead) by L.R. ...Appellant
:Versus:
State of U.P. and Ors. ...Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This is an appeal by the Complainant against the impugned judgment
and order dated 30-04-2008 passed by the High Court of Judicature at
Allahabad in Criminal Appeal No.1674 of 2006. In the impugned judgment the
High Court had allowed the appeal of three accused persons and acquitted
them while maintaining the conviction of the main accused. The present
appeal before us has been filed by the complainant against the acquittal of
the three accused by the High Court. The Sessions Court after trial had
convicted the main accused Shyamu under S. 302, IPC along with Section 25
of the Arms Act while it convicted the other three accused persons, Balbir
Singh, Vinod and Karua (respondents herein) under S. 302, IPC read with S.
34 IPC. The appeal of Shyamu against his conviction by the High Court was
filed in this Court but was dismissed, thus, his conviction has attained
finality.
2. The facts of the present case are that Shyamu, Karua and Vinod are
sons of Balbir Singh and Balbir Singh is the elder brother of the
complainant Ranbeer Singh. The deceased Pooran Singh was the son of the
complainant Ranbeer Singh. Admittedly, there is pending criminal litigation
between Ranbeer Singh and Balbir Singh, the two brothers. The pending
criminal litigation relates to an incident 13 to 14 months prior to the
incident in question in present case wherein Balbir Singh had fired at
Ranbeer Singh with intention of killing him. The pending civil litigation
related to some property between the two brothers. As per the case of the
prosecution, on the date of the incident in the instant case i.e. 07-02-
2002, the complainant was irrigating his field along with his son Pooran
Singh (the deceased) while the 7 year old son of Pooran Singh was sitting
on the Mendh nearby. The four accused persons were irrigating their field,
which was adjoining the field of the complainant, and while they were at
the tubewell of their field, which is 100-150 yards away from the tubewell
of the complainant's field, at around 4:45 pm, four accused persons came to
the complainant making an exhortation "Aaj mauke par mil gaye hain. Inhe
jaan se maar do aur maan lo ki mukdmein ka faisla ho gaya aur zameen humain
mil gayi." (Today, they have met at an opportune time. Kill them and treat
the litigation as decided and we got the land). Thereafter, the present
three respondents Balbir Singh, Karua and Vinod held Pooran Singh and threw
him on the ground and Shyamu made a shot with his gun from behind at the
Pooran Singh. As this happened, the Complainant along with 7 year old
grandson Ankit, ran away to save their life. On hearing the shouts of the
complainant, the persons working in the nearby field saw the accused
persons fleeing from the place of occurrence. The FIR was registered on the
same day at 6:05 pm by the Complainant. During investigation the weapon
being country made pistol of 315 bore was recovered from the field of the
accused on the disclosure statement made by Shyamu.
3. The prosecution evidence consisted of PW1 Ranbeer Singh (eye
witness), PW2 Ankit (eye witness and child witness), PW3 Dr. S.K. Seth
(proved post mortem report), PW4 Constable Saiyed Mohd. Kasim, PW5 S.I.
Roop Chandra Verma, PW6 Inspector Incharge Narendra Kumar Singh and PW7
Constable Pradeep Kumar.
4. The PW1 Ranbeer Singh stated that the accused persons out of enmity
in light of pending civil and criminal litigation and with motive to take
revenge, killed his son on the fateful day. He testified that on 07.02.2002
he was irrigating his field with tubewell along with his son and grandson
Ankit was sitting nearby. At the same time, the four accused were
irrigating their field from a tubewell which was about 100-150 yards away
from the tubewell of complainant. At around 4:45 pm, they came and exhorted
that "today they are alone, hold them and kill them and so we would get our
farmland also". Then Balbir, Karua and Vinod held Pooran Singh and pushed
him on the ground in/near the drain and Shyamu shot at him from behind.
5. The PW2 Ankit was 7 years old when the incident happened and 9 years
old when his statement was recorded. He testified that he was sitting 11-12
feet away from where his grandfather and father were irrigating the field.
He saw that Shyamu shot his father at the back of his head and before
Shyamu shot, Balbir, Karua and Vinod pushed his father in the drain.
Thereafter his grandfather carrying him in his lap, ran away from there.
6. PW-3 Dr. S.K. Seth had conducted the autopsy of the deceased and
found two wounds on head. The bullet entry wound on the front head near the
nose while exit wound on the back side of the head. The parietal and
occipital bone of both sides of the head were fractured. He told the cause
of death was coma resulting from ante mortem injuries.
