LAW FOR ALL

Sunday, May 2, 2021

The omissions like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by itself, is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution, whose say is consistent, natural and trustworthy.

Crl.A.No.216 of 2015 etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 216 OF 2015

Kalabhai Hamirbhai Kachhot …..Appellant

Versus

State of Gujarat …..Respondent

W I T H

CRIMINAL APPEAL NO. 453 OF 2021

[Arising out of S.L.P.(Crl.)No.3227 of 2015]

A N D

CRIMINAL APPEAL NO. 290 OF 2018

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted in S.L.P.(Crl.)No.3227 of 2015.

2. All these criminal appeals are filed against the common

judgment dated 09.05.2014 passed by the High Court of Gujarat at

Crl.A.No.216 of 2015 etc.

Ahmedabad in Criminal Appeal Nos.405 of 2010 and 459 of 2010, as

such, they are heard together and disposed of by this common

judgment.

3. Criminal Appeal No.290 of 2018 is filed by accused no.1 –

Vajashibhai Ramshibhai Kachhot; Criminal Appeal arising out of

S.L.P.(Crl.)No.3227 of 2015 is filed by accused no.2 – Mulubhai

Markhibhai Nandaniya; and Criminal Appeal No.216 of 2015 is filed

by accused no.3 – Kalabhai Hamirbhai Kachhot. For the sake of

convenience, the appellants in the above appeals shall be referred to

as accused nos.1 to 3 hereafter.

4. The aforesaid appellants were the accused in FIR no.I215/2006 dated 11.11.2006 on the file of Keshod Police Station,

which was registered for the offences punishable under Sections 302,

326, 324 and 34 of Indian Penal Code (IPC) and Section 135 of the

Bombay Police Act, in which chargesheet was filed on 07.02.2007 in

the court of First Class Magistrate, Keshod. As much as the offences

were triable by Sessions Court, the case was committed to the Court

of Additional Sessions Judge, Junagadh and the accused were tried

for the aforesaid offences in Sessions Case No.14 of 2007. All the

accused were convicted for the offences under Section 302 read with

34, IPC and Section 135(1) of the Bombay Police Act. Accused no.1 –

Crl.A.No.216 of 2015 etc.

Vajashibhai Ramshibhai Kachhot – was found guilty for offence

punishable under Section 302 read with 34, IPC and was sentenced to

undergo life imprisonment and to pay fine of Rs.10,000/ and in

default, to undergo further S.I. for 12 months. He was also found

guilty for offence punishable under Section 324, IPC and was

sentenced to pay fine of Rs.3000/ and in default, to undergo further

S.I. for six months. He was also found guilty for the offence

punishable under Section 135(1) of the Bombay Police Act and was

sentenced to undergo S.I. for four months and to pay fine of Rs.100

and in default, to undergo further S.I. for ten days. Accused no.2 –

Mulubhai Markhibhai Nandaniya – was found guilty for offence

punishable under Section 302 read with 34, IPC and was sentenced to

undergo R.I. for life and to pay fine of Rs.10000/ and in default, to

further undergo S.I. for 12 months. He was also found guilty for

offence punishable under Section 135(1) of Bombay Police Act and

was sentenced to undergo S.I. for four months and to pay fine of

Rs.100/ and in default, to further undergo S.I. for ten days. Accused

no.3 – Kalabhai Hamirbhai Kachhot – was found guilty for offence

punishable under Section 302 read with 34, IPC and was sentenced to

undergo R.I. for life and to pay fine of Rs.10000/ and in default, to

further undergo S.I. for 12 months. He was also found guilty for

Crl.A.No.216 of 2015 etc.

offence punishable under Section 135(1) of Bombay Police Act and

was sentenced to undergo S.I. for four months and to pay fine of

Rs.100/ and in default, to further undergo S.I. for 10 days. The

learned Sessions Judge has acquitted the original accused nos.2 and

3 of the charges under Sections 326 and 324 read with 34, IPC.

Against the judgment and order of conviction passed by the learned

Sessions Court, accused nos.1 and 3 filed Criminal Appeal No.459 of

2010 and accused no.2 filed Criminal Appeal No.405 of 2010 before

the High Court.

5. The High Court, by the impugned common judgment, while

confirming the conviction, has partly allowed the appeals and ordered

that all the sentences imposed against the accused shall run

concurrently and, by extending the benefit of Section 428 of the Code

of Criminal Procedure, also ordered that the period of detention of the

accused as undertrial prisoners be set off against the sentence.

6. On 10.11.2006, one Rajshibhai Maldebhai Karangiya,

resident of Bamnasa Ghed, Taluka Keshod, gave complaint before the

Subinspector ‘B’ Division, Junagadh stating that he lives at Bamnasa

Ghed with his family and is engaged in agricultural work and lives in

the orchard situated in sim of village Akha. In his complaint, he has

stated that at about 5:00 p.m. on 10.11.2006 Rajshibhai Maldebhai

Crl.A.No.216 of 2015 etc.

Karangiya; Mitesh Hardasbhai and Gokalbhai Karsanbhai went to

Keshod for some work on Gokalbhai’s Hero Honda motorcycle.

Gokalbhai was riding the motorcycle. While returning, when they

reached near to orchard of Kalabhai at about 7:15 p.m., Vajashibhai

Ramshibhai, Mulubhai Markhibhai and Kalabhai Hamirbhai Kachhot

were waiting with axe and knives. In order to stop Rajshibhai

Maldebhai Karangiya, Mulubhai gave axe blow, which hit on

Gokalbhai’s head, due to which Rajshibhai Maldebhai Karangiya,

Miteshbhai Hardasbhai and Gokalbhai fell down from the motorcycle.

Thereafter the three accused have attacked the deceased Gokalbhai

with knives and when Rajshibhai Maldebhai intervened, Vajashibhai

gave knife blow on the head of Rajshibhai Maldebhai Karangiya. It is

also alleged that Vajshibhai hit knife blow on the back side of head on

ear and hit Mitesh on left shoulder. Gokalbhai became unconscious.

The three accused then ran away towards Akha on Kalabhai’s

motorcycle. Thereafter, relatives of the deceased and injured were

called and they were shifted to Government Hospital where Gokalbhai

was declared dead and Rajshibhai Maldebhai and Miteshbhai were

given medical treatment. It is also stated that the reason behind the

incident is that six months earlier to the date of incident there was a

quarrel between Vajshibhai and Mulubhai with Gokalbhai. He has

Crl.A.No.216 of 2015 etc.

stated in the complaint that the present incident is consequence of

such rivalry between the accused and the deceased.

7. Based on the abovesaid complaint, crime was registered and

after necessary investigation, chargesheet was filed before the Addl.

Sessions Judge, Junagadh. Learned Sessions Judge framed charges

against the accused. When the accused pleaded not guilty to the

charges and claimed trial, they were tried for the offences alleged

against them.

8. To prove the charges framed against the accused, prosecution

has examined, in all, 32 witnesses and marked 61 documents and at

the end of the trial, after recording the statement of the accused under

Section 313, Cr.PC and after hearing the arguments of prosecution

and defence, learned Additional Sessions Judge held appellantaccused were guilty for the offences and awarded sentence, as

narrated above. Aggrieved by the judgment of conviction and sentence

imposed on the appellantaccused, the accused nos.1 and 3 have

preferred Criminal Appeal No.459 of 2010 and original accused no.2

has preferred Criminal Appeal No.405 of 2010 before the High Court.

The High Court, while confirming the conviction, has extended the

benefit of Section 428, Cr.PC and allowed the appeals partly by

common judgment, only to the extent indicated above.

Crl.A.No.216 of 2015 etc.

9. We have heard Sri Harin P. Raval, learned senior counsel

appearing for the appellant in Criminal Appeal No.216 of 2015; Sri

D.N. Ray, learned counsel appearing for the appellant in Criminal

Appeal No.290 of 2018; and Sri Nachiketa Joshi, learned counsel

appearing for the appellant in Criminal Appeal arising out of S.L.P.

(Crl.)No.3227 of 2015 and Ms. Vishakha, learned counsel appearing

for the respondentState.

