LAW FOR ALL

Friday, March 27, 2015

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)

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

Thus, the principle "no work no pay" as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors[6]., wherein this Court has held thus: "32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which [pic]we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P." (emphasis laid down by this Court) Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order. Accordingly, the appeal is dismissed with modification regarding back wages as mentioned in the preceding paragraphs. The order dated 11.12.2006 granting stay shall stand vacated. No costs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2381 OF 2007

STATE OF U.P .........APPELLANT

Vs.

CHARAN SINGH .........RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J.

This appeal has been filed against the impugned judgment and final order
dated 18.07.2006, passed by the High Court of Judicature at Allahabad, in
Civil Misc. Writ Petition No. 2588 of 1998, whereby the High Court has
upheld and modified the Award passed by the Industrial Tribunal dated
24.02.1997 in Adjudication Case No.139 of 1992.
The factual matrix and the rival legal contentions urged on behalf of the
parties are briefly stated hereunder with a view to find out whether the
impugned judgment and order of the High Court warrants interference by this
Court in exercise of its appellate jurisdiction.
The respondent was appointed as a temporary Tube-well Operator w.e.f.
06.03.1974 by the Assistant Director of Fisheries Department, Meerut (U.P).
His services were terminated vide letter dated 22.08.1975 stating thereby
that he was a temporary employee and that his services were no longer
required by the Department. He was given one month's wages in lieu of the
notice. On 01.05.1976, the respondent filed a petition before the
Conciliation Officer, Meerut, stating therein that the respondent's
employment has been wrongfully terminated by the appellant as he is a
permanent employee of the Fisheries Department and the provisions under
Section 6-N of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter
referred to as "the Act"), which are mandatory in nature, have not been
complied with and as such, the termination of the services of the
respondent by the appellant is illegal. The matter was transferred from the
Conciliation Officer to the Labour Commissioner, Kanpur for adjudication.
The respondent made several representations before various high offices and
courts including this Court wherein, the same was forwarded to the
Secretary, U.P. State Legal Aid and Advisory Board on 09.09.1986 to take
necessary action in this regard, which instead directed the respondent to
contact the Sabhapati, District Judge, District Law Assistance and
Consultant, Civil Court premises, Meerut for consultation.
Thereafter, the respondent moved an application before the State Government
for the reference of the industrial dispute under the provisions of Section
4-K of the Act and the State Government vide notification no.14499-502 MRIR
OP 395/91, dated 24.10.1992 referred the dispute to the Industrial
Tribunal, Meerut, thereby framing the following questions for its
determination:
Whether the services of the workman has been illegally terminated, and
Whether there is any violation of Section 6-N of the Act?

The Industrial Tribunal after considering the evidence on record and the
rival legal contentions of both the parties has answered the questions
referred to it, in favour of the respondent, stating thereby that the
termination of the services of the workman was illegal and was liable to be
set aside. The Industrial Tribunal directed the appellant to reinstate the
respondent on any post equivalent to the post of Tube-well Operator. The
Industrial Tribunal passed an Award for the reinstatement of the workman
w.e.f. 24.02.1997. However, the workman was not granted any back wages.
In Pursuance of the Award passed by the Industrial Tribunal, the appellant
offered a letter of appointment to the respondent workman vide its order
dated 03.05.1999 to the post of fisherman in the pay-scale of 2610-60-3150-
65-3400/-. However, the respondent workman did not join his duties to the
said post even after repeated reminders from the appellant. The appellant
thereafter, filed a Misc. Writ Petition before the High Court contending
that the respondent workman has been reinstated on the post of "Machhuwa",
which they claimed was equivalent to the post of Tube-well Operator. Since
the respondent workman did not respond to several letters of the appellant
which was calling him back for work, he is not entitled to any wages for
the period 24.02.1997 to 31.01.2005 on the principle "no work no pay". The
High Court however, rejected the contention of the appellant and held that
the State Government had kept the workman out of job for many years and
therefore, the State Government is liable to pay the entire amount due to
the workman for the above mentioned period.
Aggrieved by the said impugned judgment and order, the present appeal is
filed by the appellant with a prayer to set aside the same and requested
this Court to pass such order as this Court may deem fit and proper in the
facts and circumstances of the case by urging various facts and legal
contentions.
It has been contended by Mr. Gaurav Bhatia, the learned Additional Advocate
General (AAG) on behalf of the appellant that the High Court has
erroneously disposed of the writ petition in view of the fact that as per
the order dated 03.05.1999 passed by the office of the Deputy Director of
Fisheries, Meerut, the respondent was given appointment to the post of
fisherman (Machhua) in the pay-scale of 2610-60-3150-65-3400/-, which is
equivalent to the post of Tube-well Operator. He has further contended that
the post held by the respondent as a Tube-well Operator was temporary and
was not a sanctioned post as he was assigned the same as per the
availability of work in the Department. Even after his appointment for the
post of fisherman, as per the above said order, the respondent did not take
charge of the aforesaid post stating that it is not equivalent to the post
of a Tube-well Operator, in spite of several letters and reminders sent by
the appellant to him in pursuance of the Award passed by the Industrial
Tribunal.
It has been further contended by the learned AAG for the appellant that the
Department of Fisheries does not come under the definition of "Industry" as
defined under Section 2(k) of the Act, as has been decided by this Court in
the cases of State of U.P. and Ors. v. Arun kumar Singh[1] and Bombay
Telephone Canteen Employees Association, Prabhadevi Tel. Exchange v. U.O.I
& Anr.[2].
It has been further contended by the learned AAG that the respondent has
not contributed in his services to the post of fisherman and therefore, as
per the "no work no pay" principle, as held by this Court in a catena of
cases, the respondent is not entitled to any monetary benefits under
Section 6-H of the Act for the period 24.02.1997 to 31.01.2005 as awarded
by the High Court. Thus, the findings of both the courts below are
erroneous and suffer from error in law and therefore, the same cannot be
allowed to be sustained by this Court.