7. The Session Court after going through the evidence concluded the
guilt of all the accused and convicted Balbir, Karua and Vinod under
Section 302/34 of IPC and Shyamu under Section 302 of IPC, and sentenced
all of them to imprisonment for life, along with a fine of Rs.3000/- and in
default of payment of fine, they shall have to undergo simple imprisonment
for a period of seven months. Shyamu was further sentenced to rigorous
imprisonment for three years under Section 25 of Arms Act.
8. The High Court in appeal dealt extensively with the question of
interested witness and child witness. After a long discussion on both the
points, the High Court found that the testimony of the PW1 Complainant as
well as PW 2 Ankit is reliable. The High court found that there were
questions asked to PW2 to test his understanding and only thereafter
examination pertaining to the case were asked. The statement of PW2
completely corroborated the case of the prosecution. However, after
accepting the evidence of the prosecution, the High Court found that there
was no case made out as against the present three respondent accused
persons under S. 34 as there was no common intention. The High Court found
that there was no prior meeting of minds or premeditation to commit the
offence and that the incident was a sudden scuffle. These three accused
persons did not share the intention to kill the deceased. Therefore, the
High Court acquitted the three accused-respondents.
9. The learned counsel for the complainant-Appellant has sought
conviction of the present respondents. The main contention is that when the
case of prosecution has been believed and relied upon by the High Court and
on that basis the main accused Shyamu is convicted, the present three
respondents cannot be acquitted.
10. The learned counsel for the Respondents has tried to point out
certain contradictions in the facts of the prosecution. However, in view of
the dismissal of appeal of Shyamu by this Court, the facts in this case
have become final and cannot be challenged anymore. If we accept any
contention with respect to those facts, it would upset the finding of
conviction in Shyamu's appeal to this Court. Therefore, the only question
before us is whether, in the given facts and circumstances the case, the
role attributed to the present three Accused-respondents lead to their
implication under Section 34 of IPC.
11. Limiting ourselves to the above question, we find that there is
indeed enough material to infer the common and shared intention of the
present accused-respondents with that of Shyamu. Although, the learned
counsel for the respondents has argued that they had not thrown the
deceased down to the drain with intention of killing him but merely
assaulting him. According to him, the shooting by Shyamu was an independent
act. However, we find that firstly, there was no justifiable reason for the
4 accused persons to go 100-150 yards inside the field of the complainant.
Second, the fact that they carried a weapon being 315 bore country-made
pistol with them clearly shows that they had all the wrong intentions.
Nowhere in the case of defence has this come out that the present three
accused-respondents were not aware of the fact that Shyamu carried the
weapon. Also, the exhortation made by the accused persons against the
complainant and the deceased mentioned about killing them. Having made such
an exhortation, they threw the deceased on the ground. It goes on to show
that they all shared a common intention and worked in tandem. Balbir Singh
is the father of other three accused persons; he could have asked Shyamu to
stop short of shooting, but he did not do so. We find, in the light of
these circumstances, that the High Court erred in acquitting the present
accused-respondents. We are satisfied that the view taken by the High Court
is not even a possible view and therefore calls for interference in this
appeal.
12. On the basis of above discussion, we allow the present appeal. The
impugned judgment of the High Court is set aside and the judgment and order
passed by the Sessions Court is restored.
13. Learned counsel for the accused persons - respondents herein has
submitted that there is a marriage in the house of the accused persons on
22nd April, 2015 and prayed that the accused may not be arrested till the
marriage is solemnized. In view of this submission, we grant six weeks'
time to the three accused-respondents to surrender, failing which the Court
concerned shall take appropriate steps to take them into custody.
........................................J
(Pinaki Chandra Ghose)
........................................J
(Uday Umesh Lalit)
New Delhi;
March 27, 2015.
ITEM NO.1B COURT NO.12 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 205/2009
RANBEER SINGH (DEAD) BY LRS. Appellant(s)
VERSUS
STATE OF U.P.& ORS. Respondent(s)
Date : 27/03/2015 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Manoj Swarup, Adv.
Ms. Lalita Kohli, Adv.
Mr. Abhishek Swarup, Adv.
For M/s Manoj Swarup & Co., Advs.
For Respondent(s) Mr. Ajay Veer Singh Jain, Adv.
Mr. U.R. Bokadia, Adv.
Ms. Divya Garg, Adv.
For Mr. Mohd. Irshad Hanif, AOR
Mr. Ashutosh Sharma, Adv.
Mr. Rajeev Dubey, Adv.
For Mr. Ravi Prakash Mehrotra, Adv.
Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is allowed. The impugned judgment of the High Court is
set aside and the judgment and order passed by the Sessions Court is
restored.
Learned counsel for the accused persons - respondents herein has
submitted that there is a marriage in the house of the accused persons on
22nd April, 2015 and prayed that the accused may not be arrested till the
marriage is solemnized. In view of this submission, we grant six weeks'
time to the three accused-respondents to surrender, failing which the Court
concerned shall take appropriate steps to take them into custody in terms
of the signed reportable judgment.
(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 205 OF 2009
Ranbeer Singh (dead) by L.R. ...Appellant
:Versus:
State of U.P. and Ors. ...Respondents
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This is an appeal by the Complainant against the impugned judgment
and order dated 30-04-2008 passed by the High Court of Judicature at
Allahabad in Criminal Appeal No.1674 of 2006. In the impugned judgment the
High Court had allowed the appeal of three accused persons and acquitted
them while maintaining the conviction of the main accused. The present
appeal before us has been filed by the complainant against the acquittal of
the three accused by the High Court. The Sessions Court after trial had
convicted the main accused Shyamu under S. 302, IPC along with Section 25
of the Arms Act while it convicted the other three accused persons, Balbir
Singh, Vinod and Karua (respondents herein) under S. 302, IPC read with S.
34 IPC. The appeal of Shyamu against his conviction by the High Court was
filed in this Court but was dismissed, thus, his conviction has attained
finality.
2. The facts of the present case are that Shyamu, Karua and Vinod are
sons of Balbir Singh and Balbir Singh is the elder brother of the
complainant Ranbeer Singh. The deceased Pooran Singh was the son of the
complainant Ranbeer Singh. Admittedly, there is pending criminal litigation
between Ranbeer Singh and Balbir Singh, the two brothers. The pending
criminal litigation relates to an incident 13 to 14 months prior to the
incident in question in present case wherein Balbir Singh had fired at
Ranbeer Singh with intention of killing him. The pending civil litigation
related to some property between the two brothers. As per the case of the
prosecution, on the date of the incident in the instant case i.e. 07-02-
2002, the complainant was irrigating his field along with his son Pooran
Singh (the deceased) while the 7 year old son of Pooran Singh was sitting
on the Mendh nearby. The four accused persons were irrigating their field,
which was adjoining the field of the complainant, and while they were at
the tubewell of their field, which is 100-150 yards away from the tubewell
of the complainant's field, at around 4:45 pm, four accused persons came to
the complainant making an exhortation "Aaj mauke par mil gaye hain. Inhe
jaan se maar do aur maan lo ki mukdmein ka faisla ho gaya aur zameen humain
mil gayi." (Today, they have met at an opportune time. Kill them and treat
the litigation as decided and we got the land). Thereafter, the present
three respondents Balbir Singh, Karua and Vinod held Pooran Singh and threw
him on the ground and Shyamu made a shot with his gun from behind at the
Pooran Singh. As this happened, the Complainant along with 7 year old
grandson Ankit, ran away to save their life. On hearing the shouts of the
complainant, the persons working in the nearby field saw the accused
persons fleeing from the place of occurrence. The FIR was registered on the
same day at 6:05 pm by the Complainant. During investigation the weapon
being country made pistol of 315 bore was recovered from the field of the
accused on the disclosure statement made by Shyamu.
3. The prosecution evidence consisted of PW1 Ranbeer Singh (eye
witness), PW2 Ankit (eye witness and child witness), PW3 Dr. S.K. Seth
(proved post mortem report), PW4 Constable Saiyed Mohd. Kasim, PW5 S.I.
Roop Chandra Verma, PW6 Inspector Incharge Narendra Kumar Singh and PW7
Constable Pradeep Kumar.
4. The PW1 Ranbeer Singh stated that the accused persons out of enmity
in light of pending civil and criminal litigation and with motive to take
revenge, killed his son on the fateful day. He testified that on 07.02.2002
he was irrigating his field with tubewell along with his son and grandson
Ankit was sitting nearby. At the same time, the four accused were
irrigating their field from a tubewell which was about 100-150 yards away
from the tubewell of complainant. At around 4:45 pm, they came and exhorted
that "today they are alone, hold them and kill them and so we would get our
farmland also". Then Balbir, Karua and Vinod held Pooran Singh and pushed
him on the ground in/near the drain and Shyamu shot at him from behind.
5. The PW2 Ankit was 7 years old when the incident happened and 9 years
old when his statement was recorded. He testified that he was sitting 11-12
feet away from where his grandfather and father were irrigating the field.