10. Sri Harin Raval, learned senior counsel has contended that

the conviction of the appellantaccused is mainly based on the

testimony of PW18 and PW19, who are the injured eye witnesses. It

is submitted that if their depositions are scrutinized closely, there are

major contradictions. It is submitted that they are the chance

witnesses and their evidence is not trustworthy to base the conviction

of the appellantaccused. Further, it is submitted that there is no

mention about the nature of injuries in the postmortem report and the

motorcycle used in the crime was not recovered. It is further

contended that though it is the case of the prosecution that there was

a head injury caused by the accused on the deceased, there is no

corresponding medical injury in the postmortem Report of the

deceased. It is submitted that the medical records including

postmortem report are not reliable and the prosecution has failed to

Crl.A.No.216 of 2015 etc.

prove the case beyond reasonable doubt. He has thus requested to

extend the benefit of doubt to the accused and set aside their

conviction. In support of his arguments, learned counsel has relied

on the judgments of this Court in the case of Anand Ramachandra

Chougule etc. v. Sidarai Laxman Chougala & Ors.1

; Akula Veera

Venkata Surya Prakash @ Babi v. Public Prosecutor, High Court of

Andhra Pradesh2

; and Mohinder Singh & Anr. v. State of Punjab &

Ors.3

11. Learned counsel Sri D.N. Ray appearing for the appellant in

Criminal Appeal No.290 of 2018 has contended that though a fatal

injury was attributed on the deceased, caused by one of the

appellants, there were no blood marks on PWs18 and 19 who are

stated to be injured witnesses and were travelling on the same

motorcycle of the deceased. Further, it is submitted that the deceased

and injured were taken in Maruti car but there were no traces of blood

in the car. No blood was also found on PWs18 and 19 and injuries

suffered by them are superficial. It is further submitted that the

alleged incident happened at about 07:30 p.m. in the month of

November, as such, there was no possibility of identifying the accused

1 (2019) 8 SCC 50

2 (2009) 15 SCC 246

3 (2004) 12 SCC 311

Crl.A.No.216 of 2015 etc.

in the darkness. Further it is submitted that no injury was found on

the head of the deceased as per the doctor’s deposition. It is further

submitted that the alleged motive, that an amount of Rs.15000/ was

payable to the deceased, was no basis to record the guilt of the

accused as the said incident was about eight months earlier to the

date of the incident.

12. Shri Nachiketa Joshi, learned counsel appearing for the

appellant in the Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of

2015, while adopting the arguments of Sri Harin Raval and Sri D.N.

Ray, has contended that though there is no acceptable evidence on

record, the appellant was convicted for the offences alleged. He has

submitted that if overall evidence is taken into consideration, the

charges framed against the accused are not proved beyond reasonable

doubt and even the High Court has not considered the grounds raised

by the appellantaccused in proper perspective and dismissed the

appeals.

13. Per contra, Ms. Vishakha, learned counsel appearing for the

respondentState has submitted that there are concurrent findings of

conviction against the appellants. It is submitted that the trial court

itself has considered at length, the oral and documentary evidence on

record and has come to conclusion that the appellants were guilty for

Crl.A.No.216 of 2015 etc.

the offences alleged and there are no grounds to interfere with the

same. It is further submitted that accused nos.1 and 3 were found

with knives and accused no.2 caused the injury on the deceased by

hitting on his head with axe when, all three were travelling on

motorcycle. It is submitted that murder of the deceased was

committed by injuring PWs18 and 19 with the common intention, as

such, they were rightly found guilty by the Sessions Court. Further,

learned counsel, by referring to the deposition of PW21 who was the

person first to reach the place of occurrence, i.e., the brother of the

deceased, has submitted that postmortem report indicates the injury

on the lower back side of the head. Further, submitting that the

identity of the accused cannot be questioned as all are known to each

other and are of the same village. She has further submitted that the

medical and ocular evidence supports the case of the prosecution, to

prove the case against the accused. The learned counsel has lastly

contended that discrepancies, if any, in the depositions are minor and

same will not affect the case of the prosecution. The learned counsel

placed reliance on the judgments of this Court in the case of Mohar &

Anr. v. State of U.P.4

and State of Uttar Pradesh v. Naresh & Ors.5

4 (2002) 7 SCC 606

5 (2011) 4 SCC 324

Crl.A.No.216 of 2015 etc.

14. In reply, Sri Harin Raval, learned senior counsel and Sri D.N.

Ray, learned counsel appearing for the appellantaccused have

submitted that the alleged incident has occurred at about 07:30 p.m.

on 10.11.2006 and even according to evidence, PWs18 and 19

remained at the site of the occurrence for about 45 minutes, which is

unusual. It is submitted that in a situation like this, PWs18 and 19,

who suffered injuries, should have made an attempt to shift the

deceased to the nearest hospital immediately. Referring to the

deposition of PWs18 and 19 in crossexamination, it is submitted

that such injuries suffered by PWs18 and 19, can be selfinflicted.

Further reiterating that the discrepancies noticed in the depositions

are major, hence, benefit of doubt has to go to the appellants and

prayed for acquittal of the accused.

15. Having heard the learned counsel on both sides, we have

perused the judgment of the trial court as well as that of the High

Court and other material placed on record.

16. Upon close scrutiny of the evidence on record and the

findings recorded by the trial court, as confirmed by the High Court,

we do not find any merit in the submissions of the learned counsel for

the appellantaccused, to interfere with the conviction recorded by the

trial Court, as confirmed by the High Court.

Crl.A.No.216 of 2015 etc.

17. To prove the charges framed against the appellants, the

prosecution has examined 32 witnesses and marked 61 documents as

exhibits, during the trial. Among the other witnesses examined on

behalf of the prosecution, Rajshibhai Maldebhai Karangiya, who was

with the deceased at the time of incident, was examined as PW18. In

his deposition he has stated that the incident occurred at about 07:30

in the evening on BamnasaAkha road on 10.11.2006. On that day,

he, along with Miteshbhai and Gokalbhai (deceased), went to Keshod

on Hero Honda motorcycle at about 05:00 O’clock in the evening.

Gokalbhai was driving the motorcycle and thereafter at about 06:45

p.m. Gokalbhai’s brother Vajshibhai made a phone call to Gokalbhai

and stated that he wants motorcycle to go for some other work and

requested him to come back if his work is completed. Therefore, they

proceeded from Keshod to Village Bamnasa and when they reached

near the farm of Kalabhai – a policeman, Vajshibhai Ramshibhai

armed with knife, Mulubhai Markhibhai armed with axe and Kalabhai

Hamirbhai armed with knife were standing across the road to stop

them. When Gokalbhai slowed down the vehicle, Mulubhai

Markhibhai gave axe blow on the head of Gokalbhai and, therefore,

they fell down from the motorcycle and thereupon the accused started

giving blows with axe and knife to Gokalbhai haphazardly. Further it

Crl.A.No.216 of 2015 etc.

is also deposed that when he and Mitesh tried to interfere, they also

suffered injuries. Thereafter he made a phone call to Masaribhai at

Bamnasa from his mobile and requested him to come to the place of

incident with vehicle. Therefore, after sometime, Rajubapu Bavaji

came with Maruti van and Samat Govind and Vajsi Karsan were with

Rajubapu. Even as per the say of this witness the reason for the

incident is the altercation, between Gokalbhai and Vajashibhai with

regard to rent of Rs.15000/, which occurred six months prior to the

occurrence, of which complaint was lodged in Junagadh Police

Station. Other person, who was with the deceased on the day of

occurrence was Mitesh Hardas Kachhot – PW19, has also deposed on

similar lines as that of PW18. The testimony of PWs18 and 19 who

were with the deceased on the day of occurrence and who were

travelling on the same motorcycle, is quite natural and trustworthy.

Though it is the contention of the learned counsel for the appellantaccused that as the incident happened in the month of November it

was not possible to identify the assailants in the darkness, at the

same time it is clear from the evidence on record that the headlight of

the vehicle was ‘on’ and it is evident from the record and panchnama

of the place of occurrence that there was a light which was there on

the Vadi. It is further to be noticed that the accused as well as the

Crl.A.No.216 of 2015 etc.

witnesses are of the same village, which appears to be a small village

and usually the persons residing in the village meet frequently, there

will not be any difficulty in identifying the persons. Therefore, as far

as the identification of the accused is concerned, the same is well

supported by the evidence on record. The prosecution also examined

Dr. Nikhilkumar Buch – PW1 – who has deposed that he was on duty

in Civil Hospital, Junagadh on 10.11.2006. On that day at about

10:40 hrs. in the night, injured Rajshi Malde was brought to him by

his nephew Hitesh Hardas, for treatment with the complaint and

stated that Vajshi Ramshi attacked him and gave knife blow. The

witness doctor has issued injury certificate which is exhibited as

Exh.18. Dr. Prafulaben Mohanlal Dhabariya was examined as PW2,

who has performed postmortem of the deceased. The said witness has

found the following injuries on the person of the deceased :

“i) There was one cut, incised wound which was

transverse, in mid way of left thigh. It was upto skin

and muscle. It was elliptical in shape and 5 inch long,

1 and ½ inch wide and ¾ inch deep.

ii) There was cut incised wound over left chest, left 6th

intercoastal space starting from mid clavicular line

and was going downwards and laterally. It is 2 and ½

inch long, ¾ inch wide and penetrates the cavity. The

wound track is tapering and infiltrated with blood.

There is no exit wound. It penetrates the rear and left

ventricular wall.

Crl.A.No.216 of 2015 etc.

iii) There was incised wound at the level of the hair line

over the neck posteriorly measuring 3 inch long

starting from ½ inch from the midline on the left and

extending transversely to the right. The wound is ½

inch wide, cuts through skin, muscles and grazes the

cervical vertebra. Bleeding noted.

iv) There was was incised wound over right side of neck

below above injury laterally measuring 1 x ½ x ½ inch

long x wide x deep.

v) There was incised wound parallel to above ½” below it

measuring 1” x ½” x ½”.

vi) There was incised wound just above right scapula at

base of neck starting 1” lateral to the vertebral margin

and extending laterally and transversely and upwards.

It is 2” long, 1” wide and penetrates the chest cavity.