On the other hand, it has been contended by Mr. G.V.Rao, the learned
counsel on behalf of the respondent that the termination of the services of
the respondent is bad in law as his services have been illegally terminated
on the ground that he is a temporary employee. He has further contended
that the services provided by the appellant is fully covered within the
ambit of the Act and the termination of the services of the respondent-
workman from his services amounts to retrenchment and since he has worked
for more than 240 days in one calendar year, he is entitled to the benefits
as provided under the provision of Section 6-N of the Act. Since, the
appellant has not complied with the provisions of the Act, as such, the
termination order of the respondent dated 22.8.1975 is liable to be quashed
and he is entitled for reinstatement with back wages, as the post of a
fisherman is not equivalent to the post of Tube-well Operator.
We have heard both the parties. On the basis of the aforesaid rival legal
contentions urged on behalf of the parties and the evidence on record, we
have come to the conclusion that the High Court has rightly held that the
State is liable to pay the entire amount due to the workman for the period
24.2.1997 to 31.1.2005, as the State has kept the workman out of job for
many years arbitrarily and unreasonably despite the Award of reinstatement
of the respondent on an equivalent post which was passed by the Industrial
Tribunal. Thus, not reporting for the duty of fisherman offered to him by
the appellant cannot be said to be unjustified on the part of the
respondent. In support of the above said conclusions arrived at by us, we
record our reasons hereunder:-
It has already been rightly held by the Industrial Tribunal that the
Department of Fisheries is covered under the definition of "Industry" as
defined under Section 2(k) of the Act and also in accordance with the
statement of R.W.1 and E.W.1, Shri. R.B.Mathur, on behalf of the appellant
before the Industrial Tribunal, because the object of the establishment of
the appellant-department is fulfilled by engaging employees and that the
department is run on a regular basis. Thus, the matter of termination of
the services of the workman of the said department can be legally
adjudicated by the Industrial Tribunal as the matter is covered under the
provisions of the Act read with the Second Schedule in Entry No.10. Thus,
it has been rightly held by the courts below that the dispute raised by the
workman in relation to the termination of his services by the appellant is
an industrial dispute.
Further, it is a well established fact that the respondent-workman has
continuously worked for 240 days in a calendar year and the Industrial
Tribunal has rightly recorded the finding of fact on the basis of pleadings
and evidence on record holding that the work which was being done by the
respondent-workman still continues to exist in the establishment of the
appellant, which fact has been admitted by the respondent as well as the
witnesses of the employer before the Industrial Tribunal. Further, Shri.
R.B.Mathur has clearly deposed before the Industrial Tribunal that the work
of Tube-well Operator has now been taken over by other workmen, such as
"Machhuwa" and that some Tube-well Operators were appointed on other posts
as well. Thus, in view of the statements made above by him, it is amply
clear that the required conditions under the provisions of Sections 6-N and
6-W of the Act were not complied with by the appellant and the only
contention of the appellant-department is that one month's salary was paid
to the workman concerned treating him to be a temporary employee. This
contention of the learned AAG on behalf of the appellant, however, is not
sustainable in law and the same has rendered the order of termination of
the services of the respondent-workman illegal and therefore, both the
courts below have rightly set aside the same and passed an Award of
reinstatement and back wages, respectively. However, not awarding back
wages to the respondent by the Industrial Tribunal and awarding of the same
by the High Court for the period between 24.2.1997 to 31.1.2005 only, has
been done without assigning any cogent reason even though he is gainfully
employed and lawfully entitled for the same from the date of termination
from his services, i.e. 22.08.1975, which cannot be said to be valid in
law. Therefore, the judgment and Award passed by the courts below with
regard to his reinstatement on a post equivalent to the post of Tube-well
Operator and denial of payment of back wages from the date of his
termination, i.e. 22.08.1975 is wholly untenable in law as the same is
contrary to the well established principles of law and the same is required
to be modified by awarding back wages.
The learned AAG has further contended that the termination of the services
of the workman was made in view of the Government order dated 30.07.1975,
by which the post of the Tube-well Operator was abolished and the
termination letter was served on the respondent-workman as he was a
temporary employee. However, these reasons were not stated in his
termination letter dated 22.08.1975 by the appellant and instead, it was
mentioned that his services were no longer required which tantamount to
retrenchment of the respondent as defined under Section 2(s) of the Act.
Thus, the contention of the appellant cannot be accepted by us in this
regard, in view of the untenable reason stated in the letter of termination
of the services of the respondent-workman. Further, the Government order
dated 30.07.1975, clearly stated that in place of Tube-well Operator, the
post of Nalkoop Mechanic, class IV employee, was being created that would
carry out the work of the Tube-well Operator. Hence, the post of the Tube-
well Operator was not abolished but only the name of the post was changed,
as rightly held by the Industrial Tribunal.
Therefore, in view of the above stated facts and also on a perusal of the
reasons given by the Industrial Tribunal in its Award on the contentious
point, the contention urged on behalf of the appellant that the termination
of the services of the workman was done in accordance with above mentioned
Government order cannot be accepted by us as the same is erroneous in law.
The fact that the persons junior to him as well as his contemporaries are
still working for the appellant-department, shows that the termination of
the services of the respondent has been done in an unreasonable and unfair
manner.
Now, coming to the question of the entitlement of back wages to the
respondent workman, the same is answered in the positive, in view of the
fact that the workman had refused to accept the new job as fisherman which
was offered to him pursuant to the Award passed by the Industrial Tribunal
on the ground that the said post is not equivalent to the post of the Tube-
well Operator. Even though the appellant had agreed to comply with the
terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and
had offered reinstatement to him, it is well within the right of the
workman to refuse the new job offered to him and the same cannot be said to
be unjustified or erroneous on the part of the respondent-workman.
In the present case, there has been an absence of cogent evidence adduced
on record by the appellant to justify the termination of the services of
the respondent-workman, who has been aggrieved by the non-awarding of back
wages from the date of termination till the date of passing the Award by
the Industrial Tribunal. There is no justification for the Industrial
Tribunal to deny the back wages for the said period without assigning any
cogent and valid reasons. Therefore, the denial of back wages to the
respondent even though the Industrial Tribunal has recorded its finding on
the contentious question no.1 in the affirmative in his favour and in the
absence of evidence of gainful employment of the respondent during the
relevant period, amounts to arbitrary exercise of power by the Industrial
Tribunal for no fault of the respondent and the same is contrary to law as
laid down by this Court in a catena of cases. Hence, it is a fit case for
this Court to exercise its power under Order XLI Rule 33 of the Civil
Procedure Code, 1908, to award back wages to the respondent, even though
the respondent has not filed a separate writ petition questioning that
portion of the Award wherein no back wages were awarded to him by the
Courts below for the relevant period. The respondent has got a right to
place reliance upon the said provision of the Civil Procedure Code, 1908
and show to this Court that the findings recorded by both the Courts below
in denying back wages for the relevant period of time in the impugned
judgment and Award is bad in law as the same is not only erroneous but also
error in law. Therefore, in accordance with the power exercised by this
Court under Order XLI Rule 33 of this Civil Procedure Code, 1908 and in the
light of the judgment of this Court in Delhi Electric Supply Undertaking v.
Basanti Devi and Anr[3]., we hold that the State Government is liable to
pay 50% of the back wages to the respondent from the date of his
termination order dated 22.08.1975 till the date of the Award passed by the
Industrial Tribunal, i.e. 24.02.1997. The relevant paragraphs of the above
referred judgment reads thus:
"17. In our approach we can also draw strength from the provisions of Rule
33 of Order 41 of the Code of Civil Procedure which is as under:
"33. Power of Court of Appeal.-The appellate court shall have power to pass
any decree and make any order which ought to have been passed or made and
to pass or make such further or other decree or order as the case may
require, and this power may be exercised by the court notwithstanding that
the appeal is a part only of the decree and may be exercised in favour of
all or any of the respondents or parties, although such respondents or
parties may not have filed any appeal or objection and may, where there
have been decrees in cross-suits or where two or more decrees are passed in
one suit, be exercised in respect of all or any of the decrees, although an
appeal may not have been filed against such decrees:
Provided that the appellate court shall not make any order under Section 35-
A, in pursuance of any objection on which the court from whose decree the
appeal is preferred has omitted or refused to make such order."
18. This provision was explained by this Court in Mahant Dhangir v. Madan
Mohan in the following words:
"The sweep of the power under Rule 33 is wide enough to determine any
question not only between the appellant and respondent, but also between
respondent and co-respondents. The appellate court could pass any decree or
order which ought to have been passed in the circumstances of the case. The
appellate court could also pass such other decree or order as the case may
require. The words 'as the case may require' used in Rule 33 of Order 41
have been put in wide terms to enable the appellate court to pass any order
or decree to meet the ends of justice. What then should be the constraint?
We do not find many. We are not giving any liberal interpretation. The rule
itself is liberal enough. The only constraint that we could see, may be
these: That the parties [pic]before the lower court should be there before
the appellate court. The question raised must properly arise out of the
judgment of the lower court. If these two requirements are there, the
appellate court could consider any objection against any part of the
judgment or decree of the lower court. It may be urged by any party to the
appeal. It is true that the power of the appellate court under Rule 33 is
discretionary. But it is a proper exercise of judicial discretion to
determine all questions urged in order to render complete justice between
the parties. The court should not refuse to exercise that discretion on
mere technicalities."

Further, the learned counsel for the respondent, in support of his legal
submissions with regard to back wages has rightly placed reliance on the
decision of Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya[4], wherein this Court has held thus:
"22. The very idea of restoring an employee to the position which he held
before dismissal or removal or termination of service implies that the
employee will be put in the same position in which he would have been but
for the illegal action taken by the employer. The injury suffered by a
person, who is dismissed or removed or is otherwise terminated from service
cannot easily be measured in terms of money. With the passing of an order
which has the effect of severing the employer-employee relationship, the
latter's source of income gets dried up. Not only the employee concerned,
but his entire family suffers grave adversities. They are deprived of the
source of sustenance. The children are deprived of nutritious food and all
opportunities of education and advancement in life. At times, the family
has to borrow from the relatives and other acquaintance to avoid
starvation. These sufferings continue till the competent adjudicatory forum
decides on the legality of the action taken by the employer. The
reinstatement of such an employee, which is preceded by a finding of the
competent judicial/quasi-judicial body or court that the action taken by
the employer is ultra vires the relevant statutory provisions or the
principles of natural justice, entitles the employee to claim full back
wages. If the employer wants to deny back wages to the employee or contest
his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during the intervening period the
employee was gainfully employed and was getting the same emoluments. The
denial of back wages to an employee, who has suffered due to an illegal act
of the employer would amount to indirectly punishing the employee concerned
and rewarding the employer by relieving him of the obligation to pay back
wages including the emoluments."
(emphasis laid down by this Court)

He has further placed reliance on the decision of Bhuvnesh Kumar Dwivedi v.
Hindalco Industries Ltd.[5], wherein this Court has held thus:
"36. On the issue of back wages to be awarded in favour of the appellant,
it has been held by this Court in Shiv Nandan Mahto v. State of Bihar that
if [pic]a workman is kept out of service due to the fault or mistake of the
establishment/company he was working in, then the workman is entitled to
full back wages for the period he was illegally kept out of service. The
relevant paragraph of the judgment reads as under:
"8. ... In fact, a perusal of the aforesaid short order passed by the
Division Bench would clearly show that the High Court had not even
acquainted itself with the fact that the appellant was kept out of service
due to a mistake. He was not kept out of service on account of suspension,
as wrongly recorded by the High Court. The conclusion is, therefore,
obvious that the appellant could not have been denied the benefit of back
wages on the ground that he had not worked for the period when he was
illegally kept out of service. In our opinion, the appellant was entitled
to be paid full back wages for the period he was kept out of service."
37. Further, in Haryana Roadways v. Rudhan Singh, the three-Judge Bench of
this Court considered the question whether back wages should be awarded to
the workman in each and every case of illegal retrenchment. The relevant
paragraph reads as under:
"8. There is no rule of thumb that in every case where the Industrial
Tribunal gives a finding that the termination of service was in violation
of Section 25-F of the Act, entire back wages should be awarded. A host of
factors like the manner and method of selection and appointment i.e.
whether after proper advertisement of the vacancy or inviting applications
from the employment exchange, nature of appointment, namely, whether ad
hoc, short term, daily wage, temporary or permanent in character, any
special qualification required for the job and the like should be weighed
and balanced in taking a decision regarding award of back wages. One of the
important factors, which has to be taken into consideration, is the length
of service, which the workman had rendered with the employer. If the
workman has rendered a considerable period of service and his services are
wrongfully terminated, he may be awarded full or partial back wages keeping
in view the fact that at his age and the qualification possessed by him he
may not be in a position to get another employment. However, where the
total length of service rendered by a workman is very small, the award of
back wages for the complete period i.e. from the date of termination till
the date of the award, which our experience shows is often quite large,
would be wholly inappropriate. Another important factor, which requires to
be taken into consideration is the nature of employment. A regular service
of permanent character cannot be compared to short or intermittent daily-
wage employment though it may be for 240 days in a calendar year.""