He saw that Shyamu shot his father at the back of his head and before
Shyamu shot, Balbir, Karua and Vinod pushed his father in the drain.
Thereafter his grandfather carrying him in his lap, ran away from there.
6. PW-3 Dr. S.K. Seth had conducted the autopsy of the deceased and
found two wounds on head. The bullet entry wound on the front head near the
nose while exit wound on the back side of the head. The parietal and
occipital bone of both sides of the head were fractured. He told the cause
of death was coma resulting from ante mortem injuries.
7. The Session Court after going through the evidence concluded the
guilt of all the accused and convicted Balbir, Karua and Vinod under
Section 302/34 of IPC and Shyamu under Section 302 of IPC, and sentenced
all of them to imprisonment for life, along with a fine of Rs.3000/- and in
default of payment of fine, they shall have to undergo simple imprisonment
for a period of seven months. Shyamu was further sentenced to rigorous
imprisonment for three years under Section 25 of Arms Act.
8. The High Court in appeal dealt extensively with the question of
interested witness and child witness. After a long discussion on both the
points, the High Court found that the testimony of the PW1 Complainant as
well as PW 2 Ankit is reliable. The High court found that there were
questions asked to PW2 to test his understanding and only thereafter
examination pertaining to the case were asked. The statement of PW2
completely corroborated the case of the prosecution. However, after
accepting the evidence of the prosecution, the High Court found that there
was no case made out as against the present three respondent accused
persons under S. 34 as there was no common intention. The High Court found
that there was no prior meeting of minds or premeditation to commit the
offence and that the incident was a sudden scuffle. These three accused
persons did not share the intention to kill the deceased. Therefore, the
High Court acquitted the three accused-respondents.
9. The learned counsel for the complainant-Appellant has sought
conviction of the present respondents. The main contention is that when the
case of prosecution has been believed and relied upon by the High Court and
on that basis the main accused Shyamu is convicted, the present three
respondents cannot be acquitted.
10. The learned counsel for the Respondents has tried to point out
certain contradictions in the facts of the prosecution. However, in view of
the dismissal of appeal of Shyamu by this Court, the facts in this case
have become final and cannot be challenged anymore. If we accept any
contention with respect to those facts, it would upset the finding of
conviction in Shyamu's appeal to this Court. Therefore, the only question
before us is whether, in the given facts and circumstances the case, the
role attributed to the present three Accused-respondents lead to their
implication under Section 34 of IPC.
11. Limiting ourselves to the above question, we find that there is
indeed enough material to infer the common and shared intention of the
present accused-respondents with that of Shyamu. Although, the learned
counsel for the respondents has argued that they had not thrown the
deceased down to the drain with intention of killing him but merely
assaulting him. According to him, the shooting by Shyamu was an independent
act. However, we find that firstly, there was no justifiable reason for the
4 accused persons to go 100-150 yards inside the field of the complainant.
Second, the fact that they carried a weapon being 315 bore country-made
pistol with them clearly shows that they had all the wrong intentions.
Nowhere in the case of defence has this come out that the present three
accused-respondents were not aware of the fact that Shyamu carried the
weapon. Also, the exhortation made by the accused persons against the
complainant and the deceased mentioned about killing them. Having made such
an exhortation, they threw the deceased on the ground. It goes on to show
that they all shared a common intention and worked in tandem. Balbir Singh
is the father of other three accused persons; he could have asked Shyamu to
stop short of shooting, but he did not do so. We find, in the light of
these circumstances, that the High Court erred in acquitting the present
accused-respondents. We are satisfied that the view taken by the High Court
is not even a possible view and therefore calls for interference in this
appeal.
12. On the basis of above discussion, we allow the present appeal. The
impugned judgment of the High Court is set aside and the judgment and order
passed by the Sessions Court is restored.
13. Learned counsel for the accused persons - respondents herein has
submitted that there is a marriage in the house of the accused persons on
22nd April, 2015 and prayed that the accused may not be arrested till the
marriage is solemnized. In view of this submission, we grant six weeks'
time to the three accused-respondents to surrender, failing which the Court
concerned shall take appropriate steps to take them into custody.
........................................J
(Pinaki Chandra Ghose)
........................................J
(Uday Umesh Lalit)
New Delhi;
March 27, 2015.
ITEM NO.1B COURT NO.12 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 205/2009
RANBEER SINGH (DEAD) BY LRS. Appellant(s)
VERSUS
STATE OF U.P.& ORS. Respondent(s)
Date : 27/03/2015 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Manoj Swarup, Adv.