The wound is tapering upwards. It penetrates the right

upper lung lobe.

vii) There was incised wound over right scapula region

medially measuring 1”x 1/2” x 1/2” cutting through

skin and muscle, next to vertebral margin, transverse.

viii) There was incised wound over right scapula region

about centrally and transversely measuring 1½” x 1”

x ½”.

ix) There was incised wound over right chest just below

right scapula vertically and at border of scapular

measuring 1 ½” x 1” x ½” cutting through skin and

muscle.

x) There was incised wound lateral to above wound, also

parallel to above wound, 2” distant from it and

measuring 1 ½ “x 1” x ½” cutting through skin and

muscle.

Crl.A.No.216 of 2015 etc.

xi) There was incised wound and lateral and parallel to

above, 2” distant from it, measuring 1 ½ “x 1”x 1/2”

cutting through skin and muscle.

xii) There was incised wound over right back, 10th

intercostal space transverse, measuring 2”x1” x ½”.

xiii) There was incised wound over left scapula, at the

base, vertical wound measuring 2” x 1” x ½” deep

cutting through skin and muscle.

xiv) Incised wound at level of T12, transverse wound

measuring 3 ½ “x 1” and cutting through skin,

muscles and grazing bone.

xv) Incised wound at level of L2, transverse wound

measuring 1 ½ “x 1” x ½” cutting through skin and

muscle.

xvi) Incised wound at level of L5S1 transverse wound

measuring 3” x ½” and cutting through skin, muscles

and grazing bone.

xvii) Incised wound over sacral region, vertical, midline

measuring 1” x1/2” x ½”, muscle deep.

xviii) Incised wound over sacral region, vertical, midline

measuring 1”x ½” x ½”, 2” below above wound

muscle deep.

xix) Incised incised wound about 1” below injury no 16,

lateral to it measuring 1” x ½ “x 1/2”.”

In his deposition, with reference to abovesaid injuries, he has also

opined that all the injuries are antemortem. The injuries which are

referred to, are stated to have been enclosed in the postmortem note.

Sri Jagdishbhai Sarmanbhai Kamaliya, who was the panch witness of

Crl.A.No.216 of 2015 etc.

the panchmana of the dead body, was examined as PW5. Sri

Hardasbhai Bhikhabhai Bhetariya was examined as PW6 who was

panch witness to the scene of offence. The prosecution has also

examined Masharibhai Govindbhai Karangiya as PW20. In his

deposition he has stated that on the date of incident when he was at

his field, he received a phone call of Rajshi Malde at about 07:30 in

the evening stating the incident and assault on them and he was

informed to come with Maruti van of Rajubapu and thereafter he has

gone to village on his motorcycle. As he could not meet Rajubapu, he

contacted Rajubapu on phone and requested him to come with his

Maruti van to the field of Kalabhai immediately which is situated on

the road of Aakha. He has clearly stated in his deposition that when

he reached the spot, he has noticed the injuries on Miteshbhai and

Rajashi Malde and Gokalbhai was lying in bleeding condition. He has

also stated that there was a lamp in the field of Kalabhai, light of

which was falling on the road. The brother of the deceased was

examined as PW21. In his deposition he has also stated that as

Gokalbhai has taken the Hero Honda motorcycle and as the same was

required by him to go out of station on the motorcycle, he made a

phone call to Rajashi on his mobile no.9825921960 through the coin

drop box phone from the shop of Nathubhai in the village. Even this

Crl.A.No.216 of 2015 etc.

witness has stated that the reason for the incident is that Gokalbhai

unloaded the soil in the field of Vajashibhai Ramshi through his

tractor and the amount of Rs.15000/ towards rent thereof was

outstanding from him. It is stated that as there was discord in this

regard, the incident has occurred, which resulted in the murder of

Gokalbhai. Sri Rajeshbhai Jethabhai Parmar who has investigated

the crime, was examined as PW31. He also clearly stated in detail in

his deposition regarding the incident.

18. The submission of the learned counsels, that there was no

head injury, as deposed by PWs18 and 19 on the deceased and also

as per the postmortem report, as such the deposition of PWs18 and

19 is to be discarded, cannot be accepted for the reason that the

postmortem report indicates injury on the lower back side of the head.

An attempt was made to assault the deceased with an axe. We cannot

expect that it has to be hit on the centre of the head. It has fallen on

the lower back side of the head, same is evident from the postmortem

report. At this stage, it is to be noted, that the attack was made on

the deceased and injured, when they were moving on motor cycle. As

such, it cannot be said that merely because there is no injury on the

centre of the head, the testimony of PWs18 and 19 is to be discarded.

The doctor who has conducted the postmortem, has also clearly stated

Crl.A.No.216 of 2015 etc.

in his deposition that all injuries which were noticed on the deceased

were ante mortem. If the entire evidence of all the witnesses is

examined with reference to medical and other evidence on record, it is

clear that the prosecution has proved the guilt of the accused beyond

reasonable doubt. All the accused have committed the crime with a

common intention. It is clear from the record that the role attributed

to accused nos.1, 2 and 3 is fully supported by the injured witnesses

as well as the deposition of investigation officer. Though the key

witness, were crossexamined at length, nothing adverse was elicited.

If the testimony of PW20, i.e., Masharibhai is examined, same is fully

supported by the evidence of PW18, 19 and 21. It is clear from the

evidence on record that their testimony is natural and trustworthy

and so far as PWs18 and 19 are concerned it cannot be said that they

are the chance witnesses. Even the injuries sustained by PWs18 and

19 are not selfinflicted as per the opinion of the medical expert.

Further, it is also clear from the opinion of the doctor who was

examined, that all the injuries were possible with muddammal knife

and axe. It is further to be noticed that serological report from which

the blood group was found on the cloths of the deceased and that of

the accused nos.1 and 2 is the same. Even with regard to the

presence of accused no.3, it is also clear considering the entire oral

Crl.A.No.216 of 2015 etc.

evidence on record that his presence on the spot is also proved beyond

reasonable doubt.

19. We also do not find any substance in the argument of the

learned counsel that there are major contradictions in the deposition

of PWs18 and 19. The contradictions which are sought to be

projected are minor contradictions which cannot be the basis to

discard their evidence. The judgment of this Court in the case of

Mohar4

relied on by the learned counsel for the respondentState

supports the case of the prosecution. In the aforesaid judgment, this

Court has held that convincing evidence is required, to discredit an

injured witness. Para 11 of the judgment reads as under :

“11. The testimony of an injured witness has its own

efficacy and relevancy. The fact that the witness sustained

injuries on his body would show that he was present at the

place of occurrence and has seen the occurrence by

himself. Convincing evidence would be required to

discredit an injured witness. Similarly, every discrepancy

in the statement of a witness cannot be treated as fatal. A

discrepancy which does not affect the prosecution case

materially cannot create any infirmity. In the instant case

the discrepancy in the name of PW 4 appearing in the FIR

and the crossexamination of PW 1 has been amply

clarified. In crossexamination PW 1 had clarified that his

brother Ram Awadh had three sons: (1) Jagdish, PW 4, (2)

Jagarnath, and (3) Suresh. This witness, however, stated

that Jagarjit had only one name. PW 2 Vibhuti, however,

stated that at the time of occurrence the son of Ram

Awadh, Jagjit @ Jagarjit was milching a cow and he was

Crl.A.No.216 of 2015 etc.

also called as Jagdish. Balli (PW 3) mentioned his name as

Jagjit and Jagdish. PW 4 also gave his name as Jagdish.”

Learned counsel for the respondentState has also relied on the

judgment of this Court in the case of Naresh & Ors.5

. In the aforesaid

judgment, this Court has held that the evidence of injured witnesses

cannot be brushed aside without assigning cogent reasons.

Paragraphs 27 and 30 of the judgment which are relevant, read as

under :

“27. The evidence of an injured witness must be given due

weightage being a stamped witness, thus, his presence

cannot be doubted. His statement is generally considered

to be very reliable and it is unlikely that he has spared the

actual assailant in order to falsely implicate someone else.

The testimony of an injured witness has its own relevancy

and efficacy as he has sustained injuries at the time and

place of occurrence and this lends support to his

testimony that he was present during the occurrence.

Thus, the testimony of an injured witness is accorded a

special status in law. The witness would not like or want

to let his actual assailant go unpunished merely to

implicate a third person falsely for the commission of the

offence. Thus, the evidence of the injured witness should

be relied upon unless there are grounds for the rejection

of his evidence on the basis of major contradictions and

discrepancies therein. (Vide Jarnail Singh v. State of

Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri)

107] , Balraje v. State of Maharashtra [(2010) 6 SCC 673 :

(2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of

M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )

… … … …

Crl.A.No.216 of 2015 etc.

30. In all criminal cases, normal discrepancies are bound

to occur in the depositions of witnesses due to normal

errors of observation, namely, errors of memory due to

lapse of time or due to mental disposition such as shock

and horror at the time of occurrence. Where the omissions

amount to a contradiction, creating a serious doubt about

the truthfulness of the witness and other witnesses also

make material improvement while deposing in the court,

such evidence cannot be safe to rely upon. However,

minor contradictions, inconsistencies, embellishments or

improvements on trivial matters which do not affect the

core of the prosecution case, should not be made a ground

on which the evidence can be rejected in its entirety. The

court has to form its opinion about the credibility of the

witness and record a finding as to whether his deposition

inspires confidence.