Thus, in view of the cases referred to supra, there was absolutely no
justification on the part of the Industrial Tribunal to deny back wages to
the respondent even when it is found that the order of termination is void
ab initio in law for non-compliance of the mandatory provisions under
Section 6-N of the Act. Keeping in view the fact that the period of
termination was in the year 1975 and the matter has been unnecessarily
litigated by the employer by contesting the matter before the Industrial
Tribunal as well as the High Court and this Court for more than 40 years,
and further, even after the Award/order of reinstatement was passed by the
Industrial Tribunal directing the employer to give him the post equivalent
to the post of Tube-well Operator, the same has been denied to him by
offering the said post which is not equivalent to the post of Tube-well
Operator and thereby, attributing the fault on the respondent for non
reporting to the post offered to him, which is once again unjustified on
the part of the employer.
Thus, the principle "no work no pay" as observed by this Court in the
catena of cases does not have any significance to the fact situation of the
present case as the termination of the services of the workman from the
post of Tube-well Operator is erroneous in law in the first place, as held
by us in view of the above stated reasons.
The respondent and his family members have been suffering for more than
four decades as the source of their livelihood has been arbitrarily
deprived by the appellant. Thereby, the Right to Liberty and Livelihood
guaranteed under Articles 19 and 21 of the Constitution of India have been
denied to the respondent by the appellant as held in the case of Olga
Tellis and Ors. v. Bombay Municipal Corporation and Ors[6]., wherein this
Court has held thus:
"32. As we have stated while summing up the petitioners' case, the main
plank of their argument is that the right to life which is guaranteed by
Article 21 includes the right to livelihood and since, they will be
deprived of their livelihood if they are evicted from their slum and
pavement dwellings, their eviction is tantamount to deprivation of their
life and is hence unconstitutional. For purposes of argument, we will
assume the factual correctness of the premise that if the petitioners are
evicted from their dwellings, they will be deprived of their livelihood.
Upon that assumption, the question which [pic]we have to consider is
whether the right to life includes the right to livelihood. We see only one
answer to that question, namely, that it does. The sweep of the right to
life conferred by Article 21 is wide and far-reaching. It does not mean
merely that life cannot be extinguished or taken away as, for example, by
the imposition and execution of the death sentence, except according to
procedure established by law. That is but one aspect of the right to life.
An equally important facet of that right is the right to livelihood
because, no person can live without the means of living, that is, the means
of livelihood. If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a person of his
right to life would be to deprive him of his means of livelihood to the
point of abrogation. Such deprivation would not only denude the life of its
effective content and meaningfulness but it would make life impossible to
live. And yet, such deprivation would not have to be in accordance with the
procedure established by law, if the right to livelihood is not regarded as
a part of the right to life. That, which alone makes it possible to live,
leave aside what makes life livable, must be deemed to be an integral
component of the right to life. Deprive a person of his right to livelihood
and you shall have deprived him of his life. Indeed, that explains the
massive migration of the rural population to big cities. They migrate
because they have no means of livelihood in the villages. The motive force
which propels their desertion of their hearths and homes in the village is
the struggle for survival, that is, the struggle for life. So unimpeachable
is the evidence of the nexus between life and the means of livelihood. They
have to eat to live: only a handful can afford the luxury of living to eat.
That they can do, namely, eat, only if they have the means of livelihood.
That is the context in which it was said by Douglas, J. in Baksey that the
right to work is the most precious liberty that man possesses. It is the
most precious liberty because, it sustains and enables a man to live and
the right to life is a precious freedom. "Life", as observed by Field, J.
in Munn v. Illinois means something more than mere animal existence and the
inhibition against the deprivation of life extends to all those limits and
faculties by which life is enjoyed. This observation was quoted with
approval by this Court in Kharak Singh v. State of U.P."
(emphasis laid down by this Court)

Therefore, with respect to the judicial decisions of this Court referred to
supra, we hold that the appellant is liable to pay 50% back wages in favour
of the respondent from the date of the termination order dated 22.08.1975
till the date of the Award passed by the Industrial Tribunal, i.e.
24.02.1997.
In so far as the awarding of full back wages to the respondent by the High
Court in its judgment and order dated 18.07.2006 for the period 24.02.1997
to 31.01.2005 is concerned, we retain the same. The appellant is further
directed to pay full back wages to the respondent after computing the same
on the basis of the revised pay-scale and pay him all other monetary
benefits as well. The aforesaid direction shall be complied with by the
appellant within four weeks from the date of receipt of the copy of this
order.
Accordingly, the appeal is dismissed with modification regarding back wages
as mentioned in the preceding paragraphs. The order dated 11.12.2006
granting stay shall stand vacated. No costs.

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

[V. GOPALA GOWDA]

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

[R.BANUMATHI]
New Delhi,
March 26, 2015
ITEM NO.1A-For Judgment COURT NO.9 SECTION XV

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

Civil Appeal No(s). 2381/2007

STATE OF U.P Appellant(s)

VERSUS

CHARAN SINGH Respondent(s)

Date : 26/03/2015 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s) Mr. Gaurav Bhatia, AAG
Mr. Gaurav Srivastava, Adv.
Mr. Utkarsh Jaiswal, Adv.
Ms. Pragati Neekhra,Adv.

For Respondent(s)
Mr. Devendra Singh,Adv.

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mrs. Justice R. Banumathi.
The appeal is 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] (1995) Supp (4) SCC 241
[3]
[4] (1997) 6 SCC 723
[5]
[6] (1999) 8 SCC 229
[7]
[8] (2013) 10 SCC 324
[9]
[10] (2014) 11 SCC 85
[11]
[12](1985)3 SCC 545

Thursday, March 26, 2015

As can be seen from the complaint the allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 of the Indian Penal Code as also Section 628 of the Companies Act. It is, therefore, clear that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act. Thus the trial could certainly continue against those accused under the IPC. 9. The High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 of Indian Penal Code and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act. 10. We accordingly set aside the findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused. At this stage, it may be noted that the Special Court is empowered to try the offences under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, The Income-tax Act, 1961, The Wealth-tax Act, 1957 etc., which reads as follows:- "even if such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the same transaction." [vide Notification reproduced in Criminal Petition No. 5846 of 2014 The Superintendent Of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported in 2014 (310) ELT49(A.P.)] 11. Thus, even if a number of persons are accused of offences under a special enactment such as 'the Companies Act and as also the IPC' in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings. We make this observation because at some stage in the hearing learned counsels addressed us on this point. We make it clear that in the present case all the accused are liable to be tried by the special court in respect of the offences under the IPC as well as the Companies Act as alleged in the complaint. 12. Appeals are allowed in above terms.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 516-518 OF 2010

S. SATYANARAYANA .... APPELLANT

VERSUS

ENERGO MASCH POWER ENGINEERING &
CONSULTING PVT. LTD. & ORS. .... RESPONDENTS

1 JUDGMENT

S. A. BOBDE, J.

These Criminal Appeals are preferred by the complainant against
the Judgment of the High Court of Judicature of Andhra Pradesh at Hyderabad
by which the High Court has in exercise of powers under Section 482 of the
Code of Criminal Procedure (in short Cr.P.C.) quashed the proceedings in CC
No. 37 of 2008 on the file of the court of the Special Judge for Economic
Offences at Hyderabad insofar as the accused Nos. A4, A5, A6, A9 and A10
are concerned.

2. The complainant i.e. the appellant herein lodged a private
complaint in his capacity as a Promoter Director of Sri Satyanarayana Power
Private Ltd. - a company incorporated to generate biomass based power
project in the District of Warangal in the State of Andhra Pradesh
(hereinafter referred to as the 'Company'). The complaint was filed in
respect of the offences allegedly committed under Section 628 of the
Companies Act, 1956 (in short the 'Companies Act') and Sections 120B and
420 of the Indian Penal Code (in short the 'IPC'). This complaint was
filed in the Court of Special Judge for Economic Offences at Hyderabad.

3. The accused Nos. 1, 2 and 3 are Directors of the Company. The
accused no. 4 i.e. Energo Masch Power Engineering & Consulting Pvt. Ltd. is
another Company. The accused Nos. 5, 6, 7 & 8 are its Directors. Accused
No. 9 is the Manager of M/s Indian Renewable Energy Development Agency (in
short 'IREDA') a financing agency and is brother-in-law of A5 and A6, and
accused No. 10 is a private person, namely Mrs. Sudha Ramani who is said to
have been given a fictitious authorization in respect of a Bank account by
a resolution of the company.