Ms. Lalita Kohli, Adv.
Mr. Abhishek Swarup, Adv.
For M/s Manoj Swarup & Co., Advs.
For Respondent(s) Mr. Ajay Veer Singh Jain, Adv.
Mr. U.R. Bokadia, Adv.
Ms. Divya Garg, Adv.
For Mr. Mohd. Irshad Hanif, AOR
Mr. Ashutosh Sharma, Adv.
Mr. Rajeev Dubey, Adv.
For Mr. Ravi Prakash Mehrotra, Adv.
Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is allowed. The impugned judgment of the High Court is
set aside and the judgment and order passed by the Sessions Court is
restored.
Learned counsel for the accused persons - respondents herein has
submitted that there is a marriage in the house of the accused persons on
22nd April, 2015 and prayed that the accused may not be arrested till the
marriage is solemnized. In view of this submission, we grant six weeks'
time to the three accused-respondents to surrender, failing which the Court
concerned shall take appropriate steps to take them into custody in terms
of the signed reportable judgment.
(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)
Specific Performance suit Decreed - time granted to deposit balance of sale consideration with in one month from the date of decree failing which the suit shall be deemed to have been dismissed - amount not deposited - time extended - Civil vacation - no deposit on the reopening day - deposit on the next day of re-opening with out obtaining permission for extention of time - without giving notice to the Jdr about the deposit of balance sale consideration - extention petition filed later - Trial court dismissed the E.P. as well as extention petition as the suit was dismissed automatically by efflux of time - High court remanded the case for fresh consideration - Apex court held that the trial rightly dismissed the petition and Execution petition and as such the question of remanding a case for fresh consideration does not arise due efflux of time , the suit was dismissed automatically as there was no any fresh order of extention on a petition filed with in time -2015 S.C. msklawreports
the suit was decreed on 15.02.2007 and the
Plaintiff-Buyer was directed to deposit the balance sale consideration of
Rs.33,60,000/- by way of demand draft, in Court within one month from the
date of decree and the Defendant-Seller was directed to execute regular
sale deed in favour of the Plaintiff-Buyer, within three months from the
date of decree. It was made clear by the Trial Court in the decree that if
the balance amount of sale consideration is not deposited within one month
from the date of decree, the suit shall be deemed to have been dismissed.
The Plaintiff-Buyer did not deposit the said amount within one month
as stipulated in the decree but he filed an application for extension of
time for depositing the amount of balance sale consideration and vide
order dated 17.03.2007, the Additional Civil Judge (Sr. Division) extended
the time by two months. After the extension order, the last date for
deposit of the amount fell during the Summer Vacation of the Court. The
Plaintiff-Buyer did not deposit the said amount even on the re-opening day
after Summer Vacation, i.e. 28.05.2007. But allegedly, he filed a Memo for
issue of Receipt Order (R.O.) for depositing the said amount. However as
per the records, the R.O. was issued on 29.05.2007 and the amount was
deposited on the same day by cash.
Admittedly, the Defendant-Seller was not served with a copy of the
Memo and was not notified with regard to the alleged deposit.
The Defendant-Seller sold the property in question to Sri Rajesh on 20.06.2007 under a
registered sale deed. The Plaintiff-Buyer filed Execution Petition
No.88/2008 on 17.03.2008 in the Court of IInd Additional Civil Judge (Sr.
Division), which was dismissed on 20.10.2008.
(i) whether the amount
deposited on 29.05.2007 amounts to a deemed extension of time and a valid
deposit;
(ii )whether one Rajesh who has purchased the property is a
notified purchaser;
(iii) whether the appellant is entitled to extension
of time when third party interest is created; and
(iv) whether the suit
stood dismissed on 28.05.2007 or earlier when the amount was not deposited
in terms of the decree.
The High Court directed the Trial Court to dispose
of the matter within two months from the date of receipt of the order.
Aggrieved by the order of remand passed by the Karnataka High Court, the
parties are before us.
Thus, in the present case, the Plaintiff-Buyer has clearly defaulted
on time of depositing as well as the mode of payment. The decree was self-
operative and the suit stood dismissed for non-compliance of the decree.
Further, the Plaintiff-Buyer also failed to make out a case for condonation
of delay. In view of these findings, we are of the opinion that the
questions formulated by the High Court in the order of remand are not
required to be answered by the Trial Court. Consequently, the appeal filed
by the Plaintiff-Buyer is dismissed and the appeal filed by the Defendant-
Seller is allowed. There shall be no order as to costs. - 2015 S.C. MSK LAW REPORTS
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