“9. Exaggerations per se do not render the evidence brittle.

But it can be one of the factors to test credibility of the

prosecution version, when the entire evidence is put in a

crucible for being tested on the touchstone of credibility.”

[Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar

Singh, (2004) 9 SCC 186, p. 192, para 9.]

Therefore, mere marginal variations in the statements of a

witness cannot be dubbed as improvements as the same

may be elaborations of the statement made by the witness

earlier. The omissions which amount to contradictions in

material particulars i.e. go to the root of the

case/materially affect the trial or core of the prosecution's

case, render the testimony of the witness liable to be

discredited. [Vide State v. Saravanan [(2008) 17 SCC 587 :

(2010) 4 SCC (Cri) 580 : AIR 2009 SC

152], Arumugam v. State [(2008) 15 SCC 590 : (2009) 3

SCC (Cri) 1130 : AIR 2009 SC 331] , Mahendra Pratap

Singh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC

(Cri) 1352] and Sunil Kumar Sambhudayal Gupta

(Dr.) v. State of Maharashtra [(2010) 13 SCC 657 : JT

(2010) 12 SC 287] .”

Crl.A.No.216 of 2015 etc.

Further, in the case of Narayan Chetanram Chaudhary & Anr. v.

State of Maharashtra6

, this Court has considered the effect of the

minor contradictions in the depositions of witnesses while

appreciating the evidence in criminal trial. In the aforesaid judgment

it is held that only contradictions in material particulars and not

minor contradictions can be a ground to discredit the testimony of the

witnesses. Relevant portion of Para 42 of the judgment reads as

under:

“42. Only such omissions which amount to contradiction

in material particulars can be used to discredit the

testimony of the witness. The omission in the police

statement by itself would not necessarily render the

testimony of witness unreliable. When the version given by

the witness in the court is different in material particulars

from that disclosed in his earlier statements, the case of

the prosecution becomes doubtful and not otherwise.

Minor contradictions are bound to appear in the

statements of truthful witnesses as memory sometimes

plays false and the sense of observation differ from person

to person. The omissions in the earlier statement if found

to be of trivial details, as in the present case, the same

would not cause any dent in the testimony of PW 2. Even if

there is contradiction of statement of a witness on any

material point, that is no ground to reject the whole of the

testimony of such witness.

… … …”

20. By applying the aforesaid ratio, as laid down by this Court

coupled with the evidence on record, we are clearly of the view that

6 (2000) 8 SCC 457

Crl.A.No.216 of 2015 etc.

the prosecution has proved the case against all the appellantaccused

beyond reasonable doubt. The omissions like not seizing the

motorcycle and also not seizing the gold chain of one of the victims, by

itself, is no ground to discredit the testimony of key witnesses who

were examined on behalf of the prosecution, whose say is consistent,

natural and trustworthy.

21. In that view of the matter, we are fully in agreement with the

view taken by the trial court in recording the conviction against the

appellants, as confirmed by the High Court. Therefore, no

interference is called for with the concurrent findings recorded against

the appellants. As discussed earlier it is also clear that there was a

quarrel between the deceased about six months earlier to the incident

and one accused regarding payment of rent of tractor. Further it is

brought on record that there was animosity between them which is

the motive for the crime. As such, the prosecution has established,

beyond reasonable doubt, that all the accused have committed the

offence with a common intention and participated in committing the

crime. The trial court as well as the High Court has not committed

any error in law or on facts, as such, the same are required to be

upheld by this Court. As far as the judgments relied on by the

learned counsel for the appellants are concerned, having regard to the

Crl.A.No.216 of 2015 etc.

facts of the case and the evidence on record, we are of the view that

the abovesaid judgments would not render any assistance to support

the case of the appellants.

22. For the aforesaid reasons, we do not find any merit in these

appeals, same are accordingly dismissed.

………………………………J.

[Ashok Bhushan]

………………………………J.

[R. Subhash Reddy]

New Delhi.

April 28, 2021.

after the enhancement of load, it was facing major trippings as well as continuous load shedding which was affecting the costly machineries and, therefore, the respondent decided to reduce the load from 4000 KVA to 1325 KVA. Accordingly, the respondent filed an application, on 20.09.2007, before the authority of the appellantsBoard for such reduction.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6145 OF 2010

JHARKHAND STATE ELECTRICITY

BOARD AND OTHERS …..APPELLANTS

VERSUS

M/S RAMKRISHNA FORGING

LIMITED .….RESPONDENT

J U D G M E N T

Vineet Saran, J.

The respondent is a small scale industry. For

running its industry, it had a contract

demand/sanctioned load of electricity of 4000 KVA from

the appellantsJharkhand State Electricity Board (for

short ‘the Board’). The request of the respondent for

reduction of such sanctioned load to 1325 KVA having

been refused, the respondent filed a writ petition before

the High Court of Jharkhand, which has been allowed.

Aggrieved by the said judgment of the High Court, this

appeal has been preferred by the Board.

2. The brief facts, relevant for the present case,

are that the respondent, which is a small scale

industry, had entered into an agreement with the Board

on 14.04.2004 for High Tension (H.T.) connection of 325

KVA load. The respondent thereafter applied for

enhancement of load from 325 KVA to 1325 KVA, which

was allowed by the General ManagercumChief

Engineer of the Board on 14.03.2006. The respondent

again applied for enhancement of load from 1325 KVA

to 3500 KVA, which was sanctioned by the Board on

26.12.2006. On a further request of the respondent,

the load was again enhanced by 500 KVA to 4000 KVA.

For each enhancement of load, fresh agreements to that

effect were entered into between the respondent and the

Board, the last one being on 07.07.2007 for supply of

4000 KVA load. The respondent alleges that after the

enhancement of load, it was facing major trippings as

well as continuous load shedding which was affecting

the costly machineries and, therefore, the respondent

decided to reduce the load from 4000 KVA to 1325 KVA.

Accordingly, the respondent filed an application, on

20.09.2007, before the authority of the appellantsBoard for such reduction. Vide its order dated

08.11.2007, the Electrical Superintending Engineer

rejected the said application of the respondent for

reduction of load from 4000 KVA to 1325 KVA informing

the respondent that from the date of enhancement of

supply of load, an agreement (dated 07.07.2007) would

be enforced for a period of three years and treating it to

be a case of determination of agreement, and quoting

the Clause 9B of the agreement, it was provided that

the agreement could not be permitted to be determined

prior to the completion of initial period of three years

from 07.07.2007 and that the respondent will have to

pay the minimum guarantee charges and other charges,

even if the respondent decides to terminate the

agreement.

3. Challenging the said order of the Board dated

08.11.2007, the respondent filed Writ Petition No.6651

of 2007, which has been allowed by the High Court vide

its judgment dated 23.07.2008, primarily on the ground

that the proviso contained in Regulation 9.2.1 of the

Jharkhand State Electricity Regulatory Commission

(Electricity Supply Code) Regulations, 2005 (for short,

‘the Regulations of 2005’), providing for no reduction of

load to be allowed by the Distribution Licensee before

expiry of the initial period of agreement was

discriminatory, arbitrary and against the public policy.

Challenging the aforesaid judgment, this appeal has

been filed.

4. We have heard Shri Anup Kumar, learned

counsel appearing for the appellants and Shri N.P.

Singh, learned Senior Counsel appearing for the

respondent, assisted by Shri Devashish Bharuka,

AdvocateonRecord for the respondent.

5. It is noteworthy that after the initial

agreement dated 14.04.2004, which came into effect

from 16.04.2004 whereby the contract demand of 325

KVA was allowed in favour of the respondent, the

Jharkhand State Electricity Regulatory Commission (for

short, ‘the Commission’) in exercise of power conferred

by Section 181(2)(x) read with Section 50 of the

Electricity Act, 2003, framed the Jharkhand State

Electricity Regulatory Commission (Electricity Supply

Code) Regulations, 2005, which came into effect from

28.07.2005.

6. The submission of the learned counsel for the

appellantsBoard, is that in terms of Regulation 9.2.1 of

the Regulations of 2005, which relates to the reduction

of contract demand/sanctioned load, no reduction of

load could be allowed before the expiry of the period of

agreement which, according to the appellants, would be

07.07.2007 when a fresh agreement was executed for

enhanced load of 4000 KVA. Learned counsel for the

appellants has thus submitted that the application for

reduction of load filed by the respondent on 20.09.2007,

which was well within the period of three years from

07.07.2007, was rightly rejected by the Board vide its

order dated 08.11.2007, as it was in conformity with

the provisions of the Regulations of 2005.