4. In brief, it was alleged that the accused entered into a
criminal conspiracy to cheat the complainant and the Company. Further,
accused A1 to A3 made false declaration in regard to record maintained
under the provisions of the Companies Act, and filed a false declaration
purporting to be an extract of Board Resolution of the Company before
Andhra Bank, Sowcarpet Branch, Chennai in order to open a bank account.
According to the complainant the signatory to the Board Resolution was not
even a Director in the Company on the date the bank account was opened. A
series of events alleged in the complaint show how the complainant was
induced to invest in the Company by acquiring land for the Company at a
cost of Rs. 20 lakhs and make payment for the front end fee to IREDA which
had in collusion with the other accused sanctioned the financial assistance
to the Company to the extent of Rs. 11.50 crores subject to the condition
that the promoters should invest Rs. 4.98 crores as their contribution
towards the total project cost of Rs. 16.48 crores.

5. According to the complainant, accused A9 - the Manager of
IREDA, suggested that the company should appoint A4 Company as a contractor
representing that the Directors of the said A4 Company i.e. A5 and A6 in
reality his brother-in-law, have wide experience in executing such
projects. The complainant believed that representation and allowed those
persons and others to become Director as a result of which A1 along with
his nominee Directors enjoyed a majority on the Board of the Company.
Thereafter, in order to obtain the first installment of loan the accused
represented that they have spent an amount of Rs. 1,88,21,484/-, to the
accused A4 Company as if the amount was invested from the Company's account
maintained in Andhra Bank, Sowcarpet Branch. On such a representation, A9
IREDA released the first installment of loan. The accused again induced A9
to release the second installment of loan of Rs. 2.85 crores without the
knowledge of the complainant and without submitting any Board Resolution of
the Company. A major amount of the loan was paid to the accused A4
Company, which had not done any substantial work. Though Rs. 145 lakhs
from the first installment of loan and Rs. 92 lakhs from the second
installment of loan were paid to the A4 Company only a nominal amount of
Rs. 30 lakhs was used for work and the rest was swindled. As a part of
these transactions the complainant alleged that A1 to A3 had made a false
declaration as records in a purported Board Resolution of the Company in
order to open a bank account and falsely authorised A10 and thereby made a
false declaration amounting to an offence under Section 628 of the
Companies Act. Thus, A10 was falsely authorized to operate the bank
account.

6. It will thus be seen from the above that according to the
complainant the transactions of all the accused persons in conspiracy with
each other amounted to offences under Sections 120B and 420 of the IPC and
Section 628 of the Companies Act.

7. Against the complaint, the following accused-namely A4 Company;
its Directors A5 and A6; A9 the manager of the IREDA; and A10 the private
person approached the High Court under Section 482 of the Cr.P.C.. The
High Court took the view that the Special Judge could not have taken
cognizance of the offences under Sections 120B and 420 of the IPC unless he
could also try the accused under Section 621 of the Companies Act. As
regards the accused Company A4 and its Directors A5 and A6, the High Court
held that no cognizance could be taken against the said accused because the
complainant did not belong to any of the categories or persons who were
entitled to file a complaint under Section 621 of the Companies Act[1] i.e.
to say the complainant was neither (a) the Registrar, (b) a shareholder of
the company, or (c) a person authorized in that behalf. Thus, the High
Court held that taking of cognizance by the Special Court in so far as
accused nos. A4, A5 and A6 is without jurisdiction. This finding is sought
to be supported by the provisions of Section 621(1) of the Companies Act.
However, without giving any special reasons as regards accused Nos. A9 and
A10 the High Court quashed the taking of cognizance. In fact A9 is the
manager of IREDA a financing agency and A10 is a private person and are
prima facie not a company or officers of a Company vide Section 621. The
High Court has not committed any error in reading Section 621 of the
Companies Act and observing an accused cannot be prosecuted under Section
621 of the Companies Act because the complainant is not a share holder in
the accused Company. However, it is obvious from the complaint that there
was no allegation that the accused Nos. A4, A5, A6 and A9 have committed an
offence under Section 628 of the Companies Act. Such an allegation of
commission of an offence under Section 628 of the Companies Act was only
against the accused A10 (vide para 19 and 20 of the complaint). It may be
recalled that the allegation as regards Section 628[2] of the Companies Act
is said to have been committed by the accused A1 to A3 by making a false
declaration with regard to the record that is maintained in accordance with
Section 193 of the Companies Act by filing an extract of the Board
resolution of the company before the Andhra Bank, Sowcarpet Branch, Chennai
in order to open a bank account 'the said Board resolution being a false
declaration,' since a bank account in the said bank was already opened even
before A1 had obtained consent of the complainant to open the said account
and further since the said Board resolution is signed by Hari Sesha Reddy -
A3 who was not even a Director in the company as on the date of the opening
of the bank account. The offence alleged against A10 was that she had
drawn huge amounts through self cheques in the capacity of the authorized
signatory of the company. It is surprising to see that the High Court has
quashed the complaint against the accused persons on the ground of legal
defects though no allegation containing such defects were made against the
said accused persons.

8. As can be seen from the complaint the allegations are that the
accused conspired with each other to cheat the complainant and a series of
transactions gave rise to offence under Section 120B read with Section 420
of the Indian Penal Code as also Section 628 of the Companies Act. It is,
therefore, clear that if the Special Court has jurisdiction to try offences
under both the aforesaid Acts then the trial can certainly continue in
respect of the offences which do not require the complainant to belong to
the categories specified under Section 621 of the Companies Act. Thus the
trial could certainly continue against those accused under the IPC.

9. The High Court completely overlooked the fact that the
complaint made allegations against the accused A4, A5, A6, A9 and A10 only
in respect of Section 120B and 420 of Indian Penal Code and there was no
reason in law to quash a complaint against them on the ground that they
were immune from prosecution under Section 628 of the Companies Act by
virtue of Section 621 of that Act.

10. We accordingly set aside the findings of the High Court that
taking of cognizance against the accused A4, A5, A6 and A9 is without
jurisdiction on the ground that the complaint does not make out a prima
facie case for the offences under Section 628 of the Companies Act, 1956
against the said accused. At this stage, it may be noted that the Special
Court is empowered to try the offences under the Companies Act alongwith
other Acts by virtue of a notification issued by the erstwhile Government
of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try
offences under specified enactments such as The Companies Act, 1956, The
Income-tax Act, 1961, The Wealth-tax Act, 1957 etc., which reads as
follows:-

"even if such cases include offences punishable under the Indian Penal
Code, 1860 and any other enactments, if such offences form part of the same
transaction."

[vide Notification reproduced in Criminal Petition No. 5846 of 2014 The
Superintendent Of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported
in 2014 (310) ELT49(A.P.)]

11. Thus, even if a number of persons are accused of offences under
a special enactment such as 'the Companies Act and as also the IPC' in
respect of the same transaction or facts and even if some could not be
tried under the special enactment, it is the special court alone which
would have jurisdiction to try all the offences based on the same
transaction to avoid multiplicity of proceedings. We make this observation
because at some stage in the hearing learned counsels addressed us on this
point. We make it clear that in the present case all the accused are
liable to be tried by the special court in respect of the offences under
the IPC as well as the Companies Act as alleged in the complaint.

12. Appeals are allowed in above terms.

....................................................J.
[JAGDISH SINGH KHEHAR]

...............................................J.
[S.A. BOBDE]
NEW DELHI,
MARCH 26, 2015

ITEM NO.101 COURT NO.4 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). 516-518/2010

S. SATYANARAYANA Appellant(s)

VERSUS

ENERGO MASCH POWER ENGG.&CONST.P.L.&ORS. Respondent(s)

(for directions)

Date : 26/03/2015 These appeals were called on for hearing
today.

CORAM :

HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR

HON'BLE MR. JUSTICE S.A. BOBDE

For Appellant(s) Mr. Vikas Singh, Sr. Adv.

Mr. Vivek Singh

Ms. Deepika Kalia, Adv.

Mr. Kapish Seth, Adv.

for Mr. Lakshmi Raman Singh,AOR

For Respondent(s)Mr. Suresh Babu, Adv.

Mr. Ravi Kumar Tomar,AOR

Mr. V.Senthil Kumar, Adv.

Mr. K. Muthu, Adv.

Mr. M. A. Chinnasamy,Adv.

Mr. V. N. Raghupathy,Adv.(NP)

UPON hearing the counsel the Court made the following

O R D E R

Heard learned counsel for the appearing parties.

Registry is directed to list the appeals today (26.03.2015) for
pronouncement of judgment at 2.00 p.m.

(Parveen Kr. Chawla) (Renu Diwan)

Court Master Court Master

ITEM NO.1D COURT NO.4 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). 516-518/2010

S. SATYANARAYANA Appellant(s)

VERSUS

ENERGO MASCH POWER ENGG.&CONST.P.L.&ORS. Respondent(s)

[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE, JJ.]

Date : 26/03/2015 These appeals were called on for judgment
today.