7. Per contra, learned Senior Counsel appearing

for the respondent has submitted that the agreement

was initially entered into on 14.04.2004 and thereafter

even though technically fresh agreements may have

been executed for enhancement of load of the

respondent, but the same were only

extension/amendment of the initial agreement dated

14.04.2004, and the terms of each of these agreements

were identical, with the only change being that of the

increased contracted load. It has been contended by

the learned Senior Counsel for the respondent that the

Regulations do not permit execution of a fresh

agreement in case of enhancement of load, and the

enhancement agreements would merely be

supplementary agreements in continuation of the initial

agreement dated 14.04.2004 and cannot be treated as

fresh agreement because it is the same electricity

connection, which was granted by the agreement dated

14.04.2004, in which there have been amendments

from time to time for increase of load, and merely

executing a fresh agreement for enhancement of load

cannot be termed as fresh agreement for the purpose of

Regulations of 2005. It has, thus, been submitted that

the application of the respondent for reduction of load

dated 20.09.2007 has to be treated as after a period of

three years from the date of initial agreement dated

14.04.2004 and thus, the application of the respondent

ought to have been allowed and/or should be deemed to

be allowed in terms of the provisions of Regulations of

2005. In this regard, reliance has been placed on

Regulations 2(l), 9.1 and 9.2 of the Regulations of 2005.

8. For the ready reference, the relevant

provisions of the Regulations of 2005 are reproduced

below:

“2. Definitions. 2.1 In these regulations,

unless the context otherwise requires:

(a)…..

(b)…..

(c)…..

……...

(l) “Contract Demand” means

demand in Kilowatt (KW) or Kilo Volt

amperes (KVA) or H.P (Horse Power)

mutually agreed between the Distribution

Licensee and the consumer as entered

into agreement or agreed through other

written communication.

(m)…..

(n)…..

9. Enhancement and Reduction of

Contract Demand/Sanctioned Load. –

9.1 Enhancement of Contract Demand

/Sanctioned Load

9.1.1 The application for enhancement of

Contract Demand/Sanctioned Load shall

be made in the prescribed form and in the

manner as specified in new service

connection in Clause 5 of these

Regulations.

9.1.2 The application for enhancement of

load shall be disposed of in the manner

and within the time frame as prescribed

for new service connection in Clause

6.2.11 of these Regulations.

Provided that the application for

enhancement of Contract

Demand/Sanctioned Load may be

outright rejected by the distribution

licensee if the consumer is in arrears of

licensee’s dues and the same have not

been stayed by a court of law or the

Commission.

9.2 Reduction of Contract

Demand/Sanctioned Load.

9.2.1 The application for reduction of

Contract Demand/Sanctioned Load shall

made in the prescribed form specified for

the new service connection.

Provided that no reduction of load shall

be allowed by the Distribution Licensee

before expiry of the initial period of

agreement.

9.2.2 The application for reduction of load

shall be accompanied by

(i) Details of modification, alteration and

removal of electrical installation with

completion certificate and test report of the

Licensed Electrical contractor.

(ii) Any other reason for reduction of load

(iii) Details of generator if any installed by

the consumer with safety clearance

certificate from competent authority as

applicable.

9.2.3 The Distribution Licensee shall

consider the application verify the same

and communicate in writing its decision on

reduction of Contract Demand/Sanctioned

Load in writing within 30 days of the

application.

Provided that if the distribution licensee

rejects or refuses the reduction of Contract

Demand/Sanctioned Load it shall do so

after affording the consumer reasonable

opportunity of being heard in the matter

and after communicating in writing the

reasons for such refusal.

9.2.4 If the decision of the application for

reduction of Contract Demand/Sanctioned

Load is not communicated by the licensee

within 30 days of the application, the

consumer shall send a notice to the

licensee requesting for disposal in the

matter and if the decision is still not

communicated within 15 days of the

notice. The reductions of Contract

Demand/ Sanctioned Load shall be

deemed to have been sanctioned, from the

16th day after the issue of notice to the

licensee by the consumer.

9.2.5 The reduction of Contract

Demand/Sanctioned Load shall come into

effect from the first day of the month

following the month in which the reduction

of load has been sanctioned or have been

deemed to be sanctioned.

9.2.6 After the sanction of the reduction of

Contract Demand/Sanctioned Load the

consumer shall execute a supplementary

agreement and the licensee shall

recalculate the Security Deposit excess

Security Deposit if any shall be refunded

by way of adjustment in the minimum

number of succeeding bills of the

consumer.”

(emphasis supplied)

9. The communication dated 08.11.2007 of the

Electrical Superintending Engineer of the Board,

refusing the prayer of the respondent for reduction of

load, is reproduced below:

“Sub: Regarding the reduction of

load from 4000 KVA to 1325

KVA in respect of M/s R.K.

Forging Ltd. Conn. No. HJAP185

Ref: Your letter No. R.K.F.L/III and IV

182/0708 dated 05.10.2007.

With respect to the above, you have

applied for reduction of C.D from

4000KVA to 1325KVA. It is to inform you

that C/9B of agreement may kindly be

seen.

‘C/9B The consumer shall not be at

liberty to determine this agreement before

the expiration of three years from the

date of commencement of the supply of

energy (4000KVA w.e.f. 12.07.2007).

The consumer may determine this

agreement with effect from any date after

the said period on giving to the Board not

less than twelve calendar months’

previous notice (this has charged not less

than 6 Month Notice vide Secretary,

Jharkhand State Electricity Board

Notification No.5058 dated 20.08.2002) in

writing in that behalf and upon the

expiration of the period of such notice.

This agreement shall cease and

determine without prejudice to any right

which then have accrued to the Board

herewith provided always that the

consumers may at any time with the

previous consent of the Board transfer

and assign this agreement to any other

person and upon subscription of such

transfer, this agreement shall be binding

on the transferee and Board and take

effect in all respects as if transferee had

originally been party in place of the

consumer who shall henceforth be

discharged from all liabilities under or in

respect thereof.’

Hence your request for reduction

cannot be done as per agreement.”

10. Heard learned Counsel for the parties and

have carefully gone through the record.

11. From perusal of the communication dated

08.11.2007, it is clear that the application of the

respondent for reduction of load has been rejected in

terms of Clause 9(B) of the agreement, treating the date

of commencement of the agreement to be 7/12.07.2007

and only by considering the provision of determination

of the agreement, which could not have been without

giving notice of less than 12 calendar months. It is

clear that the said communication/order does not

consider the provisions of the Regulations of 2005 with

regard to reduction of load, but only treats the

application for reduction of load to be an application for

determination of the agreement.

12. Chapter 9 of the Regulations of 2005 deals

with the enhancement and reduction of contract

demand/sanctioned load. Regulation 9.1 deals with

enhancement of contract demand/sanctioned load,

whereas Regulation 9.2 deals with the reduction of

contract demand/sanctioned load.

13. Just as the consumer has the liberty of

getting its load enhanced under Regulation 9.1, the

reduction of contract demand/sanctioned load can also

be prayed for and decided in terms of Regulation 9.2.

The proviso to Regulation 9.2.1, no doubt, provides that

no reduction of load shall be allowed before expiry of the

initial period of agreement, which is three years in the

present case. The question would be whether the initial

agreement is to be considered for such purpose, or the

subsequent agreements.

14. Regulation 9.2.6 of the Regulations of 2005

provides for execution of a supplementary agreement for

reduction of contract demand/sanctioned load of the

consumer. Similarly, for enhancement of load also, even

if a fresh agreement may have been executed between

the parties, the same could be treated as nothing but a

supplementary agreement of the initial agreement by

which the electricity connection was granted for a

particular load. Clause 2(l) of the Regulations also

defines “contract demand” to be demand mutually

agreed in the agreement or agreed through other written

communication, meaning thereby that for variation of

the contract demand execution of a fresh agreement is

not essential and the same can be done otherwise also

by mere written communication.

15. It is noteworthy that the Jharkhand State

Electricity Board (‘the Board’) is a monopoly supplier of

electricity which has laid down its own terms and

conditions, regarding which the consumer has no say or

choice but to sign on the dotted lines, if it wants of get

electricity load varied for running its industry. The

Board is an instrumentality of the State. It has to be fair

and reasonable. If the Regulations provide for contract

load to be varied even through a written

communication, then in our considered view, in all

fairness, though fresh agreements may have been

executed at the stage of enhancement of load of the

same electricity connection, the same cannot be treated

as anything but an extension/amendment or

modification of the initial agreement granting the

electricity connection, which in the present case would

be the agreement dated 14.04.2004. On the dictates of

the Board, the consumer may have been required to

sign fresh agreements for each enhancement of load,

but the enhancement being for the same electricity

connection which still continues, it would merely be

amendment of the initial agreement. This would also be

in consonance with the provisions of the Regulations of

2005, which have to be liberally interpreted in favour of

the consumer.

16. Reverting to the order dated 08.11.2007,

which was impugned in the writ petition, we are of the

opinion that the Board has gone wrong in treating the

application dated 20.09.2007 of the respondent for

reduction of load to be that for determination of the

agreement under Clause 9B of the agreement, which

application, in fact, ought to have been considered

under Regulation 9.2 of the Regulations of 2005.

Further, we are unable to accept the submission of the

learned Counsel for the appellant that the application of

the respondent for reduction of load was within the

period of three years, because as we have discussed

hereinabove, the agreement to be considered in the

present case is the initial agreement dated 14.04.2004

and not the subsequent agreement dated 07.07.2007.

17. The judgments of this Court rendered in

Bihar State Electricity Board, Patna and Others v.

M/s. Green Rubber Industries and Others, (1990) 1

SCC 731, Orissa State Electricity Board v. Orissa

Tiles Limited, (1993) Supp. 3 SCC 481, Andhra Steel

Corporation Ltd. and Others v. Andhra Pradesh State

Electricity Board and Others, (1991) 3 SCC 263 and

Jharkhand State Electricity Board & Others v Laxmi

Business and Cement Company Private Limited and

Another, (2014) 5 SCC 236 as have been relied upon by

learned counsel for the parties, are distinguishable on

facts, in as much as they all relate to minimum

guarantee charge, and that too under the old Electricity

Act of 1910, as is so in the first three cases.

18. In view of the aforesaid, we are of the opinion

that the application of the respondent dated 08.11.2007

ought to have been allowed by the Board in terms of

Regulation 9.2 of the Regulations of 2005, treating the

application to be beyond the period of three years from

the date of the execution of the initial agreement dated

14.04.2004, by which the electricity connection of the

respondent had been initially granted.

19. While dismissing the appeal, we are not going

into the question as to whether the provisions of

Regulation 9.2.1 are discriminatory, arbitrary and

against the public policy, as has been held by the

Jharkhand High Court vide its judgment dated

23.07.2008.

20. The appeal is, accordingly, dismissed. No

order as to costs.

21. The application of the respondent dated

20.09.2007 for reduction of contract load/sanctioned

load from 4000 KVA to 1325 KVA would be deemed to

have been allowed under the provisions of Regulation

9.2 of the Regulations of 2005, and the respondent shall

be entitled to all consequential benefits.

………..………………………………..J

(L. NAGESWARA RAO)

………..……………………………....J

(VINEET SARAN)

New Delhi

April 30, 2021.

It is no doubt true that the Respondent No. 1 was offered appointment and was appointed. However, the Appellants suffered an order by a competent Tribunal which it was duty bound to implement. We would be remiss if we were to discard the principles of natural justice as inapplicable. No doubt there was no need to hold any enquiry as the termination was not on disciplinary grounds. No stigma is attached to Respondent No. 1. But a notice given to the Respondent No. 1 as to why in terms of the order of the Tribunal the Respondent 28 No. 1 should be treated as the person whose services was to be dispensed with should have been issued.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._______OF 2021

[Arising out of SLP (CIVIL No.) ______of 2021)

(Diary No. 24414/2020)

STATE OF ODISHA & ORS. … APPELLANT(S)

VERSUS

KAMALINI KHILAR & ANR. … RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1.There is a delay of 247 days in filing the SLP.

Having considered the matter, we are inclined to

condone delay but on condition that a sum of Rs.

50,000 is paid as costs to the Respondent No. 1.

Accordingly, the application to condone delay is

allowed subject to payment of Rs. 50,000 to the

Respondent No. 1 by the Appellant depositing the

same in the Registry within 4 weeks from today.

Leave granted.

2.The Appellant No. 1, namely the State of Odisha,

passed a resolution dated 12.03.1996 prescribing

the procedure for recruitment of Government

teachers in primary schools. The Appellant No. 3

namely the District Inspector of Schools, BhadrakII, Bhadrak had to determine the number of

vacancies to be filled up through direct

recruitment. Appellant No. 3 had to also determine

the number of vacancies which were required to be

reserved for each reserved category. It is the case

of the Appellants that based on the same, on

29.07.1996 by letter dated 29.07.1996, it was

communicated to the Respondent No. 1 that her name

was sponsored by the District Employment Exchange

for the post of primary school teacher. She was

called upon to submit her application along with

her documents. The Respondent No. 1 was directed

to attend the viva-voce examination. A merit list

was made. The Respondent No. 1 secured the 22nd

position in the SEBC (Women) Category. There were

only 16 vacancies which were to be filled by SEBC

(Women) Category candidates. Respondent No. 1 was

favoured with an order of appointment dated

04.04.1998. She was issued such appointment

according to the Appellants on the basis that one

of the successful candidates, namely the

Respondent No. 2 who secured the 16th position

could not join within time. The Respondent No. 1

joined based on the joining letter dated

20.04.1998.

3. While so complaining that she was not served with

the appointment order and that order was issued in

a wrong name, Respondent No. 2 filed

representation which based on an order in an

application before the Tribunal was disposed of

with certain directions by the 1

st Appellant O.A

No. 650 of 2000 was thereafter filed by Respondent

No. 2 before the Hon’ble Orissa Administrative

Tribunal. The Tribunal allowed the O.A. by order

dated 21.09.2001.

The operative part reads as follows:-

“For the reasons indicated above, we allow the

Original Application with the direction to the

State Respondent in General and D.I of Schools

(O.P. No. 3) in particular to issue appointment

order in favour of the applicant within one month

from the date of receipt of the copy of this order

and if the post has been filled up by the D.I of

Schools is to carry out direction issued by

Respondent No. 1 under Annexure-6 in dispensing

with the service of the candidate who had been

appointed in place of Minati Pradhan, the

applicant.”

4. This led to order dated 16.04.2002 which was an

order of appointment of Respondent No. 2 by the

Appellant No. 3 and another order of the same date

by which the services of the Respondent No. 1 came

to be terminated. This led to the present round of

litigation, namely O.A. No. 917 (C) of 2002 filed

by the Respondent No. 1 before the tribunal. The

Tribunal after exchange of pleadings allowed the

application filed by the Respondent No. 1.

5. We may refer to the following part of the order:-

“In so far as, it is obvious that Smt. Snehalata

Nayak who has secured less marks and did not figure

in the physically handicapped list, has been given

appointment under the “physically handicapped”

quota and has been allowed to continue along with

several others, including S.E.B.C (male) and

General (male) candidates who have secured less

mark than the applicant, (Ref. Letter No. 3235 dtd.

22.10.2001 or D.I. of Schools, Bhadrak-II).

Moreover, at least a show-cause notice should have

been issued and an opportunity to show-cause before

discharge allowed to the applicant even if for

argument sake only it is accepted that her service

can be terminated, as decided by the Hon’ble Apex

Court in the case on Basudeo Tiwari-Vrs-Sido Kandhu

University and others (AIR,1998 SC 3261). As no

show-cause notice was issued and no opportunity to

be heard was allowed and the principle of ‘Audi

alteram partum’ was not observed, even if the

applicant is deemed to be the junior most in the

S.E.B.C (Women) list, her termination is illegal.

Hence, Annexure-6, i.e., her termination order

vide office No. 981 dtd. 14.4.2002, is quashed.

The applicant be reinstated in service immediately

with all attendant service benefits by creating

another supernumerary post if necessary, as

termination of her service was not as per the

prescribed procedure or in accordance with the law

of the land.”

6. It is this order, which led to the passing of

the impugned order by the High Court. By the

impugned judgment, the High Court quashed the

direction of the Tribunal to reinstate the

Respondent No. 1 by creating a supernumerary post.

Thereafter, it was however ordered as follows:-

“However, since the vacancy is available, the

petitioners will give appointment to opposite

party No. 1 Smt. Kamalini Khilar against one of

such vacancies available in Bhadrak district

within a period of four weeks hence, the writ

petition is allowed the aforesaid extent.”

7. It is feeling aggrieved by the judgment that the

present appeal has been filed. We heard Learned

Counsel for the Appellants and Respondents No. 1

and 2 as well.

Submission of Appellants

8. The Learned Counsel for the Appellants would

complain that the High Court while granting limited

relief of quashing the direction to create a

supernumerary post, erred in the issuance of the

direction to appoint the Respondent No. 1 in the

vacancy. This is after having interfered with the

order of the Tribunal as noted. The Respondent No.

1 came to be appointed only on the basis that

Respondent No. 2 who admittedly had secured higher

rank than the Respondent No. 1 had not reported

for joining. It was only in compliance with the

order of the Tribunal, that the services of

Respondent No. 1 had to be terminated. It is

further contended that as things stand there is no

provision for making any appointment as the method

of appointment has been altered to absorption from

trained junior teachers.

9. Reliance was placed on the terms of the

Resolution dated 12th March, 1996. It is contended

that the selection was made based on the same. The

Employment Exchange sponsored eligible candidates

separately for general vacancies and for each

reserved categories. It is contended that the

sports person or physically handicapped person

from any Category could apply as much. Reference

is made to clause 8 of the Resolution. It is

contended that the maximum age as on the 1st of

January of the year of requisition was fixed as 32

years. Relaxation was however given by 5 years for

women candidates interalia. Separate list was to

be prepared for each of the reserved categories.

Separate select list of the candidates had to be

prepared for the vacancies notified in respect of

that category of candidates under clause 16 of the

Resolution. Clause 17a provided that the District

Inspector was to make appointment against the

sanctioned posts strictly in the order in which

the names occurred in the respective select lists.

16 vacancies were notified for the category of

S.E.B.C. (Women). It is pointed out that the

Respondent was born on 15.07.1961. She was 34

years, 5 months and 17 days as on 01.01.1996. She

therefore, got the relaxation as she had applied

as S.E.B.C (Women) in the Category. She secured

the 22nd rank and the Respondent No.2 was at S.no.

16.