For Appellant(s) Mr. Vivek Singh

for Mr. Lakshmi Raman Singh,AOR

For Respondent(s)Mr. Ravi Kumar Tomar,AOR

Mr. M. A. Chinnasamy,AOR

Mr. V. N. Raghupathy,Adv.(NP)

Hon'ble Mr. Justice S.A. Bobde pronounced the judgment of the
Bench comprising Hon'ble Mr. Justice Jagdish Singh Khehar and His Lordship.

For the reasons recorded in the Reportable judgment, which is
placed on the file, the appeals are allowed.

(Parveen Kr. Chawla) (Renu Diwan)

Court Master Court Master

-----------------------
[1] "621. Offences against Act to be cognizable only on complaint by
Registrar, shareholder or Government-

(1) No court shall take cognizance of any offence against this Act
which is alleged to have been committed by any company or any officer
thereof, except on the complaint in writing of the Registrar, or of a
shareholder of the company, or of a person authorised by the Central
Government in that behalf:
Provided that nothing in this sub- section shall apply to a
prosecution by a company of any of its officers.
[Provided further that the Court may take cognizance of offence
relating to issue and transfer of securities and non-payment of dividend on
a complaint in writing by a person authorized by the Securities Exchange
Board of India].

(1A) Notwithstanding anything contained in the Code of Criminal
Procedure, 1898 , (5 of 1898) where the complainant under sub- section (1)
is the Registrar or a person authorised by the Central Government, the
personal attendance of the complainant before the Court trying the offence
shall not be necessary unless the Court for reasons to be recorded in
writing requires his personal attendance at the trial.]

(2) Sub- section (1) shall not apply to any action taken by the
liquidator of a company in respect of any offence alleged to have been
committed in respect of any of the matters included in Part VII (sections
425 to 560) or in any other provision of this Act relating to the winding
up of companies.

(3) A liquidator of a company shall not be deemed to be an officer of
the company, within the meaning of sub- section (1)."

[2] 628. Penalty for false statements.- If in any return, report,
certificate, balance sheet, prospectus, statement or other document
required by or for the purposes of any of the provisions of this Act, any
person makes a statement-

(a) which is false in any material particular, knowing it to be
false; or
(b) which omits any material fact knowing it to be material,
he shall, save as otherwise expressly provided in this Act, be
punish- able with imprisonment for a term which may extend to two years,
and shall also be liable to fine.

manner and method of determining seniority in the cadre of Sub-Inspectors of Police, in the State of Andhra Pradesh, are regulated by the Andhra Pradesh Police (Civil) Subordinate Service Rules= The judgments cited pertain to the particular rule of seniority, which was subject matter of consideration. None of the seniority rules which were taken into consideration is akin to rule 15 which is to be applied for determining the inter se seniority of Sub- Inspectors of Police, in the present case. Since the validity of rule 15 aforementioned, is not a subject matter of challenge, we have ventured to interpret the same, in consonance with the mandate and intent thereof. We would not like to burden this judgment, with the judgments cited at the Bar, by the rival parties.

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5862 OF 2007

A. Raghu, son of Rajaiah ... Appellant
versus
Govt. of Andhra Prdesh & others ... Respondents

WITH
CIVIL APPEAL NOS. 6002-6005 OF 2007

Vasam Surender, son of Veeraswamy & others ... Appellants

versus
Govt. of Andhra Prdesh & others ... Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. It is not a matter of dispute, that the conditions of service
including the manner and method of determining seniority in the cadre of
Sub-Inspectors of Police, in the State of Andhra Pradesh, are regulated by
the Andhra Pradesh Police (Civil) Subordinate Service Rules (hereinafter
referred to as, the Service Rules), notified on 26.8.1959, read with the
Special Rules notified on 14.12.1990. Learned counsel for the rival
parties are agreed, that the issue of seniority (which is the pointed issue
of dispute between the rival parties in the present appeals), is to be
determined under rule 15 of the said rules, which is extracted hereunder:-
"15. "Seniority:-- (a) The seniority of a person in the class or category
or grade shall, unless he has been reduced to lower rank as a punishment be
determined by the date of his first appointment to such class or category
or grade. If any portion of the service of such person does not count
towards his probation under the General Rules his seniority shall be
determined by the date of commencement of his service which counts towards
probation:

Provided that in the case of Sub-Inspectors, Sub-Inspectors of Police
(Intelligence) and Reserve Sub-Inspectors, the seniority inter se shall be
fixed on completion of training in the Police Training College or with the
Andhra Pradesh Special Police, as the case may be, instead of at the time
of selection in accordance with the list which shall be arranged in order
of merit, which shall be determined in accordance with the aggregate of
marks obtained by each probationer--

(i) in respect of his record in the Police Training College or with the
Andhra Pradesh Special Police, as the case may be; and

(ii) at the final examination.

In determining such order of merit, no account shall be taken of marks
awarded to a probationer in any subject in which he has failed. But such
seniority shall be liable to revision by the Deputy Inspector General of
Police concerned if he considers it necessary, before completion of
probation.

This sub-rule shall not affect the seniority of any members of the service
which may have been fixed expressly or by implication before the 19th
November, 1941 or any orders as to seniority which may have been passed by
competent authority before the 19th November, 1941.

Provided that in the case of directly recruited Sub-Inspectors of Police
(Intelligence) the inter se seniority shall be fixed on completion of
training the Police Training College/Andhra Pradesh Police Academy, instead
of at the time of selection, in accordance with the list which shall be
arranged in order of merit, which shall be determined in accordance with
the aggregate of marks obtained by each probationer in the tests and
examinations prescribed for them in the training modules conducted at these
Institutions.

The seniority of the Sub-Inspectors of Police (Intelligence) appointed by
transfer from among Sub-Inspectors of Police (Civil) or equivalent ranks of
this service carrying the same scale of pay shall not be treated as first
appointment but shall be determined with reference to the date of his
seniority in the Class or Category from which he was transferred.

Provided also that the inter se seniority of the Sub-Inspectors selected
from among the Reserve Sub-Inspectors of Armed Reserve and Andhra Pradesh
Special Police Battalions by transfer shall be fixed in the order of merit
for each Range (Zone) separately based on the aggregate marks obtained by
them in the final examination conducted at Police Training College at the
end of six months training. In determining such order of merit, the marks
secured in the failed subjects need not be taken into account.

(b) The appointing authority may, at the time of passing an order
appointing two or more persons simultaneously to a class or category fix
for any reason the order of preference among them; and where such order has
been fixed, seniority shall be determined in accordance with it.

(c) The transfer of a person from one class or category of the service to
another class or category carrying the same pay or scale of pay shall not
be treated as first appointment to the latter for purposes of seniority and
the seniority of person so transferred shall be determined with reference
to the date of his first appointment to class or category from which he was
transferred. Where any difficulty or doubt arises in applying this sub-
rule, seniority shall be determined by the appointing authority.

(d) Where a member of the service in any class, category or grade is
reduced to a lower class, category or grade, he shall be placed at the top
of the ladder unless the authority ordering such reduction directs that he
shall take rank in such lower class, category or grade next below any
special member thereof.

(e) The seniority of qualified special policemen appointed by transfer as
constables in this service shall be determined by the date of their first
appointment in this service for purposes of confirmation in vacancies in
this service.

(f) The seniority of the Prohibition staff absorbed in this service shall
be determined on the basis of their pay fixed with reference to Fundamental
Rules 22 and 31, in the service:-

Provided that the inter-se seniority of these at the same stage of the time
scales of pay of the service will be determined by the dates on which they
began to draw pay at that stage; and

Provided further that no member of the Excise and Prohibition Department
will, on appointment to this service, be senior to any member of the
service who has put in the same or more period of service than himself.

In the case of members of such ranks in the Excise and Prohibition
Department, the scales of pay of which correspond to the scales of pay of
the ranks of this service, the date of their first appointment in the
Excise and Prohibition Department shall determine the seniority."

Insofar as the above rule is concerned, the further admitted position is,
that the inter se seniority between the rival parties is liable to be
determined in terms of the first proviso to rule 15(a) extracted above.

2. Before venturing into the determination of the inter se seniority
between the rival parties, it is necessary in the first instance, to
delineate the factual position. We shall accordingly hereinafter, in the
first instance, narrate the factual position, as it emerges from the
pleadings, as also, from the different orders appended to the instant batch
of civil appeals.

3. The Police Department of the State of Andhra Pradesh decided to fill
up existing posts of Sub-Inspector of Police by way of direct recruitment.
The Andhra Pradesh State Level Recruitment Board (hereinafter referred to
as, the Recruitment Board) undertook the aforesaid exercise by issuing a
notification dated 22.1.1991. As per the said notification, 470 posts of
Sub-Inspector, in 7 different zones were sought to be filled up. The
process of selection from amongst eligible candidates, was to be based on a
physical test followed by a written test and an interview. Having
concluded the aforesaid selection process, lists of provisionally selected
candidates were prepared on the basis of their inter se merit in the
selection process, for each of the 7 zones. While disposing of the present
controversy, we have chosen to pass a common order, wherein we shall take
into consideration the vacancies sought to be filled up for Zone V
(Warangal range). In this behalf, it would be relevant to mention here,
that the office of the Director General & Inspector General of Police,
Andhra Pradesh, Hyderabad, issued a communication dated 11.4.1991/7.5.1991
indicating the names of provisionally selected candidates for Zone V
(Warangal range). A list of candidates was attached to the aforesaid
communication, depicting the provisional list of selected candidates for
the above range. This list comprised of 38 names from the open category, 5
names from the backward class 'A' category, 7 names from the backward class
'B' category, 1 name from the backward class 'C' category, 5 names from the
backward class 'D' category, 11 names from the scheduled castes category, 4
names from the scheduled tribes category, 2 names from the ex-servicemen
category, 6 names from among the police executives, 1 name from the
ministerial service, and 1 name from amongst the sportsmen.

4. On 12.7.1991, the afore-stated candidates were directed to report for
training. Only 58 of the selected candidates, however, reported for
training. The rest of the candidates did not join for a variety of
reasons. It is not a matter of dispute, that there are two police training
colleges in the State of Andhra Pradesh, and accordingly, the afore-stated
selected candidates were deputed for training to the said two training
colleges. The order dated 12.7.1991 vide which the short-listed candidates
were deputed for training reveals, that the candidates were placed on
probation from the date of joining the police training college(s). The
training would continue for a period of nine months followed by practical
training for one year and three months, including holding independent
charge of a police station for not less than nine months. The said
training was to commence from 16.7.1991.

5. All the 58 selected candidates except one Munuswamy, successfully
completed their training. Insofar as Munuswamy is concerned, he did not
participate in the examination at the end of the training, due to personal
reasons. Munuswamy was allowed to enroll himself for training along with a
batch of candidates who were deputed for training on 14.6.1992. Munuswamy
also completed his training with the said subsequent batch of candidates,
in 1993.

6. It is relevant to mention, that in the statutory provision regulating
appointments against the cadre of Sub-Inspectors of Police, 50% of the
posts are earmarked to be filled up by way of direct recruitment, 30% of
the posts are to be filled up by promotion from Head Constables, 7% from
amongst police executives (hereinafter referred to as, PE) out of the
Constables and Head Constables, 4% from police ministerial staff
(hereinafter referred to, as PM), 2% from sportspersons (hereinafter
referred to as, SP), not more than 5% by way of transfer from Reserve Sub-
Inspectors (from Armed Reserve/Andhra Pradesh Special Police) and 2% by way
of appointment under special circumstances, on compassionate grounds.

7. Original Application no. 29957 of 1991 came to be filed before the
Andhra Pradesh Administrative Tribunal at Hyderabad (hereinafter referred
to as, the Administrative Tribunal), questioning the validity of the
determination of the different quotas of recruitment in the aforementioned
notification dated 22.1.1991. While determining the above controversy, the
Administrative Tribunal arrived at the conclusion, that except the quota of
promotion from Head Constables (30%), by transfer of Reserve Sub-Inspectors
of Police (Armed Reserve/Andhra Pradesh Special Police) (5%) and
appointments under special circumstances on compassionate grounds (2%), the
remaining 3% quota has to be filled up by direct recruitment. The
Administrative Tribunal thereupon concluded, that the direct recruitment
quota, had been incorrectly determined for all the 7 zones, for which the
selection had been made (in furtherance of the notification dated
22.1.1991). Accordingly, the Administrative Tribunal vide its order dated
30.7.1991, directed the authorities to recalculate the vacancies under the
PE, PM and SP quotas for all the ranges, and to make appointments in
furtherance of the selection process initiated through the notification
dated 22.1.1991.

8. In obedience to the aforesaid directions, after recalculating the
vacancies for PE, PM and SP quotas, additional names of candidates were
sent for training. These candidates commenced their training on 14.6.1992.
They completed their training in 1993. It is pertinent to record here,
that the candidate whose training was deferred, namely, Munuswamy, and the
candidates whose names were short-listed for training in furtherance of the
directions issued by the Administrative Tribunal vide order dated 30.7.1991
(passed in Original Application no. 29957 of 1991), commenced the course of
training simultaneously on 14.6.1992.

9. We have recorded hereinabove, that out of the names of candidates
provisionally selected for Zone V (Warangal range), only 58 candidates had
reported for training. The State Government took a conscious decision to
depute for purpose of training, further candidates equal to the number of
candidates who did not join training. As such, 10 more candidates who had
participated in the process of selection, initiated through the
notification dated 22.1.1991, and were placed immediately below the
selected candidates as per the first list (deputed for training vide letter
dated 11.4.1991/7.5.1991), were sent for training. These candidates were
also sent for training to the two police training colleges in the State of
Andhra Pradesh. These additional candidates also commenced training on
14.6.1992, i.e., in the same batch along with the aforementioned Munuswamy,
as also, the candidates who came to be deputed in furtherance of the order
passed by the Administrative Tribunal in Original Application no. 29957 of
1991.

10. The competent authority, namely, the Deputy Inspector General of
Police, Warangal, vide a memorandum dated 17.1.1996, issued a seniority
list of Sub-Inspectors of Police, Zone V (Warangal range). The said
seniority list included the names of the original 58 Sub-Inspectors of
Police (out of the 80 selected for the said Zone), who had completed their
training in June, 1992. It is also necessary to reflect the negative
position, namely, the abovementioned seniority list did not include the
name of Munuswamy, who did not complete the training along with the 58
candidates who had joined training in furtherance of their provisional
selection vide letter dated 11.4.1991/7.5.1991. The above seniority list
also did not include the names of those selected and appointed in
furtherance of the notification dated 22.1.1991, consequent upon the
determination of the Administrative Tribunal, that the quota of vacancies
from PE, PM and SP, had wrongly been determined. The abovesaid seniority
list, did not include the names of those candidates, who had been selected
in furtherance of the notification dated 22.1.1991, for the sole reason,
that some of the candidates who had been selected (and appointed), had
failed to join the police training college(s) (in furtherance of their
provisional selection, vide letter dated 11.4.1991/7.5.1991).

11. It is apparent from the factual position noticed hereinabove, that
consequent upon the selection process conducted in furtherance of the
notification dated 22.1.1991, the selected candidates were deputed for
training in two batches. The training of the first batch commenced on
15.7.1991, whereas, the training of the second batch commenced on
14.6.1992. Some of those candidates, who commenced their training on
14.6.1992, approached the Administrative Tribunal, by filing Original
Application no. 5165 of 2002, assailing the action of the authorities in
not including their names in the seniority list dated 17.1.1996, wherein
only the names of 58 candidates, who had joined training on 15.7.1991 were
reflected. In fact, names of none of the candidates who had commenced
training on 14.6.1992 were reflected in the aforesaid seniority list. The
Administrative Tribunal disposed of Original Application no. 5165 of 2002
vide an order dated 11.6.2002. The ultimate directions issued in the
aforesaid order are being extracted hereunder:-
"In view of the matter, the applicants are directed to make a detailed
representation to the Director General and Inspector General of Police
putting forth their complete case, and the Director General and Inspector
General of Police is directed to dispose of the representation of the
applicants preferably, before making promotions to the posts of Inspector
of Police in Zone-IV."

In obedience to the directions issued by the Administrative Tribunal on
11.6.2002, those candidates, who had been selected consequent upon the
issuance of the notification dated 22.1.1991, but had commenced their
training at the police training college(s) on 14.6.1992, submitted a
detailed representation wherein they asserted, that their names ought to
have been interspersed with the candidates who had commenced their training
with effect from 15.7.1991. The above claim was premised on rule 15
(extracted at the beginning of the instant judgment). The Director General
& Inspector General of Police, on receipt of the representation, sought the
following clarification from the Principal Secretary to the Government of
Andhra Pradesh, vide letter dated 21.1.2003:-

"Whether the seniority of SIs (Civil) though selected on the notification
for 1991 batch but appointed and underwent Basic Training during 1992 can
be fixed alongwith 1991 batch of SIs (Civil) as they were selected as per
the notification issued in the year 1991."

A perusal of the clarification sought reveals, that the real intent behind
seeking the aforesaid clarification was, whether the candidates selected in
furtherance of the notification dated 22.1.1991, were to be treated as
candidates belonging to a single batch, or whether, they were to be treated
as two batches, on the basis of the different dates of commencing training
(the first batch on 15.7.1991, and the second batch on 14.6.1992). Simply
stated, the question posed was whether the selected candidates (in
furtherance of the notification dated 22.1.1991) were to be treated as a
single batch for the year 1991. Or alternatively, they were to be treated
as two batches, one of the year 1991 (i.e., in respect of candidates
deputed for training on 15.7.1991) and the second of the year 1992 (i.e.,
in respect of candidates deputed for training on 14.6.1992). The
Government of Andhra Pradesh issued a memorandum dated 17.3.2003, in
compliance of the order dated 11.6.2002 (passed by the Administrative
Tribunal while disposing of Original Application no. 5165 of 2002), and in
reply to the letter dated 21.1.2003 (issued by the Director General &
Inspector General of Police, Andhra Pradesh, seeking clarification with
reference to the inter se seniority of the parties in dispute). Vide its
memorandum dated 17.3.2003, the State Government accepted delay at its
hands, in not deputing the selected candidates from the PE, PM and SP
quotas for training, due to a wrong calculation of the vacancies. Having
accepted delay at its own hands, the State Government was of the view, that
the candidates sent for training belatedly (who had commenced their
training at the concerned police training college with effect from
14.6.1992), were entitled to seniority along with those deputed for
training on 15.7.1991. This, according to the State Government, would have
to be achieved by interspersing the candidates deputed for the training
courses on 15.7.1991 and 14.6.1992, by taking into consideration the
aggregate marks obtained by them, at the end of their training at the
police training college(s). It is, therefore apparent, that the State
Government accepted the contention of the candidates deputed for training
on 14.6.1992 (namely, the applicants who had approached the Administrative
Tribunal by filing Original Application no. 5165 of 2002). This position
was adopted by the State Government on account of the fact, that the
candidates were selected through a common process (initiated by the
Recruitment Board vide notification dated 22.1.1991).