10. There is no challenge at any point to the

resolution dated 12.03.1996 or the selection

procedure. The last person to get an appointment

from the list of S.E.B.C (Women) Category was

Respondent No.1. In order to comply with the

directions of the Tribunal in O.A. No. 650 of 2000,

the services of the Respondent No. 1 were dispensed

with. It was only the Respondent No. 1 who got the

appointment against one of the vacancies notified

for S.E.B.C (Women) Category because the

Respondent No.2 was not served the appointment

order. If the Respondent No.2 had been served the

appointment letter, then the Respondent no. 1 would

not have been given an appointment based on her

position in her merit list for S.E.B.C (Women)

Category. The Respondent No. 1 never objected to

the method of preparing the select lists and is

therefore not entitled to raise objection now to

the preparation of the separate list. Reference is

made to judgment of this Court in Union of India

and Ors. vs. Dalbir Singh and Ors1. The Respondent

No.1 was always aware of the separate list for each

Category. She got the benefit of relaxation of age

by applying as a S.E.B.C (Women) candidate. Her

non-inclusion in any other list or the selection

procedure interalia was never challenged by her.

It is pointed out that in the written submission

of the Respondent No. 1, a misleading statement is

made that the vacancy occurred prior to 03.06.1996

1 (2009) 7 SCC 251

which is why the government proceeded to fill up

the vacancy by calling upon the Respondent No. 1.

It is pointed out that the letter written by the

rd Appellant to the 2

nd Appellant was about

complying with the order of the Tribunal in the

application filed by the Respondent No. 2. The 3

Appellant refers to the vacancy having being filled

by his predecessor. All the vacancies covered by

the selection process in question occurred prior

to 30.06.1996. It is also further contended that

the none of the decisions relied upon by the

Respondent No.1 are relevant having regard to the

circumstances surrounding the appointment of the

Respondent No.1 and the specific directions issued

by the Tribunal.

The Case Of Respondent No.1.

11. There is a violation of principles of natural

justice. The termination of her services is wholly

illegal arbitrary and capricious. The Appellants

delayed the matter. The Respondent No.1 was a

permanent employee having impeccable four years of

continuous service record. The finding that her

services was terminated in view of the order dated

21.09.2001 is erroneous and not sustainable having

regard to the following aspects.

The Respondent No. 1 was not a party in the O.A.

filed by the Respondent No. 2. Secondly, the

Tribunal had not directed removal of the Respondent

No. 1 but only directed the removal of the person

who had taken the place of the Respondent No. 2.

It is pointed out that at Page no. 64 of the SLP

Paper Book which is the letter dt. 22.01.2001

written by the 3rd Appellant and also referring to

the list of junior most candidates of different

categories appointed as primary school teachers at

S.No. 3 the candidate is a general category male

who had secured 109.10 marks. S.No. 5 is candidate

from SEBC (Male) who secured 110.75 marks.

At S.No. 7 Jagatanand Panigrahi is specifically

earmarked as Physical Handicapped Category but

S.No. 8 named as Snehalata Nayak who is

specifically earmarked at S.no. 31 of SEBC Category

and secured only 110.36 marks but is given

appointment as PH illegally whereas she belongs to

SEBC Category. The Respondent No. 1 belongs to SEBC

Category had secured 112.75 marks which was more

than what the above persons obtained.

Therefore, the Respondent No. 1 was not the person

whose services was to be terminated in terms of

the order of the tribunal in the earlier

proceedings, it is contended.

12. It is contended that the Respondent No. 1 was

not party to the earlier proceeding. The order

adversely affecting the Respondent No. 1 should

not have been passed and the government should have

challenged the order passed in the earlier

proceeding. There is the bar under Section 115 of

the Indian Evidence Act, 1872. In other words,

there is estoppel. Reliance is placed on the

judgements of this court in Delhi Transport

Corporation vs. D.T.C. Mazdoor Congress and Ors.

2 AIR 1991 SC 101

Surendra Kumar Verma and Ors. vs. Central

Government Industrial Tribunal-Cum-Labour Court,

New Delhi and Ors.

3 and Deepali Gundu Surwase vs.

Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and

Ors.

4 . Reliance is also sought to be placed on the

judgements of this Court in Hindustan Tin Works

Pvt. Ltd. vs. The Employees of Hindustan Tin Works

Pvt. Ltd. and Ors.

5 and Basudeo Tiwary vs. Sido

Kanhu University and Ors.6

There were persons who secured lesser marks than

the Respondent No.1 who are allowed to be retained

in service and it was the Respondent No. 1 who was

harassed and victimised. The delay in litigation

is solely attributed to the government. There is a

delay of almost 7 years in filing reply by the

government. After the passing of the order by the

Tribunal to reinstate the Respondent No. 1 with

all service benefit it woke up only when contempt

proceeding was initiated and the order was

3 (1980) 4 SCC 443

4 (2013) 10 SCC 324

5 (1979) 2 SCC 80

AIR 1998 SC 3261

challenged only after a lapse of two years. The

career of the Respondent No. 1 was spoiled due to

the illegal termination. She could not properly

bring up her children and spent the entire period

of litigation in distress and financial hardship.

Had she been continued she would have become head

mistress now. She being a lady and married woman

residing in rural area she could not get any

employment elsewhere due to want of the same in

the locality and affidavit is also filed indicating

that she could not get suitable employment

elsewhere.

FINDINGS

13. The Order of the Tribunal passed in O.A. No.

650 of 2000 was binding on the department. We

cannot at this stage sit in judgment over the

correctness of the order passed in the said O.A.

Apparently, though the Respondent No. 2 having

obtained higher rank than the Respondent No. 1 in

the Category of S.E.B.C (Women) had been favoured

with an appointment letter, it was not delivered

to her as it was addressed wrongly. The Respondent

No. 2, therefore did not join as apparently, she

did not receive the appointment order. At least

these are the findings of the Tribunal.

In fact, the matter had engaged the attention of

the 1st Appellant (govt) and it took a decision

dated 24.02.2000 therein. The decision of the

Government as extracted in the order of the

Tribunal reads as follows:-

“I am desired to invite a reference to the

Order Memo No. 106/OAT, dated 07.01.2000 of the

Hon’ble OAT, Bhubaneswar on the subject noted

above. It had been reported by the D.I. of Schools,

Bhadrak-II in his letter No. 388, dated 31.01.2000

with copy to you in Memo No. 389, dated 31.01.2000

that though one Minati Pradhan was selected and is

to be appointed, but the appointment order was

dispatched in the name of Minakhi Pradhan. Hence,

before taking steps to comply with the order of

the Tribunal to appoint Minati Pradhan, please

check the fact in the Office of D.I. of Schools,

Bhadrak-II to ascertain whether any other person

named Minakhi Pradhan has been appointed on the

basis of incorrectly addressed letter. If yes, the

applicant in the writ petition will join in her

place if not the junior most candidate will be

removed to let her join unless if Government

decides to permit the applicant to join in a post

subsequently fallen vacant.”

The Tribunal directed as already noted that if the

post had been filled up the District Inspector of

schools was to carry out the direction of the

Respondent No. 1 which we have extracted that is

dispense with the service of the candidate who had

been appointed in place of Respondent No. 2.

Interestingly, we may notice that the Government

had directed that the junior most candidate will

be removed in order to enable the Respondent No. 2

to join. The direction of the Tribunal has become

final.

14. While it may be true the Respondent No. 2 was

not a party to the O.A. in law nothing prevented

her from challenging the said order. It may not be

open to her to contend that as she was not a party,

the said order cannot be and should not be

implemented in letter and spirit. It is an order

passed by a Tribunal which had jurisdiction in the

matter. The finding that the Respondent No. 2 could

not join because of the letter of appointment being

issued in the wrong name cannot be open to

challenge. The Tribunal was therefore, setting

right an illegality and injustice caused to

Respondent No. 2. There is no dispute that there

were only 16 vacancies to be filled up of the

category of S.E.B.C. (Women). For complying with

the order of the Tribunal the Appellants had to

dispense with the service of the person appointed

in place of Respondent No. 2. Therefore, the only

question which survived for consideration is

whether it is the Respondent No. 1 who was

appointed in place of the Respondent No. 2.

15. It would appear to be clear that under the

resolution and procedure adopted, separate lists

were prepared for various categories. Vacancies

were earmarked for different groups. Merit list

was also based on this classification. The

Respondent No. 1 figured in the merit list at S.no.

22 for the category S.E.B.C. Women. The surest way

to find out whether the termination of service of

Respondent No. 1 was in tune with the direction

issued by the tribunal in the earlier O.A. filed

by the Respondent No. 2 is to find out as to whether

the Respondent No. 1 would have secured the

appointment, if the appointment letter was issued

in the name correctly of the Respondent No. 2 and

she had joined on the said basis. If the Respondent

No. 1 would not secure the appointment if the

Respondent No. 2 had so joined and in other words,

the appointment of the Respondent No. 1 was only

because of the non-joining of the Respondent No.2,

then it is the Respondent No. 1 who is the person

who was appointed in place of the Respondent No. 2

within the meaning of the order passed in O.A. No.

650 of 2000.

This is not a case involving disciplinary

proceedings against Respondent No. 1. No stigma is

attached to the Respondent No. 1. The whole

exercise was necessitated no doubt as a result of

a mistake committed by the Appellants in not

sending the appointment letter at the correct

address to Respondent No. 2. In view of the fact

that order O.A. No. 650 of 2000 had become final

the Appellants were obliged to comply with the

order. If they had nothing to offer by explanation

to the case of the Respondent No. 2 that she was

not served with the letter of appointment, the

Respondent No. 1 would not be justified in

contending that the Appellant should have

challenged the order of the Tribunal.