12. The claim of the candidates, whose names were included in the list of
provisionally selected candidates, issued on 11.4.1991/7.5.1991 was, that
they were higher in the merit list, vis--vis candidates who were deputed
for training on 14.6.1992, and as such, those deputed for training vide
letter dated 11.4.1991/7.5.1991 should be treated as a batch separate and
distinct, from the batch of candidates who were deputed for training on
14.6.1992. The 58 candidates, whose names were included in the letter
dated 11.4.1991/7.5.1991, and who were exclusively placed in the seniority
list dated 17.1.1996, filed detailed objections to the determination
rendered by the State Government vide its order/memorandum dated 17.3.2003.
The State Government vide its order dated 26.12.2003, rejected the
objections filed by the candidates deputed for training on 15.7.1991. In
sum and substance, the claim of the candidates, who were deputed for
training on 15.7.1991, that they should be placed en-masse above the
candidates deputed for training on 14.6.1992, in the seniority list, came
to be rejected. Accordingly vide order dated 13.9.2004, the State
Government issued a memorandum concluding, that the candidates deputed for
training on 14.6.1992 were entitled to be interspersed in the seniority
list, along with the candidates who were deputed for training on 15.7.1991.
In sum and substance, the State Government concluded, that those selected
in continuation of the notification dated 22.1.1991, by the Recruitment
Board, were entitled to be depicted in a combined/common seniority list,
prepared in consonance with rule 15 reproduced above.

13. The different orders passed by the State Government referred to in
the foregoing two paragraphs, whereby it had concluded, that the candidates
deputed for training on 15.7.1991 were liable to be infused for purposes of
seniority, with candidates deputed for training on 14.6.1992, were assailed
by the former, through a bunch of original applications filed before the
Administrative Tribunal. The afore-stated batch of original applications
came to be dismissed by the Administrative Tribunal vide order dated
24.9.2004. The applicants before the Administrative Tribunal, therefore,
approached the High Court of Judicature, Andhra Pradesh at Hyderabad
(hereinafter referred to as, the High Court), by filing a series of writ
petitions. The writ petitions came to be dismissed by the High Court by a
common order dated 8.2.2005. The determination by the High Court in
upholding the orders passed by the State Government, as also, the orders
passed by the Administrative Tribunal, are subject matter of challenge in
the instant batch of appeals. Since the issue, which is subject matter of
challenge is common, we propose to dispose of the same by a common order in
the same fashion, as the controversy was determined originally by the
Administrative Tribunal, and subsequently, by the High Court.

14. The solitary issue that arises for consideration at our hands is,
whether the candidates selected in furtherance of the notification dated
22.1.1991, issued by the Recruitment Board, constitute one batch. Or
whether, they constitute two batches of candidates, based on the separate
dates, when they were deputed for training. The contention advanced at the
hands of the learned counsel for the appellants before this Court was, that
the selected candidates are liable to be treated as two batches of
candidates. The first batch, according to the appellants, was the batch of
candidates deputed for training on 15.7.1991. And the second batch,
according to the appellants, would comprise of candidates who were deputed
for training on 14.6.1992.

15. As against the challenge raised at the hands of the appellants,
through their learned counsel, it was the submission of the learned counsel
for the respondents, that only one selection process was conducted in
furtherance of the notification dated 22.1.1991, by the Recruitment Board.
Out of the same selection list, candidates were deputed for training
firstly on 15.7.1991 and thereafter, on 14.6.1992. It was the submission
of the learned counsel representing the private respondents, and supported
by the learned counsel representing the State of Andhra Pradesh, that
bifurcation of candidates into two different trainee groups, would not
result in their being described as two batches of candidates. The
submission was, that all these candidates having been selected for
appointment, in furtherance of a common selection process conducted by the
Recruitment Board, they were liable to be treated as a single batch of
candidates.

16. We will venture to determine the controversy in hand, by adopting a
three-step consideration process. We shall thereupon record our
conclusion.

Consideration, One:

We shall, in the first instance, examine the seniority position only with
respect to Munuswamy. The name of Munuswamy was included in the list of
selected candidates issued by the Director General & Inspector General of
Police, Andhra Pradesh, Hyderabad, vide letter dated 11.4.1991/7.5.1991.
It is not a matter of dispute, that the aforesaid Munuswamy was originally
deputed for training at the police training college on 15.7.1991.
Munuswamy, however, could not complete his training on account of the fact,
that he did not participate in the examination conducted at the end of the
training, due to personal reasons. The aforesaid Munuswamy was allowed to
complete his training, along with the batch of candidates deputed for
training in the succeeding batch, on 14.6.1992. The above factual
position, which was duly taken into consideration by the Administrative
Tribunal, and by the High Court, was not disputed during the course of
hearing before us. The question which arises for our consideration is,
whether Munuswamy would be entitled to be included in the seniority list,
along with the batch of candidates, with whom he was originally deputed for
training on 15.7.1991, or with the batch of candidates who were deputed for
training thereafter, on 14.6.1992. Having given our thoughtful
consideration, and keeping in mind the basic principle underlying the
relevant proviso to rule 15 (extracted at the beginning of this judgment),
we are of the considered view, that the mandate for the determination of
seniority under the aforesaid proviso is to the following effect. Firstly,
inter se seniority of Sub-Inspectors of Police is not to be determined in
accordance with the merit list drawn up, "at the time of their selection".
And secondly, inter se seniority of Sub-Inspectors of Police has to be
determined on the basis of "the aggregate of marks obtained by each
probationer", "at the final examination" on the conclusion of their
training, at the police training college(s). Insofar as the aforesaid
Munuswamy is concerned, it is not open to the candidates deputed for
training in the first instance to contend, that though Munuswamy's name was
included in the list of provisionally selected candidates issued on
11.4.1991/7.5.1991, his seniority ought to be determined along with the
candidates deputed for training later. It is apparent, that insofar as the
Munuswamy is concerned, since his name was included amongst the names of
candidates provisionally selected as Sub-Inspectors of Police vide letter
dated 11.4.1991/7.5.1991, those deputed for training vide the same letter
(dated 11.4.1991/7.5.1991) can not be permitted to contend, that his
seniority cannot be determined alongwith them. The above mentioned course,
suggested by the learned counsel for the appellants, is not open, because
the same would give primacy to something beyond the purview of the proviso
to the rule in question. We have no doubt in our mind, that Munuswamy, must
figure in the seniority list along with those deputed for training on
15.7.1991, for the simple reason, that his name existed in the list of
names (including the appellants), deputed for training vide letter dated
11.4.1991/7.5.1991. There can, therefore be no doubt whatsoever, that
insofar as Munuswamy is concerned, even though he completed his training in
the course which commenced from 14.6.1992, his position in the inter se
seniority list was bound to be reflected alongwith those with whom he was
deputed for training, according to the aggregate of marks obtained by him,
on the completion of his training at the police training college, in terms
of rule 15.

Consideration, Two:

Insofar as this step is concerned, we shall exclusively take into
consideration the manner of determination of seniority of candidates
appointed as Sub-Inspectors of Police, against the vacancies belonging to
the PE, PM and SP quotas, consequent upon the directions issued by the
Administrative Tribunal, dated 30.7.1991 (while disposing of Original
Application no. 29957 of 1991). In this behalf, it is relevant to mention,
that the vacancies falling to each of the aforesaid quotas, was found to
have been incorrectly determined by the State Government, while making
appointments in furtherance of the notification dated 22.1.1991. The
Administrative Tribunal accordingly, directed the State Government, to re-
calculate the strength of the said quotas, and to make appointments. It is
not a matter of dispute, that consequent upon the determination of the
Administrative Tribunal, the quotas with reference to the aforesaid cadres,
which had wrongly been determined, for each of the zones, were re-
calculated. The State Government on re-calculation of the vacancy
position, with reference to the PE, PM and SP quotas, appointed candidates
from the aforesaid quotas, out of the selection process conducted by the
Recruitment Board, in furtherance of the notification dated 22.1.1991.
Thereupon, they were deputed for training on 14.6.1992. It is, therefore
apparent, that had the quotas been correctly determined by the State
Government, these candidates would have been originally appointed along
with others, when the letter dated 11.4.1991/7.5.1991 was issued by the
Director General & Inspector General of Police, Andhra Pradesh, Hyderabad.
In the above eventuality, they would have been deputed for training in the
very first instance on 15.7.1991. For no fault of theirs, despite their
selection in the same recruitment process, which was conducted in
furtherance of the notification dated 22.1.1991, they were deputed for
training on 14.6.1992. The delay in deputing the candidates belonging to
PE, PM and SP quotas, squarely falls on the appointing authority, and not
on the candidates who were subsequently deputed for training from the PE,
PM and SP quotas. For exactly the same reason, as had been depicted under
"Consideration, One" above, we are of the view, that those deputed for
training against the PE, PM and SP quotas on 14.6.1992, being not in any
manner responsible for their not having been deputed along with the
originally selected candidates on 15.7.1991, are liable to a fixation in
the seniority list, in exactly the same manner as Munuswamy. This is
liable to be done in terms of the mandate of the relevant proviso to rule
15 aforementioned, by interspersing them along with those included in the
original seniority list, by determining their position on the basis of the
aggregate marks obtained by them, in the final examination, at the
conclusion of their training at the police training college(s).