16. We find merit also in the contention of the

Appellants that having regard to the Resolution

under which the entire appointment were carried

out, the matter is to be governed by the separate

merit lists which were prepared. In the nature of

the facts which make up the dispute in this case,

it only means that the Respondent No. 1 was the

junior most in the category of S.E.B.C (Women).

The order of the Tribunal to be complied with

contemplated dispensing the service of the

candidate who was appointed in place of the

Respondent No. 2.

17. It may not be possible to find that any person

other than the Respondent No. 1 was the candidate

who was appointed in place of the Respondent No.

2. Both the Respondent No. 2 and the Respondent

No. 1 were considered for appointment from the

Category of S.E.B.C (Women) for which Category, 16

vacancies were earmarked. The merit list of SEBC

(female) (page 49) shows that the Respondent No. 2

with 117.46 marks was at the 16th position.

Snehalata Nayak is no doubt at Serial No. 31 of

SEBC (Women) list. But she is shown in the category

of P.H in the list of junior most of different

categories in letter dt. 22.11.2001 sent by the

Appellant No. 3. The person at Serial No.7

Jagatanand Panigrahi is shown P.H. has secured

lesser marks than Snehalata Nayak. It is not clear

how in the letter dt. 22.11.2001, persons at Serial

No. 7, and 8 are both mentioned under the category

as P.H. and as being the junior most candidates.

No doubt under the name of Snehalata Nayak, it is

shown S.no. 31 of SEBC Category. Does it mean that

Snehalata was appointed from SEBC but under the

category of physically handicapped? The office

order terminating the service of the Respondent

No.1 refers to the letter no. 7119 dated 16.03.2002

sent by the 2

nd Appellant Director. It is not

produced. However, what is clear is that the person

appointed in place of the Respondent No.2 was the

Respondent No. 1.

18. In such circumstances we cannot possibly hold

that other candidates who may have secured lesser

marks but who it must be noted were treated as

falling in different categories for which separate

list were prepared, should have been shown the door

to comply with the order of the Tribunal. The

Respondent No. 1 was considered under the SEBC

(Women) as being a woman, she could aspire with

the age relaxation.

19. We may incidentally notice that the Respondent

No. 1 has only a few months for attaining the age

of superannuation. It may be true that she has not

secured any alternative employment as stated in

her affidavit and also projected in the written

submissions. She has also not been able to work

based on the direction of the Tribunal or of the

High Court.

20. The decisions relied upon by the Respondent

No. 1 may not assist her.

As far as the decision in the Delhi Transport

Corporation (supra) is concerned, the Court was

dealing with constitutionality of the power under

the regulation to dispense with the service of a

permanent employee without holding any enquiry.

This Court took the view that dispensing with the

service of the permanent and confirmed employee by

merely issuing a notice without assigning reasons

could not be countenanced. The decision clearly

cannot apply in a situation where the Appellants

being under the legal obligation to implement the

order of the Tribunal dispensed with the services

of the employee in accordance with the directions.

The decisions in Hindustan Tin Works Pvt. Ltd.

(supra) and Surendra Kumar Verma (supra) relate to

Industrial Law and the effect of illegal

termination of a workman. An order which is passed

pursuant to a direction which is binding on the

employer cannot possibly be described as illegal.

Therefore, the said case law cannot advance the

case of the Respondent.

21. In Basudeo Tiwary (supra) the services of the

Appellant had been terminated. The Appellant was

appointed as a lecturer. The college was taken over

by the University. The services was terminated on

the basis that the appointment was not made

validly. One of the contentions taken was there

was violation of principles of natural justice.

Though reliance was undoubtedly placed on Section

35 (3) of the Bihar University Act, 1951, and the

same purported to provide that any appointment

interalia contrary to the act statutes rules or

regulation or in any regular or unauthorised manner

shall be terminated at any time without any notice,

we do notice para 12 of the said judgment: -

“The said provision provides that an appointment

could be terminated at any time without notice if

the same had been made contrary to the provisions

of the Act, statutes, rules or regulations or in

any irregular or unauthorised manner. The

condition precedent for exercise of this power is

that an appointment had been made contrary to Act,

Rules, Statutes and Regulations or otherwise. In

order to arrive at a conclusion that an appointment

is contrary to the provisions of the Act, statutes,

rules or regulations etc. a finding has to be

recorded and unless such a finding is recorded,

the termination cannot be made but to arrive at

such a conclusion necessarily an enquiry will have

to be made as to whether such appointment was

contrary to the provisions of the Act etc. If in a

given case such exercise is absent, the condition

precedent stands unfulfilled. To arrive at such a

finding necessarily enquiry will have to be held

and in holding such an enquiry the person whose

appointment is under enquiry will have to be issued

to him. If notice is not given to him then it is

like playing Hamlet without the Prince of Denmark,

that is, if the employee concerned whose rights

are affected, is not given notice of such a

proceeding and a conclusion is drawn in his

absence, such a conclusion would not be just, fair

or reasonable as noticed by this Court in D.T.C.

Mazdoor Sabha's case. In such an event, we have to

hold that in the provision there is an implied

requirement of hearing for the purpose of arriving

at a conclusion that an appointment had been made

contrary to the Act, statute, rule or regulation

eta and it is only on such a conclusion being

drawn, the services of the person could be

terminated without further notice. That is how

Section 35(3) in this case will have to be read.”

22. Finding that there was no notice issued to the

Appellant therein and further noticing that the

Appellant, had died during the pendency of the

proceedings it was to be deemed that the Appellant

had died in harness. He was allowed the benefit of

payment of arrears of salary from the date of

termination of the service till the date of his

death.

23. We may notice the decision would appear to the

distinguishable in terms of the facts in this case.

It is no doubt true that the Respondent No. 1 was

offered appointment and was appointed. However,

the Appellants suffered an order by a competent

Tribunal which it was duty bound to implement. We

would be remiss if we were to discard the

principles of natural justice as inapplicable. No

doubt there was no need to hold any enquiry as the

termination was not on disciplinary grounds. No

stigma is attached to Respondent No. 1. But a

notice given to the Respondent No. 1 as to why in

terms of the order of the Tribunal the Respondent

No. 1 should be treated as the person whose

services was to be dispensed with should have been

issued. However, we would think that on the

materials placed before the Court, with 16

vacancies alone earmarked for S.E.B.C (Women), and

the Respondent No. 2 being the 16th and the last of

the candidates entitled in the said Category, not

joining in the circumstances resulting in the

Respondent No. 1 being appointed and the order of

the Tribunal being binding on the Appellants, we

would think that in the present case, the failure

to afford an opportunity to the Respondent No.1 to

show cause as to why her services should not be

terminated cannot be held to be fatal. We also

cannot loose sight of the fact nearly two decades

have gone by and only for the reason that the

Respondent was not offered an opportunity of being

heard in the facts of this case, we cannot support

the order of the High Court in directing the

appointment of the Respondent No. 1. It is not as

if the High Court has found that the termination

of the service of the Respondent No. 1 was ab

initio void or illegal as such. The Court in fact

set aside the direction of the Tribunal to

reinstate by creating a supernumerary post. This

is not challenged by Respondent No. 1. It directed

only that the appointment of the Respondent No. 1

be made in the vacancy. Therefore, the claim of

Respondent No. 1 for back wages from the date of

termination is at any rate clearly untenable.

24. Deepali Gundu Surwase (supra), the matter

arose under the Maharashtra Employees of Private

Schools (condition of service) Regulation Act,

1977. This Court undoubtedly laid down that in the

case of wrongful termination of service

reinstatement with the continuity of service and

back wages is the normal rule. It was subject to

the qualification that the Court may interalia take

into consideration the length of service and the

nature of misconduct if any proved, the financial

condition of the employer and similar other

factors. For the reasons which we have indicated

in the facts of this case Respondent No. 1 cannot

be permitted to draw any benefit from the said

pronouncement.

The High Court rightly set aside the direction for

creation of the supernumerary post. We find that

there is no basis for the High Court to have

thereafter directed the appointment of the

Respondent No. 1 in any vacancy available.

25. The upshot of the above discussion is that the

termination of the service of the Respondent No. 1

was unavoidable in the light of the binding order

of the Tribunal in O.A. No. 650 of 2000.

Consequently, the order of the High Court to the

extent impugned is to be set aside. Resultantly,

we allow the appeal and the order of the High Court

impugned is set aside and the order passed in the

O.A. no. 917 of 2002 filed by the Respondent No. 1

will stand set aside.

26. No order as to costs in the appeal. We make it

clear that if the cost of Rs. 50,000 ordered as

condition to condone delay in filing the SLP is

not paid as aforesaid the impugned judgment will

stand, the application for condoning delay will

stand dismissed and the leave granted will stand

revoked and this judgment will stand recalled. If

the cost is deposited, the same can be withdrawn

by the Respondent No. 1.

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

(UDAY UMESH LALIT)

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

(K.M. JOSEPH)

New Delhi,

April 28, 2021.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Sunday, May 2, 2021

The omissions like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by itself, is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution, whose say is consistent, natural and trustworthy.