Consideration, Three:

In "Consideration, One" and "Consideration, Two" above, we have concluded,
that even though the appointees in question were deputed for training on
14.6.1992, their seniority had to be determined alongwith the candidates
who had been deputed for training on 15.7.1991. We shall now endeavour to
consider the manner of fixing inter se seniority of the candidates, who
were selected in the process of selection conducted in furtherance of the
notification dated 22.1.1991, by the Recruitment Board, but had not been
appointed on account of the fact, that they did not fall within the number
of vacancies advertised. It is however relevant to notice, that after the
issuance of the letter dated 11.4.1991/7.5.1991, whereby provisionally
selected candidates were deputed for training to fill up the advertised
vacancies for the posts of Sub-Inspector of Police in all the 7 zones, it
came to be realized, that all the provisionally selected candidates did not
join the police training college(s) for the said training. So far as Zone
V (Warangal range) is concerned, only 58 candidates joined training. At
that very moment, it was open to the appointing authority to depute further
candidates for training, out of those whose names fell immediately below
the names of candidates deputed for training vide letter dated
11.4.1991/7.5.1991, against the balance vacancies. The competent
authority, however, delayed in deputing the names of these candidates. It
eventually deputed these candidates for training on 14.6.1992. From the
factual position depicted hereinabove, it is not possible for us to accept,
that the candidates, who were deputed for training on 15.7.1991, and those
deputed for training on 14.6.1992 to fulfill the deficiency, can be
described as two different batches. The selection process having been
joint, and in furtherance of the same notification dated 22.1.1991 (issued
by the Recruitment Board), it is inevitable for us to conclude, that the
candidates deputed to the two different courses of training (on 15.7.1991
and 14.6.1992) were essentially candidates belonging to a singular batch,
who were selected through a common process of selection. In fact, the
instant inference, insofar as the issue of inter se seniority is concerned,
is inevitable, as the dates on which the candidates were deputed for
training, are inconsequential, so far as rule 15 is concerned. Rule 15
leaves no room for any doubt, that even the merit position in the selection
process is not to be taken into consideration, while determining the inter
se seniority of candidates selected from a common process of selection. If
we were to accept the contention advanced on behalf of the appellants, that
those deputed in the first batch should be placed above all those deputed
in the second batch, we would necessarily be placing the selected
candidates in two groups, based on their merit position in the selection
process. Those deputed for training in the two batches (of 15.7.1991 and
14.6.1992), came to be so deputed, only because of their respective merit
position in the selection process. This determination would be in clear
breach of the proviso to rule 15, which postulates, that inter se seniority
of Sub-Inspectors of Police, is not to be determined in accordance with the
merit list drawn up "at the time of their selection". The seniority of
candidates, who are selected from a common process of selection, is to be
determined on the basis of the final aggregate marks obtained by them,
during the course of their training, at the police training college(s) in
the State of Andhra Pradesh. That being the mandate of the rule, we are of
the considered view, that for candidates who had participated in a common
process of selection, irrespective of the dates on which they were deputed
for training, their inter se seniority is liable to be determined, on the
basis of the aggregate of marks obtained by them, at the final examination
at the concerned police training college. This interpretation placed by us
on rule 15 of the Service Rules, satisfies the underlying principle given
effect to in the rule, namely, that the candidates appointed against the
posts of Sub-Inspector of Police, were to be arranged in the seniority
list, not on the basis of the marks obtained in the process of selection,
but according to the aggregate marks obtained by them, at the culmination
of the training processes. Additionally, the instant interpretation would
result in a uniform determination of the three separate considerations
dealt with by us. It would be absurd to apply one principle to Munuswamy,
another principle to those selected and appointed in furtherance of the
directions issued by the Administrative Tribunal on 30.7.1991 (in Original
Application no. 29957 of 1991), and a separate principle for determining
seniority of candidates who were deputed for training later, because some
of the selected (and appointed) candidates did not join training. This
process of deputing candidates for training, could have been adopted within
a few days, of the candidates not assuming training, at the police training
college(s) despite being required to do so. The concerned authorities
delayed the matter, for about a year. Neither is it possible for us to
find fault with the concerned individuals deputed for training belatedly,
nor is it possible for us to interpret a simple and straightforward rule of
seniority differently, just because, candidates were deputed to the
training course belatedly.

17. The view expressed by us upholds the order passed by the State
Government, and also affirms, the legal position expressed by the
Administrative Tribunal in its common order dated 24.9.2004, as well as, in
the impugned order dated 8.2.2005 passed by the High Court.

18. Insofar as the conclusions in the "Consideration, Three" recorded
hereinabove are concerned, it would be relevant to mention here, that the
learned counsel for the appellants, namely, the candidates who were deputed
for training on 15.7.1991, had also vehemently contended, that the first
proviso to rule 15(a) would not be applicable to the facts and
circumstances of the present case, because the first proviso contemplates a
joint training process, where those selected and appointed as Sub-Inspector
of Police, are graded on the basis of their performance during a
joint/common training process at the police training college. It was
submitted, that it would be unfair and unreasonable to determine inter se
seniority of candidates, on the basis of two different training processes,
the first which had commenced on 15.7.1991, and the second which had
commenced on 14.6.1992.

19. The submission noticed in the foregoing paragraph, seems to be
attractive on first blush. Learned counsel for the respondent-State
however pointed out, that those selected provisionally (vide letter dated
11.4.1991/7.5.1991), and who were deputed for training on 15.7.1991, had
been sent to undergo training, to two different police training colleges,
in the State of Andhra Pradesh. If the submission advanced at the hands of
the learned counsel for the appellants was to be accepted, according to
learned counsel for the State Government, even the seniority position of
the 58 candidates, who had joined training on 15.7.1991, having been
selected in Zone-V (Warangal range), could not be validly determined, for
the simple reason, that they had undertaken training at two different
police training colleges. According to learned State counsel, candidates
who were deputed for training subsequently, on 14.6.1992, were also deputed
to the same two police training colleges, in the State of Andhra Pradesh,
the curricula for the police training colleges, and the standard prescribed
being the same, just as the manner in which the candidates deputed for
training to the two different police training colleges, could be compared
with one another on the basis of the aggregate marks obtained by them, for
fixing their position in the seniority list, so also, those deputed for
training on different dates (on 15.7.1991 and 14.6.1992) could likewise be
compared with one another on the basis of the aggregate marks obtained by
them, in the final examination of their police training. We find merit in
the submissions advanced by the learned counsel representing the State of
Andhra Pradesh. For the above reason, it is not possible for us, to accept
the above noticed contention, advanced at the hands of the learned counsel
for the appellants.

20. During the course of hearing, some judgments were cited at the Bar,
to support the cause of the appellants, and that of the private
respondents. The judgments cited pertain to the particular rule of
seniority, which was subject matter of consideration. None of the
seniority rules which were taken into consideration is akin to rule 15
which is to be applied for determining the inter se seniority of Sub-
Inspectors of Police, in the present case. Since the validity of rule 15
aforementioned, is not a subject matter of challenge, we have ventured to
interpret the same, in consonance with the mandate and intent thereof. We
would not like to burden this judgment, with the judgments cited at the
Bar, by the rival parties.

21. For the reasons recorded hereinabove, we find no merit in the instant
civil appeals. The same are accordingly dismissed.

.................................J.
(Jagdish Singh Khehar)

.................................J.
(S.A. Bobde)
New Delhi;
March 26, 2015.

ITEM NO.1C COURT NO.4 SECTION XIIA

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

Civil Appeal No(s). 5862/2007

A. RAGHU, SON OF RAJAIAH Appellant(s)

VERSUS

GOVT. OF A.P. & ORS. Respondent(s)

WITH

C.A. No. 6002-6005/2007

[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE,JJ.]

Date : 26/03/2015 These appeals were called on for judgment
today.

For Appellant(s) Mr. P. Vinay Kumar,Adv.

Mr. K. Shivraj Choudhuri,AOR

For Respondent(s) Mr. Guntur Prabhakar, Adv.

Mr. Anil Kumar Tandale,AOR

Mr. S. Udaya Kumar Sagar,AOR

Hon'ble Mr.Justice Jagdish Singh Khehar pronounced the judgment
of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.

For the reasons recorded in the Reportable judgment, which is
placed on the file, the appeals are dismissed.

(Parveen Kr. Chawla) (Renu Diwan) Court
Master Court Master

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